Posted Jun 18th 2010 at 9:21 am
by Josie Wales
Repealing Obamacare via Article V is a means of last resort, or rather a threat to the national bureaucratic government should those in Washington not jump on board. In the meantime, states, those individual laboratories of liberty, are attempting a number of remedies.
States have filed lawsuits, but my legal background makes me wary of relying on the judicial branch to make the ultimate decisions on policy. Marbury v. Madison established the Supreme Court’s role as the ultimate arbiter in conflicts involving the Constitution, but that does not guarantee that correct decisions will result. So first we will examine the legislative solutions.
Many states across the country are either introducing laws or revising constitutions to protect Americans from the tyranny of Obamacare. The progress of these Health Care Freedom Acts or Amendments are being tracked by various groups. Most of this legislation is fairly simple to read and understand. Basically, states are refusing to enforce or enact Obamacare, which is perfectly reasonable under the present legal understanding of federalism. The national government cannot force states to enforce unfunded federal law. A perfect example of this is the increasing decriminalization of marijuana in communities across America. Local police are handing out tickets (much better for revenue than throwing people in jail).
Health Care Freedom passed in a few states, including the Commonwealth of Virginia (in addition to its lawsuit), and is working its way through the legislatures of many others. The first state to allow its citizens to vote in a referendum is Missouri. The Missouri Health Care Freedom Act (MHCFA) appears on the ballot on August 3. This vote may prove crucial in the repeal of Obamacare. If it succeeds by large margins it will signify the beginning of the end of the progressive agenda. Anyone who is serious about defeating the progressives should support Missouri in its endeavor. You can be assured that OFA, MORE (the new Missouri ACORN), and other progressive organizations will be pulling all sorts of shenanigans.
Now let us discuss some of the legal reasoning in the quest to repeal Obamacare:
1) The 10th Amendment:
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.
First off, there is no such thing as “states’ rights.” The Tenth addresses “powers,” and we dilute the meaning of “rights” by suggesting that states have them. While no formal definition of “reserved powers” exists for the states, some are readily identifiable. National legislative powers are limited to the enumerated powers “herein granted,” according to Article I § 1 of the Constitution. That is, if a legislative power is not mentioned within the confines of Article I, it is reserved to the states. And while the national powers of both the executive and judicial branches include implied powers, the implied powers do not exist in a vacuum, or rather those powers relate to the aforementioned legislative powers. Traditionally, “reserved powers” includes public health, safety and welfare. Many more exist, though. State common law drives contract, family, property and tort jurisprudence.
The legal argument pertains to the enumerated powers. Essentially, neither health care nor insurance can be found within Congress’ enumerated powers. Progressives love to misconstrue Article I § 8 cl 1:
The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States.
Apparently, “general” means “everything under the sun,” rather than “non-specific,” and one cannot get any more specific than an unprecedented 2400 page bill that addresses 1/5 of our economy. Presumably, the states are tasked with providing for the “specific welfare.” James Madison went further in delineating the powers of the national and state governments in Federalist 45:
The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.
2) The Commerce Clause:
Article I § 8 cl. 3 reads:
To regulate commerce with foreign nations, and among the several states, and with the Indian tribes.
Progressives argue that even if the Constitution did not specifically grant the power to control health care, the Commerce Clause does, in conjunction with the Necessary and Proper Clause (Article I § 8 cl. 18):
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.
Commerce clause jurisprudence cannot be discussed within the confines of this article. Suffice it to say that a government mandate to buy health insurance or suffer a penalty stretches the legislative power “to regulate commerce.” One could argue that if the government could force citizens to buy health insurance then the government could also force citizens to buy firearms. See how that sits with progressives!
3) Roe v. Wade
Let me preface this by saying that Mississippi is one of my favorite states in the Union. The people there are some of the most hospitable in the country. And now they are fighting progressive policy with progressive logic.
Most legal minds, whether they support or oppose the result of Roe, agree that the legal reasoning was flawed. Roe established the “right to privacy” in American jurisprudence out of thin air.
The Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution.
The problem is that the court did not go into great detail on the history of that right. Another problem is that the court also recognized that this right was not absolute. How a “fundamental right” cannot be absolute is perplexing, to say the least. A later case, Planned Parenthood v. Casey, reaffirmed the rule in Roe, and furthermore, addresses government power in the realm of health care:
Roe, however, may be seen not only as an exemplar of Griswold liberty but as a rule (whether or not mistaken) of personal autonomy and bodily integrity, with doctrinal affinity to cases recognizing limits on governmental power to mandate medical treatment or to bar its rejection.
Further discussion of the lawsuit in Mississippi can be found here.
4) The 9th Amendment
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Put simply, the government cannot ever be the guarantor of rights because those rights belong to the people, in opposition to government power.
The 9th Amendment would be more appropriately asserted by individuals, but this would not preclude state support. I am not aware of any state asserting this argument directly, but it may not be applicable until the national government actually tries to enforce the individual mandate. I have asserted the importance of this amendment in a discussion of “fundamental rights,” and in opposition to the progressive agenda. More importantly, this line of argument could prove persuasive to Justice Anthony Kennedy, a crucial vote on the Supreme Court. Justice Kennedy likes to blaze a trail, and is acutely aware of his role in decision-making and precedence on the court.
In conclusion to this entire discussion, I leave you with these prophetic words of James Madison in Federalist 46:
But ambitious encroachments of the federal government, on the authority of the State governments, would not excite the opposition of a single State, or of a few States only. They would be signals of general alarm. Every government would espouse the common cause. A correspondence would be opened. Plans of resistance would be concerted. One spirit would animate and conduct the whole. The same combinations, in short, would result from an apprehension of the federal, as was produced by the dread of a foreign, yoke; and unless the projected innovations should be voluntarily renounced, the same appeal to a trial of force would be made in the one case as was made in the other. But what degree of madness could ever drive the federal government to such an extremity. In the contest with Great Britain, one part of the empire was employed against the other. The more numerous part invaded the rights of the less numerous part. The attempt was unjust and unwise; but it was not in speculation absolutely chimerical. But what would be the contest in the case we are supposing? Who would be the parties? A few representatives of the people would be opposed to the people themselves; or rather one set of representatives would be contending against thirteen sets of representatives, with the whole body of their common constituents on the side of the latter.