Napolitano:

High Court Key to Obamacare Survival

By: David A. Patten | Newsmax

Now that President Barack Obama has received official word of the retirement of U.S. Supreme Court Justice John Paul Stevens, the court’s oldest member and leader of its liberal bloc, he has his second high court opening to fill.

Newsmax recently interviewed author and judicial analyst Andrew P. Napolitano on how important the evolving court may be to the future health of Obamacare.

President Barack Obama is one of the worst presidents ever in terms of respecting constitutional limitations on government, and the states suing the federal government over healthcare reform “have a pretty strong case” and are likely to prevail, according to Napolitano.



In an exclusive interview with Newsmax.TV’s Ashley Martella, Napolitano says the president’s healthcare reforms amount to “commandeering” the state legislatures for federal purposes, which the Supreme Court has forbidden as unconstitutional.

“The Constitution does not authorize the Congress to regulate the state governments,” Napolitano says. “Nevertheless, in this piece of legislation, the Congress has told the state governments that they must modify their regulation of certain areas of healthcare, they must surrender their regulation of other areas of healthcare, and they must spend state taxpayer-generated dollars in a way that the Congress wants it done.

“That’s called commandeering the legislature,” he says. “That’s the Congress taking away the discretion of the legislature with respect to regulation, and spending taxpayer dollars. That’s prohibited in a couple of Supreme Court cases. So on that argument, the attorneys general have a pretty strong case and I think they will prevail.”

Napolitano, author of his just-released “Lies the Government Told You: Myth, Power, and Deception in American History” and a Fox News senior judicial analyst, is the youngest Superior Court judge ever to attain lifetime tenure in the state of New Jersey. He served on the bench from 1987 to 1995. 

Napolitano tells Newsmax that the longstanding precedent of state regulation of the healthcare industry makes the new federal regulations that much more problematic. 



“The Supreme Court has ruled that in areas of human behavior that are not delegated to the Congress in the Constitution, and that have been traditionally regulated by the states, the Congress can’t simply move in there,” Napolitano says. “And the states for 230 years have had near exclusive regulation over the delivery of healthcare. The states license hospitals. The states license medications. The states license healthcare providers whether they’re doctors, nurses, or pharmacists. The feds have had nothing to do with it.

“The Congress can’t simply wake up one day and decide that it wants to regulate this. I predict that the Supreme Court will invalidate major portions of what the president just signed into law…”

The judge also says he would rate President Obama as one of the worst presidents in terms of obedience to constitutional limitations. 

“I believe we have a one party system in this country, called the big-government party,” Napolitano says. “There is a Republican branch that likes war and deficits and assaulting civil liberties. There is a Democratic branch that likes welfare and taxes and assaulting commercial liberties. 

“President Obama obviously is squarely within the Democratic branch. The president who had the least fidelity to the Constitution was Abraham Lincoln, who waged war on half the country, even though there’s obviously no authority for that, a war that killed nearly 700,000 people. President Obama is close to that end of lacking fidelity to the Constitution. He wants to outdo his hero FDR.”

For those who oppose healthcare, the Fox legal expert says, the bad news is that many of the legal challenges to healthcare reform will have to wait until 2014, when the changes become fully operational. 

Until then, there would be no legal case that individuals had been actually harmed by the law. Moreover, Napolitano says it takes an average of four years for a case to work its way through the various federal courts the final hearing that’s expected to come before the Supreme Court. 

“You’re talking about 2018, which is eight years from now, before it is likely the Supreme Court will hear this,” he says.

Other issues that Napolitano addressed during the wide-ranging interview:

He believes American is in danger of becoming “a fascist country,” which he defines as “private ownership, but government control.” He adds, “The government doesn’t have the money to own anything. But it has the force and the threat of violence to control just about anything it wants. That will rapidly expand under President Obama, unless and until the midterm elections give us a midterm correction – which everyone seems to think, and I’m in that group, is about to come our way.

Napolitano believes the federal government lacks the legal authority to order citizens to purchase healthcare insurance. The Congress [is] ordering human beings to purchase something that they might not want, might not need, might not be able to afford, and might not want -- that’s never happened in our history before,” Napolitano says. “My gut tells me that too is unconstitutional, because the Congress doesn’t have that kind of power under the Constitution.”

The sweetheart deals in the healthcare reform bill used that persuaded Democrats to vote for it – the Louisiana Purchase, Cornhusker Kickback, Gatorade Exception and others – create “a very unique and tricky constitutional problem” for Democrats, because they treat citizens differently based on which state they live in, running afoul of the Constitution’s equal protection clause according to Napolitano. “So these bennies or bribes, whatever you want, or horse trading as it used to be called, clearly violate equal protection by forcing people in the other states to pay the bills of the states that don’t have to pay what the rest of us do,” Napolitano says.

Exempting union members from the so-called “Cadillac tax” on expensive health insurance policies, while imposing that tax on other citizens, is outright discrimination according to Napolitano. “The government cannot draw a bright line, with fidelity to the Constitution and the law, on the one side of which everybody pays, and the other side of which some people pay. It can’t say, ‘Here’s a tax, but we’re only going to apply it to nonunion people. Here’s a tax, and we’re only going to apply it to graduates of Ivy League institutions.’ The Constitution does not permit that type of discrimination.”

Politicians from both parties routinely disregard the Constitutional limits imposed on them by the nation’s founding document, Napolitano says. “The problem with the Constitution is not any structural problem,” says Napolitano. “The problem with the constitution is that those who take an oath to uphold it don’t take their oath seriously. For example, just a month ago in interviewing Congressman Jim Clyburn, who’s the No. 3 ranking Democrat in the House, I said to him, Congressman Clyburn, can you tell me where in the Constitution the Congress is authorized to regulate healthcare? He said, ‘Judge, most of what we do down here,’ referring to Washington, ‘is not authorized by the Constitution. Can you tell me where in the Constitution we’re prohibited from regulating healthcare.’ Napolitano says that reflects a misunderstanding of what the Constitution actually is. “He’s turning the Constitution on its head, because Congress is not a general legislature,” he says. “It was not created in order to right every wrong. It exists only to legislate in the 17 specific, discrete, unique areas where the Constitution has given it power. All other areas of human area are reserved for the states.”

Napolitano says that members of Congress infringe on Constitutional rights because they fail to recognize its basis. “They reject Jefferson’s argument, in the Declaration of Independence, that our rights come from our Creator, therefore they’re natural rights, therefore they can’t be legislated away,” Napolitano says. “They think they can legislate on any activity, regulate any behavior, tax any person or thing, as long as the politics will let them survive. They’re wrong, and with this healthcare legislation, they may be proven wrong, in a very direct and in-your-face way.”