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More Constitutionality Arguments Against ObamaCare

By Paul Hsieh, MD @ 12:05 AM
January 2, 2010

The Wall Street Journal has published an opinion piece by US Senator Orrin Hatch (R-Utah), Kenneth Blackwell, and Kenneth Klukowski entitled, "Why the Health-Care Bills Are Unconstitutional".

http://online.wsj.com/article/SB10001424052748703278604574624021919...

In particular, they offer three major arguments:
1) The individual mandate falls outside of various Congressional powers typically used to justify the mandate -- such as the power to "tax and spend", the power to regulate interstate commerce, and the "general welfare" clause.

2) The various state-specific deals that were cut with individual Senators to secure the 60 vote run afoul of the general welfare clause.

3) The requirements that state governments establish insurance exchange violates federalism.
(Read the full text of "Why the Health-Care Bills Are Unconstitutional".)

I'm not sufficiently knowledgeable about Constitutional law to know whether such challenges would have merit.

And I believe that any long-range effective opposition to ObamaCare will have to be based on fundamental moral and philosophical arguments, as opposed to more derivative Constitution-based arguments. But I suspect we will be hearing more about such legal arguments in the near future.

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Tags: care, health, reform

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Comment by Michael Alan on January 6, 2010 at 7:53pm
United States Supreme Court Decisions are long and complex having many precedent setting legal issues decided in each decision. Your statements are probably correct regarding the points you have decided to use
in your attempt to change the focus from the points sited by the legal experts who wrote the article. I am
sure that if these US Senators had made false and misleading statements regarding the interpretation of the above mentioned U S Supreme Court Decisions some recognized legal expert would have brought that to the
attention of the editors of The Wall Street Journal and quite possibly formal charges could be brought against them.
Since to my knowledge the statements made by these US Senators have not been disputed I will assume that
they are correct.

As stated in the article "the Supreme Court in United States v. Lopez (1995) rejected a version of the commerce power so expansive that it would leave virtually no activities by individuals that Congress could not regulate. By requiring Americans to use their own money to purchase a particular good or service,
Congress would be doing exactly what the court said it could not do."
In "New York v. United States (1992) and Printz v. United States (1997), the Supreme Court struck down two
laws on the grounds that the Constitution forbids the federal government from commandeering any branch
of state government to administer a federal program.
Comment by Michael Alan on January 6, 2010 at 3:06pm
The article references three United States Supreme Court decisions that have already rejected actions similar to those being proposed in the new health care bill.

United States v. Lopez (1995)
New York v. United States (1992)
Printz v. United States (1997)

It is difficult to mount a constitutional challenge on a bill that has yet to be passed. It is a work in progress.
Once the final bill has become law, then the challenge can be properly analyzed and mounted. These Senators are well qualified to make the determination of what is or is not a viable constitutional challenge. Senator Hatch is a former chairman of the Senate Judiciary Committee, Mr Blackwell is a professor at
Liberty University School of Law, and Mr Klukowski is a fellow and senior legal analyst with the American Civil Rights Union.

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