Tuesday, October 12, 2010

Some federal judges are badly confused
about the U.S. Constitution

Commentary by James H. Shott

Some federal judges are as unconcerned with the intent of the U.S. Constitution as many members of Congress and the administration, as last Thursday’s ruling on Obamacare shows.

A lawsuit that was filed in Michigan claimed that the mandate contained in the health care reform bill forcing people to buy health insurance exceeded Congressional power under the Commerce Clause, which authorizes Congress to regulate trade.

But Federal Judge George Caram Steeh said the mandate to get health insurance by 2014 and the financial penalty for not buying coverage are legal, because Congress was trying to lower the overall cost of insurance by requiring participation.

Well, there you have it: all that is required for Judge Steeh to rule that a law is constitutional is that someone had good intentions behind their actions. I wonder why Jefferson, Hamilton and Madison didn’t think of that.

His reasoning goes like this. "Without the minimum coverage provision, there would be an incentive for some individuals to wait to purchase health insurance until they needed care, knowing that insurance would be available at all times," he said. Translation: If the government didn’t force everyone to buy insurance, some people would exercise their right not to buy it, and we can’t allow that.

The judge seemed more concerned with approving the rationale for what Congress did than in determining whether it comports with the intent of the Constitution, a question which has been completely ignored in matters of recent over-reaching legislative and executive behavior. And that begs the question: What is the point of the Constitution if judges, presidents and members of Congress don’t understand it, pay no attention to it, or interpret it out of existence?

Judge Steeh’s ruling demonstrates why we need to impose term limits on the federal judiciary.

If he thinks the Commerce Clause can be stretched to fit any circumstance motivated by good intentions, perhaps he ought to look around at the chaos health care reform is already causing, and re-examine the wisdom of the rationale he strayed so far from Constitutional intent to approve.

The health insurance provision already placed nearly a million low-wage or part-time workers at risk of losing their coverage because their employers would be encouraged by the increased costs involved to drop coverage rather than bear the cost of increasing it to the dictated standard. And the same cost increases will occur for those who do not get their insurance through their employer. So much for keeping your coverage if you are satisfied it.

So far thirty companies – including fast food giants McDonald’s and Jack in the Box, and the insurance company Cigna – have petitioned and been granted exemptions from the requirement from the Department of Health and Human Services, and will therefore not drop coverage for those employees. Fortunately for them this is an election year, and a million people losing their health insurance right before an election would be a big problem for Democrats.

According to some critics all of this confusion and disruption, and that which will surely follow, is part of a plan. They believe that the bill is designed to create so many problems that insurers will be leave the market, and so much chaos will ensue that the federal government will have to ride in on its white horse and save the day, forcing single-payer government-provided health coverage down our throats.

Whether government-controlled health care is either the goal or the result of the reform effort, the entire process is a significant reason for the anger and disgust that has driven the Tea Party movement. The drafting and passing of the health care reform bill was ugly and partisan, and a majority of the American people recognized the bill’s problems and opposed its passage, all to no avail.

So vile and disreputable was this process that every Representative and Senator who did not vote against it should be voted out of office and sent home. And while we’re at it, let’s rid ourselves of all those who support the cap and trade bill that will raise everyone’s taxes, increase the cost of everything from energy to building materials, and damage the economy of energy producing states. And also send home those who supported the $800 billion stimulus bill that has nationalized parts of the auto and banking industries, created the longest stretch of unemployment above 9.5 percent since 1948, put the nation at tremendous economic risk, and for all of that has produced virtually nothing positive.

Let’s also include those likely to support the financial transaction tax supported by House Speaker Nancy Pelosi and being discussed (quietly) by Congressional Democrats that would put a one percent tax on all banking transactions like deposits and withdrawals, transfers between savings and checking accounts, ATM withdrawals, and loan payments, among other transactions. And for good measure let’s include those who support the freedom-robbing card check measure that will be sneaked in for a vote in the lame duck session after the election.

There is no time like the present. For all 435 Representatives and 37 Senators, that opportunity is three weeks away.

Cross-posted from Observations


  1. Great Post! It helped me to make sense of some of the issues with the subject.

  2. Great article. It is really an interesting thing to learn your blog. The information from your site is strictly excellent.

  3. The problem with many judges is that they do not know the difference between the law and reality.

    George Vreeland Hill