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Sunday, February 06 2011

The Constitution Lives to Fight Another Day

Like a phoenix rising from the ashes, the Constitution of the United States lives to fight another day. With as bloodied and beaten as her carefully articulated prohibitions against the overreach of governmental power had become following years of abuse, America's great charter found a champion in Judge C. Roger Vinson and his stinging rebuke of ObamaCare. If upheld by the appellate courts (which must be considered quite plausible, if not likely), Vinson's opinion has not only turned back an unprecedented attempt at expanding the power of the federal government far beyond its intended scope, but has also provided a catalyst for a return to constitutional government in the United States.

That is no small feat given where we were just 24 months ago when Barack Obama was delivering his inaugural address and verbally shaking the foundation of constitutionalism by frightfully articulating a governing philosophy far removed from the author of that Constitution, James Madison, who wrote in Federalist 41, "Is the aggregate power of the general government greater than ought to have been vested in it. This is the first question." In what should have been a grave foreshadowing of what was to come, Obama dismissed Madison's counsel and decreed a brave new approach, "The question we ask today is not whether our government is too big or too small, but whether it works."

Years of historical revisionism and benign neglect in our civics and government classrooms allowed that profound dichotomy between the Father of the Constitution and the man we had just hired to be its guardian slip by unnoticed. Only when Obama appeared poised to break a campaign promise and sign into law a healthcare bill that would compel every American to purchase government-approved health insurance did the dwindling flames of what George Washington called the "sacred fire of liberty" begin to rekindle.

The embers began to glow in Congressional town hall meetings, where lawmakers like Pete Stark (D-CA) preposterously answered constituents that, "The federal government, yes, can do most anything in this country." The smoke began billowing when concerned citizens who were informing themselves on what was happening in Washington were patronizingly told by representatives like Joe Donnelly (D-IN) to, "turn off the TV and listen to a Frank Sinatra record." And dismissive attitudes about the constitutionality of their actions, like that coming from Speaker of the House Nancy Pelosi (D-CA) when she responded to such a challenge by flippantly scoffing, "Are you serious? Are you serious?" firmly ignited a movement dedicated to restoring the lost principles of federalism.

Enter Judge Vinson, who rightly interpreting his first obligation, set aside all peripheral questions about the uninsured, ObamaCare's potential for success, the debt it will bring or not bring, or the intent of its authors. In a statement that reflected the wisdom expressed in Federalist 41, Vinson confirmed, "this case.is not really about our health care system at all. It is principally about our federalist system, and it raises very important issues regarding the Constitutional role of the federal government." Somewhere, upon hearing those words, James Madison was smiling.

Whether the federal government had the authority to take on such monstrous power, after all, was to be the "first question." Yet, quite tellingly, it had become the one question that the supporters of ObamaCare avoided at all costs. Well, perhaps that's not fair. Then House Judiciary Committee Chairman, John Conyers (D-MI) did make an effort to address it, explaining to a reporter that Congress got their authority to force Americans to purchase health insurance, "Under several clauses, the Good and Welfare Clause and a couple others."

Though there is no such thing as the "Good and Welfare Clause," we can assume Conyers was meaning the "General Welfare" clause. But if so, it appears he bears the same antipathy towards James Madison that President Obama does. For it was Madison who cautioned, "With respect to the two words general welfare, to take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators." Given that Madison was one of those creators, Conyers might want to defer to him on this one.

Perhaps wanting to avoid that embarrassment, most ObamaCare defenders (including the administration itself) have attempted to excuse their unconstitutional overreach on the basis of the Commerce Clause of the Constitution, which allows Congress to regulate goods that are exchanged across state lines. Of course, ObamaCare is an entirely different animal. It first compels a passive person to engage in commerce, just so Congress can regulate them.

Vinson properly excoriated this rational, reasoning, "If [Congress] has the power to compel an otherwise passive individual into a commercial transaction with a third party...it is not hyperbolizing to suggest that Congress could do almost anything it wanted." That might please Pete Stark, but it doesn't meet Constitutional muster, as explained (once again) by the document's primary author James Madison: "If Congress can do whatever in their discretion can be done by money...the Government is no longer a limited one, possessing enumerated powers, but an indefinite one."

This was the spirit of Judge Vinson's ruling, which is what makes it so significant. It is a landmark decision for individual liberty and limited government, that very well may prove to be the ultimate undoing of the ObamaCare nightmare.

This column was first published at The American Thinker.

Posted by: Peter Heck AT 11:06 am | Permalink | 20 Comments | Email

Comments:

Wrong Peter, Article I of the Constitution lays out the enumerated powers, a grant of specific authorities to Congress. One of the "enumerated powers" is Congress' ability "to regulate Commerce with foreign Nations, and among the several States" Charles Fried Reagan's Solicitor General under says the "commerce clause" clearly applies to the health care insurance market. It surely is commerce, insuring as its 18 percent of the GNP. Does congress have the right to regulate. Yes!

Posted by El Gringo on 02/08/2011 07:33:41

Hi El Gringo, thanks for your comments. There is no question that the insurance market would apply under the commerce clause. What doesn't apply (which is what Vinson nailed correctly) is for Congress to regulate someone NOT ENGAGING IN COMMERCE. The passive individual who chooses not to engage the healthcare market cannot be constitutionally forced to do so. That is NOT covered under the commerce clause, but it is linchpin of ObamaCare. Thus, the legislation is obviously unconstitutional.

Posted by peterheck on 02/08/2011 12:22:00

Peter, yet again, you are mistaken. The authority Vinson relies upon undermines the point he tries to make. Vinson's reasoning begins by endorsing a claim that not purchasing health insurance is "inactivity," and Congress cannot regulate inactivity. He acknowledges that there is no authority for this distinction, but quotes US v. Lopez for the proposition that unless the commerce power is somehow limited, it would be "difficult to perceive any limitation on federal power." But there's a problem with citing Lopez: it imposed limits on federal power, and the law it struck down did not regulate inactivity. Lopez itself shows that Congressional power can be limited without the activity/inactivity distinction.

Posted by JamesThurston on 02/09/2011 17:05:33

Can be, but doesn't have to be, James. And that is the problem that Vinson points out. Without that distinction there is no limit on what Congress can do, meaning that the enumeration of Congressional powers in the Constitution was unnecessary - and indeed the entire Constitution is unnecessary - as Congress can do whatever it wants to do. That was clearly not the intent of the Founders, as Peter CORRECTLY points out with quotes in his column.

Posted by Phil Glassburn on 02/10/2011 10:57:58

Actually James, I'm pretty sure it's you that's 'once again' mistaken. I'm not sure where you received your legal training, but you are grasping at straws. Even Jonathan Turley has acknowledged the "colossal mistake" of Democrats to not put a severability clause in the bill because of the lack of constitutionality of the individual mandate. James you are apparently one of the few on the left remaining who are actually trying to defend the constitutionality of this thing.

Posted by M. Hielex on 02/10/2011 11:07:37

Sorry fellas, your arguments misapprehend the unique state of the national healthcare market. Every individual participates in the healthcare market at some point in his or her life, and individuals who self-insure rather than purchase insurance pursue a course of conduct that inevitably imposes significant costs on healthcare providers and taxpayers. Given that the minimum coverage provision bears a close and substantial relationship to the regulation of the interstate healthcare market, Congress can require minimum coverage.

Posted by JamesThurston on 02/15/2011 22:14:22

In a landmark decision studied by every law student, the Supreme Court in 1819 explained that the Necessary and Proper clause confirmed Congress's broad authority to enact laws beyond the strict confines of its other enumerated powers. Since then, the Supreme Court has repeatedly held that Congress, in regulating the national marketplace, can reach matters that when viewed in isolation may not seem to affect interstate commerce.

Posted by JamesThurston on 02/15/2011 22:15:46

Poor argument, James. One Peter Heck even addressed on his radio show. The entire base of your reasoning rests on this line: "Every individual participates in the healthcare market at some point in his or her life." You must also recognize that every individual participates in the food market, the shelter market, the transportation market, etc. at some point in his or her life. The healthcare market is no different than those. Therefore, given you poor logic, you cede the ability for Congress to compel commerce in each of those areas. Your interpretation would yield The Broccoli Act of 2014. You are standing on an island, James.

Posted by M. Hielex on 02/16/2011 11:15:13

The problem with your frivolous "broccoli" contention is that it has nothing to do with the Constitution. Those who use it say that the decision to obtain health insurance is a "non-economic" choice and therefore, they say, the government lacks the authority to require individuals to obtain health care coverage. Except the decision not to buy health insurance is a profoundly economic one that has significant financial consequences for everyone else. When the uninsured fall ill or get into an accident, they go to the emergency room, where they run up medical bills they often cannot afford to pay without insurance.

Posted by JamesThurston on 02/16/2011 12:54:36

But someone pays: hospitals, local governments, and the American people -- who not only foot those bills as taxpayers but also end up paying higher premiums of their own because the uninsured have opted out of the national risk pool. Congress found that these uninsured costs totaled about $43 billion in 2008. This cannot be said about moms' advice to eat broccoli.

Posted by JamesThurston on 02/16/2011 12:55:20

Further, Hielex, the broccoli objection rests on a simple mistake: treating a slippery slope argument as a logical one, when in fact it is an empirical one. Any slippery slope argument depends on a prediction that the instant case will in fact increase the likelihood of the danger case. If there is in fact no danger, then the fact that there logically could be has no weight. For instance, the federal taxing power theoretically empowers the government to tax incomes at 100%, thereby wrecking the economy. But there's no slippery slope, because there is no incentive to do this, so it won't happen.

Posted by JamesThurston on 02/16/2011 13:04:42

I notice that you conveniently chose to omit the transportation or shelter examples. Wise choice. Your arguments are well crafted, even though they are extra-constitutional. When driven to their logical end, you must admit that they render the need for a Constitution void and the articulation of enumerated powers unnecessary. That is why I said you're on an island. Given the historical context, your positions cannot possibly be reconciled with the Founders' intent.

Posted by M. Hielex on 02/16/2011 23:20:25

Your extrapolated logic leads you to quite an exaggeration. I should expect as much from someone who perceives the slippery slope fallacy as valid. As I have already addressed, Chief Justice John Marshall would disagree with your assertion that Congress' implied powers render the need for a Constitution void. Supreme Court precedent stands in clear opposition your opinion that Congress' constitutional authority is limited to its enumerated powers. Further, your argument neglects the political constraints the founders imposed on Congress that would make your ad baculum "Broccoli Act of 2014" unattainable.

Posted by JamesThurston on 02/17/2011 13:45:50

Further, your comments imply the Founders' maintained a unified "intent," which is the true position that cannot be reconciled within the historical context. When George Washington asked Alexander Hamilton to defend the constitutionality of the First Bank of the United States, Hamilton argued that the sovereign duties of a government implied the right to use means adequate to its ends. Although the United States government was sovereign only as to certain objects, it was impossible to define all the means which it should use, because it was impossible for the founders to anticipate all future exigencies. Hamilton noted that the "general welfare clause" and the "necessary and proper clause" gave elasticity to the constitution.

Posted by JamesThurston on 02/17/2011 13:46:34

Chief Justice Marshall created the Supreme Court precedent that would forever cement Hamilton's legal principle. You may disagree, but unless you can rewrite history to fit your revisionist slant, you are just plain out of luck.

Posted by JamesThurston on 02/17/2011 13:47:38

You've used too many words and consequently you have backed yourself into a corner. You now retreat behind "general welfare" and "necessary and proper" and Marshall's federalist proclivities to defend something that would make any Marshallinian or Washingtonian federalist blush. It becomes obvious who is rewriting history to fit their own revisionist slant.

Posted by M. Hielex on 02/17/2011 18:02:18

Those were Hamilton's words, not mine.

Posted by JamesThurston on 02/17/2011 18:22:17

The bottom line is simple, Hielex. You have a partisan constitutional theory supporting your argument. I have 200 years of Supreme Court precedence supporting mine. Seems like you're the one on an island.

Posted by JamesThurston on 02/17/2011 18:39:22

Ha! No, what you have, JamesThurston, is a dramatic and unprecedented expansion of Supreme Court precedence based on a partisan constitutional theory. That you are unwilling to concede that the individual mandate is a power grab unparalleled in American constitutional history puts you at odds with the vast majority of scholars even on your own side of the argument. Thus, the island.

Posted by M. Hielex on 02/18/2011 10:06:26

Regardless of your opinion of the decisions, Stare Decisis binds courts to past precedent. Congress has authority to enact laws beyond the strict confines of its other enumerated powers- even regulating those "free-riders" who do not purchase health insurance and pass their costs on to others. So again, unless you can rewrite history, you are out of luck. And if you'd like to bring legal scholarship into this debate, I'm happy to oblige. Here is a letter, signed by over 100 legal scholars from top law schools, outlining many of the SAME arguments I've already made: http://www.acslaw.org/files/Legal%20Scholars_Health%20Care_Constitutional.pdf Island? Hardly- and most certainly not at odds with established legal scholarship.

Posted by JamesThurston on 02/18/2011 16:24:37