Forum Right, 4/3/12

Why the Supreme Court Must Find Obamacare Unconstitutional

By David H. Landon

Last week Americans were focused on the arguments before the U.S. Supreme Court as the challenge to Obamacare reached the highest court in the land. The court heard arguments on the constitutionality of Obamacare, which for the first time, under the terms of the “individual mandate,” requires Americans to enter commerce, the health care market, in order to then regulate them. The Administration’s chief argument was that the health care market is unique and that everyone will have to participate in it at some point, thereby justifying the government requiring people to buy insurance for it now.  But there’s a difference between regulating an existing commerce and forcing individual Americans to enter into commerce in which they were not participating, so that Congress can better regulate it.  If the court agrees with the Obama administration, it will fundamentally change the relationship between the individual and the government.

During the hearing the justices peppered the attorneys arguing the case with questions, and from the scope and tone of those questions, Court observers are attempting to predict the outcome of the Court’s decision. That decision will be announced in late June. Many supporters of Obamacare were concerned with the performance of Solicitor General Verrilli, who had trouble answering the questions of the conservative members of the Court when pressed to explain where the limits to regulation under the Commerce Clause were.

Verrilli tried to explain that health care was a unique market that deserved regulation because everyone would eventually need to participate within the market. But he failed to answer the troubling question which has those who love freedom most concerned: If Congress was able to regulate things that people will eventually have to do, then are there any real limits to its power? Sadly the answer is that there is no limit once this threshold is crossed. Once the government can make us purchase a service, or an item … there is no turning back. Freedom is lost and Big Government has the reins.

The questioning by the four liberal justices -Breyer, Ginsburg, Sotomayor and Kagan- quickly left little doubt that they believed requiring individuals to buy health insurance was within the regulatory powers of the Commerce Clause, and that the “individual mandate” was constitutional. The questioning by three of the four conservative members of the Court indicated a real skepticism that the “individual mandate” could be justified under even the most expansive interpretation of the Commerce Clause. If Congress were able to regulate things that people will eventually have to do, then there would be virtually no limits to its power.

The decision may be decided by where Justice Anthony Kennedy comes down on the issue. Justice Kennedy, a 75 year old Reagan appointee, has been the swing vote a number of times during his career on the Court. Kennedy pointed out, in more than one instance during oral arguments, that to find this action by Congress constitutional would “fundamentally change the relationship between the individual and the state.”  I am hopeful that his questioning signals that his vote will be to find the individual mandate unconstitutional. That would probably lead to a 5-4 vote. Without the mandate, the entire legislation falls under the weight of its inability to be funded. And that’s a good thing. Congress can start over and provide reform that doesn’t nationalize healthcare.

The legal arguments for and against the legislation have temporarily obscured the obscene manner in which the legislation was passed. Against overwhelming public sentiment and without allowing Republican input, the Democratic Congress rammed Obamacare through using every parliamentary trick in the book. To add insult to injury, most members of Congress only saw the 2700 page legislation a few hours before it was voted upon. No member of Congress …. and by no member, I literally mean no member … had an opportunity to read the legislation prior to voting on it.

When it passed, President Obama promised that it would do three things: 1) provide health-insurance coverage for all Americans, 2) reduce insurance costs for individuals, businesses, and government and 3) increase the quality of health care and the value received for each dollar of health-care spending. As we pass the two year anniversary of its signing, we learn from the non-partisan Congressional Budget Office that it will accomplish none of these promises.

Obamacare is a take over by the federal government of 17% of the U.S. economy. Bureaucrats, regulations and the efficiency of the U.S. Post Office all rolled into one national healthcare system.  Despite this massive interference, according to a report from the CBO released in March, Obamacare will still leave 27 million Americans uninsured by 2022. Of the 23 million Americans who will gain coverage under Obamacare, 17 million will not be covered by private insurance, but will simply be dumped into the Medicaid system, where problems of access and quality abound. An earlier CBO report estimated that the law would now cost nearly twice as much as originally forecast — $1.76 trillion as opposed to $938 billion — between now and 2022. The law will become a drag on the federal budget as it has already slowed down the recovery because of the uncertainty that it creates for business.

There are few principles of good government as fundamental and irreplaceable to the preservation and protection of republican form of government as that of federalism. Obamacare effectively ends federalism. If Obamacare is found constitutional, the 50 states are no longer 50 self-governing sovereign entities.  Instead, they become a collection of confederate subordinates to the federal government whose sole purpose is to act as transfer stations for taxpayer funds to and from the federal government.  Freedom is lost. Individual liberty becomes a distant dream.

Prediction:  Obamacare will be found unconstitutional by a 5-4 vote.

David H. Landon is the former Chairman of the Montgomery County Republican Party Central Committee. He can be reached at

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David H. Landon is the former Chairman of the Montgomery County Republican Party Central Committee. He can be reached at

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