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. 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.
However, they may be saved from this act of unusual courage on their part if state attorneys general have their way. Already, there are 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?
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.
Article comments
— go to most recent comments1 - Dr Dreadful
'"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."'
The Constitution nowhere authorizes the United States to set up a space administration either, or construct buildings over six stories, or elect presidents called George, or elect presidents not called George. Honestly, Kenn, it's not the be-all and end-all of the entire universe, you know.
'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.'
A rather impressive mangling of the intended meaning there, Kenn.
What that clause actually says is that among the responsibilities of Congress is to provide for the common defense and general welfare, and that the tools it has at its disposal for doing so are the levying of taxes, duties, imposts and excises.
'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.'
If the Founders had such a narrowly specific idea of what Congress ought to be able to do, then why are the enumerated powers so vague?
The Supreme Court rarely rules that Congress has overstepped the bounds of its authority. I think that's a significant point.
'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?'
Still buying into that myth, then...
2 - Christine
Kenn, I wondered about the constitutionality of the ObamaCare mess, thanks for the insight. However, isn't Obama's administration about 85% lawyers? Do you think they thought about it before hand?
3 - Clavos
However, isn't Obama's administration about 85% lawyers?
Nearly 100% of both the House and the Senate are lawyers, which is the prime reason the country's so fucked up.
Shakespeare had it right...
4 - Jamison
I read the title and all I could think of was "Well... DUH!"
Simply put; you must buy a product or service or be fined by the government. That in and of itself is unconstitutional. If the FEDS (Not the state all you knee-jerk lefties) forced you to buy life insurance or be fined, we would be upset. If the Feds said "Fund your retirement in a 401K or IRA or pay a fine" we would be mad. If the government fined you for growing your own food instead of shopping at grocery stores, we would be upset. But because the Messiah is forcing us to buy health insruance or be fined, and God forbid any of his voters say anything negative about Him, otherwise they damn their choice in the voting booth and look like a fool. I say they look more foolish when they cling to him till the bitter end, kind of like how I cling to my guns and religion. Hmmm, where did I hear those wise words?
5 - Jamison
"Nearly 100% of both the House and the Senate are lawyers, which is the prime reason the country's so fucked up."
Clavos;
I generally hear that F word in a sentence and immediately dismiss the content based upon the lack of intelligent language... but my friend, I must admit... there is no other word in the english language that exists that better describes what we are in.. so, well said!
6 - Christine
Clavos I stand corrected...100%. And I ditto Jamison with your use of the "F" word and coming from you it has even more value.
7 - El Bicho
You need to stand one more time because currently, the Senate is 56% and the House is 36%. Perhaps Clavos was incorrectly adding them up to get his made-up number of nearly 100%.
"I generally hear that F word in a sentence and immediately dismiss the content based upon the lack of intelligent language"
Coming from a guy who think senators come from districts, not sure why that should hold much water with anyone.
8 - Clavos
Well, El B, I stand corrected.
But 56% and 36% is well, 56% and 36% too many and still the reason we have a fucked up country, IM(notH)O.
The bard was dead on. (pun intended)
9 - Christine
Thanks El, are you like Anderson Cooper now? "keepin' em honest." Still too many damn lawyers.
10 - Baritone
A number of governors in states where their attorneys general have filed suit against the reform law have requested that the suits be dropped - first because they have virtually NO chance of success, and 2nd because it is a flagrant waste of tax payer money.
There is far more precedent of the courts upholding actions of congress than knocking them down.
This blind adherence to the constitution and the rather arrogant assumption that the founder's intent is both known and relevant is ludicrous.
Come November, if all the Reps have to run on is some notion that they are going to repeal the health care reform law, they will be in for a let down. Once people have a clearer understanding exactly what this reform legislation will provide, there will be far fewer objections to it. The numbers are already sliding in that direction despite supposed Rep and tea party outrage.
Reps have already been instructed to lay claim to certain aspects of the reform as their own, despite the fact that every damn one of them voted against it. The hypocracy flows like wine at a bacchanalia. I guess it's fortunate for the Reps that most of their adoring fans have no idea how much and how often they are being lied to.
Basically, they just want to believe every word that Glen Beck spews, and they desparately want to just give Sarah Palin a big hugger bugger. They believe that she is our saviour incarnate, and that Obama is the anti-christ. Fie on thee Hussein!!!
Good luck to all those Reps who are going to go out and try to convince voters that they should support returning control of their health care to the insurance companies. That'll play really well come November.
B
11 - Clavos
Control was never taken from the health insurance companies, B-tone, in fact, the dems handed 'em a whole bunch more new clients with guaranteed government premium payment.
Now they control the biz more than ever. Soon, because we are all a mandated captive market now, the premiums will begin to rise, especially when the no refusal and no cap provisions kick in.
12 - Clavos
Reps have already been instructed to lay claim to certain aspects of the reform as their own, despite the fact that every damn one of them voted against it.
Source?
13 - Clavos
Once people have a clearer understanding exactly what this reform legislation will provide
i.e. higher costs and longer waits and lines, fewer docs and more patient competition for available hospital beds.
Not to mention government overpayment and corruption, as well as escalating fraud -- just like Medicare.
14 - Silas Kain
When people are finished whining about this so-called "ObamaCare" will it even matter? We've got a 3 year window to fix it. In the meantime we have far more pressing problems to contend with. Oh, but I forgot. We accept the bullshit fed to us by politicians in power, the so-called media and the extremists on both sides. Grow up, America. We're in one big giant cluster phuque of a mess and nobody has the balls to do anything about it. Do white people hate the thought of a Black President so much that they will stop at nothing to get him out?
We're supposed to be this great society, in a country so full of promise. We're a band of whining, self centered, spoiled little brats who worry more about what we accumulate than what we achieve. We are a pitiful disgrace in the memory of all those who sacrificed so much to get us here. We've squandered that which we've inherited and don't appreciate that which we've been given.
Get out of the way of your preconceived notions, pitiful prejudices and self righteous high horses. Recognize that we have ISSUES here folks. It isn't all about this so called health care. We are becoming an oligarchy. The Republic is in the throes of death. In a couple of years I will come back and say I told you so as you adhere to the extremists on both sides of the well financed aisle. I am so disgusted with this national discourse or the lack thereof. What the hell is wrong with us that we can't see that which is staring us in the face? Oh, I forgot it isn't on the cover of the Enquirer or embedded in a video game. So drive your cars while talking on your cell phones. We deserve what we're about to get.
15 - Kenn Jacobine
Dr.D,
"then why are the enumerated powers so vague?"
Please give an example.
"The Supreme Court rarely rules that Congress has overstepped the bounds of its authority. I think that's a significant point."
Read part 2 next week for a refutation of that.
Baritone,
"This blind adherence to the constitution and the rather arrogant assumption that the founder's intent is both known and relevant is ludicrous."
Why would the Founders intend the Constitution to be unknowable? Doesn't the document say it is the Supreme Law of the Land? Why do we have to guess what they meant? Because it doesn't say what you want it to? It is not only arrogant but incredibly self-serving to make up your own definitions of what the Founders intended. You are the one looking for something from the government - health care from cradle to grave, not me.
16 - zingzing
jamison, et al: "I generally hear that F word in a sentence and immediately dismiss the content based upon the lack of intelligent language..."
shut the fuck up, grandma. you people are ridiculous. this isn't kindergarten. know the value of language.
17 - zingzing
doc: "then why are the enumerated powers so vague?"
kenn: "Please give an example."
holy shit. you kidding? what does "necessary and proper" mean to you? don't you think that's been debated?
18 - Ruvy
One of the basic things I learned in law school many years ago is that lawyers were there to break laws and give that breakage the aroma of legality. So, the vast number of lawyers in the American congress should - and does - indicate a tendency towards violating the Law of the Land - the Constitution of 1787 - with the intent of giving that violation a whiff of legitimacy. The odor of bullshit is never well perfumed by laws the American congress passes.
After all, you are all afraid to demand something so simple as a long form birth certificate from a man who has virtually dictatorial power in America (that you yourselves gave him) - and you are afraid to publicly challenge the constitutionality of the appointment of the bitch Hillary Rodham Clinton as Secretary of State.
If you haven't got the guts to defend your liberty, you deserve to lose it - and you are losing it.
In law school, we called constitutional law "con law". And indeed it is an accurate title - you are getting conned big time.
Now bend over and smile while the stick is shoved up your anuses! You are getting the government you richly deserve!
19 - zingzing
give up the ghost, ruvy.
20 - Ruvy
Heh! zing, you can't write a line of readable poetry, and you tell me to "give up the ghost?"
I'll not follow you into oblivion. When I start seeing you actually write articles here (or even elsewhere), I'll know you haven't given up the ghost.
I have a feeling I'll have a long wait.
21 - Dr Dreadful
Please give an example.
Um, most of them, Kenn...
Most of the numerated powers are non-specific, and it's left up to Congress to enact legislation or regulation as it sees fit in order to exercise them.
22 - Dr Dreadful
I generally hear that F word in a sentence and immediately dismiss the content based upon the lack of intelligent language
How about if somebody says to you, "Oh, fuck, there's a fifty-ton weight plummeting from a great height right above your head - get out of the way"?
23 - Ed Shine
Dr. Dreadful said:
"The Supreme Court rarely rules that Congress has overstepped the bounds of its authority. I think that's a significant point."
SCOTUS just found the caps on direct corporate spending unconstitutional. They ruled The Gun Free School Zone Act unconstitutional. They did the same with The Violence Against Women act, as well as many other lesser known cases over the last decade and a half. That SCOTUS rarely finds Congress has oversteps the bounds of its authority is an exaggeration spearheaded by left leaning legal "experts".
CBS News poll released Tuesday found that 62 percent of Americans want congressional Republicans to keep fighting the bill
The will of the people must prevail.
24 - Kenn Jacobine
Dr. D,
Just give me one.
Ed,
You stole my thunder. Here is a preview for next week. The interstate commerce clause was interpreted narrowly before the New Deal. FDRs Court packing plan, yes statists circumvented the rules and traditions in those days as well to get what they couldn't get through proper means, turned precedence on its head as far as the clause was concerned. The Court did not always rule Congress could do whatever.
25 - Dr Dreadful
Ed,
I did a bit of digging and found that Congress has passed over 20,000 pieces of legislation in its history.
I also found that up to 2002, the Supreme Court had found a grand total of 158 of those to be unconstitutional, in whole or (usually) in part.
158 out of 20,000 is less than 1%. We remember a lot of those cases because they're unusual and therefore newsworthy, but they're not common.
So my point stands.