Health Care V Constitution

Health care repealers got a boost when Judge Henry E. Hudson of the Federal District Court in Richmond struck down the individual mandate and “directly dependent provisions” in the Patient Protection and Affordable Care Act. Virginia’s attorney general Ken Cuccinelli and solicitor general, E. Duncan Getchell Jr. have argued the powers extended in the commerce clause to regulate economic activity do not include economic inactivity.

The commerce clause states, “The United States Congress shall have power to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” I acknowledge there are compelling arguments in some situations against interpreting the constitution according to original intent. There are situations when original intent is difficult to determine. The commerce clause defines three enumerated powers: the power to “regulate commerce with foreign nations, among the several states, and with the Indian Tribes.” This distinction of three separate powers implies that there are powers regarding regulation of commerce that do not fall under these categories. If that were not the case the commerce clause would state, “The United States Congress shall have power to regulate Commerce.”

In Wickard V Filburn in 1942, Filburn, a small farmer, grew more than his quota of wheat and used the excess for personal use. Secretary of Agriculture Wickard assessed a penalty against him to which Filburn objected. In the case that followed two questions were pondered. First, can Congress regulate the production of wheat intended for personal use and not placed in interstate commerce? Second, can Congress regulate trivial local, intrastate activities that have an aggregate effect on interstate commerce via the commerce power? The Jackson court said, “yes” to both.

With these new expanded powers to regulate trivial activity on personal property deemed to affect commerce, Congress has the authority to tell individuals they can’t plant a garden or tomatoes in a topsy-turvy. They have the authority to tell grandmothers they cannot knit blankets or socks for grandchildren because the activity affects commerce. The scope of the ruling is frightening. Freedoms are more often than not lost bit by bit over time. The long term possibilities with such broad powers of regulation open the door wide to the slow destruction of freedom in America.

Still Anton Scalia took the commerce clause even further in Gonzalez V Raich. Raich had medical conditions for which she tried multiple medications, to most of which she was allergic. She grew marijuana for medicinal purposes and her doctor claimed her life was at stake without the use of medicinal marijuana. To this claim Scalia ruled in a concurrent opinion with Justice Stephens.

“Unlike the power to regulate activities that have a substantial effect on interstate commerce, the power to enact laws enabling effective regulation of interstate commerce can only be exercised in conjunction with congressional regulation of an interstate market, and it extends only to those measures necessary to make the interstate regulation effective. As Lopez itself states, and the Court affirms today, Congress may regulate non-economic intrastate activities only where the failure to do so “could … undercut” its regulation of interstate commerce. ... This is not a power that threatens to obliterate the line between “what is truly national and what is truly local.”

This ruling asserts that a tangential relationship to government regulation allows the federal government to step in and exercise unlimited power under the commerce clause. Scalia establishes the power to regulate non-economic intrastate activities beyond the scope of interstate commerce “where the failure to do so “could … undercut” its regulation of interstate commerce.” Under this premise, any act interpreted to “undercut” the market then becomes subject to regulation. Any act that affects any market is then subject to regulation and any action we do affects the market. What then is beyond the scope of regulation?

In contrast to Scalia’s concurrence, Justice Thomas also wrote a separate dissenting opinion, stating in part:

“If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States. This makes a mockery of Madison's assurance to the people of New York that the "powers delegated" to the Federal Government are "few and defined", while those of the States are "numerous and indefinite."

We would do well to recall how James Madison, the father of the Constitution, described our system of joint sovereignty to the people of New York: “The powers delegated by the proposed constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite . . . . The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”

Relating to the health care debate, if the individual mandate is ruled constitutional, either by interpreting inactivity as activity as Attorney General Holder advocates, or inactivity is ruled to fall under the commerce clause’s broad powers, then the commerce clause in relation to intrastate commerce ceases to have even a theoretical limit. Why then would the constitution stipulate among the federal government’s enumerated powers that “The United States Congress shall have power to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes,” if it meant it has total power to regulate every form of commerce?

If the specific powers enumerated in the commerce clause have no boundaries, then why the specificity in the Constitution?

If government has the power to tell you what activities you can and cannot participate in and what activities you cannot abstain from is there any freedom left? Without Constitutional grounds to reject any government intervention on economic activity, what separates us from serfs? If abstaining from health insurance is unlawful then the government has the authority to regulate health? When activity or inactivity relating to health care falls under the commerce clause, what stops government from outlawing salt, skateboarding or sports? Furthermore, with the court justifying our loss of freedom what recourse do we have? The difference between the Chinese economic model and ours becomes a matter of shades of gray. What separates us from China besides the level of intrusion the government has exercised?

Without the right to choose how can we hold the right to life, liberty and pursuit of happiness?

Millions have died throughout history fighting for freedom. It is insane that we would give it up for anything at all, much less for legislation half of Americans oppose.

This debate is much larger than health care. It is about the powers of government and the future of democracy. As Benjamin Franklin famously said, "Those who would give up Essential Liberty, to purchase a little Temporary Safety, deserve neither Liberty nor Safety." s administration has claimed success in every circumstance on the unprovable, what might have been. How bad is it now? It would have been worse. They have fallen short by their own standards in every bar they have set and created metrics to absolve themselves of their own ineptitude. This is all at the cost of the American public. If ignorance is bliss, I'll have a double shot.

Health Tyrants

Do federal, state and local governments have a right to intervene in our lives when it comes to choices affecting our health? Recently, the San Francisco Board of Supervisors voted to forbid restaurants from giving gifts with meals that contain too much fat and sugar, a measure aimed at McDonald’s Happy Meals. The reasoning of these tyrants is to prevent McDonald’s from using toys to lure children into liking foods the board deems non-nutritious. Fortunately, San Francisco’s mayor, Gavin Newsom, by no means a libertarian, has threatened to veto the measure saying, “Despite its good intentions, I cannot support this unwise and unprecedented governmental intrusion into parental responsibilities and private choices.”
If the board of supervisors gets away with this intrusion into parental responsibilities and choices, we can bet the rent money that they will not stop with McDonald’s Happy Meals. The reason is that Happy Meals are not the only contributors to child obesity.
What and how much they eat at home, what time they eat and how much they exercise play a role. When San Francisco’s Board of Supervisors see that their Happy Meal ban has not produced the desired results, they’ll seek to widen their reach. That might include laws that set purchase limits on non-nutritious items in the city’s grocery stores. Depending on family size, there would be a limit on the purchases of delights such as Twinkies, Pop Tarts, lard, salt and other threats to good health. Maybe the Board of Supervisors would issue ration stamps that a person would need in order to purchase foods that threaten obesity.
There will be other challenges for San Francisco’s Board of Supervisors. Not every California city has banned Happy Meals. Happy Meals lovers can just go across the Bay Bridge into Oakland or the Golden Gate Bridge into Sausalito to dine on Happy Meals or smuggle them into San Francisco. Maybe a Happy Meal black market would emerge.
That means the board of supervisors might make random stops of cars coming into the city and have its police make Happy Meal arrests.
You say, “Williams, you’re really stretching it; they’d never go to those extremes!” There’s no limit to what do-gooder zealots will do to accomplish their mission. Think back to the 1964, the time of the “First Surgeon General Report: Smoking and Health.” Back then, tobacco zealots called for “reasonable” measures such as warning labels on cigarettes and restrictions on advertising. Emboldened by their success in getting these relatively benign measures, tobacco zealots moved on to seeking bans on smoking on airplanes and airports; suits against tobacco manufacturers; confiscatory taxes on cigarettes; denying child adoption to smokers; bans on smoking in bars, restaurants and workplaces; even bans on outdoor smoking such as in stadia, public beaches and city streets. Had the tobacco zealots called for all of these measures, as a total package back in 1964, they would not have even gotten warning labels on cigarettes. That’s the tyrant’s strategy: Attacking people’s rights to property and liberty on a piecemeal basis reduces resistance.
We Americans have given federal, state and local governments the right to interfere with any aspect of our lives when it comes to issues of health. So should we be surprised when an emboldened Congress enacts Obamacare, even though most American were against it, that not only mandates that we purchase health insurance but will eventually control virtually every aspect of our health care? Should we be surprised when government tells us what food to give our children? Should we be surprised when government taxes soft drinks in the name of fighting obesity? Should we be surprised when governments order restaurants not to serve foie gras or cook with trans fats? If you think government has the right to look after our health, how far would you have it go? How about a congressional mandate for morning calisthenics, eight glasses of water a day and eight hours of sleep each night?

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