It was almost exactly two years ago I asked the question whether Obamacare was constitutional and it seems we might finally find out the answer.  The Supreme Court of the United States is allowing 6 hours over the next couple days to answer 4 very specific issues that will ultimately decide the fate of the individual mandate and probably Obamacare as a whole.

The issue that most people care about is whether the Federal Government can force citizens to purchase health insurance or get penalized for failing to do so.  I think most people forget/never knew that the Federal government is one of enumerated powers and as such they aren’t free to do whatever the hell they feel like.  As such, the government is going to fit in the mandate under either the Commerce Clause or the Necessary and Proper Clause of the Constitution.

The Commerce Clause states:

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes

The Necessary and Proper Clause states:

The Congress shall have Power – To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Why I think EVERYONE Should be Scared if Obamacare is Ruled Constitutional

I was reading one of my favorite sites, The Cato Institute, when I saw an article that originally appeared in the New York Times written by Michael D. Tanner titled, The Supreme ObamaCare Question. Mr. Tanner being a much more talented writer than myself put my fears succulently and perfectly.

Mr. Tanner’s response, in part, to the Commerce Clause argument:

The Obama administration is seeking to extend Congress’s power to inactivity. Congress would not only have the power to regulate how you do something or to prohibit you from doing it, Congress now could require you to do something.

In a bit of Orwellian logic, the administration argues that by not doing something, you actually are doing something


The crucial concern here is what lawyers call a “limiting principle.” If the court upholds the government’s power to force you to buy health insurance, is there any limit to this power? Is there anything the government can’t require you to do?

Mr. Tanner’s response, in part, to the Necessary and Proper Clause argument:

The argument here is that health care is an important problem facing this country, and the administration’s preferred remedy for that problem can’t be carried out without the individual mandate. The mandate, therefore, is a “necessary and proper” way to accomplish its larger goals.

Again, this would open the door to unlimited government power. If the government has the authority to enact any law it deems necessary to doing whatever it wants to do, the Constitution essentially becomes meaningless.

Sometimes the examples that come from these types of arguments are silly like whether Congress can mandate Broccali but sometimes they are very real.  What if Congress only allowed the use of GM Cars? It obviously affects interstate commerce and maybe it is necessary since it is a major US Company.

The question is not whether something should be done about the healthcare costs in the United States…the question is whether the Federal Government is allowed by the Constitution of the United States to control our non-decisions.