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Hi Dr. Matt,
My name is Casey, I'm a 26 year old university student. I live in Connecticut and I'm single.
Just wondering if you want to weigh in on the latest political controversy. The State of Virginia has recently passed the Health Care Freedom Act, a State Law which directly conflicts with Obama Care's Federal requirement that all American must buy health insurance. It appears that President Obama's Health Care mandate infringes upon State's Rights and Individual Rights.
Wouldn't the Ninth Amendment protect a citizens right to choose NOT to buy health insurance? If the InterState Commerce Clause can authorize the Federal Government to regulate intrastate, non-commerce activity, does the Tenth Amendment have any meaning at all?
How do you see it, Dr Matt?
Related Article: Read a More Complete Article on this Same Subject
The Federal Government has "enumerated" powers: eighteen 18 explicit powers total. In just a few minutes, you can read ALL the powers that the Federal Government has been given BY THE STATES. All other powers not mentioned in this list of 18 eighteen, are powers held by the States as granted in the Tenth 10th Amendment.
One of the Federal Governments powers is regulate Interstate Commerce. Here's how the United States Constitution describes this power:
The Congress shall have Power — To regulate Commerce with foreign Nations,
It is clear that "doing nothing" is NOT an act of commerce, but will a citizen's choice to NOT purchase a good or service (health insurance) have an effect upon Interstate Commerce, thus "undercutting" the broader regulation of Interstate Commerce? This question jumps the gun!
Even if "doing nothing" does have an effect upon commerce, this legal logic leap frogs over the prior question — a question that the Supreme Court has never ruled on: Does the Federal Government have the power in the first place, to require individual citizens to purchase a product or service — can the Fed force citizens to buy health insurance?
Because the State of Virginia has file its Law Suit, we have a Constitutional Clash to be answered by the Supreme Court: Either Virginia's Health Care Freedom Act will be deemed Constitutional, OR Obama Care's Mandate will be deemed a Constitutional application of the Commerce Clause. Both cannot be Constitutional: It's going to be one . . . or the other.
Here's a pdf of the Law Suit filed by the State of Virginia if you wish to read the legalese. The following is my summary of the Law Suit filed by the Virginia's Attorney General. The number in brackets [#1] refers to the number of the stipulation in the actual Law Suit.
* The Patient Protection and Affordable Care Act (who knew that was the real name for Obama Care?) contains a mandate for all Americans to purchase Health Insurance under penalty of civil law — of course "mandate" means that citizens are "required." [#1]
* Virginia State Government has enacted the Health Care Freedom Act: "No resident of this Commonwealth, . . . shall be required to obtain or maintain a policy of individual insurance coverage" [#2 & #3]
* ObamaCare contains no severability provision; meaning, various ObamaCare rules and regulations cannot be "severed" out from the body of the whole legislation. In other words, if one single aspect of ObamaCare is deemed unconstitutional by the Courts, then the all of ObamaCare is necessarily nullified — because certain portions that "may" be constitutional, cannot be severed out, and maintained as the law of the land. [#6]
* The Virginia State Law (Health Care Freedom Act) is valid, in spite of the Supremacy Clause of the Constitution, because the federal mandate forcing citizens to purchase insurance is unconstitutional. [#7]
* In the past, Congress has paid for Social Security and Medicare through direct taxation. [#11]
* The United States Congress lacks the political will to be honest with Americans by taxing citizens directly to pay for Obama Care; but because direct taxation would have been unpopular, such a method for paying for Health Care Reform would have made said Reform un-passable. Thus, requiring citizens to buy health insurance is actually a form of taxation through the back door. [#12]
* In order to pay for the massive costs of Obama Care, the bill must require millions of uninsured, healthy citizens to purchase health insurance, and the payment of those particular premiums will subsidize the cost of covering unhealthy citizens. [#13]
* Because all Americans will be insured regardless of preexisting conditions, there is a built-in disincentive for citizens to begin paying premiums — meaning, people can "game" the system by beginning premium payments only when they get sick. In other words, here's the Obama Care loop hole: pay the premium or pay the penalty, which ever amount is least. [#14]
* Before passing the Universal Health Care Bill, the Senate questioned whether they had constitutional authority to require all citizens to buy Health Insurance. For this reason, in 2009 the Senate Finance Committee asked the Congressional Research Service to render an opinion about the constitutionality of the mandate — can the Fed force citizens to buy a good or service? The Senate Research Service concluded: "Whether such a requirement would be constitutional under the Commerce Clause is perhaps the most challenging question posed by such a proposal, as it is a novel issue whether Congress may use this Clause to require an individual to purchase a good or a service." In other words, this issue is uniquely "new" and has never been addressed by the Supreme Court. [#15]
* In United States v. Lopez and United States v. Morrison, the Supreme Court struck down federal attempts to regulate non-commercial activity — even considering predicted effects of such non-commerce upon interstate commerce. In these two cases, the Supreme Court ruled that federal government had overreached authority granted by the Commerce Clause. In Gonzales v. Raich, the Supreme Court wrote: "Despite congressional findings that such crimes had an adverse impact on interstate commerce, we held the statute [in Morrison] unconstitutional because, like the statute in Lopez, it did not regulate economic activity." [#16]
* The status of being a citizen of the Commonwealth of Virginia arises out of an absence of commerce and is entirely passive: In other words, being a citizen of a State or Nation is NOT fundamentally a channel for interstate commerce, nor a person or thing in interstate commerce. [#17]
* In Gonzales v. Raich, the Supreme Court ruled that the Fed had Commerce Clause authority due to the aggregate effects of non-commerce activity (growing marijuana at home for personal medicinal use) upon potential Interstate Commerce. Meaning, if individuals are allowed to grow marijuana at home for "personal medicinal purposes," this opens a Pandora's Box for increased illegal interstate sale of marijuana. Nevertheless, the High Court has never held that the Commerce Clause, even when aided by the Necessary and Proper Clause, can be used to require citizens to buy goods or services. And to depart from this 200 year history — permitting national government to require citizens to buy goods and services — will deprive the Commerce Clause of any effective limits — contrary to limits set in Lopez and Morrison. Authorizing the fed to force citizens to buy health insurance under penalty of law, would create police powers indistinguishable from those reserved to the States by the Bill of Rights — and thwart the constitutional scheme of few and enumerated powers assigned to the federal government. [#18]
* Concurring with the Majority Opinion in Gonzales v. Raich, Justice Scalia ruled that regulation of non-economic under the Commerce Clause is possible only through the Necessary and Proper Clause — but this Clause establishes that the means by which laws are instituted must be "appropriate," "plainly adapted to that end," and are "consistent with the letter and spirit of the constitution." Plainly stated: Congress cannot use unconstitutional means to execute the laws they pass. [#19]
* In 1798, Justice Chase wrote these words in one of the first Supreme Court decisions: "An ACT of Legislature (for I cannot call it a Law) contrary to the great first principles of the [Constitution], cannot be considered a rightful exercise of legislative authority . . . A few instances will suffice to explain what I mean. A . . . law that takes property from A and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with SUCH powers." This analysis applies equally to citizen-to-citizen subsidy that occurs through the Obama Care mandate. [#20]
* WHEREFORE, the Commonwealth of Virginia prays this Court to declare the Patient Protection and Affordable Care Act (Obama Care) unconstitutional because the individual mandate exceeds the enumerated powers conferred upon Congress. As a consequence, this Court should also declare that the Health Care Freedom Act is a valid exercise of state power.
Update December 13, 2010. United States District Judge Henry E. Hudson has entered his decision. The following are quotes from Judge Hudson's 42-page ruling:
District Judge Henry Hudson ruled that the ObamaCare Mandate is “beyond the historical reach of the Commerce Clause.” (p. 24) Why so?
"The unchecked expansion of congressional power to the limits suggested by [ObamaCare] would invite unbridled exercise of federal police power. At its core, this dispute is not simply about regulating the business of insurance—or crafting a scheme of universal health insurance coverage—it's about an individual's right to choose to participate." (p. 23)
"Every application of Commerce Clause power found to be constitutionally sound by the Supreme Court involved some form of action, transaction, or deed placed in motion by an individual or legal entity, … The constitutional viability of [ObamaCare] in this case turns on whether or not a person's decision to refuse to purchase health care insurance is such an activity." (p. 23)
Hudson's ruling rejects the government's view that a decision not to buy health insurance is economic activity subject to regulation under the Commerce Clause. The Federal Judge explained that no high court has extended Commerce Clause powers “to compel individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market,” and thus, concluded that the ObamaCare mandate “exceeds the Commerce Clause powers vested in Congress under Article I” (p. 24)
The Government tried to justify ObamaCare through the Constitution's "Necessary and Proper Clause," which grants broad Congressional powers that are not enumerated powers. In an 1819 Supreme Court decision, Justice John Marshall wrote that Congressional Authority via the Neccessary and Proper Clause, while broad, "its authority is not unbridled." Thus Congress has only power to enact laws that are "within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the Constitution, are constitutional."Judge Hudson ruled that the ObamaCare mandate “is neither within the letter nor the spirit of the Constitution.” (p. 24)
"If a person's decision not to purchase health insurance at a particular point in time does not constitute the type of economic activity subject to regulation under the Commerce Clause, then logically an attempt to enforce such a provision under the Necessary and Proper Clause is equally offensive to the Constitution." (p. 19)
The Government tried to justify the ObamaCare mandate via the "General Welfare Clause," a clause that is embedded within the Congressional Taxation Power. But to invoke the General Welfare Clause, the Government has to argue that the "penalty" for not buying Health Insurance — as mandated by ObamaCare — was really a tax. To this Hudson pointed to the historical record of "pre-enactment representations," where both the "Executive and Legislative branches" called the "penalty" for failure to purchase healthcare insurance a "penalty" and not a "tax" — thus the General Welfare Clause has no force.
* * * * * * *
Within a Constitutional context, the term "Police Powers" has a broader definition that goes beyond "law enforcement." The root of the word "police" is "polis" which means "city" or "state." The root "polis" is found in the word "metropolis." — metra = mother + polis = city, hence Metrapolis is the Mother City.
Police Powers refer to powers held primarily by the states: It is the capacity of a state or city to regulate general welfare, morals, health, and safety of the citizenry.
Historically, it was the States that created the Federal Government and granted specific powers by the Constitution. Congress may exercise only the eighteen 18 enumerated powers explicitly outlined in Article 1, Section 8 of the Constitution, as follows:
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
To borrow money on the credit of the United States;
To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
To establish Post Offices and Post Roads;
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
To constitute Tribunals inferior to the supreme Court;
To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; And
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
All other powers to regulate the general welfare, morals, health, and safety of the citizenry are held by the States, as specifically granted in the Tenth 10th Amendment. Given that the States created the Federal Government, and then gave it power to regulate Interstate Commerce, you can see that the Decisions of originate Commerce resides with the States in the first place.
Dr Matt Comment: It seems that Obama Care is both attempting to create a situation of commerce by law (forcing everyone to buy health insurance), and then, turning around and declaring: "we must now regulate the commerce we have created, as provided by the commerce clause."
If the power to require citizens to purchase goods or services is NOT enumerated among the 18 clauses of Article 1, Section 8, of the Constitution, then the Federal Government does NOT have that power.
Article One of the United States Constitution, section 8, clause 18 is known as The Necessary and Proper Clause, and is stated thus:
"The Congress shall have Power — To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."
During discussions of the proposed constitution, this clause provoked controversy: Anti-Federalists expressed concern that the clause would grant the federal government boundless power; in contrast, Federalists argued that the clause would only permit execution of power already granted by the Constitution — Alexander Hamilton defended this second interpretation in the Federalist Papers.
Arguing in Federalist No. 44, James Madison concurred with Hamilton, stating that without this clause the constitution would be a "dead letter." At the Virginia Ratifying Convention, Patrick Henry took the opposing view, saying that the clause would lead to limitless federal power that would inevitably menace civil liberties (e.g., liberty from federal powers that force citizens to purchase particular goods or services).
"The enumeration in the Constitution, of certain rights, shall not be construed
In other words, the Framers did not intend that the first eight amendments be construed to exhaust all basic and fundamental rights. The Bill of Rights is the name given to the first ten amendments to the United States Constitution. It was James Madison who introduces these amendments, thus it is significant to note Madison's words:
"The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State."
The powers not delegated to the United States by the Constitution,
Based upon how Justices Breyer, Ginsburg, Souter, and Stevens ruled in United States v. Lopez, United States v. Morrison, and Gonzales v. Raich, they interpret the Interstate Commerce Clause to have few limits, if any. These four Justices have ruled in favor of Federal Government regulation 3 out of 3 times — even when the issues were NOT directly about commerce, nor about interstate dealings.
Justices Breyer, Ginsburg, Souter, and Stevens will likely rule that requiring citizens to buy Health Insurance, is something that the Federal Government can do under the Interstate Commerce Clause — speaking of which, here is Article 1, Section 8, Clause 3 of the Constitution:
The Congress shall have power — To regulate Commerce with foreign Nations,
Justices Roberts, Alito, and Sotomayor have not made rulings on the Commerce Clause yet. If reputations for being conservative or liberal mean anything, then Roberts and Alito may support Commerce Clause Limits, and Sotomayor would to broadly interpret the Commerce Clause as granting powers for the Fed to regulate.
As for Justices Thomas, Scalia, and Kennedy, Thomas has come down on the side of Limits to the Commerce Clause three 3 out of 3 times, with Scalia and Kennedy ruling 2 twice for Commerce Clause limitations and once for Government intervention and regulation.
Scalia and Kennedy will likely cast the swing votes on the matter. When the Supreme Court Justices eventually rule on the Virginia Law Suit, they will do so based upon the following precedent cases which involve the Interstate Commerce Clause:
In order to drive up wheat prices during the Great Depression, the U.S. government imposed federal limits on wheat production based on acreage owned by a farmer. Filburn was growing more than the federal limits, and was ordered to destroy his crops and pay a fine -- even though he was producing the excess wheat for his own use and had no intention of selling it.
Ruling: In a unanimous decision, the court upheld the "Agricultural Adjustment Act." The intended rationale of this federal law was to stabilize the price of wheat on the national market. The court ruled that the federal government has the power to regulate interstate commerce through the Interstate Commerce Clause of the Constitution.
Majority: Jackson, joined by Stone, Roberts, Black, Reed, Frankfurter, Douglas, Murphy, Byrnes
Alfonso Lopez, Jr. was a 12th grade student at Edison High School in San Antonio, Texas. In 1992 he carried a concealed weapon into the school. Confronted by school authorities, Lopez admitted to having the weapon and was charged with violation of the federal Gun-Free School Zones Act of 1990.
Ruling: In a 5-4 decision, the Supreme Court affirmed the decision of the Court of Appeals: While Congress has broad lawmaking authority under the Commerce Clause, the power is limited, and does not extend so far from "commerce" as to authorize the regulation of the carrying of handguns -- especially when there is no evidence that carrying them affects the economy substantially.
This was the first Supreme Court case since Wickard v. Filburn to set limits to Congress's power under the Commerce Clause of the Constitution. Writing the majority opinion, Chief Justice Rehnquist identified three broad categories of activity that Congress can regulate under the Commerce Clause:
* channels of interstate commerce,
In a concurring opinion, Justice Clarence Thomas argued that allowing Congress to regulate intrastate, noncommercial activity under the Commerce Clause would confer on Congress a general “police power” over the entire nation.
Majority: Rehnquist, joined by O'Connor, Scalia, Kennedy, Thomas
Dissent: Breyer, joined by Stevens, Souter, Ginsburg
In 1994, the United States Congress passed the Violence Against Women Act. That fall a Virginia Tech freshman, Christy Brzonkala, was allegedly assaulted by Antonio Morrison and James Crawford, members of the school's football team. A state grand jury did not find sufficient evidence to charge either man with a crime. Brzonkala then filed suit under the Violence Against Women Act.
Ruling: In a 5-4 decision, the Supreme Court affirmed that Congress lacked authority, under either the Commerce Clause or the Fourteenth Amendment, to pass the "Violence Against Women Act." Writing for the majority, Chief Justice Rehnquist held that "the noneconomic, criminal nature of the conduct at issue was central to our decision."
Majority: Rehnquist, joined by O'Connor, Scalia, Kennedy, Thomas
Dissent: Souter, joined by Stevens, Ginsburg, Breyer
In 1996, California voters passed Proposition 215, legalizing the medical use of marijuana. California was one of eight states that allowed medicinal use of marijuana. Defendant Angel Raich used homegrown marijuana to relieve pain; her use was legal under California law, but illegal under federal law -- the 1937 Marijuana Tax Act.
Ruling: The decision was 6-3 in favor of the Federal Government's ability to regulate: Banning the growing of marijuana for medical use, to prevent or limit access to marijuana for other uses.
Majority: Stevens, joined by Kennedy, Souter, Ginsburg, Breyer.
Dissent: O'Connor, joined by Rehnquist, Thomas (Points 1 and 2 only)
Scalia's Concurring Opinion:
“As Lopez itself states, and the Court affirms today, Congress may regulate noneconomic intrastate activities only where the failure to do so “could … undercut” its regulation of interstate commerce. . . . This is not a power that threatens to obliterate the line between “what is truly national and what is truly local.”
Again, Scalia voted in favor of limits to the Commerce Clause in the Lopez and Morrison.
O'Connor's Dissenting Opinion:
"Relying on Congress’ abstract assertions, the Court has endorsed making it a federal crime to grow small amounts of marijuana in one’s own home for one’s own medicinal use. This overreaching stifles an express choice by some States, concerned for the lives and liberties of their people, to regulate medical marijuana differently."
"If I were a California citizen, I would not have voted for the medical marijuana ballot initiative; if I were a California legislator I would not have supported the Compassionate Use Act. But whatever the wisdom of California’s experiment with medical marijuana, the federalism principles that have driven our Commerce Clause cases require that room for experiment be protected in this case."
Justice Rehnquist joined O'Connor's decent. Her use of the word "experiment," referred to Justice Louis Brandeis's dissenting opinion in New State Ice Co. v. Liebmann:
"Federalism promotes innovation by allowing for the possibility that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country..."
Thomas's Dissenting Opinion:
"Respondent's local cultivation and consumption of marijuana is not "Commerce ... among the several States. . . . Certainly no evidence from the founding suggests that "commerce" included the mere possession of a good or some personal activity that did not involve trade or exchange for value."
"If the Federal Government can regulate growing a half-dozen cannabis plants for personal consumption (not because it is interstate commerce, but because it is inextricably bound up with interstate commerce), then Congress' Article I powers -- as expanded by the Necessary and Proper Clause -- have no meaningful limits."
"Whether Congress aims at the possession of drugs, guns, or any number of other items, it may continue to appropriate state police powers under the guise of regulating commerce."
"If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States. This makes a mockery of Madison's assurance to the people of New York that the 'powers delegated' to the Federal Government are 'few and defined,' while those of the States are 'numerous and indefinite.'"
Dr Matt's Bottom Line:
In the Gonzales v. Raich, what tipped the Supreme Court decision in favor of federal regulation? It was most likely the principle of "undercutting" a broader scheme of Interstate order. In his concurring opinion, Scalia wrote:
Congress may regulate noneconomic intrastate activities only where the failure to do so “could … undercut” its regulation of interstate commerce. . . . This is not a power that threatens to obliterate the line between “what is truly national and what is truly local.”
If the Supreme Court had allowed individuals to grow marijuana at home for "personal medicinal purposes," this would have opened Pandora's Box: thus Interstate sales and use of marijuana would have become a nuisance for other States where marijuana growing and using is illegal — state anti-marijuana laws would have been "undercut."
One of the key differences between the State of Virginia's Lawsuit compared to Gonzales v. Raich, is that Marijuana use is illegal in most States . . . but exercising one's liberty NOT to purchase Health Insurance is NOT illegal in all States — that is, until ObamaCare introduced its coercive Mandate. This means the threat of "undercutting" a broader scheme of State Laws is NOT a factor in the Virginia Law Suit: Expressing one's liberty to NOT purchase a good or service has never been illegal; in contrast, growing and using marijuana is illegal — that's a key difference in the two court case, and the undercutting principle should not apply in the Virginia Lawsuit.
Thus, the freedom for individual citizens to NOT engage in commerce (to choose NOT to buy Health Insurance or any other good or service) is NOT regulate-able by the Federal Government via the Interstate Commerce Clause, because that choice is NOT an act of commerce and further does not involve Interstate coordination, or Interstate "undercutting." — the tipping point for Gonzales v. Raich, according to Scalia.
Clearly, a citizens choice to "do nothing" need not be coordinated and regulated between the several States by the Federal Government; therefore, the Health Care Freedom Act passed by the State of Virginia should be ruled Constitutional by the Supreme Court; and the universal mandate forcing citizens to buy health insurance should be found Unconstitutional.
The power for Governments to regulate an individual's decision to "do nothing" (NOT buy a good or a service) is unquestionably reserved to the States by the Tenth Amendment of the United States Constitution — that is, IF the majority of citizens want such a regulation, as the Declaration of Independence states "by the consent of the governed." The people of the State of Virginia have decided — they want liberty! And if all other Americans want liberty as well . . . they shall have it!
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The best Health Care Reform will be Compassionate, Constitutional, and will NOT kill the Economy by driving up the National Debt. Time to take a stand and not be silent!
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