Three U.S. Circuit Courts of Appeals are poised to render decisions on the Patient Protection and Affordable Care Act in the coming months. Despite hundreds of briefing pages and numerous oral arguments, government lawyers have yet to address the law's most basic constitutional infirmity. Only a "general police power"—the right to enact laws alleged to be in the public interest without regard to interstate commerce or some other federal legislative authority—can support the law's centerpiece, the "individual mandate" that all Americans purchase health insurance. The Constitution denies that power to the federal government, reserving it to the states alone.
The Atlanta Court is going to decide whether ObamaCare is an illegal usurpation of the rights of states, who will be required in the Law to administer the 2700 pages of garbage and lies in the ridiculous piece of sh*t this doofus of a POTUS has foisted on the body politic. Government lawyers are flailing away trying to show that the silly language of the law actually doesn't mean what it says:
Requiring individuals to act simply because they exist is the defining aspect of the general police power that Congress lacks. The government's lawyers, recognizing this fundamental constitutional reality, have tried to rewrite the law so that it can withstand judicial scrutiny. They have claimed that the individual mandate is a tax, despite common sense, judicial precedent, and numerous statements to the contrary by the law's sponsors and President Obama. They have also argued that ObamaCare does not actually impose a mandate on inactive citizens, but rather regulates how individuals will pay for their health care. As Solicitor General Neal Katyal recently put it, the mandate is "about failure to pay, not failure to buy." This is plainly wrong. The law requires that everyone have health insurance—without regard to whether or how they buy or pay for medical services.
At least the government realizes now that it has a serious problem on its hands. They could have followed a different path and grasped the political nettle, but being Demonrat cowards and craven con-artist congresspersons, they copped out:
Congress, of course, could regulate how actual, not hypothetical, health care is bought or paid for. There are also ways in which Congress could, constitutionally, achieve the near-universal health-care coverage it sought by passing ObamaCare. Most directly, it could raise taxes to pay for universal coverage. But this option would carry far higher political costs than the scheme Congress actually adopted, which effectively shifts the costs (and ultimately the inevitable need to raise taxes) to the states.
That's why ObamaCare is so constitutionally pernicious. Our Framers adopted a dual-sovereignty architecture, dividing powers between the national government and the states. As Supreme Court Justice Anthony Kennedy explained in United States v. Lopez (1995), this division achieves two goals. It protects individual liberty, and it ensures that voters can identify which level of government is responsible for what policies so that a proper accounting can be made at the ballot box.
Consistent with the fundamental principle that the federal government is one of limited, enumerated powers, more than 220 years of case law requires that exercises of the commerce power be grounded in a meaningful, judicially enforceable, limiting principle. ObamaCare's defenders can't articulate such a principle.
This is probably the key issue which will sink the ObamaCare Leviathan before its official launch after next year's elections---another political dodge by a cowardly craven POTUS and a collection of con-congresspeople lacking even the basic honesty and personal principle to stand by the silly law they intend to be the camel's nose under the tent of a complete statist socialist nanny-society where everything is illegal unless the bureaucrats at their DC desks deem it permissable---in other words, the European model which has led to a meltdown in the old centrally-run economic states with the [partial] exceptions of Germany, France & the UK, all three of which are balanced precariously near falling over the precipice into hopeless economic and political stagnation. But I digress:
They began with the claim that there was no difference between activity and inactivity, since both involved decisions, and thus could be reached under the commerce power. Having largely abandoned this unwinnable argument, they now claim that the mandate does not really compel individuals to buy insurance, but merely regulates their inevitable future health-care consumption.
But because the future consumption of nearly all existing goods and services is inevitable across the entire population, this argument means that Americans can then be compelled to purchase an infinite variety of goods and services chosen by Washington. Far from limiting what government can do, this is the ultimate enabling principle. Even Soviet apparatchiks, who told producers what to make, did not dare tell people what to buy.
ObamaCare's defenders have sought to manufacture another limiting principle. They claim that health care is unique because everyone will use medical services, health-care costs can be financially ruinous for uninsured individuals, and others will then have to pick up the slack by subsidizing consumers who do not pay their medical bills. Yet any number of national markets, including the housing market, share these same characteristics.
Thus the administration's position comes to this: What is one unconstitutional law, more or less, among friends? Health care is simply more important than any other issue. And Congress can be trusted to act responsibly, imposing purchase mandates only when they are essential. That's why Congress can mandate medical insurance but would never require Americans to buy broccoli. The courts have always found such promises constitutionally insufficient.
When will this be decided in Atlanta? And if negatively, when does it go before SCOTUS? No one knows yet. But this is what the court will remind itself is at stake:
Both before and after the Supreme Court accepted the constitutionality of federal economic regulations in the late 1930s, it has consistently stated that there are limits on federal power and, in particular, on Congress's power to regulate interstate commerce. It has upheld those limits in a number of cases, making clear that federal regulation cannot reach into areas too remote from legitimate federal concerns.
If ObamaCare is to be upheld, then the Supreme Court will have to abandon these precedents, along with the plain meaning of the Constitution. It will also have to concede that our federal system is in fact not one of divided authority between federal and state governments, but one in which the states merely act as Washington's administrative enforcers. There is every reason to believe the court would never entertain such a notion.