Counting on the Courts: A Dangerous Precedent

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LOS ANGELES/Sept 13, 2011/ – Federal District Court Judge Christopher C. Conner declared the insurance mandate in the Patient Protection and Affordable Care Act unconstitutional on Tuesday.

Ruling on a case brought by a Pennsylvania couple without insurance, the judge ruled the Commerce Clause does not authorize the federal government to require citizens to carry health insurance.

“The power to regulate interstate commerce does not subsume the power to dictate a lifetime financial commitment to health care coverage. Without judicially enforceable limits, the constitutional blessing of the minimum coverage provision codified at 26 U.S.C. §5000A, would effectively sanction Congress‘s exercise of police power under the auspices of the Commerce Clause, jeopardizing the integrity of our dual sovereignty structure.”

Conner emphasized the limited powers granted to the federal government in the decision.

“The nation undoubtedly faces a health care crisis,” Conner said. “Scores of individuals are uninsured and the costs to all citizens are measurable and significant. The federal government, however, is one of limited enumerated powers, and Congress’s efforts to remedy the ailing health care and health insurance markets must fit squarely within the boundaries of those powers.”

Tenth Amendment Center communications director Mike Maharrey said that while he doesn’t put much stock in court rulings one way or another, he was pleased to see a federal judge at least acknowledge some kind of limits on federal power.

“This decision is a no-brainer in my view. Not even the most expansive understanding of the Commerce Clause justifies allowing the federal government to demand every American purchase health insurance. The notion is simply ludicrous,” he said. “The Commerce Clause was intended to give the federal government power to make commerce ‘regular’ between the states, and between the U.S. and other nations. Not as an overriding power to control every aspect of our economic system.”

But the ruling stops far short of declaring the entire health care act unconstitutional. It deals only with the insurance mandate. Conner never questions Congress’s power to create a health care system in the first place. In fact, he opens the door to an even more expansive application of the Commerce Clause by the Supreme Court.

“Heretofore, the Supreme Court has never sanctioned, under the auspices of the Commerce Clause, the enactment of a broad scale economic mandate in anticipation of a probable but uncertain future transaction. The Supreme Court’s Commerce Clause jurisprudence does not lend itself to such an expansive interpretation. Until the Supreme Court interprets the commerce power to permit anticipatory mandates (emphasis added), I am bound by stare decisis to conclude that section 5000A is unconstitutional,” Conner said

Maharrey said Conner’s caveat illustrates the danger of counting on federal courts to restrain federal power, pointing out that judges rely on legal precedent, not the actual meaning of the Constitution.

“Basically, Conner says the feds don’t have the power to impose an insurance mandate until the Supreme Court says they do. When you really dig into the ruling, this is no big victory for those who actually believe in the limits to federal power the framers intended,” he said. “The judge never addresses the original intent of the Commerce Clause. He never questions the veracity of Wickard. He gives no indication that maybe the feds shouldn’t be tinkering with health care at all. He just applies precedent. He gets it right, I’ll grant you that. But Conner doesn’t indicate he has any grasp on what the Commerce Clause really means at all.”

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James Madison expounded on the purpose of the commerce power in a letter written in 1829.

“It is very certain that [the commerce clause] grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government.”

The case stands as one of more than 30 suits involving the PPACA winding their way through the federal court system. Three federal appeals courts have issued rulings on the health care law. An Atlanta appellate court struck down the insurance mandate, a Cincinnati panel upheld it, and most recently, the 4th Circuit Court of Appeals threw out the case asserting Virginia lacked standing to bring suit.

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