Killing Our Constitution: Judge Declares ObamaCare Constitutional

From The New American and Liberty Pulse:

Killing Our Constitution: Judge Declares ObamaCare Constitutional


Written by Selwyn Duke

Friday, 03 December 2010 14:50

0Man’s power to rationalize truly seems to know no bounds. And a good example of sideshow-quality intellectual contortions is brought to us by U.S. District Judge Norman K. Moon, who on Tuesday dismissed a Liberty University lawsuit challenging the constitutionality of ObamaCare. In a 54-page opinion, Clinton appointee Moon used the following rationale to claim that the health-scare bill was allowable under the Commerce Clause:



The conduct regulated by the individual coverage provision — individuals’ decisions to forego purchasing health insurance coverage — is economic in nature… Nearly everyone will require health care services at some point in their lifetimes, and it is not always possible to predict when one will be afflicted by illness or injury and require care. The “fundamental need for health care and the necessity of paying for such services received” creates a market in health care services, of which nearly everyone is a participant…Regardless of whether one relies on an insurance policy, one’s savings, or the backstop of free or reduced-cost emergency room services, one has made a choice regarding the method of payment for the health care services one expects to receive. Far from “inactivity,” by choosing to forgo insurance, Plaintiffs are making an economic decision to try to pay for health care services later, out of pocket, rather than now, through the purchase of insurance. As Congress found, the total incidence of these economic decisions has a substantial impact on the national market for health care by collectively shifting billions of dollars on to other market participants and driving up the prices of insurance policies.



Next up in the Norman Moon Show: The judge tries to fit a two-pound salami in a one-pound bag while simultaneously talking chicken off the bone.



Liberty U’s point is that the Constitution’s Commerce Clause allows the federal government to regulate interstate economic activity, not economic inactivity. Moon is trying to refute this by saying that since most everyone will require medical care at some point, those who refrain from buying insurance have been proactive: They have made a decision to pay for those medical services later on.



So now a “decision” is activity? Newsflash: When the Commerce Clause was crafted, it wasn’t intended to cover brain activity (although I can see why such application wouldn’t worry progressives. People usually only trouble over the regulation of things they’re actually involved in).



Moon then goes on to say that the consequence of this collective brain activity is that society at large ends up paying billions of dollars for the health care of those who, when sickness comes, cannot foot their own bill. Note that I wrote “ends up paying” not “having to pay.” You see, such a consequence isn’t inevitable.



And that is the point. It is true that having people who cannot afford medical care is a problem; it is also true that forcing other people to pay their bills is a problem. But the latter isn’t a problem of the free market.



It’s a problem of socialism.



And the Constitution wasn’t meant to allow for the federal imposition of socialist policy or what is considered remedy for same.



Some may ask at this juncture, “What are we supposed to do, just let people die in the streets?!” But that is a separate issue. When addressing a problem in our constitutional republic, two different questions must be asked in the following order: What would be a practical and moral solution? Then, is it constitutional? If it isn’t, another remedy must be found. And what if the Constitution stands in the way of what’s truly a moral imperative?



That’s what the Amendment Process is for.



Now, there is another perspective, but contrary to what living-document advocates claim, it’s not rightly called a legal philosophy.



It’s called a criminal attitude.



Because the Constitution — whose very purpose is to limit the power of government — is the supreme law of the land. Thus, when public officials violate it by twisting its meaning to serve their own ends, they become outlaws and cease to be legitimate agents of government. Viewing the Constitution as a living document guarantees a dying republic.



This brings us back to Judge Moon and his ruling. If the government can mandate individual economic activity based on the perceived consequences of collective economic inactivity, where does it end? For instance, we all will die, and others (sometimes even the state) often have to foot the bill for our funerals. Perhaps we all should be forced to buy death insurance. Or maybe it should be mandated that we all work more hours to increase national productivity or, addressing actual activity, that we work fewer (as France mandated) so more people can find employment. The fact is that most things we do — or fail to do — amount to “economic decisions” whose “total incidence…has a substantial impact on the national market.”



And this is the point naïve leftists (not the Machiavellian ones who want to play puppeteer) miss. In their childish zeal to realize one legislative victory, they strengthen a precedent that will be — and has already been — used to remove freedoms they hold dear. Take the Kelo eminent domain decision, for instance. Do you realize that the economic-impact argument lay behind it? After all, it allows the government to force private citizens to sell their land to other private citizens who will put it to “better economic use.” The idea is that if the 85-year-old widow refuses to sell her home and the hapless congregation next door refuses to sell its church to a rich developer who wants to build a strip mall, the area loses out on jobs and the local government loses tax revenue. Hey, when the little people refuse to sell their property, it's an “economic decision” whose “total incidence … has a substantial impact” on the market.



The reality is that the economic-impact principle would give the federal government almost unlimited power to control our lives. Thus, if we accept it, there’s no point in even having a constitution.



Unfortunately, this would suit many of our “leaders” just fine. Just consider some of their responses when asked about the constitutionality of ObamaCare. Congressman Pete Stark (D-Calif.) said at a town-hall meeting, “The Federal Government, yes, can do most anything in this country.” At another such gathering, Phil Hare (D-Ill.) admitted, “I don’t worry about the Constitution on this, to be honest.” And when a reporter posed the constitutionality question to Nancy Pelosi, she scoffed, “Are you serious?! Are you serious?!” Well, I guess the American people aren’t serious enough. After all, while Hare lost his re-election bid, Stark and Pelosi were returned to office.



And I’d like to really get serious. If these politicians are so enamored of extralegal actions, perhaps we should take some ourselves that would encourage them to rethink their approach. For example, if the feds won’t recognize states’ rights, the states should refuse to recognize the feds’ rights. Then, another option is implied in one of G.K. Chesterton’s laments: “It is terrible to contemplate how few politicians are hanged.”