Friday, February 04, 2011

Unwrapping Government Mandates

This past week the Wall Street Journal had an article by Ashby Jones which explained why Federal Judge Roger Vinson struck down Obamacare as unconstitutional, citing abuse of the Commerce Clause as well as the Necessary and Proper Clause. Judge Vinson’s remarks unwrapped basic flaws in legislation which overstep the bounds placed on our federal government by the Constitution as envisioned by our Founders; however, these same basic concepts also apply to each level of government to include state, city or even local school boards. Judge Vinson’s words:

“At issue here, as in the other cases decided so far, is the assertion that the Commerce Clause can only reach individuals and entities engaged in an “activity”; and because the plaintiffs maintain that an individual’s failure to purchase health insurance is, almost by definition, “inactivity,” the individual mandate goes beyond the Commerce Clause and is unconstitutional. The defendants contend that activity is not required before Congress can exercise its Commerce Clause power, but that, even if it is required, not having insurance constitutes activity.”

Do individuals living in the United States of America have the right to decide for them selves whether or not to purchase health insurance or has our government the power to make that decision for the individual? Isn’t that the heart of the matter? But isn’t that same concept applicable to most other issues; what kind of car to purchase, toothpaste or even the type of light bulb each individual prefers rather than the collective opinion of society?

“[A]s Congress’ attorneys in the Congressional Research Service (“CRS”) and Congressional Budget Office (“CBO”) advised long before the Act was passed into law, the notion of Congress having the power under the Commerce Clause to directly impose an individual mandate to purchase health care insurance is “novel” and “unprecedented.”
. . .

“Never before has Congress required that everyone buy a product from a private company (essentially for life) just for being alive and residing in the United States.”

Many statements were made in striking down mandated health insurance; but I’ll include only this one by Judge Vinson before moving on:

“It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place. If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain for it would be “difficult to perceive any limitation on federal power” and we would have a Constitution in name only. Surely this is not what the Founding Fathers could have intended.”

Judge Vinson’s Tea Party comparison was pertinent and timely in view of a marked undercurrent in America to restore a sense of balance to an otherwise out of control government hell bent on destroying individual rights. If our government can force us to purchase health insurance then there are no limits on what ever else may be imposed by “act of congress”. It doesn’t matter which level of government decides to usurp their intended powers; impositions on an individual’s choice within a free society is repulsive. We must remind those temporarily placed in positions of power that each individual, regardless of stature, is heir to God given inalienable rights for which freemen have fought and died for; we are not subjects government.

Judge Vinson also quoted Madison’s Federalist Paper 51:

“In establishing our government, the Founders endeavored to resolve Madison’s identified “great difficulty” by creating a system of dual sovereignty under which “[t]he powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.”

While agreeing, at least in part, with Madison’s summary of a limited federal government through the Constitution, State governments powers while numerous are not indefinite; being limited by the Laws of Nature and Nature’s God . States may not legislate away inalienable rights anymore than the federal government can. Tyranny at any level of government is still tyranny.

Judge Vinson apparently agrees with my exception as he continued to quote:

“The Framers believed that limiting federal power and allowing the “residual” power to remain in the hands of the states (and of the people), would help “ensure protection of our fundamental liberties” and “reduce the risk of tyranny and abuse.” (emphasis added)

I’ve had various forms of medical insurance since I was old enough to be in the work force. The levels of coverage increased as did my ability to pay for the additional benefits. There was no need for a government mandate to explain the importance of being responsible. Ah; but there’s that word, responsible.

In my locksmith business, for years I’ve purchased a huge liability insurance policy in order to do business with large automobile dealerships; not because some bureaucratic pencil pusher mandated it; but because the free market system and the rules of nature mandated it. Years later when locksmiths in Texas were forced into being licensed some bureaucratic pencil pusher had the mind numbing idea to mandate a hefty liability insurance policy as part of the required elements for that locksmith license (a discussion for another day).

If you missed that last paragraph there isn’t much sense in going further. Individuals, not government, decide how to navigate the free market. If the logic used by Judge Vinson applies to federally mandated health insurance then it applies to all levels of government and other mandated purchases; activity or the lack thereof are at the discretion of individuals.

“If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain for it would be “difficult to perceive any limitation on federal power” and we would have a Constitution in name only. Surely this is not what the Founding Fathers could have intended.”

Do not misinterpret my meaning; locksmiths, as with individuals in every aspect of the human condition should be responsible in their dealings with the public. Being responsible would include proper training in their area of expertise as well as providing reasonable levels of insurance in the event of catastrophic failure resulting in damages to the public or specific individuals. If and when damages are claimed and a gentleman’s agreement cannot be reached, at that time the courts are the proper places to resolve such conflicts. It is not the purpose of government to guarantee a life free of pitfalls.

The difference between State mandated policy and individual responsibility is considerable in a free society; one is repressive while the other is free. If government can mandate how individuals interact in the market place there are no limits to what liberties can be dissolved in the name of security and safety.

Benjamin Franklin has been credited for having said, “Those who give up their liberty for security deserve neither liberty nor security.” (There are various forms of this quote listed)

Tyranny under the façade of a representative government is a poor substitute for government by the people. Thank God for individual inalienable rights and the Constitution which limits government’s never ending attempt to destroy them. Thank goodness for a clearly worded ruling like the one Judge Roger Vinson provided, a ruling which unwrapped government mandated health insurance to expose nothing more than tyranny in the name of security.

This article has been cross posted to The Moral Liberal , a publication whose banner reads, “Defending The Judeo-Christian Ethic, Limited Government, & The American Constitution”.


David said...

It'll help if this is upheld on appeal. Now, what it might help is something profound: a possible beginning to a responsible judicial review of many laws for which I (and other moderately intelligent, moderately literate folks who are at least several orders of magnitude more honest than politicians *spit* in general) can find no genuine constitutional power to inplement.

Wouldn't it be nice if that were the case?

T. F. Stern said...


I'm something of a dreamer rather than a realist, hoping our government will eventually return to something resembling the form designed by our Founders.

You might be interested in a letter I posted to FILOA's website a while ago as it falls into a similar category.