Our health care watershed - Tucson Local Media: Columns

Our health care watershed

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Posted: Wednesday, March 28, 2012 4:00 am

At long last, On March 26-28, the United States Supreme Court is hearing what has become known as “Obamacare.”  The case is the result of 26 states filing suits in federal courts, and differing opinions from several federal appellate courts.

Of course, the first order of business will be deciding whether there are any enumerated limits to the federal government.  The Constitution states there are specific enumerated powers delegated to the federal government with all remaining powers reserved to the States and the People, respectively.  

The Obama administration is going to state that, for the first time in United States history, the government has the right and authority to require all Americans to purchase a product (health care) in order to live in this country and, necessarily, there are no limits to federal authority.  It will base its argument on novel interpretations of the Commerce Clause and the Necessary and Proper Clause.

The Commerce Among the States Clause has generated more court cases than any other clause. The arguments focus on the definition of “to regulate,” “Commerce,” and “among the several states.” The Supreme Court still struggles with these terms.

Regarding the Necessary and Proper Clause, one should recollect Chief Justice John Marshall’s admonition: “Should Congress, in the execution of its powers, adopt measures which are prohibited by the constitution; or should Congress, under the under the pretext of executing its powers, pass laws for the accomplishment of objects not entrusted to the government; it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land.”

The individual mandate does not make sense. The States, who have banded together to oppose Obamacare, will state to the Justices that, “Neither the federal government nor the numerous lower courts . . . ‘have identified a single other federal law throughout our Nation’s entire history that compels individuals to enter into commerce,” i.e., the government has no legal basis for its position.

In addition to the individual mandate, Obamacare expands Medicaid to approximately 16 million people. A program originally designed for the poor will now cover about 25 percent of Americans at a cost the States cannot afford. The States will argue that the fiscal burden of such an expansion is so coercive as to be unconstitutional.

What the Supreme Court will essentially decide in this case are the limits of congressional power. Will the enumerated powers of Congress be enforced? Or, will Congress have unfettered power to regulate any and all aspects of our lives?

The Supreme Court will determine whether the Constitution’s structural limitations on congressional power will be altered.  The Supreme Court will address whether States sovereignty remains intact as well the applicability of the 10th Amendment. And, most important, The Supreme Court will decide the future of our concept of dual federalism.

We are at a watershed moment. Whether or not the United States remains a nation of limited government and individual liberty now rests with the Supreme Court.

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