Tuesday, February 01, 2011

A paean to limited government

There is a lot that Americans can learn from the debate about whether or not the individualized mandate is constitutional. Federal Judge Vinson's decision yesterday that it was not and thus all of Obamacare is unconstitutional is a magnificent learning moment for everyone about what our government is all about. Over our nation's history, the role of the federal government has grown far beyond what was originally understood by our Founding Fathers. Much of what the Antifederalists warned about has now come to pass. They warned that the "Necessary and Proper" and Commerce Clauses could be stretched to mean anything that an expansive government wanted them to mean.

But finally there seems to be a point beyond which the government may not be able to stretch. Despite Nancy Pelosi's derisive dismissal of any question of whether or not their health care bill was constitutional, there is clearly a massive problem with their bill.

The WSJ's editorial on Judge Vinson's decision summarizes
the argument that opponents of the health care bill as well as Judge Vinson were making.
'If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself."

Federal Judge Roger Vinson opens his decision declaring ObamaCare unconstitutional with that citation from Federalist No. 51, written by James Madison in 1788. His exhaustive and erudite opinion is an important moment for American liberty, and yesterday may well stand as the moment the political branches were obliged to return to the government of limited and enumerated powers that the framers envisioned.

As Judge Vinson took pains to emphasize, the case is not really about health care at all, or the wisdom—we would argue the destructiveness—of the newest entitlement. Rather, the Florida case goes to the core of the architecture of the American system, and whether there are any remaining limits on federal control. Judge Vinson's 78-page ruling in favor of 26 states and the National Federation of Independent Business, among others, is by far the best legal vindication to date of Constitutional principles that form the outer boundaries of federal power.

At the heart of the states' lawsuit is the individual mandate, which requires everyone to purchase health insurance or be penalized for not doing so. "Never before has Congress required that everyone buy a product from a private company (essentially for life) just for being alive and residing in the United States," Judge Vinson writes.

Congressional Democrats and the Obama Administration justified this coercion under the Commerce Clause, so it is fitting that Judge Vinson conducts a deep investigation into its history and intent, including Madison's notes at the Constitutional Convention and the jurisprudence of the first Chief Justice, John Marshall. The original purpose of the Commerce Clause was to eliminate the interstate trade barriers that prevailed under the Articles of Confederation—among the major national problems that gave rise to the Constitution.
This was the clear understanding of the Commerce Clause up until the New Deal when the Court ruled that basically any activity one might indulge in for one's personal use could be considered part of interstate commerce. But not purchasing health insurance is not commerce.
Yet even in its most elastic interpretations, the Commerce Clause applied only to "clear and inarguable activity," Judge Vinson writes, the emphasis his. It never applied to inactivity like not buying health insurance, which has "no impact whatsoever" on interstate commerce. He argues that breaching this frontier converts the clause into a general police power of the kind that the Constitution reserves to the states. As the High Court put it in Lopez, obliterating this distinction would "create a completely centralized government."

The Administration contends that not purchasing insurance—inactivity—is really activity, because everyone will eventually need medical care and their costs will be transferred to the insured. But Judge Vinson dissects that as a "radical departure" from the Constitution and U.S. case law. It is "not hyperbolizing to suggest that Congress could do almost anything it wanted," he writes. "Surely this is not what the Founding Fathers could have intended."

He notes that no one can opt out of eating any more than they can from the medical system, so return to the Wickard example of wheat: "Congress could more directly raise too-low wheat prices merely by increasing demand through mandating that every adult purchase and consume wheat bread daily, rationalized on the grounds that because everyone must participate in the market for food, non-consumers of wheat bread adversely affect prices in the wheat market."

Unlike Judge Henry Hudson in Virginia, who also found ObamaCare to be unconstitutional, Judge Vinson addresses the Administration's fallback argument that the Constitution's Necessary and Proper Clause justifies the law even if the Commerce Clause doesn't. He writes that this clause "is not an independent source of federal power" and "would vitiate the enumerated powers principle." In other words, the clause can't justify inherently unconstitutional actions.
And now the administration is caught in a trap of their own making. They deliberately left out a "severability" clause to maintain the entire bill even if part of it was struck down. They were afraid that small parts of it would be repealed and that would bring down the entire edifice so they wanted to keep it all intact. And that is an Achilles Heel for them leading the judge to strike down the entire law. The administration kept insisting that the individual mandate was essential to the bill. They need all those uninsured young people to buy insurance in order to fund the expanded insurance being offered. And so the Democrats have created their own logic for why the entire bill must be struck down.

How refreshing to have laid out for all to see why we have limited government. This will go on and it will all probably come down to what Justice Kennedy decides.