Posts Tagged ‘US Constitution’

The Individual Mandate, the Rule of Law, and Democracy

March 10, 2012

It just occurred to me that the Individual Mandate and ObamaCare is a classic convergence of two of the worst features of the Democrat party: their hatred of democracy and their contempt for the rule of law in general, and the US Constitution and its Federal structure and limited powers for the Federal Government in particular.

The American people did not want, and do not want, ObamaCare.  ObamaCare was so unpopular that the people of Massachusetts voted in a Republican, Scott Brown, to replace Ted Kennedy in the US Senate simply to try to block ObamaCare from becoming law.  But because the Democrats don’t care about the desires of the voters, they passed it anyway.

However, because of political constraints on “moderate” Democrats, they weren’t able to pass “single payer” (i.e. they weren’t able to get the government to completely take over health care), and they had to pretend that the cost of ObamaCare was less than $1 Trillion.  And thus came the Individual Mandate.  With the IM, Congress could impose expensive rules on the insurance companies, and then force individual Americans to pay for those mandates, while leaving the cost off the “official cost” of ObamaCare.  The problem is that the Individual Mandate is clearly unconstitutional.  Congress has never had the power to force you to buy a private product as a consequence of being alive.  Hell, Congress has never been able to force you to buy a Government product as a price of being alive (if they could, then rather than publishing propaganda encouraging people to buy war bonds, in WWII Congress could simply have ordered every American to buy them).

But the Democrats don’t believe that the rule of law applies to them, or that the Constitution means anything other than what left wing law professors say it does, so the idea that the IM couldn’t pass Constitutional muster never even apparently occurred to them.

To understand exactly why the Individual Mandate is unconstitutional, consider the following: Congress could raise the CAFE standard to 200 MPG.  This would be Constitutional, but stupid, because the result would be every US car company going bankrupt, because no one would want to buy the cars produced.  Does that mean that Congress could at the same time pass a law requiring every American to buy a new car every 5 years, in order to keep those companies from going bankrupt?  Of course not.  But that’s essentially what the Democrat controlled Congress did with ObamaCare.

When the 5-4 vote tosses out ObamaCare, and when the Democrats lose the Senate and the White House in the 2012 elections, the Democrats will be paying the penalty that their contempt has so richly earned.


The Healthy Eating Act of 2013

March 10, 2012

Over at Volokh, Randy Barnet posted a link to his 2010 article on why the Individual Mandate is unconstitutional, and then commented upon it.  The response by ObamaCare defenders has been quite interesting.  Essentially, they seem to be claiming the following:

  1. Congress has the power to regulate the health insurance industry, therefore
  2. Congress has the right to order the industry to do anything that Congress wishes to order, and therefore
  3. It is within Congress’ Constitutional powers to give the rest of us any order that Congress chooses, so long as that order is necessary in order to make the regulation work

Now, assuming 1 to be true, I think that 2 follows.  But I strongly disagree with 3.

If Congress had tried to pass ObamaCare with Community Rating and no exclusions for pre-existing conditions, it would have been a bad law, and it would have destroyed the health insurance industry, but it would not have been unconstitutional (at least, it would have been within Congress’ recognized Commerce Clause powers).

Or, Congress could have done the above, and included funding for the insurance companies to make sure they didn’t go bankrupt because of those rules.  That would also have been constitutional.

However, neither was politically possible.  So the ObamaCare supporters are forced to claim that Congress is free to chose any means that it wants to back up its regulatory schemes, and that any choice Congress makes is therefore “Necessary and Proper”.

Call it the “(politically) Necessary (is therefore) Proper” theory of the Constitution.

Following in their footsteps, I now propose the “Healthy Eating Act of 2013” (as proposed by Michelle Obama, once her husband doesn’t have to worry about getting re-elected):

  1. Congress hereby orders every person growing food (your private garden is, after all, part of interstate commerce via Wickard) to devote at least 50% of their growing space to Broccoli (we’ll call it the Healthy Eating Act of 2013).
  2. Because all the farmers will go bankrupt growing that much Broccoli, Congress therefore also orders every American to spend at least 40% of their food budget on Broccoli (they’re not being forced to eat it, they’re just being forced to buy it).

Given the claims by ObamaCare supporters, I don’t see how it could fail to pass muster.

Why “liberal” is now a synonym for “dishonest”

April 3, 2009

A comment on OLC nominee Dawn Johnsen

In my opinion, some critics of her nomination have focused on the wrong questions — whether or not she is too “liberal”

In America today, to be “liberal” is to be dishonest. Once you’ve decided “the Constitution is a Living Document”, which is to say once you’ve decided that the Constitution means whatever 5 left-wing justices think they can get away with saying that it means, you’ve permanently forfeited any claim of being able to “provide an accurate and honest appraisal of applicable law”.

I’m sorry her confirmation is being held up. She should be testifying in front of Republican senators, who should be asking her:

1: What’s her position on the Constitutionality of the DC voting bill?
2: Should the OLC Opinion be released?
3: What’s her opinion of Holder doing an end-run around the professional staff of the OLC when they told him something he didn’t want to hear?

“Liberals” believe that any means are permissible when you are pursuing the “right” (which is to say their) ends. It’s time they received what they’ve been dishing out.

People who hate Democracy

October 18, 2008

Ok, over on Gay Patriot, one of the more imbecilic commenters makes the classic “why dictatorship is superior to democracy” argument. He starts by quoting me:

Just out of curiosity, who did that limitation and proscribing? Would it be the voters, through their elected representatives?

Would it be We the People?

You know, rob, it’s people like you who make me feel so strongly that things like Prop 8 must pass. Because what you’re arguing for is “judicial” dictatorship. You think that it’s good when an oligarchy that calls itself a “Supreme Court” forces on the rest of us the personal desires and whims of the members of that oligarchy. You think it’s good when the sovereignty of the voters is trampled by dishonest jerks who violate their oaths of office and rewrite on the Constitution.

BTW, let’s be clear here. I am all in favor of following the actual US Constitution. I think that every State should follow it’s own Constitution, too. I have no problem with a Supreme Court Justice striking down a law that actually violates the Constitution. But, when a Justice does that, (s)he is doing so because of the power granted to him / her by The People in order to enforce The People’s decisions. It is, therefore, a legitimate exercise of power.

When a “Justice” decides to “add” his or her personal desires and whims to the Constitution, and force them on the rest of us, (s)he is engaging in an abuse of power, and is acting as a domestic enemy to the Constitution (s)he is so abusing. It does not matter what that person is forcing on the rest of us, the abuse of power is wrong, and must be fought by any and all decent human beings. Or at least, by any decent human being who claims to believe in democracy.

“Believing in Democracy” does not mean you think the voters will always get it right. No human institution always gets anything right. Believing in Democracy means you think it’s The People who have the right to screw things up. “Believing in a Living Constitution” means you think it’s the right of members of a Supreme Court to screw up. Etc.

Now, Rib could try to argue that the 4 members of the CA Supreme Court didn’t actually invent a “right” to SSM, that the voters had actually put it into the CA State Constitution. Happily, Rob doesn’t decide to insult our intelligence by making that patently false argument. Instead, Rob responds by telling us that, yes, he hates democracy:

You’re damn right the power of “we the people” is limited. What happens, Greg, when I convince 51% of the people to make your religion illegal because we disapprove? Shall we hound the Mormons to a new Utah? Put the snake handlers on a reservation somewhere?

Well, just to start, I have no religion, so it would be hard for the voters to ban it.

But, more importantly, this argument is logically and historically imbecilic. How many democracies do you know of that ban and oppress religions? How many dictatorships?

And, BTW, where did our limitation on oppressing other people’s religions come from? Did it come from the Courts? No. It came from the 1st Amendment. Which is to say, it came from the voters.

Or shall we deprive you of your right to be as cussed, racist and ornery as you please, because 51% of the people who show up to vote decide your brand of cussed orneriness is “politically incorrect?” Hmmm, Greg? I’m sure I can find 51% of Californians who will find your politics distasteful. Shall the citizens of the State of California pass a proposition next year making it illegal to be a Republican?

Gosh, where is it, today, that such horrible things happen? Would it be at Universities? Places that are ignoring the 1st Amendment that WE The People decided to impose upon the government? You know, dictatorships run by the same kind of people Rob is embracing when he celebrates “judges” imposing SSM on the rest of us?

Yes, it would.

Shall we take away your beer by constitutional amendment? The people demanded that particular idea as well. Or shall we take away your cigarettes? Simply because I can round up enough votes, and it’s bad for you?

Yes, they did. Then, later, they undid that choice. It appears here that Rob is saying that, rather than having The People pass the 21st Amendment to overturn the 18th, Supreme Court should simply have tossed it out.

Or your right to a gun? After all, the people in DC demanded that one as well.

Yep, and 4 of the “Justices” that Rob likes voted to completely ignore the 2nd Amendment to the US Constitution, and substitute their own personal whims instead.

The exact thing I’m arguing against.

Ultimately, the same principle you’re so hot to use today against “me” will come around and be used against you tomorrow, Greg. Because we can always find something you do that is “immoral” or “icky” or “distasteful.” And on that day, you will be standing here and saying “the government can’t do that” despite the fact somebody can drum up a majority to do so.

That’s why the minority of rich, highly educated, idle rich old guys limited the power of the ballot, Greg, and it’s ability to allow Government to intrude into your life. Because the tyranny of the majority is a fickle thing – in the end, everybody is some kind of minority. And yes, some day the majority will turn against something you find dear, and you will pray to God for an “activist judge” to stand up there and say “no.”

We see here the fundamental incoherence of his position. “you can’t be allowed to vote on things, because a previous group of voters decided that ‘the Judges’ would be a Holy Class who would tell all the rest of us what decisions we could be allowed to make, such pronouncements to be made based solely upon the desires and whims of the Priesthood of the Judges, because they’re the only ones who can be counted upon not to trample upon ‘our rights'” (you know, the “rights” that we only have because they gave them to us, and therefore won’t have (to be trampled on) if they chose to take them away from us).

Pitiful and pathetic.  I thought he was going to be more coherent, which is why I wasted this much time on it.

Anyone got a better presentation of these ideas for me to crush?

Wow, Cheney was right!

October 3, 2008

Over on Ace’s Blog, Gabriel Malor is beating up poor old “Slow Joe” Biden for his BS about Cheney. Biden said

“Vice President Cheney has probably been the most dangerous Vice President we’ve had in American history. He has the idea…he doesn’t realize that Article I of the Constitution defines the role of the Vice President of the United States. That’s the executive. He works in the executive branch. He should understand that. Everyone should understand that.

“And the primary role of the Vice President of the United States of America is to support the President of the United States of America. Give that President his or her best judgment when sought and as the Vice President to preside over the senate only in a time when in fact there is a tie vote. The constitution is explicit, the only authority the Vice President has from a legislative standpoint is to vote only when there is a tie vote. He has no authority relative to the Congress. The idea that he’s a part of the legislative branch is a bizarre notion invented by Cheney to aggrandize the power of the unitary executive..and look where it’s gotten us.”

The Constitution is available online, so I went and looked at it. Now, i should note that I always thought the argument that Cheney was part of the Legislative Branch was pure BS, but I think, now, that I was wrong.

Article 1.

Section 1
All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Oops. Mister “Constitutional Scholar” doesn’t even know that the first article is about Congress, not the Presidency.

But, it turns out he was half right. Because every single power granted to the Vice President is granted in Article 1. Search the text for “Vice”, and see for yourself.

Section 3:


The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.

The Senate shall choose their other Officers, and also a President pro tempore, in the absence of the Vice President, or when he shall exercise the Office of President of the United States.

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside

So the VP is President of the Senate, gets to split ties, and presides over any impeachment except the President’s (and, presumably, his or her own).

Wow, you say, that’s a boring job. Does the Vice President have any other powers?

Article 2

Section 1


In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the same shall devolve on the Vice President

Yep, she gets to sit around and wait for the President to die or be incapacitated. There’s only one other place in Article 2 (the article that details that powers of the Executive Branch) where the Vice President is mentioned:

Section 4
The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

So we know that the Vice President is not a “civil Officer of the United States” (since if she was, it would be “all other“, not just “all”), and she is removable by impeachment.

A while back, Governor Sarah Palin was asked if she’d be interested in being McCain’s VP. Her response was something on the order of “I’d have to find out what the role of the VP would be, first.” This is what she was talking about. The Constitution does not grant the Vice President any executive powers. If she is to have any power, it’s because the President has agreed to delegate those powers to her. So her comment wasn’t one of ignorance, it was one of understanding: “I can’t say yes until I know what I’m being offered.”

As for Senator Biden, he’s an idiot. The only things he got right were things that proved the opposite of what he said they did. He’s really the best that Obama could find?