Tuesday, March 16, 2010


Before I begin, I would like to encourage any who may be reading this to please read the entire post, even though it is long. The things I will discuss as pertaining to healthcare reform are more important than any of the other issues being discussed.

As many of you know, the President has been pushing for final vote, for the healthcare bill that is currently pending in Congress, by March 18th before he leaves for Indonesia and Australia. In the lead up to this, there has been an extraordinary amount of public debate as to its merits philosophically and politically, and as to whether the reform will or will not fix the status quo of healthcare.

However, what is distinctly absent from these debates is discussion as to the constitutionality of the proposed healthcare bills. This is a travesty. Here we are on the precipice of one of the largest and most expensive expansions of the federal government in American history, and few, if any, have even bothered to consider whether these proposed bills are constitutional, and the debates that I have heard as to its constitutionality are extremely superficial.

There are those who argue that healthcare reform is so important that ends justify the means, and that regardless of whether it is constitutional or not, it should be passed. Anything that requires a violation of the constitution to accomplish is immoral on its face. It is the constitution, and not political parties or political causes, to which we owe our highest moral duty.

This is because the constitution is the only thing standing between us and our government. It is the constitution, not legislative or executive grace that guarantees our liberties. It is not the President, not the Congress, not the military, not the free market— it is the constitution that guarantees us our liberties. Without the constitution any of the above named forces would be glad to rob you of them.

With this in mind, it is now my burden to show how the current proposed healthcare bill pending in Congress violates the Constitution. Because many of you might not be familiar with constitutional law, I will try and make it as simple as possible. But first I will start with the common knowledge approach which we can all be on equal footing with.

Recall in your mind a time in your life when the federal government has ever come to you and required you to buy a certain product or enter into a contract with another party. For instance, has the government ever told you that you must enter into a contract with a developer to buy a certain piece of real property, even if you weren’t in the market to buy land? Has the government ever mandated that you enter into a contract with a particular car dealership to purchase a particular type of car, even if you weren’t in the market for a new car? Can you think of any such instance?

If you thought of car insurance, think again. State governments, not the federal government requires you to purchase car insurance. There are many I have heard who have made this analogy and it is absolutely incorrect. The powers of state governments are wholly separate from the power of the federal government. It scares me that people are in high places are either ignorant of this, or are just being plain deceitful.

The reason you can’t think any examples is because it has never been done. The federal government has never had such power over your life so as to force you to enter into a contract with another person and purchase a good from that person. Yet, that is exactly what the government is trying to do with healthcare. Besides being a violation of your natural rights this is a gross violation of your constitutional rights.

In showing how the current proposed reforms are unconstitutional, I will narrow my remarks strictly to aspect of the healthcare reform proposal that mandates that the American people buy healthcare insurance, which is essentially the crux of healthcare reform. The constitutional issue that is raised here is whether Congress has power under the Commerce Clause of Article 1 Section 8 of the Constitution to require citizens who lack healthcare insurance, and who are not participating in interstate commerce, to buy healthcare insurance. The answer to the constitutional question is affirmatively, no.

The first thing that must be noted is that if Congress is to have any power to act at all in a particular area, its power must be either expressly or impliedly granted to it under the Constitution to do so. If the power to act is not given by the constitution, Congress may NOT act. Congress is only as powerful as the Constitution allows it to be.

The question then becomes what, if any, part of the constitution is Congress deriving its power to undertake healthcare reform. It has been alleged that Congress is acting under the Commerce Clause of Article 1 section 8 of the Constitution which gives Congress power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes". Hence, many have claimed that Congress has power to force citizens to buy healthcare insurance under its power to “regulate commerce among the several states.”

Okay, so now that we’ve decided that Congress is claiming to be acting on its authority to “regulate commerce among the several states,” it now becomes imperative to find out what the Supreme Court has interpreted this clause to mean. Since the year 1803 in the watershed case of Marbury v. Madison, it has been the Supreme Court’s duty to determine “what the law is.” This means that what the Supreme Court interprets the Constitution to mean is what becomes “constitutional law” or “the law of the land.”

In 1995, in the case of United States v. Lopez, the Court, overlooking the expanse of many cases over many years, outlined the scope of Congress’ power under the Commerce Clause to consists of the power to regulate three particular areas:

First, Congress may regulate the “channels of interstate commerce.” These “channels” are things such as highways, ports, airways, railways, etc. Healthcare insurance is not related to any sort of “channel” of interstate commerce whatsoever; therefore, if Congress is to have authority to force individuals to buy healthcare insurance, it may not derive its authority to do so as being a “channel” of interstate commerce.

Second, Congress may regulate “the instrumentalities of interstate commerce, and persons and things in interstate commerce.” Health insurance isn’t an “instrumentality” of interstate commerce. It’s not an “instrument” of any sort; it is a service. And healthcare is obviously not a “person or a thing” in interstate commerce—healthcare is a service not a person or a thing. Thus, Congress has no authority to act through this part of the commerce clause test either.

If Congress is to have any authority whatsoever to force citizens to purchase health insurance under the commerce clause, it would have to fall under the last prong of the commerce clause test, which states that Congress has authority “to regulate economic activities that substantially effect interstate commerce.”

This part of the Commerce Clause that the Supreme Court has created is the most controversial, and didn’t exist until after 1937 when FDR tyrannically threatened the then sitting Supreme Court that if they didn’t get on board with the “New Deal” and stop overturning new deal legislation, he would “pack the court” by increasing the number of justices from 9 to 15. Because the Justices did not want their power diluted, they did in fact jump on board with FDR’s new deal. What has followed has been a gradual unraveling of our personal liberties. However, nothing compares to the threat to our personal liberties that the precedent set by this bill will pose.

Let me break this portion of the Commerce Clause jurisprudence down for you as simply as I can. Before 1937, Congress could regulate only those activities which were actually directly involved in interstate commerce, such as shipping logs from one side of the country to another. Then along came the case of Wickard v. Filburn (1942). That case concerned a federal law which told farmers how much wheat a farmer could or could not grow. Well, along came this farmer who decided to grow a little more wheat than was allowed under the statute, not so he could sell the wheat through interstate commerce, but simply to use on his own farm to feed his own family and animals. The farmer was prosecuted for violating the federal statute for growing more wheat than Congress allowed.

The Supreme Court upheld the prosecution and declared a new law as part of the Commerce Clause that has come to be known as "the substantial effects test.” Under this test the farmer’s act of growing wheat for home production, even though he had no plans to sell it in interstate commerce, could be regulated because if the farmer, and other farmers like him, all grew their own extra wheat, there would be less wheat purchased on the national market and that the “cumulative impact” of all the such activities by farmers would affect supply and demand, thus having a “substantially effect” on interstate commerce.

Does this sound just to you? Should Congress be able to tell a man that he can’t grow wheat to feed his own family? I believe this case was wrongly decided, but nonetheless, it is now the law.

Since that decision, the court has narrowed the scope of this part of the Commerce Clause. In United States v. Morrison the court essentially held that if Congress is going to regulate an activity it has to be one of an economic nature. In that case Congress tried to pass a law through the Commerce Clause that would have regulated gender based violence, which Congress argued had a “substantial effect” on interstate commerce. The Supreme Court shot this law down, holding that even if an activity somehow has a “substantial effect” on interstate commerce, the activity has to be inherently economic. And since gender based violence is not an economic activity, it could not be regulated through the commerce clause.

So where does this put us today? The first question we should raise is whether the act of buying healthcare insurance is an “economic” activity. I would argue that it is not. But there is an even more important issue here. Notice that in all of the law that I have laid out for this third part of the Commerce Clause, the key word is “activity.” The court has held that Congress may regulate economic ACTIVITY that substantially effects interstate commerce.

So the real issue becomes: Is the act of NOT buying healthcare insurance an economic activity? NO! It is an INactivity—the absence of activity. And the Supreme Court has never held that Congress may regulate INactivity.

Do you see what is going on here? Congress is saying here that not only can it prevent you from growing your own wheat to feed your own family, but it can also force you to buy wheat from someone else. The difference here is between Congress being able to tell you what you CAN’T do and Congress being able to tell you what you MUST do.

So let's return to your farmer in the Wickard case. Let's say that after the Court's decision, the farmer was so upset that he decided to give up farming altogether, vowing that he never wanted to see another grain of wheat as long as he lived. Well, Congress then comes knocking at his door again and says that while he may give up farming, he may NOT stop purchasing wheat. Therefore, although the farmer no longer needs or wants the wheat, he must continue to purchase it from the other farmers. Does this sound right to you?

We have come a long way from when the Supreme Court once held that one’s activities could not be regulated by Congress unless they were literally and tangibly involved in interstate commerce, such as shipping and receiving goods across state lines. Now Congress wants to take its Commerce Clause power to even greater heights. Not only does it no longer have to wait for persons and things to move in interstate commerce before it can act, Congress now desires to reach into your home and your life and demand that you yourself become a part of interstate commerce. Unprecedented!

Not even during times of war and national emergency or crisis has Congress taken such carte blanch power over the liberty of the American soul. Congress has simply never had power to force the American people to participate in interstate commerce where that person has chosen not to.

If you are not concerned or frightened by this, what is wrong with you? I am being serious. I’m doing my best to refrain from hyperbole here, but do you really want healthcare, and all of the other things you think you deserve, at the expense of your liberty? Do you really want healthcare at the cost of the Constitution?

If Congress may now regulate economic INactivity, what is left that Congress cannot do? Think about how much of your life centers around what you do and don’t buy. If Congress can force you to buy a certain things as it is doing with healthcare, rest assured, it can do it with other areas.

The government now owns General Motors. Is it not conceivable that Congress could come to you and say: “Citizen, your economic ‘inactivity’ of NOT buying a General Motors car is having a ‘substantial effect’ on our economy. Henceforth all households must have at least one General Motors car.”

Is it not conceivable that Congress could tell you that you must buy a certain amount of “green energy” products, because the carbon foot print you are leaving is having a “substantial effect” on interstate commerce?

I do not relish in the future if this be Congress’ power. If this bill passes and is not shot down by the Supreme Court, it will be only a matter of time before the wrath of man will be exercised through your Congress to arrest your liberty piece by piece. Remember what Jefferson said: “In questions of power, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.”

Instead of binding men down by the chains of the Constitution, we are freeing man from the chains of the Constitution. Surely we will pay for this with our liberty. Citizens of the United States, your government is taking your country down a path tread by thousands of tyrants before it—a path not intended by the Fathers of this country and the God that inspired them. Stand up and be heard. Reject the actions of your government as they have rejected your constitution, your traditions, your values, and your liberties. Not only tell them “no”, tell them “HELL NO!"

In closing, I believe that if healthcare reform is to take place, it should take place on the state level, and not on the "one size fits all" federal level. Instituting reform on a state level allows for the various states to act as "laboratories", to test out reform through trial and error, where state programs which have success can be mimicked by other states, and where state programs that fail can be avoided by others states. It also allows those states that don't wish to participate in the reform, not to do so. This is democracy. And it is in sharp contrast to the federal level, where reform is forced upon all of the states, and where there is only one shot to get it right, the consequences of which are to be felt by the entire country, and where the chance for repeal if the program is a failure is extremely slight.

And for what it's worth, if you're wondering how Congress could institute federal healthcare reform constitutionally, Congress might be able to do it simply by raising taxes sky high to pay for it. But because taxes are politically unpopular, and because Congress and the President are too cowardly to do it the constitutional way, they are instead seeking to do it through the unconstitutional method they have chosen, by forcing you to buy your own insurance. Cowards...