The national shutdown battle to defund ObamaCare ended Wednesday evening. H.R. 2775: No Subsidies Without Verification Act is now the law but the states can continue the war against the Affordable Care Act (ACA). State governments can pass a law saying that if an insurance company is based in their state and sells an individual health insurance policy in that state then that insurance policy does not have to include the “essential health benefits” required by the national government.
These “benefits” authorized by Secretary of Health and Human Services Sibelius include, “ambulatory patient services; emergency services; hospitalization; maternity and newborn care; mental health and substance use disorder services, including behavioral health treatment; prescription drugs; rehabilitative and rehabilitative services and devices; laboratory services; preventive and wellness services and chronic disease management; and pediatric services, including oral and vision care.”
These “benefits” also includes coverage of pre-existing illnesses, but allows an exception for grandfathered individual health insurance plans. This is because all individual medical insurance policies are written with non-cancellable clauses if one become sick. These grandfathered policies are considerably cheaper because, at this time, they do not contain all the other mandates.
All of these national requirements drive up the cost of the ACA making it unaffordable for many people. State governments can nullify these federal mandates by creating laws that allow health insurance companies based in their states to sell individual insurance policies without the national “essential health benefits.”
Chief Justice John Roberts gave the constitutional basis for ObamaCare when he wrote the majority opinion In NATIONAL FEDERATION OF INDEPENDENT BUSINESS et al. v. SEBELIUS, SECRETARY OF HEALTH AND HUMAN SERVICES, et al. Roberts reasoned that, “the individual mandate is not a valid exercise of Congress’s power under the Commerce Clause.” He then wrote, “that the individual mandate must be construed as imposing a tax on those who do not have health insurance.” This curious conclusion ruled that ObamaCare was constitutional because a mandate is a tax and the federal government has the right to tax.
Roberts then wrote:
The Constitution authorizes Congress to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Art. I, §8, cl. 3. Our precedents read that to mean that Congress may regulate “the channels of interstate commerce,” “persons or things in interstate commerce,” and “those activities that substantially affect interstate commerce.” Morrison, supra, at 609 (internal quotation marks omitted). The power over activities that substantially affect interstate commerce can be expansive. That power has been held to authorize federal regulation of such seemingly local matters as a farmer’s decision to grow wheat for himself and his livestock”
Robert’s uses the words “our precedents” and “farmer.” This refers to Wickard v. Filburn (1942). This Ruling greatly expanded the power of the federal government and changed our nation from a federation of sovereign states to a unitary form of government. Wickard changed previous precedents of the Supreme Court that ruled the Commerce Clause did not give our national government the power to rule the economy. Precedents are binding on lower courts but not the Supreme Court. It makes the precedents and can reverse previous precedents.
Justice Thomas had a dissenting comment:
I dissent for the reasons stated in our joint opinion, but I write separately to say a word about the Commerce Clause. The joint dissent and The Chief Justice cor- rectly apply our precedents to conclude that the Individual Mandate is beyond the power granted to Congress un- der the Commerce Clause and the Necessary and Proper Clause. Under those precedents, Congress may regulate “economic activity [that] substantially affects interstate commerce.” United States v. Lopez, 514 U. S. 549, 560 (1995) . I adhere to my view that “the very notion of a ‘substantial effects’ test under the Commerce Clause is inconsistent with the original understanding of Congress’ powers and with this Court’s early Commerce Clause cases.” United States v. Morrison, 529 U. S. 598, 627 (2000) (Thomas, J., concurring); see also Lopez, supra, at 584–602 (Thomas, J., concurring); Gonzales v. Raich, 545 U. S. 1–69 (2005) (Thomas, J., dissenting). As I have explained, the Court’s continued use of that test “has encouraged the Federal Government to persist in its view that the Commerce Clause has virtually no limits.” Morrison, supra, at 627. The Government’s unprecedented claim in this suit that it may regulate not only economic activity but also inactivity that substantially affects interstate commerce is a case in point.
The Tenth Amendment reads, “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.” The power of the national government to regulate medical care is not one of the powers in the Constitution. The Tenth Amendment Center has model legislation called the Interstate Commerce Act that could be modified to nullify ObamaCare.
The U.S. Constitution is a two party contract between the states and the federal government. When the federal government exceeds its authority, then the states have the right to nullify unconstitutional laws, especially when they are seemingly unworkable and detrimental to the citizens.
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