Health Care Reform is it Constitutional?

Is Personal Liberty Hanging in the Balance?

On January 31, 2011, United States Federal District Judge Roger Vinson, for the Northern District of Florida, declared the Individual Mandate in section 1501of The Patient Protection and Affordable Care Act.”(PPACA) Pub. L. No. 111-148, 124 Stat. 119 (2010), unconstitutional. Since the Individual Mandate in section 1501 of the Act is an integral part of the overall PPACA and could not be separated, the whole act was declared unconstitutional. “Obama Care” was stopped dead in its track, for the time being. No matter how the Federal Appeals court decides, this case will end up on the Supreme Court Docket. The heart of the case will be whether the Federal government, under the Commerce Clause, can order the citizens of this country to engage in commerce, against their will, because it is beneficial to the population as a whole. The Supreme Courts decision will decide if this country will become a totalitarian nanny state, the iron fist of government’s absolute authority over its citizens disguised in a velvet glove; or a country were the individual can still make choices, personal choices affecting their own lives.

Supreme Court Justice Kennedy

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Nancy Pelosi Congress has absolute power

Legal Doctrine which will decide this Case

How will the Supreme Court decide this case? The experts, on both sides, agree that it will come down to one vote Justice Kennedy. Will he vote with the Conservative members of the court, or will he vote with the Liberal members of the court. No one is talking about the “legal tests” that the court will use to decided this case. Those test are; The Affectation Doctrine, The Cumulative Effects Test, and the Rational Basis Test. These tests have been crafted by the Supreme Court over the last two hundred years. Kennedy will decide this case based on legal precedent  not idealogic ground.   What are these test that will be used to decided whether the individual still hold supreme power over their elected officials or the individual is subject to the absolute authority of a autocratic governments.

Congress Can Do What it Wants

“Fourteen months ago, a reporter asked then-Speaker Nancy Pelosi if the Constitution allows the federal government to force people to have health insurance. Amazed at the impertinence of the question, she answered, ‘Are you serious?’ (Ny Post, January 31, 2011) Pelosi’s short terse response shows her total lack of understanding of the fundamentals of our Republican form of government. She did not even stop to think about her answer. As far as she was concerned, the individual is subject to the Federal government’s absolute authority.

The Supreme Court

The Roberts Court, 2010 Back row (left to right): Sonia Sotomayor, Stephen G. Breyer, Samuel A. Alito, and Elena Kagan. Front row (left to right): Clarence Thomas, Antonin Scalia, Chief Justice John G. Roberts, Anthony Kennedy, and Ruth Bader Ginsbur
The Roberts Court, 2010 Back row (left to right): Sonia Sotomayor, Stephen G. Breyer, Samuel A. Alito, and Elena Kagan. Front row (left to right): Clarence Thomas, Antonin Scalia, Chief Justice John G. Roberts, Anthony Kennedy, and Ruth Bader Ginsbur | Source

Implied Powers of Congress

 The issues the Supreme Court will consider will be: Does congress have the right, under the commerce clause, to force an individual to engage in an economic activity when the individual does not want to partake in the economic activity, the person wants to remain inactive.  The second issue will be the Necessary and Proper clause of the Constitution; does the Congress of the United States have the Necessary and Proper powers to enact this legislation? The third issue they will have to deal with is severability.  Could the force participation clause, Individual Mandate, of the PPACA be severed from the rest of the statute with voiding congress' intent. These last two issues will be covered in future articles. 

 The first issue; Is forced participation, under the commerce clause, to regulate commerce, Constitutional, does Congress have this power? Chief Justice John Marshall, writing the opinion of the court, in McCulloch v. Maryland (1819) concluded that Congress not only had the stated powers of Article 1 Section 8, but Congress had the power to reach into local commerce activities if those activities affected interstate commerce.  Otherwise known as Implied Powers of Congress.

4th Chief Justice of the United States

John Marshall in 1831 by Henry Inman
John Marshall in 1831 by Henry Inman | Source

"Congressional power acknowledges no limitation"

 In Gibbons v. Ogden (1824), The issue in this case was who had the right to control the use of the navigable waters of the country the Federal Government or the State government, Marshall again writing for the court stated  “This power like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitation, other than are proscribed in the Constitution…. the power is plenary”  The congress has full and complete authority. 

Justice Robert Jackson

Robert H. Jackson, c. 1945
Robert H. Jackson, c. 1945 | Source

Wickard v. Filburn

Chief Justice John Marshall’s decision in Gibbons v Ogden was used to expanded Congress’ power under the Commerce Clause in 1940 in the Wickard v. Filburn case. Under the New Deal’s Agriculture Adjustment Act (AAA) congress regulated how many acres of land a farmer could have under cultivation, in this case it was wheat being cultivated. Wickard was cultivating more acreages of land for wheat production than was allowed under the AAA. The wheat was to be used for his family’s consumption and not to be sold on the open market. Justice Jackson writing for the majority stated: “Even if the farmer’s activity (My emphasis) be local, and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress, if it exerts a substantial economic effect on interstate commerce, and this irrespective of whether such effect is what might at some earlier time have been defined as ‘direct’ or ‘indirect’.”

Affectation Doctrine

This decision in Wickard is know as the Cumulative effect principle and produce the Affectation Doctrine:

1.      The wheat would overhang the market and thus introduce an uncontrolled variable on supply and demand. (Wickard could dump his excess supply of wheat on the market at a later date.

2.      By growing his own wheat Wickard took himself out of the market

3.      The cumulative effect of every farmer doing that would reduce the price of wheat thereby affecting interstate commerce.   

 In the Wickard case, the farmer was an active participant in the growing of wheat. He was not inactive. He choose to grow the wheat thereby placing himself in the market equation. Justice Jackson specifically states the “farmer’s activity”

Civil Rights and the Commerce Clause

 

Using Wickard as the control case for the Federal Civil Rights act of 1964, the case of Hearts of Atlanta Motel v. United States an the public accommodation laws. The hotel owner’s refusing to rent to African Americans directly affected interstate commerce.  The owners of the motel were directly engaging in commerce that had an affect on interstate commerce therefore congress had the right and power to act.

The follow up case to Hearts of Atlanta Motel was Katzenbach v McClung 1964. This case produces the Rational Basis Test.  A local restaurant catered to mostly locals; however a small portion of its customers were non local and a small portion of their stock came from out of state. The restaurant would not serve African Americans. The court decided that congress could regulate local establishment if there was a rational basis that it affected interstate commerce.  If the Court found “through facts and testimony that Congress has a rational basis for finding a chosen regulatory scheme necessary to the protection of commerce, our investigation is at an end.  The only remaining question… is whether the particular restaurant either serve or offers to serve interstate travelers or serve food a substantial portion of which has moved in interstate commerce.”

Warren Court up holds Civil Rights Legislation

Earl Warren 14th Chief Justice of the United States
Earl Warren 14th Chief Justice of the United States | Source

Rational Basis Test

 Using Wickard as the control case for the Federal Civil Rights act of 1964, the case of Hearts of Atlanta Motel v. United States an the public accommodation laws. The hotel owner’s refusing to rent to African Americans directly affected interstate commerce.  The owners of the motel were directly engaging in commerce that had an affect on interstate commerce therefore congress had the right and power to act.

 The follow up case to Hearts of Atlanta Motel was Katzenbach v McClung 1964. This case produces the Rational Basis Test.  A local restaurant catered to mostly locals; however a small portion of its customers were non local and a small portion of their stock came from out of state. The restaurant would not serve African Americans. The court decided that congress could regulate local establishment if there was a rational basis that it affected interstate commerce.  If the Court found “through facts and testimony that Congress has a rational basis for finding a chosen regulatory scheme necessary to the protection of commerce, our investigation is at an end.  The only remaining question… is whether the particular restaurant either serve or offers to serve interstate travelers or serve food a substantial portion of which has moved in interstate commerce.”

Chief Justice WIlliam Rehnquist

16 th Chief Justice of the United States
16 th Chief Justice of the United States | Source

Congress Uses Commerce Clause for Criminal Legislation

The next major case concerning the Federal Government’s ability to regulate commerce was United States v. Lopez. The statute had nothing to do with commerce it was a criminal statute. The Federal Government passed the 1990 Gun Free School Zone Legislation making it a Federal crime to be in possession of a gun within 1000 feet of a school. The Supreme Court declared the statute unconstitutional. Chief Justice Rehnquist writing for the majority stated the “Act neither regulated a commercial activity nor contains a requirement that the possession be connected in any way to interstate commerce” The court distinguished three broad categories in which Congress could act under the Commerce clause:

1. Congress may regulate the use of channels of interstate commerce.

2. Congress is empowered to regulate and protect the instrumentalities of interstate commerce, even though the threat may only come from intrastate activities.

3. Congress’ Commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce.

Possessing a gun with in a school zone did not have a substantial relation to interstate commerce. In other words, Congressed had over reached its authority by using the commerce clause to write federal criminal law.

 

Justice Stevens wrote the Raich Opinion

Assoc. Justice John Paul Stevens
Assoc. Justice John Paul Stevens | Source

Marijuana and Interstate Commerce

The next major case Gonzales v. Raich, (2005) concerned home grown medical marijuana. The State of California made it legal for a person to cultivate a proscribed amount of marijuana for medical use. Federal law prohibits the growing of marijuana.  This case was similar to the Wickard case of 1940.  Here the Court decided even though the interstate sale of Marijuana was illegal it still had an affect on interstate commerce therefore the Federal Law took precedent over the state law. The court used the rational basis test. 

 

In all these case, there was an immediate economic activity of some kind that affected commerce. Wickard choosing to grow wheat, an Innkeeper and a restaurateur refusing service to a particular class, Lopez choosing to carry a gun with in a school zone, Raich activily  growing marijuana.  All of theses case involved some sort of economic activity on the part of the individual.  These individuals were not inactive in an economic activity they were willing participants.  The Supreme Court will know decide whether the Congress has the power to regulate an individual’s economic inactivity for the greater good.

Get Involved its Your Right and Duty

 If the Supreme Court will uses these case as guides to decide if the Individual Mandate is constitutional. If the Court decide the Individual Mandate is constitutional then the precedent will have been set for the Federal Government to legislate what food we can eat, what cars we buy, how many children we can have and more.  You say no that cannot happen. Each one of those acts I have just mentioned can have some affect on interstate commerce just like a person not having health insurance. You say, well what about being forced to by car insurance? When we obtain a drivers license we have voluntarily agreed to obtain auto insurance for the privilege of driving a car.

 

Here is a situation that is not to far fetch. What happens if congress finds that unwed mothers negatively affect interstate commerce; therefore they must marry the father or get an abortion. If the individual mandate is found constitutional then under the Rational Basis Test Congress would have that power to enact such legislation.                

 

By electing mediocre people to be our representatives who can't or won't write proper legislation, by not getting involved in our government, by being more interested in pop stars and reality shows, we have come to a point in our history were we may no longer have personal liberties. Depending on how the Supreme Court decides this case. Our future liberties hang in the balance. The Democratic majority force through this legislation without reading it, without major debate, without considering the ramifications such a bill will have on our personal liberties. We must demand more from our elected official than a 10 second sound bite on TV. We must get involved and participate in our government. Inform yourself, speak up. It is not only your right but it is your duty.                

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