Obamacare May Be Unconstitutional

Sunday, 18 Oct 2009 06:05 PM

By David A. Patten

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President Obama's healthcare proposals face serious legal problems and scholars expect at least some provisions will be ruled unconstitutional.

The legal vulnerability of Obamacare — assuming some version of healthcare reform is passed — stems from the unprecedented powers it grants the federal government.

Constitutional challenges could arise on several fronts: the government's power to regulate interstate commerce; privacy concerns related to doctor-patient interactions that have their origins in Roe v. Wade; constitutional restrictions on the federal government's authority to levy taxes; and the plan’s numerous clauses promoting racial preferences.

Andrew P. Napolitano, the former New Jersey Superior Court judge and senior judicial analyst at the Fox News Channel, calls Obamacare "unconstitutional at its core."

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Hans Bader, senior counsel for special projects at the Competitive Enterprise Institute think tank, tells Newsmax it is probable that at least some provisions in the evolving legislation will eventually be nixed.

Bader adds courts could also invalidate the entire bill.

GOP Sen. Charles Grassley, R-Iowa, recently echoed Bader's concerns with NewsmaxTV, saying in an exclusive interview that reform marks "the first time in the 225-year history of our country" that the federal government has ordered its citizens to make a purchase — in this case, healthcare coverage under the individual mandate. Citizens who opt not to obtain coverage face tax penalties.

Grassley adds, "I don't think we've ever had this issue before of having to buy something. And a lot of constitutional lawyers are saying it is unconstitutional, or at least a violation of the 10th Amendment. Maybe states can do this — but can the federal government do it? I have my doubts."

Writing in a Wall Street Journal op-ed, Napolitano stated, "What we have here is raw abuse of power by the federal government for political purposes. The president and his colleagues want to reward their supporters with ‘free’ healthcare that the rest of us will end up paying for. The only restraint on their exercise of Commerce Clause power is whatever they can get away with. They aren't upholding the Constitution — they are evading it."

Among the problems legal scholars see in the current healthcare bills:

The Commerce Clause

The 10th Amendment to the U.S. Constitution states: “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.”

This raises the question: What constitutional authority does the federal government have to require “the people” to buy healthcare insurance?

Ever since the Constitution was ratified, those seeking to expand the federal government’s role have cited Article I, Section 8 — the commerce clause.

Napolitano describes the interstate commerce clause as “the favorite hook on which Congress hangs its hat in order to justify the regulation of anything it wants to control.”

The clause states Congress shall have the power to “regulate commerce with foreign Nations, and among the several States, and with the Indian Tribes.”

Proponents would argue that not having an individual mandate would cause disruptions in the flow of goods and services among the states.

Healthcare reform would have a massive impact on one-sixth of the nation’s economy. There is a strong precedent for regulation of the insurance industry, at least on the state level. But courts could view reform as essentially as an entitlement program, not primarily related to commerce, and therefore beyond the federal government’s constitutional mandate.

The irony, says Napolitano, is that many of the current market anomalies in the insurance sector stem from congressional legislation that exempts companies from the competitive pressures of interstate commerce.

“It has permitted all 50 states to erect the type of barriers that the commerce clause was written precisely to tear down. Insurers are barred from selling policies to people in another state,” Napolitano writes.

"That's right,” he adds. “Congress refuses to keep commerce regular when the commercial activity is the sale of insurance, but claims it can regulate the removal of a person's appendix because that constitutes interstate commerce.”

That blatant contradiction is one reason Congress is considering legislation to revoke the insurance industry’s anti-trust exemption.

A Taxing Situation

The only reason the federal government can tax your income is the 16th Amendment. Ratified on Feb. 3, 1913, it consists of perhaps the 30 most costly words ever written: “The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.”

Taxing people to make them purchase insurance is not addressed in the Constitution. So how can the government do it? Answer: By calling it an “excise tax.”

Ernest S. Christian, who served as deputy assistant secretary of the Treasury Department during the Ford administration, and Betty Jo Christian, an appellate lawyer who has argued commerce clause cases before the Supreme Court, recently addressed this problem for Investors.com.

“Sen. Baucus claims that the tax on the uninsured is an ‘indirect’ excise tax . . . But Sen. Baucus appears to be in error,” they write. “An excise tax is a tax on a ‘thing’ (such as a commodity or a license). That is why an excise tax is classified as ‘indirect.’"

“People who choose not to buy insurance are not things.

“They are people. And the tax is imposed directly on them in exactly the same way as a direct income tax, except that in this instance, the tax amount does not depend on the size of the person's income.

They add: "Let us all hope that that the court stands fast — because if Barack Obama can make us buy a designated insurance policy, why can't he make us see designated doctors, submit to designated treatments, send our children to designated schools, force us to live in designated neighborhoods, give our money to designated charities (such as Acorn), and do all kinds of other designated things?" Excise taxes are levied on things you buy. The healthcare “excise tax” takes away your money for something you don’t buy — health insurance.

Roe v. Wade to the Rescue?!

It would be a remarkable irony if the Roe v. Wade abortion decision handed conservatives a means of stopping healthcare reform. Roe v. Wade established a private right to medical treatment that could seriously restrict the government’s ability to control the provision of healthcare services, either now or in the future.

David B. Rivkin Jr. and Lee A. Casey worked in the Justice Department under former presidents Ronald Reagan and George H.W. Bush. They addressed this point in a recent Wall Street Journal article.

“If the government cannot proscribe — or even ‘unduly burden,’ to use another of the Supreme Court's analytical frameworks — access to abortion, how can it proscribe access to other medical procedures, including transplants, corrective or restorative surgeries, chemotherapy treatments, or a myriad of other health services that individuals may need or desire?” they ask.

Bader says the Roe v. Wade argument would probably carry less weight than those tied to the commerce clause. “But you can argue if you've got this right to abortion, which they made up out of nothing in Roe v. Wade — why the heck is it that the doctor has this prerogative to give an abortion, but he doesn't have a prerogative to practice medicine without all these restrictions?” Bader says.

Current reform proposals generally seek to avoid the appearance of intruding on the doctor-client relationship. But Bader warns “they set a precedent.”

Racial Preferences: Not so Colorblind

Bader says all of the current proposals have “a lot of racial preferences.”

These preferences include requirements for the culturally conscious provision of medical services, and racial set asides and goals intended to give minority healthcare providers more opportunities.

"Some of the racial preferences in the Obama healthcare plan are unconstitutional, and will be declared so by the federal courts,” Bader predicts.

“Now, that doesn't mean all of the Obama healthcare plan will be struck down on that basis,” he hastens to add. “But it does illustrate there are well-founded constitutional objections to Obama's healthcare plans.”

Of course, Democrats could “bulletproof” their proposals in the weeks ahead, making them less vulnerable to reversal by the courts. For example, they could get the states to impose the requirements by making it a condition of federal funding.

Still, legislation as pervasive as healthcare reform is almost certain to trigger a spate of legal challenges in the years to come.

“The only thing that is certain today,” Rivkin and Casey write, “is that the courts, and not Congress, will have the last word.”

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