Posted by
Roxanna M. on Tuesday, February 01, 2011 1:49:12 PM
Way back on October 8, 2010, I blogged about the potential consequences of Judge George Caram Steeh's ruling that the individual mandate to buy health insurance contained in Obamacare was constitutional because congress' power to regulate interstate commerce covers not only "economic activity" but "economic decisions" as well.
I said "What if congress decreed that you had to purchase a new refrigerator one year, a new washer and dryer the next, a new dishwasher the next, and on and on it goes. What if congress decreed that you had to completely replace your wardrobe every 3 years and buy a new car every 5 years."
Well, I was just vindicated by Judge Roger Vinson in his recent opinion, wherein he said:
"It would be a radical departure from existing case law to hold that Congress can regulate inactivity under the Commerce Clause. If it has the power to compel an otherwise passive individual into a commercial transaction with a third party merely by asserting - as was done in the Act - that compelling the actual transaction is itself 'commercial and economic in nature, and substantially affects interstate commerce [see Act Section 1501(a)(1)], it is not hyperbolizing to suggest that Congress could do almost anything it wanted."
"If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain for it would be 'difficult to perceive any limitation on federal power' [Lopez, supra, 514 U.S. at 564], and we would have a Constitution in name only."
"In Lopez, the Supreme Court struck down the Gun Free School Zones Act of 1990 after stating that, if the statute were to be upheld, 'we are hard pressed to posit any activity by an individual that Congress is without power to regulate."
"Instead of attempting to control wheat supply by regulating the acreage and amount of wheat a farmer could grow as in Wickard, under this logic, Congress could more directly raise too-low wheat prices merely by increasing demand through mandating that every adult purchase and consume wheat bread daily, rationalized on the grounds that because everyone must participate in the market for food, non-consumers of wheat bread adversely affect prices in the wheat market. Or, as was discussed during oral argument, Congress could require that people buy and consume broccoli at regular intervals, not only because the required purchases will positively impact interest commerce, but also because people who eat healthier tend to be healthier, and are thus more productive and put less of a strain on the health care system. Similarly, because virtually no one can be divorced from the transportation market, Congress could require that everyone above a certain income threshold buy a General Motors automobile - now partially government-owned - because those who did not buy GM cars (or those who buy foreign cars) are adversely impacting commerce and a taxpayer-subsidized business."
"In alluding to these same general concerns, another court has observed that requiring advance purchase of health insurance based on a future contingency that will substantially affect commerce could also 'apply to transportation, housing, or nutritional decisions. This broad definition of the economic activity subject to congressional regulation lacks logical limitation and is unsupported by Commerce Clause jurisprudence."
"There is quite literally no decision that, in the natural course of events, does not have an economic impact of some sort. The decisions of whether and when (or not) to buy a house, a car, a television, a dinner, or even a morning cup of coffee also have a financial impact that - when aggregated with similar economic decisions - affect the price of that particular product or service and have a substantial effect on interstate commerce. To be sure, it is not difficult to identify an economic decision that has a cumulatively substantial effect on interstate commerce; rather, the difficult task is to find a decision that does not."
"The important distinction is that 'economic decisions' are a much broader and far-reaching category than are 'activities that substantially affect interstate commerce.' While the latter necessarily encompasses the first, the reverse is not true. 'Economic' cannot be equated to 'commerce.' And 'decisions' cannot be equated to 'activities.' Every person throughout the course of his or her life makes hundreds or even thousands of life decisions that involve the same general sort of thought process that the defendants maintain is 'economic activity.' There will be no stopping point if that should be deemed the equivalent of activity for Commerce Clause purposes."
"To now hold that Congress may regulate the so-called 'economic decision' to not purchase a product or service in anticipation of future consumption is a 'bridge too far.' It is without logical limitation and far exceeds the existing legal boundaries established by Supreme Court precedent."
". . . the individual mandate is neither within the letter nor the spirit of the Constitution. To uphold that provision via application of the Necessary and Proper Clause would authorize Congress to reach and regulate far beyond the currently established 'outer limits' of the Commerce Clause and effectively remove all limits on federal power."
"If Congress is allowed to define the scope of its power merely by arguing that a provision is 'necessary' to avoid the negative consequences that will potentially flow from its own statutory enactments, the Necessary and Proper Clause runs the risk of ceasing to be the 'perfectly harmless' part of the Constitution that Hamilton assured us it was, and moves that much closer to becoming the 'hideous monster [with] devouring jaws' that he assured us it was not."
"The individual mandate is outside Congress' Commerce Clause power, and it cannot be otherwise authorized by an assertion of power under the Necessary and Propery Clause. It is not Constitutional."
"The existing problems in our national health care system are recognized by everyone in this case . . . Regardless of how laudable its attempts may have been to accomplish these goals in passing the Act, Congress must operate within the bounds established by the Constitution. Again, this case is not about whether the Act is wise or unwise legislation. It is about the Constitutional role of the federal government."
Of course, the left is raging about this judicial activism because in the world of the left, any judge who doesn't let the left do whatever it wants is a judicial activist. Limbaugh is reporting that Sen. Durbin (D-IL) is going to hold hearings about this.
Unlike the left members of congress, whose sole response to questions regarding the constitutionality of Obamacare was a shrug of the shoulders and, in the case of Nancy Pelosi, "Are you serious?", Judge Vinson refers to the Constitution often in his opinion.
We have now reached the point in time where ignoring the Constitution is considered normal, and adherence to it is considered activist.