LA Times – why Obamacare is Constitutional
You probably are asking “who?” and wondering why it matters. He probably lives within a short drive from me, but I didn’t know he existed until today.
Mr. Amar is a Professor of Constitutional Law at Yale University. He taught Constitutional law to the acting Solicitor General of the United States, who decides which cases to appeal to the Supreme Court. Both he and Mr Katyal are ethnic Indians (the country in Asia)
Glenn Beck had Dinesh D’Souza on his show today, who is explaining the influence of “anti-colonialism” on Barack Obama. Mr D’Souza was born in India where kicking out the British has been a major influence on Indian culture. Anti-colonialists want to weaken and destroy the ability of colonial powers to exert influence on other countries. When you get that point, most of the rest falls into place.
I think Mr. Amar is glossing over the key issue. The Constitution does not currently permit the Federal government to require citizens to purchase products, not from private firms, nor even from the government. When we are required to “purchase” something involuntarily from government, that’s properly called a tax. Under Obamacare, you get fined (“taxed”) only if you are in a non-exempted class (certain religious groups are exempted) and you decided not to purchase the “government approved” product. Fifty years ago that operational principle was properly labeled fascism.
I predict Obamacare will be tested by the Supreme Court just like Social Security was, and for similar reasons. The legal basis for Obamacare requires an interpretation of the Constitution in a way that only liberal judges and politicians are comfortable with. The court originally was moving towards ruling that FDR’s New Deal programs were unconstitutional. Then FDR packed the court and got a favorable ruling. And we’ve been stuck with those parasitic programs ever since.
Mr. Amar also misses the foundational principle of the U.S. Constitution- that it’s written in plain language that all citizens can understand. When we constantly rely on lawyers and experts to “re-interpret” the Constitution for us, we’ve already lost the battle to maintain a free republic.
I agree. The warning flare I’m shooting in the air is that the Solicitor General is the person who is going to decide what to do when this hits the courts, which will happen soon. Mr. Amar obviously embraces the principle that the “commerce clause” gives the Federal Government powers to basically regulate everything without limits. It’s very likely his student closely mirrors his beliefs. Mr. Amar’s arguments are frequently cited by the Supreme Court in its rulings.
One of the cases somewhere in the courts was the issue of how the Federal Government asserts it has power over what a person does with a pond on their property. The water doesn’t come from another state, it doesn’t go anywhere, and is not connected to a navigable waterway. But because a bird might migrate across state lines and might land and drink from the pond, that gives the Federal Government enough jurisdiction to come on the property and regulate what you do with the pond. (aka “wetlands”)
A clarification about your FDR observation. The Constitution doesn’t say how many members the Supreme Court should have – that’s a power granted to Congress in the Constitution. FDR attempted to pack the court by asking Congress to pass a change to allow him to appoint an extra judge when an existing justice reached age 70 and refused to retire. Congress didn’t go along with his plan. But by his fourth term, he had been in office so long that he had appointed all 9 justices. That was part of why there was broad agreement to pass the 22nd amendment. We don’t need no stinkin’ “President for Life”.
Listen to his Fireside Chat and it’s clear just how evil FDR was.
FDR Proposes packing the Supreme Court
The text is located here
The irony is he tries to sell his plan on the basis of “original intent” and stopping judges from legislating from the bench.
Actually, Mr. Amar doesn’t gloss the issue at all. From the third page of the article: “The plan is not a constitutionally improper “taking” of property without just compensation. It is a broad tax connected to a broad set of compensating benefits.” He backs his claim of the government’s right to do so with citations of Article I, Section 8 and Section 5 of the 14th Amendment.
“General welfare” is a VERY broad term, and I believe that we’ll probably see more bills that could otherwise be deemed unconstitutional passed because of that vague term. If they include the health of our citizens in the definition of general welfare, as Mr. Amar does, they’re likely to use that argument. It makes me wonder just how many taxes we’ll see levied for redefinitions and abuses of the term.
I respectfully disagree with your first sentence. Amar did gloss over the part of Obamacare that requires individual citizens to purchase a (Federal) government-approved product from the private sector or else face fines. That’s never been Constitutionally tested before and the only place you can find any justification whatsoever for it is in the “promote the general welfare” clauses of the Constitution. But if you parse the Constitution that way and ignore the rest you end up with Marxism, not a free republic. Perhaps that’s the objective.
The real problem is (and historically always has been) the Congress. As long as they continue to read into the Constitution what isn’t there, government will grow ever more powerful at the expense of personal liberty.