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.
Article comments
— go to most recent comments1 - Baronius
Excellent explanation, Kenn.
2 - Dr Dreadful
"Now, I am not naĂŻve enough to believe that any court would invalidate the new health care legislation based on the above Constitutional violation."
Even though you apparently are naĂŻve enough to believe that an unconstitutional provision in a bill somehow invalidates the entire bill.
3 - 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.
4 - Baronius
John, can you flesh out that comment?
5 - Dave Nalle
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.
Dave
6 - 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".
7 - Dan(Miller)
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.
Dan(Miller)
8 - Dr Dreadful
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.
9 - Baritone
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.
B
10 - Kenn Jacobine
Dr.D,
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.
11 - Dr Dreadful
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.
12 - 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.
13 - 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.
14 - 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.
15 - 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.
16 - roger nowosielski
"He threatened to interpret the Constitution accurately . . ."
"Accurately" simply means in a way with which Kenn would agree.
17 - Baronius
Dread, that's a lazy argument. The 9th and 10th Amendments say that whatever isn't specifically allowed is forbidden.
18 - 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.
19 - 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.
20 - 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.
21 - 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.
22 - roger nowosielski
#21 - excellent point. Don't count, however, on it being misinterpreted every which way.
23 - roger nowosielski
Double negative: but you get the meaning.
24 - 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.
25 - Kenn Jacobine
STM,
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?