The ObamaCare ruling by Judge Henry Hudson (full text here) is a victory for our Founding Fathers’ concepts of limited national government and the supremacy of individual rights. But it also reveals the inconsistency (or hypocrisy) of some Beltway legal experts who favor preemption, which is the takeover of state functions and state common law courts by federal bureaucracies in some instances, but oppose a federal takeover when it comes to health care. Indeed, some of the same groups participating in the federal preemption movement are also front and center in the fight against ObamaCare in the federal courts.
Case in point: the Cato Institute, which filed this amicus brief in the Virginia case, arguing the following:
“In other words, this case presents the Court with ‘the arduous . . . task of marking the proper line of partition between the authority of the general and that of the State governments.’.. Congress identified the Commerce Clause as the source of its authority, a position the Government now asserts in its Motion to Dismiss… Congress may not enact laws that are not ‘plainly adapted’ to further an enumerated end, or that do so at the expense of the rights reserved to the States or the people under the Tenth Amendment.”
But as I posted on December 6, Cato’s Vice President for Legal Affairs Roger Pilon argued just the opposite at the National Convention of the Federalist Society, when it came to preemption of state common law suits for certain defective medical devices. He said, “if the Commerce Clause was meant for anything, it was meant to ensure the free flow of goods and services among the states, and jury trials can really make a mess of that if pharmaceutical companies, for example, have to have 50 different labels for warnings on their medications” Sure sounded to me as if he was arguing that the Commerce Clause trumps the 10th and 7th Amendments in that instance.
After the ObamaCare ruling, Pilon had the audacity to write, “for today, at least, the Tenth Amendment and the limited government it implies are alive and well.” Well, at least for causes of his own choosing.
Pilon didn’t sign the amicus brief filed in the Virginia case, and the Cato staff who did sign it apparently weren’t at the Federalist Society when Pilon spoke. Maybe the folks at Cato need to have an in-house meeting and figure out whether the Bill of Rights limits the sweeping power of the Commerce Clause.