Obamacare: The Supreme Court Decides

In the case before the Supreme Court regarding Obamacare, references will be made to prior Court decisions as well as established law and various clauses of the Constitution. The most significant of these clauses for this case is Article I, Section 8 which in part states that Congress has the power "To regulate Commerce--among the several States--" and "To make all Laws which shall be necessary and proper for carrying into Execution--" the powers granted to it.

Up to the 1930's, Court decisions held that Congress was "restricted to that commerce which concerns more States than one." ("Gibbons v. Ogden"-1824).  This was true even when child labor was involved when the Court struck down such a law reasoning "---that mill work was part of intrastate manufacturing and not commerce among the states." ("Hammer v. Dagenhart" (1918) as quoted in "Atlantic" in an article titled: "How Obamacare Will Be Settled: A Primer on the Commerce Clause")

Starting in the 1930's Court decisions started to be more expansive. In "National Labor Relations Board (NLRB) v. Jones and Laughlin Steel Corporation" (1937), the Court found that Jones and Laughlin could not penalize workers seeking to unionize.  The Court "--saying for the first time that Congress could regulate activities with a 'close and substantial relation to interstate commerce.' " And in "Wickford v. Filburn" (1942), the Court upheld the Agricultural Adjustment Act of 1938 "--licensing Congress to legislate local individual actions that could potentially affect interstate commerce in the aggregate."  (bold letters mine--Quotes from same article in "Atlantic" cited above).

The expansion of Congress's power under the commerce clause continued through the 20th century.  In such areas as discrimination against small business to unfair business practices in professional football, Congress's authority to act under the commerce clause was upheld by the Court.  And in 1964, the Civil Rights Act's provisions for desegregation of motels and restaurants was upheld as within Congress's power under the commerce clause.

The last significant Court decision for purposes of the Obamacare case was in Gonzales v. Raich (2005) when the Court approved the Controlled Substance Act thereby overriding the California law legalizing marijuana.  The Court's reasoning reflected that cited above in the Wickford case.

It should be noted, however, that there is no precedent in which the Court ruled that coercing individuals to participate in any specific market (as distinct from individuals who have elected to participate of their own volition) was within Congress's power.

In addition to the commerce clause, there are several other constitutional issues that will come into play. Such as: 1.) whether contract law is applicable (holds that persons cannot be forced into contracts), 2.) whether the penalties for not buying insurance are a tax (that would force the case to be postponed until individuals had actually paid the tax under a 19th century law), 3.) whether the individual mandate is severable from the total law (if it isn't, the total law must be scraped) and 4.) whether the provisions for increasing Medicaid burdens on the states is in violation of the 10th amendment (which states that "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.").

This is a complicated issue. But in my non-legalistic opinion, the Court will rule for an individual's right  to choose or not to choose, of his own free will, to participate in any market.  I base that view on the foundation of individual liberty and limited government expressed so clearly in the Declaration of Independence, the Constitution and The Federalist Papers.

Note: For more information on the cases mentioned, refer to the "Atlantic" article cited above and to an article appearing in "Defining Ideas-A Hoover Institution Journal" entitled "Obamacare vs. the Commerce Clause".

The House of Representatives: Is it Representative?

"As it is essential to liberty that the government in general should have a common interest with the people, so it is particularly essential that the branch of it under consideration should have an immediate dependence on, and an immediate sympathy with, the people." ("The Federalist Papers.  No. 52: The House of Representatives" (Madison)).

The national government established by the Constitution provided for a House of Representatives that, of the three branches of government, would be closest to the people as described in the above quote. Along with the limited powers granted by the Constitution and the checks and balances among the three branches, the "Peoples House" would be less susceptible to the more permanent branches of government (and presumably other influences as well) to be seduced. Under this concept, liberty would be protected.

We have come a long way from the Constitutional concept. We have in the House today many representatives that are not "immediately dependent on" the people but dependent on moneyed interests for campaign funds.  They have become a closed society of political insiders, dismissive of voter concerns and arrogant in the power they have and which they continue to accumulate.  They have become career politicians, in office too long, remote and aloof from their constituents.

In another statement in the "Federalist Papers" (No. 52) cited above, Madison states: "It is a received and well-founded maxim that----the greater the power is, the shorter ought to be its duration, and conversely, the smaller the power, the more safely may its duration be protracted."

Applied to total time in office, that is, the number of terms served by representatives, we would conclude that many representatives in modern government should return to private life.  There are two factors that make our time significantly different from Madison's. First, the Federal Government, including the House of Representatives, has much more power than it did previously and secondly, representatives stay in office, for a variety of reasons, longer than is prudent for a free society.

We need to resolve the problem that the House of Representatives is not truly representative of the people. What is the solution?  In my opinion, the only long term and realistic answer is a constitutional amendment that provides for term limits.  More about that in future postings; in the meantime, I welcome your comments.

Some Thoughts on the Current Status of the Primary

Based on news reports this morning, Mitt Romney has 407 committed delegates or 53% of those chosen thus far.  If he continues at this pace,  he will win the nomination before the convention.  Some argue that Romney may be derailed from obtaining the nomination if one (or two) of his opponents drop out. That is not a given for it is just as possible that Romney's margin may increase if he can manage to hold on to his base support and pick up some of the voters of the candidate(s) who leave the race.

There have been some suggestions (by mostly liberal pundits) that the Republican Party is so split over the paramountcy of social and fiscal issues as well as the candidates' conservative credentials that Obama will almost certainly win in November. I think that the Party is able to fight on both fronts.  As far as political differences, we need only remember that past primary opponents have resolved their differences to campaign successfully in the general election (Kennedy and Johnson in 1960, Reagan and Bush in 1980 and Obama and Clinton in 2008).

We should also be mindful that the country did not get into this mess in one year or even one term but over several decades. Nor will we turn the ship of state around in a short period of time.  A doable short term goal is to defeat Obama first and to cancel his most egregious programs.

There is, however, a need for a long term vision of conservative governance and why it is superior to the liberal view. Republicans need to consider not only gaining the Presidency (as well as control of both Houses of Congress) in this election year but to lay the foundations for future successes.  This is essential if we are to solve our problems for the simple reason that it will take some time to resolve our multiple difficulties and put (as well as maintain) the country on a sound footing.