More On The ObamaCare Constitutionality Muddle

Another judge has ruled ObamaCare Constitutional, and did so with some remarkable mental gymnastics. Essentially, the judge said that the decision to not buy insurance is "mental activity" that can be regulated by Congress. Another argument she bought was that the individual mandate was Constitutional because it was necessary to make the entire law work.

In essence, though, this decision has major problems. First, if a "decision" is mental activity that can be regulated, then ANYTHING can be regulated by Congress, and our Federal government is no longer one of limited powers. Second, if an otherwise unconstitutional provision can be granted legitimacy simply by making it a central and important part of a new law, then anybody wanting to, say, reinstate slavery could do so if they crafted the law correctly. Or outlaw guns completely, merely by making that a necessary first step to some "legitimate" goal.

I put quotes around that word, legitimate, because I submit any goal that requires illegal and unconstiutional methods to attain is not a "legitimate" goal.

Anyway, here's an article on this subject:
http://www.washingtonpost.com/wp-dyn/content/article/2011/03/11/AR2011031105815.html

Hall says that the mandate "meets a high threshold of necessity to accomplish the overall reform scheme, clearly within congressional power, to create a market structure in which no one is ever again medically uninsurable." But unless we postulate that Congress has whatever power is required to create such a market structure, this question remains: Does the fact that Congress has the constitutional power to do X - say, guarantee universal access to insurance - make Y constitutional merely because Y is necessary for doing X?

Congress has the constitutional power to combat political corruption, the "appearance" thereof and the "circumvention" of laws for this purpose. But suppose Congress, exercising this power by regulating campaign finances, decides that abridging freedom of speech is necessary for its anti-corruption measures. This necessity, defined by this preference, does not make such abridgement constitutional. The Supreme Court said as much concerning McCain-Feingold.

The mandate's defenders note that the Constitution says Congress has the power to "make all laws which shall be necessary and proper for carrying into execution" its enumerated powers, one of which is to regulate interstate commerce. "Necessary and proper." An unconstitutional law is improper.

This opinion piece by George Will is an absolute must-read to understand what these liberal judges are really saying when they make their pro-ObamaCare rulings.

This law is so obviously unconstitutional that, I'm afraid, SCOTUS may feel obliged to support it whole-heartedly.

When a case reaches SCOTUS, though, look for the newest justice NOT to recuse herself, despite the obvious conflict of having supported the law as a member of the Obama administration.