FixHealthCarePolicy

Video: When It Comes to Health Care, the Left Doesn’t “Worry About the Constitution”

Rep. Phil Hare (D-IL) voted for Obamacare. When questioned by his constituents to identify what part of the Constitution empowers the federal government to force Americans to buy health insurance, Rep. Hare replies: “I don’t worry about the Constitution on this to be honest.” We applaud Rep. Hare for his honesty, but his vote for Obamacare already proved he does not care if the legislation he votes for is unconstitutional. As The Wall Street Journal explains this morning:

“All human activity arguably has some economic footprint. So if Congress can force Americans to buy a product, the question is what remains of the government of limited and enumerated powers, as provided in Article I.” (more…)

Tags: $1 trillion new spending, Constitution, Individual Mandate, insurance premiums, ObamaCare, Rep. Phil Hare, Supreme Court, tax penalty

Outside the Beltway: State AGs Start the Road to Repealing Obamacare

As liberal groups begin plotting to spend millions of dollars to “sell” Obamacare to Americans in swing House districts, at least 12 state attorneys general are mounting an effort to stop Obamacare in its tracks on constitutional grounds.

At issue is the provision in Obamacare that forces Americans to buy health insurance or face an annual $750 fine. Richmond Times-Dispatch reports that Virginia Attorney General Ken Cuccinelli plans to sue the federal government on grounds that the mandate violates the Commerce Clause of the U.S. Constitution:

“At no time in our history has the government mandated its citizens buy a good or service,” Cuccinelli said.

(more…)

Tags: Attorney General Ken Cuccinelli, Commerce Clause, Constitution, Individual Mandate, ObamaCare, States

Morning Bell: This Process is Undermining the Rule of Law

This week, NBC News and The Wall Street Journal released poll results that are disturbing but by no means surprising. The March 11th – 14th poll of 1000 American adults showed that only 17% of respondents approve of the job Congress is doing in Washington. And as bad as that number is, the reason why Congress’ approval rating is so low is even more disturbing: a full 76% of Americans simply do not trust the U.S. Congress. This was the lowest level of trust for any representative entity tested by NBC/WSJ.

It is no coincidence that these record low ratings come amid current debate over health care in Congress. Yesterday, former U.S. Attorneys General Edwin Meese III and William P. Barr released the following statement: (more…)

Tags: becomes law, Constitution, constitutional concerns, deem and pass, dodgy, former U.S. Attorneys General, public opinion, Senate Health Bill, unseemly

Slaughter Solution: Still the Senate Bill

The House Rules Committee will meet this afternoon to discuss what has been dubbed the “Slaughter Solution” to passage of the Senate health care bill. The precedent cited by Rules Chairman Louise Slaughter to justify the proposed maneuver (to “deem” passage of the Senate health care bill when in fact the bill has never been actually “passed”) simply does not support the planned manipulation of the House rules and may well violate the U.S. Constitution.

As early as 1933 House rules were interpreted to permit House acceptance of Senate Amendments in a bill simultaneously with House passage of a Resolution on a separate matter. But that precedent clearly included House concurrence in (or “passage” of) the Senate Amendments. The new maneuver planned for this week’s health care bill is not designed to be an up or down vote on Senate Amendments to a bill or a bill itself. Instead the proposed Rule will “deem”, or pretend, that a Senate bill that will never have been in fact “passed”, was instead “deemed” to have been passed. (more…)

Tags: Constitution, deem, house rules committee, senate health care bill, Slaughter solution

Questions of Privilege: A Possible Countermove?

According to the official site of the House Rules Committee, “questions of privilege” relate to “matters affecting the safety, dignity or integrity of the House, or the rights, reputation or conduct of a member acting as a representative.”

House leaders are poised to use a procedural tactic of questionable constitutionality to move the single most consequential piece of legislation in over seven decades through the House without a vote. Here’s the idea: (1) pass a rule to bring to the floor a “reconciliation” measure that would detoxify certain provisions in the Senate-passed health-reform bill, and (2) insert in the rule a sentence that “deems” the Senate bill to have passed the House.

As Stanford law professor and former federal appeals court judge Michael W. McConnell explained in the Wall Street Journal: (more…)

Tags: become law, Constitution, deems, house rules committee, ObamaCare, reconciliation, senate health care bill, Slaughter Rule

The Slaughter Rule: Yet Another Reason Obamacare Would Be Unconstitutional

As written, the current health care bill before Congress already is guaranteed to face serious constitutional challenges on enumerated powers, 5th Amendment, racial discrimination, and unequal state treatment. Now the White House seems determined to add a whole new reason courts will throw out Obamacare on sight. Director of the Stanford Constitutional Law Center at Stanford Law School and former-federal judge Michael McConnell explains:

“To become law—hence eligible for amendment via reconciliation—the Senate health-care bill must actually be signed into law. The Constitution speaks directly to how that is done. According to Article I, Section 7, in order for a ‘Bill’ to ‘become a Law,’ it ’shall have passed the House of Representatives and the Senate’ and be ‘presented to the President of the United States’ for signature or veto. Unless a bill actually has ‘passed’ both Houses, it cannot be presented to the president and cannot become a law.” (more…)

Tags: actual vote, Constitution, ObamaCare, senate health care bill

The Nebraska Compromise and the Constitution

In a letter to House Speaker Nancy Pelosi (D-CA) and Senate Majority Leader Harry Reid (D-NV), dated December 30, 2009, the Attorneys General of 13 States have objected to the so-called Nebraska Compromise that reportedly won the crucial support of Senator Ben Nelson (D-NE) for the Senate health care takeover bill. The deal is said to involve an agreement that the Federal Government’s taxpayers will assume indefinitely the full share of the costs that Nebraska will incur as the result of the expansion of Medicaid that is one of the Act’s effects. The result is not only preferential treatment for Nebraska but it also hurts the rest of us because the other States will have to make up the difference.

Such preferential treatment is constitutionally suspect; it cannot be reconciled with several important principles incorporated in the Constitution. The Founders would not have dreamed of taking a burden that all of the States should share and allocating it to only some of them. Likewise, they would not have seen the spending of taxpayer money for the benefit of only one State to be in the general interest. Instead, the Founders understood the notion that Congress can spend funds to “provide for the common Defence and general Welfare” to mean that the spending had to be for the general or national benefit, not for purely local or regional benefit. This understanding is reflected in veto messages from Presidents from Madison to Buchanan. In fact, the relatively free-spending ways of President John Quincy Adams contributed to his defeat by Andrew Jackson in the election of 1828.

The absence of an explicit prohibition on something like the Nebraska Compromise does not mean that it does not violate the letter or spirit of the Constitution. In particular, it runs afoul of the concept of the States’ equal standing that is incorporated in the Constitution at several points. Duties, imposts, and excises are to be “uniform throughout the United States,” (Art. I, § 1, cl.1), the bankruptcy laws that Congress enacts must be “uniform . . . throughout the United States,” (Art. I, § 8, cl.4), and the ports of one State cannot be given any “preference” with respect to regulation or taxation over those of other States (Art. I, § 9, cl. 6). In addition, there are limits to the conditions that Congress can put on States when they enter the Union because they do so on an “equal footing.” Then, once part of the Union, the States enjoy an “equal sovereignty” that can be taken away only in limited circumstances. Put simply, all of the States, not just 49 of them, are in this together.

(more…)

Tags: Constitution, Cornhusker Kickback, Medicaid, Nebraska, Sen. Ben Nelson

Law Suits Threatened Over Obamacare

The chorus of concern that an individual mandate forcing Americans to purchase health insurance is at a crescendo. The Attorney General of Florida, Bill McCollum, yesterday requested, in a letter, that other state Attorney Generals join him in “a full review of the individual mandate.” McCollum writes “serious doubts have been voiced whether the individual mandate is grounded in one of Congress’ enumerated powers. For example, if the individual mandate is treated as a fine on a person for conducting no activity at all, it may not fall within the scope of the U.S. Constitution’s Commerce Clause. If the individual mandate is treated as a tax, the nature of that tax may limit how the revenue provision is viewed under the U.S. Constitution’s Taxing Power.”

This is an indication that many States are concerned that the Federal Government is overreaching and violating the constitutional rights of citizens. The New York Times reports, “Mr. McCollum’s stance places him in line with the attorneys general of South Carolina and nearly a dozen other states who have also threatened to sue over the mandate.” The bill is yet to be signed into law and many Members of Congress are threatening to introduce legislation to repeal Obamacare and lawyers are lining up to challenge the constitutionality of the legislation. (more…)

Tags: Bill McCollum, Constitution, individual mandates, ObamaCare

Morning Bell: Obamacare is Seriously Unconstitutional

On October 23rd, a reporter asked Speaker Nancy Pelosi (D-CA): “Madam Speaker, where specifically does the Constitution grant Congress the authority to enact an individual health insurance mandate?” Speaker Pelosi shook her head and before moving on to another question replied: “Are you serious? Are you serious??” Pressed for a more substantive response later, Pelosi’s press spokesman admonished the reporter: “You can put this on the record. That is not a serious question. That is not a serious question.”

The Congressional Budget Office (CBO) disagrees. In 1994, the CBO said of an individual mandate to buy health insurance:

“A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States. An individual mandate would have two features that, in combination, would make it unique. First, it would impose a duty on individuals as members of society. Second, it would require people to purchase a specific service that would be heavily regulated by the federal government.”

As much as Speaker Pelosi may wish otherwise, the CBO is dead on: the Supreme Court has never validated a federal power as intrusive as forcing all Americans to purchase a service due to their very existence. Sure, the Supreme Court has said that Congress may regulate a farmer’s production of wheat even if he never plans to distribute it off of his farm, and the Supreme Court has said Congress may ban the possession of Marijuana even if it is for personal use, but never before has the Supreme Court said the power to regulate commerce enabled Congress to force an individual to do something just because he existed.

In fact, the Supreme Court has always been clear that the Commerce clause must have some limits. In United States v. Lopez (1995), the Court struck down the Gun-Free School Zones Act, which attempted to reach the activity of possessing a gun within a thousand feet of a school. In United States v. Morrison, it invalidated part of the Violence Against Women Act, which regulated gender-motivated violence. In both cases, the Court found the regulated activity in each case to be noneconomic; it was outside the reach of Congress’s Commerce power, regardless of its effect on interstate commerce. The case for the constitutionality of the individual mandate is far weaker than either of these two cases. Congress was at least trying to regulate an individual’s activity in the cases above. But the mandate does not purport to regulate or prohibit activity of any kind, whether economic or noneconomic. To the contrary, it purports to “regulate” inactivity.

If the individual mandate is Constitutional, then Congress could do anything. They could: require us to buy a new Chevy Impala each year to support the government-supported auto industry; require us to buy war bonds to pay for the Iraq and Afghan wars; require us to grow wheat (10 bushels each), or pay someone else to grow your share; require us to buy whatever they want.

Many on the left immediately point to state mandates that drivers purchase car insurance as proof of a mandate that all Americans buy health insurance is not new. But car insurance mandates are distinguishable in at least four ways: 1) they are state requirements and states have broader constitutional authority than the federal government; 2) they apply to drivers only, not all Americans (e.g. passengers are not required to carry insurance); 3) drivers use public roads; 4) states only require drivers to insure against injury to other drivers, not to insure themselves against personal injury.

Yesterday The Heritage Foundation’s Center for Legal and Judicial Studies released a Legal Memorandum written in conjunction with Georgetown University Law Center Professor Randy Barnett and Nathaniel Stewart explaining: Why the Personal Mandate to Buy Health Insurance Is Unprecedented and Unconstitutional. Introducing the paper, Sen. Orrin Hatch noted:

“James Madison said that if men were angels, no government would be necessary and if angels governed men, no limits on government would be necessary. Because neither men nor the governments they create are angelic, government and limits on government are both necessary for ordered liberty. Politics may tell us what we want to do, but the Constitution tells us what we may do and we must keep those separate. The ends do not justify the means for one simple reason – liberty. Liberty requires limits on government power, it always has and it always will.”

Someone needs to explain this concept to Speaker Pelosi. Seriously.

Tags: CBO, Constitution, fines, House Speaker Nancy Pelosi, individual mandates, jail times