If the Supreme Court declares the individual mandate in Obamacare unconstitutional, can it sever the mandate from the remainder of the bill? If it can’t, the entire legislation is null and void, and Congress must start again from scratch.
If the mandate is severed, an incredible health care nightmare awaits. For example, the provision requiring insurance company’s to sell health insurance to those with pre-existing conditions will increase the cost of their policies significantly, which will drive healthy individuals out of the insurance market and push prices higher still, causing a death spiral for insurance companies.
In order to rationalize the constitutionality of Obamacare, its proponents must rely on the Commerce Clause, which gives Congress the right to regulate interstate commerce. Beginning with Gibbons v. Ogden in 1824, the Supreme Court has granted Congress increasing powers to regulate states and individuals under that clause, often with the assistance of the “necessary and proper” clause.
However, the Commerce Clause has never been interpreted to give Congress the authority to require individuals not engaged in some activity to purchase a specific product or service. If Congress can compel Americans to purchase health care insurance, can it also compel them to purchase electric cars, organic food or specific clothing? Can Congress compel businesses to hire certain employees, produce certain products or charge below-market prices? If the Supreme Court ratifies the constitutionality of Obamacare under the Commerce Clause, it also must define the limits of the Commerce Clause. Otherwise, the federal government will have unlimited power over the American people.
The Founding Fathers were concerned that a powerful federal government might impose its authority and will on the states and the people. The preamble to the Constitution recognizes that the existence of the federal government comes from “We the People.” The Bill of Rights was added to the Constitution shortly after its ratification, and its Article X 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.”
Consequently Romneycare, even as the template for Obamacare, may be legal for Massachusetts. If any of the other 49 states also want to mandate compulsory health care insurance, there is no reason why it cannot if its state constitution permits. However, there is no reason for the federal government to impose Obamacare on the 26 states contesting its constitutionality.
Clever lawyers can cogently argue both sides of whether Obamacare is unconstitutional. However, the case for Obamacare requires an Orwellian expansion of the Commerce Clause which few Americans can understand. The case against Obamacare is clearly stated within the four corners of the Constitution, and any educated American can understand its logic. Furthermore, a majority of Americans oppose Obamacare. If a majority of the people in the states that are not contesting the constitutionality of Obamacare want compulsory health care, they can adopt it, like Massachusetts adopted Romneycare. They do not need to impose it on the states that do not.
Consequently, there is no compelling reason for the Supreme Court to expand the powers of the federal government - unless the justices believe the politicians and bureaucrats in Washington know what is best for the rest of America’s 325 million citizens. If that is the case, our liberty is in greater danger.
• Armstrong Williams, author of the 2010 book “Reawakening Virtues,” is on Sirius Power 128 from 7-8 p.m. and 4-5 a.m. Mondays through Fridays. Become a fan on Facebook at www.facebook.com/arightside, and follow him on Twitter at www.twitter.com/ arightside. Read his content on RightSideWire .com.