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The Patient Protection and Affordable Care Act on Trial
Is there Any Escape from Federal Regulations?
By Scott Rohter, May 2012

“The most arrogant administration in U.S. history argues its case for individual mandates before the Supreme Court and the entire nation.”  - Scott Rohter

“I know that Congress can regulate commerce,” Justice Kennedy said, “but does Congress have the authority to create commerce?” The question was directed at Donald Verrilli, the Solicitor General who was defending the Obama Administration’s Patient Protection and Affordable Care Act. Verrilli was arguing the case in front of the United States Supreme Court. If Congress can actually create commerce where none existed before, and if it can force Americans to engage in a regulated commercial activity even when they do not want to, then Congress has the power to force Americans to be regulated against their own will. Is that your understanding of the Commerce Clause? Is that your understanding of our Constitution and the 9th and 10th Amendments as well? Is there any escape from Federal regulations? Can the government order you to buy a cell phone for instance? Cheif Justice Roberts asked.

“If the government can order you to purchase health insurance, then what’s to stop them from ordering you to buy a GM Volt?... Paul Clement, Attorney for the plaintiffs argued,... or for that matter broccoli?” Justice Scalia asked.

“Mr. Verrilli, do you actually expect me or my clerks to read this 2,700 page Bill?” Justice Scalia inquired again.

Shouldn’t there be an escape from the law? If you don’t earn any income, then you don’t have to pay income tax. If you don’t engage in interstate commerce, then you can escape being regulated by Congress under the Interstate Commerce Clause. If you don’t engage in a regulated activity, then you can escape the specific regulations of participating in that particular activity, and thus the law. But up until now, the United States government has never been able to force Americans to participate in a government regulated activity against their will.

“When you are fundamentally changing the relationship between the individual and the government… don’t you have a heavy burden of justification to prove that it is authorized by the Constitution?” Justice Kennedy asked.

Then…responding to the Obama Administration’s premise that all people will eventually get sick and require health care Justice Alito asked, “Should all people be forced to buy burial insurance because they will all surely die?” These are all very powerful arguments that call for exercising restraint.

There are people who don’t consume health care for personal and or religious reasons, and who will not willingly purchase health insurance, for instance the members of the Church of Scientology. There are members of other religious denominations who do not pay any money into the Social Security System because they do not believe it is right to receive death benefits. These groups include the Amish, the Mennonite and the Hutterite. When you reach a point when it is no longer possible for people to opt out of a government regulated program, then you have created a government administered tyranny!

Paul Clement who is the lead attorney for the twenty-six States that are suing the Federal government over its Obama Care legislation noted that Congress has the power to regulate commerce under the Interstate Commerce Clause, but it does not have the authority to compel people to engage in any commercial activity. If that time ever comes God forbid, we will be living under a tyranny!

For most of my adult life I have sat silently by and watched helplessly in virtual irrelevance as my individual liberties were disappearing. Frequently I have been discouraged by a growing tendency in American politics to ignore the Constitution. But I was generally pleased to hear the Supreme Court arguments over the threat that The Patient Protection and Affordable Care Act fundamentally poses to individual liberty, and over the illegality of the individual mandate that orders all Americans to buy health insurance.

I am therefore cautiously optimistic after listening to the tone of the oral arguments, and after hearing the caliber of the questions that were being directed at the Obama Administration by members of the Supreme Court that in the end they will get this supremely important decision correct.


"The truth, the political truth, and nothing but the political truth.
A journalist has no better friend than the truth."
- Scott Rohter

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