Obamacare: Bring on the Lawyers!

* The following was originally posted on the Young Americans for Liberty blog:

The newly passed health-care “reform” bill and the amendments to be made to it through the reconciliation process should be great fodder for lawyers around the country. ProPublica has posted a side-by-side comparison of the passed Senate bill and the proposed changes.

The most important form of litigation, of course, should be challenging the constitutionality of the bill. Besides its uncomfortable level of paternalism, “Obamacare” is in truth unconstitutional in several aspects — particularly the individual mandate.

Proponents will no doubt try to justify the bill using the two clauses in the Constitution often used by those seeking dubious justification for their expansions of government power: the commerce and general welfare clauses (both found in Art. 1, Sec. 8). Expansive interpretations of those two pieces of the document have been used countless times in the past to bolster the scope of the federal government’s authority to regulate and tax.

The commerce clause was intended by the authors to pertain to only actual interstate economic activity, not the lack thereof (as would be the case in fining individuals for not obtaining insurance). Given that the sale of health-insurance policies across state lines is currently non-existent, we run into constitutional hurdle number one.

Then there is the matter of providing for the “general welfare.” Jefferson and Madison were both clear on this subject.

Jefferson:

Congress has not unlimited powers to provide for the general welfare but only those specifically enumerated.

Madison:

With respect to the two words “general welfare,” I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.

These are just two examples of the constitutional dubiousness of this bill. Though I wouldn’t often recommend it, in this instance it’s time to bring in the lawyers. It seems the states are already lawyering up.

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