Russell and Duenes

Obamacare Is About The Survival Of Our Constitutional Republic

with 13 comments

More is at stake in the passage of Obamacare than simply “healthcare.” Our very Constitutional form of government is at stake, and it is a glad relief to see that U.S. judges are seeing it the same way (so far). Federal District Court judge Roger Vinson explained it this way in his recent ruling (State of Florida v. United States Department of Health and Human Services):

It would be a radical departure from existing case law to hold that Congress can regulate inactivity under the Commerce Clause. If it has the power to compel an otherwise passive individual into a commercial transaction with a third party merely by asserting — as was done in the Act — that compelling the actual transaction is itself “commercial and economic in nature, and substantially affects interstate commerce” [see Act § 1501(a)(1)], it is not hyperbolizing to suggest that Congress could do almost anything it wanted. It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place. If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain for it would be “difficult to perceive any limitation on federal power” [Lopez, supra, 514 U.S. at 564], and we would have a Constitution in name only.

There’s a great summary of Judge Vinson’s ruling here.


HT: National Review Online


Written by Michael Duenes

January 31, 2011 at 4:42 pm

13 Responses

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  1. People are compelled to buy into Social Security. We’re compelled to pay for roads to be repaired, and we’re compelled to pay for foreign wars. Maybe only the first is a good example, since the others are done by our taxes. Anyway, it strikes me as an issue of how, not if, it can be done.

    But, egads, I had to read your post after learning that the survival of our constitutional republic was in jeopardy.


    January 31, 2011 at 8:44 pm

    • Andy – I admit I tried to make my title provocative to entice readers. People often try to draw a parallel between Obamacare and Social Security (the roads and foreign wars are not parallels in any real sense, since the government surely must undertake certain things that private entities cannot, although building roads could be, and perhaps should be.). Social Security is not a true parallel, however, in that the government is not forcing me to engage in commerce. I am not required to buy anything. Further, Social Security, at least in its original intent, was meant to be money that I would get back in its entirety. That is, I am supposed to get out of it no less than I put into it. Of course, that hasn’t happened, which is why Social Security is broken and should be radically modified if not outright abolished. Social Security is out-and-out theft, and there’s no getting around it. The government is stealing from Americans in a big Ponzi scheme and getting away with it. We will never, ever recoup anything near all that we’ve paid into Social Security. It was sold to the American people as “insurance,” but then was turned into a “tax.” Sheer duplicity. That’s the only parallel I can see to Obamacare.

      But the point is, with Obamacare, or any healthcare policy like it, I am required, on pain of fine or jail, to buy something which I may or may not want to buy. On this principle, the government could compel us to buy TV’s and there’s nothing we could do about it. This surely violates the Constitution. Further, the Obama Administration said, straight out, that the individual mandate “is not a tax,” and then they turned around and argued before the Court that it is, indeed, a tax. This is chicanery of the highest order, and I hope that it all comes crashing down. We need a new healthcare system, but running in the exact opposite direction from that in which Obama and Co. want to take us.


      russell and duenes

      January 31, 2011 at 9:28 pm

  2. Personally, I don’t like the idea of requiring people to buy the insurance. I think it should be good enough that people would want it as an alternative to private insurance. Then I’d like to see it put most private insurance out of business, or force them to drop prices. Then, in the end, you’d still have medical care for the rich who can pay a premium price, or just pay cash, and decent insurance for everyone else. I don’t understand the details, but I think private insurers fought hard to keep any such thing from happening. I assume what we got wasn’t intended to be the final product, but a step that will inevitably lead toward a national insurance system that can work, and that’s constitutional. I’m not holding my breath, and I’m glad I don’t have to buy any kind of US health insurance for now.


    February 1, 2011 at 7:14 am

    • Andy G – No surprise there. You seem to like the idea of governments coercing all sorts of behavior, as do many former SoCal Intervarsity types, calling it “justice.” The problem is that good intentions are not enough. There are far, far better ways to distribute health care across our population without the government coercing people into commerce. The problem with your plan is that it never works the way you describe in reality. A government takeover would indeed force private insurance out of business. Then the government would effectively own my body, because they would dictate what services I can and cannot have access to. Oh, and there’s no such thing as a free lunch, so all this government healthcare would not be “free,” but paid for in the form of much higher taxes and ultimately, lower standards of care than would be possible under a much freer system. What is needed is true competition in healthcare, much like we have in auto insurance. Government run healthcare is not competition because the government holds all the cards. They do not have to compete in the marketplace. In a truly free system, the government could help subsidize certain individuals, not by running health care, but by subsidizing HSA’s and letting people make their own choices. The problem is, social liberals don’t want people making their own choices, because they – or so they think – know what’s best for all of us. Rather Orwellian, I think.


      russell and duenes

      February 1, 2011 at 8:55 pm

  3. Even if Congress can’t regulate inactivity under the Commerce Clause, can’t they find some other grounds? I guess not, or the feds would have tried in this case. But government (state and local at least) already compels us to buy a great many things — some car related examples: auto insurance, smog check, carseats for kids etc.; I’m sure there are many other examples. What’s the basis for these? Many are to protect others more than the individual, so I guess it’s something along those lines. Seems like public health could fit in the same basket as public safety.

    Andy M

    February 1, 2011 at 9:30 am

    • A.L. – I’m afraid your car insurance parallel is not really a parallel. Indeed the government does compel me to buy car insurance, etc; but they do not compel me to drive. If I choose not to drive (as my younger brother does), then I’m not compelled to buy anything. With Obamacare, I would be forced to buy something merely by being alive and being a US citizen. The feds have already tried your reasoning and several judges, Vinson included, have rejected it, rightly. Not to mention the fact that Obama and Co. pulled a major bait and switch, saying the mandate wasn’t a tax, and now it is. They’re such smart people, they figured they’d get over on us bovine dolts down here among the masses.

      If I follow your argument, a true parallel would go thus: Eating lots of fiber is good for me, so the government could now compel me to buy fiber and eat it, on pain of fines or jail. Sounds ridiculous, but the principle is quite the same. Indeed, if Obamacare is allowed to pass muster, there is absolutely no limit to what the feds can compel you and me to do, all while calling it “commerce,” and that’s why I said that our entire way of government is at stake.


      russell and duenes

      February 1, 2011 at 9:01 pm

      • Technically it may not be a true parallel, but I think you’d agree that places like NYC are an anomaly. That’s like saying “I won’t charge you to live in my house, but if you want to walk around to, you know, get some food or use the bathroom or whatever, you have to buy some slippers. No no, I’m not compelling you to buy anything just because you live here, really I’m not.” I guess I’m just saying it’s not as unheard of to compel the people to engage in commerce as some would make it out to be, so it seems like these guys could have a better legal strategy.

        Not that I want them to. The idea of a government-subsidized option entering the market to compete with private insurers freaks me out as much as anyone. But the problems they’re trying to solve need solutions. True competition like auto insurance sounds good to me. Just don’t make me pay per child 😉

        Andy M

        February 1, 2011 at 10:49 pm

      • I still don’t think it’s a parallel, and here’s an article that I think explains why:

        That said, I agree with you about making health insurance more like auto insurance.


        russell and duenes

        February 2, 2011 at 9:42 pm

      • Which I guess means I’m just echoing what Andy said originally, “it strikes me as an issue of how, not if, it can be done.”

        Andy M

        February 1, 2011 at 10:59 pm

  4. D-
    I think your opposition to the Social Security argument Andy asserted does not hold water. It is a true parallel because the government is forcing me to engage in financial transactions that take my money and use it. The Health care mandate will force me to engage in financial transactions that take my money and use it. You may not be required to “buy” anything but you are required to “spend.” I think you are splitting hairs to win an argument as opposed to dealing with the issue of Social Security as the long running forefather to, as you partisanly put it, Obamacare. You then appeal to Social Security’s “original intent,” which has little or nothing to do with its current structure as a forced payment for future services and payment for others to have current services. Now, I don’t think this changes your concerns about mandated healthcare, but Andy wins the comparison war.
    My concern is that our business sector has totally ruined the current health care system, mainly for the poor and middle class… and you want the same people to organize the new health care system? I would, at the very least, hope you would want some other entity to attempt to organize health care reform RATHER THAN those who are currently running it into the toilet. The government- maybe not. But the same insurance companies, drug companies and private business owners who are ruining people’s lives with disastrous premiums, requirements and drug costs? You can’t be serious.

    russell and duenes

    February 1, 2011 at 9:28 pm

    • R-
      Fair enough. My main opinion still stands: Abolish Social Security. It cannot continue as it currently stands, nor should it. It’s a massive Ponzi scheme, and people cannot live on it, so it’s not really insurance. I’ll say more about your assertion that “the business sector has totally ruined the current health care system” in a post.


      russell and duenes

      February 2, 2011 at 9:40 pm

  5. How many Andys post on this site?

    Health care is already one of the most heavily regulated industries in America.

    The fact that people believe that something as complicated as health care can be “organized” by any single institution scares me. In order to “organize” something, you have to use force, and you have to be incredibly arrogant to think you know best when it comes to the thousands of decisions you’re going to force millions of people to make.

    I’d rather have private businesses competing for my money. If, as R states, they charge too much for something, that only means there is an opportunity for me to enter the market and provide the service myself, thereby enriching myself. There’s plenty of venture capital money out there waiting to invest in my good idea. Where exactly can I enter the market?



    February 8, 2011 at 10:51 am

    • B – You’ll get no argument from me. I concur wholeheartedly. Private businesses cannot just gouge people at will, but the government can, on pain of fines or jail.


      russell and duenes

      February 8, 2011 at 8:42 pm

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