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Decision May Well Stand up under Appeal

A Federal Judge in the state of Texas, U.S. District Judge Reed O’Connor, has ruled that the Affordable Care Act, otherwise known as Obamacare, is unconstitutional, and therefore the law would be null and void, that it would be struck down.  Of course this will be the subject of appeal, so whether or not this decision is going to hold is still an open question. But if you listen to the way it is being reported in the media, the reaction from a lot of the people, particularly the Democrats, is that they are accusing this judge of being partisan, being a judicial activist, that this is a ridiculous crazy decision and that it will clearly be overturned.  All this is a bunch of nonsense. The judge in this case is completely correct. Obamacare was unconstitutional before this decision.

The Rationale Behind Judge’s Ruling

This particular judge focused on one aspect of the law, but there are so many reasons this law is unconstitutional. But for the purpose of this podcast is to focus on the rationale behind the judge’s ruling and why I believe the decision is valid and may, in fact stand up under appeal.   Under the new makeup of the Supreme Court, some of the new justices could easily side with the original dissent to form a new majority now that the law itself has been changed based on the Tax Cuts and Jobs Act, which is the basis of this particular decision.

Read Article 1, Section 8, Clause 3 of the U.S. Constitution

I did an earlier podcast on whether or not the U.S. government could require American citizens to purchase health insurance. Now the theory was that they had the right to do this under what is now known as the Commerce Clause (Article 1, Section 8, Clause 3 of the U.S. Constitution), one of the single most understood Constitutional clauses which has enabled the government to get away with all sorts of things that the Constitution does not authorize. This is where all the powers to the Federal government are delegated. One of the powers is to regulate commerce with foreign nations and among the several states and with the Indian tribes. That’s it.

Constitution Allows Federal Government to Regulate Commerce, not Companies

Now based on that clause, you have had Supreme Courts validate government regulation of companies because the government claims that since those companies engage in interstate commerce, that it falls within that power, that Congress can regulate these companies because the company is engaged in commerce. Of course, that’s not what it says.  The Constitution doesn’t say the Federal government has the right to regulate companies that engage in interstate commerce, it just says it can regulate the commerce, itself. The commerce has to do with the flow of goods and services over state borders. So this is an unconstitutional expansion of Federal power. The Federal government does not have the constitutional authority to regulate businesses simply because these businesses happen to engage in interstate commerce.

Federal Regulation of Business Outside of Constitutional Authority

But that was even the camel’s nose under the tent, because then it got worse.  Then what happened is companies that were regulated that did no interstate commerce were saying, “this law does not apply to me because I don’t engage in interstate commerce.” But the Supreme Court said that the Federal government under the Commerce Clause can regulate companies that do not even engage in interstate commerce if they can show that those companies somehow effect interstate commerce, even though they themselves do not participate in it. So now, under the Commerce clause, the government is regulating any business it wants for whatever reason it wants completely outside of its Constitutional authority.

Supreme Court: the Federal Government May not Mandate Health Care Purchase

But when we got to the Affordable Care Act, here was a new thing that the government was going to try to justify under the Commerce Clause. They were going to try to regulate people who were not engaging in any commerce and forcing them to engage in commerce. Because if I don’t have health insurance, and the government says, “you must go out and buy it, the government is actually mandating that somebody engage in commerce when they’re not engaging in any commerce at all. That’s a stretch beyond which the Supreme Court, to its limited credit, was not going to make. If you read the decision, the court agreed. There is nothing in Article 1 Section 8 that gives the Federal government the power to force people to engage in commerce.