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Will The Supreme Court Do The Right Thing?

March 24, 2010

Lawsuits have been filed by 11 states, including my home state of Pennsylvania, challenging the Constitutionality of Obama and the Democrats’ health care Law.  It will take a while for these cases to make their way to the Supreme Court, but regardless of the results in the lower courts, they will make it to the highest court in the land.  Once there, it’s abundantly clear that the Supreme Court should find the legislation unconstitutional under the Powers of Congress section of the US Constitution.

Article 1 Section 8 of the US Constitution defines exactly what Congress is allowed to do.  Anything not specifically listed is forbidden to the Federal Government, but may be considered by State Governments.  Let’s take a look:

Section 8 – Powers of Congress

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and Post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

There you go.  That’s it.  The Federal Government of the United States of America absolutely cannot compel you to buy a product or service from one or more private companies.

So what will the defense of the legislation be?  ObamaCare’s supporters are going to start talking about a “Welfare Clause” in the near future, if they haven’t already begun.

So what is the Welfare Clause?  It’s a reference to the first power listed in Section 8 — “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

The argument will be that “Congress can provide for the general welfare.”  It shouldn’t take a legal scholar to see the problem with that.  The power being granted in that statement is to TAX for those purposes, not to compel individuals to do congress’ bidding.  But “defense and general welfare” is very broad language, wouldn’t it be nice if it had been defined for us… well, that’s just what the rest of Article 1 Section 8 does.  Go back up and read through it.  Roads, Courts of Law, Punishment, Bankruptcy, Post Offices, Army, Navy, Militias, Immigration, Patents, Copyrights, Trade and Currency. There’s nothing there about forcing an individual to buy something “for his own good.”

I shouldn’t have to worry about it, but I’m not so naive as to trust that any branch of government will follow the Constitution.  So I worry – Will the U.S. Supreme Court do the right thing?  Will they strike down this unconstitutional law?

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