Posted on 04/17/2014 7:34:16 PM PDT by JOHN W K
In case you missed it Obama, our federal Constitution tells us in crystal clear language that our Constitution, and only those “Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land ….” And so, the question which must be asked and answered to determine if Obamacare is the law of the land is, was Obamacare made in pursuance of our Constitution? As I will have further occasion to establish, Obama care does not meet constitutional muster and turns out to be legislative tyranny backed up by judicial tyranny. Let us look at some facts.
Our Constitution commands under Amendment IX ”The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Is it not a right retained by the American People to make their own medical and health care decisions and choices? Did the American People not exercise this right prior to the adoption of our federal Constitution and was intentionally preserved and protected from being impinged upon by the adoption of the IX Amendment?
Seems to me it is settled law that a legislative act which "impinges upon a fundamental right explicitly or implicitly secured by the Constitution is presumptively unconstitutional." See: Harris v. McRae United States Supreme Court (1980) Also see City of Mobile v. Bolden, 466 U.S. 55, 76, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980)
With that in mind let us take a look at Rivers v. Katz (67 N.Y.2d 485) 1986 in which the Court eloquently stated:
”In Storar, we recognized that a patient's right to determine the course of his medical treatment was paramount to what might otherwise be the doctor's obligation to provide medical care, and that the right of a competent adult to refuse medical treatment must be honored, even though the recommended treatment may be beneficial or even necessary to preserve the patient's life. This fundamental common-law right is coextensive with the patient's liberty interest protected by the due process clause of our State Constitution.
In our system of a free government, where notions of individual autonomy and free choice are cherished, it is the individual who must have the final say in respect to decisions regarding his medical treatment in order to insure that the greatest possible protection is accorded his autonomy and freedom from unwanted interference with the furtherance of his own..”
In addition to the above mentioned opinion, let us not forget the Terri Schiavo case in which it was argued that Terri had a fundamental right to make her own medical and health care decisions, and that a Florida Judge pointed out that it was indeed “presumptively unconstitutional" for the state to step in and interfere with the fundamental right of one to make one’s own decisions and choices regarding their medical and health care needs.
And so, to say “Obamacare is the law” when our Constitution stipulates that all laws must be made in pursuance of our Constitution, one would have to implicitly assert that making one’s own medical and health care decisions and choices is not a fundamental right secured by the Constitution, even though it is settled law that it is a fundamental right!
Our Constitution also declares under the Tenth Amendment ”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.”
This of course raises the question as to when the American People debated granting power to Congress to enter the various United States to regulate their medical and healthcare decisions and choices, and after doing so delegated this regulatory power to Congress. The fact is, this regulatory power has never been granted to Congress! Are we to forget that our Constitution provides a specific method by which the people may delegate new powers to Congress, but it also requires consent of the governed as provided in Article V? Without this part of our Constitution being adhered to and applied in passing the Patient Protection and Affordable Care Act it cannot be said to be a law passed in pursuance of our Constitution.
Finally, there is another question which has not been resolved. What specific tax mentioned in our Constitution is being levied as the “shared responsibility payment”, which is also referred to as the individual mandate, and a fine?
After a review of the constitutionally authorized taxing powers granted to Congress and the limits placed upon each specific kind of tax, the question arises as to which specific taxing power granted to Congress can be pointed to and be levied as Obamacare's "shared responsibility payment" and be within the limits of the specific tax pointed to?
Justice Roberts never answered this question but merely indicated the individual mandate tax, which is really a fine levied upon those failing to have federally approved health insurance is to be collected along with income taxes.
And so, another unanswered question is: which constitutionally authorized taxing power granted to Congress, when adhering to the constitutional limits placed upon it, can be pointed to and be levied as a "shared responsibility payment"?
We can immediately exclude imposts and duties as being the taxing power allowing the individual mandate tax because imposts and duties are taxes imposed on the import or export of goods.
And in reference to the power to lay and collect excise taxes, excise taxes can be levied upon the manufacture, sale, or consumption of goods, or upon licenses to pursue certain occupations or upon a privilege granted by government such as a corporate granted charter. An excise tax may also be levied upon a particular piece of property or is use. But I cannot find a shred of historical evidence the excise taxing power, as it was understood and used by our founding fathers, can be resorted to to levy Obamacare’s “shared responsibility payment”.
Finally, and with reference to the power to lay and collect taxes on “incomes” without apportionment, this taxing power requires a realization of profits or gains which then becomes the subject of taxation. But the subject of taxation under the individual mandate is not a profit or gain, collectively called “income”. The subject matter being taxed under Obamacare is a failure to have federally approved health insurance which triggers the tax and obviously excludes this taxing power to be used to levy the shared responsibility payment.
But we still have Congress’ power to lay and collect “direct taxes”, but direct taxes by our Constitution, require an apportionment among the States which Obamacare’s individual mandate tax fails to do.
When Roberts concluded in his written opinion that “The shared responsibility payment is thus not a direct tax that must be apportioned among the several States”, he ignored the historical characteristics which identify a direct tax as understood by our founders. In fact, the shared responsibility payment is characteristic of a direct tax! A review of Adam Smith, Wealth of Nations, a contemporary writing of the time which our Founders referred to, we find the following reference regarding a capitation tax as being a direct tax:
“Capitation taxes, so far as they are levied upon the lower ranks of people, are direct taxes upon the wages of labor.” Adam Smith, Wealth of Nations, id. at pg. 540.
The shared responsibility payment is in fact to be computed from the wages which a working person earns, and thus takes the form of a direct tax as understood by our founders, and thus requires it to be apportioned when levied!
It should also be noted there is a consistency found in historical documents that direct taxes as understood by our founders are those assessed to the individual by government, while indirect taxes are costs added by government to things which individuals are free to acquired or reject. For example, Hamilton's brief in the Hylton carriage case which Roberts quoted from says: 'The following are presumed to be the only direct taxes: Capitation or poll taxes, taxes on lands and buildings, general assessments, whether on the whole property of individuals, or on their whole real or personal estate. All else must, of necessity, be considered as indirect taxes.'
Is it not a fact that the shared responsibly payment is proposed to be assessed from a working person’s annually earned wage, and not upon a thing which the individual is free to acquire or reject?
Additionally, and with specific reference to the “shared responsibility payment” levied upon those who refuse to buy a federally approved health insurance plan, the following quotes are very telling and confirm that Obamacare is legislative tyranny backed up by judicial tyranny:
"The mere chilling of a Constitutional right by a penalty on its exercise is patently unconstitutional." Shapiro v. Thompson, 394 U.S. 618.
"The claim and exercise of a Constitutional Right cannot be converted into a crime." Miller v. Us., 230 F, 2d 286,489.
"Where rights secured by the Constitution are involved, there can be no rule-making or legislation which would abrogate them." Miranda v. Arizona, 384 U.S. 436.
"A legislative act contrary to the Constitution is not law." Carter v. Carter Coal Co., 298 U.S. 238
"All laws which are repugnant to the Constitution are null and void." Marbury v. Madison, 5 U.S. 137,174,176.
The bottom line is, Obamacare is not the "law of the land". It is legislative tyranny backed up by judicial tyranny!
JWK
If the America People do not rise up and defend their existing Constitution and the intentions and beliefs under which it was adopted, who is left to do so but the very people it was designed to control and regulate?
Its not?
Then why the lawsuits?
Obamakill is both unconstitutional and unjust. It is "NO LAW." The Progressives can go #%$&*! themselves.
Subject: The enormity of World War II
During the 3-1/2 years of World War 2 that started with the Japanese bombing of Pearl Harbor in December 1941 and ended with the Surrender of Germany and Japan in 1945, the U.S. produced 22 aircraft carriers, 8 battleships, 48 cruisers, 349 destroyers, 420 destroyer escorts, 203 submarines, 34 million tons of merchant ships, 100,000 fighter aircraft, 98,000 bombers, 24,000 transport aircraft, 58,000 training aircraft, 93,000 tanks, 257,000 artillery pieces, 105,000 mortars, 3,000,000 machine guns, and 2,500,000 military trucks.
We put 16.1 million men in uniform in the various armed services, invaded Africa, invaded Sicily and Italy, won the battle for the Atlantic, planned and executed D-Day, marched across the Pacific and Europe, developed the atomic bomb and ultimately conquered Japan and Germany.
It's worth noting, that during the almost exact amount of time, the Obama administration couldn't build a functioning web site.
You’ piqued my interest. Bookmark For Later Read.
Wow this is awesome, so we don’t need to keep fighting hard to repeal it then? That’s a relief.
Does not the Chief Executive have authority under the Constitution to issue Executive Orders? If so, what limits are stated as to the scope and nature of same?
Whew, I was worried that the IRS would fine me that Obamacare 1% tax a year from now but if its not really a law then I am in the clear and can count on that $$$,
But why does FNC and talk radio keep warning us of dire consequences of a non-law that they claim is law? Its confusing
No, executive order is not even mentioned in the Constitution.
Elisejay, do you know what legislative, executive and judicial powers are, and the differences between them?
Regarding legislative powers, note that the Founding States had made the first numbered clauses in the Constitution, Sections 1-3 of Article I, to clarify that all federal legislative powers are vested in the elected members of Congress, not in the executive and judicial branches.
In fact, the Supreme Court reflected on Sections 1-3 of Article I when it clarified in Youngstown Sheet & Tube Co. v. Sawyer that exeuctive orders don't have the force of law unless they are legislatively supported by Congress.
Also note that Congress cannot make any laws that it cannot justify under its constitutional Article I, Section 8-limited powers. So an executive order not only has to be supported by Congress, but also be reasonably based on Congress's Section 8-limited powers.
Note that Obama is wrongly making many constitutionally indefensible executive orders in order to make himself look like a king making edicts in the eyes of low-information voters, voters who have never been taught about the federal government's constitutionally limited powers. So Obama might as well make paper airplanes out of some of his executive orders.
Lamestream media, clearly they only want to stir crap up for ratings.
Now that John has set us straight with the FACTS, I can rest easy. I’ve been worried about this since that jerk Roberts upheld the law, thank goodness the Supreme Court doesn’t have the final word!
there are immigration laws on the books... one of the few things the fedgov is actually supposed to do... yet we don’t give a rats ass about illegals coming in or those living here stealing my hard earned income
so why the hell should I give a crap about 0bammy’s socialist healthcare attempt?
Correct — there are those who push the idea that the phrase and the Laws of the United States which shall be made in Pursuance thereof
means that all federal 'laws' are legitimate/superior to the state laws: this is obviously wrong, as any law not made pursuant the Constitution is not covered by the clause.
Valid legislation and judicial decisions are those which are commensurate with and subservient to the Constitution.
Fully agreed.
Unconstitutional law is, as Blackstone said about unjust law, "No law."
This is true — one big problem is how some of these laws are embraced by "conservatives".
An excellent example is the War on Drugs, which in order to support as legitimate you have to accept that the federal government can regulate intrastate commerce [and, arguably, non-commerce] via the interstate commerce clause.
One of the hallmarks of "conservatism" is the idea of abiding by the law, based probably on the idea of living by the rule of law rather than the rule of man. But there's two problems that seem to be lost on conservatives and others on the Right.
The first problem is distinguishing the KIND of law they're adhering to. Just because it's a law doesn't make it just or right or good. The Right needs to distinguish between constitutional and just laws versus unconstitutional and unjust laws.
The rule of Law in America is the Constitution, not any old hair-brained statute or judicial decision handed down. But it's also important to understand what a just law is, becasue, IMO by-and-large the Constitution is a just law. Right-thinking people need to understand that just laws PROTECT an individual's unalienable rights to life, liberty, and pursuits and DO NOT INTERFERE with an individual if he is not harming another's unalienable rights. Seatbelt laws and Obamakill are unjust becasue they interfere with an individual's personal freedom to choose in private.
The second problem is that there are way too many laws in our land. By definition, the more laws, the less freedom. I'm not sure a lot of conservatives get that. In fact, I've talked with some conservatives who don't seem to be fully convinced in the value of freedom.
To the degree "conservatives" love America, I'm a conservative. But I think I'm more of a libertarian (small "l", not the party - so many get confused about that also) because I believe in individual liberty and believe that's what America stands for - why people have died to get here and have died defending her.
“So Obama might as well make paper airplanes out of some of his executive orders.”
If only!! His XOx have the effect of duly enacted legislative acts unless and until the Legislative Branch exerts its constitutional check and balance prerogative.
He is re-organizing our government and our lives at his whim.
And yes, I am well aware of the constitutionally prescribed division of powers and responsibilities, and of the fact that the effective ordering power of a constitution depends entirely on the determination of the people and their elected officials to defend it. We see where that deficiency is leading us.
The supposed indefensibility of Obama’s whims can have objective meaning only as and when some opposing power is forcing him to defend them.
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