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Tuesday, December 14, 2010

Ah, yes - a victory for limited government

Judge Hudson's decision in the Virginia case against Obamacare strikes a blow for one of our most important founding principles - that our government is limited. Liberals seem to think that there is very little that the government can't do when it comes to regulating business, commerce, our personal interactions and choices. When the health care reform bill was first passed, Nancy Pelosi ridiculed the idea that there was anything problematic about its constitutionality. Even now, as Tom Maguire points out, liberals seem gobsmacked that anyone would think there was something unconstitutional about the individual mandate.

I just wish that this decision had come out about 10 days earlier just when my AP Government class was discussing federalism and tracing the line of Supreme Court cases that have expanded Congress's power and then set some limits on that power. Judge Hudson's decision fits right in with the questions we'd been discussing.
Judge Hudson's opinion is particularly valuable because it dispatches the White House's carousel of rationalizations for its unprecedented intrusions. The Justice Department argued that the mandate is justified by the Commerce Clause because the decision not to purchase insurance has a substantial effect on interstate commerce because everybody needs medical care eventually. And if not that, then it's permissible under the broader taxing power for the general welfare; and if not that, then it's viable under the Necessary and Proper clause; and if not that, well, it's needed to make the overall regulatory scheme function.

But as Judge Hudson argues, the nut of the case is the Commerce Clause. Justice can't now claim that the mandate is "really" a tax when the bill itself imposes what it calls a "penalty" for failing to buy insurance and says the power to impose the mandate is vested in interstate commerce. Recall that President Obama went on national television during the ObamaCare debate to angrily assert that the mandate "is absolutely not a tax increase."

Moreover, Judge Hudson says that no court has ever "extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market."
Here's a question for liberals: is there anything Congress cannot do under the Commerce Clause? If their argument is that Congress can force people to buy health care insurance because their lack of purchasing that insurance affects commerce, well every decision that we make to do or not do something ultimately would have an effect on commerce. If that is true, then just forget about James Madison's vision of a government of limited, enumerated powers. That is just so 18th century. Today, unless Judge Hudson's characterization of the case holds, we're in the age of Leviathan, not of Madison.


Rick Caird said...

Many of us found the arguments against the constitutionality of the mandate to be far superior to the arguments justifying the mandate. We read Hudson's opinion and find it rational. But, we have to go up against the Breyer's of the Court. When Breyer can make the laughable claim, with a straight face, the Second Amendment does not mean what it says, then no declarative statement means what it says if Breyer does not like the implication of that statement.

That is how we manage to stray so far from the original Constitution. That is how Pelosi can ask "Are you serious" when the mandate is questioned. That is why Breyer needs a "living Constitution". And, that is why Breyer will turn to foreign law for help coming to the conclusion he wants.

equitus said...

Bumping this for Betsy in case some of our commenters missed it the first time:

"Here's a question for liberals: is there anything Congress cannot do under the Commerce Clause?"

pumping-irony said...

Using the "logic" of the Commerce Clause, abortions should be illegal. Because abortions reduce the number of possible consumers which thus affects commerce. Not to mention all the baby stuff that mothers buy which aborted fetuses don't require.

Hey, TAXES should also be illegal under the Commerce Clause!

Tacitus Voltaire said...

since it's already established that states can compel citizens to buy auto insurance, the real argument is 1) whether the federal government has the same rights as the states, and 2) whether any government can compel a citizen to buy insurance for a situation they have no way of avoiding

if any working adult has a way of avoiding owning a car in modern american society

whether some forms of being compelled to buy insurance are more odious than others, and whether the federal government has the same powers as the states, is obviously the real argument, so don't give me your high horse argument where you whine about your civil rights

mark said...

Not only are legal experts -including some who are against the health care law - questioning the judge's logic, many are questioning whether he should have recused himself:

Federal judge Henry E. Hudson's ownership of a stake worth between $15,000 and $50,000 in a GOP political consulting firm that worked against health care reform -- the very law against which he ruled today -- raises some ethics questions for some of the nation's top judicial ethics experts.

Details, details.

Ron K said...

"since it's already established that states can compel citizens to buy auto insurance"

the only time a state requires liability insurance is if you put a car on the road, you can have a drivers license with out insurance, as long as you don't own a car you plan on driving on a public road, there is no requirement for insurance.

Pat Patterson said...

In California car insurance is not required but you do have to show the ability, either by bond or assets, to pay the required amount. So if TV had bothered to check, since he claims to live in California, he would have found that insurance is not required but merely the ability to cover a minimum amount if at fault.

Rick Caird said...

TV has to be a child. He thinks like a child and reasons like a child. The car insurance canard has been taken apart time and time again. Besides the fact you don't have to buy any such insurance, or show proof of solvency, unless you actually own a car, mandated car insurance is designed solely for your liability toward someone else. You are not required to insure fomanr collision or for your own injuries.

Other than the fact "auto insurance" and the "mandate to purchase health insurance" both have the word "insurance" in them, they are so dissimilar as to demonstrate how poorly the person claiming equivalency actually reasons.

Rick Caird said...


I would love to know who the "many are questioning whether he should have recused himself" actually are. Did that come from Media Matters, Kos, or ThinkProgress. I suspect none of them carried any links, just assertions.

equitus said...

Glad to see TV and mark have chimed in.

So I'll assume their answer to my question would be "no".

equitus said...

Radley Balko is asking the same question. Can't wait to hear some answers!