Now, I don't claim to be a constitutional scholar, but I actually have read the U.S. Constitution many, many times...in its entirety. So today's news that a Florida court has ruled that Congress overstepped its constitutional authority in passing, as part of the Affordable Care Act (lovingly referred to by its conservative opponents as Obama Care), a requirement that all Americans have to purchase health insurance is most welcome news. In fact, the judge ruled, essentially, that if the individual mandate is unconstitutional then the package as a whole is unconstitutional, as that egregious part was not "severable" from the aggregate. The lawyers who wrote it outsmarted themselves by including language that would have provided for severalibilty and then removing it. Well, I guess, Nancy (Pelosi), maybe we should have opened that there 2000-plus page monstrosity up, read it thoroughly, found out was it in it (and we knew, in fact, that this was), thought about it a lot more, before we passed it. In politics in the modern world, one party, regardless of which one it might be, can't railroad, ramrod, and steamroll a piece of legislation to passage without everyone knowing that is what happened...and that's what happened when this was passed by Congress and then signed into law by the President. Something this huge, this significant to so many should not be subject to the tender mercies of partisanship. It's gotta' be a team thing...you know, all in.
In passing this power play, its supporters most assuredly cited at least two sources of authority to do so. In that the federal government is not expressly given the power to regulate health care, congressional supporters most certainly argue that the broad basis of their doing so rests in. Article I, Section 8, Clause 18, the "implied powers" or "necessary and proper" clause which states, "The Congress shall have Power - 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."
This has oft been interpreted by loose constructionist legislators to mean that Congress can do whatever it wants whenever it wants about whatever it wants...as long as, of course, no one sues and the Supreme Court then uses its power of judicial review to say, "Nope...can't do it." From this broad foundation, these Hamiltonian interpreters of the USC then cite, as more specific grounds for their being able to pass legislation regarding health care and health insurance, which, as noted, is not an enumerated power, its right to enforce the Commerce Clause of the Constitution, which states that Congress the power, " "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes". Now, re-read that to yourself carefully. Like the necessary and proper clause, this clause has been interpreted by many as a congressional carte blanche to regulate whatever they want...all they need do is deem whatever it is they want to regulate as commerce, especially interstate commerce, and...there you go...voila!!!. The only problem is that this stipulation was included in the Constitution on the heels of the economic chaos that followed the American Revolution during the short-lived Articles of Confederation era. The new states, who had formerly functioned largely as independent units, except for their colonial economic relationship with Great Britain, were acting like little independent nation-states in their dealings with one another and others, going to the extremes of states setting up tariffs (taxes) on goods coming in from other states (so Georgia peanuts, for example, being trucked into New York would be taxed at the weigh station as they crossed the state line). Needless to say, this situation was hindering to the growth of both economic and political unity and national prosperity.
Given these bases for passage, the problems with the whole issue are several, as I see them. First, health care is not necessarily a right. Perhaps it should be based upon the ninth amendment, which basically says that just because a right was not enumerated in the first eight in the Bill of Rights, doesn't mean that it's not. Everyone should be well but what that entails remains to be seen. The courts have yet rule on this specifically. Secondly, at one point during the so-called "health care debate", the administration and congressional leaders, in diversion of criticism that the new law might affect the quality of health care, said that it was really about reforming health insurance, rather than American health care, which is arguably the best in the world. Well, the problem with that as far as the Commerce Clause is concerned is that health insurance is not even sold across state lines. That fact alone suggests that, as things stand today, this type of legislation is more the constitutional bailiwick of the states, under the tenth amendment, than it is the domain of the federal government. Thirdly, and the really dangerous issue in my mind and that of most its opponents, the individual mandate requiring people to buy health insurance, which was a) necessary to help fund the newly insured under this plan, and b) seems clearly designed, along with the new rules and costs to small businesses that will likely cause many to pay fines in lieu of burdening themselves with the additional expenditures for employee insurance, to push us toward, eventually, a single payer system (socialized medicine), did two things that are difficult to comprehend from a libertarian perspective: 1) it required people to buy a product because they are Americans and breathing, and 2) it instituted a penalty for not doing so...in other words...you could be fined (punished) for...that's right...doing nothing, taking no action, for the decision not to buy a product, for inactivity, for simply sitting at home on one's derriere. To put it in the vernacular, OMG...that is SO NOT COOL.
If the government can tell us what to buy and penalize us for not doing anything, it is not a stretch to imagine what will come next. It is absolutely frightening to me. Don't get me wrong, I think that there are steps that we can take to make the system better for everyone. Coverage for pre-existing conditions? A good thing, I think, though understandably a costly proposition for insurers. Eliminating lifetime benefits ceilings? A good thing, though obviously expensive for the insurance industry. Allowing young people to remain on their parents health insurance policies longer? Good, but 26? Why not 40? Not sure I get the significance. Preventing insurers form dropping coverage? Theoretically sounds good, but perhaps problematic given costs and certain circumstances. Are there other steps that can be taken that weren't? Heck yes! Medical tort reform...let's face it...a lot of suits are frivolous and some of the awards are beyond comprehension or reason. Allowing insurance to be sold across state lines? Could make insurance more competitive and maybe even more affordable (danger? definitely becomes interstate commerce, but like I said...Congress ain't letting that stand in the way right now anyway). In other areas already under the auspices of the government, reducing Medicare and Medicaid fraud? Bet it's rampant and costs the system millions each year. I think that there are probably tons of different ideas and solutions that weren't thoughtfully and seriously explored during the last two years. What I would like to see is for us re-visit the topic together, Democrats, Republicans, Tea Party members, medical professionals, insurance companies (that's right...these people are in business to make a profit, as are physicians...the decisions that we make should include them)...involve all of the various stakeholders in the process. TOGETHER, TOGETHER, TOGETHER, I believe that we can forge compromise and a plan of action that are significantly better, more effective, and more affordable than what was strong-armed through last year...oh yea, and one that does not trample upon the Constitution and cause the Framers to spin like tops in their graves.
Today's decision, along with the preceding Virginia ruling and the others that may follow along the road to the Supreme Court, begs the question, "How could it be so clear to so many that this was/is wrong but not to the administration and its allies in Congress?" Of course, the fat lady has not sung, sang...darn it, I can never remember the rule on that one..HAS YET TO SING on this issue, but I hope that I'm right (but, as always, I could NOT be) for all of our sakes that the USSC is going to see what seems so clear to many lay people and that it strikes down the individual mandate, which is the lynch pin of the entire Obama Care package. Otherwise, Congress may one day pass a law that says that I cannot sit here on my butt writing this blog...I mean, talk about your inactivity now... . A parting thought...I loved how the administration's spokesperson, referring to today's decision, said that it (the administration) hoped that this type of judicial activism would not stand...now that's funny...Democrats criticizing judicial activism. Judicial activism and loose interpretation of the Constitution are long-time staples of the Donks. Let's face it, everybody opposes judicial activism unless it shapes the law as they would like it to be... man, y'all funny.
Later...
In passing this power play, its supporters most assuredly cited at least two sources of authority to do so. In that the federal government is not expressly given the power to regulate health care, congressional supporters most certainly argue that the broad basis of their doing so rests in. Article I, Section 8, Clause 18, the "implied powers" or "necessary and proper" clause which states, "The Congress shall have Power - 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."
This has oft been interpreted by loose constructionist legislators to mean that Congress can do whatever it wants whenever it wants about whatever it wants...as long as, of course, no one sues and the Supreme Court then uses its power of judicial review to say, "Nope...can't do it." From this broad foundation, these Hamiltonian interpreters of the USC then cite, as more specific grounds for their being able to pass legislation regarding health care and health insurance, which, as noted, is not an enumerated power, its right to enforce the Commerce Clause of the Constitution, which states that Congress the power, " "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes". Now, re-read that to yourself carefully. Like the necessary and proper clause, this clause has been interpreted by many as a congressional carte blanche to regulate whatever they want...all they need do is deem whatever it is they want to regulate as commerce, especially interstate commerce, and...there you go...voila!!!. The only problem is that this stipulation was included in the Constitution on the heels of the economic chaos that followed the American Revolution during the short-lived Articles of Confederation era. The new states, who had formerly functioned largely as independent units, except for their colonial economic relationship with Great Britain, were acting like little independent nation-states in their dealings with one another and others, going to the extremes of states setting up tariffs (taxes) on goods coming in from other states (so Georgia peanuts, for example, being trucked into New York would be taxed at the weigh station as they crossed the state line). Needless to say, this situation was hindering to the growth of both economic and political unity and national prosperity.
Given these bases for passage, the problems with the whole issue are several, as I see them. First, health care is not necessarily a right. Perhaps it should be based upon the ninth amendment, which basically says that just because a right was not enumerated in the first eight in the Bill of Rights, doesn't mean that it's not. Everyone should be well but what that entails remains to be seen. The courts have yet rule on this specifically. Secondly, at one point during the so-called "health care debate", the administration and congressional leaders, in diversion of criticism that the new law might affect the quality of health care, said that it was really about reforming health insurance, rather than American health care, which is arguably the best in the world. Well, the problem with that as far as the Commerce Clause is concerned is that health insurance is not even sold across state lines. That fact alone suggests that, as things stand today, this type of legislation is more the constitutional bailiwick of the states, under the tenth amendment, than it is the domain of the federal government. Thirdly, and the really dangerous issue in my mind and that of most its opponents, the individual mandate requiring people to buy health insurance, which was a) necessary to help fund the newly insured under this plan, and b) seems clearly designed, along with the new rules and costs to small businesses that will likely cause many to pay fines in lieu of burdening themselves with the additional expenditures for employee insurance, to push us toward, eventually, a single payer system (socialized medicine), did two things that are difficult to comprehend from a libertarian perspective: 1) it required people to buy a product because they are Americans and breathing, and 2) it instituted a penalty for not doing so...in other words...you could be fined (punished) for...that's right...doing nothing, taking no action, for the decision not to buy a product, for inactivity, for simply sitting at home on one's derriere. To put it in the vernacular, OMG...that is SO NOT COOL.
If the government can tell us what to buy and penalize us for not doing anything, it is not a stretch to imagine what will come next. It is absolutely frightening to me. Don't get me wrong, I think that there are steps that we can take to make the system better for everyone. Coverage for pre-existing conditions? A good thing, I think, though understandably a costly proposition for insurers. Eliminating lifetime benefits ceilings? A good thing, though obviously expensive for the insurance industry. Allowing young people to remain on their parents health insurance policies longer? Good, but 26? Why not 40? Not sure I get the significance. Preventing insurers form dropping coverage? Theoretically sounds good, but perhaps problematic given costs and certain circumstances. Are there other steps that can be taken that weren't? Heck yes! Medical tort reform...let's face it...a lot of suits are frivolous and some of the awards are beyond comprehension or reason. Allowing insurance to be sold across state lines? Could make insurance more competitive and maybe even more affordable (danger? definitely becomes interstate commerce, but like I said...Congress ain't letting that stand in the way right now anyway). In other areas already under the auspices of the government, reducing Medicare and Medicaid fraud? Bet it's rampant and costs the system millions each year. I think that there are probably tons of different ideas and solutions that weren't thoughtfully and seriously explored during the last two years. What I would like to see is for us re-visit the topic together, Democrats, Republicans, Tea Party members, medical professionals, insurance companies (that's right...these people are in business to make a profit, as are physicians...the decisions that we make should include them)...involve all of the various stakeholders in the process. TOGETHER, TOGETHER, TOGETHER, I believe that we can forge compromise and a plan of action that are significantly better, more effective, and more affordable than what was strong-armed through last year...oh yea, and one that does not trample upon the Constitution and cause the Framers to spin like tops in their graves.
Today's decision, along with the preceding Virginia ruling and the others that may follow along the road to the Supreme Court, begs the question, "How could it be so clear to so many that this was/is wrong but not to the administration and its allies in Congress?" Of course, the fat lady has not sung, sang...darn it, I can never remember the rule on that one..HAS YET TO SING on this issue, but I hope that I'm right (but, as always, I could NOT be) for all of our sakes that the USSC is going to see what seems so clear to many lay people and that it strikes down the individual mandate, which is the lynch pin of the entire Obama Care package. Otherwise, Congress may one day pass a law that says that I cannot sit here on my butt writing this blog...I mean, talk about your inactivity now... . A parting thought...I loved how the administration's spokesperson, referring to today's decision, said that it (the administration) hoped that this type of judicial activism would not stand...now that's funny...Democrats criticizing judicial activism. Judicial activism and loose interpretation of the Constitution are long-time staples of the Donks. Let's face it, everybody opposes judicial activism unless it shapes the law as they would like it to be... man, y'all funny.
Later...