Attorney General Cortez-Masto’s decision to ignore the Governor’s request and to not join over one third of the Union in a Constitutional challenge against ObamaCare is a travesty. The threat to our country and to our state particularly is real and immediate, and our participation in the lawsuit is critical to the rule of law – not to mention saving Nevada taxpayers untold millions of dollars from federal mandates.
ObamaCare is Plainly Unconstitutional
On day one of my Constitutional Law class in law school, the first thing my professor said was, “The Federal government is one of limited, enumerated powers.” (It’s a shame that Ms. Cortez-Masto didn’t have Professor Allen as an instructor.)
Over our nation’s history, we’ve had great debates about where exactly the limits of federal power are and ought to be. But up until now, no one has argued that these limits didn’t exist at all.
The bottom line is this – if the federal government can force you to buy a product “for the greater good,” it can force you to do anything. Anything at all. This is especially true when it comes to “health.” There’s nothing you do that doesn’t impact your health in some way or another. Driving a car puts you at risk of getting in an accident and getting hurt. Everything you eat or drink impacts your health – even if scientists change their mind every other year on just what that impact is. How long you sleep, work, exercise, watch TV, read blogs, listen to music, interact with friends and family, etc. impacts your health. Everything you touch and everywhere you go carries some risk of you going to the doctor or picking up a bottle of something from the pharmacy.
It has long been recognized by the Supreme Court that federal involvement in areas not really allowed by the Constitution are allowed if there are some strings attached that could theoretically be voluntarily cut. Threats of cutting off highway funding is how the feds established a de facto national drinking age, and similar practices “justify” federal regulation into local education systems.
The rule is summed up that if you “take the King’s money, you follow the King’s rules.” But that carries with it the understanding that you can choose not to take the King’s money, either individually or as a state. Now that the federal government has thrown off the veneer of choice and has begun issuing direct, unconditional orders without Constitutionally granted authority, we’re in a whole new world where the law doesn’t matter. That’s not a world any of us want to live in, and that’s what the Attorney General ought to be fighting to protect us from.
The Strawmen Cometh
Liberals who have no interest in preserving a limited government have attacked the majority of Nevadans who want to be rid of ObamaCare. Here are some of their more common arguments, and why they’re wrong.
“The government forces people to buy car insurance, and that’s Constitutional.”
America has lit the torch of freedom for over two centuries because we have not one, but several governments. We ensure liberty by decentralizing government and “splitting the atom of sovereignty.” Talking about “the” government and what “it” can and can’t do is either ignorant or deliberately misleading.
Again, I hear the voice of Professor Allen – “The Federal government is one of limited, enumerated powers.” States have different limits, and can do things the feds can’t. In fact, the Constitution specifically says in the Tenth Amendment that if the federal government isn’t specifically authorized to do something, then it can’t do it at all – it must be left to the states or the people. One of those things is car insurance. Medical insurance is, too, which is why the individual mandate in Massachusetts, while I totally disagree with it, isn’t Unconstitutional – not under the federal Constitution, anyway.
The other problem with this argument is that even with car insurance, there’s still a way to opt out. You don’t have to have insurance, you only have to have it if you drive a car in that state. You can choose not to drive, and to live in a place where you don’t need to.
But with the individual mandate of ObamaCare, the only way you can choose not to participate is to opt out of existing. Somehow I don’t think that’s what Thomas Jefferson was talking about in the Declaration of Independence…
“The Constitution’s General Welfare Clause authorizes it.”
There is no such thing as the “General Welfare Clause” – at least not one that authorizes anyone to do anything. The peddlers of this nonsense point to the preamble, which is a statement of purpose, not a secret blank check.
Even if it was a substantive part of the Constitution, words matter in the law. The preamble says that the Constitution is ordained and established to “promote the general Welfare,” not to guarantee it. Contrast this with another preamble “clause” – “[to] provide for the common defence”. The military is expressly reserved as a federal power, while regulating how many Dr. Peppers you drink in a day is definitely not. And to read that phrase as the Anything Goes Clause flies in the face of the central premise of the Constitution – that a free people require a carefully limited government.
“Well, you buy insurance, so the Commerce Clause must authorize it.”
The Commerce Clause might be the most abused one in the entire Constitution. The people who wrote it – and more importantly, those who voted to ratify it – would be horrified at the way it’s been stretched and pulled to cover every federal initiative. But even in its current mutated form, the Commerce Clause doesn’t authorize state or individual mandates. Regulating commerce isn’t the same thing as requiring commerce. No honest reading of the Constitution – or any of its precedent setting interpretations – can justify any other outcome.
“The government forces you to pay taxes – this is just the same!”
Again, the power to tax is specifically granted to the federal government, and that power is limited by the fact that there are only certain things the federal government is supposed to tax you for.
If the power to force you to file taxes means the feds can – by “logical” extension – force you to do anything, then the government isn’t limited any more. There is nothing American about this type of justification of infinite power in the hands of distant bureaucrats.
Why It’s Important for Nevada to Join the Fight
The Attorney General’s excuse is that other states are already doing it, and we’ll get the benefit of their efforts if they win, without spending any of our own time or expense. This is a shameful argument, really. When liberty is threatened, all of us should answer the call. No Nevadan – and certainly not our AG – ought to proudly advocate being a freeloader. The Battle Born state ought to have more pride and honor than that.
Numbers matter in this type of lawsuit, too. An overwhelming opposition by many states adds credibility to the argument, and makes it harder for opponents to falsely smear the movement as a fringe one. And perspective from top attorneys from various states adds to the strength of the work – a team brings in more good ideas and is able to see weaknesses in others.
More practically, Nevada can’t afford to just go along with this. Nevadans alone will be on the hook for a federally mandated $613 million in the first 5 years of the program. And that’s assuming current self-serving government estimates will be even close to accurate – a feat that has yet to be accomplished. The mandates on businesses will make it harder to put Nevadans back to work and prolong our dire economic circumstances. In short, we simply cannot afford all of this federal generosity.
You Can Help
Your voice is heard most powerfully in the ballot box. Vote for people up and down the ballot who understand the Constitution, and understand that ObamaCare doesn’t fit into our founding documents or principles. Donate to or volunteer with your favorite candidate.
As your Assemblyman, I’ll do everything in my power to make sure Nevada joins this important fight.
