Can Congress Force You to Be Healthy?
By JASON MAZZONE
NYT
HENRY E. HUDSON, the federal judge in Virginia who ruled this week that the individual mandate provision of the new health care law is unconstitutional, has become the object of widespread derision. Judge Hudson explained that whatever else Congress might be able to do, it cannot force people to engage in a commercial activity, in this case buying an insurance policy.
Critics contend that Judge Hudson has unduly restricted Congress’s authority to regulate interstate commerce, the principal basis on which the government defends the law. Some also claim that he ignored the “necessary and proper” clause of the Constitution, which allows Congress leeway to choose how to put in place national economic programs. Yet a closer reading shows that Judge Hudson’s analysis could prove irresistible to the Supreme Court and that there is a reasonable chance it will agree that the insurance mandate is invalid.
For the last century the Supreme Court has struggled to define the limits of Congress’s interstate-commerce power. In the early decades of the 20th century, the court experimented with a variety of distinctions: Congress could regulate trade but not the manufacturing process (in a child-labor case); Congress could regulate anything that directly affected interstate commerce but not where the effect was indirect (in a labor dispute involving coal miners); Congress could regulate goods in the stream of commerce but not before they entered or after they left that stream (in a ruling on chicken farming).
These distinctions, however, proved unworkable in a time of industrial growth and expanding national markets. And in the 1930s, confronted with the surge of governmental power during the New Deal, the court abandoned them all.
(More here.)
NYT
HENRY E. HUDSON, the federal judge in Virginia who ruled this week that the individual mandate provision of the new health care law is unconstitutional, has become the object of widespread derision. Judge Hudson explained that whatever else Congress might be able to do, it cannot force people to engage in a commercial activity, in this case buying an insurance policy.
Critics contend that Judge Hudson has unduly restricted Congress’s authority to regulate interstate commerce, the principal basis on which the government defends the law. Some also claim that he ignored the “necessary and proper” clause of the Constitution, which allows Congress leeway to choose how to put in place national economic programs. Yet a closer reading shows that Judge Hudson’s analysis could prove irresistible to the Supreme Court and that there is a reasonable chance it will agree that the insurance mandate is invalid.
For the last century the Supreme Court has struggled to define the limits of Congress’s interstate-commerce power. In the early decades of the 20th century, the court experimented with a variety of distinctions: Congress could regulate trade but not the manufacturing process (in a child-labor case); Congress could regulate anything that directly affected interstate commerce but not where the effect was indirect (in a labor dispute involving coal miners); Congress could regulate goods in the stream of commerce but not before they entered or after they left that stream (in a ruling on chicken farming).
These distinctions, however, proved unworkable in a time of industrial growth and expanding national markets. And in the 1930s, confronted with the surge of governmental power during the New Deal, the court abandoned them all.
(More here.)
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1 Comments:
Three questions
1) does Congress have the authority to regulate intra-state commerce?
2) does Congress have the authority to require intra-state commerce?
3) does Congress have the authority to require inter-state commerce at all?
Suppose I buy a product within the state of Minnesota where I live. Does Congress have the authority to regulate that commerce? According to the bastardized reading of the commerce clause in Wickard V Filburn, the Supreme Court in 1938 found that even if the commerce is not interstate commerce, but might have an 'affect' on interstate commerce, that Congress has the authority to regulate this.
To put it in terms of my Irish heritage - what a fucking joke. The Supreme Court got it wrong in Wickard V Filburn. Congress possesses the authority to neither regulate intra-state commerce, nor require intrar-state commerce, nor require inter-state commerce.
As I sit here at my desk and type this opinion, I am currently not engaged in commerce of any kind. But, due to ObamaCare, all of a sudden I must go down to the local State Farm office and be forced in to intra-state commerce in order to remain in legal status as a citizen if I do not already have health insurance? Is this really what the Commerce Clause of the Constitution says? Really? REALLY?? It says all that??? It says that after 221 years all of a sudden Congress has the Constitutional authority to require commerce and has authority over intra-state commerce between two private parties of the same state?
This is what the progressives who wrought. We have eviscerated the Constitution that it now says what 9 people in robes says it is. In sounder times Congress - both parties - would howl that legislation like ObamaCare is totally unConstitutional. But, we hardly hear a peep from Congress as to whether or not legislation is Constitutional. What we have now is just a spoil system that who ever is in the majority just gets to do whatever they want to do whether or not it passes Constitutional muster. And the progressives don't care - as long as they get their way. But, the progressives will be the first to stand up and bitch about the Consitutionality of, say, the war in Iraq or warrantless wiretapping of suspected terrorists which makes Consitutional scholars like me laugh. Progressives don't give two shits about the Consitution except insofar as it can be used to advance their agenda.
So, instead of limited government, we would have unlimited government if legislation like ObamaCare is allowed to stand. And all is lost after that. There would be nothing to check Congressional power, not even elections. Congress could just require us to do whatever Congress feels necessary that we should do.
And that is tyranny.
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