I have to admit that I haven’t made it through all 304 pages of the Florida v. HHS decision. Going off press reports and legal commentary, the ruling appears to be simple enough: Obamacare’s individual mandate exceeds Congress’ power under the Commerce Clause.
It has always struck this author that if the Commerce Clause can make you buy health insurance, it can also make you buy a gym membership, five pounds of broccoli a week, and prohibit deep fryers. In turn, if that’s true, then government is unlimited. This notion is directly opposite of what our founding fathers intended, and antithetical to a free society.
So what is “commerce”? Commerce at the time of the founding meant something very limited: the process of interstate buying and selling, as opposed to manufacturing, agriculture or purely local trade. As most folks know, that all changed radically during the New Deal when Wickard v. Filburn upheld a law that prohibited a farmer from growing his own wheat for on-site consumption. Since Wickard, the reach of the Commerce Clause expanded unchecked until United States v. Lopez (1995), and United States v. Morrison (2000) first started to limit the scope of the Commerce Clause to actual economic impacts.
No one doubts that Obamacare regulates economic transactions. Of course, with the current ban on interstate selling of health insurance, the “interstate” nature of the commerce in question is dubious, but Wickard is still good law, and so no actual interstate activity is needed. Instead the issue with Obamacare and the Commerce Clause is whether Congress can require citizens to positively engage in economic activity—that is, does Congress have the right to make you buy something for no other reason than the fact that you are drawing breath.
Car insurance is required to drive, and homeowners insurance is even typically required (but not by the government) to own a home. But what is the activity that health insurance is contingent upon? Under Obamacare, the American citizen is compelled to but health insurance whether or not they ever use health care services. It is entirely plausible, in the age of “holistic” medicine and believers in faith healing, that a person will never use modern health services. If that is the case, the insurance requirement (the “mandate” in the terms of Obamacare) is contingent on merely drawing breath. To tax someone for simply existing is an abhorrent thought in an ostensibly free Republic.
In today’s decision, the 11th Circuit (Democrat-appointed judges, if that matters) struck down only the requirement for citizens to buy insurance. However, the only reason insurance companies were able to go along with the new law is because in addition to being required to cover pre-existing conditions and forbidding the dropping of patients, the insurance companies were getting a huge influx of mostly young and healthy clients from which they could extract premiums (under penalty of federal law, no less). Even then, large states and politically connected companies have been getting scores of “waivers’ from HHS, and Obamacare is not even in full effect. The economic fallout from a loss of the individual mandate will make private insurance companies simply fold their tents and go out of business. Interestingly, particularly to the conspiracy theorists, a “severability clause” was eliminated from Obamacare before it passed. That clause said that if one part of the law was struck down, the rest of the law remained valid. By taking that clause out, the whole of the “Patient Protection Act” should be invalid. But the 11th Circuit left the rest of the law in place. What will be the result?
At the end of the Roman Empire, Gibbons in the Decline and Fall of the Roman Empire tells us about Romans who had been given large estates to run, with the corresponding duty to collect a set amount of taxes. Anything above the required amount of taxes was kept by the landowner. What a deal, right? By the end of the Empire, the peasants had abandoned the lands and there was nowhere to get the taxes to pay Rome. Large landowners abandoned their lands in droves. Eventually, Rome passed laws that forbade the landowners and their heirs from leaving the land, but still required them to pay the taxes. The large landowners became slaves to the Roman state. It is not a far stretch to see the same thing being demanded of insurance companies here, forbidding the corporations from dissolving, and requiring a de facto nationalization of the industry. Maybe that’s what’s intended, but I doubt it. It was simply a poorly crafted law that sought to do too much, passed in a hurry under what amounted to the cover of darkness. “We have to pass the law to see what’s in it,” said then-Speaker Pelosi. Well, we’ve found out what’s in it, and it looks pretty unconstitutional.