Jonathan Emord -- Contempt for the Rule of Law

CONTEMPT FOR THE RULE OF LAW

By Attorney Jonathan Emord
Author of "The Rise of Tyranny" and,
"Global Censorship of Health Information"
February 21, 2011
NewsWithViews.com

On January 31, Judge Roger Vinson of the United States District Court for the Northern District of Florida, issued a well-reasoned seventy-eight page opinion holding the President’s health reform law unconstitutional. The President, however, chose to ignore the decision. The President’s action reveals a contempt for the rule of law. We ought not be surprised, however, because the health reform law itself is a presumptuous extension of federal power far beyond the limits of the enumerated powers in Article I of the Constitution.

In his January 31 decision, although he declared the health reform law unconstitutional, Judge Vinson chose not to grant an injunction barring further implementation of the law. He recited “a long-standing presumption that officials of the Executive Branch will adhere to the law as declared by the court.” He presumed his declaration that the law was unconstitutional would be respected by the Obama Administration. He wrote, “it must be presumed that federal officers will adhere to the law as declared by the court.” The Obama Administration had something else in mind: implementation of the law regardless of the holding of the court.

Ordinarily when a district court judgment goes against the government, the Department of Justice will seek a stay of the order pending a decision on appeal. The Obama Administration has not sought a stay from Judge Vinson. It just violated his order with impunity. One day after Judge Vinson’s decision issued, the White House blog boldly announced: “the decision issued on Monday is one district court decision, and we believe it to be very wrong. . . Implementation will continue.”

In another case challenging the health care law where I serve as lead counsel, United States Citizens Association v. Sebelius, we have asked Judge David Dowd of the United States District Court for the Northern District of Ohio to issue an injunction and block further implementation of that law. We recite the response given by the White House to Judge Vinson’s order and explain that in light of it no presumption that officials of the Executive Branch will adhere to the law is due.

The disrespect the Obama Administration has shown for the rule of law is not unique. The health reform law itself is an example of imperial hubris in excess of constitutional restraints. The law’s individual mandate (compelling every American not insured to buy health insurance) is an unprecedented extension of federal power. Under Article I of the Constitution, the government of the United States is possessed of limited and defined powers, none of which includes a power to order Americans to purchase a private product. The health reform law is based on the Commerce Clause in Article I, Section 8, Clause 3. In particular, it is based on what is known as the “substantial affects doctrine.” Under that doctrine, Congress may regulate interstate commerce so long as the individuals or entities regulated have taken acts that substantially affect interstate commerce.

The health reform law is unprecedented in many respects. The substantial affects doctrine has always been applied to the market before the regulation in question. The Court identifies actions that affect the market and upon that hook affirms Congress’s power to regulate. In the context of the health reform law, those who presently do not have health insurance and do not want it but instead pay out of pocket for their health care have no substantial affect on the market for insurance. In a classic error of law and logic called post hoc ergo propter hoc (“after this, therefore because of this”), the Obama Administration argues that the inaction of individuals does indeed affect the market for insurance. The Administration focuses not on the market before regulation but the market after regulation.

Its proposition states but a truism void of any distinguishing principle. It is always true that the failure of a regulatee to comply with an economic regulation affects the regulated market. On that basis, every economic regulation of Congress must be upheld under the Commerce Clause. Our Supreme Court, however, has always stated that the Commerce Clause has limits designed to preserve a republic of limited power and prevent the national government from overtaking the states by granting itself a general police power. On this error of law and logic the Obama Administration rests its multi-trillion dollar health reform law. Judge Vinson correctly held that foundation in violation of Commerce Clause limits.

The Congress that passed the health reform law and the President who signed it were united in the desire to achieve the end of mandatory health insurance regardless of the Constitutional consequences. They were warned by the Congressional Research Service and the Congressional Budget Office that relying on the Commerce Clause to support a law that compels Americans to make a private purchase (buy health insurance) was unprecedented and raised serious constitutional issues. They did not heed that warning and never addressed those concerns.

Undoubtedly the constitutionality of the health reform law will be decided by the Supreme Court. If the Court upholds those decisions that have held the law (or the individual mandate within it) unconstitutional, the Court will achieve an historic victory in favor of enumerated powers. If, however, the Court reverses those decisions and upholds the law, we will witness the arrival of a very horrible precedent, one that threatens our liberties in a most fundamental way.

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If Congress can constitutionally compel a person to buy health insurance because it deems health insurance vital to the general welfare, it can likewise compel Americans to spend more of their after tax dollars on sundry other things that the government thinks best. Congress may therefore order every American of a certain income level to buy an electric car, purchase and install all manner of green devices and equipment in the home, or certify to the purchase of foodstuffs deemed essential to good health. Freedom is near to its end if the federal government not only can tax and spend but also can dictate directly what is to be done with our after tax dollars. In that latter scenario, federal demands on our purse crowd out our free choices and make us mere conduits of a political agenda. That direction must be reversed to restore liberty.

Jonathan W. Emord is an attorney who practices constitutional and administrative law before the federal courts and agencies. Congressman Ron Paul calls Jonathan “a hero of the health freedom revolution” and says “all freedom-loving Americans are in [his] debt . . . for his courtroom [victories] on behalf of health freedom.” He has defeated the FDA in federal court a remarkable seven times, six on First Amendment grounds, and is the author of Amazon bestsellers The Rise of Tyranny, and Global Censorship of Health Information. For more info visit Emord.com.