TrumpCare Would Be Unconstitutional Too

TrumpCare Would Be Unconstitutional Too

As you’ve undoubtedly heard, a federal judge in Texas struck down ObamaCare as unconstitutional Friday.

Republicans started running victory laps on social media the moment the news broke. Unfortunately, the district judge’s opinion won’t likely stand.

Of course, Judge Reed O’Connor is right. The whole Affordable Care Act is unconstitutional. It always has been. But this particular judge saying so has about as much practical effect as me saying it. And I’ve been saying it since it was introduced. But I’ll say it again. The federal government has no constitutional authority to run the country’s healthcare system. Healthcare is not commerce in the sense of the word as it was used by the drafters and ratifiers of the Constitution.

Nowhere within the powers delegated to Congress will you find the authority to run healthcare. Unfortunately, that ship sailed a long time ago. Everybody in the federal judiciary accepts the bastardized notion that commerce means any economic activity — Judge O’Connor included. He merely held that the mandate couldn’t be defended as a tax anymore since Congress zeroed it out in 2017. And since the mandate was an integral part of the ACA, the judge decided the whole scheme must fall along with the mandate.

Regardless, the judge’s legal reasoning is sloppy at best. My guess is it will be overturned at the appellate level.  

But Pres. Trump was pretty excited about it. He tweeted,

“As I predicted all along, Obamacare has been struck down as an UNCONSTITUTIONAL disaster! Now Congress must pass a STRONG law that provides GREAT healthcare and protects pre-existing conditions. Mitch and Nancy, get it done!”

So, basically, Trump wants to replace unconstitutional Democratic Party healthcare with unconstitutional bipartisan healthcare. And yes, whatever the current Congress might happen to pass will be just as unconstitutional as the ACA. It might work better. Or not. But it will still be outside of the federal government delegate powers.

The constitutional problem with ObamaCare isn’t something specific to ObamaCare. The problem with it is that the federal government has no constitutional authority to run the country’s healthcare system. It was true when Congress passed the ACA. That fact hasn’t changed since 2010. 

But Republicans will still cheer this — because reasons. 

This is yet another example proving that Trump, along with a whole lot of Republicans, don’t really care anything about the Constitution. It’s just about ensuring they are the ones passing the unconstitutional laws and running the unconstitutional programs. The Constitution is nothing more than window dressing. 


Michael Maharrey is a journalist, author, and speaker.  He speaks at events across the United States, and frequently appears as a guest on local, national and international radio shows advancing constitutional fidelity and liberty through decentralization.  He has written three books: Our Last Hope – Rediscovering the Lost Path to Liberty, Smashing Myths: Understanding Madison’s Notes on Nullification, and  Nullification Objections: Dismantling the Opposition.  He currently serves as the national communications director for the Tenth Amendment Center.