pic_homie_flat_03-22-10_B Obama and Pelosi For those of us who champion individual liberty and free markets, Obamacare is an abomination on many levels. While we would prefer to talk about what we are in favor of, we must protest. Obamacare is a hostile take-over of healthcare and an intrusion into the private, confidential interactions between a patient and doctor. Never before have the express wishes of so many Americans simply been ignored. President Obama, Nancy Pelosi and Harry Reid have placed a dunce cap on our collective head and sent us to sit in the corner. Trust us! Over time, you’ll like it! We know what is best for you and your family.

The creation of the third party payer and welfare system in the last century lead to a market failure and price distortions in health care. We have grown accustomed to varying levels of bureaucratization of the doctor patient relationship via insurance companies or the government; most of us would probably put up with the hassles and paperwork but for the ever increasing price of health insurance and healthcare. Rather than addressing these market failures with some common sense changes, the Democratically controlled Congress has forced through sweeping legislation with absolutely no bi-partisan support amidst wide-spread opposition from the American people. If they could not get Republican Olympia Snow to cross the aisle, something was amiss.

Attorney General Lori Swanson was asked by Governor Pawlenty and members of the Minnesota Senate and House of Representatives to challenge the constitutionality of Obamacare on behalf of the state. Swanson, as expected, rejected those requests. Instead, our attorney general will file a friend of the court brief in support of ObamaCare and against her client–the state of Minnesota—and the now 13 plus states which have declared an interest in challenging the legislation as an encroachment on the sovereignty of the state and We the People.

Attorney General Swanson and others like her, think that Congress has the authority to pass Obamacare. The bill identifies the Commerce Clause (Article I, Section 8 of the U.S. Constitution) as its source of authority. Ever since Roosevelt successfully cowed the U.S. Supreme Court with the threat to “pack it” unless the Court stopped finding New Deal legislation unconstitutional, the Court has allowed Congress to essentially drive a truck and anything else it wants through the Commerce Clause.

But the Supreme Court has recently recognized limits on the Commerce Clause—and even under the broadest interpretation by the Court, it only authorizes Congress to regulate existing commercial activity that affects interstate commerce. The Commerce Clause has never authorized Congress to regulate inactivity or to create the commercial activity it wants to regulate by forcing Americans to buy something (in this case, health insurance). The Commerce Clause was only intended protect and encourage the free flow of goods and services among the states by giving Congress the power to regulate interstate regulations like tariffs and other barriers to trade.

The mandatory insurance requirement is structured as a tax and as with the Commerce Clause, the Court has paid great deference to Congress in reviewing its power to tax. But is the power to tax absolute? Unlimited?
The debate over the constitutionality of ObamaCare points to a crisis. The Constitution as written is a promise to the American people that our government is one of limited powers. When the Constitution was amended in 1791 by the first ten amendments (we call it the Bill of Rights), critics were concerned that enumerating the rights of citizens (free speech, right to bear arms, right to trial by jury, etc) would severely limit citizens to those rights. As a result, the ninth and tenth amendments were added.

The Ninth: The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.

The Tenth: 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.

Unfortunately, these amendments have been largely ignored by the Court and left undeveloped despite their plain language. Now that the federal government has grown exponentially with the blessings of our highest court via vaguely drawn powers, citizens from all walks of life and political persuasion are reacquainting themselves with their Constitution and these two amendments in particular.

The Constitution citizens read and the Constitution the courts and “legal scholars” read are not the same. That is the crisis.

“If there is anything good to say about Democrat control of the White House, Senate and House of Representatives, it’s that their extraordinarily brazen, heavy-handed acts have aroused a level of constitutional interest among the American people that has been dormant for far too long.” –economist Walter E. Williams

“As America’s teetering tower of unkeepable promises grows, so does the weight of government, in taxes and mandates that limit investments and discourage job creation. America’s dynamism, and hence upward social mobility, will slow, as the economy becomes what the party of government wants it to be — increasingly dependent on government-created demand.” –columnist George Will