A post by Maynard
Today Drudge linked to this NYT article.
WASHINGTON — When Congress required most Americans to obtain health insurance or pay a penalty, Democrats denied that they were creating a new tax. But in court, the Obama administration and its allies now defend the requirement as an exercise of the government’s “power to lay and collect taxes.”
And that power, they say, is even more sweeping than the federal power to regulate interstate commerce.
One of the tragic aspects of modern America is how few of our citizens understand that the powers of the Federal government are limited and defined by the Constitution. Most people shrug and figure the government can do whatever it wants. Our ignorance becomes a self-fulfilling prophecy. Whenever the government illegally usurps power and we let them get away with it, another bad precedent has been set. It becomes legally okay for them to do it again in the future because they did it in the past.
For the record, here’s the Tenth Amendment:
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.
So where does Washington supposedly get its authority to justify Obamacare and so much else? Two sources are particularly cited: The Commerce Clause and the General Welfare Clause.
First, the Commerce Clause, as summarized in Wikipedia:
The Commerce Clause is an enumerated power listed in the United States Constitution (Article I, Section 8, Clause 3). The clause states that the United States Congress shall have power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”. Courts and commentators have tended to discuss each of these three areas of commerce as a separate power granted to Congress. It is common to see the Commerce Clause referred to as “the Foreign Commerce Clause,” “the Interstate Commerce Clause,” and “the Indian Commerce Clause,” each of which refers to a different application of the same sentence in the Constitution.
My understanding of “regulate” here means to render regular, rather than to control and micromanage. Also, note that the Federal government has no power at all to control intrastate commerce. That’s if you play by the rulebook, anyway.
“…to pay the Debts and provide for the common Defense and general Welfare of the United States…”
Out of these simple, basic, reasonable powers allowed it by the people, Washington spins claims of absolute control over everything.
Once upon a time, when the Constitution was respected, it required an amendment to the Constitution to outlaw slavery. It also required an amendment to levy the income tax. Then we began to forget our heritage.
As we see today, a crisis provided an excellent opportunity to seize power. So it was with FDR’s New Deal. Civil libertarians raised objections…
In 1942, the Supreme Court ruling in the case of Wickard v. Filburn dealt a shattering blow to the concept of constitutionally limited government.
Wickard v. Filburn, 317 U.S. 111 (1942), was a U.S. Supreme Court decision that dramatically increased the power of the federal government to regulate economic activity. A farmer, Roscoe Filburn, was growing wheat to feed his chickens. The U.S. government had imposed limits on wheat production based on acreage owned by a farmer, in order to drive up wheat prices during the Great Depression, and Filburn was growing more than the limits permitted. Filburn 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.
How could they get away with this? It boggles the mind.
Anyway, fast-forward to the law requiring that the individual purchase health insurance. This is another unprecedented exercise of power. It’s not analogous to compelling you to buy auto insurance, since that sort of rule only kicks in if you choose to buy a car. The health insurance mandate criminalizes your very existence. Is this not a power that’s inherently tyrannical? Maybe next week they’ll mandate that you buy a jar of sunscreen lotion, or a box of bran flakes. Why not? I mean, if you don’t apply sunscreen and eat bran, you’ll end up using more than your fair share of medical resources.
Has Obama gone too far this time? It’s possible. Remember how he made a huge point of promising not to raise our taxes? If the health mandate is in fact a tax, then he’s breaking that promise in a big way; bigger than he’s done before, if anyone’s keeping score (as the mainstream media certainly isn’t doing). On the other hand, if the health mandate isn’t a tax, then it’s another blatantly unconstitutional expansion of Federal powers. In a sane world, it would be struck down — although of course we are not in a sane world.
So the Democrats have tried to straddle the fence. When accused of raising taxes, they say, no, they’re just posting a new regulation. When accused of regulating without Constitutional authority, they say, no, it’s just another tax. That’s what you see in that NYT article.
As a practical matter, this thing is going to get rolled back one way or another, either by repeal or by national insolvency. But the true tragedy is that it’s come as far as it has. When Washington even gives consideration to the sort of laws that are passing now, it’s obvious we’ve forgotten the Constitutional model of limited government. Where does that leave us, now that the contract between government and We the People has been dissolved?