The Congressional Research Service Doesn't Know If ObamaCare Is Constitutional


Just remember: Unclear. It is *unclear.*

Is the new federal health care law constitutional? The Congressional Research Service took an initial look and decided that, so far, it's not entirely clear.

Here's the problem: The law imposes fines on employers whose employees take advantage of the bill's available subsidies. In theory, that could include some state governments. The question the report attempts to answer is: If those fines do indeed apply to state governments, would the imposition of those fines "run afoul of the Tenth Amendment?"

From the Daily Caller's summary:

On one potential challenge, CRS says the argument is "unlikely" to be successful in court. On another, CRS says recent rulings "might suggest" the Supreme Court would look harshly at the relevant provision in the law.

Overall, writes CRS, "any conclusions as to the unconstitutionality of the employer mandate…would be premature." Regardless of how this eventually plays out, it's important to note that what Congress did was pass a law that overhauls much of the health care system without certainty that it was constitutional. But I suppose when you have pro-ObamaCare legislators like Rep. Phil Hare telling reporters things like, "I don't worry about the Constitution on this, to be honest," that's hardly a surprise.

I looked at ObamaCare's chances under constitutional challenge here. Jacob Sullum wrote about the crazy constitutional logic of the individual mandate here. Damon Root looked at how the mandate has revived debates about the Commerce Clause here.

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  1. Bottom line is, nothing has changed, health care is still a run away train and the sheeple are suffering.


    1. Anonymity Bot vs. Random Metaphor Generator.

      It shouldn't be long before it's posting "it was the best of times, it was the blurst of times"

  2. Are you serious?

  3. Are you serious? Are you serious?

  4. Overall, writes CRS, "any conclusions as to the unconstitutionality of the employer mandate...would be premature."

    That's some top-shelf bureaucrating there.

    I vaguely recall that one of the early Courts, I believe it was Marshall, struck down some tax or other with the statement that "the power to tax is the power to destroy." I wonder whatever happened to that line of precedent? Since our Court is so deferential to precedent and all.

    1. Dicta, no doubt.

    2. That is just CRS. They are great reports. They are always thorough and well written. But they never take a final position on anything, no matter how obvious their research makes the conclusion appear.

  5. "I don't worry about the Constitution on this, to be honest,"

    Remember, boys and girls: the Constitution is not a suicide pact.

    1. Someone should have the good sense to punch him square in the balls.

      "I don't worry about assault and battery on this, to be honest."

  6. No, no, no, you all have it wrong. When the Founders were talking about a "constitution" they were referring to the health of the nation*, not some mythical written document.

    * Con?sti?tu?tion [kon-sti-too-shuhn]


    The physical character of the body as to strength, health, etc.

  7. Caption:

    "I didn't run for President so I could take over the oil companies, but hey- there's just no other realistic alternative."

    1. "I don't know what you're smoking, but this shit is great."

  8. Almost no law that the Federal government has passed in the past 80 years has been constitutional. That hasn't stopped anyone.

  9. The law imposes fines on employers whose employees take advantage of the bill's available subsidies. In theory, that could include some state governments

    AFAIK, State and local government employees (and their employers) have had to pay into the social security and medicare systems since the 80's, which imo would be the same sort of legal mandate.

    1. Depends. Texas teachers statewide and employees of Galveston Co. have their own retirement system and don't contribute to SS.

    2. Except that FICA taxes are based on income, regardless of whehter employer or employee is "paying" it, whereas these "penalties" are not based on income, are not apportioned based on the census and are not related to the actual work conditions but the private choice of an employee to accept subsidized insurance. At best, it is regulation of commerce and there MUST be a line where commerce stops and state government begins, like maybe at the state capitol door, else the commerce clause obliterates any federalism and Congress can directly operate state and local governments.

  10. All you punks are hereby guilty of sedition.

  11. freedoms just another word for ... doing what you want, and since most of you are fat, ugly, and stupid, we the smart and beautiful have to tell you what and when to buy something, lest you f*ck up the earth or yourselves. Why do we even care, and not just let you screw your ignorant selves??? Because your like pets to us, and we know what is best for you. Now, time for your semi-annual flea dip.

  12. I don't worry about the Constitution on this, to be honest

    And what about that oath you took?

    1. Oath?

      That's just like another campaign promise, innit?

  13. There was an interesting take in a column last week in the WSJ. It seems that individual mandate supporters have abandoned the commerce clause rational and changed their talking points to the idea that is just a tax. The writer claims the tax angle will be hard to argue in court because it isn't called a tax in the bill.

    1. Now, do you see why we had to pass it?


  14. Apparently the Congressional Research Service is incapable of grasping the meaning of "enumerated powers".

  15. Whatever it's reach, as outlined by cases beginning with Wickard v. Filburn, the commerce power, like the taxing power, is inherently limited so that it cannot be used to destroy the sovereignty of the states and turn them into mere administrative units of the federal government. This constitutional principle is at the core of a law review article I wrote forty-two years ago on a case (Maryland v. Wirtz) involving Congress' use of the Commerce Clause to regulate state activities. The article may be found at 66 U. Mich. Law Rev. 750 (1968).

    Quite simply, the Commerce Clause cannot be used to override the Constitution's balance of power between the federal government and the states. Thus, the article proposes a precedent-based balancing test for maintaining the structure of federalism rather than a wooden application of cases dealing with the reach of the commerce power.

    If there ever was a case that demonstrates the necessity of such an approach, this is it. This legislation is so far over the line, it simply cannot withstand dispassionate constitutional scrutiny even under the cases adopting the broadest interpretation of the Commerce Clause.

  16. The administration will perform whatever legal/verbal contortions necessary to get this bastard done.

    It's my firm belief that the majority of Congressional members do not even consider whether proposed legislation is constitutional or not.

    WWTCD - What Would The Constitution Do?

  17. when the hell did people think it was a good idea to vote in a president that has every freaking idea he comes up with that gets passed named after him? how modest..

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