Tuesday, February 1, 2011

Health care ruling: Victory or Trojan horse?

Judge Vinson's opinion has been published, and is available here. While many hail it as a victory for conservatives and liberty loving people, it is too soon to call it a victory. The decision, as I noted yesterday, is virtually certain to be sent up to the U.S. Court of Appeals and to the U.S. Supreme Court.

However, the Tenth Amendment Center adds another cautionary note in a news release issued today, reposted below in full. (The release was e-mailed to The Ohio Republic, but you may view a similar blog post on the Tenth Amendment Center site). The Center believes the ruling, by accepting federal authority over health care in general, is not going far enough to protect us from government intrusion, and may actually be a "Trojan horse:"

While many conservatives laud yesterday's ruling by U.S. District Judge declaring the federal health care bill passed last year unconstitutional, analysts at the Tenth Amendment Center displayed significantly less enthusiasm, calling the ruling a Trojan Horse.

“According to Vinson – and just about everyone else in the federal judiciary – the federal government actually does have the authority to control, reform, and regulate the health care industry. They’re just going about it wrong,” TAC executive director Michael Boldin said. “This is seriously dangerous for those who believe that the founders’ Constitution needs to be followed: every issue, every time, no exceptions, no excuses.”

As James Madison explained, the commerce clause was intended to make trade “regular” between the states, primarily to prevent interstate tariff wars. Madison wrote:

“It is very certain that [the commerce clause] grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government.”

In other words, the framers never envisioned Congress regulating entire industries.

“The feds are authorized to make commerce in health care across state lines, 'regular' – that’s for sure. But this power is far less than anything that’s been proposed by either political party in….well, probably about forever,” Boldin said.  
The Center's director pointed out a "better option" for those yearning for just a little decentralized freedom.

“State nullification of the federal health care law – every single word of it, as it should be.”

In fact, 11 states have bills before their legislatures in an attempt to do just that.

As reported earlier, a bill has already been introduced requiring the Ohio General Assembly to approve any expenditures by a state agency in support of the Patient Protection and Affordable Care Act (HB 11); and the Ohio Project continues to gather signatures on its petition.

Perhaps a sounder and more efficient strategy would be for the Ohio General Assembly to pass an act similar to the one introduced in those 11 states.


Chris Taus said...

The fact that trial judges are political appointees gives the decision even less meaning, especially when the judge rules exactly how you would expect. Barring a death or retirement of one of the conservative justices on the Supreme Court, the healthcare mandate will come down to Anthony Kennedy, and its fate is no more decided today than it was yesterday.

Anonymous said...

"Perhaps a sounder and more efficient strategy would be for the Ohio General Assembly to pass an act similar to the one introduced in those 11 states."

In the works. Press conference was scheduled this morning in Columbus but wonder if weather might have postponed? Keep eye on 1851 Center website and/or Ohio Liberty Council.

Anonymous said...

Here ya go!


The Ohio Project also has statement posted on FB.

Barga said...

Here's the thing, I think that the court will find that this is an allowed action on Congress. If growing your own wheat for your own use is interstate commerce, then healthcare clearly is (right or wrong, this is how i see the court ruling)

Furthermore, I don't really see how nulification could work. While an argument over the right of it is interesting, the court has made it clear that the state's dont have the right to do that (see several cases prior to the 1860s, most after are clear cause of that war thingy)

Harold Thomas said...


You are looking at nullification from the perspective of the American legal system and normal legal procedure. From that perspective, you are correct; and there are many reasons why a court, especially a federal court, would not want to uphold the right of nullification.

Nullification respects the rule of law, but is an extraordinary legal procedure. The Constitutional Convention itself is an example of a situation which respected the rule of law, but which was outside the legal system as it was understood at the time. You will recall from history that the legal process in 1787 would only admit of amendments to the Articles of Confederation.

I suggest that there is a continuum: Normal legal process on one end, followed by nullification and secession, with the right of revolution on the other end. Nullification is a state's recourse when the court system has persistently failed to consider the state's Constitutional rights. If nullification persistently fails, then the state may proceed to declare its independence. And God help us all if we have to resort to the right of revolution (as witnessed by recent events in Tunisia and Egypt). Nullification and secession respect the rule of law, by following accepted legislative and electoral procedures. Revolution is completely outside the law, and should only be resorted to in the most desperate circumstances.

To completely reject nullification and secession as acceptable options is to say that the states, as states, have no rights not granted to them by the federal government. This is completely contrary to what the Founding Fathers intended.

I wish we could turn this thing around by electing a more libertarian Congress and President, who would appoint more libertarian judges. But the experience of the last 80 years has shown that our political system is so corrupted that we cannot depend on the normal legal process to make the necessary changes.

Nullification and secession are safety valves that in this country should ensure that revolution will not be necessary.