Obamacare is Unconstitutional – Part 1

March 31, 2010

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.  Currently, there are already 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.

The first clause is the “General Welfare” clause, “The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States…”  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.  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.

The second clause liberal interpreters of the Constitution point to in order for Congress to do whatever it wants to is the “necessary and proper” clause.  It reads, “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.”  Many have labeled this the elastic clause which is about as accurate a label as the “Patriot Act”.  The first part ending with “foregoing powers” obviously relates to the 17 previously mentioned enumerated powers in Section 8.  The bone of contention is the phrase, “…all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.”  What are these other powers?  To liberal interpreters it means anything Congress feels should be done for the ‘general welfare”.  The real answer is the powers specified to Congress outside of Article 1 Section 8 of the Constitution. 

Article 2 dealing with the Executive Branch is a good example.  In Section 1 of that article Congress has been given the power, not enumerated in Article 1 Section 8, to determine the time for choosing electors of the Electoral College.  Article 2 Section 2 gives Congress power to enact laws dealing with certain appointments of the president.  There are several amendments  that give Congress power to, “enforce this article by appropriate legislation”.  These powers of Congress not found in the article dealing with the legislative branch are “necessary and proper for carrying into execution all other powers vested by this Constitution in the government of the United States…”  That was the original meaning of the necessary and proper clause.  Furthermore, health care is not specified in any of these other powers, thus it is outside of Congress’s powers under federalism and a clear violation to the Constitution. 

The Constitution grants very limited powers to all three branches of government, not just Congress.  Those powers are enumerated and delegated in the document.  To believe otherwise ignores the actual text and the historical context the document was written in.  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?  They wouldn’t.  This is why a strict constructionist interpretation is correct and why Obamacare is unconstitutional.

Part 2 will deal with the interstate commerce clause and why it is important to adhere to the Constitution.


Congress is Still a Rotten, Stinking Corpse

March 19, 2010

I have said it before and I will say it again, Congress is a rotten, stinking corpse.  It is no wonder that it currently has the lowest approval rating of all time.  This week more ridiculous legislation was introduced in that body that will only make our lives worse.  The bipartisan bill that was introduced would punish any country that practices currency manipulation as an unfair trade subsidy.  It would give President Obama the ability to impose retaliatory protectionist measures to level the playing field.  Of course, the impetus for the legislation is China’s alleged undervaluing of its currency, the yuan, in order to support Chinese exports to other countries.

Now, it’s funny, how the legislation comes in an election year when there is a very strong anti-incumbent mood amongst the electorate.   Many Americans who have lost their jobs in this depression are naturally fixated on statements from Washington dealing with job creation.  So as not to disappoint, Democratic Senator Charles Schumer was quoted as saying, “”There is no bigger step that we can take to promote job creation here in the US than to confront Chinese currency manipulation.”  This sounds logical on the surface, but upon closer analysis the senator as usual has it all wrong.

In the first place, to even threaten protectionist measures in such a fragile economic environment as we live in is dangerous.  The Smoot-Hawley Tariff was passed in 1930 and placed protective tariffs on thousands of imports coming into the United States from abroad.  At the time, during the Great Depression, its purpose was to protect American jobs.  Sound familiar?  Instead, the tariff caused our trading partners to retaliate with tariffs of their own thereby exacerbating an already horrendous employment situation.  What makes our politicians believe that China would not retaliate with protective measures of its own or worst yet cause the collapse of our currency by flooding the world markets with hundreds of billions of dollars it keeps in reserve?

But secondly, and much more importantly to our situation, we need inexpensive Chinese products otherwise our inflation rate would be through the roof and unemployment would be right there with it.  Here is the vicious cycle of events that is American/Chinese trade relations.  China’s products are cheaper because the cost of doing business there is less than in the U.S.  Thus, we purchase Chinese goods with dollars and treasury notes. China holds these dollars and interest-bearing bonds in reserve and then prints yuan to pay off the Chinese suppliers of our purchases.  When the smoke clears, we get cheap Chinese goods to buy, the Chinese manufacturer makes a profit, and the Chinese government acquires more units of the world’s reserve currency.  Everybody wins, right?

If the Obama Administration ends this cycle by imposing protective tariffs on Chinese goods coming into the United States, not only will the Chinese government reciprocate with retaliatory measures of its own, the prices of goods in the U.S. will rise sharply.  You see right now we export our inflation to China by way of treasury bonds and newly printed Federal Reserve notes.  Without the ability to export our debt and a lot of the dollars the Federal Reserve has been printing, all of that liquidity will be spent in the U.S. instead on more expensive goods.  As more money enters our economy prices in general will be bid up and will rise and given how much the Federal Reserve has inflated the money supply over the last few years prices will rise by a lot.  At that point, Economics 101 tells us that high prices will squelch demand and huge increases in unemployment will result.

Since the 1970s, the politicians in Washington have placed us in this no win situation with regard to trading with China.  They have destroyed our industrial base with unconstitutional mandates and regulations, and collective bargaining laws.  They have spent us into oblivion by financing a welfare/warfare state unmatched in human history.  If we impose protectionist measures against China we will incur inflation in the short run and high unemployment in the long run.  If we continue to borrow from China to buy their inexpensive goods we put ourselves on an unsustainable course.  At some point, if it isn’t happening already, China will stop financing our purchases and absorbing our inflation.  They will sell their goods elsewhere and Americans will pay higher prices.  Our standard of living will plummet and China will replace us as the world’s number one economic superpower.

But, Chuck Schumer and his colleagues on the Hill are oblivious to all of this.  Of course, they also ignore the fact that the Federal Reserve is the biggest currency manipulator in the world.  Ben Bernanke and his cabal of economic central planners better known as the Federal Open Market Committee fix interest rates and determine the supply of money.  These actions directly determine the value of the dollar.  Before Congress complains about China for not using market forces to value the yuan it should look in the mirror. 

And that is really why I consider Congress a rotten, stinking corpse.  Time and again its members grandstand for personal political gain and leave the American people with the mess.  Its hypocrisy is appalling.  Lastly, it seems like it is constantly coming up with cockamamie schemes to ruin our economy further.  This latest scheme places the blame on China for our own financial incompetence.


Supreme Court will Uphold our Right to Gun Ownership

March 11, 2010

The 2nd Amendment to the Constitution is one of the most debated portions of that document.  For generations the controversy in question is whether the Founders intended to give the right to keep and bear arms only to militias or also to individual citizens not serving in the military.

The Supreme Court may be on the verge of settling the issue once and for all.  Last week, the High Court heard arguments in its second big gun rights case in the last few years.  In 2008, the Court ruled in District of Columbia v. Heller that Washington, DC’s ban on gun ownership was unconstitutional.  The ruling was a landmark decision for proponents of 2nd Amendment rights, but it only applied to federal enclaves like the District of Columbia.  However, the case opened the door for a challenge to national gun ban laws.  Currently before the Court is McDonald v. Chicago.  At issue is whether Chicago’s gun ban is constitutional under the 2nd Amendment.  The Court’s decision in this case will determine whether 2nd Amendment rights go beyond federal property and can be applied to the states and local governments.

Things look promising for gun rights advocates in McDonald based on a quote from the majority opinion penned by Justice Scalia in Heller.  In Heller, Scalia stated, “There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms.”  He supported the majority’s position by stating the fact that gun possession was a right of Americans “…prior to the formation of the new government under the Constitution and was premised on the private use of arms for activities such as hunting and self-defense…”  Now, we have all heard the stories of the rugged frontiersmen with their guns they used for securing dinner and protecting the homestead.  Thus, Scalia’s argument makes perfect sense.  How could the authors of the Bill of Rights not guarantee a right early individual Americans already had and one so vital to their survival?  The idea that the right was not protected through the 2nd Amendment is preposterous.

But there is more from the majority opinion that supports 2nd Amendment rights for individuals.  The Court saw the individual’s right to keep arms as an important preservation of the citizen militia.  According to Scalia, “The individual right facilitated militia service by ensuring that citizens would not be barred from keeping the arms they would need when called forth for militia duty.”  At the time of the 2nd Amendment’s drafting, a militia was “the body of all citizens capable of military service”.  Thus, whether young, middle aged, or old the country may call upon you in an instant to serve in a militia to put down an insurrection or defend against foreign invasion.  Denying you the initial right to own a gun that could be needed to defend the country in a time of emergency would have been counterproductive.  The Court’s reasoning in support of individual gun rights is compelling to say the least.

Getting back to the current case before the Court, if the justices are consistent and overturn Chicago’s gun ban they will have to justify their applying the 2nd Amendment to states and local governments.  Remember that Heller only applied to firearm possession on federal property.  But, the means to apply the 2nd Amendment to states and localities is simple.  Over time, the Court has used the 14th Amendment to bind states and localities to recognizing the 1st, 4th, 5th, 6th, 7th, and 8th Amendment rights of their citizens.  In part it reads, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law…”  If the Court grants individual Americans the right to keep and bear arms under the 2nd Amendment it will apply the right to the states under the 14th Amendment.

The current Supreme Court has a golden opportunity to set the record straight with regards to individual guns rights under the 2nd Amendment.  The debate over the years has been very contentious with both sides misquoting the Founders’ statements about gun rights to suit their purposes.  The Founders made a lot of statements about gun rights and how they apply to citizen militias.  Understanding that at that time citizen militias meant “all citizens capable of military service” it is easy to come to the conclusion that the 2nd Amendment bestows a right to gun ownership to all individual Americans.  Fortunately for America, it appears the Supreme Court will come to the same conclusion later this year.


Washington Can’t Even Run a Mail Delivery System

March 3, 2010

How can Uncle Sam run national healthcare when it can’t even run a mail delivery system?  This week Postmaster General John E. Potter informed congressional staffers, postal union officials and others in Washington that the U.S. Postal Service (USPS) is bankrupt and will not survive unless it is given greater flexibility in determining delivery schedules, price increases, and labor costs by lawmakers, postal regulators, and unions.  The remarks were sparked by the fact that the USPS lost $3.8 billion last year and is projected to lose another $238 billion in the next ten years if changes are not made.  These figures notwithstanding, it is amazing to me that in 2010 we still have a government run postal system in America.  Isn’t it time to privatize the Post Office?

Article II Section 8 of the U.S. Constitution gives Congress the power “To establish post offices and post roads.  When the Constitution was ratified America was a very different place than it is today.  We were a very rural society with many of our countrymen residing in far off lands to the west.  Mail carriers provided the primary mode of delivery for important letters, documents, and packages.  In their wisdom, the Founders realized that the safest, most effective way for these items to get to their recipients was through a government run system.

But things change and today America is an incredibly advanced country.  We are a technologically savvy nation with websites, email, scanners, text messaging, and other communication devices.  In fact, the Postal Service’s financial woes stem from competition caused by technology.  Last year, the USPS experienced a 13 percent drop in mail volume primarily due to more people using email to communicate than snail mail.  Additionally, companies like UPS and Fed Ex do an excellent job of delivering urgent letters and packages not just in the U.S. but around the globe.  Lastly, some will argue that folks in rural areas will not be serviced if mail delivery became totally private.  But, this would affect very few people in modern America.  Even then the market should decide if a location is worthy of a private mail delivery system.  If the answer is no (no entrepreneur comes forward to provide the service) then those residents could relocate.

Of course, just because the Constitution grants a power to Congress does not mean it has to put it into action.  The changes sought by the Postmaster General would target delivery schedules and prices in order to close the budget gap of the postal system.  It could mean the end of Saturday mail deliveries, longer delivery times, and postage price increases that exceed the rate of inflation.  And Americans would not have a choice because the USPS maintains a legal monopoly over the delivery of non-urgent mail.  This is so typical of a government run enterprise – instead of cutting staff like the rest of America during this recession to save itself, it proposes less service and higher costs for its customers.  This is another reason why government should run nothing and why the USPS should be abolished altogether.

At the end of the day, the USPS is in trouble because it is government run.  It doesn’t react to market conditions by laying off excess staff.  It is burdened with bureaucratic waste and inefficiencies.  Its management has to petition outsiders for permission just to make changes that are needed to ensure its viability.  Even then, because it owns a monopoly over an industry and has an explicit government guarantee against failure it will cut services and raise costs on its customers – something that is not nearly as possible in a market based system.  Lastly, even though it is billions in debt and has long outlived its usefulness, no one in Washington is saying it should be abolished.  Government run enterprises just don’t know when it is time to close up shop.  We have learned these lessons from Washington running a relatively easy enterprise to operate.  The question we have to ask is, do we really want to entrust healthcare, a much more complicated endeavor, to Uncle Sam?