The Commerce Clause Hoax

The other day I hinted that the President and Progressive members of Congress secretly fear the constitutional challenge to the healthcare bill. It has nothing to do with actually negating that healthcare bill per se, but rather the spill over affects of challenging the liberal use of the Commerce Clause that has given, or rather, that has allowed the Federal government to seize powers that were reserved for the States and the People when the Constitution was enacted.

Much of what the Federal government has done over the past one-hundred years has been justified through an interpretation of the Constitution and not what is actually written in the law. Since the Congress and President see fit to invoke the Commerce Clause as their justification lets take a look at that clause.

The United States Constitution
Article One
Section Eight
The Powers of Congress (third paragraph)

“To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”

While seemingly innocuous, the Commerce Clause has been intentionally manipulated ever since the days of Theodore Roosevelt. To derive the power needed to create massive agencies and oppressive regulations using this simple statement one must first ignore or conceal the words and intentions of the founding fathers. “To Regulate”, at the time the Constitution was written, simply meant “to make regular” and the authority to regulate was never meant to imply that the Federal government would have any powers beyond those that were enumerated in Article one, Section Eight. There are numerous examples that prove this interpretation in both the Constitution and in the Federalist Papers and it doesn’t take very long to find them.

The Merriam-Webster dictionary offers three definitions for “regulate” which are”:
1- To govern or direct according to rule: to bring under the control of law or constituted authority: to make regulations for or concerning (regulate the industries of a country)2- To bring order, method, or uniformity (to regulate one's habits)3- To fix or adjust the time, amount, degree, or rate of (regulate the pressure of a tire)

Congress loves to use the first definition of “regulate” to justify their actions through the use of the Commerce Clause but is that really appropriate? The Commerce Clause gives Congress to regulate Commerce with foreign nations but we all know that foreign nations are sovereign and will only recognize the rule and authority of law within the framework of their own governmental processes. Can Congress claim the Commerce Clause gives them the authority to negate the lawful structure of government in a foreign nation and burden that nation with laws and controlling regulations simply because we have trade with that nation? Of course not! As much as Congress may love that definition of regulate, it is clear that since the Commerce Clause also uses the word regulate in conjunction with commerce between the US and foreign nations; the definition that best applies would be the second “To bring order, method, or uniformity.”

In Article one, Section Eight, Congress also has the authority “to coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures”. Money is an object, so clearly one cannot control the actions of money through legislative regulation. The regulation of the value of currency can only make sense in the context of insuring that the value of money was uniform throughout the United States and that the exchange rate with foreign currency was equally uniform; that a dollar in Massachusetts was worth the same as a dollar in Georgia and both of those dollars could be exchanged for an equal amount in British Pounds.

In the Madison debates staged during the August meetings of the Federal Convention of 1787, Representative John Mason of Maryland argued the point of regulating the militia. In fact, his motion was for the “…power to make laws regulating and disciplining the militia...” Since discipline is a rule or system of rules governing conduct or activity using regulation to imply control through legislative regulation would be redundant and redundancy was not something our founders were famous for. Therefore, the word regulate in that case also referred to insuring a basic uniformity of standards for the militia. Many examples exist within the Federalist papers and each time the word “regulate” appeared, it could only have meant to guarantee a degree of uniformity.

Since the inception of the Federal government and most especially, over the last hundred years, Congress has routinely overstepped its authority and in doing so, has slowly diluted the rights of the States that were clearly denied to the Federal government by the Tenth Amendment. The Federal legislation resulting from this seizure of power is now challenging the rights of all American citizens. For the Federal government to assume a power that is not clearly enunciated as one of the enumerated powers, they must first take that power away from the States, the people or both and the Commerce Clause is what has been most often used to achieve that. The President and the Congressional Democrats will fight tooth and nail in the defense of their new healthcare legislation but much of that fight will be waged to prevent the toppling of the healthcare bill from being used as a springboard by a coalition of States intent on restoring their Tenth Amendment rights and the Constitutional balance of power.

In addition to the actions taken by the States to block the individual mandate in the healthcare bill, a number of States have already enacted legislation or have legislation pending, designed to bolster the rights of gun owners in response to the threat of new Federal legislation that would restrict our Second Amendment right to keep and bear arms. These same States are considering measures to protect the rights of those that hunt and fish now that there are threats of Federal interference with those activities as well. As the Federal government attempts to cultivate more power in Washington, the States have finally realized the danger and are taking action themselves. Eventually the cases questioning the constitutionality of the Healthcare Bill will find their way to the Supreme Court and a defeat for Obama there may open the door for the States to question the authority of the Federal government in other areas where the definition of commerce is in question or where the interstate activity of that commerce has not been firmly established.

This reigning in of the Federal government is long overdue and if these measures fail, there may be no way to restrain the Washington leviathan the States created through their own complacency. If however, the individual mandate to purchase insurance fails to pass muster for constitutionality, the healthcare bill will fall with it and that failure will set the stage for a reevaluation of other, equally intrusive Federal agencies, programs and regulations. Federal law may supersede State law as the law of the land but not if the Federal laws, are themselves, unconstitutional. The Constitution grants the Federal government authority to enact any and all laws needed to fulfill their lawful obligations under the Constitution but those obligations are few and limited. I have a feeling they are about to find out how few and how limited their powers will be and they aren’t going to like it very much.

Paul

Is the Healthcare Bill Constitutional?

Is the Healthcare Bill constitutional? This may well be the most important question ever asked in the United States and many of those States are asking it. The premise dictated by Congress is that they derive their authority to enact the Healthcare Bill through both the Supremacy Clause that states that Federal Law supersedes State law and the Commerce Clause that gives the Federal government the authority to regulate interstate commerce.

The argument in favor of the Supremacy Clause is a moot point if the law that Congress passed is found to be unconstitutional. Since the Healthcare Bill relies heavily on the funding accrued through a mandate that every American must now buy healthcare insurance, the obvious question is what actually constitutes commerce? The Congress has obviously mistaken their need to mandate that all Americans purchase health insurance to fund their program with the constitutional authority to mandate that all Americans purchase health insurance. Since the Healthcare Bill is an empty shell without that mandatory purchase, the Congress and the President are not likely to give this up easily.

So what is commerce? According to Merriam-Webster, commerce is: “the exchange or buying and selling of commodities on a large scale involving transportation from place to place”. Franklin Roosevelt broadened the definition of commerce during the Great Depression to facilitate government control of food prices. For this FDR used the argument that even the production of food products for personal consumption could disrupt the interstate price of those commodities. His rationale speculated that if too many people began growing their own foods, then the national price of food would be adversely affected, causing further economic harm. Since the nation was in a State of economic emergency, people were willing to try anything to stop the bleeding and Roosevelt got his way.

FDR’s interpretation of the Commerce Clause allowed him broad powers and he used them to create a multitude of new agencies that began the process of seizing powers that clearly belonged to the individual States under the banner of aggressively attacking the Depression and putting people back to work. Of course, the left loves to argue that is was those measure that saved the nation from economic ruin even though the enlightened and educated know that the Depression didn’t end until World War II destroyed every manufacturing center in the world except those safely located in the United Stated and the carnage killed and wounded more than 600,000 previously unemployed Americans; Americans that would no longer add to the unemployment rolls no matter what Roosevelt did.

More than seventy years later, the U.S. Congress is still using that perverse interpretation of the Commerce Clause to broaden the power of the Federal government even further. Today, as in Roosevelt’s day, for something to be considered commerce, an action had to take place and someone would have to buy, build, sell or grow something before we could claim that commerce existed. Now Congress wants to go even further and Congressional Democrats are struggling to make the case that since not buying insurance could adversely affect the commerce of healthcare, it may be lawfully regulated by Congress through the commerce clause. It was a stretch of the imagination and a violation of the Constitution when FDR claimed Congress had the right to regulate the actions of private citizens because those actions “might” interfere with interstate commerce. The idea that Congress can now regulate the inactivity of private citizens because that inactivity will interfere with a level of commerce that didn’t exist until Congress passed a healthcare bill that required the unwilling involvement of all US citizens goes beyond unconstitutional and could very well be criminal.

Why do I say criminal? Well, let’s look at the crime of extortion. Again, the Merriam-Webster definition says that extortion is: “the act or practice of extorting especially money or other property; especially: the offense committed by an official engaging in such practice”. Ok, what does it mean to extort? Merriam-Webster says that is: “to obtain from a person by force, intimidation, or undue or illegal power”.

The Healthcare bill dictates (forces) all Americans to purchase healthcare insurance. Failure to purchase health insurance will result in a fine (obtain money) of up to 2/1/2% of that persons income. The Internal Revenue Service (an official) will be responsible for confirming that you have adequate insurance and will levy and collect fines if you don’t (intimidation). Why did they use the IRS and not the massive new agency that will direct healthcare benefits and expenses? Because the IRS is the only Federal agency that can collect fines without proof of guilt or due process; forcing the afflicted citizen to prove his innocence rather than the government having to prove your guilt; a must in every other area of law.

Well, what do you know! The penalties and collection of fines established by the healthcare bill fits the definition of extortion perfectly! After all, the President and Congressional Democrats were clear that this was not a tax or else the President would have broken his promise of not imposing a middle class tax increase. Even if they called it a tax, Congress only has the Constitutional authority to raise taxes to pay the bills of the Republic and to provide for the defense of the nation but those taxes must be uniform and a tax only collected from those that do not purchase health insurance is certainly not uniform.

As with many things, once this finds its way to court the question of intent is bound to arise. Some unwitting Democrats have already provided us with the answer to that. Senator Max Baucus (D-MT) says the bill is meant to correct a maldistribution of wealth….and you thought this was about health. Speaker of the House Nancy Pelosi (D-CA) says it’s “more about diet than diabetes” indicating that they intend to use the bill to exert unconstitutional control over the general population. Representative Alcee Hastings (D-FL) invoked a quote from Thomas Edison during a meeting of the rules committee that “there are no rules here – we’re trying to accomplish something”. He then added that “all the Republicans are want to talk about are the people” as if a duly elected representative of the United States Congress can act without the consent of the governed and still claim constitutional authority. Even worse was the moronic statement made by Representative Phil Hare (D-IL) who said “I’m not worried about the Constitution; I’m worried about the thousands of people that are dying because they don’t have healthcare”.

It looks like the intentions have been clearly established here. Max Baucus wants to play Robin Hood, Nancy Pelosi wants to pick your lunch for you and I’m not sure how that squares with Alcee Hastings equivalent of one of the ruling elite saying “let them eat cake” in response to the unpopularity of the legislation. Bringing up the rear we have Phil Hastings that never even heard of the Constitution even though he swore an oath to support and defend it. And these are the people that want us to believe they have the authority to demand you buy insurance or else?

No, there is no constitutional authority for Congress to demand that you purchase a private product of their choosing for your personal use, using your money to purchase it. I’ve heard the left wing spokesmen on radio and television trying to equate this mandate with auto insurance. Well, there is a big difference. The insurance requirement is only mandated for people that choose to purchase a car for use on public roads (an act of commerce). There are no insurance requirements for vehicles that are operated solely on private property and there is no mandate for people that do not own a car to have to purchase insurance to help drive the cost down for those that do. The auto insurance mandate is required by the individual States, not the Federal government and anyone that has bothered to read the Constitution knows that the States and the people retain all powers not specifically given to the Federal government by the Constitution; including the right to regulate the operation of a motor vehicle within their respective States.

Paul

Healthcare - The Myth of Neutrality

Now that the Healthcare bill has become law, we are finally getting some of the transparency we had hoped for during the debates. Unfortunately, this transparency came too late to be of any use during the legislative process and the news is devastating. Despite the promises of budget neutrality made by the President and the Congressional Democrats, this neutrality is turning out to be a shameless and cruel hoax. While the President points to the Congressional Budget Office (CBO) report that claims the bill will provide deficit reduction of just over $100 billion dollars in the first ten years and $1.2 trillion dollars in the second ten years, those numbers were intentionally manipulated by the Democratic leadership.

The CBO can only score what it is before them. It can not extrapolate based on intent and it cannot adjust even when it knows key provisions have been left out of the materials they have been given. The $500 billion that this bill cuts from Medicare was factored in as a savings measure to provide solvency for Medicare through 2019. One would think that if it were a savings measure, that the money would remain in Medicare to restore balance to the program considering the projected rate of expansion. No; instead that $500 billion was also scored as part of the funding for a new entitlement program in the healthcare bill to provide subsidies for the purchase of healthcare insurance for low income families. Counting the same money twice in a business plan or as a proposal to investors would be a crime unless that plan or proposal is being submitted by Congress to the CBO for analysis.

The CBO must also score the bill based upon the language contained in the bill and must assume the cuts proposed in the bill will be law and will take place. Historically, the Congress has already passed cuts to Medicare in many previous years and to date, none of those cuts have ever been enacted. The CBO would love to say “Are you kidding? You guys have never made Medicare cuts before so why should we believe you will now?” The sad truth is they are prohibited from adding anything to their analysis that isn’t part of the actual language before them; including the intent and historical spinelessness of Congress.

Since the $278 billion dollar “doctor fix” was also removed from the legislation and will be considered as part of a spending package separate and apart from the Healthcare Bill, the CBO was prohibited from considering the budget implications from that as well. So far, a cursory look at the fiscal manipulation Democrats used to conceal the true cost of this bill adds up to three-quarters of a trillion dollars and that is just the beginning. It doesn’t sound like that $100 billion dollar savings in the first year is all it’s cracked up to be. As far as the $1.2 trillion dollar savings the CBO estimated for the second ten years is concerned, that is equally as fictional. What the President left out in his speech to the nation was the side note the CBO gave him on their estimates for year eleven through twenty of the program. The CBO made sure they cautioned that the estimates they provided are unreliable beyond ten years and that the projected savings can only be realized if the assumptions made by Congress in the legislation remain valid.

This is only the tip of the iceberg. Large portions of the uninsured are going to be driven into the expanded Medicaid program; a program that bears little consequence for the Federal government but can spell disaster for the individual States. It is very easy for Congressional Democrats to claim budget neutrality when they can shift 70% of this new burden onto the States and let them worry about how to deal with it. Many of these States are already struggling with budget problems of their own because of the recession and loss of tax revenue. In short, while Congressional Democrats try to sell the illusion of budget neutrality and the benefits of the healthcare bill before the November election, the States are going to have to raise your taxes, cut your services or both just to avoid bankruptcy because of the new unfunded mandates in the bill.

Many of the States realize they are already at the tax saturation point and will find it exceedingly difficult to raise taxes to offset the increased Medicaid liability without driving their real tax payers out. States like New York, New Jersey and California have already seen an exodus of the highest earners in recent years and when the affluent in these areas have finally had enough, they aren’t moving to neighboring States for a measly one or two percent decrease in taxes; they are moving to one of the seven US States that have no personal income tax which should be a lesson for us all. As world markets decline, investors are going to look for the safest place to put their money and many would prefer the security and stability of the United States. Unfortunately, the wild spending and outrageous taxes have taken us out of the running and nervous investors would rather take a chance on China’s experiment with limited Capitalism than America’s incredibly stupid experiment with Socialism.

As Federal policy drives the States closer to the brink of disaster, many are beginning to fight back. Several have passed legislation negating the individual mandate that would force citizens to purchase healthcare insurance under the new Healthcare bill and more than twenty more have identical legislation pending. Of course that legislation does not exempt the citizens and businesses in those States from the new tax liabilities so it in fact, allows people the privilege of paying more for absolutely nothing in return.

Congressional Democrats are already kicking back stating that the Supremacy Clause in the Constitution invalidates those measures reminding those States that Federal law supersedes State law. Of course the Supremacy Clause only applies to Federal law that is actually constitutional and that is where several States are applying their attention. Within minutes of the signing of the Healthcare Bill into law, a number of States filed suits challenging the constitutionality of the mandates that force individuals to purchase healthcare insurance and the unfunded mandates the States will face as the number of people enrolled in Medicaid climbs as a result of the bill.

Tomorrow, we will discuss the constitutional questions surrounding the Healthcare Bill and why Congress and the President are secretly concerned about those challenges.

Paul