Nullify ObamaCare

by Jack Hunter

My Charleston City Paper column from March 31, 2010:

With its recent passage, Obamacare has quickly become to the Right what the Iraq war was to the Left — a disastrous and costly mistake heralding unprecedented government action, expansion, and intrusion into the lives of American citizens. Conservatives consider forcing Americans to purchase health insurance every bit as unconstitutional as liberals once considered the Patriot Act.

Needless to say, any time massive, sweeping government action occurs, those who protest the loudest are usually those who Washington leaders ignore the most. But a number of states are refusing to be ignored.

As of this writing, 14 states have filed lawsuits against the federal government, declaring Obamacare to be in violation of the 10th amendment. Said S.C. Attorney General Henry McMaster, “A legal challenge by the states appears to be the only hope of protecting the American people from this unprecedented attack on our system of government.”

But what is “our system of government?” Today, strict constitutionalists who still adhere to the explicit letter of the law of our nation’s founding document are few. Those who still agree with James Madison, who wrote that the “powers delegated” to the federal government are “few and defined,” while those of the states are “numerous and indefinite,” have been outnumbered and out-lawyered by generations of politicians and judges who have magically discovered new and virtually limitless federal powers, rendering the rights of the states less numerous and more finite than ever.


Judicial Legislation or Activism at Its Worst

With respect to the Supreme Court’s ruling on National Health Care, Justice Anthony M. Kennedy said that the court majority “regards its statutory interpretation as modest. It is not.” Then, noticeably disturbed by the ruling, added. “It amounts to a vast judicial overreaching. It creates a debilitated, inoperable version of health care regulation that Congress did not enact and the public does not expect.” He called it “judicial legislation” and accused Chief Justice John Roberts of trying to “force on the nation a new act.”

Judicial activism is when a law of Congress is interpreted by the Supreme Court in such a way as to give it new meaning. George Washington warned us in his Farewell Address of the inclination of government to do so. “Let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed.” Usurpation, in his day meant twisting things around to extract meaning that was initially not there.

So, what did Justice Roberts twist or legislate that changed the National Affordable Healthcare Act (Obamacare) as passed by Congress? At the top of the list, his rewrite called it a tax when Congress never passed it as a tax, and the political party passing it, along with their President, Barack Obama, emphatically resisted any description of it as such. Rich Lowry, a political commentator, said it best. “Obamacare as passed by Congress had a mandate to buy health insurance and a penalty for failing to comply.