IS FEDERAL MANDATED HEALTH CARE CONSTITUTIONAL
63IT'S THE CONSTITUTION STUPID
Judge Andrew Napolitano recently had an interesting conversation with James Clyburn D-SC the third ranking member of the House of Representatives of the US.
Judge Andrew Napolitano pops the question: “Where in the Constitution is the federal government charged with maintaining people’s health ?”
Clyburn’s answer: “There’s nothing in the Constitution that says the federal government has anything to do with most of the stuff we do. ”
The Judge charges back a bit later: “You took an oath to uphold the Constitution. You can’t go outside the Constitution because you think it is a good thing to do without violating that oath! ”
Clyburn replies: “How about show me where in the Constitution it prohibits the federal government from doing this?”
The Judge then, of course, cites the 10th Amendment.
Article [X]
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.
This is the very same Congressman James Clyburn who led the charge against his coleague Joe Wilson on the House floor proposing a formal House Rebuke of Wilson for his outburst against President Obama. I believe The President of The United States must be respected.
I personally would like to see the Constitution of The United States observed and respected at least as much (or more) than the President of The United States..
WHAT ABOUT AUTOMOTIVE INSURANCE?
The argument about automitive insurance is often cited in the discussion on Federally mandated insurance. There is a logical falicy in using analogy to prove a point. Analogy may logically be used to illustrate a point but not to prove a point.
Automotive insurance mandates as they exist are STATE mandated by each of the individual states. The legality of each such mandate would depend on The Constitution of that state. So each person concerned about the legality of such a mandate should check their State Constitution.
WHAT ABOUT SOCIAL SECURITY?
I found an interesting article about the Supreme Court's decision on the Constitutionality of the Social Security Act.
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I don't think it's acceptable for congress to enact unconstitutional laws, when they have taken an oath to uphold the Constitution. Where possible any congressman who does so should be subject to a recall election.
They are trying to weasel their way around the Constitution. Shameful!...Great Hub.
Great work, Tom. Automobile insurance is mandated for the damage we might to others—their property of person. Health insurance has no such collateral damage.
Thanks for this information.
Jiberish thank you for your comment. It seems the Constitution has no meaning to some. Have they no honor after all they swore on their oath.
James I agree there is a difference in liability insurance, but I still wonder if a State mandate for liability insurance is constitutional in each state that does so.
I welcome and appreciate your comment.
It seems the states or some states have have desided to give up their constitutions in favor of all those federal dollars they expect to recieve in exchange.That's because the states gave up the right to print up Iou's in the form of banknotes like their state banks used to do when Gold and silver were still legal tender.This all started in 1913 and when the depression of the 1930's hit all the government leaders were told in private that the unitedstates was bankrupt and that we were all living under the reorganization under bankruptcy rules ever since and haven't been allowed to get out from under it since then.Everytime the national debt gets close to being repaid ,we always seem to have another economic disaster.Coincidence or conspiracy?Nixon took us off the Gold standard completely because the government still had to pay out Gold at a discount and it wasn't economically viable to continue doing that.Plus it was too obvious that the dollar was losing it's value compared to Gold and they could inflate the dollar,which they did up until the late 1970's and early 1980's when we had a major econominc downturn simular to whatwe have today with oil prices and unemployment rising.Although this time is much worse.It's worldwide.
The national banks of every economic power are structured exactly like the Federal Reserve System. You are correct the Fed was enacted in 1913 and it is not owned by the United States Government. The Fed is privately owned just like the Bank of England ( Which was founded by rhe Rothschilds just as the French, and German National Banks were)
The Fed has a very spotty history. In the beginning of The Great Depression the FED did exactly the wrong thing under the circumstances. The Fed tightened credit, thus shrinking the money supply and causing tragic deflation.
Since unemployment was high the only people who had any money were mostly wealthy people who bought everything at low prices due the Feds action of deflating the currency.
The inflation/deflation cycle never benefits the common person. Thus the conspiracy theories.
I would make an argument the FED is unconstitutional, the Federal Reserve Act allows the Treasury to outsource the printing of US Dollars, which is clearly unconstitutional.
'R.I.P. US Constitution'. I am wearing a shirt that says this on the front right now with a quote from Reagan on the back. I want my country back! Good Hub!
rsmallory, Thank you for your comment. I also want the country back. Not so much for myself, but for my children and grandchildren. I want them to have the opportunity to grow up in the America I knew. Without the Constitution personal liberty is impossible, and the founders knew so.
I am less opposed to social security than I am to bank bailouts. Bank bailouts usurp the sovereignty of the United States. Social security makes the nation stronger because it makes the seniors stronger. It provides some stability against an economic meltdown. That is not to say that it cannot happen but social programs buy time, just like unemployment insurance and welfare.
If you eliminate social security and benefits for the people, only the rich will benefit. That will give them even more power.
Gary,
The fact that a program does some good is not a sufficient reason for its existance if it's unconstitutional. I have read a history on The Social Security Act and it's contitutional challange before SCOTUS. The bill was re-written to spicifically eliminate any mention of its being an insurance program. Five supreme court justices had tipped their hand that they would oppose any insurance language in the bill.
FDR then went on his with his attempt to pack the court by appointing and additional 6 justices. Even though the highly Democrat congress blocked FDR's attempt at this power grab, SCOTUS had been intimidated.
So between the change of language and the intimidation the Supreme Court Ruled Social Security constitutional. But they also ruled the benefit were a gratuity which could be stopped anytime at the disgression of Congress.
The Social Security Act should have been amended once it became clear that the demographics of the baby boom were going to make Social Cecurity benefits economically unsustainable.
I don't think that SS is an insurance program. If there aren't enough benefits the government can cut the payout. What insurance company can do that?
Again, I think your thinking here plays into the hands of the wealthy and we both agree that that is not a good thing. Hope you can see that a few crumbs beats corporate socialist welfare and bank bailouts. Otherwise, no hard feelings, we just disagree.
Gary I agree,but the Roosevelt Administration had benn telling the public that Social Security was old age insurance. The argument in SCOTUS changed in its argument.
Helvering v. Davis
Next, the brief described the Act. Title II’s old-age benefits "are gratuities (not based on contract, but based on a Congressional direction expressly subject to amendment or repeal)." Title VIII’s taxes "are not earmarked for any special purpose." They are "true taxes, their purpose being simply to raise revenue . . . available for the general support of Government." But in 1935 the Administration had told Congress and the public that the purpose of the taxes was to build up a fund to pay old-age annuities.
Obviously, the reason for calling Social Security’s levies "true taxes" was to argue that they were valid exercises of the taxing power, which the brief did. It also argued that indigence in old age was a national problem too big for private charity and state governments, and that old-age benefits were therefore valid expenditures to promote the general welfare. Since the titles were valid separately, they were valid in combination, too.
As to the charge that Titles II and VIII, taken together, create "a scheme for compulsory insurance invalid under the Tenth Amendment," the brief denied this, flatly contradicting the Administration’s testimony to Congress in 1935 and its promotion of Social Security after passage as "insurance" and "annuities": "Whether or not the Act does provide an insurance plan within the accepted meaning of the term ‘insurance’ is a doubtful question."
The Administration contrasted World War I’s War Risk Insurance for servicemen, which had policies which, "being contracts, are property and create vested rights," with pensions, which are "gratuities" involving neither contracts nor vested rights and which Congress could take away. Not possessing the legal properties of insurance, Social Security wasn’t insurance, hence was constitutional.
The Act, the government’s summary statement declared flatly, "does not constitute a plan for compulsory insurance within the accepted meaning of the term ‘insurance’." In oral arguments, Assistant Attorney General Robert Jackson reiterated that there was no contract entitling anybody "as a matter of right to sue the United States or to maintain a claim for any particular sum of money," and reminded the Court that it had held that a pension granted by the government is a "bounty" to which the pensioner "has no legal right." Yet for two years, Administration officials had told Americans that Social Security was insurance and that benefits would come "as a matter of right." The duplicity is obviou
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Well, when you look at the borrowing from the SS fund, it is likely that the fund is another tax, and eventually ss will survive by current collections from workers as the trust fund will be empty.
Gary I also agree that the only way Social Security can survive is a massive transfer of wealth from the young to the old and/ or massive cuts in benefits. The only possible way to mitigate these damages is to institute means testing in both Social Security and Medicare.
Benefits to the rich must be limited on a sliding scale accomplished by a method of means testing.
Constitutional law I leave to the scholars but rightful interpretation is key. Is social security constitutional? Maybe not, but it has helped the aging for years. Has it been self sustaining? No, because of the manner it has been administered. As a social program, as a people who contribute to it during their working years, it has it's merits and function. Somewhere along the line programs like these have to be sustained even if it is only to raise our society. Then the question is, where do we draw the line with programs like these (medicare, medicare, housing assistance like plan eight, etc.). These are all prone to abuse and fraud. Where do we draw that line? What are the ramifications of not doing it or expanding on it.
The main thing galls me about social programs like Social Security and Medicare is that even when the demograchic situation changes the programs aren't adjusted to fit the new demographics. From the first day I started full time work after my college graduation in 1968, I knew Social Security and Medicare needed major changes to maintain sustainability.
It's the nature of politicians to never revisit an existing program. Thus the programs meant to help turn into ponzi schemes.
I believe means testing is necessary as at least a partial solution.
"It's the nature of politicians to never revisit an existing program. Thus the programs meant to help turn into ponzi schemes." I have to agree with you, this has to be one of the main reasons for it's failure. Let's cure the disease and the symptoms will vanish.
I agree we need to cure the disease. I proposed one manner of doing so in my hub "A Legislative Proposal". All programs would be subject to a periododic review and assesment. If goals are not being met the program must be either amended or abolished.
Yes, it is unconstitutional. As for the automobile insurance, most states have within their statute that, purchasing insurance is optional. If a person is able to bond themselves for 300,000 dollars, to cover liability, they are, what is known as self insured. I don't think you must have it if you don't own a vehicle, so it is like comparing apples to bricks.
One poster says to leave constitutional law to the scholars. Therein lies the problem. The constitution is a fascinating read. The interpretation however, is in all surrounding documents and side letters written by the framers. If we all continue to "leave it to the scholars", we will become a third world, or banana republic. Our elected criminals in D.C. don't want you to know the true interpretation of the Constitution so they can continue to abuse their power, for personal wealth and power.
looivulcubfan,
I totally agree with you.
Even the conservatives have lost sight of the unconstitutional nature of socialized medicine. The powers of the Federal Government are (supposed to be) few and narrow. Free doctors ain't in there.
looivulcubfan, as the other poster, I specifically mentioned "I" as I am not qualified to make a legal opinion and I specified "rightful interpretation is key." Am I qualified in this area-NO! It doesn't suggest I have never read it or don't have an opinion. It IS a fascinating read and unimaginable how our founding fathers were given the foresight to write such a living document.
I too am not a judicial scholar, but in the opinion of Judge Andrew Napolitano it is UNCONSTITUTIONAL. I have numerously read The Constitution and I can't find allowing it anywhere.
Tom, I don't really disagree but since we do have Social Security now, I have to agree with your previous post "I agree we need to cure the disease. I proposed one manner of doing so in my hub "A Legislative Proposal". All programs would be subject to a periododic review and assesment. If goals are not being met the program must be either amended or abolished." My point is, the program is here and now, let's get it fixed as it does serve some social purpose. Good opinions all around on this Hub, keep up the good, thought provoking hubs.
ehern, the only partial solution I have is means testing. We should try and see the effect it has. The alternative of massive transfer of wealth from the young to the old is unstainable.
Limiting benefits is another possibility.
Dear Tom,
First I must tell you that I never received an e-mail notifying me that you wrote this hub. No one is getting e-mails today telling them about mine.
Your hub is fascinating. I read today that there are those in Congress who firmly believe it is constitutional for Congress to mandate "anything" they feel is in the public interest. What a slippery slope we are on.
Pop,
I agree with you. Its outrageous that all of these PUBLIC SERVANTS take an oath to uphold THE CONSTUTION and then they just ignor it. I guess that makes them ignor-ant!!!!!
I'm not getting e-mails either.
social Security is not constitutional either. FDR threatened to "pack the court", so instead of that the court agreed to social security. It was called "the decision in time that saved nine"
I agree the court also said payments were a gratuity that could be stopped at the discretion of congress.
We have an option to not drive and to use other forms of transportation. Mandated health care gives us no options.
There is a "sick" (Pun Intended) Irony in having a President Elect that was a law professor teaching Constitutional Law. You would think he would have a pretty good understanding wouldn't you!
Mike,
Having an understanding of The Constiution and carrying out one's duty to uphold it are entirely different in the present case.
A very good post, but the Constitution has been overthrown. America has died. Perhaps we can sue. As an American it is repulsive to see these Marxists parade infront of the American flag.I think there should be a proper burial for the American icons, as they represent individual freedom and capitalism, not Marxist Socialism.
cjhunsinger,
It's not over yet keep fighting for freedom!!!!!!!!!!
In a fight the opponent is recognized; who is the opponent?
cjhudsinger,
The opponnent is those who would oppose the Constitution. It's the foundation of the republic of The United States of America. Nothing but that foundation is acceptable. It is changable by its own words. It can only be changed by legal admendment!!!!!!!
So, then is it safe to say that when the Republicans gain control and "shove it down your throat" strategy on Social Security "savings accounts" that's within the constitutional right. To be forced into paying into a 401K type of an account for your retirement. John Boehner wants it, the "Young Guns", Eric Cantor, McCarthy and Ryan put it in their new book.
Abecedarian,
I don't favor any BIG GOVERNMENT solutions regardless of party affiliation!!!!!!!!!!!!!!!!
I favor the Constitution!!!! It's the foundation of the republic of The United States of America!!!!!!!!!!!!!!!!
States Rights took a backseat to Federal Mandate almost 200 years ago. If the Federal Government wanted to, it could declare that states have no propriety in Healthcare ('or prohibited to the states'), and therefore make it a constitutionally federal issue.
Given the fact that their is great statistical correlation between people who make under X amount per year, and not having health insurance, I'm even thinking this could be a civil rights issue. A certain class of people (the poor) are being oppressed by another class of people (the rich).
So how about the tea-baggers do something for your country for once?
MPChris,
Progressive you do something for your country. Take a bath and shave.
Oh well so much for freedom http://danielthorne.hubpages.com/hub/Obamas-Health
danielthorn,
Any government big enough to give us everything is big enough to take it all away.
Thanks for the read and comment.
eovery 2 years ago
Wow. This is so good. I think this is a very good point, and it may lead to a good court battles in the future, only after BO ruins the economy, and there is no turning back.
Keep on Hubbing!