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Obamacare: Worst of intentions

By Jason Sagall
web posted January 24, 2011

Democrats in the Senate warned in a recent letter to Speaker John Boehner that a repeal of Obamacare would have "unintended consequences."

Incomparably worse than unintended consequences of repealing the 2,600-page health care scheme will be the law's intended consequences, if it is allowed to stand.

In fact, this is a case in which the hyperbole about the road to hell being paved with good intentions leaves one wanting: it precludes a destination for those with bad intentions and the power to act on them, as the Obama regime did when they began paving a road with the provisions of the health care law.

In Congress, two Christmas Eves ago, the intention was to damn bipartisanship to hell, steamroll the health care bill through and worry about constitutional objections later. The U.S. Constitution took less than a back seat -- it was left on the side of the road.

In the media, the political and intellectual defenders of ObamaCare (and before that, Hillarycare) matter-of-factly refer to health care as a right. This is an attempt to sidestep the whole question of constitutionality by invoking a word that presumes it. The intention is to redefine rights as open- ended entitlements, with implications beyond health care.

In the courts, the Justice Department does not take so straight a path as to defend the law on the basis of rights. In the recent case in which Virginia challenged the mandate that all Americans buy health insurance -- the financial linchpin that will keep the trillion-dollar act rolling -- lawyers for Health and Human Services hedged their bets by arguing on both the grounds of the Constitution's commerce clause (claiming "the mandate is a penalty") and the general welfare clause (claiming "the mandate is a tax"). The judge rejected both arguments. In two previous cases, the courts sided with the administration on the former but not the latter.

Leaving aside the general welfare clause (the mandate imposes a penalty, not a tax, according to the law's own language), the intention of Obamacare's legal defenders is to rewrite the commerce clause, which grants Congress the power "to regulate commerce with foreign nations, and among the several states." This overseeing authority is the negative power to disallow one state from penalizing another with duties, tolls, or, in James Madison's words from The Federalist No. 42, "improper contributions levied on them" in the course of trade, or the lack thereof, between makers and consumers. Moreover, Madison wrote, "the desire of the commercial States to collect, in any form, an indirect revenue from their uncommercial neighbors, must appear not less impolitic than it is unfair."

To be clear, the federal government presents a make-believe legal defense citing the commerce clause as justification for the compulsory purchase of health insurance or penalties for not doing so -- while it permits state laws prohibiting the sale of insurance across state lines.

Obamacare advocates often moralize that to be concerned primarily with one's own freedoms is selfish and irresponsible. This is when the pejorative meaning of "selfish" leaves one wanting: it precludes the possibility that acting in one's own best interest by one's own judgment does not constitute harm to others.

The fundamental purpose of government is to protect its people from the initiation of force. As physicians respect the credo "first, do no harm," so too should government be bound, in its role as defender of constitutional rights, and not give way to special interests and judicial activism.

Alarmingly, this government has intentionally become the violator of rights, and it is on the road to becoming its people's worst enemy. ESR

Jason Sagall is an analyst with Americans for Free Choice in Medicine, Newport Beach, California. Copyright © 2011 Americans for Free Choice in Medicine. All rights reserved.


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