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So here I am…  Discussing a position about legal rulings.  I am not a lawyer.  I thought about being one.  My dad said I should have been one.

I am not a lawyer.

I took some time to dig into the 10th Amendment.  I have found a glut of information on the subject and wanted to share.

I have received a great deal of contention and support on my last article. I had talked about a few points, but was pounded on my assertion of the 10th Amendment being at the heart of the “healthcare” debate.  I decided it was time to dig in to understand what the 10th Amendment  may mean for this debate in regard to mandated coverage for all.

Simple point of argument…  Mandatory Coverage.  That is all I am looking at. When the federal government dictates to the people that they must purchase insurance or be fined, the Congress has inducted its right using implied powers from the Commerce Clause in the Constitution.

What I found was complicated and at times difficult to understand.  If you are a lawyer or law student and understand this subject-  PLEASE WEIGH IN!

The 10th Amendment and the Commerce Clause

I have learned that there are two areas of consideration.  One is the 10th Amendment; the other is The Commerce Clause in the Constitution.  It was put in to fix issues with the Articles of Confederation.  (Sleepy yet?)

The Commerce Clause states that Congress has the right “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”.

The 10th Amendment states “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people.”

Got it?  Two different areas of the Constitution.

What Does the Court Say About the Commerce Clause?

The Supreme Court has ruled on the congressional power of interstate commerce regulation repeatedly.  The court has provided multiple rulings that weigh heavily in favor of Congress.  Congress has a right to regulate commerce based on implied powers from the Commerce Clause.  See the Whitepaper linked at the bottom of the post for an in-depth look.

What Does the Court Say About the 10th Amendment?

There is a fantastic article on Jrank.org regarding the history of the 10th Amendment. I urge you all to read it.

Basically, the Court has the opinion that Congress has implied powers to regulate activity.  In a recent opinion form 1985, the Court’s opinion is summarized well by Lawnix:

In reaching this decision, the Court said that if certain states are worried about the extent of federal authority over a particular local matter, the residents of such states should contact their senators and representatives who are constitutionally authorized to narrow federal regulatory power through appropriate legislation. .

Basically-  the Court said, “If the people don’t like the law, then vote the bums out ’cause it ‘aint our job to fix bad law”.

The Bottom Line

The Court has had many opinions on the Commerce Clause and the 10th Amendment.  What will actually decide the merit of the Healthcare bill’s constitutionality is not the Commerce Clause or the 10th Amendment-  it is in some lesser known rulings regarding the ability of Congress to penalize Americans for not following certain legislation.

In regard to the Healthcare penalties for people not carrying insurance,   Congress included updates to the 1986 tax code.  These changes are the foundation for the penalty-  You see it right?  Congress made the penalty … a TAX… Congress may have a way around the issue by hiding behind taxation and not actual federal fines.

So-  it may NOT be the 10th Amendment… Stupid.

10th Amendment and The Commerce Clause

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