If Obamacare Is Constitutional, then Why Did the Founding Fathers Bother with a List of Enumerated Powers?

I think Obamacare is bad policy because it exacerbates the main problem with the current healthcare system, which is third-party payer. And as a public finance economist, I’m obviously not happy about the new taxes and additional spending in Obamacare.

But those issues are temporarily on the back burner now that the Supreme Court is deciding whether the underlying law is constitutional.

I’m not a lawyer. I don’t even play one on TV. But I can read, and when I look at Article 1, Section 8, of the Constitution, I don’t see that Congress has the power to coerce me into buying a health insurance policy. Heck, I don’t see any role for the federal government in healthcare.

The statists say that the commerce clause (“To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”) is a blank check for federal intervention, but that’s a bastardization of the original meaning and purpose of that passage, which was inserted to prevent states from imposing protectionist barriers.

What matters, though, is how the nine Justices on the Supreme Court interpret that passage. Here’s some of Philip Klein’s analysis for the Washington Examiner.

…the outcome of the case, and fate of the president’s most significant legislative achievement, will likely hinge on how the court views the Commerce Clause. One of the most widely debated parts of the Constitution, the Commerce Clause grants Congress the power “to regulate commerce with foreign nations, and among the several states.” And as the size and scope of the federal government has grown throughout the nation’s history, the Supreme Court has grappled with how broadly or narrowly to interpret the phrase. …If the court allows the mandate to stand, opponents claim, it would effectively give the federal government unlimited power to regulate individual behavior.

And here’s some of what Damon Root penned for Reason.

Article 1, Section 8 of the U.S. Constitution grants Congress the power “to regulate commerce…among the several states.” The framers and ratifiers of the Constitution understood those words to mean that while congress may regulate commercial activity that crossed state lines, Congress was not allowed to regulate the economic activity that occurred inside each state. As Alexander Hamilton—normally a champion of broad federal power—explained in Federalist 17, the Commerce Clause did not extend congressional authority to “the supervision of agriculture and of other concerns of a similar nature, all those things, in short, which are proper to be provided for by local legislation.” In other words, the Commerce Clause was not a blank check made out to the federal government. Yet in its decisions in both Wickard v. Filburn andGonzales v. Raich, the Supreme Court held otherwise, allowing Congress to regulate the wholly intrastate cultivation of wheat and marijuana, respectively. Those decisions cannot be squared with the original meaning of the Commerce Clause. As Justice Clarence Thomas remarked about the majority’s reasoning in Raich, “If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything—and the Federal Government is no longer one of limited and enumerated powers.”

When I read all this material, my amateur legal analysis is pretty simple: Why would the Founding Fathers have bothered to list enumerated powers if the commerce clause gave the federal government a blank check to control our lives?

Like I said, I’m not a lawyer, much less an expert on constitutional law. Then again, this amusing poster shows that the same thing can be said about the President.

Read Full Post »

Great Moments in Local Government, the New York City Edition

I’m periodically dumbfounded by the bizarre actions of government.

Indeed, I even put together a post comparing amazingly stupid policies in the United States and United Kingdom. And I later updated that post with new details of brainless bureaucracy.

Top U.K. entries included an effort to stop children from watching Olympic shooting events and (what must be) the most pointless sign in the history of the world, while leading American entries included preventing a girl from boarding a plane because her purse had an image of a gun and a local school calling the police because a little girl kissed a little boy in gym class.

But I don’t mean to just pick on the anglo-sphere. I’ve also noted the idiocy of the Greek government, which thinks it’s appropriate to subsidize pedophiles and collect stool samples as a condition of getting a business license to set up an online company.. And let’s not forget Italy’s new government of technocratic experts, which managed to appoint the wrong person to be Junior Agricultural Minister.

Saving NYC from the scourge of toy guns

But don’t overlook New York City, which really is in a special category.  And what are the “leaders” of the city that never sleeps doing to demonstrate their blundering incompetence? Well, read it and weep, courtesy of the New York Post.

The owner of a discount store in Brooklyn says the city is holding him up for $30,000 in fines he can’t afford — all because he stocked six toy sheriff sets that included plastic guns. And now the .44-caliber fines for the orange-tipped, obvious fakes are forcing him to close for good.

Isn’t this wonderful? These reckless politicians and bureaucrats will bankrupt an entrepreneur and destroy jobs, while achieving no legitimate public policy purpose.

But don’t be surprised. This is the same crowd that does things such as help prisoners sign up for food stamps, ban bake sales for spreading unhealthy food, and fine you $2,000 for idling your car for more than three minutes.

Read Full Post »