I spoke to the attorney general on Friday about the lawsuit he has joined against the health care bill. His first remarks were, “I’m not against health care reform. We should do a better job of taking care of our citizens. It’s a noble cause, but it shouldn’t violate the Constitution. That weakens the nation and tramples constitutional guarantees and framework.
“If the individual mandate is upheld,” Abbott said, “there is no limit on what Congress can order Americans to buy. They could require us to purchase an electric vehicle.”
“The federal government can only take action on enumerated powers in the Constitution. The framers understood that no limits on the government’s power tramples liberty. Congress has to have the authority to act before it can take action.
“The bill invokes the commerce clause. Our belief is that this law violates the commerce clause. Congress does not have the authority to enforce the individual mandate on Americans. The commerce clause has been never been construed to apply to nonactivity or the refusal to engage in activity. The law infringes on the right of the individual to refuse to buy health insurance.
“Congress was warned–the Congressional Budget Office, the Congressional Research Service, warned of the uncertainty of the individual mandate.”
[This warning dates back to the health care debate during the Clinton presidency. The Congressional Budget Office wrote in 1994, during an earlier health care debate, “A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States. An individual mandate would have two features that, in combination, would make it unique. First, it would impose a duty on individuals as members of society. Second, it would require people to purchase a specific service that would be heavily regulated by the federal government.”]
Back to Abbott:
“We dovetailed our commerce clause argument into the Tenth Amendment. Because Congress does not have the authority to impose the individual mandate, it violates the Tenth Amendment by straying into a sphere of state sovereignty. This falls into the area of the police power, or the general health and safety of the people.” Our research, and that of the Congressional Research Service and the CBO, has determined that never before has Congress required Americans to purchase a good or service. This is unprecedented as to the general mandate and the expansive interpretation of the commerce clause. For us to lose, the Court would have to expand the scope of the commerce clause broader than ever before.
“If Congress can impose this, they can impose on state sovereignty.”
[Very few cases have been decided on Tenth Amendment grounds. However, in the not too distant past, the Supreme Court has struck down two laws that it said exceeded the reach of the commerce clause. One established gun-free zones near schools. The other was the violence against women act. The Court found that the purpose of these laws was to invoke criminal penalties, rather than to regulate interstate commerce.]
“The case will come down to one thing,” Abbott said. “How the Court defines what the commercial activity is. If the activity the bill regulates is insurance, Congress has the power to regulate it under the commerce clause. If it’s the refusal to buy insurance, that is a more expansive version of the commerce clause–we’re going to force people into commerce and then regulate them, that is a more expansive version of the commerce clause, and regulating it may violate the Constitution.”
Abbott believes there are four votes on the Court today for the view that Congress has exceeded its power under the commerce clause (Roberts, Alito, Scalia, Thomas). As has often been the case in recent years, Kennedy is the swing vote.
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I think we’re going to see the Supreme Court move sharply to the right, starting with the health care case. My personal opinion is that the conservative majority on the Court crossed a Rubicon with the Citizens United decision, and they are not going to forget Obama’s unwise criticism of it during his State of the Union address. I think that the majority wants to breathe new life into the Tenth Amendment and other doctrinal issues. I don’t think the Court will go so far as to recognize the right of the states to refuse to participate in the health care program. While I am concerned about the direction of the majority, I believe that Congress did exceed the reach of the commerce clause with the individual mandate, and the Court should strike it down. Personally, I find the individual mandate to be a craven political move that is reminiscent of toll roads and tuition deregulation here in Texas. That is, it shifts the cost of government from taxpayers generally to a small segment of the population – those who have chosen not to buy health insurance – in order to avoid raising taxes. I think the individual mandate is unconstitutional and is contrary to the individual freedom of ordinary Americans.