The Democrats are still trying to find someway to pass Obamacare. They are twisting themselves, senate rules, and the constitution in knots trying to get it done.
In the end, it will probably be all for naught. That's because, as Deroy Murdock points out in NRO, the individual mandate that would force Americans to buy insurance is almost certainly unconstitutional:
Consider, then, that Obamacare flunks the first test of any potential federal law: It is not constitutional. Obamacare critics deem the individual mandate unconstitutional, since Congress lacks the power to force Americans to buy anything, especially health insurance they wisely or foolishly may not want.Congress's legitimate power to regulate interstate commerce has been stretched like saltwater taffy. "It is one thing, however, for Congress to regulate economic activity in which individuals choose to engage; it is another to require that individuals engage in such activity," Sen. Orrin Hatch (R., Utah), former Ohio secretary of state J. Kenneth Blackwell, and the American Civil Rights Union's Kenneth Klukowski observed in the January 2 Wall Street Journal. "That is not a difference in degree, but instead a difference in kind."
"If Congress constitutionally can command that one buy health insurance, it can command that everyone over age 21 buy a GM car to bail out GM or, for that matter, buy a gun or, in lieu thereof, pay a fine," says Manhattan attorney Leo Kayser III. "Under the rubric of regulating commerce, we would have no effective protection from any edict that Congress might impose on citizens to enhance commerce in whatever way Congress decides."
In addition, the penalty imposed by the IRS for not purchasing insurance finds no constitutional justification:
This represents a "direct" tax on U.S. citizens, based solely on the status of living in America. This is not a tax on income. It is not an excise tax either, since there is no tax on any transaction; if one refuses to purchase insurance, there is no transaction on which to slap an excise tax.
Here's the problem; it will take years for any such challenge to the constitutionality of Obamacare to reach the Supreme Court. By the time it does, we may have at least one and perhaps two more Justice Sotomayor's replacing conservatives. Liberals on the court will stretch the Commerce Clause even more to cover national health insurance. This is a goal those judges have imagined since they were young and will find any excuse within the law to make sure it passes constitutional muster.
That's why it's best to make sure that Obamacare never sees the light of legislative day.
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