Yes, Virginia, Obamacare is Still Unconstitutional

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Published on: March 27, 2015

Many conservatives and Republicans are expressing glee over the ruling by Federal Judge Henry Hudson that strikes a blow at Obamacare. Specifically, the provision that requires citizens to purchase private health insurance has been ruled unconstitutional in a case brought by former Virginia Attorney General, Ken Cuccinelli.

But I feel compelled to warn that this may not really be as good as it seems.

For one thing, the Judge’s ruling basically says that the “Commerce Clause” has never been stretched this far in the past. But isn’t this a lame argument in the face of a Federal Judiciary that has long ago accepted and promulgated the idea that law evolves?

If one already accepts the false notion that law is not a fixed thing – that it can change and morph over time, then a higher court can most easily declare that although the Judge Hudson is right -we’ve never gone this far before – we now decide that it’s time.

In a system that admits to no fixed standard, the idea that something is not lawful because it has never been lawful before, doesn’t hold any great cosmic weight, does it?

Secondly, the fact that the promoters of this “unlaw” rely on the “Commerce Clause” should be a clear admission of its unconstitutionality. Most Americans don’t realize it, but Article One, Section 8 is the place to look for the authority for Congress to make laws. And, no authority to meddle in health care is given to the government in this Section.

Whenever Congress and the courts want to avoid this clear provision of the Constitution, they try to use one of several weasel clauses such as the “General Welfare Clause”, the “Necessary and Proper Clause” or the “Commerce Clause.” They try to weasel it in the back door this way because they know that the front door – Article One, Section 8 –is locked.

But perhaps most dangerous is the fact that this action is being heard and decided in the Federal Court at all. The Governor of the Commonwealth of Virginia, backed up by a constitutionally literate body politic, doesn’t need a federal court to agree with his position. The Governor already has authority to declare that no citizen of Virginia will be required to comply with this federal “unlaw” and that any federal agent seeking to penalize a Virginia resident will be arrested and prosecuted by the Commonwealth.

A governor with this kind of knowledge, commitment, and vision – now that would be worth celebrating!

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