Obamacare is Unconstitutional – Part 1

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.

Washington Can’t Even Run a Mail Delivery System

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?

An Open Letter to Senator Kay Hagan (D-NC)

Dear Senator Hagan,

It is with great disappointment that I contact you about your support of the Senate’s version of healthcare reform.  Not only will the legislation that you and 59 other misguided souls passed today not address the ills facing our healthcare system, the measure is plagued by the 4 “c’s” – constitutionality, cost, corruption, and consent.

I realize that questioning the constitutionality of Congress taking up healthcare reform in the first place will fall on deaf ears, but humor me for a minute.  All congressional powers are enumerated in Article 1 Section 8 of that document.  Healthcare is not one of them specified in that section therefore it is a power retained by the people or the states through Amendment 10.

Now, I know you are next going to bring up jurisdiction under the “General Welfare” clause in that same section, but suffice it to say it is illogical to construe that the framers of the Constitution intended to give Congress unlimited powers through that clause and then in the same section go on to enumerate specific powers of Congress. 

There is also the question of the meaning of the “interstate commerce” clause.  Power grabbing members of Congress use this one all the time for such things as banning guns in schools and imposing a playoff system on college football.  I am sure members of Congress would argue that healthcare reform also falls under interstate commerce.  Under this convoluted thinking everything could be regulated by Congress.  Y’all seem to ignore the original purpose of the clause – to prevent states from imposing protectionist measures against each other’s industries.  Case in point is our inability to purchase health coverage from other states. 

Of course, the legislation also brings up other Constitutional issues besides whether Congress has jurisdiction over healthcare.  There is the issue of forcing American consumers to purchase something against their will.  There is also the concern that the Medicaid money for Nebraska that bought Senator Nelson’s vote is a violation of the equal protection clause since other states will have to foot the bill for their portion of the increased Medicaid costs that the bill will cause.  Any way you slice it the Senate healthcare reform bill is fraught with all sorts of constitutional issues.  You should have voted against the measure simply to honor your oath to the Constitution.

The second “c” plaguing the healthcare reform bill you voted for is cost.  According to the Congressional Budget Office, claims the legislation would save Medicare $246 billion are erroneous.  In a statement, the CBO indicated that members of your party were essentially “double-counting the impact of the savings the legislation would generate” because the savings “can’t both finance new programs and help pay future expenses for elderly covered under the federal program.” 

In your speech after voting for the measure you indicated that the bill will both reduce costs and expand coverage.  With all due respect, these two things are mutually exclusive.  The subsidies Uncle Sam will pay to the millions of uninsured Americans so they can afford coverage will be enormously expensive.  States will be burdened with paying their share of expanded Medicaid costs.  Furthermore, your statement is reminiscent of the politicians’ claims in 1965 when Medicare Part A  was passed.  They claimed that costs would be $9 billion by 1990.  The actual cost was $67 billion.  In 1987, Medicaid added a special hospital subsidy to its coverage which was projected to cost $100 million.  By 1992, costs stood at $11 billion per year.  You politicians have a hard time saying no to people.  Thus, given logical deduction and historical evidence it is easier to believe that the Senate plan will dramatically increase costs.

The third “c” afflicting the Senate health care bill you supported is corruption.  Thirteen got special perks for their votes totaling tens of billions of dollars.  The most infamous were Mary Landrieu’s “Louisiana Purchase” and Ben Nelson’s “Nebraska Compromise.”  If the bill was so good why did Harry Reid have to bribe members of his own party to vote for it?  How could you support a measure that was laced with so much unfairness to your North Carolina constituents?  Perhaps the biggest question is: since Reid needed every liberal vote three times to end debate why didn’t you hold out for a special perk for North Carolina especially given our state’s budgetary woes?

Lastly, the Senate lacked the consent of the American people to pass the measure.  By 53 percent a majority of Americans disapproved of the legislation.  By 73 to 18 percent a huge number of Americans don’t believe you when you say the legislation will reduce future deficits.  These polls are indicative of how far out of touch members of Congress have become. 

In the final analysis, the Senate healthcare bill does nothing to tackle the causes of rising costs in healthcare.  It does not provide for more consumer responsibility by addressing the 3^rd party payer issue.  It does not address the high cost of medication by allowing Americans to purchase cheaper American made drugs from foreign countries.  It does nothing to streamline the approval process imposed by the Food and Drug Administration on drug companies which limits competition and contributes to higher costs.  Most importantly, attempts to curb healthcare costs are in vain as long as Congress continues to allow the reckless inflationary policies of the Federal Reserve to exist.  The Fed’s politically motivated pumping of new dollars and credit into the economy combined with our insatiable demand for healthcare bids the costs of services higher.  Only until we have a sound monetary system will we realize cost reductions in medical care.

In closing, you should be ashamed of your support for Harry Reid’s healthcare boondoggle.  The Senate bill you voted for lacks constitutionality, will not contain healthcare costs, was passed in a corrupt fashion, and was not what a majority of the American people wanted.  May the forces of nullification awaken to confront Congress’ stupidity on this issue!

Your constituent,

Kenn Jacobine