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The Constitutionality Of ObamaCare

A lot of people have been raising the question on whether or not ObamaCare is actually constitutional. Does that document -- which spells out what powers the federal government does and does not have -- really grant the authority to compel each and every single American to carry health insurance?

I consider myself an amateur Constitutional scholar, and I thought not. But then I remembered that President Obama is a Constitutional scholar (albeit with a nonexistent paper trail documenting his scholarship), so I realized that I was just not looking hard enough. So let's go through the Constitution, line by line, and see where the authority for ObamaCare's mandate derives.

Hey, right off the bat, I got something. It's right in the Preamble!

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

(emphasis added)

I bet "promote the general Welfare" includes "demand people take steps to preserve their own specific Welfare, whether they want to or not" comes from that.

But that's a hell of a slim reed -- skinnier than Obama's skin. (I agree Dennis Miller when he observed "it isn't the color of Obama's skin that bothers me, but the thinness.") Let's keep going.

Hey, this isn't quite on topic, but the first line of Article I, Section 7 says "All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills." Didn't ObamaCare -- with its new taxes -- start in the Senate?

Never mind. Let's get back to digging.

OK, here's Article I, Section 8 (Max Klinger would be proud of that association). It starts off with this:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow Money on the credit of the United States;

ObamaCare's got THAT in spades. It's got Taxes, Duties, fees, and whatnot all over the place, and it will likely involve borrowing money. I doubt the Founding Fathers ever imagined a federal budget -- let alone a deficit -- in the trillions, but they didn't put a limit on digits in those numbers.

And there's that "general Welfare" thing again, this time coupled with "provide for." Considering how fewer people there were at the time that the Constitution was crafted, it's surprising that they didn't include "every specific individual" instead of "general," but that was probably an oversight.

OK, that covers how the government can consider health insurance for every American as part of their Constitutional mandate. What about the mandatory part? That's the real sticking point.

Hey, look at the very next line in Section 8! (Klinger, get rid of the dress. You're not getting out of the Army that way.)

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

This is what is commonly referred to as the "Interstate Commerce Clause." It says that the federall government has the final say in any commerce that crosses states lines, and no state can put limits on interstate commerce in excess of purely intrastate business.

I guess it's really not that much of a stretch to go from "the federal government can regulate interstate commerce" to "the federal government can compel each and every citizen to buy a product from a company.

An obvious solution comes to mind. Simply get rid of private insurance companies entirely, and make the federal government the provider of health insurance. That changes the whole thing into a simple tax situation.

But that can't happen, because President Obama promised that "if you like your current insurance, you can keep it." I rather like having private insurance, and would like to stay off the government plan. And we can trust Obama's promises -- after all, it's not like Obama's promises come with expiration dates or something.

I've skimmed the rest of the Constitution, and can't seem to find anything else that might apply. But again, I'm just an amateur.

Help me out here, folks. I can't imagine that something as big as ObamaCare, which will fundamentally reshape our very society, could be built on such flimsy Constitutional grounds as I've discovered so far.

Could someone point me in the right direction?


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Comments (24)

You must have missed "From ... (Below threshold)

You must have missed "From each according to his ability, to each according to his need." Go baack and reread that.

/sarc

"because President Obama... (Below threshold)
914:

"because President Obama promised that "if you like your current insurance, you can keep it."

It's nice of the knucklehead in chief to let Me know what I can or cant do!

I don't have insurance knucklehead and you aint's gonna makes Me attain some.

"I've skimmed the rest of the Constitution, and can't seem to find anything else that might apply. But again, I'm just an amateur."

If you've skimmed it, you are 100% more knowledgeable than lacwit! He's still trying to assemble a preamble.


Jay, you ignorant ______. ... (Below threshold)

Jay, you ignorant ______. Constitutionality is not determined by the words in the Constitution but rather by what five of the Justices want to be constitutional. In a twist of 'verdict first, verdict afterwards', this is 'decide first, justify afterwards', where they decide what the outcome is to be (for example, invalidating state laws that ban sodomy or limiting the President's ability to conduct war), then search for some basis to support their desired outcome.

And they all do it, it's not limited to just the liberal activist judges, the conservative justices had no problem making things up as they went along in order back in 2000.

So as far as Obamacare is concerned, if 5 out of 9 like Obamacare, Obamacare will be found to be constitutional. If only 4 like it, it won't be.

"But then I remembered t... (Below threshold)
P. Bunyan:

"But then I remembered that President Obama is a Constitutional scholar (albeit with a nonexistent paper trail documenting his scholarship), "

A less verbose, but equally accurate way of saying that would be: "But then I remembered that President Obama is an alleged Constitutional scholar."

As far as a Constitutional justification for Obamacare-- there isn't one. However the ship of our federal government being constrained by the Constitution sailed long ago, sadly.

I don't think it matters. I... (Below threshold)

I don't think it matters. I mean, despite what the law just passed says, we all know that was passed in an earlier time, and if the framers of that law knew what we knew now, they would understand the need to interpret the law as a living document, to be kept current with the times. So it's certainly the case that the law says that we all have to purchase insurance from an exchange, but that clearly was to make sure that everyone was able to get the insurance they want. So the intent of the law is surely that we can buy insurance from anywhere we want, or not buy it if we don't want. Right?

Are you still using that ol... (Below threshold)

Are you still using that old, outdated version that evil dinosaurs like Antonin Scalia and Clarence Thomas read? You need a copy of the modern "Living Constitution" with the Complete Annotated Penumbras. I think it's somewhere in the fourth or fifth Emanation.

Scholar or not, I believe o... (Below threshold)
mag:

Scholar or not, I believe obama has a disregard for the constitution, for the flag, for most of the American people, for our military and for America itself. His pores reek with dislike.

It is up to us, to make sure he does not forget what the constituition stands for by getting him and his type out of office as soon as possible.

"We find unity in our incre... (Below threshold)
jeff:

"We find unity in our incredible diversity, drawing on the promise enshrined in our Constitution: the notion that we are all created equal..."

Obama doesn't even know the difference between the Constitution and the Declaration of Independence ...

By congresses interpretatio... (Below threshold)
Thomas Jefferson:

By congresses interpretation of the Constitution, the federal government could force us to buy anything : a certain brand of automobile, a type of gum, anything they declared for the common good. That's hokum.

As for car insurance...no one has to buy it.

Same goes for home insurance.

And if we really want to get down to it, what about Roe VS Wade?

Doesn't each woman have the right to decide about her own body?

How can she ( or he ) be forced to buy something that gets between personal choice and one's physician?

Wouldn't it be a piece of irony if Roe VS Wade was used as a precedent to overthrow this bill?

Jay TeaThe part ab... (Below threshold)
retired military:

Jay Tea

The part about congress can force us to buy health care insurance is right after the part about abortion is an absolute right and right before the part that says the government can take away our firearms because they want to. See it is easy. Just follow the chronological order of things and you will find them easy enough.

You need a copy... (Below threshold)
You need a copy of the modern "Living Constitution" with the Complete Annotated Penumbras.
I think you mean The Postmodern Living Constitution (with the Complete Emanated Penumbras. Written by justices Brennan, Blackmun and Marshall (not John).
"Obama doesn't even know... (Below threshold)
914:

"Obama doesn't even know the difference between the Constitution and the Declaration of Independence ..."

Yes, However, He knows the difference between His malicious presidency, "rules for radicals" & Jebidiahs stinky church of hate screed pews.

ZERO.......

"Obama doesn't even know the difference between the Constitution and the Declaration of Independence ..."

Yes He doesnt!! Its written right between those dumbo ass ears!

TJ: Obamacare isn't inconsi... (Below threshold)

TJ: Obamacare isn't inconsistent with RvW, there's no requirement in Obamacare that anyone actually use the health insurance they're required to buy.

"TJ: Obamacare isn't inc... (Below threshold)
914:

"TJ: Obamacare isn't inconsistent with RvW, there's no requirement in Obamacare that anyone actually use the health insurance they're required to buy."

Thanks steve.. So its kind of like Social Security!! Accept in Barry's minuscule self obsessed mind, this one is all about his vain egotistical need to take from others to replace the self esteem He never received as an addling child. Why should We all pay for His parents fuck up?

Oh, I know, because there are at least 50 million other fuck ups out there of voting age to.


Jay: You overlooked all tho... (Below threshold)

Jay: You overlooked all those umbras and penumbras that SCOTUS so conveniently found in 1973 to regulate states rights on social issues.

Until '92 (U.S. vs Lopez), ... (Below threshold)
_Mike_:

Until '92 (U.S. vs Lopez), it appeared that anything the Federal Gov't wanted to do was possible under the Commerce Clause.

I haven't seen an argument for the basis for the Constitutionality of Obamacare. I'd also be interested in seeing that argument.

I am not sure bankruptcy is... (Below threshold)
DaveD:

I am not sure bankruptcy is consistent with promoting the general welfare.

Dr. Williams has an excelle... (Below threshold)
Gmac:

Dr. Williams has an excellent article this week on this very idea, and he rips the Health Care Bill to shreds over it's unconstitutionality.

Could someone point me in t... (Below threshold)
GarandFan:

Could someone point me in the right direction?

Barry has Ayers working on those 're-education' camps. "Invitations" will be forthcoming shortly.

Just the teacher in me, but... (Below threshold)
Don L:

Just the teacher in me, but since too much of America watches those stupid TV contest shows about singing and dancing and 5th grade educational information, and if we wanted to stop the left, we need a hit TV program called "What does the Consitution really say?"

Why, Much of America would have the darn thing memorized and texted across state lines in a nano-second -just to win the million bucks. That's a lot cheaper than these trillion dollar deficits....

If the goal of Obamacare is... (Below threshold)
kevino:

If the goal of Obamacare is to "promote the general Welfare", then it will succeed. Obamacare is a huge set of taxes and regulations on employment. Taxing employment means will get less employment, and that means more people on welfare.

...we need a hi... (Below threshold)
...we need a hit TV program called "What does the Consitution really say?"
I'm for that. Also, instead of "Are You Smarter than a Fifth Grader?", how about "Are You Smarter than the President Thinks You Are?"
That must be it, Kevino. W... (Below threshold)
P. Bunyan:

That must be it, Kevino. When Obama read "promote the general welfare" he must've thought it said "put eveybody on welfare". It's a rare form of dyslexia called Marxlexia.

I don't intend this as a se... (Below threshold)

I don't intend this as a selfish plug, but here's a post I offered on the 12th, discussing the Constitutionality of this matter of insurance reform:

http://www.lifeinsuranceonmyterms.com/health-insurance/states-for-freedom-1

(The discussion of the Constitution and federal powers comes about halfway down.)




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