The Patient Protection and Affordable Care Act of 2010 is unconstitutional.
I have written this repeatedly over the past two years; originally in HEALTHCARE U.S.A. 3/24/10 and later that year, CITIZEN HEALTHCARE 12/29/10. It was true then and it is true now.
No politically charged Supreme Court decision in this politically charged election year is going to change that. It is not within the boundaries of the Congress of these United States to make such laws as to force its citizens to purchase insurance. This should have been the case for the 1935 Social Security Act that forced Americans to purchase retirement insurance or the Enrollment Act of 1863 that forced American men to fight for the Union and every subsequent Selective Service or draft laws that wiped out thousands upon thousands of American citizens, many of them in unconstitutional “wars” like Korean, Vietnam, Afghanistan, Iraq I, Iraq II or even before all that the Militia Acts of 1892 that forced every American to buy muskets and gunpowder.
This shit has been going on for a long time, folks.
Hell, the damn U.S. Constitution was only four years old when the second official congress and George Washington, the first president, pissed on it. The next guy in charge, John Adams, by far the most influential revolutionaries of the 1770s but a lunatic chief executive, signed the Alien and Sedition Acts, which granted the president the power to deport citizens of questionable allegiance to the United States and jail or deport journalists for writing “slanderous” or “malicious” (determined by the White House) anti-government sentiments. Andrew Jackson became the godfather of Jim Crow by wielding an iron fist across the fruited plain with the 21st congress’ unconstitutional 1830 Indian Removal Act. Oh, boy did the South hammer that baby home over one hundred years of racketeering, voter intimidation and government-sanctioned murder.
Need we go on?
Okay, how about this nation’s most revered and influential chief executive, Abraham Lincoln, who forced an entire region to restructure its moral and economic foundations through military invasion, which brought with it an unconstitutional drafting of the poor, the eradication of due process and habeas corpus, the jailing of dissidents against the federal government and of course the radically unconstitutional Marshall Law. Woodrow Wilson subsequently abused these “safety during war time” tactics during WWI and FDR during WWII when both presidents interred thousands of innocent German and Japanese civilians respectively. The world champion of unconstitutional nonsense, Richard Nixon used the same scheme to bug, slander and intimidate anti-war protestors, wielding the CIA, IRS, FBI and the Immigration and Naturalization Service in a clumsy attempt to destroy political opponents until he was asked to leave the premises.
Some of these cases were never challenged, some challenged and overturned or embarrassingly watered down or left to expire ungracefully. Some were regionally challenged for decades like the Civil Rights Act of 1964, which was a needed intervention of the federal government to impede Bill Of Rights abuses. In the recent case of the Patriot Act, a whopper of unconstitutional chicanery, every case that was brought against it was successful, rendering most of it flaccid and ineffectual.
Not so with what the political culture pejoratively refers to as Obamacare, which has been challenged in lower courts across the land in several states and exonerated each time. Every liberal and conservative judge has seen fit to uphold the law as constitutional, despite its controversial Individual Mandate, an invention of the ultra-conservative Heritage Foundation in the 1990s and vocally supported by the Speaker Of The House and leading Republican voice at the time, Newt Gingrich. It was a collective Right Wing knee-jerk response to the massive socialized medicine overhaul presented by then first lady, Hillary Clinton.
This same blueprint was formed and enacted by another current Republican challenger to the president, Mitt Romney, when his derisively coined Romneycare became the law of Massachusetts in 2006. And the man he now challenges? Barack Obama spent thousands of campaign dollars horse-whipping the aforementioned Ms. Clinton for “mandating Americans to buy health insurance or pay a penalty” in the spring of ‘08, something he signed into law 24 months later.
The Individual Mandate, reeking with congressional history through Conscription and Social Security is the constitutional sticking point of Obamacare and not the Single-Payer socialist model utilized in every industrialized nation in the free world and what the liberal/progressive lobby has bellowed about for 60 years. This is a halfway house for insurance companies, one of the leading lobbies in the final days of this law’s formation, to gain millions of new clients.
Perhaps only the Individual Mandate will be struck down by a predictable 5-4 margin or maybe, in an uncommon move by the highest court in the land, a reasonable hedge decision of cutting off the Individual Mandate clause and leaving intact the most controversial law since the Patriot Act and certainly as economically driven a law since the Civil Rights Act. But as a fulcrum to the process, the Individual Mandate may take with it the entirety of the law and consequently the thousands of participants either benefiting or being hounded by its slow infusion into the national marketplace.
The federal government is not without precedent for this maneuver, of course. The vagaries of the Constitution’s Commerce Clause, although in spirit was originally included by the framers as a legal means to prevent a federalist construct in interstate trade and currency, certainly left a gaping legal hole in its letter. It is not unlike the currently eviscerated Stand Your Ground law that proponents claim was not implemented to include blue-line wannabes chasing down and murdering black teens. Sorry, no rule is singular, and neither is the Commerce Clause.
Thus the Commerce Clause has been used for a myriad of insanities over the two-century plus existence of this republic and it has its place here. If the Supreme Court rules against it, then it will be doing so in abject rejection to former rulings on Wickard v. Filburn, which allowed congress to limit the amount of wheat grown by an Ohio farmer in 1942 or the 2005 criminalization of homegrown marijuana case of Gonzales v. Raich.
When the Patient Protection and Affordable Care Act is eventually ruled unconstitutional in June of this year, it will certainly reveal an incredible opportunity for those motivated enough to abolish Social Security or Medicaid or Medicare or Federal Income Tax or any of the dozens of federal laws that are and have always been unconstitutional.
Don’t tread on me?