Primary

A Call to Arms

There are three armed and activated surface-to-air, heat-seeking political missiles ready to launch, and one in reserve, armed but not yet activated. The target? ObamaCare, better known to its authors as the Patient Protection and Affordable Care Act of 2010 (HR 3590), passed by the House on March 21, and signed into law by President Barack Obama on March 23. After it is “reconciled” with the Senate version, it will be just more of the same.

ObamaCare not only is a usurpation of the Constitution — that document has been adulterated before, which is why the advocates of national health care or socialized medicine have been so confident that HR 3590 would pass and not be seriously questioned by the courts — and a deliberate discarding of the enumerated powers of the legislative and executive branches of government. It is a law that consciously, with malice aforethought, abrogates the individual rights of Americans ensured by that document. It does not merely abridge those rights; it renders them null and void.

With the strokes of twenty-two souvenir pens, President Barack Obama enlisted Americans into an involuntary army of indentured serfs, to perform services of submission at their own cost. The costs will be astronomical, the laughable explanations and assurances of Speaker Nancy Pelosi, Senator Harry Reid, and others to the contrary notwithstanding — making them liars. Its numbers are not only suspect, but outright fraudulent. Honest economists and observers have taken the trouble to crunch those numbers and expose the fraud, deceit and criminal legerdemain. The fiscal fraud is only one aspect of legislation loaded with many unsavory elements, such as the creation of a paramilitary “civilian army” commanded by the White House, and the drafting of doctors, even retired ones, into a “ready reserve” to combat emergencies.

ObamaCare will not reduce the federal deficit or save anyone money. Any money saved — projected at about $140 billion, out of a projected $13 trillion — will be eaten up by rising costs and inflation. It raids other “entitlement” programs, such as Medicare and Social Security, to make the legislation palatable. ObamaCare is a prescription for catastrophe, a shiny bottle of pills featuring a smile button pasted over a skull and crossbones. Robert J. Samuelson, for example, crunched the numbers and wrote an excellent critique of the legislation in the Washington Post. Commenting on the ongoing government debt, he stated:

Let’s be clear. A “budget crisis” is not some minor accounting exercise. It’s a wrenching political, social and economic upheaval.

And that is exactly what Obama and his co-conspirators want, the better to transform the United States into a giant slave camp. The enemy missile, unless it is brought down, will deliver a kind of economic and political electromagnetic pulse, calculated to bring everything and everyone to a standstill. So, it is not an issue of Obama and his gang not knowing mathematics. They know the math; they are subversives in office and by appointment.

The witnesses to this act of treason chortled, smiled, applauded, laughed and hugged each other in triumph. There was gaffe-happy, not-quite-all-there Vice President Joe Biden, looking fatherly with his hands on the shoulders of some kid who “campaigned“ for ObamaCare. There was scandal-forgiven-by-Pelosi Charles Rangel. There was Victoria Reggie Kennedy, widow of the late and also scandal-ridden Edward Kennedy of Chappaquiddick fame. There was the prissy, porcine face of Henry Waxman. There was Reid, Bernard Madoff’s alter ego in the Senate. And, there was Speaker Nancy Pelosi, beaming malevolently like the Nurse Ratched she is.

“Health care is no longer a promise, it is the law of the land,” Obama exulted.

And gaffe-happy Biden whispered in Obama’s ear for all the world to hear: “You did it. It’s a big f—ing deal.”

A cast of hundreds witnessed the act, all 219 Democrats who voted for the bill. It would be impossible to write a satire of the event, when so many of the accomplices and abettors are already caricatures of evil.

Life, liberty, property, and the pursuit of happiness? Gone with the wind.

Life? According to ObamaCare, your life belongs to the state, which will decide whether or not it is worth preserving. Liberty? Whatever the state permits you to do. Property? You are merely a steward of wealth and material goods, until it is clamed by the state. The pursuit of happiness? The state will decide what constitutes happiness, and your pursuit of it will be monitored and regulated. In short, the state owns you.

Unless Americans can reclaim their lives. And if they want to, they had better hurry. They should heed the words of their friends and enemies. On the totalitarian ingredients of ObamaCare, the Tenth Amendment Center wisely quoted two figures at opposite ends of the political spectrum:

“Medicine is the keystone of the arch of socialism” and “The goal of socialism is communism.” — Vladimir Lenin

“Whensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force.” — Thomas Jefferson

Our first missile might be effective, and this is a heavily qualified might. Several states have passed resolutions or plan to invoke the Tenth Amendment of the Constitution.

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.

That retaliation might fly, if it is also buttressed by citing the Ninth Amendment:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

These resolutions and states’ invocations are intended to nullify the compulsory elements in ObamaCare, and will rely on interpretations of the commerce clause, or Article I, Section 8, Clause 3, which states that Congress is empowered:

To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes….

My readings of the Founders’ meaning of that clause is that it was intended to empower the federal government to establish uniformity in commercial law, to nullify brigandish, fiat state laws that might violate the rights of American citizens engaged in commerce.

The monkey wrench in this approach, regardless of the motives of state governors and attorneys general, is the issue of taxing and regulating authority. As I noted in “Murder, She Wrote”:

A state’s well-intended protection of its citizens against federal taxing power, after all, will be seen as virtual secession. The states would, explicitly or implicitly, be challenging the federal government’s power to tax, as stated in the 16th Amendment, ratified in 1913:

A challenge to the mandated purchase of government-approved health insurance must logically and necessarily challenge that taxing power. Non-compliance by an individual in any state would result in a penalty tax. A state might ensure an individual’s right to not buy the insurance, but would be helpless to prevent that individual from being punished by the federal government. Such resolutions and acts by the states would be as weather vanes blowing in the wind.

So, it is the taxing authority of the federal government that must also be challenged. That event would be earth-shaking, for it would threaten all of the federal government’s powers to regulate and tax commerce and individuals (as well as the states’, counties‘, and municipalities’ own taxing powers).

Where do federal powers end, and state powers begin? The Constitution is quite clear on where. The specter of secession is no little matter. The states might succeed in upholding their sovereignty, but be required to see their citizens or residents submit to federal sovereignty (chiefly its taxing authority). It would be tantamount to Americans being taxed by Canada or Britain to subsidize the national health care systems in those countries. One issue the states will need to face or evade is their own power to regulate insurance companies. They cannot credibly challenge the federal power to tax and regulate without questioning their own.

But, the Democrats have demonstrated fathomless contempt for the Constitution, and for individual rights (provided they’ve even heard of them), they have denied and disparaged those rights, and the rule of law, and even Congress’s own protocols and rules. That contempt is best summed up in the immortal words of House member Alcee Hastings:

When the deal goes down…all this talk about rules…we just make ‘em up, as we go along.

Most state lawsuits against ObamaCare are fueling up at the wrong gas stations. These lawsuits, while many cite the unconstitutionality of the legislation, center their arguments on irrelevancies, such the funding of abortions, and plans to include non-tax-paying illegal immigrants in the raft of alleged benefits of compulsory health insurance. One lawsuit, filed privately by Conservative attorney Larry Klayman, is demanding that the administration release documents recording the “wheeling and dealing” behind closed doors with the pharmaceutical industry and other lobbyists over the bill’s contents.

Klayman’s suit refers to reports of meetings between administration officials on the “Health Reform De Facto Advisory Committee” and lobbyists representing the pharmaceutical industry, Planned Parenthood, the U.S. Chamber of Commerce, AARP and others….Klayman said the advisory committee has been tasked to design a policy that “is intended, at its endpoint, to socialize the American health care system.

Klayman is right about the endpoint. But the information he is seeking, while potentially, incriminating and sensational, is basically circumstantial to what should be the principal object of his suit: that ObamaCare violates individual rights, and should be repealed.

Other lawsuits contend that the compulsory provisions in the legislation are unconstitutional because the commerce clause prohibits the federal government from compelling Americans to engage in any commerce (whether within states or over state lines), which mandatory commerce is then federally required and regulated. Other arguments will assert that legislating health care or health insurance is not one of the enumerated powers, and, because it is absent, is therefore unconstitutional.

Which leads us to the third missile battery: repeal of ObamaCare. This is probably the most credible idea for striking down the legislation. If passed, Obama would be powerless to stop it. Repeal would be introduced as a special bill to be voted on by both Houses, but it would not be one loaded with line items and special earmarks.

However, Republicans who advocate changing the provisions, while they may argue against the “public option” compulsory element of the law, will probably settle — if it comes to that — for reducing some of the provisions but not make any headway against the public option. It is the public option, after all, that is the driving force of it.

And if, miracle of miracles, the Republicans actually take up the cudgels and use them unsparingly against the Democrats over the public option, Obama would not be able to veto the repeal. A bill to repeal is not the same thing as a bill loaded with pork or set-asides and the like. The danger is that, even if the repeal movement reached that point, the Democrats could change the rules, and allow Obama to repeal it if they could not defeat it in the House and Senate. That may take a Constitutional amendment, however.

The president can veto legislation passed on to him by the Congress, but he cannot veto a Congressional repeal of legislation, whether or not he or a predecessor signed it into law. This is a check on executive powers anticipated by the authors of the Constitution, one intended to forestall executive despotism.

In the U.S. Constitution, Article I, Section 7 of the Constitution gives the president the power to veto any bill passed by Congress. The president’s veto power is limited; it may not be used to oppose constitutional amendments, and it may be overridden by a two-thirds vote of both houses of Congress. In practice, the veto is used rarely by the president (although Franklin D. Roosevelt vetoed over 600 bills), and a bill once vetoed is rarely re-approved in the same form by Congress. The pocket veto is based on the constitutional provision that a bill fails to go into operation if it is unsigned by the president and Congress goes out of session within ten days of its passage; the president may effectively veto such a bill by ignoring it.

But you never know what the Democrats have planned. Their malice and power-lusting are as deep as the Mariana Trench. They mean to rule.

What has happened now is that the executive and legislative branches of the federal government have established a shared form of despotism. This has happened in the past — with FDR and Congress in the 1930’s passing social and economic legislation that established the welfare state, for example — but Obama and Congress have raised the practice to a new and perilous level. They have simply dismissed the Constitution (recall Obama’s derogatory remarks about that document, and Pelosi‘s “Are you serious?” answer to a reporter about the power of Congress to pass such legislation) and trumped it on the basis of “national need.”

A bill to repeal would be so singular that it would stand by itself and not be packaged with other pieces of legislation.

A repeal is not the same thing as a legislative bill that the executive had the power to oppose or endorse within the limits of his office. It is a rebuke and a nullification. The only way Obama could fight against repeal is to do what he did with the Senate and the House — glad-hand, strong-arm, and lobby behind closed doors to line up allies and aisle-crossers in both chambers. This is what he did, with Reid’s and Pelosi’s eager cooperation, to get ObamaCare passed in some form.

But we should not count on Republicans to advocate a clean decapitation. Some are talking about repealing the “harsher” provisions of the law — as though one could pick and choose critical elements of tyranny and servitude. Others are advocating scrapping ObamaCare and “starting over again” with an overhaul of health insurance and medical care — as though the federal government had an enumerated power to enter as an arbiter and regulator of insurance and health care.

The fourth missile battery will be activated only after all the others have failed, and, according to experts, such as former judge, author, and judicial analyst Andrew P. Napolitano, we would need to wait until January 1, 2014. That is when the legislation goes into full force, and that is when any challenge, private or state, could be filed with any hope of making it to the Supreme Court. Then, it may be years before the Court could hear a case charging the unconstitutionality of ObamaCare. It is a certainty that Obama et al. know this. Chances are that such a case will be made on non-essentials, and not on fundamental issues. Chances are that the Court (and lower federal courts) by then will be “packed” with justices who subscribe to Obama’s notion of a “living Constitution,” one whose meaning can be interpreted to mean anything but an absolute. Napolitano is not of that school. He warns:

Until then, there would be no legal case that individuals had been actually harmed by the law. Moreover, Napolitano says it takes an average of four years for a case to work its way through the various federal courts the final hearing that’s expected to come before the Supreme Court. “You’re talking about 2018, which is eight years from now, before it is likely the Supreme Court will hear this,” he says.

Napolitano is an absolutist, in the sense that the words penned by the Founders have eternal, unalterable meanings. He notes:

“The Congress [is] ordering human beings to purchase something that they might not want, might not need, might not be able to afford, and might not want — that’s never happened in our history before,” Napolitano says. “My gut tells me that too is unconstitutional, because the Congress doesn’t have that kind of power under the Constitution.”

The Constitution, he emphasizes,

“…was not created in order to right every wrong. It exists only to legislate in the 17 specific, discrete, unique areas where the Constitution has given it power. All other areas of human area [sic -- action?] are reserved for the states.”

According to Obama and Congress, however, if the Constitution does not specifically prohibit Congress from intervening in any specific realm of the private sector or in individual lives or state powers of regulation (which Napolitano mentions but does not question), then Congress will intervene. If promoting and regulating health care was not part of a hypothetical, endless catalogue of things Congress may not intrude on, then it is permitted to intrude.

The President’s plan, far from being constitutionally questionable, rests on what has rightly been called “the first of the constitutional achievements of the American people … the formation of a national government that may lawfully deal with all national needs.

Who said that? Attorney General Holder? Supreme Court Justice Sotomayor? David Axelrod? Cass Sunstein? No. It was a memorandum to Attorney General Janet Reno in 1993, endorsing the constitutionality of President Bill Clinton’s (or Hillary’s) proposed national health care plan, co-authored by two Duke University Law School professors, Walter Dellinger and H. Jefferson Powell.

Stuff and nonsense, they wrote. The Constitution was written by a bunch of fussy old fogies in funny clothes and who spoke in odd patterns of speech.

The most fundamental constitutional challenge to national health care reform is that it lies beyond the power of Congress and the President to enact. Fortunately, the Supreme Court has long since rejected the crabbed view of national legislative authority that necessarily lies behind such a challenge.

Let us ignore challenges based on fundamentals, by all means. Never mind that health care legislation lies “beyond the power of Congress and the President to enact.” We need “reform.” Need trumps reason, rights, and the rule of law. That is the chant we have been hearing for two years now, ever since Obama ran for office.

We can only hope that one of these missiles blasts ObamaCare out of the sky, or that Americans rise up and demand that it be negatived. The latter would necessitate mass civil disobedience, of going on strike against not just the government, but against the altruist morality and collectivist politics that sired ObamaCare and whatever else Obama and his allies plan to do to the country. The alternatives are slavery — or secession, civil war, anarchy, and an excuse for Obama or his successor to impose a dictatorship.

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

Addendum: In the midst of composing and posting “A Call to Arms,” I left one remark of mine unclarified regarding the president’s veto powers. It was clear in my head, but not in my words. What I meant to say was that the president can veto even repeal legislation, but his veto can be overridden if two-thirds of the House and Senate so vote. In Obama’s instance, he would work to ensure that no such bill to repeal (for example, ObamaCare) ever got out of committee in either chamber and made its way to formal debate or to a roll call vote. Also, I have added a link to that section of the Constitution, Article 1, Section 7, which discusses presidential veto powers. And I have added in italics a clarifying sentence to this paragraph:

The president can veto any repeal of Obamacare, but Congress, if it has the votes, can override his veto with a two thirds majority in each house. This is a check on executive powers anticipated by the authors of the Constitution, one intended to forestall executive despotism. That is, he can veto a repeal bill but expect or risk his veto being overridden by a majority in Congress.

My apologies for the confusion.