By Dick Morris on April 14, 2010

(This column is based on a chapter in our new book 2010: Take Back America — A Battle Plan. Go here to purchase a copy )

As Republicans contemplate their response to President Obama’s coming nomination to the Supreme Court, we should go beyond the traditional scrutiny over social issues and demand that any nominee elaborate his or her views about the constitutionality of the recent legislation passed by this Administration. The hearings on his nominee will be an ideal opportunity to convince the public of the unconstitutionality of his power grabs.

The Obamacare bill, for example, not only strips states of the right to determine who will get Medicaid coverage within their borders, but it forces the states to pick up part of the tab. This is a violation of the very concept of the Tenth Amendment which provides that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

The Medicaid mandate literally takes budgeting and taxing out of the hands of state governments and gives the power to the federal government. About one-third of the difference between the high tax levels in a state like New York (8.5% income tax) and Texas (no income tax) is the difference in their Medicaid eligibility standards. By forcing Texas to come up to New York’s standards — and to pay for part of it — the health care law socks the lawmakers in Austin with a $2.7 billion annual hole in their budget. Effectively, this unfunded mandate takes away from the states the right to determine their own level of taxation for state services.

Obama’s lawyers justify this outrageous usurpation by claiming that states do not have to participate in the Medicaid program and can opt out entirely. But, the courts have held that when such “voluntary” decisions are so draconian that they are really unrealistic, they amount to coercion. For example, states may not require drug tests for welfare recipients claiming that they do not have to apply for welfare. No state is going to throw all of their elderly nursing home patients out on the street by opting out of Medicaid.

Judge Andrew Napolitano, author of the excellent new book, Lies the Government Told You, warns of the unconstitutionality of the limitation on executive pay contained in the TARP program. He cites the doctrine “against unconstitutional conditions,” arguing that “The government may not condition the acceptance of a governmental benefit on the non-assertion of a constitutional liberty.” Because the freedom of contract is constitutionally protected, the government may not “condition corporate welfare on the prohibition of contracts with employees above an arbitrary salary amount.”

The very foundation of the health care bill — the individual mandate that people have to buy health insurance — is unconstitutional. Clearly, the government would have the authority to tax each person and use the money to provide insurance. But can it make everyone buy a privately provided product from a third party?

The Heritage Foundation thinks not, noting that “an individual mandate to enter into a contract with or buy a particular product from a private party, with tax penalties to enforce it, is unprecedented–not just in scope but in kind–and unconstitutional as a matter of first principles and under any reasonable reading of judicial precedents.”

The Foundation correctly points out that “nowhere in the Constitution is Congress given the power to mandate that an individual enter into a contract with a private party or purchase a good or service and… no decision or present doctrine of the Supreme Court justifies such a claim of power.”

The authors of the Obama Bill say that requiring people to buy health insurance is covered by the constitution’s interstate commerce clause, which allows Congress to regulate a “class of activity.”

But where is the interstate commerce? Congress has refused specifically and repeatedly to allow health insurance companies to compete across state lines. Republicans have been seeking this authority for years as a way to use private competition to hold down costs, but the Democrats have always refused.

And the Heritage Foundation asks a further question: What activity is being regulated? The activity of not buying health insurance? As the foundation notes, “proponents of the individual mandate are contending that, under its power to ‘regulate commerce’ . . . Congress may regulate the doing of nothing at all.” The absurdity of this is clear: “never in this nation’s history has the commerce power been used to require a person who does nothing to engage in economic activity. Therefore, no decision of the Supreme Court has ever upheld such a claim of power.”

Liberals who try to justify the individual mandate to buy health insurance often cite state government requirements that drivers must buy automobile insurance. But this comparison misses two key points: First, that requirement extends only to those who wish to drive, not to every citizen. And, second, states do indeed have broad police powers to act in the interest of the public’s health, safety, and welfare. But Washington doesn’t. Its powers are confined to those enumerated in the Constitution–and, try as they might, it’s hard to find any provision allowing the feds to impose such a requirement on all Americans.

The Republicans on the Senate Judiciary Committee need to ask Obama’s nominee to defend the constitutionality of his legislation and use the hearings as a forum to demonstrate how these bills violate not just the letter of the Constitution but the very spirit of federalism and individual freedom.

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