Liberty on Tap since 1984
Someone other than Randy Barnett questions constitutionality of individual mandate
Georgetown University law professor Randy Barnett fired up the blogosphere with this story, published by The Washington Post, March 21. Barnett asked whether provisions of ObamaCare violated the U.S. Constitution, and if so, what might be done about them.
Barnett is also considered by many in the academy to be (shall we say) a bit of an outlier, because he continues to believe that courts (with some regularity) ought to be invalidating federal legislation that violates the Ninth or 10th Amendments to the Constitution.
So Barnett's approach on ObamaCare was dismissed as either wrongheaded or "not going to happen" by some of the usual suspects. (And by friendlies, too.)
Surprise! Barnett has a supporter, if you will, in Georgetown's Jonathan Turley, who in USA Today says "this plan might provide a bill of good health for the public, but it could amount to a 'do not resuscitate' order for federalism."
Turley writes:
If other constitutional scholars start asking questions, stay tuned ...
Barnett is also considered by many in the academy to be (shall we say) a bit of an outlier, because he continues to believe that courts (with some regularity) ought to be invalidating federal legislation that violates the Ninth or 10th Amendments to the Constitution.
So Barnett's approach on ObamaCare was dismissed as either wrongheaded or "not going to happen" by some of the usual suspects. (And by friendlies, too.)
Surprise! Barnett has a supporter, if you will, in Georgetown's Jonathan Turley, who in USA Today says "this plan might provide a bill of good health for the public, but it could amount to a 'do not resuscitate' order for federalism."
Turley writes:
Congress is declaring the failure to insure oneself to be an interstate matter. There is no question that being uninsured contributes to the national crisis in health care. If that 18-year-old has a car accident, it is the public that is likely to bear the costs of his care. However, if the failure to get insurance makes one the object of federal jurisdiction, it is hard to see the why other acts of omission will not be tied to national deficiencies in public health or education or family welfare.
If other constitutional scholars start asking questions, stay tuned ...
Views: 10
Tags: constitution, care, health, health-care, health-care-reform, individual-mandate, mandate, obama, obamacare
Comment
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Comment by M.Bailey on March 31, 2010 at 2:10pm -
Who doesn't have to pay for their kids to go to school? I sure as heck do. Every homeowner in every school district that I know of is taxed to fund public school. If you're a renter then school is subsidized for you. In the case of health care it would essentially work the same way. If you can't afford it, it will be subsidized for you. If you can afford it, you'll pay.
I think the IRS enforcement issue is an important one. If you don't like the idea of having to pay out-of-pocket for health insurance, or if that's deemed unconstitutional, then they'll simply call it a tax and *poof* problem solved. There's no question that the gov't would have the authority to tax you to pay for your health care and to subsidize it for the poor. At that point it's just part of welfare, social security, medicare, etc...
I think the argument about the unconstitutionality of this individual mandate is based on a technicality that very easily overcome.
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Comment by Freedom Pub on March 31, 2010 at 1:41pm -
The "forcing kids to go to school" angle is intriguing. But you aren't forced to pay to send your kid to school, and there are opt-outs of sorts (think: homeschooling). And one difference with the Social Security mandate is that it's a tax — though the fact that ObamaCare puts the IRS in charge of enforcing this mandate will certainly be a line of defense for supporters.
A better example of a requirement of U.S. citizenship for merely "existing" is the Selective Service (draft). But even that's conditional, and not universal, because only men have to register. And, of course, there is not a charge attached to it.
Good questions, and this is going to be a long and interesting debate.
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Comment by M.Bailey on March 31, 2010 at 1:29pm
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Do we know for sure that they're using the Commerce Clause as the authority for this legislation? I've only heard this question posed to a politician once, and Speaker Pelosi dismissed it out of hand.
Do we know by what authority the government requires children to go to school? Or requires me to participate in Social Security? I know the parallels aren't exact, but it just seems to me that the government makes lots of people do lots of things. How is this any different? Those are requirement based simply on existing. Personally I'm with you here, I think we're walking a fine line. I'm just skeptical that the courts are going to step in here and overturn this.
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