POST-GAZETTE - Res Publica

A Constitution in Name Only

by David Trumbull -- February 11, 2011

The 78-page order by judge Roger Vinson, declaring “The Patient Protection and Affordable Care Act” unconstitutional, ought to be required reading as a lesson in civics. As judge Vinson points out, the question is not about health care, but: “It is principally about our federalist system, and it raises very important issues regarding the Constitutional role of the federal government.”

At the center of the question is the individual mandate to buy health insurance. Two courts have ruled that the mandate is a Constitutional exercise of Congress’s power to regulate interstate commerce (the “Commerce Claus”). With this latest ruling two courts have held it to be unconstitutional. The question will ultimately go to the Supreme Court.

Through the years courts have ruled many times on just what activities of individuals could be regulated by Congress under the Commerce Clause. But never before has the Federal Government tried so great a power grab as to penalize an individual for not acting. As judge Vinson wrote:

“It would be a radical departure from existing case law to hold that Congress can regulate inactivity under the Commerce Clause. If it has the power to compel an otherwise passive individual into a commercial transaction with a third is not hyperbolizing to suggest that Congress could do almost anything it wanted. It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place.”
Quoting in part from the 1995 United States v. Lopez Commerce Clause case, judge Vinson continues:
“If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain for it would be ‘difficult to perceive any limitation on federal power’, and we would have a Constitution in name only.”
Or as Benjamin Franklin, when upon completion of the drafting of the Constitution was asked what kind of government we should have under this Constitution, is reported to have replied A REPUBLIC, IF YOU CAN KEEP IT.

[David Trumbull is the chairman of the Boston Ward Three Republican Committee. Boston's Ward Three includes the North End, West End, part of Beacon Hill, downtown, waterfront, Chinatown, and part of the South End.]