December 15, 2010
Cuccinelli's Other ObamaCare VictoryBy Mark J. Fitzgibbons
By now everyone knows about Virginia Attorney General Ken Cuccinelli's win in his lawsuit against ObamaCare.
Judge Henry Hudson ruled that the individual mandate "exceeds the Commerce Clause powers vested in Congress under Article I" of the Constitution.
Judge Hudson also wrote, "The unchecked expansion of congressional power to the limits suggested by [the individual mandate provision in ObamaCare] would invite unbridled exercise of federal police powers."
What Cuccinelli did in defeating (for now) the individual mandate actually prevents an historically massive expansion of the federal government's audit and investigation powers.
If every American could be required to purchase health insurance, every American business or household would be subject to federal audits to ensure compliance. With a law over two thousand pages long that even Nancy Pelosi said needed to be passed before we knew what was in it, there assuredly would be lots of compliance requiring audits of individuals, businesses, and even state government.
Government investigations are subject to the 4th Amendment, which protects against unreasonable searches and seizures. The 4th Amendment was written to reflect concerns created by the odious Writs of Assistance.
Those writs were used to collect taxes and enforce other laws and court orders. They required presentation of testimony under oath before a judge about the suspected violation and needed some specification about the place, persons, and duration of searches. Colonists objected as procedural protections at common law broke down and execution of the writs became more discretionary and abusive.
Despite lessons from the Writs of Assistance, the 4th Amendment became compromised when Congress started creating new federal agencies to regulate interstate commerce, from as the Interstate Commerce Commission in the late 1800s to Roosevelt's New Deal and the many federal agencies created since.
First, Congress authorized federal agencies to issue subpoenas rather than requiring agencies to seek their issuance from courts, a check on abuses of investigative power in place even at common law. Then the courts lowered the standard of cause (reason to believe a law is violated) from "probable" to "reasonable."
In the landmark 4th Amendment decision Oklahoma Press Publishing v. Walling, FDR-appointee Justice Wiley Blount Rutledge institutionalized the "constructive" search, a term not found in the 4th Amendment. He explained that if a federal administrator could not unilaterally subpoena documents, that "would render substantially impossible his effective discharge of investigation and enforcement which Congress placed upon him."
In one 1967 opinion, Justice Byron White wrote, "As government regulation of business enterprises has mushroomed in recent years, the need for effective investigative techniques to achieve the aims of such regulation has been subject to substantial comment and legislation."
In other words, as the federal government expanded its use of the Commerce Clause from keeping interstate commerce open and free to affirmatively burdening it, 4th Amendment protections eroded in direct proportion.
Make no mistake about it: the erosion of the 4th Amendment has been essential to the rapid expansion of big government. Government investigations no longer determine simply whether laws are broken. Often, investigations are used to coerce acceptance of otherwise unlawful or extra-lawful government agency interpretations of law. Even Justice Rutledge wrote that "[o]fficious examination can be expensive, so much so that it eats up men's substance."
Most individuals don't have the resources to fight unlawful investigations. For public relations purposes, businesses often won't fight them. Government knows this, which is why laws passed often become enforced in practice in ways most favorable to government and least favorable to individual and property rights. It's law by bullying, not by constitutional limitations.
The case law about 4th Amendment protections against government searches is still somewhat erratic, but the thresholds the government must overcome are weakest for tax audits by the Internal Revenue Service. Interestingly, the 4th Amendment standards are weakest for the IRS because, as courts have reasoned, they conduct so many audits. If I were deciding the issue, that would be no reason for weaker standards.
Judge Hudson ruled against ObamaCare as exceeding Congress's authority under the Commerce Clause. He also ruled that the penalty for not obtaining health insurance is not a tax, which would have saved the law. Regardless of whether ObamaCare exacts a tax or a penalty, the power of the government to investigate violations would be virtually the same.
Unlawful investigations are the equivalent of trespass and coercion of private property rights. Cuccinelli's not only litigating the constitutionality of Obamacare; he's also defeating the tentacles of tyranny and Marxism. This is why liberals are breaking out their smear machines against him.
The matter will ultimately be resolved by the Supreme Court. If you want more information about the case from Cuccinelli himself, go here.