Freedom Has a Pulse

Tuesday, November 09, 2010

There are some encouraging signs that efforts to stop ObamaCare have a real chance of success. Among those signs is an article by Ilya Somin (HT: Glenn Reynolds) on the status of legal efforts by many states against the federal takeover of medicine. I regard this as a long shot, and as a stopgap effort at best, however.

The judges considering the Florida and Virginia cases have both issued rulings rejecting the federal government's motions to dismiss the suits and indicating that the mandate can't be upheld based on current Supreme Court precedent. By contrast, Michigan district Judge George Caram Steeh wrote a decision concluding that the mandate is constitutional. But even he agreed that the case raises an "issue of first impression."

In the most recent of the three rulings, Florida federal District Court Judge Roger Vinson wrote that the government's claim that the mandate is clearly authorized by existing Supreme Court precedent is "not even a close call." He points out that "[t]he power that the individual mandate seeks to harness is simply without prior precedent," because no previous Supreme Court decision ever authorized Congress to force ordinary citizens to buy products they did not want. [links dropped]
According to the Free Online Law Dictionary, an "issue of first impression" is, "a legal issue which has never been decided by an appeals court and, therefore, there is no precedent for the court to follow."

And later on:
The federal government also argues that the mandate is authorized by the Necessary and Proper Clause, which gives Congress the power to "make all Laws which shall be necessary and proper for carrying into Execution" other powers Congress is granted by the Constitution.

Even if the mandate is "necessary," it is not "proper" under our constitutional system of limited federal authority. If the Clause allows Congress to adopt the individual mandate, the same logic would justify almost any other requirement Congress might impose on individuals, thereby gutting the principle of limited federal power. [links dropped]
There is further cause for optimism regarding legislative means to head off this catastrophe over at We Stand FIRM, which quotes an article about that line of attack by David Catron:
In addition to the power of the purse, the new House majority will also have subpoena power that can be used to delay implementation.

They can hold numerous and protracted public hearings, while demanding all manner of documentation from the Department of Health & Human Services (HHS) and the Centers for Medicare & Medicaid Services (CMS). They can summon HHS Secretary Kathleen Sebelius to answer questions about her 2009 gag order to insurance companies and her growing reputation as an enemy of the First Amendment.

It would also be instructive to hear CMS administrator Donald Berwick to elaborate on statements like, "Any healthcare funding plan that is just... must redistribute wealth."
That's a start, but I agree that only principled opposition can take us from winning some of these battles to winning the war for renewed government protection of individual rights in the field of medicine.

-- CAV

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