April 17, 2011
ObamaCare: The 28th Amendment?By Roger D. Luchs
ObamaCare is under assault, and properly so, because it tramples on enumerated constitutional rights of individuals and the states. Given President Obama's predilection, it must also be viewed as his most aggressive effort to date to recast the Constitution to empower the Federal government to inject itself into areas of everyday life from which it has been fenced off since its inception.
In a 2001 interview, Obama expressed frustration that the Constitution was framed as a "limiting" document rather than an "empowering" document. He understands that there is simply no prospect of amending it to bestow on Congress and him substantially broader authority to regulate broad sectors of the private economy. His sole option, then, is to convince the public that 225 years of constitutional jurisprudence is wrong or outdated.
ObamaCare is his opening salvo for making his case. No doubt there are more than a few liberal judges who will back him up. Some have already ruled in Obama's favor. If Obama succeeds even in only small part in recasting the Constitution as transferring powers to the central government beyond those expressly identified therein, then, to Obama and his liberal allies, it will be seen, to borrow a phrase, as "the end of the beginning" rather than "the beginning of the end."
Obama knows better, of course, which is why he said what he did in his 2001 interview. He can't change history, as much as he'd like to try, so he hopes to erase it from people's memories so over time, it is replaced with "progressive" reading of the Constitution. Facts, however, are stubborn things.
The colonies ceded to the newly-established Federal government only those powers they agreed among themselves would benefit the separate states, collectively. The Tenth Amendment reserved to the states those many powers not expressly ceded. The Bill of Rights was adopted to ensure that the Federal government could not infringe on the liberties the Revolution was fought to restore and preserve. Citizens of the colonies, and later of the territories, agreed to this arrangement with the understanding that the states and the Federal government would honor what was a set of covenants among them, which all agreed to honor so the nation would succeed. The Civil War was fought, in part, because to the Southern states, the North, when it elected Lincoln, signaled its willingness to violate that compact, by changing one of the key terms to which it had agreed to obtain Southern participation in the union. The Civil War, once concluded, was followed by several amendments which extended the reach of the Bill of Rights to state governments.
Though the Civil War brought forth a "new nation," by destroying the institution of slavery, and causing the amendment of the Constitution to protect freedoms of newly-liberated citizens, in all other respects, it reverted to what it was originally intended to be, i.e., a compact that ceded to the Federal government only those powers that would enable the nation to take on the character of a unified assemblage of willing actors. Although in the New Deal, its powers were broadened, neither Roosevelt nor succeeding presidents sought to recast the fundamental nature of the Constitution.
Those states which have already challenged ObamaCare have focused, in part, on the Tenth Amendment's preservation of state power over those realms of governance and regulation not expressly ceded to the Federal government. Historically, each state has exercised sovereign authority over the conduct of the insurance business within its borders. Although the Supreme Court ruled in 1944 that certain aspects of the insurance business were subject to the Commerce Clause and, therefore, the sovereignty of the states to regulate insurance within their respected borders could be preempted by Congress, in its regulation of interstate commerce, Congress rebelled. It overrode the Court's ruling, by enacting legislation reaffirming the sovereignty of the states over the insurance business, except as specified in the statute. Absent a change in that law, then, the President's ability to infringe upon and override state sovereignty over insurance business conducted within the states' respective borders is minimal. ObamaCare, nevertheless, includes several mandates to insurers which arguably exceed the Federal government's powers to regulate insurance. However, those pale in comparison to the individual mandate.
It is that mandate that most clearly signals Obama's intent to "rewrite" the Constitution to dispense with its fundamental character. The mandate implicates the Bill of Rights' guarantee that persons may not be deprived of life, liberty or property without due process of law. Obama, in this regard, must be creative, because his mandate infringes upon the same right of privacy liberals fought for years to establish, in order to afford women a constitutional right to abortion. It seems self-evident that if that right inhibits the Federal and state governments from intruding upon a woman's choice, then it also protects women, and men, from government interference in their choices affecting their personal physical and mental well-being.
ObamaCare's guiding principle, however, is not paternalism. It is about the government's power to identify "public uses," as contemplated by the Fifth Amendment, and then compel unwilling individuals to engage in conduct that would, in the government's view, advance such uses. Requiring someone to buy health insurance from a private insurer is no different, in kind, from forcing New London, Connecticut property owners to sell their land to a private development authority established by the city, so that it could devote that property to more "productive" uses. In the case of ObamaCare, the "public use" contemplated is a Federally- controlled, all encompassing healthcare system that would compel the citizenry to purchase insurance, to facilitate the government's exercise of control over how they make use of the healthcare system, which comprises about 16% of the private economy. It is a means to achieving a Federally-prescribed end.
However unjust the circumstances in Ms. Kelo's case, at least the Fifth Amendment ensured that she would receive "just compensation". The Constitution expressly recognizes the doctrine of eminent domain, though that is an ancient doctrine founded on the principle that real property belongs to its owners, and they may not be compelled by government to part with it, except under limited circumstances, and for a fair price.
Anyone forced to buy health insurance will also be compelled to part with private property, i.e., private wealth, but unlike in Kelo, what he receives in return is what the government instructs him to receive, i.e. insurance from a private insurer, the content of which will be regulated, to some extent, by the Federal government. It is fair to ask, if the Constitution required amendment to authorize a Federal income tax which taxpayers must pay to avoid punishment, why should an amendment not also be a prerequisite to the implementation of ObamaCare?
If there is any doubt about government's power to compel ordinary citizens to engage in conduct mandated by the Federal government, one need only look at Supreme Court precedent on the constitutionality of Federal rent control statutes to allay such doubt. Rent control, and its intersection with Constitutional rights, was taken up in challenges to rent control statutes enacted in World War I and World War II. In two precedential decisions, the Supreme Court ruled that the laws were constitutional, because they were adopted as temporary measures, enacted by Congress in the exercise of its police power, to meet the exigencies of the pending wars.
In its decisions, the Court, both implicitly and explicitly, focused on provisions in each statute that carved out an exception for property owners who wanted to remove their properties from the rental market. Each statute reserved to this right to landlords, even if they did so solely to avoid being subjected to Federal regulation. In the decision upholding the World War I statute, Justice Holmes, writing for the majority, commented that "there comes a point at which the police power ceases and leaves only that of eminent domain." Applying this same reasoning to ObamaCare, anyone forced to purchase health insurance will find himself entangled in the Federal regulatory scheme that will accompany that law's implementation, but, unlike government-imposed rent control, without any viable way to escape participation.
It is no answer that ObamaCare offers the uninsured a choice, i.e. the option to pay a fine in lieu of mandated health insurance. Under the doctrine of eminent domain, there is no "option" to pay a fine in lieu of selling one's property to the government, but the government must pay the property owner the value of his property and the property owner may use that payment as he wishes. Under ObamaCare, the government will pay the involuntary purchaser nothing in exchange for forcing him to buy health insurance. The uninsured's choice, then, falls somewhere between Scylla and Charybdis.
Beyond this, the Eighth Amendment, which bars "cruel and unusual punishments," contains a separate provision which raises an additional doubts about ObamaCare's constitutionality. That provision prohibits government from imposing "excessive fines." This language was included to prevent the arbitrary use of what in feudal times were known as amercements, employed by the crown to punish those who offended the king, or violated the king's law. Amercements had sometimes been used to ruin people financially. Because ObamaCare's fines are intended as punishment for those who refuse to buy health insurance, they too, may be excessive, at least in some instances. Absent a binding court ruling in which it is held that the statutory fines may be imposed uniformly, they are ostensibly subject to review on a case by case basis. It is doubtful that the blanket imposition of more than a token fine without regard to each person's circumstances can withstand judicial scrutiny, except, of course, by liberal judges who are indifferent to the merits of challenges to ObamaCare's constitutionality.
To Obama and his fellow "progressives", it is too much to ask that the compact upon which the nation was founded should stand in their way. The Administration and the political movement it represents are intent on changing the rules of the game for all times, and not just to legitimize ObamaCare. If they succeed, over two centuries of jurisprudence consistent with the Founders' intent will be replaced by a new jurisprudence that leaves the Constitution, as drafted and originally adopted, just dust in the wind. Over generations, any understanding of the framers' original intent will gradually fade into the background.
But properly and aggressively challenged, ObamaCare could become this century's Hindenburg. If it does crash and burn, there is little doubt that whatever takes its place will have to heed the limits on government's power set by the Constitution. If fully informed, the public will expect, and demand, no less.