From The American Thinker;
October 27, 2010
ObamaCare and the Constitutional Crisis
By T.L. Davis
The Patient Protection and Affordable Care Act (ObamaCare) has, from the moment it was proposed, inflamed passions and stirred dissent. The Virginia lawsuit against the federal government over ObamaCare centers on the Commerce Clause and whether the federal government has the ability to force an individual to participate in commerce.
Twenty other states have filed lawsuits against provisions of the law centered on the mandate and the federal burden placed on states to expand Medicare. Some aspects of the law have been ruled legal, at least in the first round of judgments. All are in agreement that the Supreme Court will be the final arbiter on the law and in a position to redraw lines of constitutionality for a significant number of other laws associated with the Commerce Clause.
The debate is also a stage-setting for the greater issues of how to read the Constitution. There are two schools of thought on the issue of constitutionality: the Literalist school and the Case Law school. Each one approaches the document from a different point of view. The Literalist reads the words and meanings as they are presented without nuance, whereas the Case Law adherent reads the Constitution as seen through the filters of case law and precedent. The words they see are not the words themselves, but placeholders for an extended file of subsequent cases and rulings.
Those are the mechanics, i.e. the catalyst of ObamaCare: the issues at hand and the schools of thought in the debate. The ramifications of this epic debate are nothing short of societal upheaval.
Under whatever guise it might come, a reckoning nears. After decades of swallowing Supreme Court rulings that seemed to baffle and confuse the general public, the people have begun to stiffen and rebel. The narrative in the mainstream media suggests that the Tea Party movement is a product of a liberal in the Oval Office or the race of the president or, as Bill Clinton says, "They never care about the deficit until a Democrat is in office."
It is an easier argument to make that the Tea Party movement is just the extension of decades of frustration among conservatives finally taking root in the economic crisis. The objections over the bailouts were not just fiscal, but constitutional. The objections to ObamaCare were not just fiscal, but constitutional. The objections to purchasing a controlling interest in private industry were not just fiscal, but constitutional. The objections to one taxpayer being forced to pay the mortgage of another were not just fiscal, but constitutional.
As one sifts through the arguments on each side of the debate over constitutionality, the commerce clause continues to rise as a point of contention. It reads, "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes[.]"
The Literalist reads this just as it is, seeking only the true definition of "regulate" to form an opinion on its application to current law. The nature of the clause, if read literally, suggests that it is intended to be external, not internal. Foreign Nations, Indian Tribes, and the States are external to the federal government and therefore dealt with as such. The purpose of the clause would then seem to be to make sure that commerce conducted by a state with any other, a foreign nation, or an Indian Tribe could be "regulated" by the federal government. The definition relied upon by the Literalist is not to regulate in the sense of unlimited regulations, but to make those dealings "regular," or known and expected. An example would be to make trade between two states free of any and all duties. The clause appears to give the federal government the authority to intervene were one state to impose a duty on goods coming in from another state, a foreign nation, or an Indian tribe.
The Case Law adherent recognizes the Commerce Clause as encompassing any number of regulations placed on the citizens of the United States, corporations, businesses, schools, state and local governments, foreign nations, Indian tribes, or any other entity whatsoever where any commerce has transpired -- or even where commerce has not transpired, but where ultimately some commerce may transpire in the future. In the case of ObamaCare, the Commerce Clause is used to force an individual to participate in commerce, against one's will, with the promise of fines and imprisonment as a motivator. Every time the authority of the federal government to regulate these actions has been challenged, case law and precedent has been established and cemented by the practice of stare decisis, which is to honor previous rulings without significant reason to revisit them.
ObamaCare and its reliance on the Commerce Clause have forced the Supreme Court to rule on which vision of the Constitution will carry the day, and that decision will lead to one of two possible futures for America. Either the Supreme Court will rule that the Commerce Clause gives the federal government unlimited authority over the lives of the people and is legally authorized to substitute its discretion for personal discretion in all matters, or it will set in motion the removal of multiple layers of case law and deny the role of federal government in almost every aspect of life in which it has already injected itself under the clause.
An unintended consequence of the Supreme Court ruling, should they rule in favor of the Case Law adherent, is that the Literalist majority of Americans might come to feel as if they are no longer free, as if they are unable to understand the rules under which they have given their consent to be governed, as if the conclusion of a long-felt oppression is complete. At this point, social upheaval is not only possible, but likely.
T.L. Davis is a novelist, a contributor to Washington Rebel, and the author of The Constitutionalist: Rights to Die For.