By Howard Myers
“Obamacare is Unconstitutional —And What Do We Do If It’s Struck Down?”
Tim Sandefur kept the crowd interested and engaged at the Hall last night. His knowledge of constitutional law and lively way of presenting it made for a very enjoyable and educational evening.
With the government growing so much the Pacific Legal Foundation is keeping very busy. Primarily they sue the government on behalf of citizens and small businesses.
Regarding Obamacare, why force people to buy insurance? It is to subsidize insurance for people that are already sick. It is like forcing insurance companies to sell fire insurance to people whose house is already on fire. The government’s argument is that they are forcing people to buy insurance before they need it, but the people are not forced to use the insurance.
The government’s argument using the commerce clause says the right to regulate commerce means they can force people to engage in commerce. The founders knew what regulate meant when they said the government had the power to regulate commerce, both foreign and domestic. If regulate meant they could force people to buy something then we could force Japan to buy our cars.
Some of these arguments are just common sense but a common sense argument doesn’t go very far in a court of law. As it is the federal government regulates everything from the thickness of catsup to the angle of the chair in your office.
Tim related how the government tried to use the commerce clause to support a law that said you could not possess a firearm within a certain distance to a school. They argued that the children would grow up to be an important part of commerce and their right to be educated in an environment free of firearms impeded their future participation in commerce. (An example where common sense has no place in the court room.)
He commented that you have to go to America’s top colleges for years to misunderstand the constitution. If it is not included in Article I section 8 of the constitution Congress does not have that power.
Tim went to great lengths to attend the oral arguments for and against Obamacare. He felt the criticism of the Solicitor General were largely unfair. The SG did a good job but had such a poor case to make. The current administration has so little understanding of the constitution.
The question comes up; can a state sue the federal government? Some states have passed a Healthcare Freedom Act to protect them from Obamacare but they have to show they are being injured by Obamacare before they can sue. Half the states have sued with various results.
Tim feels that the way the government is structured it guaranteed gridlock, which is one of their greatest gifts.
One of the provisions of Obamacare is to require states to greatly expand the eligibility for Medicaid and sign people up for it. If they fail to do this they lose all federal aid which for some states is ½ their budget. This brings up the argument if a state is being coerced by the federal government. The feds can bargain with the states and offer incentives but when does this cross the line to coercion?
Tim cited a case where federal highway funds were being withheld if the drinking age were not raised to 21 but this case was lost because the amount withheld was a relatively small amount. However the court did say if the amount were large enough it could be considered compulsion. This is a good argument against the fed regarding the arm twisting they are doing with Obamacare.
The IPAB (Independent Payment Advisory Board) is an agency set up to decide how much health care money will be spent and their decisions become law without input from Congress or the president and is exempt from congressional and judicial review. The agency is set up so the law establishing it cannot be repealed. When he signed the bill the president said it could be repealed, so what Tim asked, does that mean?
The US Supreme Court is likely to render their verdict on or before June 28th. What will happen if it is overturned? If the individual mandate is overturned it won’t make big changes in constitutional law.
How does free enterprise work? Well, Tim said, I love Del Taco, and anywhere I go I can get a Del Taco. I can just look on my iPhone and find the nearest Del Taco and within minutes I can get a chicken burrito that is delicious, healthy, safe, and inexpensive. And if they don’t satisfy me I can go to Taco Bell and get what I want. Why does it work this way? Because Del Taco isn’t run by the federal government.
Getting back to Obamacare Tim feels that if they strike down any part of Obamacare they will strike down all of it. If they strike down only the individual mandate the parts left would be something nobody in Congress voted for, and in fact something that could not have passed, therefore he doesn’t see them striking down part and leaving part.
The Q&A session was also lively and extensive. After Tim left the stage he spent the next half hour in energetic discussions with members and guests.
It is worth noting that during his presentation Tim quoted long sections of the US Constitution and Declaration of Independence without a teleprompter. Tim Sandefur’s knowledge of constitutional law and lively way of presenting it made for a very enjoyable and educational evening.
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