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October 31st, 2010

Fixing Obamacare

By Nathan Tucker

In a move reminiscent of John Kerry in the 2004 presidential race, U.S. Senate candidate and West Virginia Governor Joe Manchin recently announced that he was for ObamaCare before he was against it.  Manchin had endorsed ObamaCare as late as July, but now, in a hotly contested senate race for the late Senator Robert Byrd’s seat, Manchin claims that there are parts of the bill that he disagrees with.

Rather than wholesale repeal of the legislation, however, Manchin clarified that he is only in favor of repealing the bad parts of it.  He is not the only liberal voice calling for “fixing” ObamaCare,” and after Election Day the pressure on Republicans to simply “restructure” the law will become intense.

Already, Senator Judd Gregg (NH), the ranking Republican on the Senate Budget Committee, said on the Fox Business Network that “I don’t think starving or repealing [it] is probably the best approach here.  You basically go in and restructure it.”

Though a retiring RINO (Republican in Name Only) from the Northeast, it appears that Gregg may be speaking on behalf of establishment Republicans.  For instance, it has been rumored that there have been several closed door meetings by Republicans with big dollar donors during which the donors were “reassured” that the GOP had no intention of repealing ObamaCare but only fixing it.

Noticeably, establishment Republican figures such as Senators Mitch McConnell (KY), the Republican Senate leader, and Lamar Alexander (TN), conference chair of the Republican Party, have not signed on as co-sponsors of Senator Jim DeMint’s (R-SC) repeal legislation.

The upcoming debate among Republicans over health care legislation may be among the seminal moments in 21st century America.  But given that the majority of those who favor complete repeal also favor some form of federal health regulation, the discussion over repeal versus “restructuring” ObamaCare is only a sideshow of the real debate.

Rather, the real fight is over whether the Republican Party will recognize that the federal government lacks any constitutional authority to regulate health care at all.  Despite pressure from liberals in the White House and the media to do something, it remains to be seen whether Republicans will show the constitutional fortitude to just say, “No.”

Even if deprived of its most obnoxious constitutional deformity (the individual mandate), health care legislation still fails constitutional scrutiny in several important ways.  First, Congress only has the power to regulate interstate trade “among the several States.”  But the vast majority of health care, including the purchase of health insurance, occurs completely within the boundaries of a single state.

Second, Congress lacks the power to regulate those portions of the health care industry which happen to fall within interstate trade.  Even under a politically viable interpretation of Congress’ commerce power, Congress can only regulate interstate trade to the extent necessary to ensure the safety of the product and to prevent fraud.  Regulating health care is simply not one of the limited recognized purposes of Congress’ interstate trade power.

However, there is another goal that Congress can regulate interstate trade for—to create a free trade zone among the States.  States enact the very type of trade barriers the Commerce Clause empowered Congress to prevent when they prohibit out-of-state health insurance companies from doing business within their borders.  This is one area, therefore, where Congress has the constitutional power to act.

Deprived of all but a sliver of authority to regulate health care under its commerce power, Congress might attempt to justify such regulations under its tax and spend power.  Even under a politically realistic reading of this Clause, however, Congress lacks the constitutional authority to use this power to regulate or prohibit any object or activity that is not necessary and proper to a power enumerated in the Constitution.

But because health care is not a power enumerated in the Constitution, Congress is therefore powerless to regulate it via its tax and spend power.  It may spend money to promote better health care, but it is powerless to attach strings to that money.  Such regulations are left up to the States.

In short, even under a politically lenient construction, Congress is entirely without constitutional authority for any type of federal health care legislation, whether it be a restructured or overhauled form of ObamaCare.

This is certainly a defining moment for the Republican Party—will they stand on the Constitution and say, “No, we can’t,” or will they yet again take out the magic marker and block out constitutional restraints on their power.  Given the favorable political climate and voter disgust at ObamaCare, if Republicans do not draw the line here, they likely will never draw it anywhere.

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About the Author

Nathan W. Tucker
Nathan W. Tucker is a Davenport attorney and author of We The People: The Only Cure to Judicial Activism. He can be contacted at [email protected]

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