For the first time the Federal Government has mandated that all citizens must purchase a product: health insurance. If citizens fail to purchase the product they become law breakers subject to fines and penalties enforced by the IRS although we’ve been repeatedly assured this is not a tax. According to the Federal attorneys arguing that this ground-breaking regulation is constitutional, the Commerce Clause provides the authorization. In other words, not taking an action is now considered commerce by the Federal Government. In effect the Federal Government maintains for the first time in American History and perhaps in the History of the world that not doing something is doing something. It is this type of newspeak, circular logic, and sophistry which destroys the credibility of those who tell us less is more.
Officially known as America’s Affordable Health Choices Act of 2009, this was the first entitlement passed without bipartisan support. The only bipartisan part about it was that thirty-nine Democrats voted with the Republicans against it. Thus it passed with a slim majority and no Republican votes. It was also passed over the objections of a majority of the population. The new entitlement popularly known as Obamacare purports to insure tens of millions of previously uninsured people maintain the benefit levels of everyone else and lower the costs. But will it stand the tests to which it is being subjected? Will it ever be implemented?
With the date for full implementation placed years in the future step-by-step the new regulations, fees, and mandates are trickling into our lives. However, although the President and his party managed to push this through Congress it won’t stand without a fight. The debate has moved from the legislature and is wending its way through the courts. So far two judges have ruled it constitutional and two have ruled it unconstitutional. These rulings also followed party lines. Judges appointed by Democrats ruled it constitutional and judges appointed by Republicans ruled it unconstitutional. This will eventually be decided by the Supreme Court.
If this is decided in favor of the Federal Government it paves the way for a classic 10th Amendment confrontation. Several states such as Virginia, have passed laws saying that no law can require their citizens to purchase health insurance. Since nowhere in the document does the Constitution give the Federal Government the power to mandate that citizens purchase anything this would clearly lie with the confines of the 10th Amendment which 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.”
In contravention to the States appeal to the 10th Amendment the Federal Government will point to the Supremacy Clause which states, “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Using this as their rational as they did in the Arizona Immigration case the Federal Government using the Federal Courts will force states to legally step aside. Then buying health insurance will no longer be an option because failing to do so will be illegal. In other words, “Don’t not do that!” or face the full force of the law and miraculously not doing something becomes doing something.
Another issue which might surface along the way is the question of waivers. It seems many of the organizations, unions, and businesses who supported the law and helped lobby for its passage don’t want to live under its benevolent care. Consequently the Obama Administration has issued hundreds of waivers exempting the President’s supporters from compliance. This raises the question of the government passing laws that apply to some people but not to others. Traditionally legislatures have always had the power to suspend the enforcement of laws in special cases. However this has never been a power wielded by the executive in any except authoritarian states. This flood of waivers raises another potential constitutional question with reference to the Equal Protection Clause of the 14th Amendment which states that everyone is guaranteed, “the equal protection of the laws” meaning that the state must apply laws equally and cannot give preference to one person or class of persons over another.
In reference to all these matters whatever the courts may say President Obama has already signaled that he will enforce the strictures of the law even if they are found unconstitutional.
Considering not taking an action to be commerce opens the door to many interesting possibilities. I didn’t buy Apple stock when it was $10 a share can I have my profits now?
Dr. Robert R. Owens teaches history, political science, religion, and leadership for Southside Virginia Community College. Dr. Owens is the author of “America Won the Vietnam War,” “The Asuza Street Revival,” and called “The Constitution Failed.” He is available for speaking engagements.
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