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Constitutional Challenge To Obamacare

Posted on March 24 2010 10:56 am
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With the ink barely dry from President Obama’s signature, the attorneys general in more than a dozen states went to court.  They filed lawsuits challenging the constitutionality of Obamacare’s individual mandate requiring virtually all Americans to purchase health insurance.

On his “Is it legal” segment last night, Bill O’Reilly posed the bottom-line question:  What are the odds that the Supreme Court will overturn Obamacare?  While his two legal beagle experts believed the challenge had some merit, they both thought it would ultimately fail.

They focused on the very broad powers that Congress has been permitted by the courts to exercise since the New Deal under the Constitution’s Interstate Commerce Clause. They also mentioned that the enforcement of the mandate was set up under Congress’ taxing authority, which too is very broad.  Indeed, the IRS will be hiring 16,000 new employees to monitor and enforce the mandate – the Democrats’ job stimulus program in action.

I think that if the challenge were truly decided on the legal merits, it should succeed. Congress’ power to “regulate” interstate commerce has never been interpreted to include forcing individuals to engage in commerce against their will and buy a good or service from the private sector simply because they are living here. And the Supreme Court has ruled that there are some outer limits on governmental taxing authority when the main purpose is to punish or deter behavior rather than to collect revenues.

For those who say, by the way, that advocates of judicial restraint would be hypocritical if they ruled to defy the will of the elected branches of government and overturn Obamacare, the answer is that only the purchase mandate’s impingement on individual liberties and states’ rights under Article 10 of the Constitution are at issue in the challenge, not the entire law.

However, at the end of the day, I agree with O’Reilly’s legal experts that the challenge will probably fail with today’s Supreme Court.  First of all, the Court could duck the issue right now by saying that, until the mandate actually kicks in, it would be premature to decide its constitutionality.

Secondly, even if the Supreme Court were to take the case on an expedited basis, Justice Kennedy will be the swing vote and I think he will be too cowardly to touch any portion of the law.  Some of his rulings show a proclivity to look at foreign law for guidance.  He will probably be influenced by the universal systems of health care found in Europe and Canada.

Unless Obama becomes a one-term President, liberals lose their power in the Senate and we are able to add more true conservatives to the Court, things will only get worse.

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