Tuesday, March 23, 2010

I Feel Like Alice in Obamaland

Scotusblog opens commentary on pending healthcare reform lawsuits with this roundup

Commentators continue to speculate on the role of the Court in potential challenges to Congress’ passage of health care reform late Sunday. At the ACS blog, Simon Lazarus writes in an issue brief that mandating the purchase of health insurance is “lawful and clearly so” under the Commerce Clause and/or the General Welfare Clause. At Vanity Fair, Andrew Cohen predicts that in a possible 5-4 Supreme Court decision, Justice Kennedy and his swing vote would be “quite open and warm to the notion of federal intervention on health care.” At Jost on Justice, Kenneth Jost reviews relevant Supreme Court Commerce Clause jurisprudence and concludes that the bill is likely to survive potential legal challenges. Ashby Jones at the WSJ Law Blog also weighs in on the subject.

News organizations concur with a unified chorus of: "Legal experts say they [the lawsuits] have little chance of succeeding". Who are these legal experts and what Constitution are they looking at? I feel like I have stepped into a rupture in the space/time continuum and have been instantly transported to a much darker parallel America where Joe Biden has a gotee and the Commerce Clause of the constitution now reads:

"[The Congress shall have power] To COMPEL Commerce with foreign Nations, and among the several States"

Seriously, please, I beg of you, will some constitutional scholar come here to explain to my feeble mind how the individual mandate in Obamacare can be constitutional. I know you are out there because you keep telling everyone in the press that it is true. But I can't fathom it.

So what is next?

If the government decides that we need to emit fewer green house gases (a noble endeavor), can they now compel us to go out and buy wind generators, solar panels, and hybrid cars? I know they can incentivize us to make such purchases, but can they literally force us to? Apparently, according to the legal experts, that is simply "regulating" commerce. If the government decides that it is healthy to take some time off work each year (demonstrably true), can they now compel us to fly to Cancun for a week? I would love it if they would incentivize THAT but can they force it? It would appear so. And what if the government decides our population is too big (can you say china)? Can they compel us to purchase birth control, get sterilized, and have abortions for the general welfare? After all, those are simply different kinds of commerce.

I guess the founders had just such an exercise of federal power in mind when they wrote the commerce clause, because the legal experts all agree that such forced purchasing is in there somewhere. I can’t see it. But I’m no expert.

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