Monday, April 19, 2010


Give me a constitutional break

Back in 1995, I went to a fundraiser for a member of the Metro-Nashville Council. Said council member was a Democrat, but he was a friend of the family. And so I went.

Just as the fundraiser was busting up, State Senator Bob Rochelle came waltzing in wearing his stupid suspenders. Rochelle apologized for being late, explaining that he'd been "hiking" with Boy Scouts all day. Now, anyone who ever saw Bob Rochelle while he was serving in the General Assembly knew that the only hiking he ever did was from his car to the front door of Mario's or Jimmy Kelly's.

Having worked at the legislature for a short time, I knew Bob Rochelle. So I walked over and started chatting with him. When the conversation turned to politics, I asked him about some damn-fool domestic policy Bill Clinton was advocating at the time. We'd argued about it for a bit when I stated that I had a constitutional objection to whatever Clinton was doing. I don't remember what we were arguing about, but I do remember what Rochelle said in poo-pooing my constitutional concerns. It was so stunningly stupid, I almost certainly will never forget it.

According to Bob Rochelle, the Commerce Clause gives Congress license to do whatever it wants. "The Commerce Clause gives the U.S. Congress supremacy." That's what he said. I responded thusly: "So, Congress, basically, can do whatever it wants?" "Yes," quoth Rochelle.

Now, Rochelle had/has a reputation of being a big blowhard -- literally and figuratively. But that is one of the blowhardiest things I've ever heard a politician say.

When it comes to ObamaCare, several state attorneys general have raised questions about the constitutionality of the "individual mandate" contained therein. ObamaCare requires, under penalty of law, that every citizen purchase health care insurance. To justify the individual mandate, liberal members of Congress and left-wing talking heads have taken to citing the Commerce Clause. But the Commerce Clause regulates commerce between states, not private transactions between private citizens and private companies. One need not be a lawyer, or constitutional scholar, to recognize that ObamaCare's mandate is blatantly unconstitutional. Period.

Ken Cuccinelli, Attorney General of Virginia, has a very cogent letter in today's Wall Street Journal explaining why he has chosen to file suit against ObamaCare, and he makes some damn good points. To wit:

In your April 2 editorial "ObamaCare and the Constitution," you seem to assume that Virginia's lawsuit against ObamaCare is an attempt to "nullify" federal law.

This is not the case. Virginia concedes that the Constitution's Supremacy Clause ensures that federal law trumps state law when there is a direct conflict between laws. However, a federal law will only trump when it is constitutionally grounded. In our lawsuit, Virginia is asking the federal courts to declare the federal health-care act unconstitutional based on Congress's use of the Constitution's Commerce Clause to impose an individual health insurance mandate on citizens.

Certainly the Commerce Clause gives Congress the power to regulate commerce among the states, but for more than 220 years it has been applied to affirmative acts of commerce voluntarily entered into by individuals. If someone is not buying insurance, then—by definition—he is not participating in commerce. How, then, can the government use the Commerce Clause to regulate noncommerce? Virginia contends that it cannot.

If Congress has the power to force Americans to buy health insurance and thereby subsidize those people without it, then there is no limit to its power to force people to engage in other forms of commerce for the benefit of others. For example, Congress could force Americans to buy General Motors cars to save jobs in the face of lagging auto sales.

This lawsuit is an argument over how much the federal government can twist the wording of the Constitution so as to transfer even more power from the people to itself. It is about drawing a line on the bounds of the federal authority. Ultimately, it is about liberty itself.

Providing health care for all citizens is a laudable and worthy goal, but conceding our very freedom and the freedom of future generations to achieve that goal is a dangerous and inequitable exchange.

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