Ken Connor
Restrained by the Constitution
By Ken Connor
December 17, 2010

"In questions of power, then, let no more be heard of confidence in man but bind him down from mischief by the chains of the Constitution." Thomas Jefferson

On December 13, U.S. District Judge Henry Hudson issued a decision on the Commonwealth of Virginia's challenge to the constitutionality of Obamacare's "minimal essential coverage provision," sparking a flurry of controversy and commentary by declaring that neither the Interstate Commerce nor the General Welfare clauses of the Constitution permits Congress to mandate that Americans purchase health insurance.

As a conservative, of course I am delighted with the decision. As an attorney, I am impressed by Judge Hudson's admirable exercise of judicial restraint in crafting his opinion.

Perhaps to the chagrin of some conservatives who would have relished an ideologically-driven, politically-charged decision (and despite the wild accusations among some on the far left that this decision signals the first step towards a judicial imposition of a "libertarian utopia"), Judge Hudson doesn't second guess or venture an opinion about the wisdom or merits of the legislation. His analysis is a constitutional one, not a political or sociological one, and the question he considered is simple: Does the Constitution confer on the Congress the power to penalize individuals for not purchasing a particular good or service in the marketplace?

According to Kathleen Sebelius, Secretary of Health and Human Services and the defendant in the suit, the Congress is justified in requiring all Americans to purchase a minimum amount of health insurance coverage for two primary reasons. First, she asserts that health care is a commodity that everyone consumes at some point in their lives, and since there is a chance that they will not be able to pay for this care in full when the time inevitably comes, they should be made to contribute to the system. Secondly, Sebelius explains that the financial solvency of the ambitious and comprehensive legislation in question hinges upon universal participation. Secretary Sebelius also includes as part of her "general welfare" argument an assertion that the consequences of violating the mandate is not a penalty but a "tax" levied and collected by the IRS.

Judge Nelson gives full weight and consideration to each of these arguments in light of both constitutional language and judicial precedent, and concludes that the action at issue (compelling Americans to buy health insurance and penalizing them if they don't) is not authorized by the Constitution. He observes that words matter — that they have objective, propositional meaning — and he refuses to accept the government's manipulative conflation of the words "tax" and "penalty" as a means of bolstering its legal position in the case (the government has much more latitude imposing taxes than it does penalties).

Most importantly, Judge Nelson takes pains to emphasize that the federal government is a government of limited and delegated authority. As such, when the scope of the proposed mandate is compared against the authority of the government to act in such a manner, there is no other conclusion to draw but that the government is guilty of overreach:

"The unchecked expansion of federal power to the limits suggested by the Minimum Essential Coverage position would invite unbridled exercise of federal police powers. At its core, this dispute is not about regulating the business of insurance — or crafting a scheme of universal insurance coverage — it's about an individual's right to choose to participate. . . . On careful review, this Court must conclude that section 1501 of the Patient Protection and Affordable Care Act — specifically the minimum essential coverage provision — exceeds the constitutional boundaries of congressional power." (See p. 37- 28 of the opinion, which can be found here.)

One would think that protecting every individual's "right to choose" would be something that a Democratic White House and Congress would embrace in all situations, but this is clearly not the case. When the solvency of a huge new entitlement program is on the line, there is no room for economic liberty and self-determination. Thankfully, the Founding Fathers instituted a separation of powers between three co-equal branches of government. Judge Nelson's decision represents a great victory for constitutional governance, for unlike his colleague in California (who was unable to resist injecting politics and ideology into the Proposition 8 decision) he resisted the temptation to make law from the bench or indulge in fanciful interpretations to reach a desired result. He simply identified the applicable provisions of the Constitution, applied them in a neutral way while taking into account the plain meaning and intent of the relevant language, and arrived at his conclusion.

Each and every American should be glad to live in a country where the government is restrained from overreaching into the lives of its citizens. Undoubtedly, this is not the last we will hear of the individual mandate controversy, as the issue is all but certain to wind up under consideration by the Supreme Court. When that day comes, if the highest judges in the land reach a conclusion different than Hudson has, there will be virtually no limit to what the government could require "in the best interest of its citizens."

Civilization has been down this road before: a road paved with benevolent intentions that ended up eroding the very freedom and happiness it was meant to secure. Say what you want about the evolution of American society and law, but the Founders never intended this nation to be anything but a constitutional republic. This is a principle is that must remain fixed in the mind of every American, for the Constitution is the original and irreplaceable guardian of our liberties.

© Ken Connor


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