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Is ObamaCare Constitutional?

Posted on November 22 2009 9:26 pm
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Glenn Beck’s concerns about the lack of constitutional authority for federal government spending and federal programs are always well-intentioned and often well-founded, but uncharacteristically Beck slipped up last week.

On his TV show he asked, “What’s in the House and Senate health care bills that is not in the Constitution? The redistribution of wealth.” Actually, Beck’s wrong on this one. Unfortunately, the redistribution of wealth –at least of income– is enshrined in the Constitution as the 16th Amendment. If Congress wants to use income taxes to fund a socialized healthcare system, there is nothing in the Constitution to stop it from doing so.

But other aspects of the proposed socialist healthcare scheme may be unconstitutional. It seems to me the smarter consitutional ground to use to attack ObamaCare is the seemingly totalitarian requirement to purchase health insurance. Never before in the history of the republic has the federal government imposed such a sweeping mandate on Americans.

Legal thinkers David B. Rivkin Jr. and Lee A. Casey argue that “The Constitution assigns only limited, enumerated powers to Congress and none, including the power to regulate interstate commerce or to impose taxes, would support a federal mandate requiring anyone who is otherwise without health insurance to buy it.”

Rivkin and Casey concluded

Of course, these constitutional impediments can be avoided if Congress is willing to raise corporate and/or income taxes enough to fund fully a new national health system. Absent this politically dangerous — and therefore unlikely — scenario, advocates of universal health coverage must accept that Congress’s power, like that of the other branches, has limits. These limits apply regardless of how important the issue may be, and neither Congress nor the president can take constitutional short cuts. The genius of our system is that, no matter how convinced our elected officials may be that certain measures are in the public interest, their goals can be accomplished only in accord with the powers and processes the Constitution mandates, processes that inevitably make them accountable to the American people.

Beck said on the same show from last week that if the Senate were to approve a motion over the weekend to move forward with debate on ObamaCare that ultimately the Senate would approve the legislation. Beck’s probably wrong on that point too.

The Senate did vote 60 to 39 to move forward with debate on the legislation but it’s far from in the bag. Many of the Democrats had to be bought off in order to vote to avoid a Republican filibuster. For example, Sen. Mary Landrieu (D-La.), had to be promised an extra $100 million for her home state of Louisiana in order to vote against a filibuster.

There are still plenty of opportunities to prevent a fascistic takeover over the nation’s healthcare system.

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