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Obamacare is Unconstitutional – Part 2

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So, let’s see, towards the end of last year both houses of Congress passed a form of health care reform despite close to sixty percent of Americans being opposed to both bills. A few weeks later, the usually liberal voters of Massachusetts in a true sign that the polls were not lying about America’s opposition to Obamacare, essentially replaced the late Godfather of the Socialized Medicine Movement in America Ted Kennedy with a candidate that vowed to defeat the president’s far-left scheme for health care. Scott Brown’s victory took away the Democrats’ 60th seat in the Senate thus rendering them impotent in overcoming a Republican filibuster that would certainly have been employed to derail Pelosi, Reid, and Obama’s dream of European style health care in the U.S. There was utter panic in Washington. Schemes were devised to thwart the will of the people and those evil Republican fat-cats. We heard talk of deem and scheme and reconciliation being used to circumvent the Constitutional mandate of an up or down vote. Eventually, Nancy Pelosi devised a way for the House to approve the Senate bill with amendments that the Senate could vote on through reconciliation sparing them the need for 60 votes to end debate.

It seemed the Democrats were able to do the impossible — pass an unpopular bill that has eluded them for close to 100 years without any Republican support and 22 Democratic defectors. And they did it without even violating the Constitution. Ah, but not so fast. Article 1 Section 7 of the Constitution reads, “All bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.” The Senate bill which has revenue raising provisions in it, namely a new Medicare payroll tax, an excise tax on “Cadillac insurance plans, and a tanning tax, did not originate in the House as the Constitution requires. Thus, Obamacare is unconstitutional. Those compassionate politicians really ought to read the fine print before they do us anymore favors.

Now, I am not naïve enough to believe that any court would invalidate the new health care legislation based on the above Constitutional violation. That is where we find ourselves in 21st Century America — with a federal government that would rather pull a fast one than live by the rule of law. As I have argued earlier and will argue again here the whole piece of legislation that has come to be called Obamacare is unconstitutional on many levels. Under Article 1 Section 8 health care or anything close is not one of the enumerated powers of Congress. Anything that is not an enumerated power of Congress is left to the states under the 10th Amendment.

Of course, liberal interpreters of the Constitution always ignore what they don’t like and cite those clauses that they say gives Congress the ability to do whatever. For the sake of not being redundant, we will move on from our discussion of the “general welfare” and “necessary and proper” clauses that we had last week and instead focus on a another clause big government types like to misinterpret – the interstate commerce clause.

This clause also found in Article 1 Section 8 simply says, the Congress shall have power “To regulate commerce with foreign nations, and among the several states, and with the Indian tribes…” It was included in the Constitution in reaction to the failure of the Articles of Confederation in preventing states from erecting protectionist trade barriers against each other. Essentially, the clause gave Congress the power to ensure a free trade zone between all the states. No less than the Father of the Constitution, James Madison confirmed this in an 1829 correspondence with Virginia politician Joseph C. Cabell:

“Yet it is very certain that it grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government, in which alone, however, the remedial power could be lodged.”

The interstate commerce clause did not give Congress the power to enact minimum wage laws, worker safety regulations, Social Security, health care legislation, or the thousands of other statues Congress has enacted through the years. As a matter of fact, Madison also confirmed this in Federalist Paper 45,

“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”

The above text blows a huge hole in the argument of statists that the Constitution is a liberal document that gives wide discretion to Congress to provide for us from cradle to grave. According to Madison, whose fingerprints are all over the document, no far-reaching powers were ever given to Congress. In essence, Congress was given jurisdiction over “war, peace, negotiation, and foreign commerce” while the states had jurisdiction over “the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.” Under this definition, health care falls under the domain of the states. Of course, that is where it has been until Obamacare.

I understand that through the history of this country the Congress has taken great liberties (no pun intended) with regard to passing unconstitutional acts and the Supreme Court has let it. But, Congress has never required Americans to buy a product or service from a private provider. The Court must strike this provision of Obamacare down otherwise Congress’ power would become virtually limitless. Getting away with violating Article 1 Section 7 is bad enough, but if the Court allows Congress to get away with forcing Americans to purchase a product ultimately at the end of a gun barrel, then we are further along the road to a fascist state then I even imagined.

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About Kenn Jacobine

  • Baronius

    Excellent explanation, Kenn.

  • “Now, I am not naïve enough to believe that any court would invalidate the new health care legislation based on the above Constitutional violation.”

    Even though you apparently are naïve enough to believe that an unconstitutional provision in a bill somehow invalidates the entire bill.

  • John Wilson

    Who cares about ‘constitutional’?

    Huge segments of the Bush administration were unconstitutional and the Constitution hawks stood silent.

    The SCOTUS decision on campaign bribery was totally opposed to Stare Decisis, Strict Constructionism and Originalism.

    You can’t turn the “constitutional” test off and on like that without doing permanent damage.

  • Baronius

    John, can you flesh out that comment?

  • Dr. D, it’s hardly one unconstitutional provision. Kenn just chooses to focus on one in this excellent essay.

    What I’m more concerned about is the fundamental human rights violations in the bill, which really transcend the constitution.

    And JW – i see you’re a fan of Phil Hare and also subscribe to the fallacy that the wrongs of one administration excuse the wrongs of another. Despicable.


  • STM

    The constitution was written by a bunch of old farts 200 years ago who were trying to prop up and cement their own wealth, power and influence … a very human reason to crap on about tyranny, liberty, etc.

    It’s not the holy grail, nor a gift from God. It’s already been changed, and changed again and there have been plenty of times when legislation or the acts of US administrations have been “unconstitutional”.

  • Unfortunately, STM’s comment #6 — whether intended seriously or in jest — seems to be the nascent majority view. The commerce clause has been distended beyond recognition; it has become FUBAR, and I guess that’s the way it going to be, at least until January of 2011.

    No, the U.S. Constitution is neither a gift from God nor the Holy Grail. As a rara avis, an Agnostic Conservative, I don’t put much stock in either of the latter. I do, however, consider the Constitution to establish the best parameters for governance I have thus far found. It provides for amendment, and that that is a difficult process strikes me as good rather than bad. We tend to be impetuous, and that has always been the case. A bit of delay in changing the Constitution to produce instant gratification does not ill serve the nation.

    An attempt to “amend” the Constitution by violating it strikes me as a species of rape.


  • Dave,

    No, Kenn is arguing that certain provisions of the healthcare bill are unconstitutional and that therefore Obamacare in its entirety is unconstitutional. Considering the size and scope of the bill that’s a flimsy argument, to put it mildly.

  • If, say the Supreme Court decided to use Kenn’s arguments to knock down the health reform legislation, then it should, by default, follow suit and knock down ALL legislation going back to whenever – probably back to around 1800 or so.

    I assume from the venomous hyperbole Kenn uses in his opening paragraph, that such action would suit him to a “T.” No doubt this country would function far more efficiently if the Federal government were to be set back to its early 19th century parameters. Certainly, all of the capitalist purists would love it.

    And of course all you state’s rights advocates would be in 7th heaven as each state could then be run by local good old boys as their private little fiefdoms. The mighty states would have their god given rights. Don’t know about the people, though. Aw, but who gives a rat’s ass, right?

    Of course, large corporations couldn’t even exist and interstate commerce would be a nightmarish joke. But never mind that. What we need is the pre-eminence of state’s rights and a totally hamstrung, toothless Federal government.

    Unfortunately, we would probably be invaded and conquered by, say the likes of Uruguay in about 3 days.

    You know what Kenn. I bet there are people in DC who know a whole lot more about the Constitution and the courts than you or I, or anyone else here at BC, do.


  • Kenn Jacobine


    You have a short memory. Last week I said if the Court struck down the mandatory purchase provision of the bill the rest of the law would wither because there goes the financing aspect of it. No, I realize that the Court can strike all or parts of laws down. Just that when big government types are cornered and don’t have an intelligent response to an argument they have to resort to name calling or try to make the opposition out to be idiots.

    The Constitution is important because it says it is the “Supreme Law of the land” – more important than the income tax code, Social Security or any other scheme Congress can devise. It must be followed or the whole government is illegitimate. Which it is. If you don’t like it then you can change it through the amendment process. But of course that requires work which is something the big government types don’t think their constituents can do – so it is much easier to steal my money to finance all the fantasies that the statists can dream up.

  • Kenn, the fact remains that you’re trying to use the Constitution as a ‘gotcha’. All the interstate commerce clause says is that Congress has the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes”. That’s it. It doesn’t say that Congress can introduce a federal healthcare scheme; it also doesn’t say that it can’t.

    Neither you nor I are constitutional lawyers, and no doubt some of the fallout from the legislation will be absorbed by those who are. You’ve already poisoned the well by insisting that if they rule that Obamacare is constitutional, they’ll do so only because they’re too timid not to in the present ‘statist’ climate. I reckon it’ll be because they’re more likely to have a better foothold in legal and political reality then you seem to.

  • STM

    Dan, I was only half joking. I’m glad you get me though. But I do believe that if Americans didn’t spend so much time peering into their navels or up their own backsides looking for reasons to do stuff – or not to do stuff, in this case – the place wouldn’t be going down the pan as we speak. I understand that’s the democratic process and everyone has the right to agree or dosagree but to me it looks like it’s driving the political process down the road to nowhere all the time.

    I find it bizarre that the can-do nation, the country I was brought up to believe could come up with an answer to just about anything either by simply doing it or working around the edges until it (collectively) found a way, has sunk into this morass – and especially about such a simple non-issue as healthcare.

    We even had a bloke on radio here from the US a week or so back saying that Obamacare was unconstitutional because you can’t force people to buy anything.

    Which is plainly wrong. There is just so much bollocks out there in regard to this. If people want to drive on the roads in the US, they have to take out insurance.

    I notice no one challenges those kinds of state laws, and in reality, they are very little different.

    It’s user pays with a built-in responsibility clause.

    And one thing it’s not is “socialism”.

    In drawing down the idea of the constitution being the supreme law of the land, it’s also worth noting that a 21st century nation of nearly 300 million will be very unlikely to function on that alone unless it is propped up by a whole raft of other laws and legislation that allows it to operate in very different environment to that of 230 years ago.

    I predict you’ll go down the same path as us on this issue.

    In five years time, no one will give a rat’s. And I’ll bet London to a brick that plenty of those who opposed it will be wondering a bit down the track why it wasn’t done earlier.

    Doc’s right, of course. Gun laws are a classic example … you only have to look slightly askance at gun cabinet in t he US and it’s the end of the world as we know it. Clearly, if looked at in the cold, hard light of day, that kind of thinking is an extreme

    Plainly, when you are seeking to end many of the kinds of social problems that beset the US and lead to inequities like the most number of prison inmates per capita of any developed nation, something has to be done to make it a kinder, gentler place.

    It’s all very well for people to bang on about personal responsibility, but we all know the truth: a kid from a rich white family going to an ivy league college has all the opportunity. And if you are caught up in a cycle of poverty and despair, your chances of getting out of it are next to zero (which kind of makes a mockery of some of the fine intentions of the US constitution, particularly the one that says all men are born equal).

    If you really believe that stuff, it’s incumbent upon everyone to make that stuff reality, instead of lip service.

    Because 200 years is a long time to be paying lip service to something that doesn’t translate to reality.

    As I’ve said before and firmly believe, next time someone decides to start a country on the false premise that they are shrugging off a tyrant whose own democracy they use to achieve that goal, and decide in the process to bang on about life, liberty, the pursuit of happiness, all men being born equal and the rest of it, it’d be a f..king great idea if someone remembered to tell the blackfellas in the shed down the back at the same time.

  • Kenn Jacobine

    Dr. D,

    Does Madison’s quote mean anything to you? He also said the Constitution was merely a “parchment barrier” to tyranny. That we needed to elect good people to preserve our liberties. Am I a constitutional lawyer? No. But we don’t need a lawyer to interpret the easy language of the Constitution for us. Besides you assume that all constitutional lawyers agree with a liberal interpretation of the document. Remember Judge Robert Bork? Judges do not adhere to the pure constitutional doctrines, because they are appointed by the politicians that they are beholden to. That is how Bush won in 2000, and why Bork was defeated in the 80s. He threatened to interpret the Constitution accurately and upset the whole apple cart.

  • cannonshop

    #14 Joel, the nation isn’t A “Christian” nation no matter HOW hard the Falwellites pimp that notion, and the U.S. constitution itself owes a lot to both Rome, and the Five Nations (natives here before white people ever thought of crossing the water from europe.)

    It’s a product of the Age of Reason, a period from the end of the Renaissance to the beginning of the so-called “Romantic” age, in which rationality, science, and logic took precedence over Faith, Authority, and Blind Traditionalism.

    Our ‘supreme law of the land’ was drafted by men who could not (and would not) agree to a State or National church (we’re one of the first countries to establish that EARLY in our development with the adoption of the 1st Amendment.) We’re also one of the first organized nations post Rome to specifically forbid government persecution of Jews, Heathens, and non-Christians.

    The founders understood that when you link God to Government, you cheapen both God, and Government into a tool of oppression and Tyranny-a lesson learned from the English civil war of the sixteen hundereds, and the thirty-years’ war in the same century-a lesson that much of Europe still hadn’t digested prior to the start of the 20th Century (and portions, such as the former Yugoslavia, still haven’t fully grasped!)

    We are a Nation with Christians, where you can practice any faith that doesn’t demand human sacrifice or that the faithful commit crimes against their non-co-religionist neighbours, but we are no more a “Christian” nation, than we are a Jewish Nation, or a Pagan Nation, or an Atheist Nation.

    You are free to worship, or to NOT worship, as you choose, and many of the codes that apply to churches reflect that basic idea-Taxation of religion, after all, makes Religion a matter of The State, and when that happens, inevitably some religious types will gain real temporal power over others and abuse it.

    You can’t regulate without creating ‘winners’ and ‘losers’, and while you might think you’ll always be in the winning team, that’s historically not so.

  • Mark

    Seems to me that if the original bill passed by the House was in any way a bill ‘for raising revenue’, then this accusation of unconstitutionality fails.

  • “He threatened to interpret the Constitution accurately . . .”

    “Accurately” simply means in a way with which Kenn would agree.

  • Baronius

    Dread, that’s a lazy argument. The 9th and 10th Amendments say that whatever isn’t specifically allowed is forbidden.

  • zingzing

    kenn: “But we don’t need a lawyer to interpret the easy language of the Constitution for us.”

    anyone can interpret it, yes. but it’s easy to mess it up. and i’m pretty sure that having a lawyer well-versed in the thing could reign you in when you threaten to jump off the deep end.

  • zingzing

    baronius: “The 9th and 10th Amendments say that whatever isn’t specifically allowed is forbidden.”

    hmm. well then, baronius, think about everything that the federal government does that is unconstitutional, and be ready to give it all up.

  • STM

    Baron, the 9th amendment says no such thing.

    It says: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

    What it means is: don’t take what is written in the constitution of the United States to be the whole law of the land.

    It’s very clear, the way it is written … there is no wriggle room on it, even though I’ve seen some bizarre stuff written about it.

    It’s there for a reason: to stop people believing that because something is not written in the constitition, it yjerefore doesn’t exist now – or in the future – as a law or a right.

    Even though it’s part of the Bill of Rights, I’ve seen that group of Americans I’ll call “constitutionalists” – folks like Kenn, with all due respect to his views – conveniently gloss over it or try to twist its meaning when they are cornered, despite the fact they’ll remind you about every other aspect of the constitution – as originally written by the framers – when those parts of it suit their argument.

    One could very easily argue that in the 21st century, even though it didn’t exist 200 years ago, the right not to go bankrupt because you’ve become ill is a pretty good right and is covered by the 9th amendment as written.

    As is the right not to have lunatics taking potshots at you while you’re on your way to work or sitting in a classroom or sitting with your family in a hamburger joint.

  • STM

    The 10th amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

    Note those last few words … in other words, the people (through their elected representatives) can make decisions in relation to powers not delegated to the United States – including, one would have to assume, whether to delegate power on certain issues to the United States.

    Voila … there’s yer healthcare bill.

  • #21 – excellent point. Don’t count, however, on it being misinterpreted every which way.

  • Double negative: but you get the meaning.

  • Baronius

    STM, your take on the 10th is one I’ve never seen before. At first glance it seems absurd, but I’ll have to mull it over some.

  • Kenn Jacobine


    Paying auto insurance is a state issue. You need to buy it because state and local authorities own and maintain the roads. If you don’t drive you don’t need to buy it. But, just by virtue of being alive you now have to buy health insurance. Besides where is your liberal indignation? You berate the health insurers as greedy and evil, but support a federal law forcing all Americans to buy their product?

  • STM

    Baron: These are not entirely my observations, although I have put some spin on that post regarding the 10th amendment; they have been kicked around for a long time and they are mostly based on those of people more scholary than me and who are in a position, unlike me, to claim they are well versed on what the constitution actually means in law.

    My interest stems purely from an interest in politics and rule of law as it relates to the anglosphere, starting now and going back to, say, the Roman, Saxon and Viking invasions of Britain.

    That view of the 9th amendment particularly is a commonly accepted one among constitutional lawyers. Tellingly, it is the only one of the original amendments that had no relation, or predecssor, in English law. Possibly for that reason, but not that alone, the courts find rulings on it quite difficult and will often try to draw inspiration elsewhere when asked to make rulings on it. It is also deliberately vague, as is the 10th.

    Madison opposed a Bill of Rights in its entirety, arguing (as the framers of our constitution did, and succesfully) that those rights already existed in law, sometimes by convention, and that enumerating them could be dangerous for the very reasons we see in such arguments as the one presented by this story and the subsequent thread.

    He drafted the 9th amendment to guard against that, saying: “The exceptions [to power] here or elsewhere in the constitution made in favour of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people, or as to enlarge the powers delegated by the constitution; but either as actual limitations on such powers, or as inserted merely for greater caution.”

    Rewritten slightly by his mates, those clever old farts, of course, but it’s mostly his.

    One of the most important judgments in regard to it (Griswold) argues that the framers intended those unenumerated rights to be protected by the judiciary in particular with the same level of diligence as they would to protect the enumerated rights contained in the constitution. However, the courts have had to pick through some bizarre requests for recognition of a whole host of “rights” people have thought unenumerated, and decide which ones are fair dinkum and which aren’t.

    Neverthless, cleverly, they [the framers] were covering all bases and this was one of the ways they did so. Had they not left the door open, the US might have remained in the coonskin-hat era in terms of its capacity to make and enact laws. This is the problem: Not all of what was right 200 years ago is right today, and vice-versa. Some of the framers are on record as saying so much, hoping that the constitution might be changed as future generations saw fit because they understood implicitly that they couldn’t have got everything right and trusted the citizens of a future US to do the right thing according to the will of the people.

    And if you believe in the constitution, and with it the right of majority elected governments to govern as the legitimately elected representatives of the people, you believe in all of it or none of it.

    It’s the old story: you can’t be a little bit pregnant.

    It’s also a classic example of why the framers of the constitution wanted Americans NOT to regard the document as the holy grail, but the work of ordinary, well-intentioned men.

  • Kenn Jacobine


    The Bill of Rights was required to get anti-federalist support for ratifying the Constitution. It is a set of protections against government tyranny. Thus your argument that Nine and Ten open the floodgates for Congressional action doesn’t jive.

    Amendment 10 doesn’t mean just because the people want something unconstitutional they can send representatives to Washington to get it. It means that what is not delegated (expressly written) to Congress is reserved to the States, which in those times were sovereign entities or to the people on the ground in those states (like the right to posess a gun).

    As a matter of fact, since there is no provision for states leaving the union (only entering it) these two amendments give the right to states to secede.

  • STM

    Kenn: “You berate the health insurers as greedy and evil”.

    No I don’t, nowhere have I said that; I have private health insurance myself, on top of paying a good whack of tax to the Australian government so that my fellow citizens who are not as well-off as me can have the same kind of care under a “free system”. But some of the practices I know about in the US ARE beyond the pale.

    Also, mate, I can only assume that you don’t read my posts except the bits that annoy you. Either that, or you just have selective eyeballs.

    I did say earlier that buying motor vehicle insurance is a state issue, but that no one seems to oppose many of these state laws that don’t differ that much to what the federal government is doing is doing in relation to making people take out medical insurance.

    But I think you’ll find the lawyers have had a good look at it, and have decided it’s not unconstitutuional … no matter what you might think from your armchair in the Emirates.

    Of course, it’s your right to oppose it. But that doesn’t mean only your view is correct.

  • STM

    Kenn: “Besides where is your liberal indignation”.

    I’m not a liberal. Don’t judge me on the american cultural experience. It’s too insular.

    My views are a lot to the left on many things compared to the kind of namby-pamby liberal chardonnay socialists who infest the political process in the US, and on others they would be far, far to the right of what American liberals might believe … like my support for the (poorly named) war on terror. I’m also a global warming sceptic.

    So no mate, I’m not a “liberal”.

    And while your writing above on the 9th and 10th amendments might support your political view and are likely a product of them, the only thing that counts is how they stack up at law.

  • I posted this elsewhere earlier, but just to add to the discussion here — non-compliers with the individual mandate will be incentivized…but not criminalized. Here is the language from the bill.

    In the case of any failure by a taxpayer to timely pay any penalty imposed by this section, such taxpayer shall not be subject to any criminal prosecution or penalty with respect to such failure.

    No one’s going to jail. The mandate is more like a firm suggestion, with no real enforcement in place.

  • STM

    And yes, I’m well aware of the anti-federalists and the position of their opponents, which is why I’ve written above about Madison and his very well-documented views on inserting the 9th amendment to the Bill of Rights.

    And given your obvious political bent Kenn(what, possibly marginally to the left of Genghis Khan but only when he was in a good mood?), it’s hardly surprising that you’d focus mostly on the prescription anti-federalist view in any discussion regarding the constitution.

    Like I say, just because you and your mates think it’s right it doesn’t mean it is.

  • Since health insurance appears to be (for the time being) an indispensable element of health care – which, for the present moment, isn’t free – it stands to reason that all those who aren’t insured and cannot pay the full cost of whatever medical attention they may require, consititue a drain on society.

    It’s only prudent, therefore, that a society should require of all its members to have health insurance (if they can afford it), or at least post of bond of financial responsibility (which is one practice in the automobile insurance business).

    If one wants to defeat the notion of mandates – never mind the bogus constitutionality issue – one should strike at the very core: namely, argue that universal healthcare is a misguided idea and that providing it should not be construed as defining any kind of (societal) obligation.

  • STM

    Handy: “No one’s going to jail. The mandate is more like a firm suggestion, with no real enforcement in place”.

    Like how they make us get our names ticked off here at the polling station in the hope that we’ll actually vote, and threaten to fine us $75 if we don’t. I don’t know anyone who’s actually paid that.

    So you don’t get forced to attend a polling place.

    We don’t get forced to buy health insurance, you do.

    See, everything’s relative.

  • John Wilson

    “John, can you flesh out that comment?”

    Why? You’re old enough to have been around during the Bush regime.

  • It makes sense to me to force people to vote. Or even to “force” them to, wink wink. Our participation rates in the US are disgraceful.

    At any rate, if the IRS is really only “forcing” people to buy health insurance or pay a fine, wink wink, then does that calm down our friends on the right at all?

  • STM

    And Kenn, as the framers of constitution proved, the rights of men can only be protected at law by the collective good intent of other men who have had the foresight to make laws.

    They can’t be protected by the backing away from that, as many libertarians and Republicans seem to believe.

    In any backing away from that, the only right you protect is the right to be selfish and oblivious to the needs of others around you.

    Which is kind of where these arguments you present fall flat on their arse when you use the constitution as the basis of arguing your case.

  • STM

    Handy, voting isn’t only a right. It’s the responsibility of every citizen.

    You don’t vote, you don’t the right to jump up and down and tell the government what you think, especially when you think it stinks.

    I can’t see Americans ever accepting that idea, though. Although I never thought you’d have a black president in my lifetime, or the beginnings of a fair and just healthcare policy.

    So I could be wrong, and it wouldn’t be the first time, just quietly.

  • It would be nice, though, if it were possible to keep the IRS out of the picture.

    Any suggestions?

  • “It makes sense to me to force people to vote.”

    How would you go about implementing that? And besides, you’re operating with an assumption that each and everyone must think that voting matters, that it makes a difference.

    That is more anti-libertarian to me than any kind of mandate. (Of course, I understand the statement as expression of your desire, nothing more.)

  • The health bill is written as a tax bill, Roger. That’s one reason it passed the way it did [through reconciliation in the Senate].

    The penalty for non-compliance is tacked onto your income tax.

    By the way, most people aren’t affected by this: they get insurance through their employer, or Medicare, or Medicaid, or their parents.

    Most of the others will go ahead and buy the required coverage [including a lot of very grateful people who can’t get coverage now].

    And most of those remaining will just pay the damn fine and be done with it.

    So all this huffing and puffing is over the few who will refuse to comply or pay. They may well be able to do so without further penalty.

    Is this worth all the drama?

    [Of course it is, because the right see it as their only remaining possibility to undo this law.

    They will fail.]

  • Kenn Jacobine

    We have violated the Constitution to the tune of about $60 trillion in debt – this includes current debt and future obligations. This is my biggest concern but no one seems to care how those sums are going to be repaid.

  • OK, I understand it now, as well as one of the earlier comments in that it identified the bill as a revenue-raising measure.

  • “By the way, most people aren’t affected by this: they get insurance through their employer, or Medicare, or Medicaid, or their parents.”

    Exectly my point. Im most cases, it will be treated as just another deduction, either from your paystub or whatever entitlement a person is getting.

  • Baronius

    John – Two possibilities. One, I was trying to engage you and thought that we could have an interesting discussion despite having different viewpoints. Two, your comment was infantile and needed a boost to reach the big-boy table. I’m not sure which choice best characterizes my question. Have a pleasant day!

  • STM

    Kenn: “We have violated the Constitution to the tune of about $60 trillion in debt”.

    The constitution is a piece of paper … or more accurately, a whole lot of pieces of paper tacked together.

    It doesn’t mind being $60 trillion in debt, because it can’t go: “Oh shit, I’m $60 trillion in debt.”

    It has no ability to think. It just sits there, under a case.

    Ask the constitution what it thinks, and it’ll just stare out you blankly.

    It’s what the majority of americans think that counts.

  • Had the bill passed with the public option, there would be no mandate to purchase insurance from a private concern. There are any number of things regarding the legislation that leaves a lot to be desired. Yet, it is far better than nothing. It provides a substantive place to start. The entire package will be tweaked to smithereens over the next 4 years or so when many of the provisions are scheduled to kick in.

    Frankly, I don’t give a rat’s ass about state’s rights. A state is simply another governmental entity. States are no more nor no less righteous than the Fed. Leaving too much power in the hands of the states often has the effect of rendering one a law abiding citizen in one state and a criminal in another.

    We are nothing if not a mobile society. It is largely irrelevant whether someone is in Missouri or California. Most business is carried on at at least a national if not an international level. People move about this country in droves – being transfered hither and yon by their corporate employers. Even many so called “small businesses” rely on regional, national and even international markets in some way or other.

    If this is supposedly one country, the laws that pertain to our day to day lives should not be left to what often amounts to the insular and parochial whims of state legislatures. It stands to reason that if significantly more power were placed in the hands of the states, they would be even more prone to abuse that power.

    Look at that puke who runs the non-union WVA coal mines. He has almost unlimited power within the state. Anyone who opposes him or his interests is soon out on his or her butt, or perhaps worse. If any real improvements are to be made there for the safety of the miners, it will likely have to come from the Federal level. The state is totally unable to curtail this asshole.

    Where would this nation be today regarding civil rights issues had the Feds not stepped in back in the 60s? Jim Crowe would likely still be prevelant throughout much of the south and perhaps elsewhere.

    Our health care concerns should NOT be under the purview of individual states. In this day and age, only national oversite has the ability to fairly and evenly provide care for a large, mobile populace.

  • Baronius

    Handy – The IRS Commissioner disagrees with you. He says that they’ll be able to withhold tax refunds from those that don’t comply with the health care mandate.

  • Well, John Miller had referred to that kind of violation just a while ago as “rape.”

    The question remains: what is the rape of the spirit or the letter.

  • Withholding one’s tax refund is not the same as incarcerating them.

  • cannonshop

    #22 “…or the people.” does not refer elected representatives-what the elected reps can do is pretty thoroughly discussed in the articles and main body of the Constitution, with express limits on those powers described in the Amendments.

    It refers to individual citizens. Interpreted as you’ve just done, the collective can do pretty much whatever it likes.

    Now, the collective view IS popular among those that want to enforce their will on others, or abrogate the rights of others, usually in the cosmetic name of doing good-but the meaning, based on the rest of the bill of rights and the federalist papers discussing the actual reasoning, is pretty clear: “The People” is not the Government, it’s the Citizens.

  • cannonshop

    #67 Baritone, the Feds stepped in as a function of their proper role, even in a constructionist sense, in eliminating Jim Crow-this is why it was the “CIVIL RIGHTS” movement-their CIVIL RIGHTS were being violated. Civil Rights=the rights you have as a CITIZEN.

    There is no right to make a profit selling insurance to someone who doesn’t want it.

  • “It’s what the majority of americans think that counts.”

    and most of them will just stare out at you blankly as well.

  • “There is no right to make a profit selling insurance to someone who doesn’t want it.”

    Are you suggesting it’s being done for profit?

    As to the reasoning behind “the mandate,” see #33.

  • Kenn Jacobine


    According to past polls and current ones the majority of Americans don’t want Obamacare.

  • “. . . and most of them will just stare out at you blankly as well.”

    I think you’re missing the irony, Kenn.

  • #48-49
    That’s right…no criminal enforcement. Doesn’t mean there will be no effort to collect the fees.

    A number of tea partiers and their enablers are whipping up the rumors of “patriots” being rounded up and sent to jail.

    There seems to be no limit to the dumb rhetoric employed in this “debate.”

  • Baronius

    Handy, I agree that on a practical level it won’t make much difference. I like to think I’m a patriot, but I wouldn’t drop my health insurance to prove a point. But a governmental mandate is unconstitutional.

  • Here is a view to the contrary lest anyone think that Baronius’s legal opinion ought to remain unchallenged.

  • cannonshop

    #57 Handy, are you familiar with the so-called Tariffs of Abomination in the 1850’s? They were originally passed in the 1830s with a stated lack of interest in enforcing them-the government of the Buchanan years changed its collective mind-the Tariffs were one of the main contributing factors in the Civil War (Just behind Slavery.)

    TODAY it might lack an enforcement mechanism-but that doesn’t mean it will lack one TOMORROW.

  • And here’s a legal opinion on the very same subject – for those of legal mind and temperament.

    So perhaps Baronius, Kenn or Dan Miller, the legal scholars that they are, should try to pierce through the argument and find the holes they’re after.

    But please, gentlemen, nothing but legal rigor and razor-sharp logic will do. Otherwise, please leave this discussion to the professionals.

  • Baronius

    Kenn anticipated the analysis in Roger’s articles and answered them well.

  • In that case, hail Kenn, home-grown talent makes good.

    I’m already foreseeing the next step – submitting Kenn’s nomination for the Supreme Court Justice.

    Let all conservatives rejoice.

  • We could go around in circles for a long time:

    “Mandate’s unconstitutional.”

    “No it’s not.”

    “Yes it is.”

    “Bite me.” etc.

    [and in fact we have been]

    But because this is a tax regulation, it is far more likely to stand. You can regard this as sneaky or clever or whatever on the part of the Dems. But it’s unlikely to be found unconstitutional to levy a tax penalty on someone who doesn’t provide proof of insurance.

    Has the Court ever found part of the revenue code unconstitutional, at least since there has been an income tax?

  • Damien

    Forcing a person to buy something that they dont need or want is mob type activity. Our government has become a mob a long time ago and it’s getting worse. Politicians can say whatever to get elected, and then are under no obligation whatsoever to do what they promised. This health care reform is a reform in favor of big business, not the people. If I am forced to buy from the mob in this way I will be looking for ways to settle my affairs and leave this country.

  • I wonder which of our fire-breathing right-wingers and libertarians on here would even be affected by this bill.

    Which of you is uninsured now?

    And of those, which of you prefer to stay uninsured?

    And if you are in an auto accident or get cancer, do you believe you should get care? From whom? Paid for how?

    And if you see yourself as standing up for some hypothetical other person’s “right” to defiantly remain uninsured, how do you justify paying for that person’s emergency care?

    [This was Mitt Romney’s argument, by the way, for insurance mandates, before he realized it’s no longer politically correct for GOP presidential hopefuls to say that.]

    It’s easy to throw around dumb revolution/patriot/”anti-fascist rhetoric.

    Now back it up.

  • “And if you see yourself as standing up for some hypothetical other person’s “right” to defiantly remain uninsured, how do you justify paying for that person’s emergency care?”

    Exactly, Handy. They’re all standing for some hypothetical person’s rights.

    There is a noble term for this, of course – standing for principles.

  • Indeed, there is no difference, in essence, between this legislation and the Social Security Act.

    In the latter case, there is a forced deduction (savings) so as to prevent people from becoming a burden to society when they’re no longer productive and cannot fend for themselves. In the former instance, an illness can occur at any time in a person’s life, prior to their reaching the retirement age.

    Consequently, if Obamacare is unconstitutional, so is Social Security legislation.

    Cry your hearts out.

  • Baronius

    Handy, a lot of good ideas are unconstitutional, and a lot of bad ideas are constitutional. I think it’s worth considering both the quality and the constituionality of something before making it into law. On another thread, Dave has a clip of a congressman saying that he doesn’t care about the Constitution. Obviously, the guy wasn’t saying exactly what he meant, but it’s reasonable to assume that he meant something like “I’m more worried about helping someone out of a crisis than I am with a narrow constitutionality”. If you think that’s fair, would you agree with that proposition?

  • Just because you and Kenn have declared something unconstitutional does not, obviously, make it so — and a great many legal experts have a different opinion.

    I believe in making laws that are constitutional. So no, I don’t agree with your ‘proposition.’

    Honorable men have disagreed for many many years about what is and is not allowed under our constitution. I do not find this article even slightly convincing. It’s a perfectly good law.

  • Hmmmmmm………
    If an article is motivating enough to garner sixty-nine comments, it’s disappointing that it only gets 7 FB shares, 4 diggs, and 5 retweets.
    I see a lot of familiar names in the comments and it seems BC is a popular venue for conversations, opinions and arguments. Let’s support the venue that provides us all such enjoyment. Share it! Digg it! Re-tweet it!

  • STM

    And of course, poor grammar can lead to all kinds of problems in the writing of these kinds of documents.

    Example: The real problem with the second amendment is that it appears to contain a dangling participle, thus rendering it open to all kinds of interpretations.

    See, the founding fathers weren’t perfect. I’m surprised no bastard proof-read the bloody thing, though, before it went to press.

  • Kenn Jacobine


    Most of everyone’s political philosophy is dependent on life experiences. I have never been without health coverage even during the most down and out times in my life. That is because I don’t buy wants before needs like a lot of people do. I resent paying for someone else’s lifestyle because they are incapable of taking care of themselves. I believe most conservatives and libertarians feel the same way. I know of several libertarians who in the past have not had health coverage and you know what they didn’t expect anybody to take care of them. So, I believe most conservatives and libertarians take care of themselves and their families and that is why we believe what we do. It is just not that hard to succeed in America to some decent standard of living. The rest can get their health care from state run programs. We don’t need 15,000 more IRS agents, trillions in new spending, and fascist mandates to purchase insurance to fix the system. Besides where is your liberal indignation when it comes to mandating that all Americans buy the product of those greedy, evil insurance companies?

  • Besides where is your liberal indignation when it comes to mandating that all Americans buy the product of those greedy, evil insurance companies?

    Handy has stated several times on various threads that he disagrees with the mandate.

  • And in fact, the level-headed concern he voices about this aspect of the healthcare bill stands in sharp contrast to your near-hysterical assertions that because you’ve detected a few unconstitutional provisions, the entirety of the legislation should be struck down.

  • To clarify:

    I think making the mandate officially optional would short-circuit a lot of the political noise, exemplified by this article, that we will have to endure over the next few months and years.

    I also pointed out that the enforcement of the mandate will basically be a tax surcharge carrying no criminal penalty. Not very scary!

    Thus my infatuation with the “optional” mandate has faded. But it still makes sense: If someone like Kenn or Cannonshop agreed to do without government subsidies for insurance for five years, then they could opt out of the insurance requirement. But they couldn’t come crying to Uncle Sam for help until the five years were up.

    This might help clarify to US citizens what the advantages and disadvantages of the new system are, and might actually increase participation in the long run.

    And PS to Kenn — your arguments would be a lot less eye-rollingly ridiculous if you would dial back the use of the word “fascist” and stop repeating the falsehood of “trillions” in new spending and debt.

  • Sorry, should have finished the thought:

    I’m concerned about the disproportionate effects political opposition to the mandate may cause — but I nonetheless don’t personally oppose it.

    I don’t think it’s unlawful or outrageous, and certainly not “fascist.” And it will accomplish a lot of good, by broadening the risk pool and insuring the uninsured.

  • fascism = state capitalism

    The government forcing you to purchase the product of a private company for the public “good” is fascism. The government bailing out select companies and even owning parts of some of them for the public “good” is fascism.

    In terms of the “falsehood” about trillions in new spending and debt click on my name for an explanation. By the way, running up huge debts for the public “good”- also fascism (Hitler and Mussolini did it)

  • zingzing

    fuck off with the fascism bullshit. totally overplaying your hand.

  • It’s only natural.

    Since the “unconstitutional” ploy has faded, Kenn is merely raising the ante.

  • zingzing

    yeah, raising the ante by dumbing it down to ridiculous hyperbole… good strategy.

  • You’ve missed a better one – the birther discussion of Nalle’s “Executive Order” thread.

  • The government isn’t forcing you to buy a product. It’s giving you an incentive to do so. If you don’t, just pay a fine which will in most cases cost far less than the insurance.

    The real question is why anyone would refuse to buy health insurance. Kenn and Baronius have already said they are insured and will stay that way. Note that the ‘mandate’ portion of the bill is titled “Individual Responsibility.”

    You may ask, why should the rest of us pay to subsidize insurance premiums for those who can’t afford them. Why don’t you ask instead: why should the rest of us pay for healthcare for people who are uninsured by choice? That happens every day.

    So this is all a game of words. Fantasy baseball for politics nerds.

  • “You may ask, why should the rest of us pay to subsidize insurance premiums for those who can’t afford them. Why don’t you ask instead: why should the rest of us pay for healthcare for people who are uninsured by choice?”

    Exactly. That’s what I call turning the tables.

  • Kenn Jacobine

    “Note that the ‘mandate’ portion of the bill is titled “Individual Responsibility.”

    That is as big a misnomer as “Patriot Act”. Individual responsibility to me is having a choice to take care of yourself not being threatened at the end of a gun to do it. Being forced to buy a private good or face confiscation by the IRS is un-American, unconstitutional, fascistic, and has nothing to do with personal responsibility.

  • You completely ignored my point, Kenn.

    People who deliberately refuse to buy health insurance still require health care for emergencies or major illnesses. Someone has to provide that care and pay for it.

    People refusing to be insured [don’t assume they are all ‘principled’ libertarians like you — anyway, after all, you do have insurance] are being irresponsible.

    I assume you ignore the point because it pokes holes in your argument, and you have no answer for it.

  • Perhaps you should tend to a similar article on the subject, Kenn, as per link, including the comments.

    I would be interested in your take on it.

  • In fact, I find it interesting that Baronius too, your brother-in-arms, has been conspicuously silent on the subject since a contrary point of view was posted (except for the usual pat on the back to Dan Miller).

  • John Wilson

    Why should American taxpayers be forced to pay taxes to build Universities for training doctors so they may become rich?

    Why should American taxpayers be forced to pay taxes to build Grad schools for training MBAs so they may become rich?

    Why should American taxpayers be forced to pay taxes to build Universities for training insurance company execs so they may become rich?

    Why should American taxpayers be forced to pay taxes to build the National Institute of Health to create medicines so pharmas may become rich?

    Why should American taxpayers be forced to pay taxes to go to war in distant lands so that war contractors may become rich?

    How can we demand citizens pay taxes to support these endeavours and then deny those same citizens the fruits?

    It is nothing but Wealth Distribution, from the peasants to the lords, just as in Feudal societies.

    And then some fools dare to be sanctimonious and complain about providing free healthcare to those same people who have paid taxes and died in the wars and suffered under repeated excesses by The rulers.

  • I don’t care about sanctimonious fools. They surely abound. But I wouldn’t dare writing a “definitive” article on constitutionality without being a constitutional scholar.

    To my mind, it’s a height of arrogance.

  • Kenn Jacobine


    In the first place, the reason why health care is so expensive is primarily because of the government. My solution would be to institute a sound currency in the U.S. then over time eliminate government interference in health care and other industries (i.e. education). At that point, costs would come down and more folks could afford coverage. More people paying in makes the system that much more affordable (I agree with this point, but I don’t agree under any circumstances that people should be forced by the government to buy anything).

    Then if someone chooses not to have coverage they are on their own. No laws forcing any health care provider to provide care. If someone still can’t afford coverage then they apply to their state for aid. The Fed has so destroyed the value of our currency that things like health care are way more expensive. Then to remedy the situation the federal government interferes and compounds the mess. We have so detroyed our system of federalism that the states can’t do what is really their responsibility – take care of their citizens.

    Frankly, I already think it is too late and it amazes me that nobody talks about the Federal Reserves culpability in rising costs of things that are in high demand – health care. Since 1914 the dollar has lost 95 percent of its value. But nobody cares. Mind boggling.

  • Mind boggling indeed is the ability of you and fellow Paultards to blame everything ultimately on the Federal Reserve. Talk about lack of nuance.

  • “Then if someone chooses not to have coverage they are on their own.”

    Just let them die. A hell of a solution for a civil society.

    Let’s just get back to the law of the jungle, fuck anybody and everybody if you can. Quite a vision, Kenn, for an educator you are.

  • Kenn Jacobine


    You proved my point.

  • I looks as though Kenn doesn’t need very much nowadays “”

    And the surest way seems to be – to remain confined to one’s own thinking.

  • . . . “to prove his point.”

  • Yes, Kenn may honestly believe his point is proven, simply by declaring it so. I doubt there are many others, even fellow conservatives/libertarians on this site, who would agree.

    I usually avoid addressing him directly for this very reason — he doesn’t actually have an argument or a discussion, just makes a rigid declaration of principles and announces that he has won. Doesn’t get anyone anywhere, but whatever.

  • I challenged him to visit the other fellow’s article and thread, which offer a contrary view. I doubt, however, that he will.

    My bet is, he’ll remain to play it safe within his own, closely-defined parameters.

    And why shouldn’t he? The comfort of one’s own opinion is one of the highest values for some.

  • Bill

    Having read a bunch of the comments here pertaining to PARTS of the bill being possibly being declared unconstitutional while other parts are allowed to stand, I feel I must point out that as written the Act will stand or fall in it’s entirety. If ANY part of the act is found to be unconstitutional then the entire act is unconstitutional because the authors deliberately left out a server-ability clause. Most legislation that covers more than one topic contains such a clause usually stating ‘if any part of this act is found to be invalid the remaining portions of this act shall remain in force’ or similar language. Congress deliberately decided to leave out that clause because minus the portions forcing people to buy insurance or the portions for raising revenue the entire bill would be unworkable. This is actually in the congressional record so the intent of omitting such language is clear.

  • Kenn Jacobine

    Thanks Bill for the information. It makes sense because for the plan to work at all financially the forced insurance buying aspect must be in tact