One of the dissatisfactions that American colonists had with the mother country was the “bill of attainder” process then in common use, wherein the state could declare a subject to be in violation of the law and seize his property without the benefit of a trial. Bills of attainder are expressly prohibited under Article I, Section 9 of the US Constitution.
Obamacare is now the law of the land, and it authorizes the state to seize property – in the form of financial penalties – from citizens who decline to purchase private health insurance.
House Judiciary Chairman John Conyers cites his exhaustive knowledge of the Constitution to declare that such forfeitures are a privilege of Congress through the “good and welfare” clause of the Constitution. Scrupulous study of the Constitution finds such a clause conspicuous by its absence. Moreover, a separation of powers issue arises when the legislature arrogates to the bureaucracy the right to make determinations of guilt without involving the judiciary.
It is one thing to for Alcee Hastings to assert that are no procedural rules that binds Congress in the making of its sausage. Quite another thing to make up the actual Constitution as you go along. Even for a Judiciary Committee chairman.
More substantively, Richard Esenback asks whether there remain any structural limitations on the power of Congress to insert itself into contracts between private parties, i.e., the citizenry and their health insurance companies:
The extent to which you are comfortable with this may turn on the extent to which you are comfortable with the centralization of authority and, in a world in which Congressional enactments are increasingly delegations of authority to bureaucrats, your confidence in the capacity of experts to “get it right.”
I am not very comfortable. I am not very confident.
And I don’t think I am alone. As the popular response to ObamaCare demonstrates, there is a strong tradition – both in public sentiment and (I think still in constitutional theory)- of structural limitations on federal authority.
Our nation still seems to cling to our longstanding notions regarding the limitation of federal power. Given the Founders rather clear intent on the matter, would it really be surprising to see this theory of the Constitution surface in new ways? Is it is possible that the ongoing transmogrification of Article I may lead to a doctrinal response? If courts can no longer hold Congress to a set of enumerated powers, will they seek to restrain federal authority in other ways? Might we see more rigorous judicial scrutiny of what serves the “general welfare” or what is “necessary and proper.”
Fertile ground for a needlessly antagonized US Supreme Court to plow.