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ObamaCare and the Constitution

Lance McMillian's picture

The Framers of the Constitution created a federal government of limited, enumerated powers. In the words of James Madison, “The 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.”

Throughout the country, federal courts are presently considering whether this original design has any remaining viability. The question before these courts asks: Is Obamacare constitutional?

Regulation of economic transactions, of course, is unremarkable, and Article I of the Constitution gives Congress the power “to regulate Commerce ... among the several States.”

Obamacare, however, goes far beyond garden-variety regulation. The law’s centerpiece, the much-maligned individual mandate, compels every American – at the risk of criminal penalties – to purchase health insurance from an insurance company. And therein lies the rub.

It is one thing to regulate all those who choose to engage in an economic activity; it is another thing entirely to force an individual to engage in a particular economic activity in the first place against that person’s will.

Such a shift dramatically alters the nature of congressional power under Article I. The power to regulate something already in existence becomes the power to compel something into existence.

Even the laws we typically conceptualize as mandatory are different than the individual mandate in critical respects. Yes, everyone must pay taxes, but only if they choose to earn an income. Yes, everyone must buy auto insurance, but only if they choose to drive. Yes, criminal law details a whole host of things we cannot do, but it does not say that there are things we have to do.

Obamacare, on the other hand, directs this: Simply by being alive, each of us must do business with an insurance company. This total deprivation of choice is unprecedented in American law and constitutes a form of coercion that poses a significant threat to individual liberty.

Allowing the federal government to exercise this type of unconstrained power removes any pretense that the Constitution limits the reach of Congress in any real way. Words have meaning, and danger looms for all Americans when politicians and judges cast aside the plain meaning of words for short-term, partisan ends.

If the text of the Constitution can blithely be ignored in this way, then it follows that placing faith in that document to safeguard our civil liberties is a grave miscalculation. Our rights devolve to only those that the Supreme Court allows us to have. When this happens, the rule of law gives way to the shifting rule of five-justice majorities on the Court.

And that brings us back to Obamacare. The highly politicized manner that accompanied its passage likely dooms any effort to reach consensus on its constitutionality as the merits of the law have long ceased to matter.

Still, there is hope. Despite the many differences between liberals and conservatives, the two sides do share a distrust of government overreach that sometimes – albeit all too infrequently – overlaps. Perhaps the vast tentacles of Obamacare can awaken this common fear to produce an unexpected unity.

The chief discomforts with the new healthcare law need not – and indeed, will not – be the same. For the conservative, allowing Obamacare to stand would remove any constitutional constraint on centralized regulation as well as obliterating any pretense of state autonomy.

For the liberal, permitting government the power to mandate that every person enter into a contractual relationship with insurance companies gives enormous power to big business at the expense of individuals, especially those presently without insurance on the lower end of the economic ladder.

While the sources of uneasiness in these respective critiques differ and reflect the competing ideological concerns in the liberal and conservative worldviews, both analyses reach the same conclusion: this law goes too far.

The Constitution ultimately protects all of us from the strong hand of government. While we may disagree over the exact contours of these constitutional safeguards, Americans of all political stripes agree that (a) there should be meaningful limits on government and (b) the Constitution should supply these limits.

The individual mandate, however, mocks both of these baseline premises. A federal government that can force its citizens to engage in particular activities is a government unrestrained by the words of the Constitution. Power and politics – not the rule of law – become the order of the day.

Lance McMillian is a Fayette County resident and law professor at Atlanta’s John Marshall Law School.]


Obama said "I believe health care is a right." He made it a platform of his campaign. Nothing is a RIGHT when I have to fork out money or face prison time to ensure that "right." Your right to free speech, bear arms, freedom of religion, does not impose a federal mandate on anyone. Real rights do not impose taxes on anyone wishing to opt out of those rights. Nevertheless, he got his wish.

For all you "expert bloggers" who think you know what you're talking about, you don't. I've been a healthcare provider for 24 years and a business owner. My insurance premiums went to over $3500 a month this year, up from $2900 last year. That is for 3 people! There is NOTHING in Obamacare that in any way decreases these drastic increases in premiums. It is guaranteed they will go up. Why? Because Barack Hussein Obama wants to mandate that everyone is covered. No more pre existing clauses. That being the case it is impossible for the price of care to go down.

Obamacare means less money in the employers hands to hire new people. Furthermore, quality of health care will go down the tubes too. You think it takes a long time to see a specialist now? Wait until the thousands of "undocumented workers,' I mean illegal invaders start filling the doctors offices, not just the Piedmont Fayette ER.

This has NOTHING to do with right wing left wing politics. It has to do with pure stupidity (Obama for you Dems) vs. sanity. The solution is to open restrictions on distribution of insurance and let the free market dictate pricing.

PTC Observer's picture

Doctor, excellent post. Those with a fuzzy vision of the way they would like to see the world and their ability to use government power to fulfill their vision is a misguided, albeit well intentioned, road to poverty for us all.

If Obamacare is not stopped in 2012, the entire country will suffer long lines and poor quality medicine. Our medical professionals will be over worked, discouraged and under paid for their services. As a result, there will be fewer and fewer quality people entering the profession.

President Obama, is an excellent example of a political elitist with "vision", a dangerous combination for the health of our nation.

I would rather have a president that gets headaches than the current president that only knows how to give headaches.

Not sure how the hew Health care plan ties into the rising cost of insurance. Insurance Co's are big business and could be trying to recoup monies fighting law suits.

Their maybe room for improvement in some areas of the plan but it marks a step in the right direction as the American way. What part of the plan do you not like? 6 million + kids now have access to a doctor.

Who do we make suffer?

kevink's picture

Real deep. You should work for the GOP version of Hallmark, because they are in dire need of slogans to fill the void where ideas would normally fit.

By the way. Do you want a President who thinks The USA defaulting on our debts is "not a big deal?" Do you want a President who worked for the IRS? That has drawn income from farm subsidies and then lied about the amount (an amount which she had included on financial disclosures previously)? Who lied about the amount of Medicaid and Medicare income her family earned from their counseling practice?

Do you want a President who tried to tell us the "founding fathers" who owned slaves "worked tirelessly to end slavery?"

Michelle Bachmann is a walking punchline. An anti-government politician who thinks there should be investigations of members of congress for anti-American thoughts. I could go on, Grizz, but I don't want to provide you with more facts than you can deny.

I pray she is The GOP candidate for president, and that, somehow, Sara Palin is also on the ticket.

Vote Mytmite in 2012!

I would rather have Bachman than the socialist Obama that wants nothing more than to "spread the wealth" for 4 more years in all 57 states. His presidency has been a complete, unmitigated disaster.

kevink's picture

And somali pirates.... and bin Laden's network, I'm. Sure this has been a terrible presidency ;-)

Vote Mytmite in 2012!

You forgot the 15%+ that are unemployed, thanks to to Obama's policies of growing only government jobs and for being the SEIU's water boy.

kevink's picture


<a href=" are 518,000 fewer government employees now than there were in January 2009.</a>

Stick to bumper stickers, mate. The sources from which you draw your commentary are not serving you well.

Vote Mytmite in 2012!

From Enron...?

Hahahahahahahaha - You really are a joke.

You need to look at the "facts" a little more carefully. Outside of the Postal Service, federal government jobs are up 139,300 (or 6.7 percent) under Obama, according to the Bureau of Labor Statistics.

The POSTAL SERVICE, Kevin. The government-run, money losing Postal Service.

All other jobs are up. Get your facts together before you go spouting off about stuff you don't know about, weasel.

kevink's picture

Jokeawfi. We can read. We can see this is Politifact, the non-partisan, Pulitzer prize winning publication which rates the truthiness of what people say. We can all see the BIG FAT TRUE right next to Krugman's comments. Politifact even explained your Postal Service slant. Do you think no one read that?

And, by the by, my unfriendly coward in chief, John Boehner tried the spin you just polluted the boards with. You never have an original thought, so that is probably where you borrowed your spun numbers. <a href=" the BIG FAT FALSE by Boehner's statements, which you parrot.</a>

What a pathetic person you are, man. My brave little anonymous insult hurler.

<a href="">Joke. I understand why you cower in the shadows. Your last face to face insult didn't go so well for you: "Smell it, smell it, smell it. Now take it :-D</a>

Vote Mytmite in 2012!

kevink's picture

How's your face healing? :-)

Vote Mytmite in 2012!

You boy Obama is tanking and will not be re-elected next year because of his shear incompetence and narcissism.

What pathetic little fool he is.

Observerofu's picture


"Neither the wisest constitution nor the wisest laws will secure the liberty and happiness of a people whose manners are universally corrupt"
-Samuel Adams
Illegitimi non carborundum

Dondol's picture

Go ahead and do some checking around on this, IT WILL MAKE YOU SICK!

And to think these are the institutions that want to raise our Bond ratings!

Audit of the Federal Reserve Reveals $16 Trillion in Secret Bailouts

July 21st, 2011

The first ever GAO(Government Accountability Office) audit of the Federal Reserve was carried out in the past few months due to the Ron Paul, Alan Grayson Amendment to the Dodd-Frank bill, which passed last year. Jim DeMint, a Republican Senator, and Bernie Sanders, an independent Senator, led the charge for a Federal Reserve audit in the Senate, but watered down the original language of the house bill(HR1207), so that a complete audit would not be carried out. Ben Bernanke(pictured to the left), Alan Greenspan, and various other bankers vehemently opposed the audit and lied to Congress about the effects an audit would have on markets. Nevertheless, the results of the first audit in the Federal Reserve’s nearly 100 year history were posted on Senator Sander’s webpage earlier this morning.

What was revealed in the audit was startling: $16,000,000,000,000.00 had been secretly given out to US banks and corporations and foreign banks everywhere from France to Scotland. From the period between December 2007 and June 2010, the Federal Reserve had secretly bailed out many of the world’s banks, corporations, and governments. The Federal Reserve likes to refer to these secret bailouts as an all-inclusive loan program, but virtually none of the money has been returned and it was loaned out at 0% interest. Why the Federal Reserve had never been public about this or even informed the United States Congress about the $16 trillion dollar bailout is obvious — the American public would have been outraged to find out that the Federal Reserve bailed out foreign banks while Americans were struggling to find jobs.

To place $16 trillion into perspective, remember that GDP of the United States is only $14.12 trillion. The entire national debt of the United States government spanning its 200+ year history is “only” $14.5 trillion. The budget that is being debated so heavily in Congress and the Senate is “only” $3.5 trillion. Take all of the outrage and debate over the $1.5 trillion deficit into consideration, and swallow this Red pill: There was no debate about whether $16,000,000,000,000 would be given to failing banks and failing corporations around the world.

In late 2008, the TARP Bailout bill was passed and loans of $800 billion were given to failing banks and companies. That was a blatant lie considering the fact that Goldman Sachs alone received 814 billion dollars. As is turns out, the Federal Reserve donated $2.5 trillion to Citigroup, while Morgan Stanley received $2.04 trillion. The Royal Bank of Scotland and Deutsche Bank, a German bank, split about a trillion and numerous other banks received hefty chunks of the $16 trillion.

“This is a clear case of socialism for the rich and rugged, you’re-on-your-own individualism for everyone else.” – Bernie Sanders(I-VT)

When you have conservative Republican stalwarts like Jim DeMint(R-SC) and Ron Paul(R-TX) as well as self identified Democratic socialists like Bernie Sanders all fighting against the Federal Reserve, you know that it is no longer an issue of Right versus Left. When you have every single member of the Republican Party in Congress and progressive Congressmen like Dennis Kucinich sponsoring a bill to audit the Federal Reserve, you realize that the Federal Reserve is an entity onto itself, which has no oversight and no accountability.

Americans should be swelled with anger and outrage at the abysmal state of affairs when an unelected group of bankers can create money out of thin air and give it out to megabanks and supercorporations like Halloween candy. If the Federal Reserve and the bankers who control it believe that they can continue to devalue the savings of Americans and continue to destroy the US economy, they will have to face the realization that their trillion dollar printing presses can be stopped with five dollars worth of bullets.

The list of institutions that received the most money from the Federal Reserve can be found on page 131 of the GAO Audit and are as follows..

Citigroup: $2.5 trillion ($2,500,000,000,000)
Morgan Stanley: $2.04 trillion ($2,040,000,000,000)
Merrill Lynch: $1.949 trillion ($1,949,000,000,000)
Bank of America: $1.344 trillion ($1,344,000,000,000)
Barclays PLC (United Kingdom): $868 billion ($868,000,000,000)
Bear Sterns: $853 billion ($853,000,000,000)
Goldman Sachs: $814 billion ($814,000,000,000)
Royal Bank of Scotland (UK): $541 billion ($541,000,000,000)
JP Morgan Chase: $391 billion ($391,000,000,000)
Deutsche Bank (Germany): $354 billion ($354,000,000,000)
UBS (Switzerland): $287 billion ($287,000,000,000)
Credit Suisse (Switzerland): $262 billion ($262,000,000,000)
Lehman Brothers: $183 billion ($183,000,000,000)
Bank of Scotland (United Kingdom): $181 billion ($181,000,000,000)
BNP Paribas (France): $175 billion ($175,000,000,000)
and many many more including banks in Belgium of all places

View the 266-page GAO audit of the Federal Reserve(July 21st, 2011):

FULL PDF on GAO server:
Senator Sander’s Article:

I, like many others are sick of the whole process! These 'actors' in Congress who are now on vacation while thousands of citizens aren't getting their checks make me sick. Instead of bellyaching about the deficit, I'm joining those citizens who are sending what they can to the Treasury earmarked for deficit. These Congress people are empty suits. They are not doing the business of the people! We the people can sidestep this idiocy by doing what we can to bring down the deficit now. This is not a Republican, Democrat, or TeaParty solution. Just the American people taking common sense action. Someone said if one out of four sent five dollars a month to the Treasury, we would start reducing the deficit. Maybe this will help! Cutting government jobs is hurting us. Maybe we can stop this unnecessary bleeding. ( We -not our ineffective Congress)

While I share your sentiment of being sick of the whole process in Congress, Pls tell me just what citizens aren't getting their checks.

BHH's picture

the FDIC?

And that they were doing just what they had agreed to do in case of a failure in the monetary system.



The Wedge's picture

Our President Obama in a stump speech talked about visiting all "57" states. He is merely repeating our president's words


G35 Dude's picture

He's referring to a speech that Obama gave during his campaign where he said he had visited 57 states.

Here they are: he meant to say 47. Impeach him!

Robert W. Morgan's picture

BTW, did you get invited to his 50th birthday party? Hear it is going to be swell. Big supporter like you should get an invite. Whatcha gonna wear?

Live free or die!

YES! I'm wearing something from the consignment shop in Fayetteville. LOL!
(Don't know where my other answer went.)

G35 Dude's picture

That is what happens when the teleprompter is broken.

LOL! Another perspective of the use of the teleprompter:

"True: Obama made the mistake of saying that he had visited 57 U.S. states during a presidential campaign appearance in Oregon in 2008. He clearly meant to say 47, but slipped up."

How does "Fact Check.Org" or anyone know what the Obama 'meant' to say? Perhaps he's just that ignorant, having spent his developing years under Muslim influence.

PTC Observer's picture

There's plenty of dirt floating in the toilet called Washington politics...on both sides. People rise to power on the backs of others by the time they get to Washington, it's political elitism gone wild.

You know why kevink? The American people have forgotten the intended purpose of government.

It's just that simple.

How are Chiropractors treated in the congressional health plan? That is besides poor treatment insurance, and just what kind of care does your employees get at the prices you say you pay? How much do the employees pay?

BHH's picture

should be that every medical insurance company provide a percentage of their payout in indigent care or for others that are uninsured.

Much like attorneys are required to provide pro bono services.


BHH's picture

and they need to be put in check and kept under control.


I won't divulge my employee contributions. Regarding chiropractic coverage, we should be covered but that remains to be seen. I am more concerned as a business owner and employer than as a doctor. My core beliefs overshadow any self serving benefits that might arise out of this plan.

Regarding mandates for freebies, it happens now already. I help those people in need without funds; however, it raises the cost of my overhead and everyone else takes the hit. The ER's have to accept everyone. Do you think their care is free? The cost of overhead is passed along to the rest of us with insurance. If I hear about one more invase unnecessary federal mandate I'm gonna explode.

Why ?

If the folks of the USA improve their own health, it is the single most potent answer to the HC crisis.

But, we can't bankrupt the country to bank roll HC.


BHH's picture

prove they are compassionate.

Their compassion should rest on their own pocket books.


The Teas in the House of Representatives have thrown a hizzy fit and refused to reauthoriize the FAA unless subsidies end for a few small airports.

The party of deficit reduction has taken a firm stand that results in the lay off of thousands of government and non government employees and the suspension of major airport consturction projects.

This is costing the Federal government millions of dollars and the loss of revenue is growing. Hey dummies, you are causing the budget deficit to grow.

And the House takes a vacation.

Thanks a lot to all you Fayette County Republican Teas.


NUK_1's picture

They aren't lowering fares over the fact that the gov can't collect the FAA tax right now so I'm sure they hope this lasts for a while.

While this amount of money IS relatively small, Harry Reid says it REALLY has to do with the good 'ol NMB kowtowing to the pathetic labor unions who can't win a vote at Delta so they need the rules changed, which the NMB was more than happy to do. That's another fight that is going to happen, but the already-passed House bill that Reid doesn't like doesn't address the labor issue whatsoever and reporters burned Reid on that yesterday.

If Reid wants the FAA reauthorized, maybe he can come up with a bill more to the liking of the House since he won't consider what has been passed. If anyone is holding up re-authorization, it's actually Reid at this point. Why should the House stay in session waiting for Reid and his buddies to come up with ANYTHING when Reid has shown he's terrified to introduce any kind of legislation that might be in any way controversial or make the Dems nervous?

The House passed a bill extending funding for the FAA--the Senate refused to pass it. Yes, it included elimination of subsidies for 3--yep, 3, small airports--all within 1 1/2 hrs driving time to another airport. Oh yes, one was in Nevada--ya know, that place where Harry Reid hails from! And contrary to Dem scare tactics, air travel safety is not involved.

Observerofu's picture

Lion and dmom couldn't care less about your facts they have an ideology to push after all.

"Neither the wisest constitution nor the wisest laws will secure the liberty and happiness of a people whose manners are universally corrupt"
-Samuel Adams
Illegitimi non carborundum

JeffC's picture

Let's review what actually happened. The FAA has been funded with continuing resolutions since 2007 until money expired July 23. For the new funding, Republican House Transportation chairman John Mica inserted a provision to overturn a regulator's ruling that airlines can unionize if a majority of ballots in an election favor a union. This aligns the airlines with every other industry in the country. The previous, and very unusual rule that was struck down, was that all members of the workforce who did not vote were counted as additional "No" votes. This is what Mica wanted to restore and that was the reason that the Senate voted it down. Obama endorsed the Mica bill this week and Reid still refused to accept the provision.

Republicans claim that the hang up is over closing three insignificant airports that cost $16 million/year. So far, they've blown a billion in tax collections. Of course, that is a preposterously stupid cost/benefit outcome and actually has nothing to do with the real fight, which is the Republicans attacks on unions. For that fight, any amount of taxes can be sacrificed and any number of jobs can be lost.

Mica seems to have agreed to drop the provision today after Reid said no to Obama. So far, and besides the FAA employees, because there are no FAA inspectors, another 74,000 construction workers working on FAA projects have been furloughed.

The FAA debacle is just an aspect of the Republicans attacks on unions.

The House Republicans passed the bill that would put everyone back to work. The Democrats refuse to pass it because they are owned completely by big labor.

Democrats take their marching orders from Trumka and his SEIU goons- plain and simple.

OK, so why, then, did Dems fail to fix this Continuing Resolution Budget fix earlier when they had COMPLETE control of congess?

A few hours you knew nothing about the FAA problem - and now you're an expert! Wonderful!

I'm not sure which group in the FAA might want a union but my understanding of that is those fellows who want a union already make about $70,000 a year plus benefits.

They do not need a union to negotiate further!

Pilots should not have a union either.

Unions are for underpaid and mistreated peons! Laborers, for instance.I would think those construction workers are NOT FAA employees!

birdman's picture

that you have absolutely NO concept of either FAA or Pilots. I'm not a union fan but you need to ask former ValueJet pilots what life was like without contracted work rules, etc. Pilots get paid only for the time from "pushback to block-in." Not time at the gate, time in the airport, time delays for weather, time delays for mechanical. So most pilots put in 10 to 12 hour days and get paid for 4 to 5 hours. And that's with a contract. Without a contract, here is a ValueJet rotation that a friend of mine flew years ago: One leg to Jacksonville, Fl. flight time about 54 minutes. Layover and fly back. Total flight time: under 2 hours. With a contract that rotation would pay 10 hours (forcing the airlines to schedule productively). But ValueJet (no contract) paid only actual flight time: under 2 hours for 2 days work. Not a lot of pay is it? By the way, check out commuter airlines pay and work rules.
As for FAA controllers, you need to study the PATCO Strike of the early 1980's. The issue was NEVER money, but work rules in high stress environments. Leadership issues removed any type of stress counseling with the threat of job loss.
Point being is that neither the FAA or Pilots have unions due to being "underpaid," but to enforce work rules that directly affect safety, ie. mandatory rest periods, sick rules, etc.
Oh, by the way, what would YOU do the job for? Ask yourself this, do you want a pilot or controller having TOTAL control over YOUR life or the life of your family with insufficient rest, lack of experience, limited training, forced to "fly" or not get paid?

I wasn't mentioning Controllers----they are working aren't they?

I'll not argue your facts with you---only to say as a manufacturing manager for many years, I was "on salary" and had no maximum hours or days a week to work.

The minimum was like 50 hours per week and a lot of Saturdays. Also night shifts.

I had to be schooled and trained just as you were.

I also started out at a salary that was not enough and earned more later by smartness and effort.

NUK_1's picture

The bill the House has passed contains nothing about overturning the NMB ruling about union votes. It does remove the 16mil in subsidies, however.

The Dems are apparently afraid that if they "give in" to the Repubs on this, THEN there will be a broader bill passed in the House that will address the union issue, but what the House has actually passed contains NOTHING at all about that particular issue. Reid got embarrassed by reporters on this issue when he tried that argument and one reporter had the actual passed House bill in his hands and correctly pointed out that Reid was full of crap.

Apparently, both Obama and Reid are now OK with the House bill, but Jay Rockefeller and others in the Senate are adamant about keeping the subsidies in the bill and taking a hardline because they think if they OK the House bill now(and they have had 2 weeks to think about this already) that the Repubs will come back for more. Rockefeller is using the same argument as Reid did the other day, though at least he admits there is nothing in the passed House legislation about union voting.

Sorry, this isn't about union voting rules suddenly decreed by the NMB at this moment; it's about 16mil in subsidies for nothing airline flights that cannot be supported by the ticket buying flying public and the Dems still licking their wounds over the debt deal and trying to exert some political muscle. They don't care if 4000 FAA workers and some construction projects get hung out to dry if they think they can blame it on the Repubs, but this time, they got nothing there.

JeffC, like Reid, tend to go dark when someone shines a light on their 'spin'.

In true Democratic form, kevink will pop up and try to fill in for JeffC.

What do you expect NUK? They're a bunch of bed-wetting liberals that lie as often as they breathe. They will say and do anything to obstruct and demonize anything that reduces spending. They will lie right in the face to Americans and not think twice about it.

Observerofu's picture

like JeffC and kevin seem to be going with the flow of blame everyone else but themselves for the mess we are in.

All spin all the time. They can't hide from the truth and neither can Obama.

"Neither the wisest constitution nor the wisest laws will secure the liberty and happiness of a people whose manners are universally corrupt"
-Samuel Adams
Illegitimi non carborundum


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