Is there no irony that Obama the “supposed” constitutional scholar doesn’t get that this legislation will be  tied up in the courts forever? As he has told us, if you can’t get your agenda passed using the congressional route use the courts.  This guy is acting like a kamikaze pilot to me.  I am forever hopeful that there will be one or two Democrats, even Senator Lieberman who will vote no on this governmental fraud.  There must be at least one Democrat with a conscious, that has seen what the people don’t want and will refuse to walk the plank with the radical fools and retire.  Random thoughts while observing the passing parade, J.C.
January 15, 2010

NRO (National Review Online)

The silver lining in the health-care-reform nightmare that is taking place in America might be the unconstitutionality of certain aspects of the bill. According to this morning’s Wall Street Journal, “constitutional-law scholars say that if the health-care overhaul becomes law, it could give courts an opportunity to test the limits of congressional authority in areas that haven’t been examined since the New Deal era.”

Preeminent legal scholars have written and made this point before. Here are some very useful links compiled by Manny Klausner.

Over at The Volokh Conspiracy, George Mason University’s Ilya Somin asks whether Congress has the authority to enact a health-insurance mandate using its power to tax. The answer is likely no.

Check out also, Georgetown University’s Randy Barnett’s post called “Why the Personal Mandate to Buy Health Insurance Is Unprecedented and Unconstitutional.”

Also, Richard Epstein recently published a detailed analysis of the Senate version of the bill, “Impermissible Ratemaking in Health-Insurance Reform: Why the Reid Bill is Unconstitutional.” Epstein concludes that there is “little doubt that its central arrangements are unconstitutional, and will face serious legal challenge for years to come.”

Epstein notes that “that the Fifth Amendment affords regulated health-insurance companies protection against the taking of property without compensation and without due process of law” — but “the Reid Bill emphatically fails this test by imposing sharp limitations on the ability of health-insurance companies to raise fees or exclude coverage.”

Epstein’s analysis also ran in the Wall Street Journal, “Harry Reid Turns Insurance Into a Public Utility — The health bill creates a massive cash crunch and then bankruptcies for many insurers.”

Overall, it seems obvious that there are serious constitutional problems with Reid’s bill. Yet, can we trust the courts that gave us rulings such as Kelo to deliver justice this time around?


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