Dems rip constitution they claim to champion into shreds

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Dems rip constitution they claim to champion into shreds

Postby carsonfire on Sat Jan 02, 2010 3:30 am

Of course, VK will blame all of this constitutional abuse in a bill written soley by Democrats, with payoffs to other Democrats to get votes from Democrats, which no Republican will vote for, on Republican interference.

http://online.wsj.com/article/SB1000142 ... torialPage
Why the Health-Care Bills Are Unconstitutional
If the government can mandate the purchase of insurance, it can do anything.


First, the Constitution does not give Congress the power to require that Americans purchase health insurance. Congress must be able to point to at least one of its powers listed in the Constitution as the basis of any legislation it passes. None of those powers justifies the individual insurance mandate. Congress's powers to tax and spend do not apply because the mandate neither taxes nor spends. The only other option is Congress's power to regulate interstate commerce.

Congress has many times stretched this power to the breaking point, exceeding even the expanded version of the commerce power established by the Supreme Court since the Great Depression. It is one thing, however, for Congress to regulate economic activity in which individuals choose to engage; it is another to require that individuals engage in such activity. That is not a difference in degree, but instead a difference in kind. It is a line that Congress has never crossed and the courts have never sanctioned.

In fact, the Supreme Court in United States v. Lopez (1995) rejected a version of the commerce power so expansive that it would leave virtually no activities by individuals that Congress could not regulate. By requiring Americans to use their own money to purchase a particular good or service, Congress would be doing exactly what the court said it could not do.

Some have argued that Congress may pass any legislation that it believes will serve the "general welfare." Those words appear in Article I of the Constitution, but they do not create a free-floating power for Congress simply to go forth and legislate well. Rather, the general welfare clause identifies the purpose for which Congress may spend money. The individual mandate tells Americans how they must spend the money Congress has not taken from them and has nothing to do with congressional spending.


This is core to Democrats' confused thinking about the constitution and democracy in general. They imagine extreme constraints that aren't actually there when they object to their political enemies doing things that are sometimes even *mandated* by the constitution, but when it comes to their own behavior and policies, literally anything goes. They imagine that their good intentions free them from all bonds, and that democracy was not intended to restrain THEIR good intentions, surely!

A second constitutional defect of the Reid bill passed in the Senate involves the deals he cut to secure the votes of individual senators. Some of those deals do involve spending programs because they waive certain states' obligation to contribute to the Medicaid program. This selective spending targeted at certain states runs afoul of the general welfare clause. The welfare it serves is instead very specific and has been dubbed "cash for cloture" because it secured the 60 votes the majority needed to end debate and pass this legislation.

A third constitutional defect in this ObamaCare legislation is its command that states establish such things as benefit exchanges, which will require state legislation and regulations. This is not a condition for receiving federal funds, which would still leave some kind of choice to the states. No, this legislation requires states to establish these exchanges or says that the Secretary of Health and Human Services will step in and do it for them. It renders states little more than subdivisions of the federal government.

This violates the letter, the spirit, and the interpretation of our federal-state form of government. Some may have come to consider federalism an archaic annoyance, perhaps an amusing topic for law-school seminars but certainly not a substantive rule for structuring government. But in New York v. United States (1992) and Printz v. United States (1997), the Supreme Court struck down two laws on the grounds that the Constitution forbids the federal government from commandeering any branch of state government to administer a federal program. That is, by drafting and by deliberate design, exactly what this legislation would do.

The federal government may exercise only the powers granted to it or denied to the states. The states may do everything else. This is why, for example, states may have authority to require individuals to purchase health insurance but the federal government does not. It is also the reason states may require that individuals purchase car insurance before choosing to drive a car, but the federal government may not require all individuals to purchase health insurance.


Democrats seem to universally acknowledge this bill is terrible, but are willing to ruin the economy and the health care system, while trashing the constitution, to accomplish nothing greater than to spite their domestic political enemies.
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Re: Dems rip constitution they claim to champion into shreds

Postby VictorK on Sat Jan 02, 2010 9:40 am

carsonfire wrote:First, the Constitution does not give Congress the power to require that Americans purchase health insurance. Congress must be able to point to at least one of its powers listed in the Constitution as the basis of any legislation it passes. None of those powers justifies the individual insurance mandate. Congress's powers to tax and spend do not apply because the mandate neither taxes nor spends. The only other option is Congress's power to regulate interstate commerce.

[...]

In fact, the Supreme Court in United States v. Lopez (1995) rejected a version of the commerce power so expansive that it would leave virtually no activities by individuals that Congress could not regulate. By requiring Americans to use their own money to purchase a particular good or service, Congress would be doing exactly what the court said it could not do.


US v. Lopez had to do with banning the possession of handguns in certain areas, it's not even tangentially related to a mandate to purchase health insurance.

This is core to Democrats' confused thinking about the constitution and democracy in general. They imagine extreme constraints that aren't actually there when they object to their political enemies doing things that are sometimes even *mandated* by the constitution, but when it comes to their own behavior and policies, literally anything goes.


The interpretation of the Constitution which has prevailed in modern times is that it grants Congress broad powers to regulate economic activity but constrains the federal government and the states in serious and substantial ways with regards to civil liberties. This is consistent with the founding interpretation of the Constitution, which was a response to disparate economic regulates and a focus on nation building which required a federal regulation of economic activity while cognizant of the abuses committed by the British government in terms of civil liberties. It is a fundamental misunderstanding of the history of the founding to say that it was a revolt against economic regulation; the argument was never that Parliament lacked the power to impose such a tax, but that such a tax could not be levied without the consent of the people who were being taxed as expressed by their due representatives. The people have such representation.

This selective spending targeted at certain states runs afoul of the general welfare clause. The welfare it serves is instead very specific and has been dubbed "cash for cloture" because it secured the 60 votes the majority needed to end debate and pass this legislation.


I think you'd have a very difficult time convincing any constitutional scholar or a judge that "general" means "uniform". It just doesn't follow.

A third constitutional defect in this ObamaCare legislation is its command that states establish such things as benefit exchanges, which will require state legislation and regulations. This is not a condition for receiving federal funds, which would still leave some kind of choice to the states. No, this legislation requires states to establish these exchanges or says that the Secretary of Health and Human Services will step in and do it for them. It renders states little more than subdivisions of the federal government.

This violates the letter, the spirit, and the interpretation of our federal-state form of government. Some may have come to consider federalism an archaic annoyance, perhaps an amusing topic for law-school seminars but certainly not a substantive rule for structuring government. But in New York v. United States (1992) and Printz v. United States (1997), the Supreme Court struck down two laws on the grounds that the Constitution forbids the federal government from commandeering any branch of state government to administer a federal program. That is, by drafting and by deliberate design, exactly what this legislation would do.


Again, Printz v. United States was a handgun case where the federal government made requirements of local law enforcement. There's no provision like that in health care, because it is not a criminal law but an economic regulation. The federal government compels state agencies to enforce federal economic laws all the time, be it in licensing provisions or other regulations.

The federal government may exercise only the powers granted to it or denied to the states. The states may do everything else.


Ah, the old Tenth Amendment Truism. It doesn't actually tell us anything about the contents of the powers of the federal government or the states. It's a restatement of a principle, not an amendment that you could base any argument for substantive powers on.
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Re: Dems rip constitution they claim to champion into shreds

Postby carsonfire on Tue Jan 05, 2010 8:38 am

Thank you, professor VK. Now some state AGs weigh in:

http://online.wsj.com/article/SB1000142 ... torialPage
"In addition to violating the most basic and universally held notions of what is fair and just," the AGs wrote last week to the Democratic leadership, the Article I spending clause is limited to "general Welfare." If Congress claims to be legitimately serving that interest by expanding the joint state-federal Medicaid program, then why is it relieving just one state of a mandate that otherwise applies to all states? In other words, serving the nongeneral welfare of Nebraska—for no other reason than political expediency—violates a basic Supreme Court check on the "display of arbitrary power" that was established in 1937's Helvering v. Davis.

Obviously Congress treats different states differently all the time, via earmarks and the like, but in this case there is simply no plausible argument for some kind of "general" benefit. The only state that gains from special treatment for Nebraska is Nebraska—and this actively harms all other states, which will have fewer tax dollars for their own priorities while effectively subsidizing the Cornhusker state.

The 12 Attorneys General are all Republicans, but as it happens their complaints are echoed by the liberal states of New York and California. In a December letter Governor Arnold Schwarzenegger lamented that ObamaCare would impose the "crushing new burden" of as much as $4 billion per year in new Medicaid spending in a state that is already deeply in the red. And in a Christmas Day op-ed in the Buffalo News, New York Governor David A. Paterson protested the almost $1 billion in new costs as well as the "unfairness of the Senate bill" when "New York already sends significantly more money to Washington than it gets back."

The reality is that national taxpayers have subsidized New York and California's social services for years because Medicaid's funding formula rewards higher state spending. That spending helps explain why these two states, plus New Jersey, are in such budget fixes today. But we welcome Mr. Paterson's discovery that redistributing income via progressive taxation is harmful.

[...]

We recognize that mere Constitutional arguments won't deter the political juggernaut that is ObamaCare. But no one should be surprised when Americans wonder if this unprecedented federal intrusion into their lives violates our nation's founding principles.
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Re: Dems rip constitution they claim to champion into shreds

Postby VictorK on Tue Jan 05, 2010 10:49 am

carsonfire wrote:If Congress claims to be legitimately serving that interest by expanding the joint state-federal Medicaid program, then why is it relieving just one state of a mandate that otherwise applies to all states? In other words, serving the nongeneral welfare of Nebraska—for no other reason than political expediency—violates a basic Supreme Court check on the "display of arbitrary power" that was established in 1937's Helvering v. Davis.


It's interesting to go back and look at Helvering v. Davis. In that case, Justice Cardozo wrote:

Cardozo wrote:The conception of the spending power advocated by Hamilton and strongly reinforced by Story has prevailed over that of Madison, which has not been lacking in adherents. Yet difficulties are left when the power is conceded. The line must still be drawn between one welfare and another, between particular and general. Where this shall be placed cannot be known through a formula in advance of the event. There is a middle ground or certainly a penumbra in which discretion is at large. The discretion, however, is not confided to the courts. The discretion belongs to Congress, unless the choice is clearly wrong, a display of arbitrary power, not an exercise of judgment. This is now familiar law.


So, what is an exercise judgment, and what is a display of arbitrary power? The real case that the AGs should have looked at, and which Cardozo refers to as settling the debate, is US v. Butler. Cardozo quotes that decision:

US v. Butler wrote:"When such a contention comes here we naturally require a showing that by no reasonable possibility can the challenged legislation fall within the wide range of discretion permitted to the Congress."


Butler seems to indicate that the general welfare clause is very broad. Unfortunately Helvering does not provide the sort of guidance that the AGs suggest that it does, it refers to whether or not a special fund in the treasury for payment in Social Security pensions, a tax imposed broadly on society but benefitting only the aged, violates the general welfare clause. Helvering concluded that it did not, which isn't paticularly illuminating to our current situation.

Based on precedent, I don't think that the health care bill is unconstitutional. However, I wouldn't be surprised if some aspects were overturned by the current Supreme Court which is heavily conservative.

Obviously Congress treats different states differently all the time, via earmarks and the like, but in this case there is simply no plausible argument for some kind of "general" benefit. The only state that gains from special treatment for Nebraska is Nebraska—and this actively harms all other states, which will have fewer tax dollars for their own priorities while effectively subsidizing the Cornhusker state.


Or every state benefits from getting the health reform via Nebraska's special treatment...That argument can go either way. The court won't make calculations based on whether or not the bill will be successful, that's the political role of Congress.
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Re: Dems rip constitution they claim to champion into shreds

Postby Casual Notice on Tue Jan 05, 2010 12:12 pm

Yeah, if it's all the same to you, VK, I think I'll go with the legal judgment of a council of state Attorneys general over that of a first-year law student.
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Re: Dems rip constitution they claim to champion into shreds

Postby VictorK on Tue Jan 05, 2010 1:28 pm

Casual Notice wrote:Yeah, if it's all the same to you, VK, I think I'll go with the legal judgment of a council of state Attorneys general over that of a first-year law student.


I'll keep that in mind the next time you want to make a legal argument that is contradicted by Democratic state AGs.
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Re: Dems rip constitution they claim to champion into shreds

Postby Casual Notice on Tue Jan 05, 2010 2:33 pm

Please do. I tend to accept your interpretation of the law if it's just you and me. In fact, you've corrected my reading of certain laws on many occasions and rightfully so. It has helped improve my knowledge of the way the country runs. The difference here is that these guys make at least part of their living investigating the constitutionality of their respective state laws, and have a lot more miles behind them on that road than you do.
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Re: Dems rip constitution they claim to champion into shreds

Postby VictorK on Tue Jan 05, 2010 3:15 pm

Fair enough, but no law student ever progressed by accepting the first argument they come across. Keep in mind that an AG at the state level is a political position, as opposed to the federal. And whatever argument they make, there's no getting around that the case they cite has nothing to do with the apportionment of a policy between the states, offers no guidance to support their position, and actually comes to the opposite conclusion in that the Congress has broad powers to legislate under the general welfare clause and that courts should, except in extreme cases, defer to Congress.
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Re: Dems rip constitution they claim to champion into shreds

Postby carsonfire on Tue Jan 05, 2010 5:24 pm

Meanwhile, constitutionality aside, one of the biggest things that disturbed the public about HillaryCare was the way it seemed to be cobbled together by elites behind closed doors. ObamaCare, already wildly unpopular, is at a critical time *showboating* that same behavior:

http://realclearpolitics.blogs.time.com ... n-problem/
Brian Lamb has put President Obama on the spot. Lamb is the CEO of C-Span, and today he wrote a letter to the leaders of Congress asking them to allow cameras in the room for the final negotiations on the health care bill. Lamb wrote:

President Obama, Senate and House leaders, many of your rank-and-file members, and the nation's editorial pages have all talked about the value of transparent discussions on reforming the nation's health care system. Now that the process moves to the critical stage of reconciliation between Chambers, we respectfully request that you allow the public full access, through television, to legislation that will affect the lives of every single American.


Indeed, this was one of Obama's signature promises on the campaign trail:

[video]

It's hard to get more explicit than that.

But that was then. Today, when asked for the 3rd time whether President Obama believes that the "standard" he set during the campaign for transparency on health care negotiations is being met by the current process (which now appears to include bypassing the formal conference process), White House Press Secretary Robert Gibbs gave a flaccid but telling response.

"I do not believe the American people have lacked for information on what's in these bills - the political and policy arguments around different people's positions - I think that's been well documented," Gibbs said.

With all due respect, the reporter did not ask Gibbs for his appraisal of what he thinks the public does and does not know about the health care bills. Rather, the question is very simple: will President Obama honor his campaign pledge and demand that the final health care negotiations are televised on C-Span? Judging from Gibbs' response, the answer is an obvious "no."


I think this not only runs afoul of Obama's unambiguous campaign lies about transparency, but also goes against the spirit of his plan to do this significantly different than HillaryCare, in order to avoid the same traps. Instead, those missteps have simply been re-ordered and amplified.
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Re: Dems rip constitution they claim to champion into shreds

Postby VictorK on Tue Jan 05, 2010 5:36 pm

It's indeed not a good sign of the way things have gone, but I don't think it's driven by the bill being cobbled together by elites behind closed doors. It's a response to Republican obstructionism and the fragility of the deal among the Democratic Congress. After months and months of open debate to arrive at this tenuous position Democrats aren't willing to be delayed any more by the GOP and can't risk their own caucus falling apart.
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Re: Dems rip constitution they claim to champion into shreds

Postby carsonfire on Tue Jan 05, 2010 7:45 pm

None of the rhetoric in this last post of VK's is new, it's the same trope being repeated by left wing blogs all over the place. But he does us a favor by packing some of the most important and telling self-deception into one concise post.

First, the whole thing about "Republican obstruction". He acknowledges that the way his party is doing it is wrong, but excuses his party's wrong behavior because of "Republican obstruction". It's important to use this terminology, because putting this in more realistic terms is damning. Republicans are against this legislation for much the same reason a majority of the nation is against it; so by opposing it, they are doing their jobs as representatives of their constituents in opposing measures people reject. So what the Democrat's bad behavior is really skirting around is the popular will of the people. To justify wrong behavior, in order to put together measures that reflect the will of an elite, against the will of the people, VK echoes his masters by describing the will of the people as "Republican obstructionism".

Their political enemies must be against them for no better reason than just to be against them. So they circle the wagons against any charge of improper behavior by telling themselves a host of lies -- they reason: so what? The public may be against it, but that's just a coincidence; they're too stupid to know better, and we'll pass this anyway, for their own good, because the people are incapable of knowing how to think right unless they are exposed to a host of good Democrat "teachable moments". Meanwhile, clearly Republicans can't be doing something because it's *right*. Surely they are opposing it just because they are opposed to us! (Since we do that all the time ourselves, oppose anything from the Republican party because we hate Republicans, naturally we have to believe that's what *they* do -- in order to excuse *that* behavior).

They believe this even as they admit to themselves this is a terrible bill. It's a terrible bill, and a huge majority of the nation is against it -- and even then, it's impossible for the hyperpartisan to credit his Enemy with admirable motives in wanting to defeat a wildly unpopular bill that is commonly acknowledged to be terrible. Meanwhile, how the hell do they reconcile admitting it's a terrible bill, but demanding it must be passed anyway to spite Republicans? Their rhetoric has moved beyond simply masquerading socialism as "health care reform" to leading a Good Fight against the Enemy.

The Democrats are in the grips of a political war, whether their targets realize it or not. It should be enough to say, we're against this bill because it's a terrible bill (as you admit) and that the public is overwhelmingly against it (as you know). But, no -- it's REPUBLICAN OBSTRUCTION.

So when you hear VK or any other partisan saying that a grisly-looking backroom deal, or any other kind of anti-democratic maneuver has to be done as "a response to Republican obstructionism", what they really mean is that they are willing to subvert democracy when it proves inconvenient. It would be much easier to do this, as one NYT writer said, if we could be more like China and simply dictate these things that are good for the people. Diogenes, there's your man!

Also note the "fragility of the deal" and the worry that the caucus might "fall apart". This is a reflection of how unpopular this legislation is, and how it could only be put together by making sleazy promises to each other to buy votes. If Democrats can't ram the final deal through, the bribes might not hold -- which would allow democracy to supersede the sleazy deals, since (as we keep having to point out) the overwhelming majority of the nation doesn't want this.

That's why our government was set up this way. it should be impossible to pass legislation that's bad for the people, that the people don't want, simply because elites use the people's money to make sleazy deals with each other. If ObamaCare passes despite the strictures our constitutional government, it's not a triumph for Democrats but a defeat for the people. This is why defeat for Democrats is becoming ever more certain. Defeat the people now, the people will punish you ASAP.

The senate was built for things to fall apart. It's the authoritarian streak running through the modern Democrat party, infected by the left, that makes them impatient with proper governance. They no longer are willing to wait on the will of the people, and shall have what they want regardless.

This is what makes them elites. They assume that they are smarter than everyone else, and that superiority entitles them to eschew popular government. Like elites, they will always force nightmares on the people in the name of the people, while finding exemptions for themselves, their families, and their lieutenants. Some of their biggest supporters of this elite (sorry, nutroots) are the very rich, who will also be exempt from their disastrous plans for the rest of us. The nutroots, meanwhile, are simply useful idiots who are willing to defend their authoritarian elites, no matter how many lies it takes they have to tell themselves.
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Re: Dems rip constitution they claim to champion into shreds

Postby carsonfire on Wed Jan 06, 2010 5:19 pm

Thomas Friedman! He is the NYT writer whose name I forgot, who wrote that it would be better if we could be more like Red China, in that they can simply impose things on the people for their own good.

From today's Best of the Web:

http://online.wsj.com/article/best_of_t ... #printMode
So much for "transparency." Breitbart.tv has a video showing eight clips of Sen. Barack Obama promising, in the event that he became president, an open process in developing legislation to "reform" health care. Here's just the first, from a January 2008 debate:

. . . not negotiating behind closed doors but bringing all parties together and broadcasting those negotiations on C-Span, so that the American people can see what the choices are, because part of what we have to do is enlist the American people in this process.


The Associated Press reports the American people have been informed that their services are no longer needed:

House and Senate Democrats intend to bypass traditional procedures when they negotiate a final compromise on health care legislation, officials said Monday, a move that will exclude Republican lawmakers and reduce their ability to delay or force politically troubling votes in both houses. . . .

Democratic aides said the final compromise talks would essentially be a three-way negotiation involving top Democrats in the House and Senate and the White House, a structure that gives unusual latitude to Senate Majority Leader Harry Reid of Nevada and Speaker Nancy Pelosi of California.


Among those unhappy with the planned private powwow is the head of C-Span, who "has implored Congress to open up the last leg of health care reform negotiations to the public," Fox News reports:

C-SPAN CEO Brian Lamb wrote to leaders in the House and Senate Dec. 30 urging them to open "all important negotiations, including any conference committee meetings," to televised coverage on his network.


Here is the letter. Pelosi's response: "There has never been a more open process for any legislation in anyone who's served here's experience." Has a more false or awkwardly worded statement ever come out of anyone who has served as speaker of the House's mouth?

Politico's Mike Allen quotes an email from "one of our favorite conservatives": "Think of any particular Republican favorite item. Imagine that it passed with a single Dem vote and affected 16% of the GDP. Then imagine [former House majority leader Tom] Delay [sic; actually DeLay], [former Senate majority leader Bill] Frist and Dick Cheney meeting in secret to hash out differences. Now, consider the firestorm of press outrage."

We really thought the Democrats would be different. And they are. They're much worse!

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Re: Dems rip constitution they claim to champion into shreds

Postby carsonfire on Wed Jan 06, 2010 11:34 pm

In case you didn't believe me when I said it, Nancy Pelosi confirms for us that candidate Obama was simply lying all along:

http://www.politico.com/news/stories/0110/31180.html
A reporter reminded the San Francisco Democrat that in 2008, then-candidate Obama opined that all such negotiations be open to C-SPAN cameras.

"There are a number of things he was for on the campaign trail," quipped Pelosi, who has no intention of making the deliberations public.
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Re: Dems rip constitution they claim to champion into shreds

Postby carsonfire on Thu Jan 07, 2010 11:58 am

And now grouchy Jack Cafferty from CNN, of all people, is trotting out the L word even more directly:

http://www.firstthings.com/blogs/theanc ... g-quarter/

At what point do Democrats admit they owe Joe Wilson an apology?
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