I almost didn’t post today because I felt that it was wrong to put anything on top of Hadley Heath’s first-rate analysis of the 11th Circuit Court of Appeals’ ruling on Obamacare.
Please scroll down and read it. But, meanwhile, I can’t stop myself, especially as Peter Ferrara has an excellent piece in the American Spectator on why Obamacare is likely to go down when the case reaches the Supreme Court. That, of course, is where this matter must ultimately be decided.
As Ferrara, who filed briefs urging that the legislation be ruled unconstitutional, notes, Friday’s ruling was the first time a federal appellate court had found the health care legislation’s so-called individual mandate unconstititutional:
More important than the ruling is what the trend is showing.
One of the two judges finding the mandate unconstitutional was a Clinton appointee. This is not good news for the administration. As everybody who doesn’t live in an igloo knows, the key consideration is whether mandating that everybody buy health insurance can be justified under the Commerce Clause of the Constitution.
Ferrara gives a nice précis on why the clause is there in the first place:
As James Madison explained in The Federalist Papers, that power was granted in the Constitution because under the prior Articles of Incorporation the various states started adopting protectionist measures against each other, disabling the national economy. Congress was actually granted the Commerce Clause power to put an end to this interstate protectionism and allow the emergence of a national economy, not primarily to grant Congress its own powers of interstate regulation (let alone the vast, unlimited powers claimed today).
Madison wrote that the Commerce Clause “grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government, in which alone, however, the remedial power could be lodged.” (The Founder’s Constitution, Vol. 2, Art. I, Section 8, Clause 3 (Commerce).)
But, of course, the clause was turned around long ago to justify federal regulation, now claimed by President Obama and the Democrats to do so without limit. The question presented in the Obamacare cases is whether there is still any limit.
In Friday’s ruling, Ferrara notes, two of the judges ruled that there is a limit and that the individual mandate exceeds that limit. They wrote:
The Supreme Court has staunchly maintained that the commerce power contains outer limits which are necessary to preserve the federal-state balance in the Constitution.
Federal judges Henry Hudson and Roger Vinson, who earlier found the mandate unconstitutional, have also maintained that the health care legislation is beyond what can be regulated by the clause.
Ferrara also writes about another suit that has received less attention: one brought by the Goldwater Institute that challenges not only the constitutionality of the individual mandate but also of the Medicare Independent Payment Advisory Board (IPAB), which gives unelected bureaucrats the right to make intimate health care decisions that more properly should be made by patients, their families, and their physicians.
Individual freedom is the underlying issue for all the legal challenges to Obamacare. Indeed Ferrara observes that Obamacare and liberty may well furnish the theme of the 2012 presidential race.
Obamacare makes Obama clear.