By SN
Sunday January 3, 2010
Orrin G. Hatch, J. Kenneth Blackwell, and Kenneth A. Klukowski – January 2, 2010:
President Obama’s health-care bill is now moving toward final passage. The policy issues may be coming to an end, but the legal issues are certain to continue because key provisions of this dangerous legislation are unconstitutional. Legally speaking, this legislation creates a target-rich environment. We will focus on three of its more glaring constitutional defects.
First, the Constitution does not give Congress the power to require that Americans purchase health insurance. Congress must be able to point to at least one of its powers listed in the Constitution as the basis of any legislation it passes. None of those powers justifies the individual insurance mandate. Congress’s powers to tax and spend do not apply because the mandate neither taxes nor spends. The only other option is Congress’s power to regulate interstate commerce
A second constitutional defect of the Reid bill passed in the Senate involves the deals he cut to secure the votes of individual senators. Some of those deals do involve spending programs because they waive certain states’ obligation to contribute to the Medicaid program. This selective spending targeted at certain states runs afoul of the general welfare clause. The welfare it serves is instead very specific and has been dubbed “cash for cloture” because it secured the 60 votes the majority needed to end debate and pass this legislation
A third constitutional defect in this ObamaCare legislation is its command that states establish such things as benefit exchanges, which will require state legislation and regulations. This is not a condition for receiving federal funds, which would still leave some kind of choice to the states. No, this legislation requires states to establish these exchanges or says that the Secretary of Health and Human Services will step in and do it for them. It renders states little more than subdivisions of the federal government.
This violates the letter, the spirit, and the interpretation of our federal-state form of government. Some may have come to consider federalism an archaic annoyance, perhaps an amusing topic for law-school seminars but certainly not a substantive rule for structuring government. But in New York v. United States (1992) and Printz v. United States (1997), the Supreme Court struck down two laws on the grounds that the Constitution forbids the federal government from commandeering any branch of state government to administer a federal program. That is, by drafting and by deliberate design, exactly what this legislation would do.
Its almost as though congress really didn’t want this to become law, and pretty much set it up to be struck down by the surpremes. Perhaps they are hoping that after they load up the supreme court with obamabots they can try again, with something much much worse.
Very interesting. In the same issue see these articles for more info on how those that serve the people screw the people.
1. ObamaCare on Drugs
A tax increase that will cause many seniors to lose private benefits.
http://tinyurl.com/ykwcv5l
2. Mandatory Usury in One Lesson
How Congress dictated a 79.9% interest rate.
http://tinyurl.com/ylq8z79
Oh come on. There are so many things that Congress and the Presidents do, and laws that they pass, that are constitutionally suspect. None of them have ever been declared constitutionally illegal so there is no reason to believe that any of this would either….
The Constitution does not give Congress the power to require that Americans purchase health insurance
Solution: Let’s make the Constitution a living document.
Oh wait, it already is!
Of course ObamaCare is unconstitutional – this is no longer the question.
At this point there is only one question that needs answering and that is, do we wait to act after all our freedoms are siphoned off (making it virtually impossible) or do you act now?
The one indisputable fact is that Obama and his puppet-masters are running roughshod over the all documents that provide freedom over government oppression. To believe this same government will halt any incursion on liberty is an illusion.
Why? Because they have the most to gain. And there is the obvious part where they are ones doing it to us.
Hang on, it’s about to become a bumpy ride.
if this is constitutional why wouldnt it also be constitutional if the federal government ordered everyone to buy a gm car?
Does Obama smoke Photoshop?
Obama’s cigarette looks photoshopped to me. Obama’s face is crisper than the cigarette and the division at the lip looks false.
Any real PS experts out there to review the photo more definitively?
Why is this still referred to as “Obama’s Health Care Plan” or “ObamaCare”? From the outside, the abortion that came out of Congress bears very little resemblance to that bill before it went to Congress. But hey, you need sticks with which to beat your Presidents, so go ahead.
#7, he is going to sign, it, he has already said so. That makes it his plan as much as those in congress.
@#3 “Constitution a living document.” – and there lies all of the legal squabbling… Are we allowed to make it living document concerning 1st amendment ? How far? Is speech on the Internet covered? Or can we introduce Irish-like blasphemy laws?… Only reasonable expansion of interpretation is for something so new and different that the Founders couldn’t anticipate it precisely: say Internet. “Living Constitution” should never allow for what Founders knew. So, even if all other countries and UN accept some form of blasphemy law, it should never allowed to be Constitutional here.
Health care existed and was likely even bigger issue at that time. Yet, we do not find any evidence that Govt. is allowed any kind of meddling into it in the Constitution. That is why the official excuse is that the health care is “interstate commerce”… Concept that for any decent person should be obvious lie.
For the first point, if this were true there would be no Medicare, no Selective Service, no Social Security, etc. All these are required programs citizens must join.
Second, the idea that deals to secure votes on legislation is unconstitutional is the worst of the arguments. These deals have been done as long as there has been a Congress. IMHO, I would be pissed if my Senator, knowing the bill was going to pass, didn’t work to get a deal for my state. At least the ones who brokered a deal are working for their constituents.
As for the third point, there are numerous Federally Mandated State Programs already. Here is one: Clean Air Act of 1970. “Mandates the State to develop and implement an air pollution control program. Delegates to the State the authorization to administer specific federal air programs and to permit, monitor, and enforce applicable sources accordingly.” This is only one I put as an example, but there are many Federal laws that force states to create state programs to carry out Federal law. Plus, this seems like a good idea so states can tailor services to the needs of their areas. Certainly health concerns vary based on where you are in the US.
And, Fuckkennedy, it is not requiring you to buy insurance from one insurance company, but any of them, meaning that there is still competition.
Interesting points of view. So am I to understand that you support this bill or believe that the social/economic realities currently facing half the American people should be the deciding factor in health care?
I support it. I don’t think the bill right now is great, but a start. Why, let me give you an example:
A friend of mine has been a full time employee of Disney, working at Disneyland in Anaheim, CA, for several years. She gets cancer, and not even halfway through her treatment, she hits her cap. Now she and her husband must pay out of pocket for the remaining chemo and radiation. Their car broke down, they cant even afford to fix it, so they only use buses. So here she is, an employee at one of the largest entertainment giants and she is treated like this.
The problem is that Health Care is a trust, a group of companies that work together to control a marketplace (in fact, that have a Federal anti-trust exemption). Much like a cartel like OPEC, together they have created an inhumane set of rules to eliminate expenses (curing people) to maximize profits by eliminating competition between them.
All I can say is I am glad this is getting some mainstream attention.
#10,
P1: So two (or more) wrongs make a right? Just because it _is_ doesn’t mean it _should_ be.
P2: So, you think it is ok to screw the other 49 states as long as you get yours. Gotcha.
P3: Actually, those laws are outright bribery. The states don’t have to implement them. But if they don’t, they don’t get the money. These HC bills make no such distinction.
And if there was truly competition, why would the insurance industry need anti-trust protections?
No, this whole process is a power grab. Obama is just too deep in debt to the PTB to veto it. I honestly think he doesn’t have a clue what is going on in his own neighborhood right now.
So what you are saying is, we really need a single-payer tax supported health care system run by the government as in “Medicare for All?”
Damn! That’s what us pinko commie liberals have been saying all along!!! I’m glad we are all in agreement!
Chris
#12, Man-Who stories may make some people feel better about fucking their neighbor, but they don’t point to the root cause of the problem.
Why do the insurance companies have so much power and why do these bills put more money in their pockets?
LibertyLover: The system sucks as it is. People die who shouldn’t just to make sure that profits are high. The root cause is the fact that insurance is a Trust, all working together to control the market. No where in the Constitution does it say that corporate profits trump all, which is as it is now.
where were all these people concerned about the constitution when the previous administration was declaring people “enemy combatants” and throwing US citizens into military brigs for years without even charging them with anything?
#16, I agree with you.
But you haven’t answered the question yet.
“Why” are the insurance companies the Trust? How do they get away with it?
Chris1: We do need that. For what we paid for Iraq, we could have funded such a system for years (and paid for the best tech to secure airports, ports and trains from terrorism, but again, Iraq made some corporations a lot of money). There could still be premium care for those who can afford it, so people like Rush Limbaugh can doctor shop for painkillers.
Gee, Wall Street Journal, who’d’ve guessed that those guys would have an agenda. Puleeze, seems to me the same people who have nothing to say against subsidizing failed financial institutions with trillions of tax dollars are against public health care. Let me tell you something, those fat cats whose asses got saved at taxpayers expense probably get better healthcare than most of us.
LibertyLover: Why are they a trust. As I said, first they have an anti0Trust exemption, so they have no fear of prosecution and a free lease to work together. But it is obvious that they are a trust because they don’t compete. They all adopt the same practices, the same rules, to eliminate a good deal of their customership to guarantee profits. The way they all handle pools, the way they all contribute to shared lobbyists to work for their ends. How can you not say they are a trust. In fact, it is in your court, prove to me that they are not a trust and they are working to comptete?
Here is an unbiased view on healthcare. After hearing the quote, I needed to see a doctor because of nausea. “Rush After Scare: Health Care System Works Just Fine” http://www.thefoxnation.com/rush-limbaugh/2010/01/02/rush-after-scare-health-care-system-works-just-fine
#21, Sigh.
Eric, please read what I wrote in my previous entries here.
And if there was truly competition, why would the insurance industry need anti-trust protections?
Since you can’t seem to figure it out yourself, I’ll answer it for you:
They are NOT competing because the federal government, the same one trying to push these bills into law, gave them protections so they wouldn’t have to compete. And these bills give them more of the same.
This is not a first step. This is another step down the path to serfdom.
LibertyLover: I have it figured out. If you do, why ask a question. Tell me your point. Don’t be smug.
Removing the exemption was in the Senate bill for a while. The problem with this bill is the Unconstitutional procedural filibuster which changed the required votes to pass from 51 to 60, which caused the bill to deform to try and bend over backwards to make Seantors and Congressmen in the pockets of big Health happy.
However, this bill is the first step, the “slippery slope” that will open the door to future legislation until we do have a single payer health care system.
Let me ask you, what do you think should be done?
# 22 I understand your nausea. I would have fixed his ass by making him use the same health care as Ted Kennedy did.
#24, I wasn’t being smug.
You said in #10
And, Fuckkennedy, it is not requiring you to buy insurance from one insurance company, but any of them, meaning that there is still competition.
Note the use of the word “still.” That means you feel there is some now.
Then you said in #12,
[…]by eliminating competition between them.
First you said there was competition and then you said there wasn’t.
Is there competition or not? That’s what I was trying to pull out of you.
EricPhillips said, “For the first point, if this were true there would be no Medicare, no Selective Service, no Social Security, etc. All these are required programs citizens must join.”
Sorry, but Medicare and Social Security are paid for by taxes. You don’t have collect either benefit if you don’t want too, but you still have to pay the tax. Had congress
Second, the idea that deals to secure votes on legislation is unconstitutional is the worst of the arguments. These deals have been done as long as there has been a Congress.
But what is unconstitutional is a federal law that requires one tax rate for 49 states and a different, much lower rate for the single state whose senator brokered a special deal to get his vote.
“As for the third point, there are numerous Federally Mandated State Programs already. Here is one: Clean Air Act of 1970. “Mandates the State to develop and implement an air pollution control program. Delegates to the State the authorization to administer specific federal air programs and to permit, monitor, and enforce applicable sources accordingly.”
Wrong. What the Clean Air Act does is mandate an air program. The states can run if they want, but if they don’t or their program is deficient, then the program must be administered by the federal EPA. For a number of years, the Idaho legislature said “screw you” and forced EPA to administer their state’s air program. (Which EPA hates to do because it isn’t funded for it.) No such provision exists in the health care bill; it’s dumped upon the states and they can’t say no.
“And, Fuckkennedy, it is not requiring you to buy insurance from one insurance company, but any of them, meaning that there is still competition.
It’s a federal law that requires a citizen to purchase a product from a private party. And you think this is constitutional? And you really don’t have a problem with this??? This isn’t the same as requiring car insurance, because I don’t need car insurance if I don’t have a driver’s license. This is a law that in effect says, “You live; therefore you must buy.”
Please, please, please tax me $5000 per year and put me in a meaningful comprehensive public-option heath insurance program
Healthy 50 year old male, non-smoker.
Current premium: $370 / month ($4400 /year), one of the cheapest programs available, with the following great benefits:
– No dental
– No vision
– $5000 / year deductible for any claims.
– All doctors visits must be pre-approved unless determined to be an emergency… and the insurance determines what is an emergency.
– Insurance can refuse to renew or can adjust fees at any time.
So if I get sick, it costs me a minimum of $9,400 / year before I see a penny back in insurance. And they can drop me that same year and not pay anything else, even though I have paid with no claims for over 10 years.
$5000 / year for a public option with no deductible and guaranteed continued coverage sounds mighty attractive.
Obama has said a great many things about health care nearly all them negated by this bill.
The one thing I now believe is that he’ll sign anything they send him.
Neither he nor his supporters seem to care about the constitution expect when they can use it to support something they want done. The rest of the time they ignore it.
Both the Senate and House bill are an incomprehensible pile of steaming crap in which Congress sold out the public hundreds if not thousands of times. Most people are going to be worse off after this abomination goes into effect. If the people that voted for this thing were concerned about delivering high quality health care to the most people at the best price they wouldn’t have voted for this bill.
Seven states have already said they can’t do what Congress demands they do. This thing is going to be one big welfare for lawyers bill.
Nobody is going to have a clue what’s going to stand until after the the Supreme Court rewrites it into something half way comprehensible and deletes the parts that are unconstitutional. That’s going to take at least five to ten years.