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Jonathan Tobin: Defending the Right to a Jewish State

Heather Hale: Compliment your kids without giving them big heads

Megan Shauri: 10 ways you are ruining your own happiness

Carolyn Bigda: 8 Best Dividend Stocks for 2015

Kiplinger's Personal Finance editors: 7 Things You Didn't Know About Paying Off Student Loans

Samantha Olson: The Crucial Mistake 55% Of Parents Are Making At Their Baby's Bedtime

Densie Well, Ph.D., R.D. Open your eyes to yellow vegetables

The Kosher Gourmet by Megan Gordon With its colorful cache of purples and oranges and reds, COLLARD GREEN SLAW is a marvelous mood booster --- not to mention just downright delish
April 18, 2014

Rabbi Yonason Goldson: Clarifying one of the greatest philosophical conundrums in theology

Caroline B. Glick: The disappearance of US will

Megan Wallgren: 10 things I've learned from my teenagers

Lizette Borreli: Green Tea Boosts Brain Power, May Help Treat Dementia

John Ericson: Trying hard to be 'positive' but never succeeding? Blame Your Brain

The Kosher Gourmet by Julie Rothman Almondy, flourless torta del re (Italian king's cake), has royal roots, is simple to make, . . . but devour it because it's simply delicious

April 14, 2014

Rabbi Dr Naftali Brawer: Passover frees us from the tyranny of time

Greg Crosby: Passing Over Religion

Eric Schulzke: First degree: How America really recovered from a murder epidemic

Georgia Lee: When love is not enough: Teaching your kids about the realities of adult relationships

Cameron Huddleston: Freebies for Your Lawn and Garden

Gordon Pape: How you can tell if your financial adviser is setting you up for potential ruin

Dana Dovey: Up to 500,000 people die each year from hepatitis C-related liver disease. New Treatment Has Over 90% Success Rate

Justin Caba: Eating Watermelon Can Help Control High Blood Pressure

The Kosher Gourmet by Joshua E. London and Lou Marmon Don't dare pass over these Pesach picks for Manischewitz!

April 11, 2014

Rabbi Hillel Goldberg: Silence is much more than golden

Caroline B. Glick: Forgetting freedom at Passover

Susan Swann: How to value a child for who he is, not just what he does

Cameron Huddleston: 7 Financial Tasks You Should Tackle Right Now

Sandra Block and Lisa Gerstner: How to Profit From Your Passion

Susan Scutti: A Simple Blood Test Might Soon Diagnose Cancer

Chris Weller: Have A Slow Metabolism? Let Science Speed It Up For You

The Kosher Gourmet by Diane Rossen Worthington Whitefish Terrine: A French take on gefilte fish

April 9, 2014

Jonathan Tobin: Why Did Kerry Lie About Israeli Blame?

Samuel G. Freedman: A resolution 70 years later for a father's unsettling legacy of ashes from Dachau

Jessica Ivins: A resolution 70 years later for a father's unsettling legacy of ashes from Dachau

Kim Giles: Asking for help is not weakness

Kathy Kristof and Barbara Hoch Marcus: 7 Great Growth Israeli Stocks

Matthew Mientka: How Beans, Peas, And Chickpeas Cleanse Bad Cholesterol and Lowers Risk of Heart Disease

Sabrina Bachai: 5 At-Home Treatments For Headaches

The Kosher Gourmet by Daniel Neman Have yourself a matzo ball: The secrets bubby never told you and recipes she could have never imagined

April 8, 2014

Lori Nawyn: At Your Wit's End and Back: Finding Peace

Susan B. Garland and Rachel L. Sheedy: Strategies Married Couples Can Use to Boost Benefits

David Muhlbaum: Smart Tax Deductions Non-Itemizers Can Claim

Jill Weisenberger, M.S., R.D.N., C.D.E : Before You Lose Your Mental Edge

Dana Dovey: Coffee Drinkers Rejoice! Your Cup Of Joe Can Prevent Death From Liver Disease

Chris Weller: Electric 'Thinking Cap' Puts Your Brain Power Into High Gear

The Kosher Gourmet by Marlene Parrish A gift of hazelnuts keeps giving --- for a variety of nutty recipes: Entree, side, soup, dessert

April 4, 2014

Rabbi David Gutterman: The Word for Nothing Means Everything

Charles Krauthammer: Kerry's folly, Chapter 3

Amy Peterson: A life of love: How to build lasting relationships with your children

John Ericson: Older Women: Save Your Heart, Prevent Stroke Don't Drink Diet

John Ericson: Why 50 million Americans will still have spring allergies after taking meds

Cameron Huddleston: Best and Worst Buys of April 2014

Stacy Rapacon: Great Mutual Funds for Young Investors

Sarah Boesveld: Teacher keeps promise to mail thousands of former students letters written by their past selves

The Kosher Gourmet by Sharon Thompson Anyone can make a salad, you say. But can they make a great salad? (SECRETS, TESTED TECHNIQUES + 4 RECIPES, INCLUDING DRESSINGS)

April 2, 2014

Paul Greenberg: Death and joy in the spring

Dan Barry: Should South Carolina Jews be forced to maintain this chimney built by Germans serving the Nazis?

Mayra Bitsko: Save me! An alien took over my child's personality

Frank Clayton: Get happy: 20 scientifically proven happiness activities

Susan Scutti: It's Genetic! Obesity and the 'Carb Breakdown' Gene

Lecia Bushak: Why Hand Sanitizer May Actually Harm Your Health

Stacy Rapacon: Great Funds You Can Own for $500 or Less

Cameron Huddleston: 7 Ways to Save on Home Decor

The Kosher Gourmet by Steve Petusevsky Exploring ingredients as edible-stuffed containers (TWO RECIPES + TIPS & TECHINQUES)

Jewish World Review April 8, 2010 / 24 Nissan 5770

The ‘individual mandate’ an intrusion on civil society

By John Yoo



http://www.JewishWorldReview.com | For the first time in American history, the federal government has decided that every man, woman and child must do more than simply mind their own business. Upon the threat of fine, each American now must go out and buy health insurance.

Under the bill signed Tuesday by President Obama, every American must obtain health insurance by 2014. Within two years after that, the government will fine insurance-free renegades 2.5 percent of their income or $695, whichever is greater.

This "individual mandate" forms the centerpiece of the federal government's latest, greatest intrusion into civil society. Obama staked his presidency on the nationalization of one-sixth of the economy, with measures requiring employers to offer insurance, regulating the policies offered by insurers, and eventually setting the prices for medical procedures. Requiring all Americans to purchase insurance is intended to solve what is known as the "free-rider" problem — those who don't pay for health-care costs but use hospitals — and to broaden the risk pool so the younger and healthier subsidize the care of the older and sicker.

Never mind that most Americans first came to these shores to escape the meddling of their own governments. Put aside that a majority of Americans oppose Obamacare. Ignore the election of Republicans to Ted Kennedy's Senate seat in Massachusetts and the governorships of New Jersey and Virginia, all previously held by Democrats.

Politics cannot repeal Obamacare, at least not until opponents win the House, Senate, and presidency all at once. But the Constitution still stands in the way. Takeover of the health-care industry depends critically on Congress' authority "to regulate commerce ... among the several states." Much of Obamacare, such as its requirements that insurance companies take all comers and forgo lifetime benefit caps, will pass constitutional muster as a regulation of a nationwide market in goods and services. But some of it will not, though it is a much closer question than either supporters or critics believe.

Letter from JWR publisher


The framers of the Constitution believed that the Commerce Clause would control travel and trade that crossed state borders. They wanted to end the beggar-thy-neighbor policies that had led to trade wars between the states and replace them with a single nationwide market. But over the years, Congress — blessed by the Supreme Court under FDR's threat to expand its membership — has extended its reach to even intrastate activities that have a "substantial effect" on national commerce. The Commerce Clause has become the Ryan Howard of federal power, the go-to guy for everything from the prohibition on racial discrimination to the protection of endangered species to the cleaning of the nation's air and waters.

But the individual mandate may finally be a bridge too far, even for the Commerce Clause. In recent years, the Supreme Court has put an end to Congress' blank check on domestic regulation. In 1995's United States v. Lopez, the justices held that Congress could not ban gun possession in school zones as a regulation of interstate commerce. In 2000, United States v. Morrison went even further in striking down parts of the federal Violence Against Women Act. If the court were to allow Congress to go so far, Chief Justice William Rehnquist worried, there would be no logical stopping point. The federal government would have power over everything. The framers could have granted Congress a limitless police power, as that held by the states, but they didn't — which is why states can force everyone to buy auto insurance or health insurance, where the federal government cannot.

Instead, they carefully enumerated the precise powers given to the government to maintain a balance between the truly national and the truly local.

Aha!, say supporters of Obamacare, other cases go the other way. True. In Wickard v. Filburn, the court upheld a New Deal law fining a farmer for growing wheat purely for his personal consumption. The court's theory was that the accumulation of all of the individual farmers' wheat in the country would seriously affect the national market. And most recently, in Gonzales v. Raich, the same Rehnquist court that decided Lopez and Morrison upheld federal laws making possession of small amounts of illegal drugs a crime.

But the court has never upheld a federal law that punishes Americans for exercising their God-given right to do absolutely nothing. Even the furthest reaches of the Commerce Clause have extended only to affirmative actions, such as growing wheat or possessing illegal drugs. The only counterexamples that come to mind are the draft and jury duty, and those arise from other constitutional duties than Congress' power over interstate commerce. If the government can force every American to buy health insurance, why can't it impose fines for not losing weight, not exercising, or not eating low-fat foods — all in an effort to reduce the nation's health-care costs?

This is not to say that the government cannot reach the goal of providing health care for all, only that it has to follow the Constitution's established pathways. Rather than imposing an individual mandate, Congress could simply provide every citizen with a voucher to purchase a minimum health-insurance policy. The Constitution does not subject the government's right to tax and spend to the same limits as the Commerce Clause. Vouchers would minimize distortions in the insurance and health-care markets, and they would forgo the need for the thousands of new IRS agents and other bureaucrats who will be checking up on every citizen to see whether they have bought their insurance.

But there are two big problems with vouchers, despite their firmer constitutional groundings. First, they are too transparent. It is too easy to see the costs of universal health care, and it is too straightforward to compare the performance of the state and the private sector. Second, they don't grow the size of government. Obamacare will add to the legions of public employees who will favor the state over private-market solutions and who will be dependent on expanding government programs. It makes one wonder what Obamacare's agenda really is.

Every weekday JewishWorldReview.com publishes what many in the media and Washington consider "must-reading". Sign up for the daily JWR update. It's free. Just click here.

John Yoo is a law professor at the University of California, Berkeley, and a visiting scholar at the American Enterprise Institute. He has served as a law clerk to Justice Clarence Thomas. Comment by clicking here.

© 2010, The Philadelphia Inquirer Distributed by McClatchy-Tribune Information Services

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