Commerce Clause

Eleventh Circuit Court Of Appeals: ObamaCare's Individual Mandate Is Unconstitutional

Funny how August, supposedly the slowest of all months for news, can gobsmack you in the face with a flying hammer full of headlines, and on a Friday of all things. In fact, there is a fair amount of state news today, as well as our open house last night, that we wanted to write about today. But that will wait to next week. For now, it's all about ObamaCare and the Eleventh Circuit Court of Appeals' ruling today that the linchpin of ObamaCare — the individual mandate (i.e., the government forcing citizens to buy a product) — is unconstitutional, and some observations. Here's a good first look analysis by Bryan Preston of Pajamas Media.com. » The court seems to indicate that the rest of the law is constitutional. However, without the funding the forced purchases and penalties provide, there is no way the law can be funded (unless President Obama takes us trillions further in debt). But as far as the mandate, the court used phrases such as "unbounded assertion of congressional authority" and called its reach "breathtaking in scope," going further even than opponents had in their arguments.

» It's interesting that the 11th Circuit came to its decision this quickly: The 4th Circuit, known as the "Rocket Docket," heard the Virginia challenge earlier and still has not released its decision.

»The 11th Circuit's 2-1, 304-page decision apparently says the individual mandate is unconstitutional but the other parts may be constitutional. Judge Roger Vinson, the Federal District Court Judge in Florida, on whose opinion the appeal was based, ruled the entire law was unconstitutional. After all, the law has no severability clause which stipulates that if any part of a bill is ruled unconstitutional, then the remaining parts will remain in place. Without that clause, once the 11th Circuit ruled the individual mandate unconstitutional, the entire law must be ruled unconstitutional. But, we'll take this major decision for now.

» The three judge panel was made up of one Bill Clinton appointee, one George W. Bush appointee, and one Clinton appointee who was appointed to the Federal District bench by Ronald Reagan.

» Here is a key sentence from Judge Vinson that the 11th Circuit upheld today:

The individual mandate exceeds Congress’ commerce power, as it is understood, defined, and applied in the existing Supreme Court case law.

» Where are Eliot Spitzer and all the liberals who mocked the intelligence of all state Attorneys General for filing suit against ObamaCare, saying that they had no chance and it clearly is constitutional? This is now at least the third federal court to rule it unconstitutional, including the Federal District Court for Eastern Virginia (Judge Henry Hudson). Where are all the leftist activists who yelled that these legal actions were "a waste of time and tax dollars"? Isn't it nice to stay quiet and let them eat crow when the time comes?

» Kyle Wingfield of the Atlanta Journal-Constitution has good information on the decision and is updating it frequently. He provides this nugget from the 304-page ruling,as legal analysts continue to pour through the lengthy document.

It cannot be denied that the individual mandate is an unprecedented exercise of congressional power. … Never before has Congress sought to regulate commerce by compelling non-market participants to enter into commerce so that Congress may regulate them. The statutory language of the mandate is not tied to health care consumption — past, present, or in the future. Rather, the mandate is to buy insurance now and forever. The individual mandate does not wait for market entry.

» David Rivkin, the attorney hired by the more than two dozen attorneys general to argue — and who won — the multi-state lawsuit in Federal District Court in Florida, issued this news release. The former Reagan administration attorney, and one of America's top legal minds on a myriad of disciplines, said the ruling is a major victory for ObamaCare opponents and that the court's decision confirms almost verbatim his original argument in a series of editorials dating from August of 2009. He has been correct on this matter consistently, and recently laid out on SCOTUSBlog.com how and why ObamaCare will get struck down in the U.S. Supreme Court. From his release:

The Court has made clear that it will vindicate federalism against encroachment by either the federal government or the state. [It] has consistently held that there must be some areas of life, even where there may be some remote economic impact, that constitutionally remain within the States’ regulatory authority alone.

» Governor Bob McDonnell issued this statement:

I am pleased by today’s decision. The 11th Circuit Court of Appeals has correctly determined that the Commerce Clause provides no constitutional basis for a mandate that citizens must purchase a specific commercial product or face a penalty. The individual mandate provision . . . represents an unprecedented expansion of federal authority. In issuing their ruling, the court's majority wrote that, "the individual mandate was enacted as a regulatory penalty, not a revenue-raising tax, and cannot be sustained as an exercise of Congress's power under the Taxing and Spending Clause." It is clearly in direct contrast to the limited powers granted to our national government by the Constitution.

The decision by the 11th Circuit is similar to the prior district court ruling on Virginia's challenge to the federal healthcare law. ... this issue must be heard in an expedited manner by the Supreme Court of the United States. The Department of Justice has resisted all prior requests to fast track this issue to the nation's highest court. That is disappointing and I again urge the Department of Justice to call for expedited review. This law will impact every American. Regardless of where one stands on the policy and constitutional questions at hand, all should at least be able to agree on the need for certainty, finality and uniform application of the law throughout the country.

» Attorney General Ken Cuccinelli issued this statement:

I am pleased that the Eleventh Circuit Court of Appeals found the individual insurance mandate and penalty unconstitutional. The court determined that the power to force one citizen to purchase a good or service from another is outside the established outer limits of both the Commerce Clause and the Necessary and Proper Clause. The court also ruled that although the president and Congress want to now call the penalty a tax to make it pass constitutional muster, the penalty cannot be sustained under the federal government's taxing authority because the penalty is clearly not a tax.

I congratulate our fellow attorneys general in this major victory, and although this court is not in our circuit, I am pleased that the judges ruled in favor of the two key arguments that are present in our Virginia suit.

The Case Of The Curiously Missing Video From Client Number 9's CNN Web Site

As we previewed yesterday, last night Attorney General Ken Cuccinelli (WMAL.com) appeared on CNN's In The Arena, which is hosted by Client Number 9, the former Governor of New York, also known as Eliot Spitzer. The previous time the AG appeared on his show, Mr. Cuccinelli patiently instructed Client Number 9 on the correct interpretation of the Constitution and why ObamaCare is unconstitutional. Confused and dazed, and aware that he couldn't pawn off his misguided, misunderstood interpretation of the Constitution with any credibility, Mr. Spitzer last night brought in a hired gun to do his debating for him: Walter Dellinger, a former acting U.S. Solicitor General in the Clinton Administration. Mr. Cuccinelli calmly waxed the floor with him as well, teaching the now-Duke Law School professor the simple (and what should be apparent) fact that the Commerce Clause gives Congress power to regulate commerce, not inactivity. Yet, apparently Duke law students are learning that choosing not to buy something is economic activity and the it is perfectly legal for the government to order its citizens to buy a certain product. Wonderful!

Which probably explains this: Stranger than that twisted logic is that CNN did not post the video — although it posted Mr. Cuccinelli's previous appearance. It found time to post video of every other segment from last night's show, including a tired examination of the economy (which Mr. Spitzer says needs a second "stimulus" bill) and every liberal's favorite type guest — a Republican slamming the GOP presidential field. But no video of Attorney General Cuccinelli explaining the Constitution to two liberals. Client Number 9's producers probably figured one manhandling is enough.

While CNN didn't post its video of Attorney General Ken Cuccinelli taking down two liberals last night, Washington station WMAL-AM had this portion of the AG's guest host stint on its Morning Majority show posted earlier today. It's a good discussion on several issues and worth the listen.

Federal Judge In Florida: Obamacare Unconstitutional

Today, a second federal judge in as many months ruled Obamacare unconstitutional (see Avik Roy at The Apothecary blog at Forbes.com). That's two lawsuits involving 27 states against the federal government's healthcare takeover and two rulings that it is unconsitutional. Perhaps the most devastating aspect of Judge Roger Vinson's decision is that he ruled the entire law is unconstitutional because the offending portion — the individual mandate that forces Americans, for the first time in history, to buy a product — is not severable. In other words, when the law was drafted, in its legislative sloppiness, the U.S. Senate did not include a clause that declared if any part of it was ruled unconstitutional, the remainder of the law remained in effect. Even Judge Henry Hudson, of the Eastern District of Virginia, who was the first judge to rule Obamacare unconstitutional, refused to go that far. But Judge Vinson did not enjoin the law (see 21StateLawSuit.com), either.

Much like Judge Hudson's opinion, however, Judge Vinson said the law goes well beyond the limits of the Commerce Clause and any High Court precedent. He wrote:

The individual mandate exceeds Congress’ commerce power, as it is understood, defined, and applied in the existing Supreme Court case law.

Here is Attorney General Ken Cuccinelli's reaction: 

I am heartened by the fact that another federal judge has found that the individual mandate forcing citizens to buy private health insurance is unconstitutional. The judge also found that the individual mandate could not be severed from the remainder of the law, so he declared the entire act invalid.

Constitutional principles have scored another victory today. Liberty has scored another victory today.

I congratulate Florida Attorney General Bondi, former Attorney General McCollum, and the attorneys general and governors who joined the Florida suit, on their victory.

Here is Governor Bob McDonnell's reaction:

Judge Vinson's ruling is yet another strike against the individual mandate specifically, and the entire federal health care law generally. For the second time in as many months, a federal judge has found that Congress exceeded its constitutional authority by mandating that citizens of this nation purchase a commercial product or else face a penalty.

Judge Henry Hudson reached a similar conclusion in his December ruling on the Commonwealth's challenge to the Act. However, Judge Vinson's decision goes one step further. The Judge also ruled that the individual mandate component is not severable from the overall Act in which it is contained, meaning that this one unconstitutional provision renders the entire bill void.

I agree with both Judge Vinson and Judge Hudson that the individual mandate is clearly unconstitutional. However, this matter is far from settled. Today's decision adds to the growing uncertainty surrounding federal health care reform. That uncertainty is leaving states, businesses and individuals unable to properly plan for 2014 and the scheduled implementation of this new law.

For this reason I reiterate my request that the Department of Justice join with the states to request fast tracking the challenges to the Patient Protection and Affordable Care Act to the Supreme Court of the United States, where the final decision regarding its constitutionality will ultimately be determined. All parties involved, no matter where they stand on this measure, should support moving this issue to its final stage, and bringing finality to a complicated matter that will have an impact on every state, employer and citizen of this nation.

Exceeding Commerce Clause Powers

Although it is the first of many court decisions he faces, Attorney General Ken Cuccinelli this week became the first person to successfully challenge President Obama's federal health insurance scheme. U.S. District Court Judge Henry Hudson ruled a key component of the plan — the "individual mandate" — unconstitutional. In his opinion, Judge Hudson concluded:

Neither the Supreme Court nor any federal court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter a stream of commerce by purchasing a commodity in the private market. In doing so, enactment of the Minimum Essential Coverage Provision exceeds the Commerce Clause powers vested in Congress under Article I.

He added that the individual mandate "is neither within the letter nor the spirit of the U.S. Constitution." That letter meaning this: "Regulate" during the days of the constitution's adoption meant, "to make regular." Far from taking over entire industries, the federal government instead was to ensure that states didn't discriminate against businesses from one state to the advantage of one from another.

The Obama administration argued that the constitution's Commerce Clause gives the government broad authority to order Americans to purchase health insurance because not doing so adversely affects commerce. Of course, this unprecedented attempt to force Americans to purchase a product was predicated on labeling inactivity (not buying insurance) "interstate commerce." Stranger than fiction, we know.

While the Obama administration will appeal Monday's decision to the U.S. Fourth Circuit Court of Appeals, Attorney General Cuccinelli would prefer an expedited appeal directly to the U.S. Supreme Court. He was in talks with the Department of Justice about a joint motion to that affect, but it now appears DOJ wants no part of it (better to delay until more and more parts of the law go into affect). However, Mr. Cuccinelli told Fox New Channel's Greta Van Susteren Monday night he may go forward on that by himself and also may appeal Judge Hudson's refusal to place an injunction on the health care law (see video). He has 30 days from last Monday to make that appeal. Regardless of how or when, ultimately Obamacare's fate will be determined by the U.S. Supreme Court.

While there are dozens of reasons to oppose Obamacare (see Obamacare411), the provision that requires otherwise free Americans to purchase health insurance or face penalties is the most egregious — but it is also the financial linchpin of the entire law. Without the mandate, much of the rest of the law is untenable.

Earlier this year, The Family Foundation supported the Virginia Health Care Freedom Act, the basis for the Commonwealth's lawsuit against the federal government. It protects Virginia citizens from being compelled to buy insurance against their will. We applaud the Attorney General and his staff for their commitment to protecting the freedom of Virginians. For a great perspective on the hearing and Judge Hudson's ruling, view Mr. Cuccinelli's post-decision news conference (click here). We are the only news or Internet site that recorded and posted the entire news conference.

Obamacare Unconstitutional! AG Cuccinelli's Follow-Up From Court's Decision

Attorney General Ken Cuccinelli just sent this e-mail to supporters:

As I told you earlier today, Virginia won the first round of the constitutional fight over the federal health care law. I also told you I'd get back to you with more details later in the day, and I'm keeping my promise.

I will tell you up front that I will also go into still more detail later this week — when time allows.

Arguments and Outcomes

There were two basic arguments in this case.

First, Virginia argued that the individual mandate was beyond the power of Congress and the President to impose under the Constitution. Specifically, Congress claimed that their regulatory power under the Commerce Clause allowed them to order you to buy their government-approved health insurance, even if you decide not to buy health insurance.

The judge ruled that the federal government does not have the power to compel you to buy health insurance as part of its attempt to regulate the entire field of health care and health insurance. Thus, Virginia won this argument.

Second, the federal government advanced a 'fallback' argument in case it lost on its commerce clause argument. The feds' fallback argument was that the financial penalty you have to pay if you don't buy the government mandated health insurance is a tax.

This may sound like an odd argument from a political standpoint — usually they say everything is NOT a tax (in fact, they argued the penalty was not a tax while they were trying to get the bill passed); however, they changed position after the bill became law to try and save the bill. What they were trying to do was to get the courts to agree that because the penalty would presumably raise some revenue, it was therefore a 'tax' under the taxing and spending for the General Welfare Clause of the Constitution.

No judge in the country has bought this argument, and Judge Hudson was no exception. He ruled that the taxing power of Congress does not save the bill, because the penalty for not buying the mandated health insurance is not a tax.

The federal government only had to win on either of these two arguments, while Virginia needed to win both to prevail, and we won both!

What's Next?

Certainly the federal government will appeal their loss in the district court to the 4th circuit court of appeals within the next 30 days. And whichever side loses in the 4th circuit will certainly appeal to the Supreme Court. And no one has any serious doubts that ultimately the constitutionality of the individual mandate will be decided by the U.S. Supreme Court.

That could take approximately (very rough approximation) two years. We are discussing with the Department of Justice accelerating the case, and those discussions have been very cordial thus far. More on that later.

Conclusion

Today is a great day for the Constitution. Today the Constitution has been protected from the federal government, and remember, an important reason for the constitution in the first place was to limit the power of the federal government.

Today is also a day of a small degree of vindication. When we first filed suit, the screeching of the liberals was deafening. Everything from accusing us of playing politics instead of practicing law, to filing what they called a 'frivolous' lawsuit.

I want you to know, that our team makes decisions based on the Constitution and the laws. Period. We deal with the consequences of our decisions separately, but first and foremost we have been and will continue to be true to the Constitution and laws of the United States and Virginia, regardless of whether it's easy or hard in any particular case.

Breaking: Virginia Wins Round One In HC Legal Challenge!

Federal District Court Judge Henry Hudson, of the Eastern District of Virginia, ruled within the last few minutes that the individual mandate provision of the new federal health care law is unconstitutional. News leaked out at noon, when Attorney General Ken Cuccinelli sent a tweet that claimed:

HC ruling is in. Va won this round.

He followed that up with an e-mail about 17 minutes later:

Today, a federal judge in Richmond ruled the individual mandate of the federal health care law UNCONSTITUTIONAL!

In other words — we won!

This won't be the final round, as this will ultimately be decided by the Supreme Court, but today is a critical milestone in the protection of the Constitution.

I am still fully digesting the court's ruling, so I'll get back to you again later with more details, but I wanted you to hear the good news right away.

Thank so many of you for your support to become the Attorney General of Virginia, and your support since then. Today is a day to celebrate those same first principles that our founding fathers articulated over 200 years ago.

We are proud to defend their work and the same first principles today in the 21st century.

Stay tuned — and thank you for your support.

To Judge Hudson's decision. Here are pertinent quotes from his 42 page opinion (see here):

Page 24:

Neither the Supreme Court nor any federal court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter a stream of commerce by purchasing a commodity in the private market. In doing so, enactment of the Minimum Essential Coverage Provision exceeds the Commerce Clause powers vested in Congress under Article I. ...

Page 37-38:

The absence of a constitutionally viable exercise of this enumerated power is fatal to the accompanying sanction for noncompliance. ...

A thorough survey of pertinent constitutional case law has yielded no reported decisions from any federal appellate courts extending the Commerce Clause or General Welfare Clause to encompass regulation of a person's decision not to purchase a product, notwithstanding its effect on interstate commerce or role in a global regulatory scheme. The unchecked expansion of congressional power to the limits suggested by the Minimal Essential Coverage Provision would invite unbridled exercise of federal police powers (emphasis added). At its core, this dispute is not simply about regulating the business of insurance — or crafting a scheme of universal health insurance coverage — it's about an individual's right to choose to participate.

Article 1, Section 8 of the Constitution confers upon Congress only discrete enumerated governmental powers. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the states, respectively, or to the people.

On careful review, this Court must conclude that section 1501 of the Patient Protection and Affordable Care Act — specifically the Minimum Essential Coverage Provision — exceeds the constitutional boundaries of congressional power.

Judge Hudson, however, did not do two things the Commonwealth asked: He did not place an injunction on the law, stating the individual mandate won't take affect for three more years while acknowledging his decision will be appealed. However, he cited precedent stating that "declaratory judgment is the functional equivalent of an injunction," and noted the Commonwealth conceded the administration is duty-bound to honor the decision. 

He also did not invalidate the entire law, saying there were more than 400 provisions unrelated to the specific provision challenged. That, however, gives an idea as to how obnoxiously crafted the legislation was.

The White House's Response To Virginia's Round One Health Care Win

Perusing liberal blogs today has been a hoot. The Left Wing is in hysterics (for example, see Blue Virginia). At least it uses a nice picture of Attorney General Ken Cuccinelli. More composed, of course, but no less disingenuous, is the White House itself. Stephanie Cutter, writing on its blog, posted the following:

Having failed in the legislative arena, opponents of reform are now turning to the courts in an attempt to overturn the work of the democratically elected branches of government.

The federal government believes this procedural ruling is in error and conflicts with long-standing and well-established legal precedents . . . designed to preserve the "judiciary’s proper role in our system of government" and to ensure that our courts do not become forums for political debates.

Now that this preliminary stage has ended, the government fully expects to prevail on the merits. The Affordable Care Act falls well within Congress’s power to regulate under the Commerce Clause, the Necessary and Proper Clause, and the General Welfare Clause.

So little written, so much nonsense. Regarding activist courts, the Left Wing should know better. Much better. But they often prove not understand the U.S. Constitution — or purposefully misguide: The courts were put in place as a safeguard against government encroachment on individual liberty. So, when the government overreaches (especially when new requirements are established), individuals, localities and states have recourse. It is the check against the ruling class which, if not held back, could easily consolidate all power unto itself. By the White House's logic no law can be overturned as long as it is — by definition — passed by Congress and signed by the president. Absurd!

Real judicial activism is legislating from the bench, rather than undoing a law, or something not previously on the books. So the White House has it only half correct, but it is liberals who, over the decades, when failing to get legislation passed into law, have resorted to seeking decrees from courts to invent laws and "rights" nowhere to be found in the constitution. There was no more frank admission of this than the infamous remark by now-Justice Sonia Sotomayor where she said, "The court of appeals is where policy is made." (See YouTube.)

The White House also cities numerous clauses, a debate it assuredly doesn't want to have — at least not before it finishes debating itself. None of the clauses mentioned empower the government to force people to purchases something they may not use. Knowing this, the Justice Department argued at the hearing to dismiss on July 1 that the law comes under the taxing authority of the constitution. But at every turn, including his campaign and during the shambolic legislative process leading up to the health care vote, Barack Obama and Congressional liberals said it was not a tax bill.

As a candidate, Mr. Obama went so far as to oppose an individual mandate, opposition to which is the thrust of Attorney General Cuccinelli's argument (see news release). That the White House and its own DOJ are on separate pages tells us much and perhaps liberal bloggers need rant at them before taking aim on the attorney general. Even bloggers at the White House.

A Few Concluding Words From The Health Care Ruling

Upon further review, here is a telling paragraph toward the conclussion of Federal District Judge Henry Hudson's ruling today that allows Virginia's law suit against against the federal government's ObamaCare health care law to proceed: (see entire ruling here):

While this case raises a host of complex constitutional issues, all seem to distill to the single question of whether or not Congress has the power to regulate — and tax — a citizen's decision not to participate in interstate commerce. Neither the U.S. Supreme Court nor any circuit of appeals has squarely addressed this issue. No reported case from any federal appellate court has extended the Commerce Clause or Tax Clause to include the regulation of a person's decision not to purchase a product, notwithstanding its effect on interstate commerce. Given the presence of some authority arguably supporting the theory underlying each side's position, this court cannot conclude at this stage that the complaint fails to state a cause of action. (Emphasis added.)

The secretary's motion to dismiss will therefore be denied. Resolution of the controlling issues in this case must await a hearing on the merits.

Virginia, Cuccinelli Win Round One Against ObamaCare!

As we were one of the first to report this morning, Virginia, through Attorney General Ken Cuccinelli (see news release), and despite what almost every liberal pundit and legislator has prognosticated, won round one in his lawsuit against the constitutionality of the new federal health care takeover law. Federal District Court Judge Henry Hudson, of the Eastern District of Virginia, in Richmond, ruled against the Department of Justice's motion to dismiss the case because Virginia, it alleged on several fronts, has no standing. Judge Hudson rejected those arguments and the case now will go to full trial, on October 18 in Richmond (see Washington Post Virginia Politics Blog). In his 32-page ruling (see here) Judge Hudson wrote:

Although this lawsuit has the collateral effect of protecting the individual interests of the citizens of the Commonwealth of Virginia, its primary articulated objective is to defend the Virginia Health Care Freedom Act from the conflicting effect of an allegedly unconstitutional federal law. Despite its declaratory nature, it is a lawfully-enacted part of the laws of Virginia. The purported transparent legislative intent underlying its enactment is irrelevant. The mere existence of the lawfully-enacted [Virginia] statute is sufficient to trigger the duty of the Attorney General of Virginia to defend the law and the associated sovereign power to enact it.

Ouch! Quite smackdown to the feds' several arguments as well as to left-wing pundits and activists who repeatedly said Attorney General Cuccinelli had no standing, no right, no business and no chance in filing this suit. Judge Hudson's opinion, boiled down, is exactly what the AG has said all along: That he took an oath to defend not only the U.S. Constitution, but the Virginia Constitution and the laws of the commonwealth. Judge Hudson also found that even though the federal insurance mandate doesn't take effect until 2014, the case is "ripe" because a conflict of state and federal laws is certain to occur. All are obvious reasons to proceed to trial to anyone with commonsense, regardless of political persuasion, except the hyper left.

At issue at the trial on October 18 is whether the federal government can order individuals to buy something (in this case, health insurance) in contradiction to Virginia law, the Virginia Health Care Freedom Act (see text). Then, it will be the AG on the offensive, asking for summary judgment. In the hearing to dismiss on July 1, the Department of Justice said it was not invoking the Commerce Clause of the U.S. Constitution, as Congress itself said it was, but rather its taxing authority, which made for some pretty humorous and pretzel twisting arguments from the government's lawyers.

For what it's worth: At the conclusion of the hearing on the feds' motion to dismiss, Judge Hudson promised a decision by the last week of July. When it didn't come last week, it was widely expected to come this morning. We were notified of the ruling around 10:30. One tip that something was up was a promo last night on the Fox News Channel that the AG would be on On The Record with Greta Van Susteran (hear her commentary) tonight at 10:00. Odds are that it won't be the only show upon which he will appear.

In the meantime, we were the only media, new or old, to have Attorney General Cuccinelli's entire July 1 post-hearing news conference. To see it, and hear more of his legal reasoning behind the case, click here.  

As we said from the early days of this past General Assembly session, what Virginia was doing with the Health Care Freedom Act was historic. Today was another new chapter which, most likely, will have several more written.

The Framers Had Doctors, Too: Judge Andrew Napolitano Explains The Commerce Clause

The Congress shall have the Power To . . . regulate Commerce with foreign Nations, and among the several States, and with Indian tribes. ...

Article I, Section 8, United States Constitution: "The Commerce Clause" 

Many in Congress admit they don't know where in the U.S. Constitution (the document they swear to uphold) it says Congress has the power to takeover health care or interfere in any aspect of the economy. Others, ignorantly, say it's in the Commerce Clause. Still others know they don't have the authority, but live a lie in order to consolidate power in government, rather than the people, to further their statist aims (See U.S. Rep. Phil Hare). A very few, unfortunately, know that the power is nowhere to be found in the document.

Above is the Commerce Clause verbatim. It clearly means that the federal government's only role is to ensure the equal treatment of commerce across borders, whether with other countries, native tribes or "among the several States." That's right! States! Notice the equal footing the Framers gave states with "foreign Nations" — both are capitalized. The Framers did not want New Jersey, for example, taxing goods coming into it from New York differently than it did goods coming into it from Virginia. Similarly, New Jersey and Virginia couldn't impose different tariffs on goods from England; the central government would referee that and put a uniform tariff on imports coming into the country at any port.

The Commerce Clause, then, had nothing to do with individuals conducting their own transactions, much less conducting the personal business of seeking treatment or medical advice. It means just what it says. Pretty simple.

Clarifying it further is former Judge Andrew Napolitano, seen on the Fox News Channel as its senior judicial analyst and heard on his own Fox News Radio program. Here is a telling excerpt from a piece he wrote for the Wall Street Journal last September:

I asked South Carolina Congressman James Clyburn, the third-ranking Democrat in the House of Representatives, where in the Constitution it authorizes the federal government to regulate the delivery of health care. He replied: "There's nothing in the Constitution that says that the federal government has anything to do with most of the stuff we do."   

Rep. Clyburn, like many of his colleagues, seems to have conveniently forgotten that the federal government has only specific enumerated powers. He also seems to have overlooked the Ninth and 10th Amendments, which limit Congress's powers only to those granted in the Constitution. 

One of those powers — the power "to regulate" interstate commerce — is the favorite hook on which Congress hangs its hat in order to justify the regulation of anything it wants to control. ...

James Madison, who argued that to regulate meant to keep regular, would have shuddered at such circular reasoning. Madison's understanding was the commonly held one in 1789, since the principle reason for the Constitutional Convention was to establish a central government that would prevent ruinous state-imposed tariffs that favored in-state businesses. It would do so by assuring that commerce between the states was kept "regular."

In the video below, Judge Napolitano, the youngest Superior Court Judge in New Jersey history, expounds on the original intent of James Madison and the Framers as well as the evils of an all-powerful, big-government. (The Framers had doctors, too, and saw no need to mention "health care" in the Constitution!) Look no further than what the 18th century definition of "regulate" meant to know today's government is out of control. The article, linked above, and the video, are well worth the big education you will get for such a short expenditure of your time.

Judge Andrew Napolitano: If the Framers thought health was a constitutional power, they would've mentioned it. After all, people got sick, then, too.

Cuccinelli Thrills Pro-Family NOVA Crowd

Nearly 100 grassroots activists, elected officials and candidates for office attended the Prince William and Manassas Family Alliance Gala dinner Monday evening where they were addressed by Attorney General Ken Cuccinelli. The AG updated the guests on the lawsuit filed by his office defending Virginians from the federal government's new individual mandate to buy health care insurance and its violation of Virginia's new Health Care Freedom Act, passed with bipartisan support this past General Assembly session, as well as the U.S. Constitution's 1oth Amendment and interstate commerce clause. (Click here for the Manassas News & Messenger's coverage.) Interestingly, Mr. Cuccinelli referenced George Washington University Law School professor, and oft quoted, Jonathan Turley who has argued that the federal health care act could be the final blow to the Founder’s vision of federalism. Should Cuccinelli's suit, or the others being brought by nearly two dozen states, fail, Turley insinuates that there would then be very little left outside the control or influence of the federal government. Mr. Cuccinelli added that if the government can compel its citizens to purchase one product (health insurance) there is nothing to stop it from purchasing another product (say, a car made by GM).

Essentially, he is arguing that individual citizens who do not have health insurance are thus not participating in the "interstate commerce" of health care insurance, and so cannot be compelled to purchase it by the federal government under the interstate commerce clause. Case law surrounding the interstate commerce clause is lengthy and confusing to say the least. However, there appears to be no other example where the courts have ruled economic inactivity to be interstate commerce (one exception being from 1792 when Congress compelled people to buy guns — really).

Ultimately, this case is likely to be decided by the U.S. Supreme Court. The AG doesn't think  that will take place until at least mid-2012. The individual mandate in the health care bill doesn’t take effect until 2014.

Currently, 21 states, including Virginia, are involved with some type of lawsuit against the federal government concerning the health care law. The two primary suits are in Virginia and Florida. Mr. Cuccinelli urged the crowd Monday night to take advantage of the times to educate and inform their friends and family, particularly their children, on the first principles of our nation’s founding documents, such as the Declaration of Independence and the U.S. Constitution. Many people today do not know enough about our Founding or what those documents say to understand the implications of the federal government's take over of what has always been a private enterprise.

Few disagree that there is need for some type of health reform in our nation. At The Family Foundation we struggle each year to pay the ever-increasing cost of health care for our staff. But few outside the beltway, or among the academic left, believe that the federal government is capable of managing our nation’s health care system wisely.

Interview: Senator Jill Vogel, Part 1

Senator Jill Vogel (R-27, Winchester) is in her first term in the Virginia Senate. She is a rising star in the Republican Party of Virgina, let alone in the GOP caucus, and already has led on a number of issues, becoming an effective voice for conservatism in the very liberal Senate. She sits on the General Laws and Technology, Privileges and Elections, and Rehabilitation and Social Services Committees. This year, she was one of three patrons of Senate legislation that protects Virginians from the increasingly long arm and outright girth of the federal government over states and individuals in the area of health care. Her bill, SB 417, with the others, shocked liberals across the state by passing the Democrat controlled Senate and now is on the way to Governor Bob McDonnell's desk for his signature, which will make Virginia the first state to protect itself from ObamaCare. We originally scheduled this interview for one part, but Senator Vogel gave such informative replies, we decided to break it up. So, here, in part one, we ask her about her Health Care Freedom legislation. In part two, we'll cover the state budget and spending, the economic benefit of eliminating corporate taxes, and de-funding Planned Parenthood.

FamilyFoundationBlog: Senator Vogel, thank you very much for spending time with us and answering these questions. They cover a broad range of topics of interest to our readers. As we have just passed "Crossover," we very much look forward to your answers and insights as to what is happening in the General Assembly. Are you ready for some questions?

Senator Jill Vogel: I am ready and I am happy to have an opportunity to be with you. Also, before we begin I should tell you how grateful I am for all that The Family Foundation does to provide support and encouragement on the bills that I have carried. It is a huge help.

With crossover behind us, this is a perfect opportunity to take stock of where we are and for me to answer some questions about progress in the Senate this year. It has been an intense session, but with the help of the newly elected Governor we have made some significant headway on issues affecting jobs and the economy as well as a long list of other issues that are priorities for us.

FamilyFoundationBlog: Thank you for those kind words. That's very high praise. Now, question one: You are one of the leaders in Health Care Freedom legislation to protect Virginians from the federal government's reach into our personal health care decisions. Why did you take on this issue?

Senator Vogel: I took this on because it is time that our state legislature acted on this subject — both to protect our citizens and to reinforce that what the federal government is currently attempting to do with health care is not only bad public policy, but it is unconstitutional.

My bill is simple. It makes it illegal to impose insurance mandates on the citizens of the Commonwealth and forecloses the kinds of mandates that government run health care would dictate. Frankly, never in the history of this country has the federal government attempted such a power grab and I have an obligation to the citizens that I represent to prevent Congress from usurping the authority for decisions that are clearly left to individuals and the states under the 10th Amendment to the U.S. Constitution.

Such a scheme by the federal government will never survive a Constitutional challenge and Virginia’s legislation sets us up for that challenge. The United States Supreme Court has never expanded the 10th Amendment or the Commerce Clause or any other category to reach the regulation of the purchase of a private product. We can incentivize certain behavior, we can tie certain requirements to certain funding or other contingencies, but a flat out mandate of this nature is a clear violation of the Constitution.

Other state legislatures around the nation have taken up the charge as well and, at this count, I think more than 38 states are considering similar measures. The point is that states are the breeding ground of innovation and competition for new ideas and solutions about health care should be left to the states. I am proud to say that yesterday marked the passage of the legislation in both the House and Senate of Virginia, bringing us national attention as the first state legislature to fully pass the measure.

FamilyFoundationBlog: Were you prepared for the heated barrage of questions and, quite frankly, the rude treatment from one of your liberal colleagues in the Senate Commerce and Labor Committee? Also, tell us about the close vote in the committee — did it surprise you that it even got reported? How much work went in to convincing Senators Colgan and Puckett to crossover?

Senator Vogel: I knew that the issue would be controversial and politically charged and I think the slim margin of the vote made it that much more tense. I was surprised that the bill passed in a committee with such a large Democratic majority on the committee and that merely reinforces that this is not a partisan issue. Also, it was not a hard sell with Senators Colgan and Puckett, whose votes very much reflect the mood of their districts.

FamilyFoundationBlog: Were you surprised at the big margin the Health Care bills passed in the Senate given the liberal control of that chamber? Have you seen an issue like this before that has so galvanized such a large number of people from all across the political spectrum?

Senator Vogel: Once it passed committee, I was less surprised at the amount of bipartisan support in the full Senate. Again, those numbers just reinforce that these concerns about health care are compelling to people across the political spectrum. No matter what, Virginians don’t believe in a one size fits all health care solution that subjects them to the dictates of a federal bureaucracy that manages health care.