By Bob Unruh
May 10, 2011
The acting solicitor general for the United States today claimed in a federal appeals court hearing that Congress has the absolute power to order citizens to purchase consumer goods if lawmakers believe there is a national problem the purchases would address.
The comments from Neal Kumar Katyal validated the criticism of opponents who contend President Obama’s health care nationalization plan is unconstitutional.
The exchange came during arguments over Obama’s signature legislation, the Affordable Care Act, before a three-judge panel of the 4th U.S. Circuit Court of Appeals. The judges were appointed by Democrats, including two by President Obama.
Several federal judges have affirmed the law is constitutional while others have declared it unconstitutional. The appeals court panel today heard arguments in two cases, including one Liberty University, represented by Liberty Counsel, brought against the government. It challenges the constitutionality of the individual mandate “ the requirement that consumers buy insurance “ as well as the employer mandate, which subjects employers to additional penalties.
The second case was brought by the state of Virginia, which is challenging the individual mandate. Lawmakers there adopted a state law protecting their residents from such a requirement.
The audio of arguments in both cases was posted online by the court.
The court referenced a previous case over consumer purchases and asked, “You think if the court had required people to buy wheat, it would have turned out the same?’
When Katyal responded that the court didn’t need to addresss the question, he was told it would be addressed in another court at another time. The reference was to the fact the case is expected to be decided eventually by the U.S. Supreme Court.
“Could they possibly require the purchase of wheat?” he said. “The answer is yes.”
Mathew Staver of Liberty Counsel, who argued the Liberty Universitys case, told WND that the potential precedent of the government forcing consumers to buy a product is the significant issue.
He asked if Obamacare is affirmed as legal, “Where do you draw the limits? What can the government force you to buy?”
Staver explained, for example, that everyone eats, so the precedent could allow the government to require consumers to purchase certain foods or ban them from purchasing others. Or, it could make them pay whether they eat those products or not.
The court raised that issue, too, asking whether Congress would have the authority to require people to purchase broccoli or ban the purchase of transfats.
The admission by the solicitor general that Congress claims such power was called “stunning” by Staver.
“That’s exactly where we have always said this case would lead,” he told WND.
He said, however, this hearing is only “inning two of a three-inning game,” with the Supreme Court on the schedule next, regardless of how the 4th Circuit decides the case.
Katyal said that Congress isn’t regulating an “inactivity,” such as the plaintiffs argued exists when a person is penalized for not participating in interstate commerce.
“I would reject the characterization that what Congress is doing is regulating an inactivity. I know that my friend’s argument has some rhetorical force and maybe even some legal force.”
But he said Congress is just regulating the way to pay for a good “ health insurance “ that all people “otherwise buy.”
Katyal also rejected suggestions from the court that this was a case of “Big Brother” taking over peoples’ lives.
Staver explained that the case was very simple: It is the government trying to apply penalties to people who choose to sit in their own living rooms, not participating in interstate commerce.
But Katyal said “participation in health care is virtually a universal feature of human existence.”
The case brought by the state of Virginia was argued by Attorney General Ken Cuccinelli, who said that under the Constitution’s Commerce Clause, it is beyond the power of Congress to “force people to buy a product.”
“This is why I have said all along that this is about liberty, not health care,” he said in a statement. “The insurance mandate penalizes people for not engaging in commerce. In other words, you can get fined for doing nothing.
“Virginia has also argued that the penalty the government wants to charge if you do not buy health insurance is not a tax. The government cannot start calling the penalty a tax to try to make it legal under Congress’ taxing authority. Congress and the president passed it as a penalty, not a tax; it works as a penalty, not as a tax.”
Cuccinelli said the federal government argued it should have unlimited authority “in your lives, including the authority to regulate “ i.e., dictate “ your decisions, not merely your actions. The questions from the panel today indicated the judges struggled with this unprecedented exercise of authority.”
He warned that if that constitutional line is crossed now “ “where the government can force us to buy a private product and say it is for our own good “ then we will have given the government the power to force us to buy other private products, such as cars, gym memberships, or even asparagus. The government’s power to intrude on our lives for our own good will be virtually unlimited.”
Media such as CNN and Reuters characterized the court’s questioning as expressing “strong support” for Obamacare.
Another appeals court in Florida is scheduled to hear more arguments in June in a lawsuit by 26 states in which a judge ruled the individual mandate is unconstitutional. There are a number of other cases that also have been launched on the path to the Supreme Court.
Obama signed the law in March 2010 after House Speaker Nancy Pelosi argued it would have to be adopted so consumers could find out what’s in it. The U.S. House already has voted to repeal the act, but Democrats in the Senate have refused to respond to consumer concerns and put it up for another vote.
The cases are Liberty University v. Timothy Geithner and Commonwealth of Virginia v. Kathleen Sebelius.
Any decision from the court could prompt a request for a rehearing before the full panel of the 4th U.S. Circuit Court and eventually an appeal to the Supreme Court.
Liberty Counsel’s case was the first private case filed as a federal lawsuit against the Obamacare law. It was filed March 23, 2010, the same day Obama signed the legislation.