How the Supreme Court Should Have Ruled

June 30, 2012

The following is how a unanimous Supreme Court should have ruled with regard to the Affordable Care Act (Obamacare).

The issue before this court is whether the Affordable Care Act passed by Congress in 2010 is constitutional.  Specifically, does the Congress have the power to legislate medical care or medical care insurance coverage?  This Court finds that it does not.

Congress’ enumerated powers are found in Article 1 Section 8 of the U.S. Constitution.  No less than James Madison confirmed in Federalist Paper #45 that “The powers delegated by the proposed Constitution to the federal government are few and defined.  Those which are to remain in the State governments are numerous and indefinite.  The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected.”   And in fact, nothing in Article 1 Section 8 of the Constitution can be construed to mean that Congress has any power to legislate medicine, medical care, or the insurance coverage thereof.

Now, some will claim that Congress retains powers not enumerated in the Constitution.  In the first place, why then did the authors enumerate any powers at all in the Constitution?  Secondly, how can the meaning of the Tenth Amendment be ignored?  There is no ambiguity as to the meaning of, “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.”  James Madison in Federalist Paper 45 again, “The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”  Thus, the power to legislate health care, like marriage, education, driving licenses, and other “objects of the ordinary course of affairs” resides with state governments not the federal government in our system of governance.

But, even that explanation of enumerated powers does not satisfy those that are voracious in their hunger to do good and enact measures at the federal level of government that will take care of us from cradle to grave.  It is not the job of this Court or really any court to determine the social worthiness of legislation.  The job of the courts is to determine the law, decide constitutionality, and dispense justice by protecting rights.

So, it is wrong for political forces to use vague terms from the Constitution to further their ends.  The most often used term is the so-called Interstate Commerce Clause.  The 16 words in the clause have historically been used to allow Congress to regulate everything from speed limits on the nation’s roads to handicap ramps on sidewalks to regulating lawn mower emissions.  But the original intent of, “To regulate commerce with foreign nations, and among the several states, and with the Indian tribes” was not to give Congress the power to regulate all things commercial.  It was to make “normal” or “regular” commerce between the states.  Under the Articles of Confederation the States had a habit of enacting impediments to free trade between them.  Alexander Hamilton alluded to this in Federalist Paper #22 and indicated his belief that a “national control” (Interstate Commerce Clause) to restrain this impulse was necessary.  Thus, in the case Gibbons v. Ogden (1824), this Court used the Interstate Commerce Clause to strike down an anti-free trade act of the legislature of New York.

Therefore, it is found by this Court that the Affordable Care Act of 2010 is hereby deemed unconstitutional.  No justification whatsoever can be found for Congress to have assumed the power under the U.S. Constitution to pass this act.  It is hereby declared null and void.

Of course, it is not surprising that the Court did not follow the Constitution in its ruling.  A long time ago, we lost all semblance of the constitutional republic the Founding Fathers gave us.  Now we are stuck with a make-it-up as you go, lawless regime.  Consequently, we are stuck with a massive federal boondoggle which will ultimately raise the costs of health care, bankrupt the county further, and move us closer to National Socialism where government funnels through legislation and regulation consumers to favored corporations.  In this case the insurance industry.

Kenn Jacobine teaches internationally and maintains a summer residence in North Carolina


Is the Solyndra Affair an Impeachable Offense?

September 26, 2011

Unless you have been under a rock or possibly out of the country (a benefit of the doubt I am willing to extend to my overseas teacher colleagues) you know by now that there is great outrage in Washington, D.C. over the Obama Administration’s $535 million loan to green company and now bankrupt entity Solyndra.  Investigations have been launched by both the Justice Department and Congress investigating whether Solyndra executives misled them during the loan application process.

Of course, the hubbub about Solyndra executives deceiving the Administration to get the loan is simply a smokescreen.  Politically, the Solyndra debacle makes Obama look bad just as he begins to launch his reelection campaign.  It not only calls into question the judgment of his administration but its ethics.  To complicate matters, besides endeavoring to support a renewable energy company, the Administration’s loan to Solyndra was also intended to minimize the risk of venture capital firms invested in the company.  One investor in Solyndra was Oklahoma billionaire and Obama campaign fundraiser George Kaiser.  Could it be that the Solyndra loan was fast-tracked and a rash decision made because a big time Obama supporter had interests in the company?  If it is proven would that represent an impeachable offense?

In reality, even if those allegations prove false Obama’s actions are still impeachable.  Nowhere in the Constitution, that the president swore an oath to, is the federal government granted the power to loan to, subsidize, or guarantee the loans of businesses.  This is corporatism similar to what existed in Mussolini’s Italy in the 1920s and 30s.

What the Constitution does say is that the President “shall be removed from office on impeachment for and conviction of treason, bribery, or other high crimes and misdemeanors”.  The key phrase is “high crimes and misdemeanors”.  What are they?  They were the grounds used by the English parliament to impeach officials of the crown dating all the way back to 1386.  Among the offenses included in high crimes and misdemeanors was misappropriation of government funds.  If using tax dollars, including those of other energy companies, to benefit certain players in the marketplace isn’t a misappropriation of government funds then I don’t know what is.

Certainly, Obama is not the first president to practice corporatism.  Jimmy Carter bailed out Chrysler in the 1970s and TARP was signed into law by George W. Bush to name just two.  Impeachment is a very political endeavor anyway and for most politicians in Washington the Constitution is irrelevant.  But the next time you hear some politician vilify Solyndra’s executives remember it’s just a smokescreen.  Washington shouldn’t have made the loan in the first place.

Kenn Jacobine teaches internationally and maintains a summer residence in North Carolina


A Return to the Gold Standard is a Must

September 21, 2011

Money printer extraordinaire and Federal Reserve Chairman Ben Bernanke is at it again.  He and several of his central banking buddies in Europe and Asia are going to lend dollars to non-U.S. banks that lack adequate liquidity to operate.  Many of the recipient banks are feeling the pinch because of their exposure to the Greek debt crisis.

Of course this isn’t the first time the Fed has lent our money to foreign banks to stave off their insolvency.  In July of 2009, Bernanke testified in front of Congress that the Fed had loaned over $550 billion to foreign banks during the height of the financial crisis in 2008.  And thanks to the Dodd-Frank Wall Street Reform and Consumer Protection Act a one-time General Accounting Office audit uncovered a remarkable $16.1 trillion in Fed loans to various banks including non-U.S. ones during the same time frame.

Now, it’s bad enough the Fed has and will again use our money to bailout foreign banks that were irresponsible.  But, the latest round of foreign bailouts comes at a time when it is being reported that tent cities filled with homeless folks are becoming commonplace across America and some Americans are resorting to dumpster diving to feed their families.  Is this what America is coming to?  Our central bank helps Greek citizens retire at fifty while our citizens live in nylon igloos while wallowing in trash dumpsters for their next meal?  Worse yet, besides Ron Paul, no member of Congress or the Obama Administration has expressed any outrage over the foreign bailouts.

The whole sordid affair is yet another reason why we need to return to a gold standard to protect the integrity of the dollar.  As Congressman Paul has stated many times, we must return to the constitutional mandate requiring gold and silver be used as money.  Article 1, Section 10, Clause 1 of the Constitution states in part, “No State shall…emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts…”

Many anti-constitutionalists will argue that the clause only applies to the states and the federal government can use what it wants for money.  Thus the current fiat dollar system is legal.

But upon closer examination of history the anti-constitutionalists are proven wrong once again.  During the colonial period of our country’s history, the Spanish milled (silver) dollar was the predominant medium of exchange in the original Thirteen Colonies.  .  In July of 1785, Congress voted unanimously to make the dollar the monetary unit of the United States to emulate the Spanish milled (silver) dollar.  On August 8, 1787, Congress resolved that the new American dollar would contain three hundred and seventy-five grains and sixty-four hundredths of a grain of fine silver.  This measure of silver made the new American dollar equal in value to the Spanish dollar.

At the same time in Philadelphia, the Constitution was being written by many of the same people who adopted the silver dollar standard for the country in the Continental Congress.  Thus, these men as well as their Constitutional Convention colleagues were well aware that the silver dollar had become and was the official monetary unit of the United States. As a matter of fact, the term “dollar” is referred to twice in the Constitution – Article 1, Section 9, Clause 1 and in the Seventh Amendment.

Where it is not mentioned is under Congress’ powers in Article 1 Section 8.  Additionally, gold and silver are not mentioned there either.  The only requirements for money in that section are that Congress has the power “…to coin money and regulate the value thereof…”  And a month before the Constitutional Convention adjourned Congress did just that by making the silver dollar with three hundred and seventy-five grains and sixty-four hundredths of a grain of fine silver the monetary unit of the country.

Thus Ron Paul is correct when he says the Constitution calls for the federal government to use gold and silver money.  It was implied in Article 1 Section 8 Clause 5 because that is what existed at the time of the writing of the Constitution.  Article 1, Section 10, Clause 1 was a reaffirmation of that fact and a prohibition for states to use anything but gold and silver in payment of debts.  After all, what’s good for the goose is good for the gander.  Why would the states be prohibited from using non-gold and non-silver coins when the federal government isn’t?  That would make no sense.

So now that we have ascertained that the current fiat currency system in the U.S. is unconstitutional, so what?  The question is, how would a gold and/or silver backed dollar protect our currency from the Fed’s reckless lending overseas?  With a gold standard the Fed would be prevented from doing this because every Tom, Dick, and Harry who holds dollars could redeem them for gold.  If enough money printing took place, U.S. gold reserves would run dry and the dollar would be backed by nothing -making it worthless.  No responsible leader would let this happen.  In fact, this system worked well at preventing high inflation and huge debt accumulation until 1971.  However, increased spending on the Vietnam War and Lyndon Johnson’s so-called “Great Society” caused the dollar to lose value.  Instead of cutting federal spending to remedy foreigners redeeming their dollars at an alarming rate for our gold, President Nixon ended dollar to gold convertibility altogether.  You be the judge, since that fateful event in 1971 our national debt has soared and general prices in the U.S. have skyrocketed by 435 percent!  It’s no wonder the poor are getting poorer and the rich are getting richer.

And Bernanke’s current lending to foreign banks will only exacerbate the situation.  The supply of dollars will continue to increase and at some point soon prices will go much higher.  The bankers who represent the rich will be okay while the poor will be devastated by inflation.  All because our dollar is not backed by gold.  Let’s hope that grocery stores continue to throw away expired food into dumpsters and the price of nylon tents do not increase.

Article first published as A Return to the Gold Standard is a Must on Blogcritics.

Kenn Jacobine teaches internationally and maintains a summer residence in North Carolina


Bill O’Reilly Should Do His Homework

September 13, 2011

Last week, O’Reilly Factor producer Jesse Watters confronted Congressman Ron Paul at New England College to ask him why he was not interested in appearing on Bill O’Reilly’s show.  One thing led to another and eventually Watters asked Dr. Paul about his position on the Gold Standard.  Dr. Paul responded that he wanted the country to return to the constitutional mandate that money should be either gold or silver.  At the end of their discussion, Watters asked Dr. Paul why he couldn’t have just come on the show and explained gold and silver to O’Reilly.  Dr. Paul responded, “He wouldn’t have understood it”.

Dr. Paul couldn’t have been more accurate in his assessment of O’Reilly’s knowledge of the Constitution.  On his show on September 7, Bill O’Reilly had a segment where he and Watters ridiculed Dr. Paul for his constitutional position on gold and silver.  They stated their joint belief that the Constitution ”…doesn’t say anything about gold and silver”.  Both men indicated that Dr. Paul was misinterpreting the Constitution.  O”Reilly even asked Watters if Paul is a “loon”.

If O’Reilly or his producer would have just done a little research (I mean it’s fairly easy today given a little thing called the internet) they would have understood that Dr. Paul was spot on with his interpretation of the constitutional mandate that gold and silver be used for money.  .

If O’Reilly and Watters had done their homework they would have known that Dr. Paul bases his position about gold and silver as money on Article 1, Section 10, Clause 1, of the Constitution:

“No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.”

Now, on the surface it appears that Congressman Paul did misinterpret the Constitution given that Article 1 Section 10 specifically states that “No State shall… make any Thing but gold and silver Coin a Tender in Payment of Debts…  This clause clearly only relates to the states and what they are prohibited from doing.  But, sometimes an issue is more than meets the eye.

As renowned constitutional lawyer, Edwin Vieira Jr. has written, during the colonial period of our history, the Spanish milled (silver) dollar was the predominant medium of exchange in the original Thirteen Colonies.  This had to do with Spain’s important commercial and political power of that time.  In July of 1785, Congress voted unanimously to make the dollar the monetary unit of the United States to emulate the Spanish milled (silver) dollar.  On August 8, 1787, Congress resolved that the new American dollar would contain three hundred and seventy-five grains and sixty-four hundredths of a grain of fine silver.  This measure of silver made the new American dollar equal in value to the Spanish dollar.

At the same time in Philadelphia, the Constitution was being written by many of the same people who adopted the silver dollar standard for the country in the Continental Congress.  Thus, these men as well as their Constitutional Convention colleagues were well aware that the silver dollar had become and was the official monetary unit of the United States. As a matter of fact, the term “dollar” is referred to twice in the Constitution – Article 1, Section 9, Clause 1 and in the Seventh Amendment.

I suppose what confused O’Reilly and Watters was that under Congress’ powers in Article 1 Section 8 the terms dollar, gold and silver are not mentioned.  The only requirements for money in that section are that Congress has the power “…to coin money and regulate the value thereof…”  And a month before the Constitutional Convention adjourned Congress did just that by making the silver dollar with three hundred and seventy-five grains and sixty-four hundredths of a grain of fine silver the monetary unit of the country.

Thus Ron Paul is correct when he says the Constitution calls for gold and silver money.  It was implied in Article 1 Section 8 Clause 5 because that is what existed at the time of the writing of the Constitution.  Article 1, Section 10, Clause 1 was a reaffirmation of that fact and a prohibition for states to use anything but gold and silver in payment of debts.  After all, what’s good for the goose is good for the gander.  Why would the states be prohibited from using non-gold and non-silver coins when the federal government isn’t?  That would make no sense.

If Bill O’Reilly or Jesse Watters had done about a half hour of research on the internet they would have known what the Constitution said and the historical context of the issue.  They would have known that the Constitution does call for money backed by gold and silver.  Does O’Reilly’s egregious mistake give me the right to question whether he is a loon?  No, perhaps a more appropriate question to ask is, is he an intellectual sloth?

Kenn Jacobine teaches internationally and maintains a summer residence in North Carolina


Lies, Intolerance, and Disrespect for the Rule of Law

August 22, 2010

President Obama was absolutely correct last week when he proclaimed that the Cordoba Initiative, under the Constitution, had “the right to build a place of worship and a community center on private property in lower Manhattan, in accordance with local laws and ordinances.”  Of course the president’s remarks set off a firestorm of responses from Republicans looking to capitalize on the issue in this election year.  Sen. John Cornyn (R-Texas), chairman of the National Republican Senatorial Committee, told “Fox News Sunday” that Mr. Obama’s view “demonstrates that Washington, the White House, the administration, the president himself seems to be disconnected from the mainstream of America.”  Former House Speaker and potential Republican presidential candidate in 2012 Newt Gingrich said on his website last month simply “No mosque.”  Lastly, of course, the Jesse Jackson of 21st Century political America Sarah Palin wrote in a Facebook message originally posted July 20 – “Many Americans, myself included, feel it would be an intolerable and tragic mistake to allow such a project … to go forward on such hallowed ground.”  These remarks and others like them represent what is so wrong in America today – deceit, intolerance, and disrespect for the rule of law.

In the first place, Palin is stretching the truth by using the “hallowed ground” rationale. The proposed site of the mosque is several blocks from Ground Zero and would be surrounded by a store offering lingerie, a peep show, and sex toys, at least 11 bars, and a strip club.  Calling this neighborhood “Hallowed Ground” is like attaching the same nomenclature to the Strip in Las Vegas.  Given the current makeup of the area, a mosque would add a spiritual influence to its fabric and actually make the district more “hallowed”.  In any event, Palin’s statement, like many uttered by our politicians today, is misleading and has certainly led many Americans to a false opinion of whether the mosque should be built.  

Newt on the other hand employs direct intolerance in his opposition to the mosque project.  “No mosque” leaves little room for negotiation.  How can someone who possibly aspires to be president be so vehemently discriminatory?  Since there are already 10 churches and 3 synagogues in lower Manhattan near the Ground Zero site, a mosque would actually enhance the diversity of that community.  Additionally, these are times when people of different faiths should come together to solve problems and be role models of tolerance and cooperation.  I can imagine no greater tribute to those lost on September 11, 2001 than for the churches, synagogues, and mosques near Ground Zero to work together on projects that promote understanding and peace.  With Newt’s thinking this won’t be possible.

Lastly, Senator Cornyn should know that property rights under the Constitution are not a popularity contest.  Just because a majority of Americans hold a certain opinion, in this case that the mosque should not be built in Lower Manhattan, it does not mean it is the law.  The Constitution specifically grants all Americans equal protection under the law and protects us against deprivation of life, liberty, or property without due process of law.  The builders of the mosque have broken no laws and are entitled to the same justice as churches and synagogues.  Thus, they have a right to build their place of worship on their property.  Cornyn’s inference is dangerous because it violates the Constitution by making mob rule king and minority rights arbitrary at the whim of the mob.  At a time when property rights are already under attack from both courts and policymakers, all Americans should stand with the Cordoba Initiative in support of its property rights.  By doing so, they may be defending a future attack on their own.

The debate over the so called “Ground Zero Mosque” is representative of the lies, intolerance, and disrespect for the rule of law which has become so pervasive in American society.  To gain an upper hand in a campaign politicians lie.  We see this all the time in campaigns where candidates have lied about their opponent or themselves.  We have become intolerant by labeling those we don’t agree with “racist”.  More ominously, we have become a society averse to the rule of law, by condoning leaders who lie under oath, lie to start wars and invade sovereign nations unprovoked.  Instead of chastising the president for defending the Constitution, it would have been refreshing if Cornyn, Palin, Gingrich, and others who claim to support the same document, would have come out in support of the president’s position.  Perhaps in America’s current environment this is too much to ask?

Article first published as Lies, Intolerance, and Disrespect for the Rule of Law on Blogcritics.


Obamacare is Unconstitutional – Part 2

April 8, 2010

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.

Of course, liberal interpreters of the Constitution always ignore what they don’t like and cite those clauses that they say gives Congress the ability to do whatever.  For the sake of not being redundant, we will move on from our discussion of the “general welfare” and “necessary and proper” clauses that we had last week and instead focus on a another clause big government types like to misinterpret – the interstate commerce clause.

This clause also found in Article 1 Section 8 simply says, the Congress shall have power “To regulate commerce with foreign nations, and among the several states, and with the Indian tribes…” It was included in the Constitution in reaction to the failure of the Articles of Confederation in preventing states from erecting protectionist trade barriers against each other.  Essentially, the clause gave Congress the power to ensure a free trade zone between all the states.  No less than the Father of the Constitution, James Madison confirmed this in an 1829 correspondence with Virginia politician Joseph C. Cabell,

“Yet it is very certain that it grew out of the abuse of the power by the importing       States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government, in which alone, however, the remedial power could be lodged.”

The interstate commerce clause did not give Congress the power to enact minimum wage laws, worker safety regulations, Social Security, health care legislation, or the thousands of other statues Congress has enacted through the years.  As a matter of fact, Madison also confirmed this in Federalist Paper 45,

“The powers delegated by the proposed Constitution to the federal government are    few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”

The above text blows a huge hole in the argument of statists that the Constitution is a liberal document that gives wide discretion to Congress to provide for us from cradle to grave.  According to Madison, whose fingerprints are all over the document, no far-reaching powers were ever given to Congress.  In essence, Congress was given jurisdiction over “war, peace, negotiation, and foreign commerce” while the states had jurisdiction over “the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”  Under this definition, health care falls under the domain of the states.  Of course, that is where it has been until Obamacare.

I understand that through the history of this country the Congress has taken great liberties (no pun intended) with regard to passing unconstitutional acts and the Supreme Court has let it.  But, Congress has never required Americans to buy a product or service from a private provider.  The Court must strike this provision of Obamacare down otherwise Congress’ power would become virtually limitless.  Getting away with violating Article 1 Section 7 is bad enough, but if the Court allows Congress to get away with forcing Americans to purchase a product ultimately at the end of a gun barrel, then we are further along the road to a fascist state then I even imagined.


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.