It has finally happened: the Patient Protection and Affordable Care Act (more commonly known, and how I will be referring to it throughout this post, as “ObamaCare”) is being debated in the Supreme Court. This is a crucial case in history, testing how far the federal government can go. If this bill is ruled constitutional, it means whether or not Congress wants to force people to eat ten pounds of broccoli each day is a political debate and not a judicial one. Ruling this bill constitutional would be giving the federal government almost unlimited authority: it would be the ultimate expansion of the constitutional power of Congress.

Fortunately, swing justices such as Anthony Kennedy are finding the argument coming from the White House to be weak. Stupidly, the White House decided to try a different approach to their case almost immediately prior to the bill being reached to the Supreme Court. Indeed, their argument was horrible before, but this addition they have added has escalated the White House to a new level of embarrassment.

To determine the true constitutionality of ObamaCare, let us look at the facts…

The 10th amendment states:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Simply as stated, if the federal government is not specifically delegated the power to implement a particular law, that law is unconstitutional.

The powers of Congress are specifically delegated in Article 1, Section 8 of the Constitution as follows:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and Post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

The part I put in bold is the only part that could ever potentially be applicable to justify ObamaCare. The “General Welfare” cannot be used as an independent power.1 Indeed, the courts that ruled the individual mandate constitutional justified the law using the Commerce Clause.

An argument brought to the table claiming that the individual mandate is constitutional proclaims that it is not actually a mandate — it is merely raising taxes on those who do not buy health insurance, thus using Congress’s power to tax. Now, the courts that did rule the mandate constitutional used the Commerce Clause, not the power to levy taxes, so under this argument, those courts are wrong since it is not covered by the Commerce Clause. However, the individual mandate is a penalty — that is the wording of the ObamaCare document itself. If it were a tax, what would it be a tax on? The consumption of goods? Income? The Constitution allows for duties, imposts, excises, and income taxes. The individual mandate would be a so-called “tax” on an inactivity, which is blatantly unconstitutional, and is why no court has gone down that road.

What does the Commerce Clause mean exactly? From the clear language of it, it seems Congress has the power to regulate interstate commerce (but not intrastate). What we need to take into account is the definition of “to regulate” in 1787. Andrew Napolitano, a former superior judge, Princeton University graduate, and now a talk show host, pointed out that if you look up “to regulate” in the Oxford English Dictionary (which gives definitions of words throughout history), it meant “to keep regular” in 1787. In other words, the Commerce Clause was meant to be used to make sure commerce was flowing throughout the states, prohibiting protectionist trade policies among the states. It is also evident that “to regulate” was interpreted as “to keep regular” with the case of our currency (“[t]o coin Money, regulate the Value thereof”), which only inflated about 12% from 1789-1913 while it inflated over 2,000% from 1913-2010 — the value of the dollar decreasing 95% from 1913 (the Federal Reserve Act was enacted in 1913). For over a hundred years, Congress actually did a good job in keeping the value of the dollar regular, as the Constitution clearly and solely gives them power to do.

Unfortunately, the spirit of the Constitution is irrelevant to the constitutionality of a law. Legally, the only thing that matters is the text of the document. James Madison may have articulated this legal status accurately when he said:

Do not separate text from historical background. If you do, you will have perverted and subverted the Constitution, which can only end in a distorted, bastardized form of illegitimate government.

However, from a legal point-of-view, there is no way to objectively determine the spirit of the Constitution and so we must rely on the text (although the definitions should obviously be the ones used in 1787). “To keep regular” is a subjective term, and so it is stretchable to mean “to regulate” in modern terms, although it is completely out of the lines of what the framers intended.

Now, even if we were to stretch the Constitution to its full extent and say “to regulate” meant the same thing in 1787 as it means now, the individual mandate would still be unconstitutional. Quite simply, although it is stretchable to say that Congress can regulate interstate commerce for whatever reason they see fit, imposing a penalty on those who do not buy health insurance is not regulating interstate commerce by any means. The commerce must first exist in order to keep it regular or regulate it — not buying health insurance is an inactivity and is not engaging in commerce. The individual mandate forces people to engage in commerce, and then it regulates that commerce. Arguably, the part where it regulates that commerce is constitutional, but the forcing of people to engage in commerce is completely out of the scope of Congress.

Unfortunately, the bias of the Supreme Court has not only used the stretched version of the Commerce Clause as a basis, but has actually “stretched” that stretch into an almost unlimited power of Congress. The court has not only ruled that Congress can regulate any activity that is interstate commerce, but any activity that has a “substantial” effect on interstate commerce. At this point, it isn’t even a stretch — it’s an outright incorrect ruling. Since “substantial” has a subjective definition, it means Congress can regulate any activity that has an effect on interstate commerce. Nowhere in the Constitution does it say this, and since just about any activity could potentially have an effect on interstate commerce, this means Congress has virtually unlimited power.

As unconstitutional, completely bent, and far away from what the framers intended the courts have been on the Commerce Clause, even this whacky interpretation cannot justify the individual mandate. Indeed, the Supreme Court has only ruled that Congress can regulate any activity that is or has a substantial effect on interstate commerce. As was stated earlier, not buying health insurance is an inactivity and therefore is unconstitutional for the federal government to outlaw.

Here is the crucial point in this case: if the court rules that ObamaCare is constitutional, it means that Congress can control absolutely anything. Indeed, an inactivity cannot, by any stretch of the imagination, be engaging in interstate commerce, and so Congress would have the constitutional authority to could control anything.

Now, the White House has recently added a new element to their argument: last minute, they decided to throw in the Necessary and Proper Clause as part of their argument. They proclaim that the individual mandate is necessary and proper for the law; thus, if not constitutional under the Commerce Clause, it must be constitutional by the Necessary and Proper Clause. However, article 1, section 8 makes this very clear: “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;” and then it goes on a list of things the Congress has power to do. Note that it doesn’t say anything about the power to implement laws at this point. Then, at the end of the list, it says that the Congress shall have power “[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” It does not say that Congress shall make any laws necessary and proper for any law. It clearly states that Congress shall make laws necessary and proper for carrying into the execution of the powers specifically enumerated in the Constitution. This means that Congress shall make laws, if they are both necessary and proper into carrying out the enumerated powers in the Constitution. This is a restriction on government, not an expansion. Congress can make laws to regulate interstate commerce, but the Necessary and Proper Clause adds that Congress can only make laws to regulate intestate commerce if they are necessary and proper to regulating interstate commerce. If anything, the White House is making a case against themselves: ObamaCare is certainly not necessary or even proper to carrying out the execution of regulating interstate commerce. Adding this piece of the argument was a bad move for the White House, indeed.

Those who are firm in their false belief that ObamaCare is constitutional may recite a judge who ruled the mandate constitutional and argued from a different perspective:

The health care market is unlike other markets. No one can guarantee his or her health, or ensure that he or she will never participate in the health care market. Indeed, the opposite is nearly always true. The question is how participants in the health care market pay for medical expenses – through insurance, or through an attempt to pay out of pocket with a backstop of uncompensated care funded by third parties.

This phenomenon of cost- shifting is what makes the health care market unique. Far from “inactivity,” by choosing to forgo insurance plaintiffs are making an economic decision to try to pay for health care services later, out of pocket, rather than now through the purchase of insurance,collectively shifting billions of dollars, $43 billion in 2008, onto other market participants….

The plaintiffs have not opted out of the health care services market because, as living, breathing beings, who do not oppose medical services on religious grounds, they cannot opt out of this market. As inseparable and integral members of the health care services market, plaintiffs have made a choice regarding the method of payment for the services they expect to receive. The government makes the apropos analogy of paying by credit card rather than by check. How participants in the health care services market pay for such services has a documented impact on interstate commerce. Obviously, this market reality forms the rational basis for Congressional action designed to reduce the number of uninsureds.

The problem with the argument that not buying health insurance is actually an activity because of the consequences is that this completely misses the point brought forward proving the unconstitutionality of the mandate. The point of the matter is that what the law is regulating must exist in order to regulate it. In this case, the law is supposedly “regulating” health insurance. The argument put forward by this judge is saying that the mandate does not force the engagement of commerce because everyone ends up engaging in commerce somewhere along the line. This is a completely irrelevant and overall bad argument. The individual mandate concerns health insurance. In order to regulate health insurance, the engagement of commerce — in this case, health insurance — must exist. The problems with the argument that is provided is that assumes everyone will eventually engage in commerce of health insurance, which is not true. Even if it were the case that every single person eventually bought health insurance, ObamaCare would still be unconstitutional seeing as it is still forcing individuals to engage in commerce — whether or not they were planning on doing so anyway is irrelevant. Deciding to pay out of pocket regards health care, not health insurance, and is completely irrelevant to the individual mandate debate. This argument goes off topic from the law and brings up red herrings. The individual mandate outlaws not buying health insurance, which is an inactivity. It does not regulate paying out of pocket for health insurance. It does not regulate “how participants in the health care services market pay for such services.” It outlaws not buying health insurance. It’s legal for me to not buy any health insurance and never go to a hospital and never pay any type of health care right now. Most likely, this won’t happen, but it has happened to few people. The individual mandate does not regulate how you buy health insurance or health care — it forces you to engage in commerce and buy the health insurance.

Footnote

1Some people claim that the general welfare means that the government is permitted to make whatever laws they want as long as it is for the general welfare. They further define “the general welfare” to either mean just general prosperity or others will even go as far to say that it means it permits government aid to the homeless, etc.

First of all, “welfare” did not mean government aid in 1787. Welfare simply meant prosperity, happiness, etc.

Welfare

welfare n. 1. health, happiness, or prosperity; well-being. [<ME wel faren, to fare well] Source: AHD

Welfare in today’s context also means organized efforts on the part of public or private organizations to benefit the poor, or simply public assistance. This is not the meaning of the word as used in the Constitution.

http://www.usconstitution.net/glossary.html#WELFARE

Thus, saying that the general welfare permits government aid to the poor is simply wrong.

Second, the “general” welfare and just plain “welfare” are not the same thing. The “general” welfare is meant to mean the entire public. It benefits everyone. The federal government taking money from person A to give to person B is unconstitutional. Taking money from person A to provide a service that benefits both person A and B is constitutional (depending on what the service is). Again, this is by simple definition.

So, we know that Congress can do whatever they want if it’s for the the happiness of the public, right? Well, the general welfare is cited in two parts of the Constitution — the preamble and article 1, section 8. Since the preamble is not technically law, let’s cite the official clause in article 1, section 8:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States

Let’s see if we can understand this fully by simple grammatical definition. Congress has power to lay and collect taxes — duties, imposts and excises — to provide for the general welfare. I think we can all agree on that? I used dashes — the Constitution uses comas. You could use parentheses if you wanted. It’s a matter of style, but they all mean the same thing. Duties, imposts, and excises are different types of taxes. So, to shorten the clause to put it in more simplistic terms and get to the main point (and since we’re only talking about the general welfare part), I could say

The Congress shall have Power To lay and collect Taxes … to … provide for the … general Welfare of the United States

Interchangeably, I could say

The Congress shall have Power To lay and collect Duties, Imposts and Excises … to … provide for the … general Welfare of the United States

Of course, as I cited above, this is not the only part in article 1, section 8.

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To *enumerated powers here*

“But” all of these taxes must be granted from the specific enumerated powers. The general welfare is a restriction on government — the government may only use the specific enumerated powers if it for the general welfare or the common defense, thus prohibiting social welfare programs as we know them today. The general welfare clause does not grant Congress the power to do whatever they want as long as it is for the general welfare. Why would our founders specifically list all those enumerated powers if the general welfare could mean anything, anyway? This is all by simple dictionary and grammatical definitions.

On a side note:
I often see conservatives use the argument that the Constitution actually says “promote” the general welfare, so the government can only encourage the activity. This argument is a fallacy. Although it does say “promote” in the preamble, it says “provide” in article 1, section 8, which is the part that is law.

***This particular article was solely written by J.R. Cardosi (excluding when quoting others as indicated).

One response »

  1. Daniel Claverie says:

    Thank you for this post. As an independent progressive with a clear interest in libertarian anarchism I need a reminder that I live in a place, not simply North Carolina, where the United States Constitution one of my founding cultural documents is so clearly explained.

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