Analysis

Four ways ObamaCare tramples the Constitution

Yesterday Kristan Hawkins at LifeNews noted that pro-lifers are waiting with bated breath for the Supreme Court to rule on the constitutionality of President Barack Obama’s intensely controversial health care law:

At this moment, I am standing in front of the Supreme Court with the rest of our team and missionaries on Capitol Hill. Waiting.  Waiting to see if today is the day that we find out whether or not Obamacare is constitutional. And whether or not our rights of conscience and freedom of religion will continue to be defended by those charged to protect them.

This is the biggest moment for the pro-life movement since January 22, 1973.

The main challenge to ObamaCare has concerned the individual mandate, which requires Americans to purchase health insurance. The Court’s Thursday ruling probably won’t focus on Health and Human Services Department rules forcing religious employers to include birth control in their health plans, but there is a chance the Court might decide to strike down the entire law, and it’s important for pro-lifers to have a broad understanding of why ObamaCare is so thoroughly and blatantly unconstitutional.

1.) The Constitution gives the federal government no general grant of authority over health care.

In Federalist 45, James Madison explains that the federal government is fundamentally different from state governments in one key way:

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.

While states are mostly free to legislate in “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,” federal domestic policy is almost exclusively limited to objects expressly identified by Article I, Section 8 of the Constitution. It’s a pretty straightforward list, which says nothing about providing any health care to Americans – birth control or otherwise.

2.) The Commerce Clause does not empower government to make Americans buy products.

The Commerce Clause is the heart of Democrats’ legal justification for the mandate. The Clause, found in Article I, Section 8, authorizes Congress to “regulate commerce … among the several states.” They have argued that because one person’s decision to forgo insurance affects everyone else who pays premiums, the decision is an interstate economic activity subject to federal control. But Alexander Hamilton’s explanation of the Commerce Clause in Federalist 22 reveals a very different purpose:

The interfering and unneighborly regulations of some States, contrary to the true spirit of the Union, have, in different instances, given just cause of umbrage and complaint to others, and it is to be feared that examples of this nature, if not restrained by a national control, would be multiplied and extended till they became not less serious sources of animosity and discord than injurious impediments to the intcrcourse between the different parts of the Confederacy.

The intended purpose of Congress’s power to regulate interstate commerce was specifically to prevent the states from discriminating against one another through over-regulation, to erect a uniform standard that would keep the interstate flow of commerce mostly un-regulated. Further, Hamilton is clearly talking about regulating the actions of state governments, not of private citizens – especially not the inaction of those not crossing state lines. The Commerce Clause simply doesn’t make it government’s business what economic choices individuals make.

3.) The First Amendment protects people from being forced to participate in practices that violate their religious beliefs.

Not only does the Constitution give government no power to decide what services employers should offer, but it gives employers special protection against such control when religion enters the picture. The First Amendment lets Congress make “no law … prohibiting the free exercise” of religion. Private citizens and organizations are free to follow the dictates of their faiths, as long as doing so doesn’t violate anyone else’s constitutional rights (for instance, burning witches isn’t protected under religious liberty), and there is no constitutional right to be given birth control.

Ultimately, if “free exercise of religion” doesn’t at the very least mean you cannot be compelled to participate in practices that violate your religious beliefs, then it means nothing.

4.) ObamaCare violates separation of powers by delegating vast policy-making power to the executive branch and to unaccountable administrative agencies.

To prevent government from growing too powerful, the Constitution splits legislative power (making laws) and executive power (carrying out laws) into two branches. This also serves another essential function of good government: the people’s ability to clearly see who in government is responsible for which decisions, and to accordingly hold them accountable.

ObamaCare did not define which services employer health plans had to include; it left the details up to the Obama administration to decide. The problem is that any decision changing the liberties and obligations of the people, such as the HHS birth control mandate, is legislative in nature, not executive, and so must be made by the people’s chosen representatives. Congress cannot outsource its legislative responsibility to other departments.

Even worse, according to the Congressional Research Service, the number of new agencies, boards, and commissions created by ObamaCare is “unknowable.” If not even the CRS can determine how many new administrative and rule-making bodies exist under the 2,700-page law (much less their roles, jurisdictions, and oversight, each of which would raise brand-new constitutional questions), then what chance does the average citizen have?

Conclusion

A law professor trying to craft a model of bad legislation for his students to dissect would be hard-pressed to come up with something more target-rich than ObamaCare. It runs roughshod over all the principles the Founders deemed most important in our Constitution – economic and religious liberty, limited government, and accountability to the people. Its overturn would be a powerful affirmation that the rule of law still matters in this country, giving us renewed hope that the Supreme Court will correct other longstanding pro-abortion affronts to the Constitution.

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  • http://twitter.com/Astraspider Astraspider

    #1. While your position might have been de rigueur mid-20th century and prior, the federal government has been regulating health care in earnest since the 1970s (at least by American standards; we’re still very laissez faire by the standards of any other Western country), when Nixon and his Congress found the spiraling costs of Medicare unsustainable (speaking of Medicare, by your reasoning that would be unconstitutional, too!). And in general, the 20th century has seen a widening deference by the courts to Congress’s regulatory powers. Just because it doesn’t appear in Article I doesn’t mean there can’t be a statutory reasoning for it. Like you once told me, just because the bible doesn’t mention drive by shootings, that doesn’t mean it’s condoned.

    #2. You’re at the heart of the conservative disapproval of the ACA here. I’ll just say this: it wasn’t always so for conservatives. Conservative scholars have predicted the mandate’s constitutionality and conservative judges in the lower courts have upheld the law wholly. And the individual mandate is actually a conservative idea, hatched in the late 80s/early 90s by the Heritage Foundation as a paean to *personal responsibility*.

    #3 It’s certainly reasonable for the government to craft the “Minimum Standard of Care”, which happens to include The Pill. The question is, where do you have an expectation to a “free exercise of religion” when you’re covering your employees’ insurance. The current HHS puts it only with churches. I’d, personally, put it with churches and religious universities because, even if they fail at it, I assume there’s an aspiration to have the faithful employed as faculty and enrolled as students and at least an implicit desire to teach the doctrine. In Catholic hospitals, however, there’s no teaching of the doctrine and no obligation of the Hindu doctor or agnostic orderly or Jewish accountant or Protestant nurse to subscribe to the church’s views on birth control. And in the wide swath of private enterprises, allowing employers to opt out of whatever they wish for some spiritual (or non-spiritual) reason would be unworkable.

    #4. … is a rather unsubstantiated complaint about the executive branch. Granted, the executive branch is big. Too big by your libertarian standards, I’m sure. Too big for a lot of Americans. But there’s nothing unconstitutional about delegating regulatory functions to the experts in any given cabinet post.

    Which is to say, you have an argument and it’s been heard in the courts, and some of it may very well carry the day, particularly point #2. But did the law “trample” our rights? There are valid counter-points being argued strenuously in favor of the law (some of it by conservatives) and a 5-4 decision either way is indicative of the tight ideological (and legal) scrum we’re in. I don’t think the 4 or 5 or 6 justices who will vote to uphold the law would agree that they’re “trampling” anything.

    • http://twitter.com/CalFreiburger Calvin Freiburger

      “the federal government has been regulating health care in earnest since the 1970s [...] the 20th century has seen a widening deference by the courts to Congress’s regulatory powers.”

      These are just descriptive observations of what government’s been doing. They don’t demonstrate whether government’s been constitutionally correct to do so.

      “Just because it doesn’t appear in Article I doesn’t mean there can’t be a statutory reasoning for it.”

      Actually, that’s pretty much exactly what enumerated powers means.

      “Like you once told me, just because the bible doesn’t mention drive by shootings, that doesn’t mean it’s condoned.”

      Completely invalid example. I was referring to a pretty simple analytical exercise to objectively determine whether abortion fits in the category of murder as the Bible uses the term. Judges doing that sort of thing with constitutional terminology is perfectly legit. But the constitutional interpretation your defending would be more like finding a commandment that isn’t there.

      “There are conservative scholars who have predicted the mandate’s constitutionality and there are conservative judges in the lower courts who have upheld the law wholly.”

      There may be scholars and judges who are *called* conservative who do so, but I would very much doubt their *actual* conservatism.

      “the individual mandate is actually a conservative idea, hatched in the late 80s/early 90s by the Heritage Foundation as a paean to *personal responsibility*.”

      It’s within the states’ power to experiment with things like insurance mandates. But regardless of who favored what when, the fact remains that it’s unconstitutional at the federal level. Heritage’s support for a mandate-based federal plan (which was a strategic calculation as much as anything) was wrong.

      “It’s certainly reasonable for the government to craft the ‘Minimum Standard of Care’”

      Why? Where’s the constitutional authorization?

      “The question is, where do you have an expectation to a ‘free exercise of religion’ when you’re covering your employees’ insurance.”

      You have an expectation of free exercise of religion whenever you’re using your own money on non-coercive activities that don’t infringe on the rights of others. Period, full stop, end of story. You don’t like what an employer offers employees? Doesn’t matter. That employer doesn’t belong to you. It doesn’t belong to me. We have no just right to force its policies to change through government.

      “But there’s nothing unconstitutional about delegating regulatory functions to the experts in any given cabinet post.”

      As I said, it depends on what that function is. Merely enforcing rules made by the people’s representatives is fine. MAKING those rules is a different matter entirely.

  • Guest

    Right…because obviously you’re more knowledgeable about law and the Constitution than a Harvard-educated lawyer. Have you actually read the whole law? I mean, I’ll admit haven’t, but I’m also not pretending that I know more about it than the highly-educated people who were involved in its writing.

    • http://twitter.com/CalFreiburger Calvin Freiburger

      Is there supposed to be a refutation in there somewhere?

      • peach

         She’s calling you a pontificating wanker.

        • http://twitter.com/CalFreiburger Calvin Freiburger

          Actually, she’s making a lazy appeal to authority which is supposed to shut me up instead of engaging the arguments I’ve made.

          • Guest

            It was more pointing out that I’m not, in fact, a constitutional lawyer, or a legislator, and nor have I actually read the whole law, so I don’t feel qualified to write long editorials about it, and I’m not entirely sure why you do.

            Also, it looks like the Supreme Court disagrees with you (although I’m sure you think you know more about this than they do). 

          • http://twitter.com/CalFreiburger Calvin Freiburger

            I’m just a guy who’s done what any other American can do if they put in the time or effort: studied the Constitution, consulted the writings of the people who designed it, and compared their judgment to the arguments made for and against ObamaCare.

            You can speculate about what I know or don’t know all you want, but that’s no substitute for refutation.

          • Guest

            Yes, I too have studied the Constitution. I’ve read that document. I have not read the entirety of the ACA, however, and nor have you. 

            I don’t have to speculate about what you know, it says right there in your little bio that you have a degree in “Politics” (is that the same as political science?), but nothing about law school. And I don’t feel like taking the time to refute all of your arguments because others here are already doing so, and I have other things to do. 

          • Ed Colonna

            The Supreme Court did not disagree, They called it a tax, which congress is allowed to levy. That is why they called it Constitutional.

  • cb

    I have to point out that the following sentences of the very paragraph of the Federalist Paper that you cite completely contradict your interpretation of what the Federalist Paper is saying. To wit:

    “The commerce of the German empire (2) is in continual trammels from the multiplicity of the duties which the several princes and states exact upon the merchandises passing through their territories, by means of which the fine streams and navigable rivers with which Germany is so happily watered are rendered almost useless.” Though the genius of the people of this country might never permit this description to be strictly applicable to us, yet we may reasonably expect, from the gradual conflicts of State regulations, that the citizens of each would at length come to be considered and treated by the others in no better light than that of foreigners and aliens.

    The German example is clearly about private commerce passing through individual German federal states. I don’t think there’s any disputing that. Hamilton is saying that regulation of such private commerce passing through several states by those states was crippling. Given that Hamilton was writing this in support of the Commerce Clause as phrased in the Constitution, it’s obvious Hamilton is saying this power to regulate private commerce passing through several states should be entrusted to Congress. Your claims that “Hamilton is clearly talking about regulating the actions of state governments, not of private citizens” and that “The Commerce Clause simply doesn’t make it government’s business what economic choices individuals make” are a gross misrepresentation of the Federalist Paper and are simply wrong.

    • http://twitter.com/CalFreiburger Calvin Freiburger

      My point is that they were primarily concerned about inconsistent state regulations mucking up the works, and that the concepts of providing services or benefits, perfecting certain markets, or engaging in social engineering would have been wholly alien to them.

      I don’t see anything in your comment that supports your claim; in fact, in your comment I only see support for my original interpretation: “trammels from the multiplicity of the duties”…”gradual conflicts of State regulations”…”regulation of such private commerce passing through several states by those states was crippling.”

      Besides, that’s not the only place where the Founders make that point. Madison reiterates in Federalist 42 that “A very material object of
      this power was the relief of the States which import and export through
      other States, from the improper contributions levied on them by the latter,” which he follows up with similar examples.

      You could argue that phrasing it in terms of acting on governments vs acting on individuals was imprecise, but I stand by my point. Besides, your objection has no bearing on the more important Commerce Clause issues: the differences between interstate commerce and commerce going on within a state, and the difference between activity and inactivity.

      • cb

        Your original claim was that “the intended purpose” of the Commerce Clause was to prevent the states from mucking things up, and to assure commerce remained “mostly un-regulated.” That suggested these two goals were the sole intended purpose. Now you say “primarily concerned.” Are you acknowledging that the ability to have active federal regulation was another purpose, or do you not think this was a purpose behind the clause? The first few Congresses passed bills regulating interstate commerce; Washington signed into law a bill that mandated that ship owners buy insurance for their sailors. http://www.tnr.com/article/politics/102620/individual-mandate-history-affordable-care-act. Was that bill, passed under the Commerce Clause power, consistent with the purpose you attribute to the Commerce Clause, of leaving commerce “mostly unregulated”? What does “mostly unregulated” mean, anyway?

        More broadly, why should 21st Century interpretations of the Constitution be so dictated by 18th Century interpretations (or, rather, your and other people’s interpretations of what the 18th Century interpretations were)? Why should our interpretations be dictated by the interpretations of the framers, for example–an unrepresentative group even at the time, 200 years removed from us, who institutionalized slavery in the Constitution itself? If they should be, then should semiautomatic handguns fall outside the purview of the 2nd Amendment, since such weapons were “alien” to the framers (and to 18th Century Americans more generally)? If your answer is that the broad purposes behind the Constitution should stay the same even as our world and our understanding of certain terms in the Constitution change, how do you reconcile this with the largely undemocratic, unrepresentative system that the Constitution originally set up? Why should the purposes we attribute to the Constitution–including the Commerce Clause–not evolve over time, too?

        • http://twitter.com/CalFreiburger Calvin Freiburger

          Funny you should cite that TNR article; it’s actually been debunked: http://www.nationalreview.com/articles/297347/founders-loved-mandates-matthew-j-franck

          “why should 21st Century interpretations of the Constitution be so dictated by 18th Century interpretations”

          Um, because that’s how law works? Any good-faith attempt to accurately understand the meaning and function of a law must begin with the creators of that law. And if a proposition happens to be correct, then it always was and always will remain correct. The century it comes from is wholly irrelevant.

          “an unrepresentative group even at the time”

          …who made a case to the public, which the public adopted through ratification.

          “who institutionalized slavery in the Constitution itself”

          Please better familiarize yourself with how the Founders approached slavery. Virtually all of them opposed it, but the national support to eliminate it just wasn’t there, and conflict with slave states over the issue would have torn the new nation apart. So they proclaimed human equality in the hopes of laying the groundwork for slavery’s eventual elimination. And the various provisions of the Constitution that acknowledge slavery were products of compromise, not embraces of principle. Here’s a good place to start: http://teachingamericanhistory.org/library/index.asp?document=162

          “should semiautomatic handguns fall outside the purview of the 2nd Amendment, since such weapons were ‘alien’ to the framers”

          Attempting to interpret how the Constitution applies to new technology can raise complex questions on which reasonable jurists can disagree, but that’s a very different enterprise than trying to reinterpret the Constitution’s purposes, meaning, and values.

          “If your answer is that the broad purposes behind the Constitution should
          stay the same even as our world and our understanding of certain terms
          in the Constitution change, how do you reconcile this with the largely
          undemocratic, unrepresentative system that the Constitution originally
          set up?”

          I don’t know what you’re trying to say here. The world may change, but neither the purposes nor the terminology of the Constitution do. Whatever changes the Constitution needs are to be done through the amendment process; anything else undermines the very point of having a constitution. And though our system of government is “undemocratic” in some respects, it’s certainly representative – in fact, it’s a system carefully calibrated to balance

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