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March 14, 2010
Fighting the Constitutionality of ObamaCare
Posted by The MaryHunter at March 14, 2010 12:40 PM
As seen this morning on Fox News Sunday, the Democrats are pushing ahead with the aptly-named Slaughter Rule to ram through ObamaCare, eviscerating our Constitution in the process. Even though Republican Rep. Eric Cantor points out that this manoeuver is clearly unconstitutional:
...Democratic Rep. Chris Van Hollen doesn't give a flying doughnut-hole:
Assuming that ObamaCare becomes law through a procedural violation of the Constitution and against the wishes of the electorate, what next? Even if some states pass laws or state constitutional amendments to try an end-around of ObamaCare, will these efforts stand up to the power of the federal government?
One debated issue is at the nexus of two Constitutional points: the "federal supremacy" clause in the Constitution, which could be interpreted as making ObamaCare trump all "opt-out" state laws, vs. the clear constitutional prohibition of "capitation" taxes. There's a compelling argument that an individual health care insurance mandate, the core of the bill, is unconstitutional because penalty taxes are imposed on those who refuse government-approved health insurance.
The Constitution places strict restrictions on Congress' power to lay capitation taxes under But Article I, Sec. 9, which reads "No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken."
Exemptions for some people built into the Senate bill's individual mandate tax would make it impossible for ObamaCare to meet this strict constitutional standard.
Says policy analyst Matt Patterson:
"Some of the finest legal minds in the country have concluded that the enforcement provisions of ObamaCare's individual mandate would violate the both spirit and the letter of the U.S. Constitution. Apparently, President Obama and members of Congress think they are smarter than these scholars - and smarter than the authors of the Constitution."
State constitutional amendments could also serve as weapons to defeat ObamaCare -- as is being attempted in Arizona.
In Arizona, which will vote on a constitutional amendment that preserves the freedom of individuals to decline to participate in any health care system this November, the Goldwater Institute's Clint Bolick has prepared a Q & A on the issue. In it, he notes several legal precedents which suggest that states might be able to preserve individual protections. In particular, he singles out a case involving a "right-to-die" law in Oregon:
In the case most closely on point, Gonzales v. Oregon (2006), the Court upheld the state's "right-to-die" law, which was enacted by Oregon voters, over the objections of the U.S. Attorney General, who argued that federal law pre-empted the state law. Applying "the structure and limitations of federalism," the Court observed that states have great latitude in regulating health and safety, including medical standards, which are primarily and historically a matter of local concern. Holding that the attorney general's reading of the federal statute would mark "a radical shift of authority from the States to the Federal Government to define general standards of medical practice in every locality," the Court interpreted the statute to allow Oregon to protect the rights of its citizens.
In other words, though perhaps unlikely, it's not impossible that state laws preserving an individual right to opt out could survive legal challenge. And no matter what, the existence of these laws send a fairly powerful political signal--one that will almost certainly factor into the decisions now being made by undecided House members.
Michele Malkin covers more arguments and also provides a full list of the Blue Dog Democrats and their contact information.
Hang tough, Patriots! O, the battle we face.
Hat tip: Gateway Pundit.
Image hat tip: Michele Malkin.
