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

Does the Healthcare Bill Violate the Constitution?

Yesterday we discussed the Constitutional issues that have become cause for alarm when one State is exempted from a tax that all others must pay. Today I wish to raise question with the Constitutional authority Congress claims to possess to enact healthcare reforms in the first place. When the question of Constitutional authority was posed to the members of Congress we got some very interesting answers. Nancy Pelosi would only ask rhetorically “Are you serious?” Mary Landrieu said “We have some very talented Constitutional lawyers on staff that can answer that.” which in the language of politics means “I don’t know”.

The closest thing to an answer we got from a member of Congress on this very serious issue came from Congressman James Clyburn (D-SC). Representative Clyburn said that “most of what we (Congress) do here (in Washington) is not authorized in the Constitution.” I can only take that as an admission that they know they are in direct violation of the Constitution and mean to keep violating the supreme law of the land in order to advance their agenda.

The Tenth Amendment states:

Amendment 10 - Powers of the States and People.

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.

The Constitution also clearly spells out, or enumerates, the powers that were delegated to the Federal government by the Constitution under Section Eight. That section reads:

Section 8 - Powers of Congress

1- The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
2- To borrow money on the credit of the United States;
3- To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
4- To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
5- To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
6- To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
7- To establish Post Offices and Post Roads;
8- To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
9- To constitute Tribunals inferior to the Supreme Court;
10- To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;
11- To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
12- To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
13- To provide and maintain a Navy;
14- To make Rules for the Government and Regulation of the land and naval Forces;
15- To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
16- To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
17- To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; And
18- 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.

For years the Congress has been forcing legislation upon us claiming to promote the “general welfare, taking their authority from the first paragraph of Section Eight. They have similarly misused the commerce clause which gives the Congress the authority to “regulate” commerce between the States (item 3 above). While that seems reasonable, at least to them, it does require an examination of what those phrases meant to the men that drafted the Constitution before Congress can derive authority from those clauses.

To “regulate” was a very specific term at the time the Constitution was drafted. It meant exactly what it says; to make regular. The commerce clause was intended to provide Congress with the tools it needed to inure that the conduct of business between the states was uniform. It was intended to allow businesses in any state, free and unfettered access to markets anywhere. It was never meant to give the Congress authority to license, impose regulatory control or provide federal oversight of American businesses.

The term “General Welfare” is responsible for more unlawful impositions by the Federal Government than any one phrase in the Constitution. To understand it, one must read it literally. Since the architects of the Constitution had taken great pains to use the words States, citizens and people in other areas of the document, to “provide for the common Defence and general Welfare of the United States” only gives the Congress authority to provide for the “General Welfare” of the United States as a governmental entity; the United States as a body of states and not the people that reside within those states.

In the Federalist Papers, Thomas Jefferson wrote:

“To lay taxes to provide for the general welfare of the United States, that is to say, "to lay taxes for the purpose of providing for the general welfare.” For the laying of taxes is the power, and the general welfare the purpose for which the power is to be exercised. They are not to lay taxes ad libitum for any purpose they please; but only to pay the debts or provide for the welfare of the Union. In like manner, they are not to do anything they please to provide for the general welfare, but only to lay taxes for that purpose. To consider the latter phrase, not as describing the purpose of the first, but as giving a distinct and independent power to do any act they please, which might be for the good of the Union, would render all the preceding and subsequent enumerations of power completely useless.

It would reduce the whole instrument to a single phrase, that of instituting a Congress with power to do whatever would be for the good of the United States; and, as they would be the sole judges of the good or evil, it would be also a power to do whatever evil they please.”

We can clearly see by Jefferson’s text that the “General Welfare” that Congress has been charged with providing for is the Welfare of the Union and not of its citizens. He adds further that to interpret the clause as the Congress is now doing, is dangerous and if allowed, could use that interpretation to do as much evil as good. I think it is fair to say that we have reached the point where the interpretation is being used by Congress to do great evil and this bill is only one example. A healthcare panel that will determine your care options in place of your doctor is about as evil as it gets. Oh your doctor can still provide the care he believes you need. He just can’t expect to get paid for his services if he strays from the mandates of the Health Benefits Panel.

Paul

Is Senate Prostitution Constitutional?

Now that we have had the opportunity to digest the magnitude of the Senate vote on Healthcare Reform taken in the early morning of December 24th, the television has been ablaze with heated debates between factions of both pro and con camps. I couldn’t help but notice how many Democratic Strategists appear on these programs and some shows have a new one every week. The problem with strategists is that their job is to advance an agenda; in essence, to create a winning strategy and not necessarily to tell the truth.

Of course winning is everything to a strategist and the truth tends to get lost if it is not complimentary to the strategy. Despite the authoritative assurances of the strategists, every independent review of the bill says the costs have been understated and that it will add to the deficit and the debt. Recently, even the CBO accused the Congress of showing the savings achieved from the cuts in Medicare twice; once to reduce the general cost of Medicare and then a second time, as a revenue source for a new entitlement to subsidize the purchase of health insurance for low income individuals and families.

When an average citizen writes two checks using the same money that is called check fraud and eventually, there are criminal charges levied for that. When the Congress does it, the strategists hit the news channels and tell us it is a misrepresentation of the facts by zealot Republicans. Well, the CBO is neither Republican nor Democrat; it is supposed to be a non-partisan arm of Congress. When the CBO showed the deficit reduction in the healthcare bill, the White House used that as proof positive of the financial benefit of the bill. When the CBO unveiled this corrupt scam of using the same money twice, the very same people in the administration said that was just ridiculous and unworthy of comment. Either the CBO is impartial and honest or not, they are going to have to pick one or the other.

Curiously, the main debate has now shifted to the means by which Congressional leadership secured the sixty votes they needed to move this bill forward. In a move now called “Cash for Cloture”, the leadership used your money to bribe Senate members into voting for a bill that 61% of Americans do not want. The out and out prostitution witnessed by America as one member after another sold their votes (Hi Mary!) to Harry Reid in exchange for some sizeable payoffs is just another example of the culture of corruption in Washington.

No less that ten States have their Attorney Generals looking into the legality of certain States being exempted from damaging increases in Medicaid liability promised by this bill, leaving the rest of the States to cover the full impact of the increases of not only their own state, but of the exempted states. The Constitutionality of which is brought into question by both Section eight of the Constitution as well as the fourteenth Amendment to the Constitution.

Section 8 - Powers of Congress

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;


Amendment 14 - Citizenship Rights.

1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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; nor deny to any person within its jurisdiction the equal protection of the laws.

It is clear that Section Eight, which grants Congress the authority to lay and collect Taxes, Duties, Imposts and Excises, also states quite clearly that those Duties, Imposts and Excises shall be uniform throughout the United States. But how can there be Constitutional required uniformity if certain States are exempt leaving the non-exempt States to carry the full burden?

The Fourteenth Amendment guarantees the people equal protection under the law but there is nothing equal about a Federal tax on one segment of the population that residents of a neighboring State do not bear. Additionally, the Fourteenth Amendment not only prevents the States from passing any legislation that would abridge the Constitutional rights of its citizens, but prevents them from enforcing Federal law if that law would abridge those same rights.

There are clear Constitutional issues with the deals that were cut to obtain passage of this bill. Perhaps some of our brilliant Constitutional lawyers in Congress would have realized this if they weren’t so insanely intent on achieving cloture before the Holiday break but Harry Reid was not going to risk giving the general public access to their Senators and upset the process. After all, if one of these sequestered Congressmen found out just how unpopular this bill is at home they might not have voted for it.

Unfortunately, there are many members of Congress that have seen the poll numbers on healthcare reform and thanks to our friends, the Democratic Strategists, they have dismissed the unpopularity of this bill as a result of the massive amounts of “disinformation” that has been distributed to the public by the opposition. It is not disinformation that has caused the loss of support for this bill; it is the actions of a Congress that seems determined to pass it at any cost that has given the public good cause to reject it.

The idea that the final Senate version was crafted behind closed doors with no Republican and very few Democrat Congressmen present is a point of concern. That Harry Reid negotiated with Senators to obtain a commitment on their vote before they were even allowed to read the final version sounds off alarms to any thinking person. Most disturbing is the disparity of claims among the supporters of the bill. This proves that the Senators that just voted for it have no idea what it says in its entirety.

What a difference a week makes. Now that they have concluded the vote in the Senate, the music has changed quite a bit. Just last week supporters of the bill said that it would reduce the cost of healthcare insurance by bringing much needed competition into the system. This week the “strategists” are saying that health insurance would climb even higher without the reforms in this bill. Last week they said that this bill will not destroy the private healthcare insurance system, this week they say that without reform your employers wouldn’t be able to afford the increases in cost and you would lose that insurance anyway. Last week anyone that said there would be care rationing and death panels was just plain crazy but this week they say that insurance companies have been making those life and death decisions for decades.

So what are they saying? Yes you will pay more but less than it would have been? Yes this bill will bring about the loss of your private coverage but at least it will provide you with an alternative? Yes there will be bureaucratic panels deciding what care you will and will not receive but at least it’s the government and not the evil insurance company making that choice?

Since this change in heart is only one week after the Senate vote, what will we find out in two or three or four weeks? This was the argument on the part of those that wanted the pace slowed so that everyone had a chance to read and understand what we were actually doing with one sixth of the United States economy. When you see the difference between what the proponents said last week compared to what they are saying this week, it is clear there was a lot of misinformation given to the public about healthcare reform. Unfortunately for the Democratic Strategists, it appears that the misinformation came from the President, his advisors, Democratic members of Congress and the cadre of special interests that stand to make billions after the passage of this national lie.

Paul