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".
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".
I believe as you that our constitutional rights have been trampled enough by Obama and Bush before him, such that we are rapidly approaching socialism in our FREE DEMOCRATIC COUNTRY, with rights, liberties and guarantees within and without our constitution and amendments thereto. When will this country learn that Government cannot "fix" our economic problems by spending funds we do not have to force us to enter into commerce we do not want? Further, what happened to supply and demand? Let the insurance companies save their lobbying dollars and pass the savings on to us, as well as allowing marketing of heathcare accross state lines?
ReplyDeleteThere is a free market solution to our health care problems and that is let the markets work. I agree health care is different from other markets in that no one in an emergency situation will be denied health care even if they personally can't pay and/or don't have health insurance. The solution, I believe, is to allow insurance companies to compete nationwide with the caveat that they offer a bare bones policy (for catastrophic events, for example) to everyone and under which they could not deny coverage for a pre-existing condition. (For those who want more coverage, the companies are free to offer additional services at additional costs to the policyholder). For those who absolutely can't pay, there will need to be some form of public assistance (whether that's Medicaid or something else). For those who can but won't buy health insurance, they will need to accept the consequences of their own irresponsibility.
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