David R. Henderson  

Turley on Constitutionality of Obamacare

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One of my favorite legal scholars, Jonathan Turley, has weighed in on the constitutionality of the Obama health insurance scheme. Here's a key paragraph:

With this legislation, Congress has effectively defined an uninsured 18-year-old man in Richmond as an interstate problem like a polluting factory. It is an assertion of federal power that is inherently at odds with the original vision of the Framers. If a citizen who fails to get health insurance is an interstate problem, it is difficult to see the limiting principle as Congress seeks to impose other requirements on citizens. The ultimate question may not be how Congress can prevail, but how much of states' rights would be left if it prevailed.
Well done. But just three paragraphs later, he writes the following:
There is no serious basis to challenge the right of Congress to impose a national medical plan on the states. In 2008, this country spent $2.3 trillion on health care -- representing 16.2% of our gross domestic product. This is a national crisis demanding a national, as opposed to a state-by-state, solution.
He points to the fact that there is a crisis in health care in all the states [True], doesn't ask what's causing it and how the feds just might be contributing to it, and then says that because it's a national crisis, that calls for a national solution. If this is an argument, it is argument solely by arithmetic. You add up all the spending in all the state and, sure enough, you get $2.3 trillion. What if everyone had a garden and a new kind of (non-interstate) bug infested all gardens in all states. This would be a national crisis too but it would be one that could be solved on a much more local level. That reasoning is not up to Turley's standard.

HT to Sheldon Richman

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COMMENTS (8 to date)
Steve Z writes:

If the individual mandate is held to pass constitutional muster, then the "switch in time" revolution is complete: the commerce clause has no limits; nothing is forbidden. This will be greatly helpful to future generations of law students, who can simply state that there are no limits on the commerce clause, and so there's no point of running an analysis.

Perhaps Mr. Turley intends for there to be a "really big problem" exception to commerce clause jurisprudence. If that's the case, I suggest we all defer to the legislature, who have time and again proven capable of putting their finger on the zeitgeist and accurately perceiving national crises when, and only when, they actually exist.

The current interpretation of the Commerce Clause is already an abomination.

The Federal regulation of commerce was intended to prevent import/export duties from arising between the states. It was intended to preserve freedom of interstate commerce.

Instead, any association with interstate commerce, or to any good that moves (or might move) in interstate commerce, supposedly gives the government the right to regulate (control) the associated person or industry. This control goes far beyond making commerce free.

So, the logic is already diseased. In this light, who cares about "the first time the government will impose obligations on a citizen for merely breathing". This sort of defense will not work, because the state of American freedom is now a matter of political power, not of the niceties of constitional law.

I hope the Supreme Court rules for freedom, but the limitation of the all-powerful state does not depend on that. If our country votes for freedom and against easy promises, then we get freedom. If our country votes for wellfare promises, then we will have a socialist state, and the Supreme Court will follow along in interpreting the Constitution, regardless of the plain intent of those words on a piece of yellowing paper.

Duane McDonald writes:

The problem as I see it is the way things see to be made overly complex today. It seems to me that the wording of the Constitution means what the words say. It may be that we have come to rely overmuch on interpretation of what we th ink may have been the intent of what was written or said as opposed to what was actually said or written.
Could this be a result of an oversupply of attorneys?
The often repeated phrase in todays conversation, "you know what I mean?", may indicate that we have no understanding of the spoken or written word.

Yancey Ward writes:


You make this more complex than it really is. The Constitution is an impediment to the desires of certain factions in different ways, so the faction acquires enough power to reinterpret the words to fit their goals. After 200+ years, and many different factions and goals, we now have a meaningless document. The first commenter was essentially correct- the people choose the meaning of the document through the pursuit of power. If a majority wishes to give its liberty away, it will be given away. The real problem is reacquiring it once it is lost.

floccina writes:

who says that it is a nationwide problem:


Statewide average,
Range of Medicare payments
highest to lowest
High hospital Low hospital
New Jersey $100,745 $34,275
District of Columbia $54,715 $41,723
California $112,777 $24,640
New York $101,099 $20,510
Maryland $67,645 $24,574
Hawaii $47,450 $29,045
Connecticut $49,211 $31,925
Massachusetts $54,782 $29,051
Alaska $41,792 $35,112
Illinois $67,003 $19,914
Florida $64,962 $23,248
Rhode Island $42,481 $28,469
Pennsylvania $109,846 $20,420
Texas $94,164 $19,650
Delaware $37,756 $27,631
Michigan $52,688 $18,447
Nevada $44,993 $26,746
Arizona $38,239 $24,614
Washington $50,716 $24,470
Minnesota $46,511 $22,082
South Carolina $39,571 $20,932
Vermont $35,131 $19,285
Louisiana $50,232 $23,300
Tennessee $39,012 $19,958
Georgia $45,177 $20,562
Colorado $36,590 $20,469
Nebraska $40,647 $22,533
North Carolina $38,463 $19,888
Kansas $45,164 $20,930
Arkansas $37,867 $21,063
New Hampshire $34,848 $23,507
Mississippi $37,145 $19,011
Missouri $49,971 $20,201
Oregon $41,108 $21,157
Virginia $51,352 $21,734
Alabama $39,661 $17,806
Wisconsin $40,569 $19,007
Oklahoma $38,606 $22,522
Maine $35,878 $19,198
Wyoming $27,777 $23,567
Montana $34,225 $19,697
Kentucky $37,412 $19,537
Ohio $46,855 $20,541
New Mexico $35,422 $21,852
South Dakota $28,377 $19,177
Utah $35,471 $23,117
Indiana $47,614 $20,361
North Dakota $27,099 $19,311
West Virginia $34,391 $22,526
Iowa $34,821 $20,771
Idaho $28,179 $21,845

Utah, Idaho, Wyoming and North Dakota seem to not have much of a problem at all.

And some of the problems are arguably made at the state level, like excessive licensing and regulation.

I think the feds could use the commerce clause correctly to force the states to allow doctors and insurance that is accepted in any other state.

David R. Henderson writes:

You're doing exactly what Turley did. I didn't deny that it was national. I said that has nothing to do with whether it requires a national solution.

lindsay writes:

My problem with this legislation is that the people have clearly expressed that they do not want it, yet the current administration and all its supporting politicians are force feeding it to the public. There have been numerous surveys including the CBS News poll and the ABC News/Washington Post poll that show the approval rating of the health care reform being below 50% (lamarsmith.house.gov). As Turley mentioned before about this being “at odds with the original vision of the Framers”, the purpose of government is for them to serve the people as representatives of the people. This nation was built on the ideas of the Founding Fathers and never before has our government been so hell-bent on passing something that A: the people have voiced that they don’t want and B: is blatantly unconstitutional. If the government was representing the people there would be no way that this health care reform would be constitutionally passed with a majority vote.

Speaking of the debt of $2.3 trillion on health care in 2008 being a national crisis in that it represents 16.2% of our gross domestic product, that is nothing compared to what is coming if this government budgeting continues. When Obama took office in 2009 the CBO estimated the debt in 2019 as being $9.3 trillion. By 2020 the national debt is estimated to rise from $7.7 trillion today to a whopping $18.57 trillion. This represents 77.2% of the GDP. And $743 billion in new taxes is expected with the government takeover in health care (http://www.gop.gov/policy-news/10/02/02/the-presidents-fy-2011-budget). Talk about a national crisis, but guess who’s responsible? Obviously the solution cannot come from the headstrong, narrow-sited leaders in the government seeing as they are the ones putting this plan into action. We simply can’t afford this plan and that is why demand is so low for it. It’s like the income effect, consumers won’t buy what they can’t afford but in this case the government is giving us no choice. It doesn’t matter that our demand for it is low because the government is changing the basic rules of economy in their favor. I wish I had another solution to offer but all I know is this is not the solution we need.

Chris writes:

It is comic and sad at once. There are those who say health care is too important/complex/big of an issue to be held back by the Constitution and those simpleton founders. In fact, the exact opposite is true. I disagree completely with this bill on the merits, but if there truly IS this enormous mass of folks who believe health care is a 'right' which can be granted/enforced by the US Government, then the Constitution has a simple answer for that too: Amend It.

In the mean time, this bill should have zero Constitutional standing.

Peace be with you.

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