The Constitutionality of Obamacare

The MaryHunter at Moonbattery revisits the question of whether Obamacare is constitutional or not.

[I]f some states pass laws or state constitutional amendments to try an end-around of ObamaCare, will these efforts stand up to the power of the federal government?

One debated issue is at the nexus of two Constitutional points: the “federal supremacy” clause in the Constitution, which could be interpreted as making ObamaCare trump all “opt-out” state laws, vs. the clear constitutional prohibition of “capitation” taxes. There’s a compelling argument that an individual health care insurance mandate, the core of the bill, is unconstitutional because penalty taxes are imposed on those who refuse government-approved health insurance.

Michelle Malkin also presents several arguments against the constitutionality of Obamacare. But while many arguments against Obamacare have centered on the individual mandate and similar issues, MaryHunter and Malkin also address the fact that the health care bill may be passed through unconstitutional means. The constitution is very specific on how a bill must be passed, but Democrats seem to think that if they pass a resolution that says they passed the bill, that’s just as good as following the constitutionally mandated procedure.

Jonathan Adler at the Volokh Conspiracy and Clarince Feldman at the American Thinker both reference former federal judge Michael McConnell, who states quite clearly that the so-called Slaughter Solution is unconstitutional:

The Slaughter solution attempts to allow the House to pass the Senate bill, plus a bill amending it, with a single vote. The senators would then vote only on the amendatory bill. But this means that no single bill will have passed both houses in the same form. As the Supreme Court wrote in Clinton v. City of New York (1998), a bill containing the “exact text” must be approved by one house; the other house must approve “precisely the same text.”

These constitutional rules set forth in Article I are not mere exercises in formalism. They ensure the democratic accountability of our representatives. Under Section 7, no bill can become law unless it is put up for public vote by both houses of Congress, and under Section 5 “the Yeas and Nays of the Members of either House on any question . . . shall be entered on the Journal.” These requirements enable the people to evaluate whether their representatives are promoting their interests and the public good. Democratic leaders have not announced whether they will pursue the Slaughter solution. But the very purpose of it is to enable members of the House to vote for something without appearing to do so. The Constitution was drafted to prevent that.

The Democrats seem quite unapologetic in their blatant abuse of power and disregard for the constitution. It will cost them dearly in November.

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  1. #1 by Mike on Tue 16 Mar 2010 - 12:50

    I agree Democrats or Republicans for that matter who vote for this unconstitutional bill will lose their job in November.

    As to the States opting out, the 10th amendment is pretty clear and the argument about the “Commerce clause”, “general welfare clause” or the so called “supremacy clause” of the central government won’t hole water. The States only gave limited power to the central government and retained the rest for themselves. [url=]Federalist Paper #45[/url]…..“The powers delegated by the proposed Constitution to the federal government are [u]few and defined[/u]. Those which are to remain in the State governments are numerous and indefinite. ”

  1. The Slaughter Solution, Obamacare, and Constitutionality « The Republican Heretic

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