The Perfect Constitutional Storm

Much has been made of several states suing the federal government over the passage of ObamaCare. The argument is, essentially, that the new law violates the 10th Amendment and infringes on the "commerce clause" of the Constitution. In this article, I will argue that this approach by the states will probably fail (in and of itself) -- but that the suits brought by the states could play a role in a more comprehensive strategy to challenge the constitutionality of ObamaCare.

Let's make one thing clear up front. The states are motivated to take legal action to stop the recently passed health care bill because of one primary factor: political pressure. Around 60% of the people in America are mad as hell about the passage of ObamaCare -- and any local or state elected official with a lick of sense knows it.

There are some governors and state legislators who have figured out that ObamaCare may amount to the final nail in the coffins of their financially deceased states' treasuries. But few politicians worry about their states' debts; most agonize over being reelected.

States have ceded power, with few complaints, to the federal government for highway funding, control of education, Medicare and Medicaid mandates, management of waterways, etc., etc., ad nauseam, for over fifty years.

The states, acting alone in a constitutional challenge of the new health care legislation, will have some difficult hurdles to overcome:

A) Article VI of the Constitution states in part:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof ... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

States can pass all the laws that they want "nullifying" ObamaCare. But they can't nullify the Constitution. Article VI is a huge obstruction for the states because, like it or not, ObamaCare is now the "law of the land."

B) The "commerce clause"[i] has, at least since the early 1940s in Wickard v. Filburn, been given the broadest possible interpretation by the Supreme Court. (Believe it or not, the Supreme Court held in Wickard that wheat grown by a farmer that was fed to his chickens was part of interstate commerce.) States contending that medical treatment is not part of interstate commerce will have at least as tough a go as farmer Filburn did with his argument about feeding his hungry chickens.

There is hope, however, that suits filed by the states and by aggrieved citizens might have a chance of winning before the Supreme Court.

Let's start with the historical example of Marshall v. Barlow's Inc. Here is how the Supreme Court summarized the case:

On the morning of September 11, 1975, an OSHA inspector entered the customer service area of Barlow's, Inc., an electrical and plumbing installation business located in Pocatello, Idaho. ... Mr. Barlow inquired whether any complaint had been received about his company. The inspector answered no, but that Barlow's, Inc., had simply turned up in the agency's selection process. The inspector again asked to enter the nonpublic area of the business; Mr. Barlow's response was to inquire whether the inspector had a search warrant. The inspector had none. Thereupon, Mr. Barlow refused the inspector admission to the employee area of his business. He said he was relying on his rights as guaranteed by the Fourth Amendment of the United States Constitution.

In 1978, the Supreme Court (confirming a lower court's decision) sustained Barlow's right to protection under the 4th Amendment and held that OSHA needed a search warrant to enter a private business. The 1978 Supreme Court (which had more "progressive" members than today's Court) ruled 5 to 3 in favor of Barlow (one justice did not participate in the decision).

Now, flash forward to the very near future. There are at least three scenarios from which the next "Bill Barlow" might emerge and successfully overturn the constitutionality of ObamaCare. (All of these are necessarily hypothetical examples.)

1) A young single mother whose child is covered by CHIP (or perhaps the mother just takes her child into the emergency room when the child is sick) decides that she does not need or want her own health insurance. She works for a small business (under fifty employees) that is not required to provide her such insurance.

2) A small business is forced to close down when it is unable to either buy insurance for its employees or pay the "penalties" imposed by ObamaCare.

3) Large businesses are sued by their workers (and retired workers) because the business must violate existing contracts for medical services for its workers and retirees because of ObamaCare.

Let's focus on scenario number one (the young mother) as the basis for the argument because it is the easiest to explain from a constitutional standpoint. (Scenario two -- the small business -- would closely follow the same arguments as scenario one. The third scenario is very complex, constitutionally speaking, and I will not address it in this piece.)

A young mother finds that the IRS has withheld several hundred dollars from her paycheck as a "penalty" for not having health insurance. (Despite whatever incentives are in the law, this woman did not want to fill out the forms or apply for aid, or she had other more pressing financial problems to address. In short, she simply didn't want or perhaps did not have the time and resources to purchase health insurance.)

Because of the IRS "penalty," the young mother cannot pay her rent. She and her child are suddenly without a place to live.

Constitutional legal foundations (and perhaps some state attorneys general) step in to represent the young mother. Their argument should go something like this: The woman's constitutional rights under the 4th, 5th, 6th, 7th, 8th, and 9th Amendments have been violated.

Let's run through each of these quickly. While the government has the right to tax its citizens' income under the 16th Amendment, the "penalty" accessed against the mother is not a tax. It is clearly called a "penalty" -- not a "tax" -- in the legislation, and Obama has specifically denied that the "penalty" is a tax[ii].

The first thing that comes to mind is that the law is a clear violation of the 6th and 8th Amendments. The 6th Amendment grants a trial by jury in a criminal case. The 8th Amendment says:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. [This amendment also applies to criminal proceedings. Emphasis mine.]

The Democrats in the Senate could see these constitutional lawsuits coming, so they added language to the bill making sure to say that the "penalties" mentioned in the bill are not criminal fines[iii]. This language seems to (or at least was intended to) preclude constitutional challenges under the 6th and 8th Amendments.

But if the "penalties" in the law are neither taxes nor criminal fines, then what in the world are they? This is why the Democrats put the collection process of the ill-defined "penalty" in the hands of the IRS. It is extraordinarily difficult to sue the federal government. It is even harder to sue the federal government if one is first forced to go through the IRS.

The IRS has its own "courts" and review processes, and these rarely include constitutional protections (like due process and trial by jury). Our hypothetical young mother will find that either the IRS has garnished her wages or that the IRS has actually confiscated the "penalty" directly from her bank account. She will be forced to go through layer after layer of IRS bureaucracies before (and if) she gets to present her case to a real judge and a real jury composed of her peers. Placing collection and enforcement of the "penalties" in the hands of the IRS is the most insidious part of ObamaCare.

Nevertheless, the young mother (with competent legal counsel) may eventually get her day in court. Her argument before the federal courts will go something like this:

a) The "penalty" is a violation of the 4th Amendment, which says, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." Seizing someone's wages or savings as a "penalty" for not purchasing a specific product or service certainly seems like an unreasonable seizure.

b) The "penalty" is a violation of the young mother's 5th Amendment rights: "No person shall ... be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." [Emphasis mine.]

Since the IRS will garnish the mother's wages, there will be no due process for the mother without a protracted legal battle through many strata of bureaucracies. The woman's money is her private property. It is being taken from her, for public use, without any (let alone "just") compensation.

Here is an analogy for both a) and b): The government can impose a fee for a service (e.g., charging admission to Yellowstone Park). But until now, government could not penalize a person who didn't want to visit a national park. Under ObamaCare, the citizen is charged a penalty for not purchasing a service. The citizen receives nothing in return for the "penalty." It is as if the government is able to charge every citizen who has not been to Yellowstone Park a specific "penalty" for having failed to visit the park. Keep in mind that the "penalty" is not a tax for the general upkeep of Yellowstone Park. It is a "penalty" meted out to those individuals who have chosen not to visit the park. This is exactly parallel to the reasoning behind ObamaCare.

c) As we have seen, the "penalty" imposed by ObamaCare is neither a tax nor a criminal fine. Perhaps this leaves the ObamaCare "penalty" in the constitutionally obscure area of common law[iv].

Under ObamaCare, one can see the government arguing that the "penalty" is a civil (not criminal) fee aimed at someone, like our hypothetical mother, who has "damaged" other citizens by not buying her own health insurance. (The mother's refusal to buy health insurance is considered by the government to be a burden on those citizens who do have health insurance.) Well, maybe.

The problem is that the 7th Amendment gives our hypothetical mother, in a civil or common law case, a very specific right:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Better that the federal government stays away from the common law approach to ObamaCare -- or it could have millions of jury trials challenging the constitutionality and the amount of the civil "penalties" in every case[v].

d) Finally, the mother could sue under the 9th Amendment. The 9th Amendment is short and sweet:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people[vi]. [Emphasis mine.]
What is interesting about the possibility of a 9th Amendment challenge to ObamaCare is that previous "progressive" decisions issued by the Supreme Court could offer some of the best ammunition for the case that the legislation is unconstitutional.

Of particular importance is Griswold v. Connecticut. This poorly decided Supreme Court case (written in 1965) has become the heart and soul of the judicial "reasoning" behind Roe v. Wade (legalized abortion), Planned Parenthood v. Casey (husband need not be notified if wife has an abortion), and Lawrence v. Texas (Texas sodomy law ruled unconstitutional).

It would be the irony of ironies if Griswold v. Connecticut were used by the Supreme Court to overturn Obamacare -- and it just might be.

Justice Douglas, who wrote Griswold, found that "... specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy."

We could debate all day about what this gibberish means. But the Supreme Court has found it to be of the utmost importance. Griswold held that the state could not prevent a married couple from purchasing contraceptives. One would assume that the opposite would also be true -- that the state cannot force a married couple to buy and use contraceptives. Substitute "health insurance" for "condoms" and Griswold gives us an argument against the constitutionality of ObamaCare.

Douglas noted in his Griswold decision, "In NAACP v. Alabama, 357 U.S. 449, 462, we protected the 'freedom to associate and privacy in one's associations.'" One would think that it follows that the freedom to associate or not with an insurance company would be up to the individual citizen.

Douglas also declared, "Such a law cannot stand in light of the familiar principle, so often applied by this Court, that a 'governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.'"

Like whether or not to buy health insurance? Free to choose a level of coverage? And to be able to buy such insurance from whatever source a person desires -- free from the interference of the government?

Finally, Douglas claimed, "The Fourth and Fifth Amendments were described in Boyd v. United States, 116 U.S. 616, 630, as protection against all governmental invasions 'of the sanctity of a man's home and the privacies of life.'" There is nothing quite as private in our lives as our bodies and our health -- and what we decide to do with them.

Time will tell if the Supreme Court was really serious in Griswold -- and if the 4th and 5th Amendments actually mean what they say. Because if they do not...then ObamaCare is another giant step to the destruction of the Constitution.

On the other hand, if properly presented, ObamaCare seems to present the Supreme Court with the perfect constitutional storm.

Larrey Anderson is a writer, a philosopher, and submissions editor for American Thinker. He is the author of The Order of the Beloved, and the memoir Underground. His next book, The Idea of the Family, will examine the role of procreation in human self-awareness.

[i] The "commerce clause" is an enumerated power of the congress under Article I, Section 8 of the Constitution. It states that the congress may "regulate Commerce with foreign Nations, and among the several States."

[ii] The language used in the law is "penalty" -- not "tax." E.g., see Chapter 48 of the bill that says in part:

If an applicable individual fails to meet the requirement of subsection (a) for 1 or more months during any calendar year beginning after 2013, then, except as pro- vided in subsection (d), there is hereby imposed a penalty with respect to the individual in the amount determined under subsection (c). [Emphasis mine.]

[iii] The verbiage is also in Chapter 48: ‘‘(2) SPECIAL RULES.-Notwithstanding any other provision of law- ‘‘(A) WAIVER OF CRIMINAL PENALTIES.-In the case of any failure by a taxpayer to timely pay any penalty imposed by this section, such taxpayer shall not be subject to any criminal prosecution or penalty with respect to such failure. [Emphasis mine.]

[iv] Common law is the underlying British law that formed the basis of most civil law (like property law) in the United States. For example, if my neighbor's cows get loose from an improperly constructed fence and destroys some of my property, I may be able to receive restitution from my neighbor under common law. (My neighbor pays a "penalty" to me for the destruction caused by his cows.) For the record, this would be a tough argument to make, constitutionally speaking.

[v] The fact that the penalty is (essentially) one-size-fits-all is on its face ridiculous -- and a violation of equal protection under the law. A wealthy person who forgoes insurance should (rationally speaking) pay a lower fine than a poor person who fails to buy insurance. The rich person can pay for his or her medical care and does no damage to other citizens. (Recall Rush Limbaugh's recent emergency medical treatment in Hawaii. Limbaugh paid cash for his treatment.) The poor person must rely on others (either charity or the state) to pick up his or her medical bills.

[vi] I have shown elsewhere that health care is not an enumerated right in the Constitution and will not debate that issue here.