Wednesday, December 15

John Batchelor on legal challenge to ObamaCare and Commerce Clause

The following are John's notes on his radio interviews last night on ObamaCare and how the debate on the health care bill folds in with the tricky issue of the Commerce Clause. See the 77WABC archive page to pick up the podcasts on the interviews. See the post at John's site for video and links to background articles on the legal challenge and its ramifications.

Debates about the Clause and its reach are at the heart of many Tea Party issues (states' rights v federal rights -- an old central argument in the USA that has gained steam again and is now boiling over with debates on ObamaCare). So even if you don't reside in the USA this issue might be of interest to you, if your nation is debating the reach of centralized government.

John's guests easily untangle the crux of the issue. I've taken the liberty of putting the points in bulleted format that John summarized:
Commerce Henry Hudson
By John Batchelor
December 15, 2010 12:17 AM

Spoke Larry Kudlow, 77WABC radio and CNBC; Joseph Rago, Wall Street Journal; and Richard Epstein, Hoover Institute, about the Judge Henry Hudson Federal court 42-page ruling that the mandate requirement in the Obamacare law from last March is unconstitutional.

Learned that:

> The Democrats wrote the 2700 pages deliberately to derive the power for the mandate from the Commerce Clause rulings since the Great Depression.

> POTUS Obama and others rejected the notion that the law derives its power to mandate participation and to enforce penalties for non-compliance on the basis of the tax power.

> The Commerce Clause is the predicate. Judge Hudson follows the arguments of jurists such as Randy Barnett that this is a perversion of the Commerce Clause.

> The state does not have the power to force a citizen to participate in interstate commerce when the citizen chooses not to.

This [issue] is fast track to the Supreme Court, where [Liberal] Justice Kennedy will render the fate of the mandate. Am told that if the mandate fails to pass, then the Obamacare package is shreds.

Richard Epstein remarks that in the 15-round prizefight, the opposition force is winning on rounds as the [battle] heads to the Supreme Court.

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