Obamacare: The Supreme Court Decides

In the case before the Supreme Court regarding Obamacare, references will be made to prior Court decisions as well as established law and various clauses of the Constitution. The most significant of these clauses for this case is Article I, Section 8 which in part states that Congress has the power "To regulate Commerce--among the several States--" and "To make all Laws which shall be necessary and proper for carrying into Execution--" the powers granted to it.

Up to the 1930's, Court decisions held that Congress was "restricted to that commerce which concerns more States than one." ("Gibbons v. Ogden"-1824).  This was true even when child labor was involved when the Court struck down such a law reasoning "---that mill work was part of intrastate manufacturing and not commerce among the states." ("Hammer v. Dagenhart" (1918) as quoted in "Atlantic" in an article titled: "How Obamacare Will Be Settled: A Primer on the Commerce Clause")

Starting in the 1930's Court decisions started to be more expansive. In "National Labor Relations Board (NLRB) v. Jones and Laughlin Steel Corporation" (1937), the Court found that Jones and Laughlin could not penalize workers seeking to unionize.  The Court "--saying for the first time that Congress could regulate activities with a 'close and substantial relation to interstate commerce.' " And in "Wickford v. Filburn" (1942), the Court upheld the Agricultural Adjustment Act of 1938 "--licensing Congress to legislate local individual actions that could potentially affect interstate commerce in the aggregate."  (bold letters mine--Quotes from same article in "Atlantic" cited above).

The expansion of Congress's power under the commerce clause continued through the 20th century.  In such areas as discrimination against small business to unfair business practices in professional football, Congress's authority to act under the commerce clause was upheld by the Court.  And in 1964, the Civil Rights Act's provisions for desegregation of motels and restaurants was upheld as within Congress's power under the commerce clause.

The last significant Court decision for purposes of the Obamacare case was in Gonzales v. Raich (2005) when the Court approved the Controlled Substance Act thereby overriding the California law legalizing marijuana.  The Court's reasoning reflected that cited above in the Wickford case.

It should be noted, however, that there is no precedent in which the Court ruled that coercing individuals to participate in any specific market (as distinct from individuals who have elected to participate of their own volition) was within Congress's power.

In addition to the commerce clause, there are several other constitutional issues that will come into play. Such as: 1.) whether contract law is applicable (holds that persons cannot be forced into contracts), 2.) whether the penalties for not buying insurance are a tax (that would force the case to be postponed until individuals had actually paid the tax under a 19th century law), 3.) whether the individual mandate is severable from the total law (if it isn't, the total law must be scraped) and 4.) whether the provisions for increasing Medicaid burdens on the states is in violation of the 10th amendment (which states that "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 is a complicated issue. But in my non-legalistic opinion, the Court will rule for an individual's right  to choose or not to choose, of his own free will, to participate in any market.  I base that view on the foundation of individual liberty and limited government expressed so clearly in the Declaration of Independence, the Constitution and The Federalist Papers.

Note: For more information on the cases mentioned, refer to the "Atlantic" article cited above and to an article appearing in "Defining Ideas-A Hoover Institution Journal" entitled "Obamacare vs. the Commerce Clause".

The House of Representatives: Is it Representative?

"As it is essential to liberty that the government in general should have a common interest with the people, so it is particularly essential that the branch of it under consideration should have an immediate dependence on, and an immediate sympathy with, the people." ("The Federalist Papers.  No. 52: The House of Representatives" (Madison)).

The national government established by the Constitution provided for a House of Representatives that, of the three branches of government, would be closest to the people as described in the above quote. Along with the limited powers granted by the Constitution and the checks and balances among the three branches, the "Peoples House" would be less susceptible to the more permanent branches of government (and presumably other influences as well) to be seduced. Under this concept, liberty would be protected.

We have come a long way from the Constitutional concept. We have in the House today many representatives that are not "immediately dependent on" the people but dependent on moneyed interests for campaign funds.  They have become a closed society of political insiders, dismissive of voter concerns and arrogant in the power they have and which they continue to accumulate.  They have become career politicians, in office too long, remote and aloof from their constituents.

In another statement in the "Federalist Papers" (No. 52) cited above, Madison states: "It is a received and well-founded maxim that----the greater the power is, the shorter ought to be its duration, and conversely, the smaller the power, the more safely may its duration be protracted."

Applied to total time in office, that is, the number of terms served by representatives, we would conclude that many representatives in modern government should return to private life.  There are two factors that make our time significantly different from Madison's. First, the Federal Government, including the House of Representatives, has much more power than it did previously and secondly, representatives stay in office, for a variety of reasons, longer than is prudent for a free society.

We need to resolve the problem that the House of Representatives is not truly representative of the people. What is the solution?  In my opinion, the only long term and realistic answer is a constitutional amendment that provides for term limits.  More about that in future postings; in the meantime, I welcome your comments.

Some Thoughts on the Current Status of the Primary

Based on news reports this morning, Mitt Romney has 407 committed delegates or 53% of those chosen thus far.  If he continues at this pace,  he will win the nomination before the convention.  Some argue that Romney may be derailed from obtaining the nomination if one (or two) of his opponents drop out. That is not a given for it is just as possible that Romney's margin may increase if he can manage to hold on to his base support and pick up some of the voters of the candidate(s) who leave the race.

There have been some suggestions (by mostly liberal pundits) that the Republican Party is so split over the paramountcy of social and fiscal issues as well as the candidates' conservative credentials that Obama will almost certainly win in November. I think that the Party is able to fight on both fronts.  As far as political differences, we need only remember that past primary opponents have resolved their differences to campaign successfully in the general election (Kennedy and Johnson in 1960, Reagan and Bush in 1980 and Obama and Clinton in 2008).

We should also be mindful that the country did not get into this mess in one year or even one term but over several decades. Nor will we turn the ship of state around in a short period of time.  A doable short term goal is to defeat Obama first and to cancel his most egregious programs.

There is, however, a need for a long term vision of conservative governance and why it is superior to the liberal view. Republicans need to consider not only gaining the Presidency (as well as control of both Houses of Congress) in this election year but to lay the foundations for future successes.  This is essential if we are to solve our problems for the simple reason that it will take some time to resolve our multiple difficulties and put (as well as maintain) the country on a sound footing.

JUST LET US BE!

The Catholic Church's position on contraceptives, as well as other issues, has been long standing and well known.  The Church's mission is to spread the good news of the Gospel to all who would accept it of their own free will.

The current controversy, let us remember, occurred after HHS issued an edict that health insurance coverage would be mandatory in the Church's policies for its employees.  It is the government, going beyond its constitutional powers, that created the issue, not the Church!

In accordance with the first of the Bill of Rights: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;---".  Catholics and all persons of faith have the right to practice their religion as their conscience dictates.  It should not matter to others, best of all the government, what our private beliefs are.  

Just let us be!

Big Government and Inefficiency

Sometimes, I'm looking for a subject for a new post and it just falls into my lap.

In this morning's "The Times Union", an editorial was titled: "Inefficient stimulus leaves a big debt".  The sub-heading: "The $757 billion stimulus package put in place by the Obama administration in 2009 was not an efficient way to create jobs".

They should have stopped there.  The opening sentence of the editorial opines: "However, it has spurred  the economy in Northeast Florida and across the nation."  It goes on to cite how much money has been "showered" on the area and the benefits to numerous small businesses which it lists.

I continue to be amazed at the mind set of those who first look to government for solutions.  Conservatives know that we can't spend our way out of a recession, that free enterprise is the best engine to grow the economy, that government interference too often results in diminished liberty and to continue funding expenditures by increasing our debt (a burden for future generations) is unconscionable.

We must change our attitude toward big government.  We have looked to our elected representatives "to bring home the bacon".  But government largess comes at a price: more government controls, more debt and a loss of personal freedom.  Included in this process are earmarks that are used to insure a congressman's vote on legislation.  As for instance, for Obamacare, which I would call adding insult to injury.

But not often discussed about big government is its inefficiency as the cited editorial suggests. This condition not only applies to programs that the government has assumed for itself (health care, business subsidies and education for instance) but also to areas where we rely on the federal government to be competent (such as border control, defense and protection of our individual liberties).

Reason for Some Optimism

We are at a time that is very troubling for most of us.  Our economic status is dismal and the political establishment ineffective and in disarray.  These points are reflected in the following quoted from today's "The Times Union" (in an article entitled: "New political process is intriguing"):

     "Nearly two-thirds of U.S. voters feel the federal government has lost touch with the people it represents."
     "More than two-thirds are open to supporting a qualified independent candidate."
     "Only 17 percent of Americans are satisfied with the way things are going in the U.S."

In the article cited above, an organization called "Americans Elect" is described as a bipartisan group whose purpose is to nominate candidates for office using the internet. Any registered voter can join the process. Nominations will be made and candidates selected on-line by the voters who join. Eventual nominees for office will be registered to be on state ballots by "Americans Elect".  You can read more about it by linking onto http://www.americanselect.org/  Although this group may have only minimal impact this year, they have the potential to challenge the entrenched political establishment in the future.

There are other reasons to look at the bright side.  For conservatives, Rick Santorum has outlined an agenda that we can endorse and applaud.  On issues such as government involvement in the economy, environment, use of resources, religious freedom, defense, foreign affairs, education and abortion, he is the candidate most in line with conservative views.  Although his positions have been, and will be, twisted and distorted by the liberal media, Santorum has shown that he is a worthy advocate and defender of conservative ideas and principles.

Another positive note is that the recent controversy generated by Obama's attack on religious freedom will not go away soon.  The U.S. Conference of Catholic Bishops are rightly holding their ground.  Following are the key points from a letter issued today to all Catholics in the U.S. by the Bishops:

     "The original rule that violated our religious liberty so severely has not been changed, but finalized."
     "HHS has promised some kind of 'accommodation' but only after the election."
     "The promised 'accommodation'- even at its best-would still force our institutions to violate their beliefs."
     "There is no exemption for objecting insurers, secular employers, for-profit religious employers, or individuals."

The Bishops go on to ask Catholics to contact their congressman to urge support for the "Respect for Rights of Conscience Act" (H.R. 1179, S. 1467). We all should be disturbed, if not surprised, that the "accommodation", much touted in the press, will not be acted upon until after the election.

Although the country's problems won't be solved soon, we now see some activity that gives us reason to be optimistic.  In addition to the above, there is the very real possibility that the Supreme Court will strike down the individual mandate of Obamacare and hopefully the whole program.  And given that the time will come when the Republicans can concentrate on job #1 to defeat Obama, the outlook will  much improve. I am cautiously optimistic.

Threats to Freedom

David Hume, Scottish philosopher, once said: "It is seldom that liberty of any kind is lost all at once." (quoted in 'The Road to Serfdom' (F. A. Hayek)).

Before 1776, the British colonies in America had enjoyed a degree of liberty.  For example, Roger Williams, a Puritan minister, had been granted a charter from Parliament in 1644 for the State of Rhode Island & Providence Plantations (its full name) that guaranteed religious liberty; there was to be no interference by the colony's government in religious affairs.

Other rights cited in the Declaration of Independence were over time threatened by the monarchy.  To quote in part from the Declaration:

     "The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States."

The Declaration went on to list numerous examples.  Among them:

*The King "---has refused his Assent to Laws----for the common good."
*"He has made Judges dependent on his will alone---."
*"He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people-."

The Declaration goes on to cite many other of the King's injuries and concluded: "---when in a long train of abuses and usurpations---evinces a design to reduce them (i.e. the people) under absolute Despotism, it is their right, it is their duty, to throw off such Government---."

The Founding Fathers recognized that the impetus toward despotism can be halted by resolute action--it need not be inevitable.

Other countries have not fared as well.  When the Czarist government of Russia was overthrown, it was led for a short time by a democratic one but ultimately fell to the Communists.  An opportunity for a free society had been lost. In the 1930's, the Democratic Government in Germany, which had governed since 1918, relinquished power to the Nazis.

In both cases, the intent of both the Communists and Nazis was well known in advance by their words and deeds, that is if people were paying attention. The existing democratic leaders at that time made no serious attempt to stop the transfer of power.  As history has recorded, the Stalin and Hitler regimes both resulted in totalitarian governments where all opposition was eliminated or neutralized; nothing was left to stand between the leader's power and the individual.

In 1776, the United States had leaders who not only had foresight and political courage but who also were well versed in political philosophy and history.  They understood the value of individual sovereignty and the need to protect it.  They accordingly designed a system of government that limited its authority by the separation of powers, checks and balances, federalism and a Constitution with enumerated powers.  It has worked well for 200 years.  But it is susceptible to attack and we must be vigilant.

In America today, government institutions and programs have been in effect for some years that have an adverse impact on our freedoms. For example, we now have an overbearing government bureaucracy and stifling regulations in many areas including health care, the environment, education, taxes, business and direct grants that undercut state authority, individual sovereignty and the exercise of free enterprise.

Recently we have seen the Obama Administration mandate that Catholic Organizations provide contraceptive coverage in their health insurance policies.  The President later changed that edict to "accommodate" Catholic objections but that "compromise" is no less onerous. The fundamental question remains:  Why should the Federal Executive have the power to mandate health insurance policies or even to "accommodate" or not to "accommodate"?

Another recent example is in education.  In an article released by the Associated Press cited in "The Times Union", it was reported: "Vice President Biden made a pitch Monday for the Obama Administration's proposals to make college affordable, including punishing schools that fail to keep their costs down."  The proposals "---include withholding federal aid from schools that don't keep net tuition down and provide good value."  What's next; federal administrators?

I realize that due to the size of the Federal Government and the sheer number of programs, the impact of these kind of changes cannot be fully known or understood.  We need to turn "the ship of state" around before it is too late. As we all know, each program, entitlement, grant etc. generates its own special interest and voting bloc. Once implemented, it becomes difficult to dislodge them even when a $15 trillion debt would seem to require it.