'Waiving' goodbye to the Constitution

The grounds for the states' suits against ObamaCare have to do with states' rights, states' sovereignty, the Tax and Spend Clause, and, especially, whether the Commerce Clause trumps the Tenth Amendment. Valid grounds all. But in its implementation, ObamaCare is violating yet another constitutional guarantee: equal protection. Two recent articles at National Review Online address this issue. In "Unequal Protection You Can Believe In," Hoover Institute fellow Deroy Murdock writes:

Obamacare is not being enforced equally at all. As of February 9, the Obama administration had granted 915 waivers, mainly to influential organizations, major companies, and pro-Democratic labor unions. Those less lucky or less well connected have a different option: Obey Obamacare.

In "Are Health-Care Waivers Unconstitutional," Philip Hamburger, law professor at Columbia University, asks: "once a law has passed -- and therefore is binding -- how can the executive branch relieve some Americans of their obligation to obey it?" He then launches into a brief legal history of the Middle Ages forward on the subject of waivers, which were known as "dispensations":

Waivers can be used for good purposes. But since the time of Matthew Paris [A.D. 1251], they have been recognized as a power above the law -- a power used by government to co-opt powerful constituencies by freeing them from the law. Like old English kings, the current administration is claiming such a power to decide that some people do not have to follow the law. This is dangerous, above the law, and unauthorized by the Constitution.

One didn't need to wait for ObamaCare to go into effect to know that it treats folks unequally -- waivers were built into the law itself. ObamaCare exempts certain selected religionists from the "individual mandate" to buy health insurance. Find the provision in Chapter 48, Sec. 5000A, (d) (2), on page 128 of the 906-page PDF:

(A) RELIGIOUS CONSCIENCE EXEMPTION -- Such term shall not include any individual for any month if such individual has in effect an exemption under section 1311(d)(4)(H) of the Patient Protection and Affordable Care Act which certifies that such individual is a member of a recognized religious sect or division thereof described in section 1402(g)(1) and an adherent of established tenets or teachings of such sect or division as described in such section. [Emphasis added.]

But even if it were written into the Constitution, thereby overcoming the limitations of the Tenth Amendment, the individual mandate would still clash with the Equal Protection Clause -- even if there were no waivers. That's because the individual mandate puts an encumbrance on the exercise of a basic right.

A precedent can be found in Harper v. Virginia Board of Elections (1966), which cites the Equal Protection Clause throughout. In finding Virginia's poll tax unconstitutional, Justice Douglas concluded the Court's opinion thus: "the right to vote is too precious, too fundamental to be so burdened or conditioned." And what is it that ObamaCare's individual mandate burdens and conditions? It is something even more precious than the right to vote -- it is one's very existence. (For an earlier take on the individual mandate's violence to the Equal Protection Clause, read this 2008 article.)

In "Congress Rediscovers the Constitution," Roger Pilon of the Cato Institute writes:

[The 112th Congress must] reject without embarrassment the facile liberal objection that the courts have sanctioned what we have today, and thus all a member need do when introducing a bill is check the box that says "Commerce Clause," "General Welfare Clause" or "Necessary and Proper Clause."

If these clauses in the Constitution enable Congress to enact the individual health-insurance mandate, then they authorize Congress to do virtually anything. The Supreme Court was wrong in allowing Congress to exercise power not granted it by the Constitution, and courts today are wrong when they uphold those precedents.

On March 7 we learn that ObamaCare's waivers have broken 1,000. We would do well to consider the blurb from Hamburger's article: "The president cannot simply decide who does and does not have to follow the law."

The law is the law only if it applies to everyone. ObamaCare's waivers go to the very heart of what "a nation of laws, not men" is all about.

Jon N. Hall is a programmer/analyst from Kansas City

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