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Last week
the Supreme Court heard arguments concerning the constitutionality of the Obamacare law, focusing on the mandate requiring every
American to buy health insurance or pay fines enforced by the IRS. Hopefully
the Court will strike down this abomination, but we must recognize that the
federal judiciary has an abysmal record when it comes to protecting liberty.
It’s doubtful the entire law will be struck down. Regardless, the
political left will continue its drive toward a single-payer, government run health
care system.
The
insurance mandate clearly exceeds the federal government’s powers under
the interstate commerce clause found in Article I, Section 8 of the
Constitution. This is patently obvious: the power to “regulate”
commerce cannot include the power to compel commerce! Those who claim
otherwise simply ignore the plain meaning of the Constitution because they
don’t want to limit federal power in any way.
The
commerce clause was intended simply to give Congress the power to regulate
foreign trade, and also to prevent states from imposing tariffs on interstate
goods. In Federalist Paper No. 22, Alexander Hamilton makes it clear
the simple intent behind the clause was to prevent states from placing tolls
or tariffs on goods as they passed through each state-- a practice that had
proven particularly destructive across the many principalities of the German
empire.
But the
Supreme Court has utterly abused the commerce clause for decades, at least
since the infamous 1942 case of Wickard
v. Filburn. In that instance the Court decided
that a farmer growing wheat for purely personal use still affected interstate
commerce--presumably by not participating in it! As economist Thomas Sowell
explains in a recent article, the Wickard
case marked the final death of federalism: if the federal government can
regulate “anything with any potential effect on interstate commerce,
the 10th Amendment’s limitations on the power of the federal
government virtually disappeared.”
It is
precisely this lawless usurpation of federalism that liberty-minded Americans
must oppose. Why should a single swing vote on the Supreme Court decide if
our entire nation is saddled with Obamacare? The
doctrine of judicial review, which is nowhere to be found in Article III of
the Constitution, has done nothing to defend liberty against
extra-constitutional excesses by government. It is federalism and
states’ rights that should protect our liberty, not nine individuals on
a godlike Supreme Court.
While
I’m heartened that many conservatives understand this mandate exceeds
the strictly enumerated powers of Congress, there are many federal mandates
conservatives casually accept. The Medicare part D bill-- passed under a
Republican President and a Republican House--mandates that you submit payroll
taxes to provide prescription drugs to seniors. The Sarbanes-Oxley bill, also
passed by Republicans, mandates that companies expend countless hours of
costly manpower producing useless reports. Selective service laws, supported
by defense hawks, mandate that young people sign up for potential
conscription. I understand the distinction between these mandates and Obamacare, but the bigger point is that Congress
routinely imposes mandates that are wildly beyond the scope of Article I,
Section 8.
Perhaps
the most important lesson from Obamacare is that
while liberty is lost incrementally, it cannot be regained incrementally. The
federal leviathan continues its steady growth; sometimes boldly and sometimes
quietly. Obamacare is just the latest example, but
make no mistake: the statists are winning. So advocates of liberty must
reject incremental approaches and fight boldly for bedrock principles. We
must forcefully oppose lawless government, and demand a return to federalism
by electing a Congress that legislates only within its strictly limited
authority under Article I, Section 8.
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