In this week's Liberty Update we highlight the potentially catastrophic threat of H.R. 3, the healthcare…
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Quote of the Day: WSJ on H.R. 3, Biden & Pelosi's Dangerous Healthcare Bill

In this week's Liberty Update we highlight the potentially catastrophic threat of H.R. 3, the healthcare and drug price control bill that Joe Biden and Nancy Pelosi are attempting to rush through Congress.  The Wall Street Journal helpfully offers further insight this morning on how H.R. 3 would threaten lifesaving U.S. pharmaceutical innovation and leadership, including on things like the Covid vaccines:

 

Companies that refuse the government’s price must pay a 95% excise tax on all revenue they generate from that drug in the U.S.  They’d also have to offer the government price to private insurers.  There’s no “negotiation” when a gun is pointed at your head.  A new study in the Journal of the American Medical Association estimates that drug spending in the U.S…[more]

September 17, 2021 • 12:55 PM

Liberty Update

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ObamaCare Takeaway: A Net Win Constitutionally Print
By Timothy H. Lee
Thursday, June 28 2012
Federal power is not unlimited under the commerce clause after all.

Years from now, here is the proposition for which law students will study this week’s Supreme Court ObamaCare decision:  Federal power is not unlimited under the commerce clause after all. 

Granted, the United States Supreme Court engaged in a contortion worthy of Cirque de Soleil in upholding ObamaCare’s individual mandate as a “tax,” despite the fact that Obama himself denied it was a tax and Congress did not offer it as such. 

In a September 20, 2009 interview with ABC News’s George Stephanopoulos, Barack Obama stubbornly and unequivocally denied that ObamaCare’s individual mandate was a “tax”: 

George Stephanopoulos:  That may be, but it’s still a tax increase. 

Barack Obama:  No.  That’s not true, George.  The – for us to say that you’ve got to take a responsibility to get health insurance is absolutely not a tax increase. 

Stephanopoulos:  But your critics say it is a tax increase. 

Obama:  My critics say everything is a tax increase.  My critics say that I’m taking over every sector of the economy.  You know that.  Look, we can have a legitimate debate about whether or not we’re going to have an individual mandate or not, but… 

Stephanopoulos:  But you reject that it’s a tax increase? 

Obama:  I absolutely reject that notion. 

So much for Obama’s persistent claim that he won’t raise taxes on anyone earning under $200,000 annually. 

Regardless, conservatives and libertarians are understandably disappointed in the Court’s bottom-line decision.  As a constitutional principle on the most important issue before the Court, however, the long-term takeaway is a net win. 

Namely, the text of the Constitution still matters.  The interstate commerce clause is not a dead letter, and Congress cannot simply compel whatever it wants without limitation.  And the form of government established by our Founding Fathers survives. 

That is not simply lipstick on a pig, nor an attempt to locate a Christmas pony buried underneath Ronald Reagan’s proverbial heap of manure. 

After all, consider this:  It is beyond significant dispute that Obama and the Pelosi-Reid Congress could have passed ObamaCare and its individual mandate as a “tax.” *  The text of Article I, Section 8 of the Constitution explicitly provides that “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States.”  Thus, the federal government can tax and spend on behalf of almost anything it considers to advance the nation’s general welfare, even if its power to more crudely compel or prohibit actual behavior beyond that spending carrot is more limited. 

Accordingly, ObamaCare’s individual mandate wouldn’t have even been before the Court had Obama and the Pelosi-Reid Congress honestly admitted that it stemmed from the federal power to tax and spend.  Of course, they couldn’t have garnered sufficient votes to pass the bill had they acted more ingenuously. 

Instead, they attempted to justify it under the Constitution’s commerce clause, which grants the more limited power to regulate actual goods and services in interstate commerce.  To suddenly allow the federal government to compel involuntary behavior by individual citizens, only to in turn rationalize regulation of that behavior, would have rendered the text of the Constitution meaningless and superfluous.  As if the Founding Fathers had inserted that commerce clause limitation on federal authority for no reason whatsoever? 

As ObamaCare opponents rightfully pointed out, such a ruling would have left no limiting principle over federal authority to compel behavior among its citizens.  To cite two common hypothetical illustrations, the government could from today forward demand that every citizen eat a bucket of broccoli each day, or purchase a new automobile every year for the benefit of labor union leaders. 

Thankfully, the Court refused to accept that constitutional argument. 

As Justice Roberts held, in a passage worth highlighting, allowing ObamaCare under the commerce clause would corrupt the Constitution that our Founding Fathers established: 

“The Constitution grants Congress the power to ‘regulate Commerce.’  Art. I, § 8, cl. 3 (emphasis added).  The power to regulate commerce presupposes the existence of commercial activity to be regulated.  If the power to ‘regulate’ something included the power to create it, many of the provisions in the Constitution would be superfluous…  People, for reasons of their own, often fail to do things that would be good for them or good for society.  Those failures – joined with the similar failures of others – can readily have a substantial effect on interstate commerce.  Under the Government’s logic, that authorizes Congress to use its commerce power to compel citizens to act as the Government would have them act.  That is not the country the Framers of our Constitution envisioned.”

Roberts concluded: 

“The Commerce Clause is not a general license to regulate an individual from cradle to grave, simply because he will predictably engage in particular transactions.  Any police power to regulate individuals as such, as opposed to their activities, remains vested in the States.”

That is the most critical long-term issue from the 30,000-foot level.  Years from now, had the Court ruled the other way, the case would stand for the proposition that there is no effective limit to federal power whatsoever, that the actual text of the Constitution became even more meaningless in the hands of partisan judges. 

Instead, it will most fundamentally stand for the important principle that federal power is not unlimited under the commerce clause rationalization. 

That was the most important thing.  It was a net win. 


* Editor's Note:  The sentence marked above includes the words "and its individaul mandate," which should have been ommitted for reasons fully explained here.

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