For those of you that read my blog on a weekly basis mostly to get your dander up, I will not disappoint you this week. by Kenn Jacobine
(libertarian)
Wednesday, March 31, 2010
To get right to the point, plain and simple, the newly passed "Obamacare" health care reform legislation is unconstitutional on many levels and Republicans if they have any political principles at all will run this November on a platform promising to repeal the measure in its entirety.Â
However, they may be saved from this act of unusual courage on their part if state attorneys general have their way. Currently, there are already lawsuits filed by 14 states against the law.  The suits rightly state that, "The Constitution nowhere authorizes the United States to mandate, either directly or under threat of penalty, that all citizens and legal residents have qualifying health care coverage." This argument before any court should be enough to at least invalidate that portion of the law. And if that portion is struck down then the financing mechanism for making the law somewhat viable is removed and the scheme falls flat on its face.
The states have chosen the portion of the new law that will give them the greatest chance of success in the courts. After all, it was deemed necessary at the beginning of the last century to pass an amendment to the Constitution allowing Washington to collect income taxes from Americans. How come an amendment is not required for Washington to order Americans to pay for health insurance?Â
But, there are also many other constitutional arguments that can be leveled against "Obamacare". Article 1 Section 8 of the U.S. Constitution enumerates 18 specific powers granted to Congress. Healthcare is not one of them and as a matter of fact the responsibility for regulating the industry has historically fallen to states. States license doctors, hospitals, and have insurance commissions responsible for regulating rates and services. Of course, liberal interpreters of the Constitution will point out that there are two clauses in that same section which support their view that Congress has nearly unlimited powers when it comes to providing for the well-being of Americans.
The first clause is the "General Welfare" clause, "The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States…" Taken in context, general welfare is not separated by commas from "to pay the debts" and "common defense". Therefore, the Congress has the power to provide for the general welfare of the United States by maintaining a common defense and paying the debts in the pursuit thereof. The phrase does not give Congress unlimited powers. If it did there would be no need for the 16 enumerated powers that follow in the same section.
The second clause liberal interpreters of the Constitution point to in order for Congress to do whatever it wants to is the "necessary and proper" clause. It reads, "To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof." Many have labeled this the elastic clause which is about as accurate a label as the "Patriot Act". The first part ending with "foregoing powers" obviously relates to the 17 previously mentioned enumerated powers in Section 8. The bone of contention is the phrase, "…all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof." What are these other powers? To liberal interpreters it means anything Congress feels should be done for the ‘general welfare". The real answer is the powers specified to Congress outside of Article 1 Section 8 of the Constitution.Â
Article 2 dealing with the Executive Branch is a good example. In Section 1 of that article Congress has been given the power, not enumerated in Article 1 Section 8, to determine the time for choosing electors of the Electoral College. Article 2 Section 2 gives Congress power to enact laws dealing with certain appointments of the president. There are several amendments  that give Congress power to, "enforce this article by appropriate legislation". These powers of Congress not found in the article dealing with the legislative branch are "necessary and proper for carrying into execution all other powers vested by this Constitution in the government of the United States…" That was the original meaning of the necessary and proper clause. Furthermore, health care is not specified in any of these other powers, thus it is outside of Congress's powers under federalism and a clear violation to the Constitution.Â
The Constitution grants very limited powers to all three branches of government, not just Congress. Those powers are enumerated and delegated in the document. To believe otherwise ignores the actual text and the historical context the document was written in. Why would individuals give unlimited power to a new government when they had just risked all they had to overthrow the unlimited tyrannical powers of another? They wouldn't. This is why a strict constructionist interpretation is correct and why Obamacare is unconstitutional.
Part 2 will deal with the interstate commerce clause and why it is important to adhere to the Constitution.  Â
Kenn Jacobine teaches internationally and maintains a summer residence in North Carolina.
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Posted By: Ross Williams
Date: 2010-04-01 14:24:50
Republicans will not be able to get Obamacare repealed, as good a notion as that is.
Republicans may take over Congress - one or both houses - and I personally find that a likely event. But they won't have a veto-proof majority, not even if the Democrats who survive and remain see the writing on their re-election walls.
Obama's gonna have to be un-elected in '12 before any of this happens, and by then it may be too late. There's a certain political inertia involved that once something gets going, it's very difficult to stop. Democrats have found that with the War in Iraq they hate, the Patriot Act that most people hate, Gitmo which they love to hate, and No Child Left Behind. All they can do is tinker.
All the Republicans will be able to do is tinker with this nonsense.
Â
The US itself is heading for Chapter 7 [I believe that the right one]. Receivorship and sale of assets.
There is precedent for the ability of the Federal level to dictate terms to citizens. In early America the Congress ordered all members of the militia at their own expense to by a musket, backpack, powder and musket ammunition of 50 rounds. The states were to provide additional ammunition, uniforms and the like later but this was to be sure they were readied for combat at short notice. This was a mandate and not in the militia powers since states were obligated to fund them and train them save for the officers who were Federal appointments.
And even if the mandates on individuals are overturned there is nothing stopping the rest of the law from being in effect. Medicaid is still voluntary for each state but if they stay in they have to abide by Federal rules to get that funding. The government can tax so corporate and even personal tax penalties could stay in place. And all the other taxes are not illegal. So I don't know where you get the courts would toss it all out they can rule just the personal mandate unconstitutional.
And I should point out a point of customary international law the UN Declaration of Human Rights we as one nation signed it and that includes as one right a right of each person to adequete health care. So one could say the US is just now complying with the spirit of civilized nations that provide such care for their citizens. (I will not a right to housing and food are included what one could be called a right of all peoples for basic human needs.)
Thomas, the mandate you cite occurred *before* the Bill of Rights was added to the Constitution. I would suggest that it may be part of the reson *for* the 2nd Amendment (however, just after the war, with no standing army, there was need of some supply, and a militia is all able-bodied citizen volunteers).
The Author is very correct in his assessment of the consitutionality, or lack thereof, of this act (not to mention thousands of others in the past few years alone, EPA, FCC, DEA for starters). What the imperialists (to put the mildest spin on them) always do is select a phrase out of context and pretend the rest of the document doesn't exist. Unless I don't recall correctly, there is also a clause stating that no other clause shall be interpreted in such a fashion as to negate any other clause. I don't recall eactly where I saw the clause, but it would completely overrule the mauling our Republic has undergone by stretching the commerce clause.
It doesn't matter when the precendent happened they are both on record and in effect precedent. The Consititution itself before any amendment placed the arming and training of said militia on the states except during time of war when the Federal government took over to organize them into our army. And since the Federal Courts do the interpretation of the US Consitution they have supported the added breadth and scope of powers as was just noted above, its in fact now constitutional law. The mandates therefore are likely going to be declared then constitutional unless they are going to toss out years of court precendents at all levels which will then undermine many other powers.
And on the matter of the mandate its not in fact more than a legal tax penalthy for NOT having insurance if one can afford it that is not the same as making ,say you or me, getting the insurance from this or that company. Its simple you have insurance or pay added taxes that is very constitutional its in the core document for commerce and the amendments fro citizens. But you don't have to do anything there is no gun to your or my head.
Oddly they did that already in the Drug Bill so the mandate precendent is in place and under Republican auspices and not challenged on these grounds. And its a far bigger mandate than this one and clearly acceptable to many citizens.
I just don't see the issue here you may bitch about this but unless you can find a clear reason that the Courts will consider valid and would in turn be supportable against the greater good of the nation ,to have everyone insured, it would be a hard case. And like I said if there is a question they set the constitutionality of legislation not you or I.
