How the Supreme Court Should Have Ruled

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?

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

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