It is far time that there be a Politician who realizes what is actually important in the values and opinions of the people. I think we need to thank him.
Attorney General Bill McCollum plans to litigate ObamaCare into the morgue.
He denies political motives, a rather humorous assertion given press releases like this from his gubernatorial campaign staff: "Attorney General McCollum stands up for Floridians, ready to challenge Democrats' unconstitutional health-care reform.''
Is that a legal brief, Bill?
But even if this taxpayer-funded lawsuit amounts to public financing of his campaign, it is not a frivolous challenge. It may well succeed, given the current makeup of the U.S. Supreme Court.
The lawsuit challenges the mandate that everyone buy health insurance or face a fine. Republicans call it an unprecedented federal intrusion into individual and states' rights. Big Government is forcing you to buy a service from a private provider, whether you want to or not.
"The U.S. Constitution grants no authority to Congress to compel citizens to purchase health insurance when those citizens choose not to enter the health-care market." McCollum says.
Maybe, or maybe not.
The government certainly can tax people. Massachusetts has a similar insurance mandate for its residents, which so far has held up to legal challenges.
Conservatives argue that states have rights the federal government does not. They also argue that the mandate, along with billions in added costs the states would have to absorb in expanded Medicaid benefits, is an infringement on the powers of states, which violates the 10th Amendment.
Most of the justification for all this federal intrusion revolves around the Commerce Clause.
The Commerce Clause gives Congress the right to regulate commerce between states. When the founders came up with it, I assume they were concerned about things such as New Jersey imposing a tariff on cranberries imported from Massachusetts.
But commerce is a big-tent word — and it got a lot bigger underFranklin Roosevelt's New Deal.
Just about everything involves interstate commerce these days. If you make widgets that are sold across state lines, or if you make nuts and bolts that are used in the widgets, you are engaged in interstate commerce.
Congress used the Commerce Clause to pass the Fair Labor Standards Act — which, among other things, sets minimum wages. A McDonald's worker may not sell his burgers across state lines, but he is covered because his company does.
Using the Commerce Clause, the federal government set crop quotas to prop up prices. In a landmark 1942 ruling, a farmer was prohibited from growing wheat to feed his own chickens because that would reduce the amount of wheat he would buy on the open market, thereby affecting interstate commerce in wheat.
Using the Commerce Clause, Congress banned racial discrimination in public accommodations in the 1964 Civil Rights Acts.
It's hard to argue with some of the mission creep.
But conservatives argue that the Commerce Clause has become a clause without borders. It has given the federal government carte blanche to meddle in and control our affairs.
The Federalist Society argues that in expanding the clause to health care, "Congress would have to explain how not doing something — not buying insurance and not seeking health-care service — implicated interstate commerce."
Here is how: The people least inclined to buy health insurance are younger people who think they don't need it. When they do, they can wind up in emergency rooms, where they often can't afford the bill. The hospitals and doctors then must recoup their losses by charging everybody else more.
Mandating insurance drives down health-care costs for everybody. It also allows the government to ban discrimination against people with pre-existing conditions. Without the mandate, people simply could go without insurance until they get sick. Then they buy a policy, raising the cost for everybody else in the system.
If the government can limit how much wheat a farmer can grow to control costs, it can require people to buy health insurance to control costs.
"The federal government can use interstate commerce to improve society, or hold up the price of wheat or give health care," says Bruce Jacob, a dean emeritus at the Stetson University College of Law. "Based on the law as it now exists, I don't think this challenge is going to win."
But the way the law exists now may not be how it exists if the current U.S. Supreme Court gets this case. The court has been throwing out precedents on everything from partial-birth abortion to the McCain-Feingold campaign-finance law.
Given its antipathy to increased federal power, there's no reason to think the court would hold current interpretations of the Commerce Clause sacrosanct.
Such a ruling is three years or more away, given the speed of the appellate process.
If the court did toss the mandate, that would not negate ObamaCare, just one of the funding mechanisms.
Who knows what the world will be like then? ObamaCare could be repealed, amended or become so wildly popular that Bill McCollum will get hammered for undermining it.
Friday February 11, 2011, 3:51 am
It may not be simple to grasp, yet I have to hold that the National Health care plan is flawed in many ways. One way is that it shifts the funding for the poor more from the wealthiest onto the middle class. This allows them to apply more economic pressure on the system to force everyone onto lower and lower standards. Another is a bit more complex. Ideally the states and its citizens are the proper entities to manage social programs. If the was a organizing entity that would help the states work together as a whole it could also Constitutionally work with foreign states agreeing to their standards. Such and entity could also help businesses have common standards internationally more readily without generating a coersive environment of a world organizatons like the UN that may not be behaving very sensitively to that country's needs.
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Shut hellish Beirut
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