In a nation where Congress has already determined how much water your toilet tank can hold and whether you can purchase a 100-watt incandescent light bulb, the assertion of federal power is now so great and so unbounded that a case concerning the 2010 Patient Protection and Affordable Care Act (Obamacare), brought by 26 states will decide whether, in fact, there are any rights or powers left to the states.
What many Americans do not know is that the United States of America is composed of separate and sovereign republics, each with its own constitution. What has occurred, however, has been the erosion of states’ rights and with that, the gradual distortion of the nation’s central instrument of governance, the Constitution, to mean anything Congress wants it to say.
At the very heart of the Obamacare case the Supreme Court will hear Monday through Wednesday, March 26 through March 28, is the question of whether the federal government can coerce the states under the threat of withholding funds—in this case for Medicaid.
Obamacare vastly expands Medicaid, but it should also be noted that Medicaid has been expanded over the years without evoking this kind of organized resistance. Over a million Americans descended on Washington, D.C. on March 20, 2010 to demand that it not be passed. They were dismissed by the White House that bribed and pressured members of Congress who, it turns out, never even read the law before voting on it.
Created in 1965, Medicaid was intended to ensure that low-income individuals and families secure medical care. Obamacare represents that largest expansion in its history. As the largest federal-state funding program, in 2010 it represented some $401.4 billion. Predictions of what Obamacare will cost are over the moon.
At present, some 60 million Medicaid beneficiaries include one in four children, severely disabled people, many nursing home residents, and low-income pregnant women. Children’s and trauma hospitals heavily rely on Medicaid funding. Under Obamacare, if ruled constitutional, more than 30 million more people are expected to gain health coverage through Medicaid.
The likelihood is that a federally administered health care system will destroy what is widely regarded as the best private sector health system in the world. It will put the government squarely between the physician and his patient, determining who receives treatment and the amount and cost of that treatment.
The issue of contention for many Constitutional scholars and others is Obamacare’s demand that everyone either purchase a health insurance program or pay a fine for not doing so. Congress asserts this under the Commerce Clause, Article I, Section 8, Clause 3, that says it shall have the power “To regulate Commerce with foreign Nations, and among the several States, and with Indian Tribes.”
The early Supreme Court led by the fourth Chief Justice John Marshall (serving from 1801 to 1835) broadly interpreted these powers, extending federal jurisdiction over a number of aspects of intrastate and interstate commerce. In more recent times, under Justice William Rehnquist, (serving 1986 to 2005) the Court restricted interpretation of the Clause to allow states more control over business conducted within its borders.
The tensions between the states and the central government have always been part of the life of the nation and the Civil War was the ultimate test of whether states can secede from the Union if they feel their rights are being trampled upon. Under the many progressive social justice programs instituted since the 1930s, federal programs have acquired the power to coerce states to do its bidding simply by threatening to withhold billions in funding.
One need hardly be a constitutional scholar to understand that a federal government that can require you to purchase something you do not want or do not need can require you to do anything it wants. A government that powerful is a government to be feared.
The Tenth Amendment Center is rather sanguine about the Supreme Court’s likely decision. It notes that “In fact, from 1937-1995, the Supreme Court didn’t rule one single congressional act to be outside their constitution limits.” Thus, for sixty years, “they ruled absolutely nothing unconstitutional, and that included much of the new deal and all of the Great Society. Since that time, overruling Congress has been a rare occurrence at best.”
The Center is the leading advocate of the concept of “nullification” by which the states refuse to obey or enforce a federal law they deem a threat to the rights granted by the Constitution “For over 100 years,” says the Center, “federal power has been on one path and one path alone. It doesn’t matter which political party has been in charge. This case is the last exit ramp on the road to unlimited government.”
The Supreme Court is not famous for overturning its own decisions, precedents, and that is why many observers conclude they will rule in favor of Obamacare.
Add to that, the new Associate Justice, Elana Kagan, should have recused herself from hearing the case, having served as a Solicitor General in the Obama administration. The Court, however, defended her participation. As President Obama’s top advocate, Kagan headed the office responsible for formulating the administration’s defense of Obamacare—and oversaw the arguments both on appeal and in the lower courts because of its national importance. If that is not a conflict of interest, nothing is.
That leaves only one option left and that is a Congress elected in 2012 for the purpose of repealing Obamacare and a President other than Obama to sign it into law. The House has already passed legislation to repeal Obamacare.
Mitt Romney, the presumptive Republican candidate for President, is on record he would repeal Obamacare. Now he needs a Republican Senate and a Republican House in order to stop the federal government from becoming so powerful that a new revolution would have to be fought to overthrow it.