August 12, 2011

The White House reacts to the Eleventh Circuit's decision

By The White House reacts to the Eleventh Circuit's decision

Author: Timothy Sandefur

The White House issued a statement on its blog today in response to the Eleventh Circuit’s decision that illustrates well the Obama Administration’s cavalier attitude toward constitutional limits.

Rather than address any of the constitutional issues involved—any of the questions about federalism, individual rights, the limits of Congressional authority, the intention of the framers, and so forth—the Deputy Senior Advisor Stephanie Cutter simply says that

Those who claim this provision exceeds Congress’ power to regulate interstate commerce are incorrect. Individuals who choose to go without health insurance are making an economic decision that affects all of us – when people without insurance obtain health care they cannot pay for, those with insurance and taxpayers are often left to pick up the tab.

I don’t remember the Constitution saying that the federal government has power to ensure that people aren’t “left to pick up the tab,” let alone that Congress can control “economic decisions that affect us all.” Indeed, that is exactly the kind of generalized police power Congress does not have. The first principle of constitutionalism is not that the federal government can do whatever is convenient or helpful or good or warm and fuzzy; on the contrary, the federal government is one of limited, delegated, enumerated powers. As James Madison explained,

The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.

I would have thought that the President, having formerly taught Constitutional Law, or Ms. Cutter, who went to Georgetown Law School, would be familiar with the fact that something is not constitutional simply because it sounds like a good idea. But I guess that was before all the Hope & Change.

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