On October, 23, 2009, in the midst of Congress’s healthcare legislation efforts, Speaker Nancy Pelosi was irritated by a question posed by a reporter. “Madam Speaker, where specifically does the Constitution grant Congress the authority to enact an individual health insurance mandate?” Speaker Pelosi condescendingly responded, “Are you serious? Are you serious?” When the question remained unanswered and Speaker Pelosi continued to be pressed on the subject, Pelosi’s press spokesman stated to the reporter: “You can put this on the record. This is not a serious question. That is not a serious question.”
To U.S. District Court Judge Roger Vinson, this is not only a terribly serious question, it goes to the very heart of the question whether Congress had the constitutional authority to foist ObamaCare on the nation. Judge Vinson presides over the 20 states’ federal lawsuit challenging the constitutionality of the healthcare legislation. On October 14, 2010, Judge Vinson denied the federal government’s motion to dismiss entirely the states’ lawsuit. The federal government had argued to Judge Vinson that, among other reasons, the states have no legal basis to proceed with the lawsuit because Congress possessed the authority to enact the legislation under, inter alia, the Commerce Clause of the Constitution. Judge Vinson denied the government’s motion and decided that the states’ case shall proceed.
Addressing the federal government’s argument that the Commerce Clause provided Congress with the authority to enact ObamaCare, Judge Vinson stated that this argument was “not even a close call.” He reviewed the U.S. Supreme Court’s rulings involving Congress’s authority to enact legislation and regulation under the Commerce Clause. Judge Vinson observed, “Those cases . . . involved activities in which the plaintiffs had chosen to engage. All Congress was doing was saying that if you choose to engage in the activity [of a particular business], you are engaging in interstate commerce and subject to federal authority.” But Judge Vinson contrasted voluntary business activity with forcing U.S. citizens and residents to purchase health insurance under the healthcare legislation (the so-called “individual mandate”).
The individual mandate applies across the board. People have no choice and there is no way to avoid it. Those who fall under the individual mandate either comply with it, or they are penalized. It is not based on an activity that they make the choice to undertake. Rather, it is based solely on citizenship and on being alive. As the nonpartisan Congressional Budget Office (CBO) concluded sixteen years ago (when the individual mandate was considered, but not pursued during the 1994 national healthcare reform efforts): “A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States.”
Judge Vinson may have signaled his view of the government’s Commerce Clause argument when he noted that saying something is “novel” and “unprecedented” does not make the law “unconstitutional” or “improper.” Judge Vinson, however, then observed that since World War I, there had been at least six attempts to introduce national healthcare insurance in this country. “While the novel and unprecedented nature of the individual mandate does not automatically render it unconstitutional, there is perhaps a presumption that it is.”
Now the states and their citizens will have their day in court. Judge Vinson scheduled oral arguments for December 16 on both the states and federal governments’ positions on whether ObamaCare passes constitutional muster. It should be a very good day for the states and those who embrace the constitutional form of government established by our Founding Fathers. Significantly, Judge Vinson quoted the U.S. Supreme Court at the conclusion of his decision: “Some truths are so basic that, like the air around us, they are easily overlooked. Much of the Constitution is concerned with setting forth the form of our government, and the courts have traditionally invalidated measures deviating from that form.”