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Supreme Court must rule: Obamacare sets dangerous precedent for freedom

With the Supreme Court set to examine Obama's Affordable Care Act, more than the health-care law hangs in the balance. If the court says the Constitution's Commerce Clause justifies the law's 'individual mandate,' government can essentially make people do whatever it wants.

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Now turn Holmes’s point around. It is one thing for government to forbid specific actions while leaving all other possible actions to the discretion of the individual. It is quite another thing for government to compel an individual to take specific actions (telling people to do things they have already chosen not to do). The first is consistent with the kind of practicable freedom we now enjoy. It comports with the Constitution’s principle of enumerated government powers. The latter is not and does not.

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If government goes from only regulating activity to also regulating inactivity, it will effectively go from telling individuals what they cannot do to telling them what to do. This renders residual control meaningless because it effectively removes private discretion to act, except as specifically permitted or directed by government.

The result is that government, not individuals, will then possess residual control over the behavior of individuals, much as parents now do over children. Government possessing de facto residual control over adult individual behavior is antithetical to freedom in a society of adults. Indeed, it contradicts the overarching spirit of the Constitution, which was obviously crafted to enumerate government powers.

The Supreme Court is now in a perfect position to assert unequivocally that the practice of using the Commerce Clause to justify regulating inactivity is unconstitutional because the Constitution was obviously crafted to leave discretion with individuals while conferring to government the discretion to act only as enumerated. This would be a mighty victory for freedom.

The stakes are higher than ever. In Judge Vinson’s Federal District Court ruling in January, he raised this issue of inactivity explicitly, stating: “It would be a radical departure from existing case law to hold that Congress can regulate inactivity under the Commerce Clause.” That part of his ruling was affirmed in August by the 11th Circuit Court of Appeals.

If the Supreme Court does not clarify the question of whether the Commerce Clause applies to inactivity, the individual mandate in the Affordable Care Act may become the precedent upon which future activists justify even further expansion of government power.

If the Supreme Court fails to make a clear ruling or rules to uphold the constitutionality of the individual mandate, those who favor expanding government power at the expense of individual freedom could then argue that precedent now allows the doing of nothing to be construed of as the doing of something – as activity.

This will mean that both activity and inactivity – everything – will now fall under the purview of the Commerce Clause and therefore under the power of government regulation.

America is therefore at a fork in the road of legal precedent, one with far reaching implications for maintaining the free society many now take for granted.

David C. Rose is a professor of economics at the University of Missouri-St. Louis. He is the author of “The Moral Foundation of Economic Behavior.


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