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President Barack Obama
Pundits left, right, and center have all but declared Obamacare health control dead of natural causes. Writes the Wall Street Journal's Gerald F. Seib, Obama "is defending a plan that doesn't really exist." Says the Washington Post's Dana Milbank, "If Death Panels Were Real, This Measure Might Need One."
Be that as it may, and despite most Congressional members getting a chance to drink a little tea during the August recess, some expect Congressional Democratic Leaders to twist both arms and parliamentary rules to force through federal health control legislation this year . That will not end the matter. You don't have to be a blue dog democrat to realize that federal health control as big a political minefeld as federal gun control.
Just like federal gun control schemes, federal health control schemes can be attacked on constitutional grounds. There are two lines of attack.
First, federal action can be attacked as violating individual rights.
Federal gun control schemes have been successfully attacked as violating the individual right to keep and bear arms. In District of Columbia v. Heller the U.S. Supreme Court struck down DC's handgun ban and inflexible trigger lock law. Subsequently at least two federal judges have that under the Second Amendment, "federal laws depriving persons who are merely accused of certain crimes of the right to legal possession of a firearm." United States v. Arzberger, 592 F. Supp. 2d 590, 602 (S.D.N.Y. 2008). Same result in United States v. Kennedy, 593 F. Supp. 2d 1221, 1231 (W.D. Wash. 2008).
Likewise federal health control schemes can be challenged as violating the individual right to privacy. As I previously here, legal experts question the constitutionality of health control rationing and regulation in under Roe v. Wade's right to privacy framework.
Second, federal health control can be challenged as beyond the power of Congress to enact and enforce.
Two federal gun control schemes have been struck down as exceeding Congress' power in recent times. In 1994 when in the US Supreme Court struck down the federal Gun Free School Zone Act in United States v. Lopez as being beyond the constitutional power of Congress to enact. Then in 1997 in Printz v. United States the Supreme Court held that the Congress cannot commandeer state law enforcement officials to conduct commercial gun transfer background checks.
Similarly regarding federal health control, legal experts concluded in a ecent Washington Post commentary that some aspects of President Obama's health control plan can be labeled "Illegal Health Reform." Notably they argue that under Bailey v. Drexel Furniture (1922) Congress cannot use its taxing power to force Americans into buying health insurance.
- Phase out that World War II era federal tax break for employers to pay for one size fits all insurance policies, and phase in above the line tax deductions for individuals who pay their own medical insurance premiums and costs. This makes health insurance both more affordable and more portable.
- Deregulate the health insurance market so that consumers could buy health insurance from insurance companies in any state. Just like deregulation of air travel, deregulaton of health markets will lower costs and expand onsumer options.
And if Congress really wants to subsidize health insurance for folks directly, it should do so first for those who earn it, like military reservists and their families who only are covered by military health insurance when called to active duty. In fact, allowing reservists to pay to join Tricare like military retirees do has the added positive military readiness externality of boosting the health of our reserve component forces.
All things considered, perhaps the Senate's Gang of 6 and those Blue Dog Democrats in the House of Representatives ought to just sit back, drink some more tea, and run a junior staffer over to the White House to let 'em know its time to pull the plug on federal health control.
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Comments
As teh bill is currently writen with teh "public option" in it, wouldn't this also violate a few "Anti-Trust" laws, in regard to monopolies, as well? In it's current form this Obamacare program has the very real potential, if not teh intent, to drive all present health insurance companies out of business, leaving the government run program as the "only game in town".
You linked my article as standing for the proposition that Drexel has been overruled. That is NOT what I said about that case. I said that the specific issue in Drexel involved Congress trying to evade a Supreme Court ruling which held that Congress could not ban or regulate child labor. After that ruling, Congress tried to accomplish this goal through the tax policy (not commerce clause). The Court held that Congress could not evade its rulings by switching from the Commerce Clause to the Taxation Power. The underlying ruling, however, that Congress cannot regulate child labor, is now overruled; to the extent that Drexel rests on a narrow reading of the Commerce Power, it cannot control the question of healthcare reform.
As for the analysis in this post, it is highly flawed, for many reasons. But readers will have to visit my blog for that analysis. I tried to link it, but cannot do so.
You linked my article as standing for the proposition that Drexel has been overruled. That is NOT what I said about that case. I said that the specific issue in Drexel involved Congress trying to evade a Supreme Court ruling which held that Congress could not ban or regulate child labor. After that ruling, Congress tried to accomplish this goal through the tax policy (not commerce clause). The Court held that Congress could not evade its rulings by switching from the Commerce Clause to the Taxation Power. The underlying ruling, however, that Congress cannot regulate child labor, is now overruled; to the extent that Drexel rests on a narrow reading of the Commerce Power, it cannot control the question of healthcare reform.
As for the analysis in this post, it is highly flawed, for many reasons. But readers will have to visit my blog for that analysis. I tried to link it, but cannot do so.
Unconstitutional? The left does not care about the Constitution, they see it as a barrier to the accomplishment of their goals. Don't rely on the Constitution to protect you the left must be vigorously challenged at every opportunity.
Unconstitutional? The left does not care about the Constitution, they see it as a barrier to the accomplishment of their goals. Don't rely on the Constitution to protect you the left must be vigorously challenged at every opportunity.
Mike this is an excellent editorial and its something I’m going to save but if history means anything the problem children in DC will skirt the law at the expense of the people.
I sort of remember people saying that the 68 GCA was un-constitutional but NO one, meaning the NRA cared since they helped write the law.
In the 1938 Miller decision a lower court sided with Miller claiming that his old short barreled shotgun (which they claimed was a sawed off shotgun but was actually made short barreled to be used as a saddle gun) should have been grandfathered in the 1934 NFA law
In the end Miller was murdered and again No one (NRA) cared that a man was stripped of his 2A right
The federal government has no business in the affairs of healthcare, their scope of work does not cover this. 10th amendment rules on this one.
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