When the Founding Fathers established this great nation, they did so in the name of one principal concept: individual liberty guaranteed by a divine creator. Our Constitution, the “Supreme Law” of our land, guarantees the things that make this country truly exceptional in nature — such as freedom of speech, religion and enterprise — and is based on the notion that the government’s job is to maximize your individual freedom by only doing the things for you which you would otherwise not be able to do through private means and the free market.

Sadly, as our federal government has grown in size and power, many of our freedoms have quietly disappeared. The president’s signature health care law, now called Obamacare even by its supporters, is yet another attempt at destroying more of your God-given liberty. Thankfully, it appears that the Supreme Court — the final arbiter of the constitutionality of laws since Marbury v. Madison (1803) — is poised to strike down this destructive and unconstitutional law.

The constitutional argument against Obamacare is simple: it is not an enumerated power of the federal government to force you to buy health insurance. Contrary to what proponents of Obamacare would say, the Commerce Clause — which has been used to justify nearly every single major intrusion of the federal government into the economy — was not originally meant to be a blunt instrument demanding that every aspect of the economy be regulated. Instead, it originally meant (and to anyone who actually respects the Constitution, still means) that the government must take measures to make commerce regular, i.e. it has the power to facilitate commerce between individual states and ensure that commerce may flow freely.

Notice how I didn’t say it has the power to make you buy something or make you face financial penalty. Yet that is precisely what our utterly inept Solicitor General Donald Verrilli argued on behalf of the administration. Following the arguments made by the president and Democrats during the health care debate, Verrilli argued that since not buying health insurance causes a distortion in the health care market, the Commerce Clause allows the government to make you buy it.

Dear reader, I do not mean to bore you with material from Econ 1, but literally anyone who knows anything about economics knows that someone not buying X product is theoretically (and this is a stretch) affecting the price. By the administration’s criteria, the government could command you to buy anything — from bread to airplanes — under the reasoning that you not buying it is distorting the price of the product. In response to this zombielike repetition of the Democratic Party platform, Justice Antonin Scalia — one of the greatest jurists of our age — posed a rather appropriate question to the Solicitor General: “When is the government going to start forcing me to buy broccoli?”

Thankfully, in spite of the president’s attempts to use the bully pulpit to improperly interfere in the affairs of the Supreme Court — again — the typical “swing vote” on the Court, Anthony Kennedy, appears poised to join the four conservatives in striking down the individual mandate and therefore the entire law. This conservative columnist, at the least, remains cautiously optimistic that the SCOTUS will do its job and protect our liberty.

—Daily Nexus conservative columnist Jeffrey Robin


In Response, Left Said:


It’s true: the Commerce Clause did not stipulate that every nook and cranny of the U.S. economy be regulated. No one is calling for us to live under a command economy. What it did stipulate was that Congress had the power to regulate commerce. Article I, Section 8 reads: “The Congress shall have the power to lay and collect taxes, duties, imposts and excises … to regulate commerce with foreign nations, and among the several states, and with the Indian Tribes.” Anyone who doesn’t think that Congress has this very basic power does not understand American government and would be uncomfortable living under practically any administration the U.S. has ever had (even Reagan and Bush).

The “broccoli argument” was not a stunning, intuitive burst of insight that Scalia had while hearing arguments. It is a worn-out conservative talking point that everyone expected to hear during the trial. What it fails to understand is that by the very nature of their own mortality, human beings will without a shadow of a doubt use the health care industry at some point during their lives. (If you manage to get through life without becoming ill, injured or deceased, please share your secrets with the rest of us.)

Since so many will inevitably bill it to the rest of us, Congress is attempting to eliminate the free riders. That would be a fairly conservative idea if it didn’t have “Obama” in its nickname.