Eviscerating ObamaCare

"What limits are there to their authority? I fear none at all. For surely it cannot be justly said that they have no power but what is expressly given to them, when by the very terms of their creation they are vested with the powers of making laws in all cases -necessary and proper; when from the nature of their power, they must necessarily be the judges what laws are necessary and proper."

-- The Old Whig,

Anti-Federalist Paper No. 46

The 78-page ruling by U.S. District Judge Roger Vinson overturning ObamaCare was as much a history lesson as a legal opinion.

Florida's lawsuit against the Patient Protection and Affordable Care Act, joined by Nevada and 24 other states, gave the judge a podium from which to offer a thorough, point-by-point lecture to Congress, the president and the American people on the historic and constitutional definition of enumerated powers in general and the Commerce and Necessary and Proper clauses in particular.

He declared the sweeping law unconstitutional because Congress has no power to require citizens to purchase health insurance or fine them if they don't.

"It is difficult to imagine," Judge Vinson wrote last week, "that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place. If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain for it would be 'difficult to perceive any limitation on federal power,' and we would have a Constitution in name only."

For his discussion of the Commerce Clause, the judge pored over key Supreme Court rulings: one from the New Deal era was expansive of congressional power and two recent ones were limiting.

The New Deal case, Wickard v. Filburn, held a farmer who grew wheat for his own consumption affected interstate commerce because if he had not done so, he would've had to purchase wheat, thus affecting the market and price for wheat.

"And, indeed, from the New Deal period through the next five decades," Judge Vinson writes, "not a single federal legislative enactment was struck down as exceeding Congress' power under the Commerce Clause power -- until Lopez in 1995."

The Lopez case struck down the Gun Free School Zones Act of 1990. The government futilely argued that the law prohibiting possession of guns near schools affected interstate commerce because "gun-related violence ... has adverse effects on classroom learning (which can result in decreased productivity) and discourages traveling into areas felt to be unsafe."

Then, in United States v. Morrison, the court declared unconstitutional the Violence Against Women Act of 1994. The court did not buy the argument "that Congress could regulate gender-motivated violence based on a syllogistic theory that victims of such violence are deterred from traveling and engaging in interstate business or employment; they are thus less productive (and incur increased medical and other costs); all of which, in turn, substantially affects interstate commerce," the judge paraphrased.

Judge Vinson's extrapolation of what could result if Congress were allowed to force citizens to buy things was almost comical.

Referring to Wickard, Judge Vinson writes, "Instead of attempting to control wheat supply by regulating the acreage and amount of wheat a farmer could grow as in Wickard, under this logic, Congress could more directly raise too-low wheat prices merely by increasing demand through mandating that every adult purchase and consume wheat bread daily, rationalized on the grounds that because everyone must participate in the market for food, non-consumers of wheat bread adversely affect prices in the wheat market."

After eviscerating the Commerce Clause argument he dismissed the Necessary and Proper Clause argument by quoting from Alexander Hamilton and citing the language of the clause itself, which states Congress has the power "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers." The key words being "foregoing Powers."

Hamilton had said in answer to critics such as the Old Whig that there would be just cause to reject the Constitution if it would allow the federal government to "penetrate the recesses of domestic life, and control, in all respects, the private conduct of individuals."

The judge also addressed the government argument that rejection of the health care reform law would have serious negative consequences if people could decline to purchase health insurance until they become sick, which would cause premiums and costs for everyone to increase and thus bankrupt the insurance industry, unless a mandate to purchase is imposed.

"Such an application of the Necessary and Proper Clause," Judge Vinson reasons, "would have the perverse effect of enabling Congress to pass ill-conceived, or economically disruptive statutes, secure in the knowledge that the more dysfunctional the results of the statute are, the more essential or 'necessary' the statutory fix would be. Under such a rationale, the more harm the statute does, the more power Congress could assume."

It was Congress that required hospitals to treat those who cannot pay. It cannot "fix" that by layering on more mandates.

Thomas Mitchell is senior opinion editor of the Review-Journal. He may be contacted at (702) 383-0261 or via e-mail at tmitchell @reviewjournal.com. Read his blog at lvrj.com.blogs/mitchell.