Of Slippery Slopes And Con Law 101

Last week, Federal District Judge Henry Hudson affirmed what those of us who took Constitutional Law 101 (first semester) and 102 (second semester) have known since the 1972-73 school year.

That being the Interstate Commerce Clause in the Constitution does not imbue the Congress with the unlimited power to make citizens do whatever they want us to do.

When dolts like Nancy Pelosi and Harry Reid first came up with the concept that health insurance was like car insurance and that the government could require us to buy it, those of us who actually have an education in the law as it relates to the Constitution looked at each other and said, “they can’t do that!”

And people carrying Pelosi and Reid’s water (there’s a visual for you) earnestly looked at us and said of course we can.  We make you buy car insurance.

Of course, it is not the Federal Government which does that.  It is a bad policy decision on the part of the states and it is, of course, predicated on your use of the state’s highways.  If you choose not to own a car or own one but drive it only on your private property, you cannot be forced to buy car insurance.  As bad a policy decision as it may be, you only need to follow it if you a) own a car and b) drive it on the state’s roads.

So, they argue that everybody uses the health care system.

Well, that’s true, but that’s as a matter of policy, not a matter of right.

The problem here is one of limits.

If you could force somebody to buy health insurance because your potential use of the health care system costs us money, what’s to stop the Federal Government, which bailed out General Motors and owns the bulk of the company now from forcing us to buy a Chevy Cruze at one income level and a Chevy Volt at a higher one.  Or maybe a Caddy at the highest income level.

You know, because you use the money that the Fed prints and there is a compelling public interest in making sure GM doesn’t go broke. Again.

Ludicrous, you say?

Answer this:  If someone had told you 20 years ago that General Motors was not only going to be bankrupt but would be owned by the United States of America, would you have called that notion ludicrous?

It’s a matter of slippery slopes.

First, the Federal Government bailed out Chrysler with a loan guarantee. Way back in 1979.

It worked, bad policy and all.

So when both GM and Chrysler got bailed out 29 years after the first Chrysler bail out, it wasn’t unprecedented.  Just entirely wrong and stupid.

Call it the slippery slope effect.

If the Government is allowed to force you to buy something just because you live here, what’s next?

It might not happen next year.  But, as the 2009 auto company bail out, the bank bail out and the AIG Insurance bail out suggest, sooner or later it will happen.

That’s why it is so important to nip this kind of thing in the bud.

Those of us, Judge Hudson, who sweated ConLaw 102 and 102 in the 1972-73 school year and paid attention salute you.

You made our study of that incredibly long book by Kamisar and Choper (I now have it in electronic form) worthwhile because you validated what our instructor taught us.

I fully expect our sitting Supreme Court to uphold you. Because I cannot imagine Antonin Scalia, Clarence Thomas, John Roberts, Anthony Kennedy and Samuel Alito, sliding down the slippery slope some of their more activist colleagues have in the past.

But what I’m really hoping for is that a newly empowered GOP House of Representatives will discover what it means to defund an activity since another thing we learned back in that class in 1972 was that spending bills originate in the House.

FRED WEINBERG