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November 22, 2010

Severing Obamacare [Journolist]

The most prominent lawsuits challenging the constitutionality of Obamacare are filed in Federal District Court in Pensacola, Florida and Federal District Court in the Commonwealth of Virginia. Both are expected to proceed by early 2011.

These are very important cases because it is expected they will provide clarification on the so-called General Welfare and Commerce clauses in the U.S. Constitution. Since Obamacare, as written, does not include a severability clause, any element of the law deemed to be unconstitutional, will render the whole of Obamacare unconstitutional. Yet, whatever the outcome in the lower court(s), it is expected that at least one of the subject lawsuits will end-up before the United States Supreme Court.

I have spent a great deal of time over the past few months studying and debating these two clauses with local progressives. Our debates centered around the greater issue of how to read the U.S. Constitution.

Literalists, like me, read the words and meanings in the Constitution based on the English language in plain form and how they were defined at the time they were written, without nuance. Simply put, I believe the Constitution means what is says and says what it means. The Constitution should be regarded in this manner since it functions as the framework for the United States government and the supreme law of the land. It should be particularly noted, the Constitution is explicit that the people and the states delegated specific enumerated powers to the federal government and retained all others for themselves. This is a declarative statement that clearly displays the founding fathers’ desire for a much limited central government.

Despite the clear constitutional limitations enunciated by the founding fathers, case law adherents read not the words in the Constitution, but rather precedents established through stare decisis. The flaw in that process is the fact many cases, which now form precedent, were based on ideological influences at the time they were decided, as opposed to the Constitution’s plain English intent.

From 1787, when the general welfare clause was written, until 1937 when it morphed into a justification for Great Depression era social programs, the clause was clearly understood to deal with the “General Welfare” of the United States (as an entity), and not necessarily as individuals, per se. I think that is clear from Article I Section 8 in the Constitution. In 1792 James Madison, generally regarded as the father of the Constitution, wrote: “If that clause was meant to allow Congress to pass anything it wanted to ensure creature comforts of all citizens, then you may as well throw the Constitution in the fire.”

The “Commerce Clause” reads, in part: “To regulate Commerce with foreign Nations, and among the several States, and with Indian Tribes”. If read literally, the clause suggests it is intended to be external, not internal. Foreign Nations, Indian Tribes and the States are external to the federal government. The clause does not authorize unlimited regulation by the federal government. If trade between two states be free of any duties, there is no need for the federal government to intervene and “regulate.” But if one state were to impose a duty on goods coming in from another state, the clause authorizes the federal government to intervene and “regulate.”

The case law adherent reads the Commerce Clause as encompassing any number of regulations placed on the citizens of the United States, corporations, businesses, schools, state and local governments, or any other entity where commerce has transpired or may transpire in the future. Such an interpretation seems to suggest the federal government has unlimited authority over the lives of its citizens. I consider that to be tyranny, as opposed to Federalism and the limited government intended by the founders.

The Commerce Clause issue will be a challenge in deciding Obamacare because it would require the court to disregard stare decisis, the practice of honoring previous rulings without convincing reason to revisit them. But I think the mandate of forcing individual citizens to buy health insurance or be fined, etc., to be a convincing reason. If the federal government can force citizens to buy health insurance, is there any limit to what it can do or force us to buy?

The federal court cases in Florida and Virginia challenging Obamacare’s constitutionality will be critically important ones to watch. For the future of states rights hang in the balance.

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posted by Open Blogger at 10:32 AM

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