The legal whizzes on the editorial board of the Denver Post have spoken: Amendment 63, the Right to Health Care Choice Initiative, is bad because Obama Care is constitutional. Today’s editorial reads:
[W]e believe [Obama Care] will survive legal challenges and will be found to be constitutional. The Constitution provides Congress authority to impose an individual mandate through the power to regulate interstate commerce and the power to tax.
The Post says so, even though, “We’re sympathetic to the argument that an individual mandate is a curtailment of personal freedom or an infringement of states’ rights.”
Well . . . maybe not too sympathetic.
Because if they were more sympathetic, they might have noticed that the merits of Amendment 63 don’t depend at all on the constitutionality or non-constitutionality of Obama Care. Amendment 63 merely says that whatever the feds can or can’t do, Colorado state government isn’t going to join any jack-booted drive to crush our health care freedom.
Anyway, the Post is also wrong on the constitutional issue. First, it’s flat wrong about what the Constitution really means. Second, it may well be wrong on how the courts will rule.
According to the real meaning of the Constitution—as the Founders understood it—a “tax” is a levy to raise revenue for the government. Obama Care’s mandates aren’t designed to raise money. They are designed purely to punish innocent people. President Obama himself has denied they are a form of taxation. Even if they were a form of taxation, they would violate the Constitution’s requirement that direct taxes, other than income taxes, be apportioned among the states. The modern Supreme Court still respects that rule.
So the only way to justify Obama Care constitutionally is to claim that Congress can take over the health care system because the Constitution grants Congress power to pass “necessary and proper” laws to “regulate Commerce . . . among the several States.”
But as the Constitution uses the term, “Commerce” doesn’t include all economic activity. It means trade among merchants, mercantile finance, mercantile insurance and a few other items. It does not include health care. It does not include health insurance. And—as advocates of the Constitution explained while the document was being debated—it does not include social services.
Even if it did, Obama Care goes far beyond regulating insurance “among the several States” to include health care decisions made solely within individual states.
Now, I recognize that the modern Supreme Court has stretched the congressional Commerce Power far beyond its original meaning. The Court’s persistent misreading in this area is probably what the Post is counting on. But even under its modern rulings, the Court has never gone as far as those who claim that regulating “Commerce” includes punishing innocent people because they refuse to engage in commerce.
The Constitution grants Congress power to “define and punish Piracies and Felonies committed on the High Seas.” Does that mean Congress has power to punish people who refuse to engage in piracy? The Constitution grants Congress power to “provide for the Punishment of counterfeiting.” Does that includes authority to punish citizens who refuse to counterfeit?
The Post should consider one more point: Today the feds are attacking doctors, nurses, insurers, and patients, but not newspapers. But tomorrow they may be coming for the editorial board of the Post. Yes, the Constitution says that “Congress shall make no law . . . abridging the freedom of . . . . the press.” But if we read that language the way the Post reads the Commerce Clause, perhaps it means Congress may make laws abridging freedom of the press.
The Post needs to remember that there’s nothing unscrupulous and power-hungry people can’t do with a little clever wordplay. Our Constitution is too important to subject it to that kind of treatment.