Are ObamaCare’s Individual Mandates Constitutional?

The answer would appear to be no, at least that the conclusion of an op-ed by penned David B. Rivkin Jr. and Lee A. Casey in last Saturday’s Washington Post:

President Obama has called for a serious and reasoned debate about his plans to overhaul the health-care system. Any such debate must include the question of whether it is constitutional for the federal government to adopt and implement the president’s proposals. Consider one element known as the “individual mandate,” which would require every American to have health insurance, if not through an employer then by individual purchase. This requirement would particularly affect young adults, who often choose to save the expense and go without coverage. Without the young to subsidize the old, a comprehensive national health system will not work. But can Congress require every American to buy health insurance?

In short, no. The Constitution assigns only limited, enumerated powers to Congress and none, including the power to regulate interstate commerce or to impose taxes, would support a federal mandate requiring anyone who is otherwise without health insurance to buy it.

Although the Supreme Court has interpreted Congress’s commerce power expansively, this type of mandate would not pass muster even under the most aggressive commerce clause cases. In Wickard v. Filburn (1942), the court upheld a federal law regulating the national wheat markets. The law was drawn so broadly that wheat grown for consumption on individual farms also was regulated. Even though this rule reached purely local (rather than interstate) activity, the court reasoned that the consumption of homegrown wheat by individual farms would, in the aggregate, have a substantial economic effect on interstate commerce, and so was within Congress’s reach. Read the rest…

Ok, so if individual mandates are unconstitutional what happens to universal coverage? In short it fails, not everyone wants to buy health insurance now, and that’s unlikely to change even with individual mandates. Living in a free society means being able to make choices that others many not agree with… Including choosing not to buy health insurance.

Holder Overrules DOJ Ruling Saying D.C. Vote Bill Is Unconstitutional

The Washington Post reports in today’s edition that Attorney General Eric Holder overruled lawyers in the Justice Department’s Office of Legal Counsel who ruled that the DC voting rights bill violates the Constitution:

Justice Department lawyers concluded in an unpublished opinion earlier this year that the historic D.C. voting rights bill pending in Congress is unconstitutional, according to sources briefed on the issue. But Attorney General Eric H. Holder Jr., who supports the measure, ordered up a second opinion from other lawyers in his department and determined that the legislation would pass muster.

A finding that the voting rights bill runs afoul of the Constitution could complicate an upcoming House vote and make the measure more vulnerable to a legal challenge that probably would reach the Supreme Court if it is enacted. The bill, which would give the District a vote in the House for the first time, appeared to be on the verge of passing last month before stalling when pro-gun legislators tried to attach an amendment weakening city gun laws. Supporters say it could reach the House floor in May.

In deciding that the measure is unconstitutional, lawyers in the department’s Office of Legal Counsel matched a conclusion reached by their Bush administration counterparts nearly two years ago, when a lawyer there testified that a similar bill would not withstand legal attack.

Holder rejected the advice and sought the opinion of the solicitor general’s office, where lawyers told him that they could defend the legislation if it were challenged after its enactment.

Ed Morrissey asks “What part of “support and defend the Constitution” does Holder not understand?“… I’m wondering the same thing, the Constitution is quite plain on the matter. The Office of Legal Counsel’s opinion is not in any way out of line or rogue it’s the same position that the OLC has held since at least 1963.

Ed Whelan was more here.

Related

• Attorney General Holder is Subverting the Constitution – Kim Priestap, Wizbang

Be Afraid, Be Very Afraid…

Be afraid, be very afraid… In all the furor over Barack Obama’s 2001 remarks on redistribution we missed a larger more frightening point. Take a look the transcript of Sen. Obama’s remarks (emphasis mine):

If you look at the victories and failures of the civil rights movement and its litigation strategy in the court, I think where it succeeded was to invest formal rights in previously dispossessed people, so that now I would have the right to vote. I would now be able to sit at the lunch counter and order and as long as I could pay for it I’d be OK

But, the Supreme Court never ventured into the issues of redistribution of wealth, and of more basic issues such as political and economic justice in society. To that extent, as radical as I think people try to characterize the Warren Court, it wasn’t that radical. It didn’t break free from the essential constraints that were placed by the Founding Fathers in the Constitution, at least as it’s been interpreted, and the Warren Court interpreted in the same way, that generally the Constitution is a charter of negative liberties. Says what the states can’t do to you. Says what the federal government can’t do to you, but doesn’t say what the federal government or state government must do on your behalf.

And that hasn’t shifted and one of the, I think, tragedies of the civil rights movement was because the civil rights movement became so court-focused I think there was a tendency to lose track of the political and community organizing and activities on the ground that are able to put together the actual coalition of powers through which you bring about redistributive change. In some ways we still suffer from that.

Barack Obama’s view of the Constitution and the role of the courts should scare the living daylights out of every American who understands that the Constitution is the sole and most important safeguard of our rights and our liberties.

The framers intended the Constitution to be a limiting document, it is not a charter, it is the law of the land. Without it we are subjects, not citizens.

Steven Calabresi has much more detailed look at Obama’s views on redistribution and the Constitution in today’s Wall Street Journal.