Unbridled bullying powers

In his recent decision in Virginia v. Sebelius declaring the linchpin of Obamacare — the individual mandate — unconstitutional, Judge Henry Hudson wrote, “The unchecked expansion of congressional power to the limits suggested by [the individual mandate provision] would invite unbridled exercise of federal police powers.”

Legitimate police powers include the government’s authority to regulate what people can and cannot do. Federal authority is limited by enumerated powers granted to Congress and what it deems necessary and proper to effect laws, but only consistent with the rest of the Constitution.

Under Hudson’s opinion, Congress may not compel Americans to purchase a product. Understanding what follows from the police powers increases appreciation for the ruling.

Authority to enforce the law is inherent in police powers. Enforcement means investigations into violations of law. Given Obamacare’s “unbridled” police powers, it would be a historic, massive expansion of government authority to investigate or audit businesses and households.

The power to investigate is the power to bully and deprive people of rights, which is why government investigations are subject to the Fourth Amendment. Protections under the amendment, however, have eroded as Congress expanded use of its powers to regulate interstate commerce.

The Fourth Amendment was written to prevent abuses that occurred under the British Writs of Assistance. Those writs were issued to collect taxes and enforce remedies at law. Specific common law procedural requirements applied to writs. They could be issued only by courts after receiving testimony under oath about a violation of law, which today we call “cause.”

The writs came to be abused through giving too much discretion to search or seize property, and contributed to America’s declaring independence from England.

The Fourth Amendment protects against unreasonable searches and seizures. Warrants must be supported by probable cause particularly describing the place to be searched, or persons and things to be seized.

In the late 1800s, Congress gave the Interstate Commerce Commission authority to unilaterally issue subpoenas without prior court authorization. Thus, the depreciation and erosion of the Fourth Amendment began despite its historical backdrop.

Through a series of judicial contortions of common law and the Necessary and Proper clause of our Constitution during the New Deal and even more recently, the cause for federal agencies to issue subpoenas eroded from “probable” to a weaker “reasonable” standard in civil, not criminal, investigations.

The result is that federal agencies no longer use investigative power simply to enforce law. Government agencies have taken advantage of compromised Fourth Amendment standards to coerce unreasonable interpretations of law onto the businesses and individuals they regulate.

Individuals who lack resources to fight, and businesses concerned about public perceptions, often cannot or will not challenge unreasonable government investigations. And when they do, they face courts that long ago decided it best to defer to agency interpretations of their own regulations, especially at the investigation stage.

The convoluted standards for the Fourth Amendment are great intellectual candy for law professors. Too often, however, they are weak practical limits on abusive, bullying government agencies.

Courts have made Fourth Amendment standards weakest for Internal Revenue Service audits because there are so many. The individual mandate that Virginia Attorney General Ken Cuccinelli defeated for now would have regulated all Americans, which is far more than those who pay federal income taxes.

Besides giving jurisdiction to the IRS and the Department of Health and Human Services, Obamacare creates 159 new agencies. Its investigative tentacles would be everywhere under standards reminiscent of the odious Writs of Assistance.

Mark J. Fitzgibbons is the president of corporate and legal affairs at American Target Advertising.

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