Obama DOJ Shifts ObamaCare Defense To “Necessary and Proper Clause”

Fortunately, Obama is using tons of taxpayer money to defend a law that most taxpayers hate

(The Hill) The Obama administration has shifted its legal arguments as it prepares to defend the president’s healthcare law before the Supreme Court.

Some legal experts say the shift could steer the case in a direction that would make Justice Antonin Scalia more likely to uphold the healthcare law’s mandate requiring individuals to purchase health insurance.

The shift moves the focus of Justice’s argument from the Commerce Clause of the Constitution to the Necessary and Proper Clause, which says Congress can make laws that are necessary for carrying out its other powers.

“The minimum coverage provision is … necessary to achieve Congress’s concededly valid objective of reforming the interstate market in health insurance,” the Justice Department said in its first Supreme Court brief on the merits of the mandate.

The brief argues requiring insurance companies to cover everyone and banning them from charging sick people higher prices are regulations that the Constitution clearly protects. The mandate, Justice argues, is a “necessary and proper” way to carry out those regulations without causing the cost of insurance to skyrocket.

So, they’re arguing that the mandate is necessary and proper to carry out the same law that created the mandate? It might a little bit of sense if the mandate was a follow up from a previous law. However, not the same law making the same law necessary and proper. But, there is a wee bit of a problem with this argument, which I’m sure Scalia will understand, since he surely has read the Constitution and the clause (Article I, Section 8)

The Congress shall have Power – To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Those powers were specifically laid out in the Constitution, especially in Article I, Section 8. The only possible way they could argue that the mandate is necessary and proper is in declaring it a tax, one that is laid upon the citizenry for simply being citizens, a tax for not purchasing a product. The clause doesn’t give Congress the power to simply invent Powers for itself, and certainly not to mandate that citizens be forced to purchase an item or be penalized. What’s to stop them from mandating that we all join a health club, or be fined/taxed? Or buy broccoli? A Chevy Fuego, er, Volt?

Oh, then there is this (Article I, Section 9)

No Tax or Duty shall be laid on Articles exported from any State.

If they are arguing that it is a tax based on regulating interstate commerce, and that it is necessary and proper, seems as if the Constitution itself, written over two hundred years ago, is calling bullsh*t on that line of reasoning.

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