President Barack Obama

Carolyn Kaster, Associated Press

Obama's health care plan is snagged by courts

  • Article by: JASON LEWIS
  • June 11, 2011 - 9:59 PM

Now that Gov. Mark Dayton has dutifully expanded Minnesota's Medicaid program, he's quickly moving to implement the rest of the Patient Protection and Affordable Care Act.

In fact, the Dayton administration is using a $1 million federal grant to quickly get the state's health insurance "exchange" up and running. But a funny thing is happening on the road to Obamacare -- federal judges are getting in the way.

The good news is that the court challenges to the president's signature legislation are giving the nation a long-overdue lesson in constitutional law. For decades, legal activists have been stretching the boundaries of "interstate commerce" and "general welfare" so as to make a mockery of enumerated powers. Under the new health care law, for example, Medicaid will cover childless adults, but the states are instructed to pick up 43 percent of the half-trillion dollar tab.

So far, the bulk of the legal wrangling has been over the law's mandate requiring individuals to purchase health insurance or pay a fine. Though a couple of Democratic appointees have sided with the administration, it only takes one ruling to move the challenge up the appellate ladder. To date, there have been two district rulings striking down the law, and the 11th Circuit Court of Appeals heard oral arguments on one of them just this week.

Judge Henry Hudson in Virginia blasted the legislation as an "unbridled exercise of federal police power" -- an authority historically reserved to the states. Moreover, because the law is beyond reach of federal power, "the necessary and proper clause does not provide a safe sanctuary."

Roger Vinson, senior judge for the Northern District of Florida, ruled in favor of 26 states also objecting to Washington's power grab. Both cited no constitutional basis for ordering individuals to buy a product as a condition of citizenship. Even an elastic commerce clause requires some sort of economic activity to allow the feds to regulate it.

Initially, the president claimed the health insurance mandate was no different than state penalties for refusing to obtain auto insurance.

Those instances, however, involve local lawmakers attaching a regulation to driving an automobile, a voluntary act. Obamacare offers no such choice. Far from regulating commercial activity, it actually requires it.

The administration seems to be relying on the novel view that the decision to eschew commerce somehow has an "effect" on it. But of course, as Judge Vinson says, "there is quite literally no decision that, in the natural course of events, does not have an economic impact of some sort." Thus, if the theory were allowed to stand, federal power to compel activity (broccoli, anyone?) would be virtually unlimited.

Consequently, the Obama administration appears to be shifting gears by calling the health insurance "fine" a tax, even though in the president's own words, the mandate was "absolutely not a tax increase." Yet arguing that the power to tax and spend is plenary under "general welfare" may be the government's only way out once the commerce clause door is slammed shut.

This, too, of course, is specious on several fronts. The Constitution permits only one direct (a levy not triggered by, say, a purchase) tax, but a fine is not a tax on income; it is a penalty in the form of a "tax." Besides, a federal edict to participate in a national health care plan may or may not be in the interest of every individual, thus is hardly general in nature. Americans may yet discover that the general welfare clause is simply not an unlimited grant of federal power.

Indeed, Thomas Jefferson feared reducing the Constitution to "a single phrase," and James Madison wondered "for what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power?" Which may be why liberal law professor Jonathan Turley of George Washington University readily admits that if the Obama administration prevails, "it's hard to see what's left of federalism."

Jason Lewis is a nationally syndicated talk-show host based in Minneapolis-St. Paul and is the author of "Power Divided is Power Checked: The Argument for States' Rights" from Bascom Hill Publishing. He can be heard locally from 5 to 8 p.m. weeknights on KTLK Radio, 100.3-FM.

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