Saturday, December 26, 2009

The Constitutionality of Obamacare

The mainstream media ridicule the core question of whether federal "health care reform" is constitutional. So do those legislators who vote for it.

This was not always the case, as Mark Jones notes.

Back in 1925, the U.S. Supreme Court said:

Obviously, direct control of medical practice in the states is beyond the power of the federal government.
Linder v. United States, 268 U.S. 5, 18, 45 S.Ct. 446 (1925)

Why would the Court say this is "obvious," while today's Congress says the exact opposite?

For the first hundred years after the Constitution was ratified, the phrase "enumerated powers" and the Tenth Amendment meant something. No longer.

Shortly after the Linder case, the Court repeated the obvious:

It is important also to bear in mind that "direct control of medical practice in the States is beyond the power of the Federal Government." Linder v. United States 268 U.S. 5, 18. Congress, therefore, cannot directly restrict the professional judgment of the physician or interfere with its free exercise in the treatment of disease. Whatever power exists in that respect belongs to the states exclusively.
Lambert v. Yellowly, 272 U.S. 581, 589, 47 S.Ct. 210 (1926)

Read the cases here.

If California adopted a policy of mandatory euthanasia for everyone over 55 (to help California curb rising healthcare costs and state government deficits), and pro-life conservatives in Washington D.C. attempted to overturn this policy, the Ninth Circuit Court of Appeals would almost certainly tell Congress that it had no Constitutional power to prevent millions of "physician-assisted suicides" in the states:

The principle that state governments bear the primary responsibility for evaluating physician assisted suicide follows from our concept of federalism, which requires that state lawmakers, not the federal government, are 'the primary regulators of professional [medical] conduct.' Conant v. Walters, 309 F.3d 629, 639 (9th Cir. 2002); Barsky v. Bd. of Regents, 347 U.S. 442, 449, 74 S.Ct 650, 98 L.ED. 829 (1954) ("It is elemental that a state has broad power to establish and enforce standards of conduct within its broders relative to the health of everyone there. It is a vital part of a state's police power.") The Attorney General "may not...regulate [the doctor-patient] relationship to advance federal policy." Conant, 309 F3d at 647 (Kozinski, J., concurring).
Oregon v. Ashcroft, 368 F.3d 1118, 1124 (9th Cir. 2004)

But if Obama wants to do it, it's OK.

Impermissible Ratemaking in Health-Insurance Reform: Why the Reid Bill is Unconstitutional -

Can Obama force you to buy health insurance? - Anthony Gregory / The Christian Science Monitor -

Sometimes the mainstream media use the "general welfare" clause to justify federal policies which were "obviously" unconstitutional a century ago. This is an abuse of the general welfare clause.

Of course, state regulation of medicine is just as destructive of medicine as federal regulation. Capitalism, not socialism, is the best policy on every level of government.

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