Americanly Yours

Despite overall disapproval with President Obama’s health care law, many of its provisions remain popular.  Perhaps the most popular provision in the law is one that prevents insurance companies from discriminating against customers based on “preexisting conditions.”  The logic is relatively simple at first glance: people with debilitating conditions will not be able to get coverage at affordable prices unless Congress mandates that insurance companies cannot discriminate against those with a preexisting condition.

We all know someone with a preexisting medical condition, be it cancer, diabetes, or pregnancy.  The fact that we all know someone who currently has or previously has had a preexisting condition is one reason why this provision is so popular.  After all, it is difficult to argue with someone who uses the emotional appeal of an aunt with cancer or a single pregnant woman who is uninsured.  Emotional appeals can be used to “justify” any side of any issue but they cannot prove anything.  Preexisting conditions can be tragically sad and are often not the fault of anyone, be it the victim or society as a whole.

There is a very important question that we must ask before we decide whether or not such a provision is a good idea: is it appropriate to punish someone who has done nothing wrong?

This is a very serious question.  If we decide that it is appropriate to punish someone who has committed no wrong, then we must not only answer why it is appropriate to punish the innocent, but who should punish the innocent and how severely they should be punished for their non-wrongs.

I do not see how any rational person who has thought about this question can decide that it is morally acceptable to punish a person who has done nothing wrong.

Therefore, if it is not appropriate to punish someone who has done nothing wrong, then we must absolutely reject the idea of Congress mandating that insurance companies not discriminate against those with preexisting conditions.  The reason for this is simple: forcing insurance companies to provide “affordable” coverage for those with preexisting conditions must result in increased costs for those of us without preexisting conditions.

Insurance is a vehicle which prices and protects against risk.  This is usually done by assigning people with similar characteristics to “risk pools” and charging them similar premiums.  In a free market for health insurance, 35 year old male smokers residing in the Chicago area who are overweight and have type 2 diabetes are likely to be placed in the same pool and will be charged the same or a similar monthly premium.  Under a system where insurance companies are prevented from discriminating against those with preexisting conditions, the previous group is merged with the group of 35 year old male smokers residing in the Chicago area who are overweight but do not have type 2 diabetes.  While this will result in lower premiums for those with type 2 diabetes, it will result in higher fees for those without the disease.

In other words, while preventing insurance companies from discriminating against those with preexisting conditions sounds like a noble idea, it ends up punishing those who have done no wrong.

I am sorry if you have a preexisting medical condition, I truly am, but unless you can conclude that your preexisting condition is my fault, you have absolutely no moral right to punish me for your condition.

I have often used the Constitution as one way of justifying my opposition to “laws” passed or proposed by Congress and the President. After all, the US Constitution is touted by many people as the “supreme law of the land.”

But, very few people ever ask why it is the supreme law of the land, or why it even has any power at all, and almost no one asks if it is the supreme law of the land, or if it has any power at all.

In fact, it is the Constitution that calls itself the “supreme Law of the Land.”  So if you ask someone why the Constitution is the supreme law of the land, they are likely to respond by telling you that it says so right there in the Constitution.  If you were to then respond to that by asking what gives the Constitution the right to declare that it is the supreme law of the land, they are likely to respond by saying that it is the supreme law of the land (or something to that same effect). This is what philosophers call a tautological argument, and what everyone else calls a circular argument.

Is the Constitution the supreme law of the land?

Well, the Constitution was a contract.  It was signed by 39 men at the Constitutional Convention (out of the 55 delatates).  Following this, the States held their own votes on ratification in which 1071 men voted in favor of adopting the new Constitution. But, all this tells us is that 1,100 men agreed to the Constitutional Contract.  What of the 16 delegates who refused to sign the Constitution?  What of the hundreds of men who voted against the ratification of the Constitution in their State legislatures.  And most importantly, what of the people who were not given the opportunity to vote for or against the Constitution?

Would it be right to assume that the people who explicitly refused to sign a contract should be forced to abide by it?

But, the vast majority of Americans were not allowed to vote at the time of the Constitution.  This included children, slaves, women, indentured servants, and (in many States) those who did not own property.  They had no say in their local or State governments, and thus no representation in the Constitutional Convention (which—by the way—was authorized by the Congress to amend the Articles of Confederation, not to replace it). The Revolutionary War, which ended less than 5 years before the Constitutional Convention, was fought over the issue of “taxation without representation.”   We must ask ourselves if being governed without one’s consent is substantively different than being taxed without one’s consent/representation.  And no, these arent just the musings of a lone libertarian.  According to recent polling, only 23% of America voters believe that the United States government has the “consent of the governed,” while 62% say that it does not.

Imagine if Verizon offered to provide you with wireless service in exchange for a fee, but for whatever reason, you EXPLICITLY DECLINED to sign the contract (even though most of your neighbors agreed).  Could anyone rightfully assume that Verizon would have the right to declare itself your provider? Of course not.

Lysander Spooner brilliantly pointed out that those who support the Constitution often use the right to vote as a method of justifying the legitimacy of the government. A simple examination of these arguments reveals that this argument falls into a severe tautological trap as well. For eaxmple:

• If I vote for the winning candidate, I have given my consent to his actions because I have sanctioned his platform. Furthermore, I have given sanction to the Constitution by participating in its institutions.
• If I vote against the winning candidate, I have still given my consent to the Constitution because the act of voting implies that I agree to the process outlined in the Constitution and that I would expect the losers of the vote to abide by the results of the vote had my candidate of choice won.
• If I choose not to vote, then I have no right to complain about the government because I have declined to participate in a “valid” process which could have yielded different results had I participated.

Thus, whether or not I vote, and whether or not I vote for the winner, I am giving sanction to the Constitution and to the actions of the government. We can easily see how this is a circular argument, akin to the expression “damned if you dont, damned if you do.” You dont have to be a trained philosopher to realize that this argument isnt a sound one.

Lysander Spooner argued that the Constitution actually bound no one. I agree with his logic, but have reached different conclusions.  I will argue that the Constitution does not bind very many people, but it does bind those (and only those) who have expliticly agreed to the Contract.

The President, Vice President, and members of Congress all take an oath upon entering office.  In doing so, they are explicitly giving their consent to the Constitution and agree to act in accordance to this Constitution.

Thus, the President, Vice President, and Congress are required by law to uphold the Constitution and its provisions, whether or not they like what it says. Failure to do so is a violation of their oath and a violation of the laws of the government that they have explicitly agreed to serve. The President’s oath reads

“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”

Notice the final clause which demands that the President “preserve, protect and defend the Constitution of the United States.” Thus, the President must use his veto power whenever Congress passes a law that violates the terms of the Constitutional Contract. Failure to do so would be an explicit violation of the President’s oath and grounds for removal from office.

Similarly, the oath of Congressmen reads:

“I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”

This oath differs in that it requires members of Congress to ” support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same. [Emphasis added]” This is an important difference, as it not requires Congressmen to defend the Constitution against domestic enemies as well. Thus, every member of Congress has a duty to defend the Constitutional Contract from those who wish to undermine it. This must not only include other members of Congress who are bent on undermining the Constitution, but also must include protecting the Constitution against Presidents who rountiely violate the Constitution and their oath to the Constitution.

But if most members of Congress, as well as the President, Vice President, Cabinet, and most of the executive bureaucracy—the people who have taken an oath to the Constitution and who are thus bound by it—refuse to adhere to the Constitution or to their oath, then why should we, the American people have to abide by the Constitution?

Generations of Congresses and Presidents have routinely violated the Constitution and have trampled on the protections afforded in the 1^st, 2^nd, 4^th, 5^th, 8^th, 9^th, 10^th, 14^th, 15^th, and 21^st amendments. Their actions have rendered many of the above amendments nothing more than “dead letters.” The trampling of the Constitution by the very people who have sworn to protect it is not limited to the Constitutional amendments themselves, but also includes the routine violation of many of the protections contained in the body of the Constitution itself.

I have pointed out that members of Congress and the President have taken oaths requiring adherence to the Constitution. We The People, on the other hand have not. This fact alone leads to the logical conclusion that the Constitution does not apply to those of us who have not declared allegiance to it. And yet, many of those who ahve taken official oaths to the Constitution routinely violate it. Thus, the question must again be asked: if most members of Congress, as well as the President, Vice President, Cabinet, and most of the executive bureaucracy—the people who have taken an oath to the Constitution and who are thus bound by it—refuse to adhere to the Constitution or to their oath, then why should we, the American people have to abide by the Constitution?

In addition to Presidents and the Congress, members of the military take oaths of loyalty to protect and defend the Constitution as well:

“I, [name], do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic [emphasis added]; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”

The military oath not only requires that members of the armed services protect America against foreign invasion, but also requires that these members protect the Constitution from domestic enemies (those who have sworn allegiance to the Constitution but violate it) as well.

But, instead of taking their oaths seriously and defending the Constitution which they have sowrn to protect, Presidents, members of Congress, and members of the military have been much more willing to use their authority to force the American people to live under an unconstitutional (and nonconsensual) government.

I ask again: If the government refuses to abide by the Constitution, why should we?

The answer is that we shouldnt.

How long will we continue to allow Congress to rule over us using a “do as we say, not as we do” logic? The truth is that this has gone on long enough.

But, even if Congress, the President, and everyone else within the goverment followed their oaths perfectly, this would not be reason enough to follow their laws. The above statement stems fromt he simple fact that the vast majority of the American people have never sworn an oath of allegiance to the Constitution. A simple example can be used to understand why we are not bound to the Constitution—even if it is perfectly followed. Imagine that someone declares himself to be the new owner of your car without your permission. This man has no legal or rightful claim to your car, but that doesnt stop him from claiming ownership. However, this man is “nice enough” to allow you to use the car whenever you want. Thus, his “ownership” of your car doesnt interefere with your right to use the car in any way. But, does this mean that you should allow him to get away with the crime of claiming false ownership over your car? Of course not. It is true that while he still “allowed” you to drive your car whenever and wherever you wanted you probably wouldnt rebel against him, but that surely wouldnt meant hat you have accepted his claim of ownership over your car.

The vast majority of the readers of this article have taken no oath of allegiance to the Constitution or the the US Government (which itself is guilty of repeatedly violating the Constitution).  I have never read the words of the oath aloud, I have never signed an oath of loyalty to the United States or to the Constitution.  How then can anyone argue that this document binds those of us who have not taken a loyalty oath?

The Constitution itself was nothing more than a well orchastrated coup, designed to centralize the powers of the government into the hands of an elite few. The vast majority of citizens (and all of the slaves held) never had a proper say in the approval of the Constitution. And, as Lysander Spooner pointed out, one cannot sign a contract that binds future generations (wouldnt that be the greatest form of taxation without representation that is possible?). Thus, even if the Constitution somehow did bind all those living under it upon its ratification, it binds no one today but those who have explicitly agreed to it.

The Constitution does not bind those of us who have made no such explicit agreement. Thus, we have no legal or moral obligation to follow the “laws” put forth by Congress, the regulations created by Congress or executive agencies, or the executive orders and decrees made by the president.

I am not advising you to break the law—just because the law doesnt bind us does not mean that the government will not employ the use of men with guns to force you to comply with its laws and regultations. Just as an unarmed person would probably be better off (ie, would have a much better chance of survival) turning his wallet over to an armed robber who demanded the wallet, most people will find it easier to comply with the “laws” of the United States government rather than risk their own death or imprisonment.

But, even as we continue to hand the robber our wallet, this does not mean that we should recognize the legitimacy of the robber who demands tribute and restricts the liberty of so many millions of people.  It certainly does not mean that we should be happy to hand the robber our hard earned wealth.

Recognizing the illegitimacy of the Constitution and the United States government is a very important step. The more that people recognize this fact and speak about it, the more obvious it will become to the populace.

A critical mass of Americans is needed to recognize that we do not owe our allegiance to the Constitution.  Furthermore, this critical mass needs to realize that the United States government is illegitimate and that it has no moral right to tax, rule, or restrict the liberty of anyone who has not consented to be ruled.  Only when the people wake up and realize these facts will we be able to restore our lost liberties.

Americanly Yours,

Phred Barnet

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Well theyve gone and done it.  Congress has passed a bill that has been consistently opposed by the majority of Americans. This bill is horrendously costly and will cause the country’s deficits and total debt to rapidly expand–something that we can hardly afford when we are already in grave danger of losing our AAA credit rating. After watching debate over this bill on C-SPAN, it is clear that the Congressional supporters of this bill seemed to be intentionally ignoring both the financial problems with this bill, as well as the potential that this bill will lower the quality of health care available for all Americans.

For confirmation of this, check out the C-SPAN coverage of this issue, especially the speeches starting from around 70 minutes until they begin voting on the rule.

President Obama promised that American people that he would pursue a bipartisan approach to health care reform.  Unfortunately for the American people, President Obama did no such thing.  Representative Paul Ryan (R-WI) and several other Republicans have been begging President Obama and the Democratic leadership to listen to other ideas and to move to attack some of the problems with health care that the vast majority of Americans agree on.  This bill is not bipartisan in any remote sense of the word.  In a clear sign of both idiocy and doublespeak, Nancy Pelosi disagreed and declared that a “bill can be bipartisan without bipartisan votes.” The argument here was that because Democrats have included a few small ideas that Republicans and independents support in the bill that it can be called bipartisan.

In fact, the only thing that can even be said to be bipartisan about this bill is the opposition to it.  There are no Republicans supporting this bill; it is opposed by every single Congressional Republican and a number of Congressional Democrats.

But, even if this bill had been a perfect example of bipartisan compromise, it is still wrong.  On top of being immoral and undemocratic, this bill is blatantly unconstitutional.

Alas, they have passed it and the battle is over.  What do we do now, you ask?:

Well, we have three choices here.  We can:

1)  Admit the fight is over, accept this new national health care system, its immense costs and potential to result in a level of care much lower than the current level.  Accepting this option is akin to tacitly accepting that our federal government no longer has any limits and thus, is no longer bound to the contractual restraints placed upon it by the Constitution.

2)  Accept that the battle is over, but focus our efforts on repealing this bill.  Republicans have little chance of retaking the Congress in November, and given their history of supporting big government programs, there is little if any reason to believe that they will seek to implement a health care system based on the principles of freedom.

3)  Take the passage of this bill as a setback and as the loss of a major battle, but regroup and get ready for a major guerrilla offensive.  The centralized approach to fighting this bill should be abandoned for now.  This battle simply cannot be fought on the national level right now.  The answer is for a number of different methods of attacking this plan.

Clearly, I favor option 3.  Under this option, we must urge our State legislators to nullify this and all future health care bills coming from D.C.  We must urge our State to follow the lead of Idaho and sue the federal government (however, we should also realize that it is unreasonable to expect federal courts to curb federal power).  Individuals and groups must follow a similar strategy and file lawsuits against the implementation of this bill.  One good thing about this bill is that many of its provisions do not take effect until 2013 and 2014, giving us plenty of time to try out various strategies

The important thing here is to not rely on only one strategy.  We must favor a decentralized strategy for fighting this bill for the same reason that we must facor a decentralized system of government.  The consequences of failure in a “one size fits all” system are too great.  By fighting a number of separate battles against the bill, we can be sure that the failure of one strategy will not lead to our total failure.  Additionally, the beauty of this strategy is that the success of any one of the single strategies that we are using to fight this bill could result in the death of this bill.

The Constitution was a contract between the States to create a federal government.  In creating the federal government, the Constitution also served as a contract between the States and the federal government.  The Constitution delegated certain powers to the federal government and reserved the remaining powers to the States (and to the individual people).

Article 1, Section 8 of the Constitution delegated certain powers to the federal government.  The 9th and 10th amendments to that Constitution placed every power not given to the federal government in the hands of the States and the people.

[The 9th Amendment reads: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”]

[The 10th Amendment reads: “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.”]

This is the plain and simple truth.  Anyone who argues that the Constitution must adapt to changing times is ignoring the fact that the Constitution contains the mechanisms for this adaption in the amendment process. Any expanse of federal power that is not covered by the Constitution or by subsequent amendments is a direct violation of the Constitutional contract.  Thus, if the federal government wanted to lawfully implement a national health care system, Congress and the States would need to ratify a Constitutional Amendment granting this power to the federal government.

A contract obviously cannot be expected to enforce itself–Party A must be vigilant to ensure that Party B does not ignore the provisions of the contract and take advantage of Party A.  But, suppose that Party B does take advantage of Party A–what now?

The States as sovereign actors must do their parts to reject the improper violations of the Constitutional contract by the federal government.  This means that State governments must refuse to implement–or to allow the implementation of–this violation of the Constitutional contract by one party.

An illegal law is no law at all.  A law that expressly violates the Constitutional contract is invalid and can be ignored by the States.

37 of the 50 States are considering bills to nullify this health care bill.  That is, these States are refusing to allow the federal usurpation of local power to continue (at least in the area of health care).  Several days ago, Idaho became the first State to sign a bill into law requiring the State’s Attorney General to sue to federal government over this bill.  States like Virginia, Arizona, and Utah have also passed nullification bills and are only awaiting the signature of their governor.  Many of these States are considering laws that would lead to the imprisonment of any federal official attempting to enforce any law which is not explicitly authorized under Article 1, Section 8 of the Constitution.

There has been a long history of nullification to prevent the federal government from implementing unconstitutional or unjust violations of the Constitutional contract.  This history has included but is not limited to the following:  attempts by Northern States to nullify the propsed military draft in the War of 1812 and actions by Maryland and Wisconsin to nullify the Fugitive Slave Act (and to charge anyone who took an escaped slave back into captivity with the crime of kidnapping).

More recent examples of nullification include (but are certainly not limited to) the nullification of the REAL ID Act by 25 States (effectively blocking the federal government from implementing a national identification card) and the nullification of federal marijuana laws by thirteen States.

We can and must apply these same principles to this unwanted health care bill.  Many people have taken time in the last year plus to contact their Congressmen and Senators to tell them to vote against national health care.  This approach has failed, but the fight is far from over.  We can win this fight!

We need to put the pressure on our State officials to consider nullifying this and all other unconstitutional violations of our rights.  Please take some time this week to contact your State representatives to tell them to support nullifying this and any other federal health care bills.

Just as in any contract, one side could not grant himself the right to edit the terms of the contract and do as he pleased, the federal government cannot ignore the terms of the Constitutional contract and do as it pleases.  The States must do all that they can to prevent any further violations of the Constitutional contract by the federal government.

Nullifying unconstitutional laws will show the federal government that the States are serious upholding the Constitutional contract and its balance of power.  The federal government will be less likely to pass unlawful laws if they know that these laws will not be enforced on the State level.

Enough violations of a contract–any contract–by one party eventually render that contract null and void.  If the federal government continues to violate the Constitutional contract and encroach on the domain of the States, the States must reserve the right to peacefully withdraw from the contract and fully control their own affairs.

Americanly Yours,

Phred Barnet

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The phrase “you never get a second chance to make a first impression” works for Presidents too.  President Obama’s first year in office has been marked by failure after failure.  His only remarkable legislative success, last year’s “stimulus” bill is itself a failure.  But just how has the  first year of Mr. Obama’s Presidency been a failure?  Lets take a brief look:

Economy:

The economy continues to deteriorate under President Obama’s leadership. When President Obama pitched the “stimulus” bill to the skeptical American public, we were told that if this “crucial” bill was not passed soon (ie, before Congress had ample time to read the bill) then the economy would face devastating consequences.  This was of course a well calculated and bold faced LIE.  The fact of the matter is that the majority of the spending in the “urgent stimulus” bill were not going to be spent for over a year.  We were warned by the Administration that failure to pass the bill would cause unemployment to skyrocket and could cause it to reach as high as 9%, but passing the bill would keep unemployment from raising above 8% (see this chart put out by the Obama Administration to urge support for the “stimulus”).  So, we passed the bill and despite (or because of) this, the official unemployment rate surged past 9% and currently sits at 10%.  Of course, the 10% figure is a lie as well.  Previous administrations changed the way that the unemployment rate was measured in order to disguise how bad things really were.  This U-6 unemployment figure is still reported by the government, however, the government now uses U-3 as the official unemployment number.  While U-3 unemployment is 10%, U-6 unemployment is 17.3%.  This figure was 13.5% one year ago.  Simply put, things are bad.  But, government data collection is shady and should not be trusted as definitive.  Shadow Government Statistics, a private data collection/analysis website places unemployment at over 22%!

Ben Bernanke failed to see the impending collapse even shortly before the economy tanked.  While a candidate for President, Mr. Obama repeatedly criticized the economic policies of the Bush Administration.  By choosing to reappoint Ben Bernanke as Chairman of the Federal Reserve, President Obama was giving his tacit approval to the policies of the Bush Administration.

The administration has also increased the national debt to dangerous levels.  The US is now in serious risk of having its credit rating downgraded.  Any hopes of an economic recovery would be shattered if this were to happen.

Foreign Policy:

Candidate Obama repeatedly attacked the Bush Administration on three fronts: the economy, the wars, and foreign relations.  President Obama has failed to correct the errors of the Bush Administration on any of these areas.  As mentioned above, President Obama has continued the “stimulus” and bailout policies initiated by President Bush.  His reappointment of President Bush’s Federal Reserve Chairman Ben Bernanke confirms the fact that President Obama’s economic policies are not notably different than those of President Bush.

The second area where candidate Obama frequently attacked the Bush Administration was his handling of the wars in Iraq and Afghanistan.  Mr. Obama criticized President Bush’s Iraqi surge, falsely claiming that it was not a success.  If I were a candidate who ran on a platform of change and who repeatedly criticized the previous administration’s military policies, I surely would not have allowed the previous President’s Defense Secretary to continue serving.  Furthermore, if I had attacked the former President’s Iraqi surge strategy, I would not have employed a similar strategy in Afghanistan.  However, President Obama has done both of these things.  He kept Defense Secretary Robert Gates in his position, and he has sent an additional 68,000 troops to Afghanistan since taking office (many of those troops were sent in the weeks following the President’s claiming of the Nobel Peace Prize).

Candidate Obama promised to have all of the combat troops out of Iraq within 18 months after taking office.  That leaves him less than six months to remove over 100 thousand troops from Iraq.  Id put the chances of this happening right at zero.  More likely, President Obama will declare that the troops in Iraq are no longer combat troops (despite the fact that they will almost surely be engaging in combat).

President Obama missed a historic opportunity to improve relations with Cuba.  Since taking over, Raul Castro has introduced many positive reforms, introducing notions of private property, increasing wages for productive workers, and allowing Cubans to take advantage of certain technologies.  Raul Castro’s Cuba still has a very long way to go, but any movement in the right direction should be seen as positive.  Candidate Obama pledged to improve relations with Cuba.  Instead, President Obama has continued to support the same policies towards Cuba which have failed for the past 48 years.  Of course, this si just one example of this administration’s failed foreign policy.

Candidate Obama pledged to repair our strained relations with foreign nations.  President Obama has failed at this as well.  He has been publicly scolded by Russia’s Putin, Israel’s Netanyahu, France’s Sarkozy, and other allies.  In fact, I would argue that our foreign relations have not noticably improved with a single foreign nation since President Obama’s inauguration.

Agenda:

President Obama has almost completely failed in his efforts to push his agenda during his first year.

Remember, this President was the candidate who vigorously campaigned on a platform of “change.”  There have been few noticeable changes in the previous year.

With sizable majorities in Congress and a public eager for change, President Obama should have had a relatively easy time pushing through at least some major parts of his agenda.  The only major bill that President Obama was able to push through Congress during his first year in office was the “stimulus bill.”  This was a bill which was passed by using intimidation, threats, fuzzy math, erroneous estimates, and down right lies.  The “stimulus” bill was a costly mistake that did little if anything to stimulate the economy but will cost taxpayers around $1 trillion when the time comes to repay the costs of financing this bill.

Congressional Democrats pushed various health care reform bills for well over 6 months.  During this time, President Obama showed almost zero leadership on this issue, basically promising to sign any bill that came out of Congress.

Had President Obama taken a leadership role and urged Congress to pass a series of smaller health care reforms instead of trying to push a sweeping bill down the throats of an adamantly opposed American public, he could have signed several of these reforms months ago and moved onto other pressing issues.  Instead, Democrats wasted the better part of a year, alienated a large portion of American voters, and came up empty handed.  Democrats might now adopt the strategy of pushing through smaller, incremental reforms, although it could even be too late for that approach.

Opponents of government controlled health care can thank President Obama’s complete lack of management abilities for preventing the nationalization of health care that seemed to be a foregone conclusion several months ago.

The President’s inability to lead has also prevented the passing of cap and trade and several other government intrusions into the lives of individuals.  He has placed his coalition in danger time after time, and now seriously risks losing the House of Representatives in November.  Things also look increasingly likely that the Senate may be in play in November as well.  More ont his in a future article, but it is beginning to look very likely that Democrats will lose President Obama’s former Senate seat, Vice President Biden’s former Senate seat, Harry Reid’s Seat, and possibly Hillary Clinton’s seat.  This would have been unthinkable only one year ago, but then again so would a Republican winning Ted Kennedy’s former Senate seat.  President Obama has alienated Democratic voters to a degree that even the most optimistic Republican would have thought to be impossible a year ago.

President Obama should follow the lead of Domino’s Pizza: soak in and address the valid criticisms, revamp his “product,” and use his rhetorical skills to sell his new image to the public.  Failure to do so can only lead to a changing of the guard in the 2012 Presidential election.

Americanly Yours,

Phred Barnet

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I have written previously about my opinion of the Democrats’ health care bills.  I have also written about the economic problems which this bill will cause.  I have questioned the need for this bill by dispelling the myth that 47 million Americans do not have health insurance because they cannot afford it.  Additionally, I have written about the declines in quality of health care that are sure to come following the enactment of these plans.

One thing I have not written much about is the legality of passing this type of health care reform.

The Constitution is the supreme law of the land.  No matter how much we all want a new law, regulation, or program, this new law, regulation, or program is illegal if not authorized by the Constitution.  The rule of law is the idea that leaders and government officials must follow the law just as common people must follow the law.  If our leaders violate the Constitution while pursuing reforms. they are violating the rule of law.

Although a majority (or at least a plurality) of Americans have opposed the Democrats’ health care plan in EVERY SINGLE POLL on the issue for over a month now, a bill has passed the House of Representatives and a similar bill will almost certainly pass the Senate this Thursday.  However, the popularity or unpopularity of a law has no bearing on its Constitutionality.

The first problem with this bill is the “insurance mandate.”  If this bill is enacted into law, all Americans who can afford to purchase health insurance but fail to do so are subject to a fine of $750.  Failure to pay this fine will lead to a prison sentence.  One obvious question here is why, if health insurance is so good and vital do people have to be threatened with jail time for not purchasing it? More troubling than this question is the legal basis for imposing such a mandate on Americans.

There is no historical precedent for this type of mandate.  A similar insurance mandate was considered in a 1994 health care bill which prompted CBO analysts to write: “A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States.”

More importantly though, there is not a Constitutional precedent for an insurance mandate.  Read the entire Constitution as many times as you like: you will find nothing in the document which grants the government the right to force citizens to purchase a privately produced product.  Article I, Section 8 of the US Constitution lists the “enumerated powers” of Congress.  There is absolutely no mention of anything even remotely relating to a) the right of Congress to enact laws regarding health care b) the right of Congress to force Americans to buy a product from a private company under penalty of fine or imprisonment.

Liberals will likely argue that Congress does have the power to enact this type of mandate (and this health care bill as a whole) by citing three clauses within Article 1, Section 8: the “general welfare clause,” the “commerce clause,” and the “necessary and proper clause.”  Here is why they are wrong on all three points.

The “general welfare” clause of the Constitution reads as follows:

“The Congress shall have power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States…”

Liberals see the phrase “general Welfare of the United States” to mean that Congress has the right to provide for the good and welfare of citizens of the United States.  This is an incorrect and dangerous view of the Constitution.  The Constitution was written to create a new federal government by mutual consent of independent States.  Thus, the name United States meant just that–States which were united as partners in a common government.

The meaning of this clause in the Constitution therefore means that Congress has the power to provide for the “general welfare of the States.”  By no means does this clause imply that Congress has the right to provide for the “general welfare of all American citizens.”  Such a power was neither written, nor implied in this clause.

But dont take my word for it.  The “Father of the Constitution,” James Madison agreed with my sentiments when he said:

“If Congress can employ money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, they may take the care of religion into their own hands;they may appoint teachers in every State, county and parish and pay them out of their public treasury;they may take into their own hands the education of children,establishing in like manner schools throughout the Union;they may assume the provision of the poor;they may undertake the regulation of all roads other than post-roads;in short, every thing, from the highest object of state legislation down to the most minute object of police,would be thrown under the power of Congress…. Were the power of Congress to be established in the latitude contended for, it would subvert the very foundations, and transmute the very nature of the limited Government established by the people of America.”

The “commerce clause” of the Constitution reads as follows:

“The Congress shall have power… To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”  The interpretation of this clause has been widened greatly over the years, helping nationalists as well as socialists consolidate power on the federal level.  However, even given the wide interpretation of this clause, Congress lacks the power to nationally mandate health care.

I (as well as many others) previously advocated allowing consumers to purchase insurance plans across state lines.  The reasoning here was that allowing a national insurance market to emerge would increase competition and lead to more insurance carriers, lower costs, and better products (as it has done in many other industries).  However, Congress long ago prohibited the slae of insurance plans across state lines.

This measure is one of the primary reasons why health care costs are out of control, making it one of the primary reasons why the system is broken, in turn making it one of the primary reasons why the Democrats are attempting to nationalize health care.

However, this measure is also a major reason why it is unconstitutional for Congress to nationalize health care.  Yes, Congress does have the right to regulate commerce between the states.  However, Congress has no power whatsoever to regulate commerce within an individual state.  By refusing to allow insurance companies to compete across state lines, Congress has lost any legal right it would have to regulate health care.

Thus, Congress has created a sort of legal “catch-22.”

Perhaps the most common excuse that big government proponents use to enact statist policies is the “necessary and proper clause” of the Constitution.  The “necessary and proper clause” reads as follows:

“The Congress shall have power…  To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

Liberals (and conservatives when it is convenient for them) tend to stop paying attention to this clause after the word “proper” and interpret it to mean that Congress has the power to do as it wishes, as long as the measure is both necessary and proper.  This is not true.  As clearly stated above, Congress can only [legally] pass laws which are necessary and proper to executing the powers listed in Article 1, Section 8 of the Constitution.

But, even if this clause does allow Congress to pass any law that is both “necessary and proper,” the insurance mandate is still an unconstitutional violation of this clause.  For a law to meet the qualifications in the above clause, the law would have to be both “necessary,” and “proper.”

The fact of the matter is that this mandate is not “necessary.”  Many people are uninsured by choice.  They have the means to purchase insurance but for whatever reason choose not to.  I wrote about this more extensively here.  But here are a few quotes:

“A lot of other people are also voluntarily uninsured.  For example, about 9 million people (more than one in five of the uninsured) are eligible for employer insurance and decline to enroll even though the employer share of the premium is usually nominal.”

“The largest increase in the number of uninsured in recent years has occurred among higher-income families.”

“Further, over the past decade, the number of uninsured increased by 54% in households earning between $50,000 and $75,000 and by 130% among households earning $75,000 or more.  By contrast, in households earning less than $50,000 the number of uninsured decreased approximately 3%.”

What the above quotes indicate is that many people who do have the financial ability to purchase health care coverage decline to do so.  These people would prefer to use their money to purchase other items, or to save.  For these people, it is NOT necessary that they have health insurance.

Two further reasons why this bill is unconstitutional are found in the Constitution in Article I, Section 9.

One clause in Section 9 reads as follows:

“No Bill of Attainder or ex post facto Law shall be passed.” A bill of attainder is a law which targets a specific group of people.  Requiring individuals to purchase health insurance under penalty of fine or imprisonment violates this prohibition by directly targeting those who choose not to purchase insurance.

I spoke with Dr. Robert Levy, Chairman of the Cato Institute, and the legal scholar behind the D.C. v. Heller case.  I asked Dr. Levy if the proposed individual mandate constitutes a violation of the Constitutional prohibition on bills of attainder.  His response is below (all emphasis added by me):

“As you correctly note, Article I, sec. 9 of the Constitution forbids the federal government from enacting bills of attainder – broadly defined as legislative acts, civil or criminal, that inflict punishment without a judicial trial.  The most egregious bills of attainder designate by name the parties to be punished.  But the Supreme Court has also invalidated legislation where the names are omitted, yet could be ascertained without great difficulty. See, e.g., United States v. Brown, 381 U.S. 437 (1965) (federal crime for member of Communist party to serve as officer of labor union).

Legislative bodies are supposed to enact general rules, broadly applicable, that grant rights, impose obligations, or prohibit acts.  The judiciary then decides whether specific persons are entitled to a right or bound by an obligation or prohibition.  In carrying out their function, courts have to follow prescribed procedures — e.g., jury trials and rules of evidence — that are not applicable to legislatures. That’s why the Bill of Attainder Clause was included in the Constitution — to prevent legislatures from punishing identifiable persons or groups without giving them an opportunity to defend themselves.

For the Bill of Attainder Clause to be successfully invoked, a court would have to conclude that it was the legislature’s intent to punish rather than to regulate for a legitimate political purpose.  In my view, the prospects for a successful bill of attainder challenge to the insurance mandate are negligible – but only because the Supreme Court is less attentive than you and I to the Constitution.“

Besides the insurance mandate, this bill fails on several other Constitutional grounds.  The 10th Amendment reads as follows: 

“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.” This expressly means that all powers not mentioned in Article 1, Section 8 of the Constitution belong to the states or the people.  Thus, because health care is not mentioned in the Constitution, this power belongs to individual states.

While this provision would allow states to create their own state run health acre plans, it would not allow states to require insurance mandates, nor would it allow them to ban the provision of private health insurance.  According to Article 1, Section 10 of the Constitution, “No State shall… pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts.” The prohibition on laws impairing the obligation of contracts means that no state can interfere with the rights of citizens to enter into private contracts with insurance providers (or with any other business).

Finally, as mentioned above Congress has already declared that health insurance is not classified as interstate commerce.  Remember that by denying insurance providers the right to sell insurance across state lines, they have made health care an intrastate issue, rather than an interstate issue.  Congress simply does not have the power to regulate intrastate commerce.

The fact of the matter is that no matter how badly liberals want this bill to pass, it is unconstitutional.  Congress does not have the legal power to enact this law.

I hate to even bring this up, but there is one way that the Democrats could pass a bill of this magnitude legally; they would need to amend the Constitution to grant Congress the right to provide health care.

Illinois Congressman Jesse Jackson, Jr. has proposed such an amendment.  While I would oppose the ratification of this amendment, its ratification would at least lay the legal grounds under which the government could provide health care.  Until such an amendment passes, the federal government’s legislation regarding health care is in direct violation of the Constitution, and as such, should be ignored or nullified by the States.

Americanly Yours,

Phred Barnet

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