The Divine Lamp

The unfolding of thy words gives light; it imparts understanding to the simple…Make thy face shine upon thy servant, and teach me thy statutes

GOP Tries To Save Constitution

Posted by Dim Bulb on December 23, 2009

From CNN, one of the leaders of that that umbrella organization known as The Obama News Network comes this headline: GOP Tries To Derail Health Bill.

A real news network would have a headline such as “GOP Tries To Save Constitution.”

From The Heritage Foundation blog, THE FOUNDRY, comes this piece entitled “Obamacare’s Constitutional Problems Proliferating,” by Conn Carroll.  (Note: following the copyright notice at the end of this article I’ve posted links to related posts and news stories)

After the Democrats cleared the second of three 60 vote hurdles last night, Republicans ceded enough debate time back to the majority so that passage of Obamacare through the Senate will take place n Christmas Eve at 8 AM. Conservatives have every right to be disappointed that Senate Republicans did not force the maximum amount of debate possible. But they can take heart in a key point of order that will be voted on later today. Sponsored by Sens. Jim DeMint (R-SC) and John Ensign (R-NV), that vote will lay the groundwork for the possible legal dismantling of Obama’s health program.

As we’ve detailed before, the very core of the Senate health plan includes an unprecedented expansion of the power of the federal government over the lives of every American. For the first time in history, every American would be forced to buy federally regulated and approved health insurance or face a $750 fine. As the non-partisan Congressional Budget Office (CBO) wrote in 1994: “A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States.” The individual mandate and other questionable measures in the bill raise serious questions as to whether Obamacare could survive a Constitutional test:

Enumerated Powers: Article I allocates to Congress “[a]ll legislative powers herein granted,” which means that some legislative powers were intended to remain beyond Congress’s reach. The Supreme Court recognized and affirmed this fundamental principle from the earliest days of the republic, as Chief Justice Marshall famously observed: “The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written.” Nowhere in the Constitution is Congress given the power to mandate that an individual enter into a contract with a private party or purchase a good or service. Democrats have pointed to both the general welfare taxing power and the commerce clause as possible justifications for the mandate, but as a recent Heritage Legal Memorandum details, neither justification withstands scrutiny.

5th Amendment: The Fifth Amendment of the U.S. Constitution reads in part: “No person shall … be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” Sen. Ensign will argue today: “The Democrats’ health reform bill would require an American citizen to devote a portion of income – his or her private property – to health insurance coverage. … But, Mr. President, if a Nevadan does not want to spend his or her hard-earned income on health insurance coverage and would prefer to spend it on something else, such as rent or a car payment, this new requirement could be a “taking” of private property under the Fifth Amendment.”

Racial Discrimination: On December 10th, the United States Commission on Civil Rights sent a letter to the Senate regarding racially discriminatory provisions in Obama’s health plan. The letter reads: “No matter how well-intentioned, utilizing racial preferences with hope of alleviating health care disparities is inadvisable both as a matter of policy and as a matter of law. … Ensuring that all Americans, regardless of race, have access to quality health care requires both creativity and hard-nosed attention to data. It also requires staying within the requirements of the Constitution. The current race-based provisions of the Senate Health Care bill display none of these qualities.”

Unequal State Treatment: Speaking to Fox News, Sen. Lindsey Graham (R-SC) described Sen. Ben Nelson’s (D-NE) deal to support Obamacare in exchange for a bailout Nebraska’s Medicaid costs as “disappointing, sleazy, unconstitutional.” Graham is not the only one examining Cornhusker Kickback. The Attorneys General of Alabama, Colorado, Michigan, North Dakota, South Carolina, Texas and Washington state are jointly investigating the deal to see if special treatment for only one state in the nation at the expense of the other 49 violates the Constitution.

The leftist majority in the Senate is likely to vote down the DeMint/Ensign constitutional point of order, but the very objection itself will help build a record that courts will look at when determining whether or not Obamacare is unconstitutional. The Senate is not the final arbiter of whether or not the laws it passes are consistent with the United States Constitution. That question was settled over 200 years ago in Marbury v. Madison. Although it is always difficult for the Supreme Court to thwart what is perceived to be the popular will, polling consistently shows that this legislation faces strong popular opposition. If that remains true after enactment, the majority of the Justices who are inclined to preserve the enumerated powers scheme and adhere to the original meaning of the text will have little inclination or incentive to stretch the Constitution to reach so decidedly unpopular and far-reaching a law as this one.

Quick Hits:

  • The 150,000 member National Nurses United organization yesterday called the Senate plan, “a seriously flawed bill that could actually exacerbate the health care crisis and financial insecurity for American families, and that cedes far too much additional power to the tyranny of a callous insurance industry.”
  • With unemployment in the construction sector already at 19.4%, the construction industry was surprised to learn a job killing employment tax especially targeting them made it into the Senate’s final version of Obamacare.
  • Across all sectors of the economy, businesses worry that a series of new taxes and fees to pay for expanding health-care coverage will push up premiums, particularly for smaller employers.
  • Sen. Ben Nelson (D-NE) says three other senators have told him they want to bargain for the same Medicaid bailout deal Nelson secured for Nebraska.

The above article appears in accord with the copyright terms established by The Heritage Foundation.


Beyond the Constitution: The Healthcare Bill Violates the Rule of Law

Reid Roils the Abortion Debate

Nothing Voluntary About Obamacare’s Mandate


Dems Refuse GOP Efforts to Strip Bribes From Health Care Bill


Rep. Stupak: White House Pressuring Me to Keep Quiet on Abortion Language in Senate Health Bill.

From The Wall Street Journal’s OPINION JOURNAL:

For Their Next Trick: Pelosi, Reid to Hold Closed-Door Meeting To Decide Final Bill.  H/T to The Drudge Report.

  • In an Oval Office interview with The Washington Post, President Obama named the Wall Street bailout as the ‘most important thing’ of his first year.
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    5 Responses to “GOP Tries To Save Constitution”

    1. The GOP hates our Constitution. They impeached a Democratic president for political reasons. They lied to the public to invade a sovereign nation that was no threat to us. They illegally spied on the American public. And the list goes on…

      • Dim Bulb said

        I prefer not to engage in debate, as such things seldom end pleasantly and I prefer to use my time for other things. I’ll merely note the following and suggest that you take things up at The Foundry blog. I’m sure more than a few people would be willing to engage you.

        Clinton was impeached on charges of obstruction of justice and lying to a grand jury, the last time I checked those were legal, not political issues. If Bush’s surveillance was so unconstitutional then why did 16 Senate and 41 House Democrats vote to enact the Protect America Act of 2007? At best or worst Bush’s actions were inside a gray area of the law. As for Saddam not being a threat and Bush lying to the public in order to invade…I prefer facts to media fabrications.

        Was Bush perfectly pure? By no means. But do you need to be reminded that he is no longer in office and no longer a threat (real or perceived).

        And if you’re so concerned about the sovereignty of a nation can I assume that you objected to the current President’s handling/support of the Honduran thug Zelaya?

        • [Clinton was impeached on charges of obstruction of justice and lying to a grand jury]

          Sure, Clinton lied about his personal life. I’m not sure what “justice” he was being questioned in regards to. It was purely a witch hunt in an attempt to find something to justify an impeachment. That was hardly a “high crime or misdemeanor.” It was, however, against everything this country is supposed to stand for. Do you really think our founding fathers would have approved of attempting to remove a president for having an affair?

        • Dim Bulb said

          Clinton, with the approval of his own Attorney General was under investigation for a number of reasons, one of them being engaging in sexual misconduct (harassment) with an Arkansas state employee (Paula Jones) while he was Governor of that state, hardly a minor charge. During the course of the investigation the Lewinsky affair came to light and this was relevant to the Jones investigation since it implies-and can establish if found true-a pertinent pattern of conduct.In other words, the Lewinsky affair cannot be separated from the Jones case, for it was precisely under the Jones case that the charges were brought against him.

          Clinton and his defense team challenged Jones’s right to bring a civil lawsuit against a sitting president for an incident that occurred prior to the defendant’s becoming president. The Clinton defense team took the position that the trial should be delayed until the president was no longer in office, because the job of the president is unique and does not allow him to take time away from it to deal with a private civil lawsuit. The case wound its way through the courts, eventually reaching the Supreme Court on January 13, 1997. On May ]], the Supreme Court unanimously ruled against Clinton, and allowed the lawsuit to proceed.

          Jones’s lawyers decided to show to the court a pattern of behavior by Clinton that involved his allegedly repeatedly becoming sexually involved with state or government employees. Jones’s lawyers therefore subpoenaed women they suspected Clinton had had affairs with, one of whom was Monica Lewinsky. In his deposition for the Jones lawsuit, Clinton denied having “sexual relations” with Monica Lewinsky. Based on evidence provided by Linda Tripp, which identified the existence of a blue dress with Clinton’s semen, Kenneth Starr concluded that this sworn testimony was false and perjurious.

          As for the claim that Clinton was merely lying about his personal life, the fact is that the Jones case revolved around his conduct as Governor, and in that case, under oath, he lied, according to Starr.

          The term “high crimes and misdemeanors” is vague and broad, and this is where Thomas Jefferson’s Manual Of Parliamentary Practice For The Use Of The Senate Of The United States comes into play. The manual, which is integral to the Rules of the House of Representatives, states that impeachment is set in motion by charges made on the floor, charges preferred by a memorial, a member’s resolution referred to a committee, a message from the president, charges transmitted from the legislature of a state or territory or from a grand jury, or from facts developed and reported by an investigating committee of the House. It further states that a proposition to impeach is a question of high privilege in the House and at once supersedes business otherwise in order under the rules governing the order of business.

    2. the1Fred said

      This country was built under the Rule of Law to prevent the tyranny that the colonies suffered under British Parliamentary sovereignty from happening again.
      The Rule of Law was formulated with the US Constitution as the highest law in the land with no body above the law. The US Constitution defined and limited the powers of the US Congress expressly to prevent Parliamentary sovereignty.
      Throughout history, the US Congress has been stretching the limits of the Interstate Commerce and General Welfare clauses, culminating with the passage of Health Care where the last Constitutional restraint on Congress’ power has been shaken off. Without Constitutional restraint, there is no law to limit the power of Congress, making this country subject to Parliamentary sovereignty – exactly what the founders attempted to prevent! We have become what we’ve rebelled against!
      John Locke in The Second Treatise of Civil Government states: “Where-ever law ends, tyranny begins”, and when the highest law, it is the highest tyranny.
      Whereas the US Supreme Court has abdicated it’s responsibility to defend the US Constitution, it falls on each State to defend their rights, and join together in restoring the US Constitution.

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