Why Obamacare Is Clearly Unconstitutional

By Joseph Farah

April 11, 2012 6 min read

You've got to hand it to Barack Obama. One of his two autobiographies was titled, "The Audacity of Hope." It's not as imaginative or as well written as his first — the one supposedly ghostwritten by Bill Ayers. But there's something to learn from it — even from the title. (You can pick it up very cheap at the World Net Daily Superstore.)

The first lesson of the book — and perhaps the only truth to be found in it — is that Obama is audacious.

The dictionary definition of audacity is pretty straightforward: "boldness or daring, especially with confident or arrogant disregard for personal safety, conventional thought, or other restrictions."

The book would have been more accurately titled, "The Hope of Audacity."

Obama is once again putting his hope in audacity in his defense of the indefensible Obamacare, or as it is euphemistically called, the Affordable Care Act. He has declared war on the U.S. Supreme Court's unambiguous authority to declare the legislation unconstitutional, which it clearly is. Obama claimed it would be "unprecedented" for a court to strike down a law approved by Congress. That's not only a lie, but it's a damnable, provable lie. In fact, the Supreme Court has done this countless times. It's what the court is supposed to do if the law is unconstitutional, which Obamacare is.

Obama seeks to redefine the separation of powers in a way no other president in American history would have dared, by claiming it would be "judicial activism" for the court to do what it is specifically charged to do. This from a man who refused to defend, as he is charged to do under the Constitution, a duly enacted law — the Defense of Marriage Act — passed in a bipartisan way by both houses of Congress and signed by a Democratic president.

That's audacity — in its worst connotation. So let's look at the facts of Obamacare versus the Constitution.

The Constitution is a document that is intended to preserve liberty by limiting the powers of the federal government. It reserves most governmental powers to the state. And it protects the freedom of individuals. Obamacare strips powers reserved for the states and attacks the freedom of individuals.

Obamacare expressly exceeds the enumerated and carefully limited powers of the federal government, and that's why it must be declared unconstitutional — not in part but in whole. It is not the Supreme Court's role to declare part of an unconstitutional act invalid. It is the Supreme Court's role to declare the entire unconstitutional act invalid.

Judicial activism does not occur when a court defends the text of the Constitution against conflicting lower laws, but rather it occurs when judges rewrite the text of the Constitution. That is almost exclusively the purview of the kinds of judges Obama appoints.

A classic example of judicial activism was the Supreme Court's 1973 decision in Roe v. Wade. In that case, which has resulted in some 40 million deaths in the womb, the court inventively and consciously and audaciously attempted to write new words into the Constitution — words such as "abortion" and "right to privacy."

In the Obamacare case, Congress attempted not only to mandate the purchase of certain services American citizens may or may not have chosen to buy, it actually attempted to create commerce. While the Constitution provides Congress with the authority to "regulate commerce," it has no authority to create it or mandate it on individual citizens or states.

That's why the only legitimate decision the Supreme Court can make regarding the law is to strike it down in its entirety. If Congress would like to try again in passing legislation dealing with health care costs, it can certainly try. But the very essence of Obamacare is thoroughly, unequivocally and unambiguously unconstitutional. It is not the Supreme Court's job to legislate or tinker with bills that come before it for review. It has two choices — strike down the law or affirm it.

The Constitution trumps any other so-called law passed by Congress.

The true judicial activists are those who believe — as Obama admits he does — in a so-called "living Constitution." He has at least four adherents to this illegitimate and un-American perspective on the court. That means it will take a ruling by the remaining five justices to do right by the Constitution in the case of Obamacare. Sadly, at least one of the remaining five justices has sometimes been known to straddle the fence on judicial activism and the notion of a "living Constitution." We should, as a nation, be praying he gets it right this time.

But Obama's audacity was most evident in his willingness to bully the court while this case is pending before it. He was clearly attempting to influence the result with strong-arm politics — something that should insult every justice with a conscience and an appreciation for the rule of law and separation of powers. There's nothing wrong with a president, a member of Congress or any citizen, for that matter, in criticizing ill-considered decisions of the court after a ruling. That's appropriate in a free society whose government is supposed to serve the will of the people. However, for a president to argue a case before the court is what is "unprecedented."

In an effort to intimidate the court, Obama's political posturing is not only inappropriate and undignified, it is reprehensible.

It's, indeed, the very worst definition of audacity.

To find out more about Joseph Farah and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate Web page at www.creators.com.

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