ObamaCare and the Constitutional Crisis

American Thinker ^ | Oct 27, 2010 | T.L. Davis

[Rashputin]

The Patient Protection and Affordable Care Act (ObamaCare) has, from the moment it was proposed, inflamed passions and stirred dissent. The Virginia lawsuit against the federal government over ObamaCare centers on the Commerce Clause and whether the federal government has the ability to force an individual to participate in commerce.

Twenty other states have filed lawsuits against provisions of the law centered on the mandate and the federal burden placed on states to expand Medicare. Some aspects of the law have been ruled legal, at least in the first round of judgments. All are in agreement that the Supreme Court will be the final arbiter on the law and in a position to redraw lines of constitutionality for a significant number of other laws associated with the Commerce Clause.

The debate is also a stage-setting for the greater issues of how to read the Constitution. There are two schools of thought on the issue of constitutionality: the Literalist school and the Case Law school. Each one approaches the document from a different point of view. The Literalist reads the words and meanings as they are presented without nuance, whereas the Case Law adherent reads the Constitution as seen through the filters of case law and precedent. The words they see are not the words themselves, but placeholders for an extended file of subsequent cases and rulings.

Those are the mechanics, i.e. the catalyst of ObamaCare: the issues at hand and the schools of thought in the debate. The ramifications of this epic debate are nothing short of societal upheaval.

Under whatever guise it might come, a reckoning nears. After decades of swallowing Supreme Court rulings that seemed to baffle and confuse the general public, the people have begun to stiffen and rebel. The narrative in the mainstream media suggests that the Tea Party movement is a product of a liberal in the Oval Office or the race of the president or, as Bill Clinton says, "They never care about the deficit until a Democrat is in office."

It is an easier argument to make that the Tea Party movement is just the extension of decades of frustration among conservatives finally taking root in the economic crisis. The objections over the bailouts were not just fiscal, but constitutional. The objections to ObamaCare were not just fiscal, but constitutional. The objections to purchasing a controlling interest in private industry were not just fiscal, but constitutional. The objections to one taxpayer being forced to pay the mortgage of another were not just fiscal, but constitutional.

As one sifts through the arguments on each side of the debate over constitutionality, the commerce clause continues to rise as a point of contention. It reads, "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes[.]"

The Literalist reads this just as it is, seeking only the true definition of "regulate" to form an opinion on its application to current law. The nature of the clause, if read literally, suggests that it is intended to be external, not internal. Foreign Nations, Indian Tribes, and the States are external to the federal government and therefore dealt with as such. The purpose of the clause would then seem to be to make sure that commerce conducted by a state with any other, a foreign nation, or an Indian Tribe could be "regulated" by the federal government. The definition relied upon by the Literalist is not to regulate in the sense of unlimited regulations, but to make those dealings "regular," or known and expected. An example would be to make trade between two states free of any and all duties. The clause appears to give the federal government the authority to intervene were one state to impose a duty on goods coming in from another state, a foreign nation, or an Indian tribe.

The Case Law adherent recognizes the Commerce Clause as encompassing any number of regulations placed on the citizens of the United States, corporations, businesses, schools, state and local governments, foreign nations, Indian tribes, or any other entity whatsoever where any commerce has transpired -- or even where commerce has not transpired, but where ultimately some commerce may transpire in the future. In the case of ObamaCare, the Commerce Clause is used to force an individual to participate in commerce, against one's will, with the promise of fines and imprisonment as a motivator. Every time the authority of the federal government to regulate these actions has been challenged, case law and precedent has been established and cemented by the practice of stare decisis, which is to honor previous rulings without significant reason to revisit them.

ObamaCare and its reliance on the Commerce Clause have forced the Supreme Court to rule on which vision of the Constitution will carry the day, and that decision will lead to one of two possible futures for America. Either the Supreme Court will rule that the Commerce Clause gives the federal government unlimited authority over the lives of the people and is legally authorized to substitute its discretion for personal discretion in all matters, or it will set in motion the removal of multiple layers of case law and deny the role of federal government in almost every aspect of life in which it has already injected itself under the clause.

An unintended consequence of the Supreme Court ruling, should they rule in favor of the Case Law adherent, is that the Literalist majority of Americans might come to feel as if they are no longer free, as if they are unable to understand the rules under which they have given their consent to be governed, as if the conclusion of a long-felt oppression is complete. At this point, social upheaval is not only possible, but likely.

[Rashputin]

I like to have those who write what I think are worthwhile articles see some traffic from me telling others about it but in some cases I think it's more important that even those who wouldn't usually click the link and read the entire article see the whole article. This is one of those.

With the moral opinion of this country being about two thirds against abortion on demand, the outrage over those who are supposed to represent us acting like a superior ruling nobility, those who serve us being paid way beyond the norm at our expense, and the current occupant of the Presidency, it won't take much of a spark to change the whole dynamic in this country from one of faith in the system to one of faith in restoration of our system by any means necessary.

The court decision discussed in this article could well be the spark that does the trick. Electing fools who appoint evil fools to the Supreme Court has to catch up with us sometime, and it may as well be now when people are of a mind to do whatever, whatever, it takes to get their country back.

[Deagle]

“The court decision discussed in this article could well be the spark that does the trick. Electing fools who appoint evil fools to the Supreme Court has to catch up with us sometime, and it may as well be now when people are of a mind to do whatever, whatever, it takes to get their country back.”

Amen! Things are progressing much faster that anyone would have thought by this action. The Progressives have decided that all of us are going to have to pay for non-citizens that happen to be the the US. Well, welcome all non-citizens - come join us and get free health care. Might as well bankrupt the country early on so we can get control...

This type of Government action is NOT what the Constitution allows or even expected. This will and is leading to the destruction of America and its Constitution.

This and the growing number of States that allow non-citizens to vote (locally at first) is the beginning of the end.

[TigersEye]

Whose right is health care? Do you think it's yours?

Congressman Anthony Weiner has said that health care is not a commodity. If it isn't a commodity then do doctors and nurses have rights? Assigning health care the status of a right makes health care workers slaves to that right who must serve it. On what ground could a health care worker refuse to provide their products and services since that would violate the patient's "basic human right to health care."

That is a direct loss of individual rights for health care providers. The collective right of the people to receive health care would supersede the provider's individual right to set fees and hours or to change their occupational status or even decide how to apply their skills and knowledge if taken to its logical extreme. A collective right, by practical definition, is a state right because it is a right that is created and given by the government to those it chooses to give it to. It is not a natural right possessed by each person protected by the Constitution from the government. It is also a collective/state right by virtue of the fact that it would supersede individual rights when the two come into conflict. How else would the government view a right that it created and administers vs. one it has no control over?

Of course it isn't stated in any bill that a patient's right to care supersedes a provider's right to set fees and hours etc, but it doesn't need to. Rights, as always, are adjudicated in the courts. The Health Care Reform bills simply establish the foundation for the courts to rule in favor of the collective right.

Weiner’s view is collectivist, fascist and totalitarian. Collectivist because it has to be described as being a right of the many instead of the one and superior due to that fact. Fascist because ultimately the sole authority for its creation and oversight is from one entity the Federal government. Totalitarian because the Federal government is the enforcer of this collective right as well. State and local jurisdictions will have little say about it.

Congressman Weiner's view is the underlying philosophy of all of the Health Care Reform legislation in the House and Senate. Consider this section in the Senate version of the bill; the setting up of community watch dogs that will monitor citizens for various health parameters. Read pages 382 - 393.

TITLE I—QUALITY, AFFORDABLE HEALTH CARE FOR ALL AMERICANS pps 382 - 393

So, even citizens themselves will be subject to Federal regulations on their behavior in order to fulfill the "human right" of universal health care. It isn't the individual's liberty that is being protected by that it is the government's control over its own health care system that is being guarded. How much clearer can it be that these bills abrogate the concept of individual rights? Someone will be checking your lifestyle, according to gov regulations, to be certain you serve the best interests of the "basic human right to health care" ie. "the Public Option."

HCR is not just about rationing care and wealth redistribution. It's about the end of individual rights as the corrosive effects of the new collectivist "basic human right to health care" spreads throughout the legal and political systems like a virus.

I think that the main purpose of Health Care Reform (HCR) is as a direct assault on individual liberties.

Health Care is a Liberty Issue
Conservative Underground - 18 August 2009 - Tim Dunkin

Another Stupid Argument: Heath Care is a Right

Involuntary Medical Servitude

Obama's Authoritarian, Unconstitutional Health Care Proposal

Defining A Right In America

To Americans Who Believe Healthcare is a Right

OBAMA: HEALTH CARE DESTROYING FREE SPEECH

Mandated health insurance threatens freedom, privacy

Bad Laws and Unintended Consequences, part 1.

Obamacare Rips Doctor-Patient Relationship Apart

Second Bill of Rights aka FDR's economic bill of rights
(An early attempt to embed collective rights into American politics and society.)

[screaminsunshine]

We need 34 states to can a con-con and end this disaster.

[NTHockey]

I have little faith that the Supreme Court will decide (properly) for the people. After all, it was the Supreme Court that gave us Kelo, Dred Scott, Korematsu and others that violated the Constitution.

The writers prediction that “social upheaval is not only possible, but likely” may be an understatement! So far, the frustration and anger which brought the TEA Party phenomena to national significance has been pretty much been held in check.

All bets are off if the Court makes another bad decision depriving we, the people of our freedom. People who have nothing to lose, can be pretty desparate - and unforgiving.

[Deagle]

Yes, but even that may be just a postponement unless the Congress changes. I do like the idea of Constitutional modification though and there certainly are changes that need to be made.

Not sure if we have the time though... Things are going downhill very fast right now. This election is only a stopgap. Many changes and election results are needed in the future just to stop this madness.

[Deagle]

Exactly right! Our Supreme Court seems to have forgotten its original purpose - to uphold the Constitution! They have made so many decisions that go against the Constitution that I doubt that it can be changed at this date (stari sisis) and even if it does, it could take years to recover.

[screaminsunshine]

It is not what needs to be done but it is what needs to be undone. The insanity of lawmaking of the last 100 years needs to be undone.

[BobP]

All bets are off if the Court makes another bad decision depriving we, the people of our freedom. People who have nothing to lose, can be pretty desparate - and unforgiving

--------------------------

The Courts will make more bad decisions.

This is a golden goose teeming with money.

Obamacare continues the scheme of taking money from those who pay for insurance and funneling it to lawmakers and their families. Lots and lots of money funneling will flow to politicians and their buddies (those lucky enough to have politically protected CAT/MRI scanning centers) through inflated reimbursements.

Everyday is Christmas for the politicians and its only going to get worse.

[monocle]

The present status of the commerce clause is the ultimate example of the maxim that hard facts make bad case law. The expansion of the interpretation of the commerce clause came during Great Depression and was deemed necessary to meet dire circumstances. When will we ever learn?

[Deagle]

Right On! The best thing that Congress could do for America is repeal thousands of stupid, conflicting, unnecessary, and ignorant laws that have been passed in the last 70 years or so...(Yes, I would also agree that the Obamacare law should be one of the first)...

[screaminsunshine]

The menagerie of laws acts agencies taxes etc. has to be undone. It irks the hell out of me when I hear someone say. They can not get anything done. I say we need to get this haywire backlashed unmitigated disaster undone.

[screaminsunshine]

Repeal it. Amending the constitution is the way to undo this mess. Repeal the part about promoting welfare and the commerce clause. How do you start an amendment? The Federal government should not be promoting or providing general welfare. It can not.

[Deagle]

Unfortunately, the elite have come up with the idea that passing laws is making progress - ie., success. That has developed into a Congress that thinks that passing bills is a good thing - ie. progress. Clap people clap!

So, we have Congress trying to pass bills (hell, anything as long as it sound good to the public - give a good sounding name) so that they can be proclaimed a success by the MSM.

Unfortunately, we the people are swamped by all of these bills/laws (who reads them anyway) and are wondering just what the hell happened to the people we elected. Well, welcome to the world of Washington DC...where all Freshmen Congressmen and Senators are given the treatment. They are to vote as told or they will be given no assignments or no help in their future elections. Wow...what a welcome to DC.

Can we now say that we are among the top 3 Countries that are absolutely corrupt with our politics? If you can’t you are deceiving yourself. Welcome to DC!

[Deagle]

Actually, I think it may take a Constitutional Convention by the States to correct things. There are many things that I can think of to add - balanced budget being just one of them.

[screaminsunshine]

That is why we need the Great Undoing. Democrats are like institutionalized convicts. The have been imprison for so long mentally they can not function in the free world.

[screaminsunshine]

34 state legislatures can do it. Just calling for it would shake them up. Arizona could go first. I wonder if there are 34 that would follow?

[Deagle]

Yes, 34 State Legislatures could start it...but you realize that it could take many years for anything to actually happen. During that time, the US loses...

[monocle]

Constitional amendments are difficult to achieve and in this case could have dire consequences. Our best hope is to elect conservative presidents who will promise to nominate only conservatives to the Supreme Court.

[screaminsunshine]

I tell you now. No conservative can make this clunker run. Changing drivers in a broken down clunker will not get it going. I think it is an impossible mission. Socialism does not work no matter who is in charge. We need to trade it in. CON-CON.