Rational politicians don’t pass legislation that the public hates. They know even if they do pass it, everyone will just spend the rest of eternity attacking it, and it won’t get anywhere.
Yet Lord Obama insists on the passage of this bill. And the attacks are already beginning:
Two attorney generals have announced they will sue to block implementation of the law:
Virginia’s attorney general, Ken Cuccinelli II, has said he will file a legal challenge to the bill, arguing in a column this month that reform legislation “violate[s] the plain text of both the Ninth and Tenth Amendments.” On Friday, South Carolina Attorney General Henry McMaster and Florida Attorney General Bill McCollum announced that they will file a federal lawsuit if health-care reform legislation passes.
In addition, this bill will give enormous impetous to the nullification movement. Long considered a fringe movement, these people claim that states have the right to refuse to enforce a federal law a state believes is not constitutional. And they claim that the state itself gets to decide whether something is constitutional or not. Although much of this sounds shocking to the modern ear, they actually have a point. Thomas Jefferson was a backer of nullification, and in the Virginia resolution of 1798 he explicitly backed such a move. And Madison, in the Kentucky Resolution, said much the same thing. When you have Jefferson and Madison in your corner, you definitely have a powerful argument.
And since Madison is considered the Father of the Constitution, his arguments have much weight.
And then there are the law school professors lining up to attack its various provsions on any number of bases.
The individual mandate may run afoul of the Commerce Clause. Most people don’t realize the Constitution only gives the federal government certain powers. All other powers are reserved to the states, and the people. If the Constitution does not give a power to the federal government, it may not legislate in that area. Lots of legislation is based on the Commerce clause, which allows the federal government to “regulate commerce among the states”. And the Supreme Court has construed this to mean that virtually any economic activity may be regulated.
But the individual mandate extends the commerce clause’s power beyond economic activity, to economic inactivity. That is unprecedented. While Congress has used its taxing power to fund Social Security and Medicare, never before has it used its commerce power to mandate that an individual person engage in an economic transaction with a private company. Regulating the auto industry or paying “cash for clunkers” is one thing; making everyone buy a Chevy is quite another. Even during World War II, the federal government did not mandate that individual citizens purchase war bonds.
If you choose to drive a car, then maybe you can be made to buy insurance against the possibility of inflicting harm on others. But making you buy insurance merely because you are alive is a claim of power from which many Americans instinctively shrink. Senate Republicans made this objection, and it was defeated on a party-line vote, but it will return.