Friday, November 5, 2010

Two-Hearted Approach To Making ObamaCare Go Away

“...To regulate commerce with foreign nations, and among the several states, and with the Indian tribes...” Art. 1, Sec. 8 of the U.S. Constitution – the “Commerce Clause”

Conservatives such as the Tea Parties, the Tenth Amendment movement, and 67 conservative anti-establishment Republican candidates newly elected to Congress have named repeal or nullification of the Patient Protection and Affordable Care Act – Obamacare - their number one priority.

There is a two-pronged approach afoot to get 'er done and it shakes out this way.

Attorneys General and Governors in 20 states have filed suit in federal District Courts to overturn as unconstitutional the law as amended by the Healthcare and Reconciliation Act of 2010.

Lawsuits are pending in Alabama, Alaska, Arizona, Colorado, Florida, Georgia, Idaho, Indiana, Louisiana, Michigan, Mississippi, Nebraska, Nevada, North and South Dakota, Pennsylvania, South Carolina, Texas, Utah and Washington.

Those suits advanced another notch in October following rulings in three states in which Courts declared the suits valid in their challenge to a requirement that individuals and employers must purchase health care insurance as a legal requirement. In Florida and Virginia, judges ruled the question of whether that's a violation of the Constitution or an exercise of the enumerated power of regulation of commerce as claimed by the federal government is actionable under court rules.

In Michigan, an appointee of President Bill Clinton ruled that Congress has the authority to enact the law under the Commerce clause.

In his ruling, U.S. District Judge Roger Vinson of the Northern District of Florida at Pensacola said, “The individual mandate applies across the board. People have no choice and there is no way to avoid it. Those who fall under the individual mandate either comply with it or they are penalized.”

Judge George Steeh of the Southern District of Michigan at Detroit ruled it is constitutional to force individuals to purchase health insurance. Citing the New Deal-era case that extended the Commerce clause to regulate a farmer growing wheat for his home consumption and a more recent ruling against home-grown medical marijuana, the Court said all the government needs to do is prove that taken in aggregate the regulated activity affects commerce.

The decision whether to purchase insurance or to attempt to pay for health care out of pocket is “plainly economic,” he ruled, adding that since “the costs of caring for the uninsured who prove unable to pay are shifted to health care providers, to the insured population in the form of higher premiums, to governments, and to taxpayers,” the new law is simply a regulation of commerce.

It's nothing new. The Commerce Clause is the underpinning to favorable Court rulings regarding such controversial laws as the 60's-era Civil Rights Act and the Voting Rights Act in which the Supreme Court held that barbecue served in Birmingham, Alabama, was prepared from ingredients that came across state lines and travelers who stopped at the Heart of Atlanta Motel had clearly gotten there in interstate commerce traveling on U.S. Highways and Interstates.

This approach is mild in comparison to the Tenth Amendment Center's movement to “nullify” the ObamaCare law through direct action of the states to cast off the yoke of federal authority because it's not expressly granted in the Constitution to take over the administration of the health care system.

It's a Jeffersonian idea in which the gentleman farmer and law giver, the author of “The Declaration of Independence,” proposed the Tenth Amendment along with James Madison in opposition to Federalists who devised the decentralized government outlined in the U.S. Constitution.

If it's not something you want to do and you can't find any basis for it in the Constitution, you just don't do it, he wrote repeatedly in his career. States could short stop the government in cases where they considered federal authority to be rapacious and excessive.

The proposed Health Care Freedom Act is considered in various states as either a bill or a state constitutional amendment – effectively prohibiting the enactment of any new government-run healthcare programs within the state.
So far, a total of 33 states have seen such legislation introduced with varying degrees of success.

Here's a model bill as proposed by that organization:

An Act to render null and void certain unconstitutional laws enacted by the Congress of the United States, taking control over the health insurance industry and mandating that individuals purchase health insurance under threat of penalty.

SECTION 1. The legislature of the State of ____________ finds that:

1. The People of the several states comprising the United States of America created the federal government to be their agent for certain enumerated purposes, and nothing more.

2. The Tenth Amendment to the United States Constitution defines the total scope of federal power as being that which has been delegated by the people of the several states to the federal government, and all power not delegated to the federal government in the Constitution of the United States is reserved to the states respectively, or to the people themselves.

3. The assumption of power that the federal government has made by enacting the “Patient Protection and Affordable Care Act” interferes with the right of the People of the State of _____________ to regulate health care as they see fit, and makes a mockery of James Madison’s assurance in Federalist #45 that the “powers delegated” to the Federal Government are “few and defined”, while those of the States are “numerous and indefinite.”


A new section of law to be codified in the [STATE] Statutes as Section [NUMBER] of Title [NUMBER], unless there is created a duplication in numbering, reads as follows:

A. The Legislature of the State of _______________ declares that the federal law known as the “Patient Protection and Affordable Care Act,” signed by President Barack Obama on March 23, 2010, is not authorized by the Constitution of the United States and violates its true meaning and intent as given by the Founders and Ratifiers, and is hereby declared to be invalid in this state, shall not be recognized by this state, is specifically rejected by this state, and shall be considered null and void and of no effect in this state.

B. It shall be the duty of the legislature of this State to adopt and enact any and all measures as may be necessary to prevent the enforcement of the “Patient Protection and Affordable Care Act” within the limits of this State.

C. Any official, agent, or employee of the United States government or any employee of a corporation providing services to the United States government that enforces or attempts to enforce an act, order, law, statute, rule or regulation of the government of the United States in violation of this act shall be guilty of a felony and upon conviction must be punished by a fine not exceeding five thousand dollars ($5,000.00), or a term of imprisonment not exceeding five (5) years, or both.

D. Any public officer or employee of the State of ____________ that enforces or attempts to enforce an act, order, law, statute, rule or regulation of the government of the United States in violation of this act shall be guilty of a misdemeanor punishable by imprisonment in the county jail not exceeding two (2) years or by a fine not exceeding One Thousand Dollars ($1,000.00) or both such fine and imprisonment.

E. Any aggrieved party shall also have a private action against any person violating the provisions of subsections (C) or (D).

SECTION 3. This act takes effect upon approval by the Governor.
The bill, either in statutory form or as a resolution, has passed as law in Idaho, Utah, Arizona, Oklahoma, Missouri, Louisiana and Virginia.

It has passed one or more houses in Tennessee, Alabama, and Georgia.
In Wyoming, Colorado, North Dakota, Kansas, Minnesota, Mississippi, and New Hampshire, the bill has failed the legislative vote or is stalled in committee.

Study Materials provided by The Tenth Amendment Center - "The Original Constitution: What It Actually Said and Meant," Natelson, Robert G., Tenth Amendment Center, Los Angeles, 2010.

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