unconstitutional

[scottw]

"Judge Hudson also wrote, "The unchecked expansion of congressional power to the limits suggested by [the individual mandate provision in ObamaCare] would invite unbridled exercise of federal police powers."

What Cuccinelli did in defeating (for now) the individual mandate actually prevents an historically massive expansion of the federal government's audit and investigation powers.

If every American could be required to purchase health insurance, every American business or household would be subject to federal audits to ensure compliance. With a law over 2,000 pages that even Nancy Pelosi said needed to be passed before we knew what was in it, there assuredly would be lots of compliance requiring audits of individuals, businesses, and even state government.

Government investigations are subject to the 4th Amendment, which protects against unreasonable searches and seizures. The 4th Amendment was written to reflect concerns created by the odious Writs of Assistance.

Those Writs were used to collect taxes, and enforce other laws and court orders. They required presentation of testimony under oath before a judge about the suspected violation, and needed some specification about the place, persons and duration of searches. Colonists objected as procedural protections at common law broke down, and execution of the Writs became more discretionary and abusive.

Despite lessons from the Writs of Assistance, the 4th Amendment became compromised when Congress started creating new federal agencies to regulate interstate commerce, such as the Interstate Commerce Commission in the late 1800s, through Roosevelt's New Deal, and then the many federal agencies created since.

In one 1967 opinion, Justice Byron White wrote, "As government regulation of business enterprises has mushroomed in recent years, the need for effective investigative techniques to achieve the aims of such regulation has been subject to substantial comment and legislation."

In other words, as the federal government expanded its use of the Commerce Clause from keeping interstate commerce open and free to affirmatively burdening it, 4th Amendment protections gradually eroded in direct proportion.

Make no mistake about it: the erosion of the 4th Amendment has been essential to the rapid expansion of big government. Government investigations no longer determine simply whether laws are broken. Often, investigations are used to coerce acceptance of otherwise unlawful or extra-lawful government agency interpretations of law. Even Justice Rutledge wrote, "Officious examination can be expensive, so much so that it eats up men's substance."