If you watched with interest as North Carolina Republican legislators filed a brief supporting a lawsuit against ObamaCare — sidestepping Democratic Gov. Beverly Perdue and Attorney General Roy Cooper — you might be interested to read a recent issue of Hillsdale College’s Imprimis.
Virginia A.G. Ken Cuccinelli explains why his state’s legal challenge of the federal health care law represents an effort to restore the federalism that formed a key pillar of our original constitutional order.
Let me explain a bit about our lawsuit. Our first legal argument is that the government’s attempt to use the Commerce Clause of the Constitution to mandate the purchase of a private product—in this case, health insurance—goes beyond Congress’s power. The reason there has never been a mandate like this in all of American history is because, up until now, everyone knew Congress lacked the power to impose one.
I often give the example of the colonial period, when the colonists were boycotting British goods while demanding that King George III and Parliament repeal the Stamp Act and the Intolerable Acts. I am sure it was to the king’s dismay, but his own lawyer—the solicitor general—told Parliament that the boycott was legal under British law. In other words, the colonists could not be forced to buy British goods.
Yet in 2010, we had a president and a Congress who believed they could compel Americans to buy a private product even when the king of England, whom we rebelled against, knew he did not have that power. And back then, we were merely subjects!
The federal government has argued in court that not buying health insurance is as much of an economic activity as buying it, and therefore that it can regulate a citizen’s decision not to buy government-approved health insurance under the Commerce Clause. Nonactivity is the same as activity in the government’s argument. Clearly, someone in Washington needs a dictionary.
That same reasoning could be used to force us to buy cars, vegetables, or gym memberships. If Virginia loses this suit and the federal government is allowed to cross this line, Congress will be granted a virtually unlimited power to order us to buy or do anything. It would be the end of federalism—not to mention individual rights—as we have known it for more than 220 years.
Cuccinelli also discusses a separate lawsuit challenging regulatory overreach from the Environmental Protection Agency, a favorite topic of Daren Bakst’s.
