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  • Senate Judiciary Committee Hearing: Arguments for Individual Mandate's Constitutionality Don’t Hold Up

    In the wake of federal Judge Roger Vinson’s ruling that Obamacare’s individual mandate is unconstitutional, yesterday, the Senate Judiciary Committee held a hearing to further examine the issue. The individual mandate forces Americans to purchase a level of insurance deemed appropriate by the federal government or else pay a fine.

    Heritage’s legal experts write that the individual mandate is both unprecedented and unconstitutional. Its proponents claim that Congress holds the authority to compel Americans to purchase private insurance under the Commerce Clause, which allows Congress to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”

    Oregon Attorney General John Kroger testified, “In 2009, Oregon spent approximately $2.6 billion on Medicaid and CHIP. Absent health care reform, that figure is expected to grow to approximately $5.5 billion by 2019.” A national solution to the health care systems ailments was needed, he says, to combat rising costs.

    But Obamacare makes unsustainable state budget deficits even worse. Heritage analysis shows that, in Oregon alone, spending will increase $443.3 million as a result of the law’s expansion of Medicaid. Furthermore, while we are happy to discuss the cost of health care (and how Obamacare exacerbates it for the states), such a conversation isn’t really relevant to a hearing putatively discussing the mandate’s constitutionality. Put more simply, just because something is important doesn’t mean that it is constitutional.

    Because the individual mandate is an attempt to regulate inactivity—the individual’s decision not to purchase insurance, it is outside of the powers granted under the Commerce Clause. Randy Barnett, a Georgetown law professor, explained:

    The distinction between acting and not acting is pervasive in all areas of law. We are liable for our actions but, absent some preexisting duty, we cannot be penalized for inaction. … Expanding the meaning of “activity” to include “decisions” not to act erases the distinction between acting and not acting. It would convert all of your “decisions” not to sell your houses or cars into economic activity that could be “regulated” or mandated if Congress deems it convenient to its regulation of interstate commerce.

    If Congress can force Americans to purchase health insurance, they can force them to purchase just about any commodity, and the limited and enumerated powers of Congress would become limitless.

    The lawsuits advancing through the courts against Obamacare are not just a promising opportunity to do away with an unpopular, unworkable health care law that puts too much control in the hands of Washington; they are also proper avenues to rein in a historic misuse of the Commerce Clause.

    Posted in Obamacare [slideshow_deploy]

    14 Responses to Senate Judiciary Committee Hearing: Arguments for Individual Mandate's Constitutionality Don’t Hold Up

    1. Dana Hall says:

      Insurance is commerce constitutionally allowing congress to regulate the industry no brainer that the healthcare law is constitutional

    2. Kevin H, college par says:

      It's funny how conservatives say the founding fathers and writers of the constitution would oppose this – when the founding fathers passed laws that required the very same thing. George Washington signed into law the Milita Act of 1792. There were two Militia Acts passed by the second Congress in 1792 – and signed into law by President George Washington, which required every able body person to purchase a gun within 6 months of turning 18.

      I guess Heritage and conservative activist judges are telling the American people that George Washington and the founding fathers of Congress were wrong in requiring every able body American to purchase something – is that correct, Kathryn? The 2nd Congress and George Washington wrong violated the Constitution that many of them wrote?

    3. Bobbie says:

      It's sad that people in authority are clueless to the point their own job has to be spelt out for them. America doesn't deserve this.

      As he abuses and misuses his position of authority, the Patriot Act should deem unconstitutional because he will, if he isn't already, misuse and abuse this also.

    4. Bobbie says:

      Thank you, Mr. Barnett for your clear address, very well put forth. Hopefully some consciences were reached.

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    7. H Springer says:

      Health insurance (at this time) can only be purchased within one's state of residence. Therefore, it is purely intra-state commerce to purchase, or not to purchase health insurance.

      Intra-state commerce ( commerce purely within one state ) falls absolutely outside the constitution's commerce clause.

    8. Lloyd Scallan (New O says:

      Regardless of Mr. Barnett's statments giving sound reasoning why ObamaCare is unconstitutional, it's totallly lost to Obama and his leftist ilk. How many time must this bunch prove they have no respect for the Rule of Law. To them, the Law and the Constitution are impediments to their ideological socialist agenda. Example, just watch Pat Leahy reaction. He's NOT even listening. He is off in his own little world and cares nothing for anything that disagrees with his socialist way of thinking. Yet their are those like Dana Hall that does not recognize citizens deciding on their own to buy insurance with the federal government forcing people to buy it.

    9. Jill, California says:

      Not only is mandating that we buy insurance unconstitutional, it is now unaffordable. Blue Shield has jacked up its customers' premiums so much that I and others may soon join the ranks of the uninsured.

      We must impeach this president. We must impeach his ilk in Congress. It's the only way to save our country.

    10. William Person says:

      COuld it be that by being able to mandate a purchase and have it accepted as law that this liberal Congress would move on to other monstrous problems like oh, say retirement? Would we then be forced to purchase our 401Ks from the govenrment? And then would be be forced to purchase a house in a community we would not ordinarily want to live in?

      Follow the money, the two biggest issues facing government (wrongfully) are healthcare and retirement, both of which do not belong in government's pervue anyway!!!

      We are this close to socialising our lives beyond our wildest nightmares!!! All within the period of 4 years under hiw highness.

    11. AWM -NW Indiana says:

      The Militia Act states: "That whenever the United States shall be invaded, or be in imminent danger of invasion from any foreign nation or Indian tribe, it shall be lawful for the President of the United States, to call forth such number of the militia of the state…."

      The Act as delivered, was compliant with one of the very few specific responsibilities the Constitution gives to the federal government: the protection of the country.

      The Militia is also specifically spelled out in the Constitution (Section 8)

      Neither of those statements can be said of health care.

      The descriptions provided in the opening sentence/statement of the Constitution, does not apply, either. Placing great emphasis upon the words "general welfare", included in the opening/introductory sentence does not trump specific language.

      The words actually read:

      "….PROVIDE for the common defence, PROMOTE the general Welfare…."

      (Look up the meaning of those words- the definitions are worlds apart!)

      And the progressive habit of deleting "promote" from the sentence completely; (or replacing promote with "and") does not work!

      Sorry, Kevin- but when it comes to the Constitution:

      Militia/Protection of Country: In

      Healthcare: Out

    12. NealR, MI says:

      What will Obama do if the states refuse to pickup the Medicaid cost increases? Kick them out of the U.S.A.?

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    14. Corky, Howey in the says:

      God people, get a grip! I would be for obamacare had it been passed in the light of day with ALL parties involved. It was not. It bought and paid for through underhanded, closed door deals! Our healthcare system is/was(?) the best in the world BUT, it had flaws. The flaws could have been worked out by intelligent, repeat INTELLIGENT people in power. No, they would rather follow an administration hell bent on destroying this Country and show their inability to act as real Americans. GOD help us all…………………..

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