Does ObamaCare violate the US Constitution? Article 2

Posted on August 22, 2011


Here is a link to the first article I wrote on this subject.

The Myth

The individual mandate of the new National Health Care Law does not violate the Constitution because it is authorized by the commerce clause. The health care law in itself is authorized by the general welfare clause. This law does not violate the Constitution in any way.

The Truth

The Constitution in no way authorizes the new National Healthcare Law. ObamaCare not only violates the letter of the Constitution in numerous ways it also violates the spirit of the Constitution in many fundamental ways.

The Facts

ObamaCare and the Tenth Amendment

 ObamaCare violates the Tenth Amendment in many fundamental ways.  Even before the passage of ObamaCare the Tenth Amendment was all but removed from the US Constitution. This was not accomplished through the normal amendment process which requires any amendment be passed by two-thirds of both houses of congress along with three-fourths of all States. This was accomplished by the Supreme Court, which is made up of nine unelected justices who are appointed for life, simply ignoring the amendment. By ignoring the Tenth Amendment, the Supreme Court has allowed the federal government to become out of control and expand its power far beyond what the framers of the Constitution ever envisioned in their wildest nightmare. They knew an out of control federal government would be a direct threat to individual liberty and prosperity along with the future prosperity of the entire nation.

 The Constitution granted the federal government only those powers that are clearly spelled out, or enumerated, in the body of the Constitution. The powers that are listed make up only a small portion of an almost unlimited list of possible government powers. The States are denied a very limited number of powers by the Constitution. Those powers that are not granted to the federal government, nor denied to the States, remain with the States or the people. This relationship between the powers of the federal government, the States, and individuals is implied by the Constitution but is not expressly stated. During the ratification debates five States demanded an amendment that would spell out this relationship clearly for future generations. That is the purpose of Tenth Amendment.

 The Constitution granted the federal government only those powers that are necessary for the federal government to provide for the common defense of the entire nation; improve the well-being of the nation as a whole; conduct diplomatic relationships with other nations; and keep the peace between the different States. The power of the federal government was never meant to extend all the way down to down to the individual citizens living in this country or the individual companies doing business here. The power to pass laws governing the lives of individuals and regulating businesses was left firmly in the hands States. The Constitution created a unique partnership between the federal and State governments called federalism. The framers of the Constitution believed federalism to be one of the most important and fundamental principles of the Constitution. Before the addition of the 10th Amendment federalism was implied by the text of Constitution. After the 10th Amendment was added to the Constitution federalism was set in stone for future generations. Federalism draws a very sharp line between the powers of the federal government and the State governments. ObamaCare crosses that line so many ways it virtually erases that line completely.

 The Constitution never granted the federal government the power to compel individuals to do anything except pay their taxes. The federal government most definitely was not granted the power to compel individuals to purchase health insurance. That power is not one of the powers enumerated in the Constitution so it was left in the hands of the States. By attempting this federal government has usurped State powers, in the process violating the Tenth Amendment. The commerce clause does not authorize the individual mandate. I will discuss the commerce clause and ObamaCare in a section devoted to that clause.

 The Constitution does not grant the federal government the power to regulate insurance companies, or the policies they offer, in any way. This power remains with the States only. The commerce clause does not grant this power to the federal government. The fact that ObamaCare seizes this power and grants it to the federal government violates the Tenth Amendment. Prior to the passage of ObamaCare, the regulation of health insurance companies was only done at the State level by State insurance commissions. ObamaCare introduces a great deal of regulation at the federal level. Beginning in 2014 these regulations force insurance companies to offer health plans that meet very strict requirements, far stricter than those imposed by the States. ObamaCare does force health insurance companies to abandon several unpopular and potentially harmful practices such as denying coverage for pre-existing conditions, violating the Constitution in the process. These changes will drive up the insurance cost for these high risk patients but the insurance companies cannot bill these customers for the increased costs. The insurance companies must pass on the costs to healthier customers. Is the federal government the best place to solve these problems? Isn’t it better for the individual States to come up with their own unique solutions and other States copy those that work?

 The power to regulate businesses was left in the hands of the States by the Constitution. Beginning in the late 1930s the federal government began seizing this power from the States by distorting the plain meaning if the commerce clause as understood by those that wrote and ratified the Constitution. The federal government now regulates almost all aspects of commercial life in the US in violation of the Tenth Amendment. ObamaCare forces businesses who employ more then 50 to provide health insurance or face a penalty.

 The Constitution does not grant the federal government the power to compel the States to do anything. The Constitution only denies the States certain powers. ObamaCare forces the States to set up costly health insurance exchanges and administer them. This law forces the States to raise taxes on their own citizens in order to pay for these exchanges. Millions of uninsured will be forced onto Medicaid. The States pick up 50 percent of the cost of Medicaid for their citizens so the cost to States will be greatly increased.

 One of the most intimate and sacred relationships is the relationship between an individual and their doctor. There is no level of government that has been granted the power to intrude on that relationship. That power was never even granted to the States. ObamaCare violates the Tenth Amendment by reaching down below the State level and interfering with this sacred relationship between the doctor and the patient. ObamaCare creates an unelected board of 15 non-doctor members that will decide which treatments doctors provide to their patients for a given condition. These decisions will be based on cost and other factors determined by bureaucrats

 ObamaCare and the Commerce Clause

 From the time we separated from England until the ratification of the Constitution the United States operated under the Articles of Confederation. The Articles were a failure because they created a federal government that was far too weak.  The States were not restrained from placing import duties on goods entering their ports and taxing goods that were merely passing through their borders to other States. Trade nearly broke down completely because States with harbors slapped high import duties on goods meant for States without harbors and other States slapped high taxes on goods passing through their territory. During the constitutional convention there was widespread agreement that the power to impose import duties and tax goods passing through States must be taken out of the States and transferred to the federal government. The commerce clause was added to the Constitution for that purpose only.

 Here is the exact text of the commerce clause which is Article 1 Section 8 Clause 3 of the Constitution.

  Congress shall have the power to regulate commerce with foreign nations, and among the several states, and with the Indian tribes:

 In the late 18th century the word commerce had a very specific meaning that was understood by those who wrote the Constitution and ratified it.  The specific meaning of the word commerce as used by the framers of the constitution is: the large-scale movement of goods involving transportation. The phrase “among the several States “ had a very specific meaning to the framers and the ratifies of the Constitution.  It means: between the individual States. Lastly the word regulate had a specific meaning to those that wrote the Constitution.  All regulation of commerce was done by imposing import duties, export duties, or taxes on goods that are being transported to foreign countries or traveling between the States. The lower the taxes and duties are the greater flow of goods Higher taxes and duties will result in a decrease in the flow of goods. All regulation of trade and commerce was done by varying the amounts of taxes and duties placed on the goods which will vary the rate of the flow of goods.

 Article 1 Section 8 Clause 3 grants the US Congress the power to control the large-scale flow of goods between the US and foreign countries, between the individual States, and between the US and Indian tribes by varying the duties and taxes placed on those goods. That is the sole purpose of the commerce clause.  This was done to prevent the States from abusing this power as they did under the Articles of Confederation.  Article 1 Sections 10 Clause 2 denies the States the power to place duties on imports and exports. This clause denies the States the power to regulate commerce.

The commerce clause never granted the federal government the power to pass regulations governing all aspects business in the US.  The power to set policies concerning hourly wages, maximum hours worked per week, safety standards for products, and all other aspects of business was left in the hands of the States. The US Congress unconstitutionally attempted to use the commerce clause to expand its reach over business ever since the Constitution was ratified but was blocked by the Supreme Court until 1937. After FDR attempted to stack Supreme Court that year it abandoned its duty as guardian of the Constitution. Beginning in 1937 the Supreme Court has allowed the US Congress to repeatedly violate the Tenth Amendment by seizing more and more power from the States under the guise of the commerce clause.

 ObamaCare and the General Welfare Clause

 The phrase “general welfare” had a completely different meaning when the Constitution was drafted and ratified than it has now. The framers of the Constitution understood the phrase to mean a state of general wellbeing for the entire country.  The general welfare clause does not grant congress the power to spend any money. This clause is Article 1 Section 8 Clause 1 and it authorizes Congress to collect various forms of taxes for the purpose of paying debts, for the common defense of the country, and for the over all wellbeing of the country as a whole. The powers to spend this tax revenue are spelled out in the reaming 17 clauses of Article 1 Section 8. None of the remaining 17 clauses of Section 8 authorize congress to give this money to individuals in the form of entitlements such as ObamaCare.

 Since the Social Security Act was passed in 1935 the general welfare clause has been used to justify every single entitlement. None of these entitlements are authorized by the general welfare clause. The power to confiscate wealth from individuals in the form of taxes and redistribute this wealth in the form of entitlements was left by the framers of the Constitution in the hands of the States. None of the enumerated powers of the Constitution, including the general welfare clause, grant the federal government this power. Since the power is not granted to the federal government it must remain with the States just as the Tenth Amendment declares, ObamaCare violates the Tenth Amendment by taxing one group of individuals and giving that money to another group of individuals in the form of entitlements.

 ObamaCare and the due process Clause

 No one can be deprived of their life, liberty, or property by the federal government without due process of the law. This is one of the clauses of the Fifth Amendment and the Fourteenth Amendment has the exact same clause that applies to the States. Unless an individual is found guilty in a court of law, following a formal legal process, that individual cannot have their life, their freedom, or property taken away. ObamaCare places strict restrictions on the types of care available to individuals when they near the end of their life. This will shorten the life of these individuals depriving them of the remainder of their life. These decisions are made by bureaucrats not doctors and their decisions will be based on cost.

 ObamaCare and the right to privacy

 The Fourth Amendment states that the people of this country are secure in their persons, houses, papers, and effects against unreasonable searches and seizures. In order to access our private information a warrant must be granted. ObamaCare demands that all medical records be transferred to a central database controlled by the federal government. No government officials will ever seek a single warrant. This law claims that it is just for analysis purposes but all medical records will be stored according to our social security numbers. The federal government claims that there will be safeguards placed on this information so it can only be accessed for specific purposes. Do we really want the federal government accessing our most intimate and personal records?

 ObamaCare also grants the federal government access to all of our bank accounts and other personal financial records so bureaucrats can determine if we are eligible for subsidies and make sure the federal government receives payment.

 This is still not the complete list of all instances where ObamaCare violates the Constitution. I may devote a third article to this subject.

The Proof

Article II of the Articles of Confederation

Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.

Proposed Constitution Amendment proposed by Massachusetts

That it be explicitly declared, that all powers not expressly delegated by the aforesaid Constitution are reserved to the several states, to be by them exercised

 Tenth Amendment

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.

James Madison Federalist 45

The powers delegated by the proposed Constitution to the Federal Government, are few and defined. Those which are to remain in the State Governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negociation, and foreign commerce; with which last the power of taxation will for the most part be connected. The powers reserved to the several States will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people; and the internal order, improvement, and prosperity of the State.

James Iredell, Proposed this Amendment,North Carolina Convention to Ratify the Constitution

Each state in the Union shall respectively retain every power, jurisdiction, and right, which is not by this Constitution delegated to the Congress of the United States, or to the departments of the general government; nor shall the said Congress, nor any department of the said government, exercise any act of authority over any individual in any of the said states, but such as can be justified under some power particularly given in this Constitution; but the said Constitution shall be considered at all times a solemn instrument, defining the extent of their authority, and the limits of which they cannot rightfully in any instance exceed.

 Excerpts from The Kentucky Resolutions by Thomas Jefferson

1. Resolved, That the several States composing, the United States of America, are not united on the principle of unlimited submission to their general government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes — delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force: that to this compact each State acceded as a State, and is an integral part, its co-States forming, as to itself, the other party: that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.

3. Resolved, That it is true as a general principle, and is also expressly declared by one of the amendments to the Constitutions, that “the powers not delegated to the United States by the Constitution, our prohibited by it to the States, are reserved to the States respectively, or to the people”; and that no power over the freedom of religion, freedom of speech, or freedom of the press being delegated to the United States by the Constitution, nor prohibited by it to the States, all lawful powers respecting the same did of right remain, and were reserved to the States or the people: that thus was manifested their determination to retain to themselves the right of judging how far the licentiousness of speech and of the press may be abridged without lessening their useful freedom, and how far those abuses which cannot be separated from their use should be tolerated, rather than the use be destroyed.

 Letter from Thomas Jefferson to William Johnson, 1823

The capital and leading object of the Constitution was to leave with the States all authorities which respected their own citizens only and to transfer to the United States those which respected citizens of foreign or other States; to make us several as to ourselves, but one as to all others. In the latter case, then, constructions should lean to the general jurisdiction if the words will bear it, and in favor of the States in the former if possible to be so construed

Letter from Thomas Jefferson to Joseph C. Cabell 1816

The way to have good and safe government is not to trust it all to one, but to divide it among the many, distributing to every one exactly the function he is competent to. Let the National Government be entrusted with the defence of the nation and its foreign and federal relations; the State governments with the civil rights, laws, police and administration of what concerns the State generally; the counties with the local concerns of the counties, and each ward direct the interests within itself. It is by dividing and subdividing these republics from the great national one down through all its subordinations, until it ends in the administration of every man’s farm by himself; by placing under every one what his own eye may superintend, that all will be done for the best.

Thomas Jefferson 1791

The power given to Congress by the Constitution does not extend to the internal regulation of the commerce of a State (that is to say, of the commerce between citizen and citizen) which remain exclusively with its own legislature, but to its external commerce only; that is to say, its commerce with another State, or with foreign nations, or with the Indian tribes.

Letter from James Madison to Cabell 1829 on the commerce clause

Yet it is very certain that it grew out of the abuse of the power by the importing States in taxing the nonimporting, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government, in which alone, however, the remedial power could be lodged.

The preface to Notes on the Debates in the Federal Convention by James Madison

The want of authy. in Congs. to regulate Commerce had produced in Foreign nations particularly G. B. a monopolizing policy injurious to the trade of theU. S.and destructive to their navigation; the imbecility and anticipated dissolution of the Confederacy extinguishg. all apprehensions of a Countervailing policy on the part of the U. States.

The same want of a general power over Commerce led to an exercise of this power separately, by the States, wch not only proved abortive, but engendered rival, conflicting and angry regulations. Besides the vain attempts to supply their respective treasuries by imposts, which turned their commerce into the neighbouring ports, and to co-erce a relaxation of the British monopoly of the W. Indn. navigation, which was attemted by Virga. the States having ports for foreign commerce, taxed & irritated the adjoining States, trading thro’ them, as N. Y. Pena. Virga. & S–Carolina. Some of the States, as Connecticut, taxed imports as from Massts higher than imports even from G. B. of wch Massts. complained to Virga. and doubtless to other States. In sundry instances of as N. Y. N. J.Pa.& Maryd. the navigation laws treated the Citizens of other States as aliens.

James Monroe discussing the Commerce Clause in 1822

Commerce between independent powers or communities is universally regulated by duties and imposts. It was so regulated by the States before the adoption of this Constitution, equally in respect to each other and to foreign powers. The goods and vessels (tonnage duties) employed in the trade are the only subjects of regulation. It can act on none other. A power, then, to impose such duties and imposts in regard to foreign nations and to prevent any on the trade between the States was the only power granted.

James Madison in a letter to Professor Davis discussing the Commerce Clause

The power to regulate commerce among the States was well known and so explained by the advocates of the Constitution when before the people for their consideration, to be as a necessary control on the conduct of some of the importing States toward their non-importing neighbors. A recurrence to the angry legislation produced by it among the parties, some of whom had passed commercial laws (duties and imposts on articles of import) more rigid against others than against foreign nations, will well account for the constitutional remedy.

James Madison – Federalist 41 discussing the General Welfare Clause

the power “to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States,” amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction. Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms “to raise money for the general welfare.

”But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon? If the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars.

But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity, which, as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the Constitution, we must take the liberty of supposing, had not its origin with the latter. The objection here is the more extraordinary, as it appears that the language used by the convention is a copy from the articles of Confederation. The objects of the Union among the States, as described in article third, are “their common defense, security of their liberties, and mutual and general welfare. ” The terms of article eighth are still more identical: “All charges of war and all other expenses that shall be incurred for the common defense or general welfare, and allowed by the United States in Congress, shall be defrayed out of a common treasury,” etc. A similar language again occurs in article ninth. Construe either of these articles by the rules which would justify the construction put on the new Constitution, and they vest in the existing Congress a power to legislate in all cases whatsoever.

But what would have been thought of that assembly, if, attaching themselves to these general expressions, and disregarding the specifications which ascertain and limit their import, they had exercised an unlimited power of providing for the common defense and general welfare? I appeal to the objectors themselves, whether they would in that case have employed the same reasoning in justification of Congress as they now make use of against the convention. How difficult it is for error to escape its own condemnation

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