Last year, 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.
Last month, the Supreme Court gave just a small hint of what might come when the appeal of Hudson’s ruling gets in front of them. They ruled that Arizona was right when the state passed a law in 2007 which forced employers to use the e-Verify system of risk losing their right to do business in the state if they are found to knowingly hire illegal immigrants.
In the first case, Hudson ruled that 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.
In the second case, the Supremes ruled that the states were well within their rights to add to Federal laws as long as they do not contradict them. In short, that there are limits to the power of the Federal Government. This, extrapolated, is why a state like Massachusetts could require you to have health insurance but the Federal Government cannot. The states are supposed to be laboratories of democracy where decisions can be made at the local level.
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 may be 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 public 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.
Perhaps their argument would be that because you use the money that the Fed prints, 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 out ConLaw 102 and 102 in the 1972-73 school year and paid attention salute you. And the same for the five votes on the Supreme Court in the Arizona case.
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.
Given their latest clue, 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 the 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.