Reaquainting America with the 10th Amendment
By David H. Landon
November’s election in Ohio is shaping up to be an ideological battle over several ballot issues as well as the normal candidate races for municipal and township government. Last week the Ohio Supreme Court turned back a challenge to a ballot initiative which seeks to create a constitutional amendment exempting Ohioans from the “individual mandate” requiring the purchase of health insurance in Obamacare. In a unanimous decision, the Court ruled that there were sufficient signatures for the issue to qualify for the ballot. The Obama administration was dearly hoping the firestorm over this Chicago-thug-style legislation that created such havoc for Democrats last fall had died down. But here in Ohio and in state legislatures all over the country, this is an issue that still angers voters and won’t easily go away.
Republican lawmakers in 35 states have filed or proposed amendments to their state constitutions or statutes rejecting health insurance mandates, according to the American Legislative Exchange Council, a non-profit group that promotes limited government. As is the case here in Ohio, many of those proposals are targeted for the November ballot. Starting next month in Ohio there will be a tremendous push by the coalition of forces which favor limiting the power of government, to pass the Ohio Health Care Freedom Amendment. That amendment in its most basic terms, states that “no law or rule shall compel, directly or indirectly, any person, employer, or health care provider to participate in a health care system.” In other words, if you live in Ohio, the federal government can’t force you to buy health insurance. I think that I just heard a single chime from the freedom bell ringing somewhere in the distance.
Early polling would indicate that Obamacare is no more popular now in Ohio than when it was first rammed down our screaming throats in March of 2010. I’m sure you remember the absolute mockery of democracy in the way it was passed. Come on … I know you haven’t forgotten the highlights: A 2,074-page bill that no one read; the use of the reconciliation method to bring the measure to a vote eliminating the threat of filibuster; limiting the length of the debate to a few short hours on legislation which will regulate 18 percent of the U.S. economy and the list of the abuses of the process goes on and on. Months later we were finding out nuances in the details of the bill that most legislators weren’t even aware were there.
So unless I’m mistaken, in November this amendment will pass in a landslide, such is the continued animosity towards Obamacare. The only real question will be what, if any, effect the amendment will have on the “individual mandate” here in Ohio. In other words can a state pass a constitutional amendment that in effect says to the federal government “Take your individual mandate which requires Ohioans to purchase health insurance and shove it”?
My worthy opponent in this week’s debate forum is the Honorable A.J. Wagner and this is his first debate column at the DCP, so please make him welcome. Check out his column on page 20 … go ahead … I’ll wait here for you to return. OK …I see that you’re back! I don’t want to be presumptuous, but I’m guessing that A.J. is arguing that if states were allowed to pick and choose which federal mandates that they choose to follow, all hell will break loose. Therefore, neither Ohio, nor any other state for that matter, can be allowed to pass a law which blocks the enforcement of a federal mandate. He will probably point out that the U.S. Supreme Court has held that federal mandates are constitutional and must be followed. Am I close?
Here’s the problem. A.J., President Obama and all of the Democrats in Congress had seemed to have forgotten about the 10th Amendment. It reads: The powers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
You can read the Constitution until your eyes cross and you will not find the regulation of health care delegated to the U.S. government nor prohibited by it to the states.
Then they tried to find some contortion of logic to find health care regulation as part of the Commerce Clause. Part of the language of the bill stated: “… The individual responsibility requirement provided for in this section … is commercial and economic in nature, and substantially affects interstate commerce…” Sorry to the fans of socialized medicine, but that dog won’t hunt. Article I, Section 8, Clause 3 otherwise known as the Commerce Clause provides no such authority. You can’t make an American citizen buy something against their will and justify it with the Commerce Clause. It has also been pointed out that because the penalty applies to inactivity, it is beyond the powers authorized by the federal government’s favorite amendment, the 16th Amendment, which authorized the federal income tax. I submit to you that there is absolutely no credible argument that the individual mandate portion of Obamacare is constitutional.
So if the mandate is unconstitutional, can a state ignore its enforcement or as in the case of the Ohio Health Care Freedom Amendment, constitutionally block its enforcement? Apparently the Founding Fathers thought so. Thomas Jefferson wrote, “Whensoever the general government assumes undelegated powers … a nullification of the act is the rightful remedy.”
Amen, Tom. Unconstitutional federal mandates do not have to be followed by the states. Of course, this entire Obamacare mess will have to eventually be decided by the U.S. Supreme Court. To paraphrase my friends at the 10th Amendment Center, when states pass laws or as Ohio enacts a constitutional amendment in order to reject and nullify unconstitutional federal laws, regulations and mandates – it’s not rebellion … it’s following duty.
David H. Landon is the former Chairman of the Montgomery County Republican Party Central Committee. He can be reached at DaveLandon@DaytonCityPaper.com.