By Daniel J. Flynn
Last week, a federal judge in Richmond invalidated “this affirmative duty to engage in private commerce,” i.e., ObamaCare’s stipulation that Americans must purchase health insurance. In Pensacola, another judge heard a separate challenge brought by 20 states objecting to the controversial law’s individual mandate and its unfunded Medicaid mandate.
Under attack, the Obama administration predictably defended the law’s constitutionality. Strangely, they appealed not to the Constitution to do so but to anecdotes regarding people who have lost insurance, economic utility, unexpected legal support from political opponents, and the failed attempt to overturn Social Security through the courts.
“History and the facts are on our side,” insisted the official White House blog. “Similar legal challenges to major new laws, including the Social Security Act.. failed.” A op-ed in The Washington Post by Attorney General Eric Holder and Health and Human Services Secretary Kathleen Sebelius commented, “It’s not surprising that opponents, having lost in Congress, have taken to the courts. We saw similar challenges to laws that created Social Security.”
But two New Deal-era Supreme Court decisions appear more germane, if less convenient, to the administration’s defense of ObamaCare than anything pertaining to Social Security. Just don’t hold your breath waiting for any administration mouthpiece to mention the rulings invalidating the National Recovery Act (NRA) and the Agricultural Adjustment Act (AAA).
The NRA, bureaucratic collusion between big government and big business to rig industry regulations, wages and prices, and the AAA, a harebrained price-manipulation/expropriation scheme that transferred money from productive farmers to those who underutilized their farms, similarly bullied individuals without regard to constitutional limitations.
In 1935’s ALA Schechter Poultry Corp. v. the United States, the high court faulted the NRA by observing that the law “does not admit of precise definition; its scope being left to judicial determination as controversies arise.” Sound familiar?
The two main issues upon which the court declared the act unconstitutional also get resurrected in arguments against ObamaCare. Citing congressional outsourcing to unelected bureaucrats, the court decreed: “The Congress is not permitted to abdicate or to transfer to others the essential legislative functions with which it is thus vested.” The court similarly shot down weak arguments justifying the “regulation of intrastate transactions which affect interstate commerce only indirectly.” Seventy-five years later, another Democratic administration again lamely uses the Commerce Clause to empower itself at the expense of the rights reserved to the people.
In 1936’s United States v. Butler, the bench declared the New Deal’s AAA unconstitutional. “The question is not what power the federal government ought to have, but what powers, in fact, have been given by the people,” the Supreme Court’s 6-3 majority opinion held. “It hardly seems necessary to reiterate that ours is a dual form of government; that in every state there are two governments — the state and the United States . . . we differ radically from nations where all legislative power, without restriction or limitation, is vested in a parliament or other legislative body subject to no restrictions except the discretion of its members.”
Rejecting Roosevelt administration arguments justifying the power grab through the General Welfare Clause, Justice Roberts noted, “It seems never to have occurred to [the Founders], or to those who have agreed with them, that the general welfare of the United States (which has aptly been termed ‘an indestructible Union, composed of indestructible States’) might be served by obliterating the constituent members of the Union,” the majority ruling explained.
It is telling that on the rare occasion that the Obama administration has appealed to the Constitution for its health-care plan, the same rationalizations have again been utilized — the Commerce Clause and the General Welfare Clause — that the Roosevelt administration used to justify its bullying of industrialists and farmers.
But the Commerce Clause refers to interstate commerce, and certainly not intrastate economic inactivity, e.g., not buying medical insurance. And the General Welfare Clause pertains exclusively to taxation — not to schemes ordering farmers to needlessly slaughter pigs, not to fascistic attempts to manage private industry, and certainly not to federal edicts ordering Americans to purchase a private product. One needn’t read the entire Constitution to glean all this. Article 1, Section 8 should suffice.
In the heady days following the 2008 presidential election, Time pictured a black-and-white, bespectacled, smiling, smoking Obama on its cover as Franklin D. Roosevelt reincarnated, New York Times columnist Paul Krugman called the incoming president “Franklin Delano Obama,” and pundits far and wide proclaimed a “new” New Deal. Such labeling was prescient, but for reasons unforeseen.
Three-quarters of a century have passed since the Supreme Court slapped down FDR’s attempted usurpation of powers retained by the people. Time stands still for liberals stuck in old fallacies.