Yesterday, Virginia Attorney General Ken Cuccinelli filed a petition to the U.S. District Court of the Eastern District of Virginia on behalf of the Commonwealth against the federal mandate imposed by ObamaCare that individuals must purchase or obtain health insurance, whether from a private insurance company or from government.
Cuccinelli's efforts were joined by 13 other states, who separately filed a joint brief in Pensacola, Florida.
According to the Virginia brief, the government takeover of health care "contains an individual mandate which will require a majority of Virginians after December 31, 2013 to purchase health insurance for themselves and their dependents subject to a civil penalty." This contradicts Virginia law, which states that "No resident of this Commonwealth, regardless of whether he has or is eligible for health insurance coverage under any policy or program provided by or through his employer, or a plan sponsored by the Commonwealth or the federal government, shall be required to obtain or maintain a policy of individual insurance coverage…"
In short, both laws cannot stand. For its part, the White House was optimistic that the individual mandate would be upheld by the courts. "The Commerce Clause of the Constitution does say that people need to meet certain requirements," said Nancy-Ann DeParle, director of the White House Office of Health Care Reform. "The requirement to have coverage is one of them. So, we're not concerned about that."
They should be. First off, the Commerce Clause neither contains a requirement nor any obligation upon individual Americans. It states, from Article I, Section 8 of the Constitution that Congress shall have power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." What requirement does that place upon an individual? Does one have to hold the Constitution at a certain angle away from the light to find a penumbra requiring individuals to some sort of action?
The Commerce Clause solely includes commerce between states and other sovereign entities. So, for example, Congress could prohibit the sale of alcohol across state lines, or allow it. Or impose tariffs on imported goods from foreign countries, or not. But by no means does it provide Congress with the power to compel an individual to purchase alcohol or imported goods. Such would be a tyrannical usurpation, far afield from what the Constitution allows.
Cuccinelli said the individual mandate was unprecedented, and cited the dangers of interpreting the Commerce Clause in this fashion, as reported by CNS News: "Just being alive is not interstate commerce. If it were, there would be no limit to the U.S. Constitution's Commerce Clause and to Congress's authority to regulate everything we do. There has never been a point in our history where the federal government has been given the authority to require citizens to buy goods or services."
To be certain, whether Congress has the power to force individuals to purchase anything is untested, since it's never been attempted before, reports CNS. According to the Congressional Research Service, "Whether such a requirement would be constitutional under the Commerce Clause is perhaps the most challenging question posed by such a proposal, as it is a novel issue whether Congress may use this clause to require an individual to purchase a good or service." And, an August 1994 Congressional Budget Office report on the Clinton health care takeover stated that the government had never compelled Americans to buy anything.
All of which puts the lie to White House Press Secretary Robert Gibbs's statement that "there is a pretty longstanding precedent on the constitutionality of this." Really? Which case was that? Per Cuccinelli's brief, there are precedents — against utilizing the Commerce Clause to regulate non-commercial activities, citing United States v. Lopez (1995) and United Sates v. Morrison (2000).
Further, Cuccinelli asserts that the decision not to purchase insurance is not a commercial activity: "The status of being a citizen or resident of the Commonwealth of Virginia is not a channel of interstate commerce; nor a person or thing in interstate commerce; nor is it an activity arising out of or connected with a commercial transaction. Instead, the status arises from an absence of commerce, not from some sort of economic endeavor, and is not even a non-economic activity affecting interstate commerce. It is entirely passive."
Truly, if the courts now uphold the provisions for the individual mandate in ObamaCare, they will have removed whatever limits once existed upon Congress' powers against regulating every aspect of living. They will have single-handedly turned what started out as an innocuous provision of the Constitution — that was perverted over time — into a mechanism for totalitarian control. A tyranny will surely have risen.
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