The Constitutionality Of Inactivity
“If the exercise of power is allowed and the mandate upheld, it is difficult to see what the limits on Congress’ Commerce Clause authority would be. What aspect of human activity would escape federal power?”
I’ve had the unnerving experience of staring down the barrel of a loaded gun aimed at me, I’ve jumped off a three story cliff into water I wasn’t sure was deep enough to safely accept my fall. And I’ve been on a small boat in stormy seas where the waves were higher than our tallest mast. Many times in my life I’ve faced debilitating fear; for my safety, my health or even just the fear of failure. But after reading the complete context of the previous statement, for the first time in my life, I’m actually feeling a little scared for my country.
“To approve the exercise of power would arm Congress with the authority to force individuals to do whatever it sees fit…”
What makes this scary is that these aren’t the statements of a conspiracy theorist, and they aren’t just some right wing conservative talking points, they’re excerpts from the opinion of Judge James L. Graham of the 6th Circuit Court of Appeals in deliberating the constitutionality of the Patient Protection and Affordable Care Act, otherwise known as ‘Obamacare’. And if that weren't bleak enough, he’s the dissenting opinion.
As challenges of the bill make their way up to the Supreme Court we can catch a preview of the eventual proceedings by seeing how the lower courts dissect every foreseeable merit and weakness of the legislation. And that’s where, in my opinion, the nightmare begins.
Worse than just the conclusion to uphold the constitutionality is their dangerous twisting of reason through which they arrive at their decision. While I’m not a legal expert, I’ve had more than a few lessons in logic, and, although I was taught to stay away from the fallacy of argument called the “slippery slope” I’m seeing it played out right before our very eyes in the ever expanding right to control our lives that the courts are granting Congress.
While there have been many small steps towards expanding the reach of Congress since the country was founded, the biggest single leap, until now, arguably came in 1942 with the Supreme Court ruling in the case of Wickard v. Filburn, whereby the court decided that a farmer growing his own crop for his own consumption still affected interstate commerce. Since growing more of his own wheat meant he was purchasing less on the open market he was affecting the overall consumption and price and therefore susceptible to federal regulation.
Using that broad a definition, there was very little Congress didn’t have control over. With that expansive an authority, who’s to say they couldn’t also be allowed to limit how many meals you make at home, since every peanut butter and jelly sandwich represents one less Big Mac you might buy, thereby affecting McDonald’s interstate commerce and Congress’ ability to regulate it.
After that ruling, the commerce clause was pretty much boundless, except for one big restriction. While Congress could now control just about everything you were doing, until Obamacare, they had never really tried to control what you weren’t. But, no longer is the argument about just regulating the market, what’s at stake now is your very freedom to choose whether or not to participate in it.
And this is where Judge Martin Boyce Jr. uses a sobering concoction of both legal and verbal gymnastics in putting together his majority opinion.
Essentially, Judge Boyce’s assessment goes like this: Everyone uses the healthcare industry. Health insurance is the only way most people can afford care. Having more people enrolled with an insurance company should bring down the cost of premiums. Government, through the commerce clause, has the right to regulate those costs. So, therefore, to that end, the government has the ability to make everyone get insurance.
An even more condensed version looks like this: You NOT doing something interferes with government's ability to legislate it, therefore, they can make you do it so they can better utilize their authority. Now don’t you feel better?
If that’s the case, then couldn’t you also say: Everyone uses the school system. The schools get millions of dollars from proceeds of the lottery. Government has the right to raise taxes to in order to fund the schools. So, therefore, and to that end, the government has the ability to make everyone buy more lottery tickets.
Whether or not you think the healthcare system needs an overhaul, is this truly the extent to which we’re ready to cede power to the federal government to get it done? Judge Boyce’s decision breaches the final wall on the limits of the commerce clause by granting government the authority not just to regulate activity but now mandate it as well.
History has no shortage of examples of the failures of governments that try to control market costs for some greater good to society. But this reaches beyond even that. Congress isn’t trying just to control costs; they’re trying to control us. But this time it’s not because of safety or security, it’s because they think it will promote the general welfare or somehow aid us in our personal pursuit of happiness.
Regardless of the fact that there’s no proof that this healthcare plan will provide any of the benefits it intends, the 6th Circuit Court of Appeals is suggesting that Congress has the right to make us buy something we might not want, in order to help pay for something we might not use, all because someone we might not know, might not be able to afford something they didn’t plan on needing, but demanded the right to have anyway. And that, Congress tells us, is too much of a risk to take. With all due respect to Mr. Boyce, I still believe that our Constitution says that we, the people, should be the judge of that.