From http://www.tenthamendmentcenter.com/2009/08/18/is-obamacare-constitutional/

by Rob Natelson

During the Bush administration, many within the dominant culture expressed concern about the constitutionality of detaining several hundred alleged enemy combatants in Guantanamo.

Whenever legal restrictions on abortion are proposed, many express doubt about the constitutionality of interjecting government between patients and their doctors.

But those voices have been mostly silent about the constitutionality of empowering the federal government with decisions over the life, death, and health of three hundred million Americans.

In fact, the constitutional difficulties are profound.  This is certainly so for those who believe the Constitution means what our Founders understood it to mean.  But it is even true for those interested only in modern Supreme Court jurisprudence.

Following are some of the ways in which current health care proposals potentially clash with our nation’s Basic Law:

Enumerated powers. The Constitution grants the federal government about thirty-five specific powers – eighteen in Article I, Section 8, and the rest scattered throughout the document.  (The exact number depends on how you count.)  None of those powers seems to authorize control of the health care system outside the District of Columbia and the federal territories.

To be sure, since the late 1930s, the Supreme Court has been tolerant of the federal welfare state, usually justifying federal ad hoc programs under specious interpretations of the congressional Commerce Power.  But, except in wartime, the Court has never authorized an expansion of the federal scope quite as large as what is being proposed now.  And in recent years, both the Court and individual justices – even “liberal” justices – have said repeatedly that there are boundaries beyond which Congress may not go.

The greatest Chief Justice, John Marshall, once wrote that if Congress were to use its legitimate powers as a “pretext” for assuming an unauthorized power, “it would become the painful duty” of the Court “to say that such an act was not the law of the land.”  But health care bills such as the Obama-favored HB 3200 do not even offer a pretext.  The only reference to the Constitution in HB 3200 is a severability clause that purports to save the remainder of the bill if part is declared unconstitutional.  HB 3200 contains no reference to the Commerce Power or to any other enumerated power.

Excessive Delegation. The Constitution “vests” legislative authority  in Congress.  Congress is not permitted to delegate that authority to the executive branch.  This is another realm in which the modern Supreme Court has been lenient, while affirming that there are limits.  Thus, in Schecter Poultry Corp. v. United States (1935), a unanimous court struck down a delegation of authority that looked much like the delegations in some current health care proposals.

Substantive Due Process. The Substantive Due Process doctrine was not contemplated by the Founders, but the courts have engrafted onto constitutional jurisprudence.  The courts employ this doctrine to invalidate laws they think are unacceptably intrusive of personal liberty or privacy.  The most famous modern Substantive Due Process case is Roe v. Wade, which struck down state abortion laws that intruded into the doctor-patient relationship.  But the intrusion invalidated in Roe was insignificant compared to the massive intervention contemplated by schemes such as HB 3200.  “Global budgeting” and “single-payer” plans go even further, and seem clearly to violate the Supreme Court’s Substantive Due Process rules.

Tenth Amendment. Technically, the Tenth Amendment is merely a declaration that the federal government has no powers beyond those enumerated in the Constitution.  However, the modern Supreme Court has cited the Tenth Amendment in holding that Congress may not “commandeer” state decision making in the service of federal goals.

It is permissible for Congress to condition grants of funds to the states, if the conditions are related to the funding program and are not “coercive.”  Thus, in 1986 the Court ruled that Congress may, because of highway safety issues, reduce highway grants by five percent to states refusing to raise their drinking ages to 21.  But the mandates that some health care plans would impose on states certainly could be found “coercive,” both because they are excessive (HB 3200, for instance, would withdraw all Public Health Service Act money from non-cooperating states) and because they are unrelated to the program.

A major goal of our Constitution and Bill of Rights is to limit government power, especially federal power.  National health care proposals would increase that power greatly, so it is not surprising that those proposals have constitutional difficulties.  Whatever the merits of federal control of health care, moving in that direction is (as former Justice David Souter might say) a change of “constitutional dimension.”  The proper way to make such a change is not through an ordinary congressional bill.  The proper way is by constitutional amendment.

Rob Natelson is Professor of Law at The University of Montana, and a leading constitutional scholar.  (See www.umt.edu/law/faculty/natelson.htm.) His opinions are his own, and should not be attributed to any other person or institution. ]]> http://www.sanantonioteaparty.us/502/is-obamacare-constitutional-repost/feed/ 0 http://www.sanantonioteaparty.us/445/dems-consider-nuclear-option-to-pass-health-care/?utm_source=rss&utm_medium=rss&utm_campaign=dems-consider-nuclear-option-to-pass-health-care http://www.sanantonioteaparty.us/445/dems-consider-nuclear-option-to-pass-health-care/#comments Thu, 20 Aug 2009 16:44:21 +0000 San Antonio Tea Party http://sanantonioteaparty.org/?p=445 From http://www.foxnews.com/politics/elections/2009/08/20/democrats-prepare-push-health-care-gop/

Publicly, President Barack Obama is still calling for a bipartisan bill to overhaul the nation’s health care system. Privately, Democrats are preparing a one-party push, which they feel is all but inevitable.

Obama urged religious leaders Wednesday to back his proposals, and he prepared for a pep talk to a much larger audience of liberal activists, whose enthusiasm is in question. Polls continued to show slippage in support for the president’s approach, although Americans expressed even less confidence in Republicans’ handling of health care.

The administration said it still hopes for a bipartisan breakthrough on its goals of expanding health coverage, controlling costs and increasing competition among insurers. In private, however, top Democrats said a bipartisan accord seems less likely than ever when Congress reconvenes next month.

Obama was to promote his plans Thursday in a conference call and online address to supporters that could draw huge numbers of listeners. He also was to speak with Philadelphia-based radio talk show host Michael Smerconish, who will broadcast from the White House. Smerconish is generally seen as a conservative, although he endorsed Obama last year and supports abortion rights.

Vice President Joe Biden was meeting with health care professionals in Chicago on Thursday to push the administration’s plans. Health and Human Services Secretary Kathleen Sebelius was to join him.

Some Democrats said Democratic researchers have concluded lately that a strong-arm tactic on Senate health care legislation that would negate the need for any GOP votes might be more effective than previously thought.

The strategy, called “reconciliation,” allows senators to get around a bill-killing filibuster without mustering the 60 votes usually needed. Democrats control 60 of the Senate’s 100 seats, but two of their members — Robert Byrd of West Virginia and Edward Kennedy of Massachusetts — are seriously ill and often absent. And some moderate Senate Democrats have expressed reservations about the Democratic-backed health care overhaul plan.

While always contentious, reconciliation lets the Senate pass some measures with a simple majority vote. Non-budget-related items can be challenged, however, and some lawmakers say reconciliation would knock so many provisions from Obama’s health care plan that the result would be “Swiss cheese.”

Democratic aides say they increasingly believe those warnings are overblown.

On Wednesday, Jim Manley, spokesman for Senate Majority Leader Harry Reid, D-Nev., warned Republicans that reconciliation is a real option. The White House and Senate Democratic leaders still prefer a bipartisan bill, he said, but “patience is not unlimited and we are determined to get something done this year by any legislative means necessary.”

In a conference call with liberal religious leaders Wednesday, Obama called health coverage for Americans a “core ethical and moral obligation.” He disputed claims that Democratic bills would create government “death panels” for the elderly, offer health care for illegal immigrants or fund abortions.

“I know that there’s been a lot of misinformation in this debate and there are a some folks out there who are, frankly, bearing false witness,” Obama said. “I need you to spread the facts and speak the truth.”

Administration officials and congressional Democrats were deeply discouraged this week when key Republican lawmakers seemed more critical than ever about various Democratic-drafted health care bills pending in the House and Senate. They said they still hope Senate Finance Committee efforts to craft a bipartisan compromise can succeed, although private remarks were more pessimistic.

“The president believes strongly in working with Republicans and Democrats, independents, any that seek to reform health care,” White House press secretary Robert Gibbs said. “The president strongly believes that we’re making progress.”

Many Republicans believe that millions of Americans, and especially the GOP’s conservative base, ardently oppose Obama’s health care plans, which they consider too costly and intrusive.

Obama’s approval ratings “continue to inch downward,” a Pew Research Center poll concluded Wednesday. Favorable ratings for the Democratic Party also have fallen sharply, although they still exceed those of the Republican Party.

Nearly all sides agree that conservatives showed more energy than liberals this month at often-raucous town halls and other forums on health care. Valerie Jarrett, a top Obama adviser, warned liberal bloggers recently that the health care push is “an uphill battle, and it won’t happen unless we energize our base.”

Many conservatives think they see the first big chink in Obama’s political armor, and Web sites and radio talk shows have encouraged the attacks against his proposals.

Democratic officials, meanwhile, say the often complex and slow-moving health care debate has not captivated millions of liberal activists who campaigned tirelessly for Obama last year.

Organizing for America, the president’s political organization based at the Democratic National Committee, is trying to rally its members. Last week about 60,000 volunteers sent messages to lawmakers, urging them to support Obama’s health care agenda.

Republicans are keeping up their criticisms, and a prominent GOP Senate negotiator warned Democrats not to shut them out.

“If the Democrats choose to go it alone, their health care plan will fail because the American people will have no confidence in it,” Sen. Mike Enzi of Wyoming said Wednesday.

Enzi is one of three GOP senators who have met regularly with Finance Committee members to seek a bipartisan bill.

From http://www.tenthamendmentcenter.com/2009/08/18/is-obamacare-constitutional/

by Rob Natelson

During the Bush administration, many within the dominant culture expressed concern about the constitutionality of detaining several hundred alleged enemy combatants in Guantanamo.

Whenever legal restrictions on abortion are proposed, many express doubt about the constitutionality of interjecting government between patients and their doctors.

But those voices have been mostly silent about the constitutionality of empowering the federal government with decisions over the life, death, and health of three hundred million Americans.

In fact, the constitutional difficulties are profound.  This is certainly so for those who believe the Constitution means what our Founders understood it to mean.  But it is even true for those interested only in modern Supreme Court jurisprudence.

Following are some of the ways in which current health care proposals potentially clash with our nation’s Basic Law:

Enumerated powers. The Constitution grants the federal government about thirty-five specific powers – eighteen in Article I, Section 8, and the rest scattered throughout the document.  (The exact number depends on how you count.)  None of those powers seems to authorize control of the health care system outside the District of Columbia and the federal territories.

To be sure, since the late 1930s, the Supreme Court has been tolerant of the federal welfare state, usually justifying federal ad hoc programs under specious interpretations of the congressional Commerce Power.  But, except in wartime, the Court has never authorized an expansion of the federal scope quite as large as what is being proposed now.  And in recent years, both the Court and individual justices – even “liberal” justices – have said repeatedly that there are boundaries beyond which Congress may not go.

The greatest Chief Justice, John Marshall, once wrote that if Congress were to use its legitimate powers as a “pretext” for assuming an unauthorized power, “it would become the painful duty” of the Court “to say that such an act was not the law of the land.”  But health care bills such as the Obama-favored HB 3200 do not even offer a pretext.  The only reference to the Constitution in HB 3200 is a severability clause that purports to save the remainder of the bill if part is declared unconstitutional.  HB 3200 contains no reference to the Commerce Power or to any other enumerated power.

Excessive Delegation. The Constitution “vests” legislative authority  in Congress.  Congress is not permitted to delegate that authority to the executive branch.  This is another realm in which the modern Supreme Court has been lenient, while affirming that there are limits.  Thus, in Schecter Poultry Corp. v. United States (1935), a unanimous court struck down a delegation of authority that looked much like the delegations in some current health care proposals.

Substantive Due Process. The Substantive Due Process doctrine was not contemplated by the Founders, but the courts have engrafted onto constitutional jurisprudence.  The courts employ this doctrine to invalidate laws they think are unacceptably intrusive of personal liberty or privacy.  The most famous modern Substantive Due Process case is Roe v. Wade, which struck down state abortion laws that intruded into the doctor-patient relationship.  But the intrusion invalidated in Roe was insignificant compared to the massive intervention contemplated by schemes such as HB 3200.  “Global budgeting” and “single-payer” plans go even further, and seem clearly to violate the Supreme Court’s Substantive Due Process rules.

Tenth Amendment. Technically, the Tenth Amendment is merely a declaration that the federal government has no powers beyond those enumerated in the Constitution.  However, the modern Supreme Court has cited the Tenth Amendment in holding that Congress may not “commandeer” state decision making in the service of federal goals.

It is permissible for Congress to condition grants of funds to the states, if the conditions are related to the funding program and are not “coercive.”  Thus, in 1986 the Court ruled that Congress may, because of highway safety issues, reduce highway grants by five percent to states refusing to raise their drinking ages to 21.  But the mandates that some health care plans would impose on states certainly could be found “coercive,” both because they are excessive (HB 3200, for instance, would withdraw all Public Health Service Act money from non-cooperating states) and because they are unrelated to the program.

A major goal of our Constitution and Bill of Rights is to limit government power, especially federal power.  National health care proposals would increase that power greatly, so it is not surprising that those proposals have constitutional difficulties.  Whatever the merits of federal control of health care, moving in that direction is (as former Justice David Souter might say) a change of “constitutional dimension.”  The proper way to make such a change is not through an ordinary congressional bill.  The proper way is by constitutional amendment.

Rob Natelson is Professor of Law at The University of Montana, and a leading constitutional scholar.  (See www.umt.edu/law/faculty/natelson.htm.) His opinions are his own, and should not be attributed to any other person or institution. ]]> http://www.sanantonioteaparty.us/421/is-obamacare-constitutional/feed/ 0 http://www.sanantonioteaparty.us/362/perils-of-obamacare-the-three-big-lies/?utm_source=rss&utm_medium=rss&utm_campaign=perils-of-obamacare-the-three-big-lies http://www.sanantonioteaparty.us/362/perils-of-obamacare-the-three-big-lies/#comments Sun, 16 Aug 2009 05:17:04 +0000 San Antonio Tea Party http://sanantonioteaparty.org/?p=362 This is from Cato.org

In making his case for a government takeover of the US health-care system, President Obama is going far beyond the usual Washington truth-stretching.

Take a look at just a few of the most common claims:

“If you like your current health-care plan, you can keep it.” Even White House spokesmen have said that Obama’s oft-repeated pledge that you can keep your current insurance isn’t meant to be taken literally. The reality is that millions of Americans — perhaps most Americans — will be forced to change insurance plans.

First, the president supports an individual mandate — a requirement that every American buy health insurance. And not just any insurance but insurance that includes all the benefits government thinks you should have. That insurance could be more expensive or include benefits that people don’t want or are morally opposed to, such as abortion services.

And that doesn’t just affect those without insurance today. The bills now before Congress say that while you won’t be immediately forced to switch from your current insurance to a government-specified plan, you’ll have to switch to satisfy the government’s requirements if you lose your current insurance or want to change plans.

Plus, the president supports the creation of a government insurance program that would compete with private insurance. But because this ultimately would be subsidized by American taxpayers, the government plan could keep its premiums artificially low or offer extra benefit.

In the end, millions of Americans would be forced out of the insurance they have today and into the government plan. Businesses, in particular, would have every incentive to dump their workers into the public plan. The actuarial firm the Lewin Group estimates that as many as 118.5 million people, roughly two-thirds of those with insurance today, would be shifted from private to public coverage.

“You will pay less.” The Congressional Budget Office has made it clear that the reform plans now being debated will increase overall health-care costs, yet President Obama on Friday repeatedly said that his reform would reduce costs and save Americans money.

But no matter how many times he says it, the truth is you will pay more — much more — both in higher taxes and in higher premiums.

The final health-care bill is expected to cost more than $1 trillion over the next 10 years. That means much higher taxes, and not just for the wealthy.

If one totals up all the new taxes in the House Democratic health-reform bill — the income surtax, the penalties on businesses and individuals that fail to buy into the government health plan, as well as other fees and taxes — the cost to US taxpayers will top $800 billion. New York City will face marginal tax rates as high as 57 percent.

At a time of rising unemployment and economic stagnation, that is like throwing an anchor to a drowning man.

In addition, the new insurance regulations expected to be part of the final bill are likely to drive up insurance premiums. And, if the new government-run plan under-reimburses doctors and hospitals — as Medicare and Medicaid do — providers would be forced to recoup that lost income by shifting their costs to private insurance, driving up premiums. A study by the Council for Affordable Health Insurance estimates that the president’s proposals could increase premiums by 75 to 95 percent.

“Quality will improve.” Anyone who thinks a government takeover of the health-care system will improve quality of care has only to look at the health-care programs the government already runs: The Veterans Administration is overwhelmed with problems, Medicaid is notorious for providing poor quality at a high cost — and Medicare has huge gaps in coverage.

Worse, however, on Friday, Obama endorsed the creation of a government board with the power to dictate how your doctor practices medicine and all but endorsed the rationing prevalent in nationalized health-care systems around the world.

In short, when it comes to claims about the wondrous new world of government-run health care, a bit of skepticism might be in order.

By DICK MORRIS & EILEEN MCGANN

Published on DickMorris.com on August 11, 2009

The most ominous signal yet for the Obama health care plan emerged in the poll by Scott Rasmussen released today. While public support for the plan fell to a new low (42% support, 53% oppose — down five points in two weeks), the elderly emerged as the strongest opposition group. Those over 65 rejected the plan by 39-56 while almost half — 46% — said they were “strongly opposed” to it.

The group that supports the plan most strongly is those likely to be least affected, voters under the age of thirty, 67% of whom support the proposals.

The Democratic Senators and Congressmen can well choose to ignore polls. Polls go up. Polls go down. They may figure that the public will have moved on by the time they run for re-election, particularly those Senators who are not up in 2010. With four or six years to go in their terms, they can afford a relaxed view of polling data.

But the Democratic Party as a whole cannot afford to ignore a massive defection in the ranks of the elderly, one of its key building blocks. Ever since the New Deal coalition was cobbled together by FDR, the elderly have been a major component. Worried about Republican designs on their Social Security, they vote overwhelmingly Democratic.

But the Obama proposals, which many see correctly as a major cut in Medicare, might be seminal in driving them en masse away from the Democrats.

The Democratic Party is built on six pillars — blacks, Latinos, single women, young people, union members, and the elderly. If legislation threatens one of those pillars, it threatens the stability of the entire partisan structure. And Obama’s health care reform seems to do just that.

With 40% of the savings in medical spending coming from Medicare, the senior citizens of America are coming to see the Obama proposals as an assault on their health care system. Since their needs are fully met by Medicare, they see no need for monkeying with the system and are highly suspicious of any changes. When they watch as their fellow seniors attend town meetings to protest to their Congressmen about these cuts and are labeled “un-American” for their pains, their alienation from the Democrats just grows.

The fissure Obama is driving between his party and the elderly will not soon heal. When the elderly change their voting habits, they tend to do so for a very, very long time. Even Senators who are up in

2012 or 2014 should worry that their votes for the Obama plan could doom their ability to attract elderly support.

As to the young people who back the plan, once they learn that they will have to pay steep premiums for health care coverage, whether they want to or not, their support is likely to cool. Under the bill, for example, those making $30,000 a year would have to pay up to 7% of their income in health insurance premiums before they could get a government subsidy. A $2,100 bill for such a young person might seem affordable to Obama, but perhaps not to them. Thus, the legislation may well come to be seen as a tax on the young, another of the key constituencies of the Democratic Party.

The cost of Obama’s health care changes just keeps growing — financially and politically.

Fifty-four percent (54%) of U.S. voters say tax cuts for the middle class are more important than new spending for health care reform, even as President Obama’s top economic advisers signal that tax hikes may be necessary.

A new Rasmussen Reports national telephone survey, taken Monday and Tuesday nights, finds that 34% disagree and say new spending for health care reform is more important. Twelve percent (12%) are not sure.

It is important to note that this question asked about new government spending for health care reform rather than about the overall concept of health care reform itself.

The partisan and ideological divide on the question is sizable. Fifty-eight percent (58%) of Democrats say new spending for health care reform is the priority. But 80% of Republicans and 62% of voters not affiliated with either party favor tax cuts for the middle class.

Seventy percent (70%) of liberals say new spending is more important, while 76% of conservatives prefer tax cuts.

Recent polling shows that 48% of voters now rate the U.S. health care system as good or excellent. That figure has increased significantly since the Congressional debate on health care began.

Seventy-six percent (76%) of all voters believe it is at least somewhat likely that taxes will have to be raised on the middle class to cover the cost of health care reform. Fifty-nine percent (59%) say it is very likely.

Just 18% say middle class tax hikes are not likely, with 14% who say they’re not very likely and four percent (4%) who think they are not at all likely.

These numbers are largely unchanged from a survey in mid-July. But on Sunday Treasury Secretary Timothy Geithner and Lawrence Summers, director of the National Economic Council, both refused to rule out the possibility of middle-class tax increases to pay for the health care reform plan proposed by the president and congressional Democrats.

Voters ages 18 to 29 are evenly divided over which is more important – tax cuts or new spending on health care reform – while those in all other age groups overwhelmingly prefer cutting taxes for the middle class. This younger age group also is by far the one that least expects a middle class tax hike to pay for health care reform.

While 88% of Republicans and 67% of unaffiliated voters say middle-class tax hikes are very likely, just 29% of Democrats agree.

Only 15% of voters nationwide now say Obama has cut taxes for 95% of Americans as he repeatedly promised to do on the campaign trail, down 11 points from early June. Forty-nine percent (49%) say the president has not cut taxes for most Americans, and 36% are not sure.

Democrats are far less skeptical about this than Republican voters and unaffiliateds.

Forty-one percent (41%) of voters now expect their personal taxes to go up under the Obama administration. Eleven percent (11%) say they will go down, and 34% think they will stay the same.
Just 16% of voters believe that tax increases help the economy. Most voters (54%) say tax increases hurt the economy, a number that has been fairly consistent for more than a decade.

Only 28% say they are willing to pay higher taxes so that all Americans can have health insurance. Sixty percent (60%) are opposed. Those figures are little changed since May.
Recent polling has shown that cost, not universal coverage, is the top concern about health care.

Americans are fairly evenly divided on the health care reform proposals working their way through Congress, but most remain convinced that the plans will raise costs and hurt the quality of the care they receive.