Thursday, December 26, 2013
The Supreme Court Should Not Kill Obamacare: A Tea Party Perspective
Posted by Michael Lotfi
October 30, 2013
Some call me a conservative, some call me a libertarian & some call me a tea party member. I call myself a “conservatarian” (you can use it if you want). Regardless, there is something that needs to be known. It’s something the pundits of the left and right regularly ignore. Those who embrace it, are often accused of “neoconfederacy”, or my favorite “racism”. I’m talking about State rights. It’s odd that opponents of State rights who cry “racist!” regularly cite the Supreme Court’s decision to uphold Obamacare. It seems they forget that the same court ruled African Americans were not human, but property in Dred Scott v. Sandford.
You see, it makes little sense to vest much value in Supreme Court decisions made after 1803. The Supreme Court has not ruled within its constitutional jurisdiction since Chief Justice John Marshall gave the majority opinion in Marbury v. Madison. In this case, Chief Justice John Marshall unconstitutionally expanded the power of the Court to rule on cases, which would apply to the entire country. This was not the original intent of the Supreme Court of the United States. Every case ruled on since then is null and void. Even so, it’s imperative to remember that the Court issues opinions, not decrees.
We know that America was founded on compact theory. This is made crystal clear by Madison, the father of the Constitution, when he drafted the Report of 1800. Compact theory dictates that the states compose the country. These states explicitly grant the federal government its power. Compact theory also sets the paradigm that the State has the authority to dictate whether or not a federal law is constitutional. If you asked Americans on the street today they would most likely tell you the opposite is true.
All that build up for what? Well, why wait for the Supreme Court to strike down the law? There are multiple cases making their way to the SCOTUS, which very well may cripple Obamacare. However, if we are a nation of principled citizens we should not rely on these Supreme Court opinions regardless of how they sway. As I said before, the SCOTUS is operating outside of its jurisdiction.
Individual states have the power to nullify Obamacare, if they so choose to take that path. However, there is another way the law can also be killed.
Let us consider that only 17 states are running their own health care exchange under the Patient Care Act (PCA). Another 26 are leaving it completely up to the feds, and the remaining few are doing a joint exchange. Now, in this case, it may seem that more states have opted for greater government control. Not so, because of text of the PCA states who opted for the federal exchange are actually on their way to opting out of Obamacare. This is why essentially every state run by republicans opted for the federal exchange. Many states are now in the process of trying to kill the medicaid expansion under Obamacare. If successful, with a few more steps, these states have effectively nullified Obamacare. These states are now in a stronger position to move on to the next phase–
Next, let us consider how many states are run by republicans. Democrats only have complete legislative control over 17 states. Also, they could soon be losing Virginia, as the gubernatorial race between McAuliffe (D), Cuccinelli (R) and Sarvis (L) tightens. A recent poll shows Sarvis dropping 1 point, and McAuliffe/Cuccinelli in a statistical tie Regardless of that race, republican ran states are on the rise. Since Obama took office, republican governors have taken over 9 states. If the trend continues, republicans will continue to gain ground in the states. Also, libertarian candidates are taking the field with relatively impressive results.
Given time, it’s more than possible that the magic number 38 could be reached. What is this number? It’s the number required for a constitutional amendment. If republican and libertarian state representatives, senators and governors held to the principles, which they claim are of their core convictions, then a constitutional amendment could be achieved. Such an amendment would block the healthcare law across the board. More so, the path of constitutional amendment is one of maintained principle.
Although I do not agree with Obamacare, I would not support the Supreme Court striking it down. Why? Because, in doing so, the Supreme Court continues to act outside of its constitutionally delegated authority. With this avenue, it is only a matter of time until someone with differing values tries to impose those values onto the rest of the country. Again, this was never the intended purpose of the Supreme Court. Supreme Court opinions are not the “law of the land”. The Constitution is the law of the land. Madison, the father of the Constitution, has explicitly defined for us that the Constitution restrains the federal government through avenue of the people composing the states. The states give the federal government its power. The inverse is the greatest modern fallacy America faces.
The founders have given us a principled avenue to resolve overbearing federal government power. It is of paramount importance that Americans rediscover their resolve for true freedom. However, this resolve must be rooted in principle. It must not rely upon those who act without principle. If we simply rely on the Supreme Court we will lose. Whether the law is struck down or upheld is of no importance. The Supreme Court should have never been allowed to rule on the legislation in the first place and therefore we should not look to the problem for a solution.
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Ok TS first in the constitution states were given limited rights. The fed always has been and always will be the supreme. It is written that way. The states were given rights to address what the constitution did not. The necessary and proper clause gave the fed the right to address future concerns whether the states had addressed them or not. A prime example: abolition of slavery, it is what the south feared from the dawn of the country until the outbreak of the Civil war. It was the reason for the 3/5th clause to allow the south to maintain equal power in the House. It was the reason for the fight every time a territory became a state, the balance of power. States rights were so limited that the legislatures were not even involved in the ratification of the document, as separate conventions of the people were set up for that purpose. Order of concern 1. the people, 2 the fed, 3 the states. It is clearly written and was acted on in that manner.
ReplyDeleteIf it were different the Jeffersonians had 24 consecutive years to change the balance of power and they did not. Because it was the way it was meant to be, or was it that the power of the presidency to much that Jefferson, Madison and Monroe chucked aside their individual principles because of that power?
Obamacare like it or hate it I don't see it going away. The 17 states who set up their own exchanges are the 17 states where people can sign up and fulfill the mandate, legal or not, with minimal problems. Where are we going from here. My bet is that it is a fifty- fifty shot that we go to a single payer system or a totally free market system that erases state lines and allows insurance companies the equal access to all states without conditions.
Nice post Rick. I sorta get the belief that some people have that the entirety of life is a buffet wherein you can simply ignore and skip participation in everything you don't agree with. I would concede that the country has undoubtedly taken many turns the founding fathers would disagree with, but the country has also had to deal with many things the founding fathers could not have foreseen.
DeleteAn interesting theme has developed within the Republican party, a theme that is actually pretty Saul Alinski like, namely that the end result justifies any means used to get there. While they hate the federal government and its alleged overreach, they are quite content to use brutally oppressive legislation within their own states to effectively negate what is federal law. Voting laws and local restrictions against abortion clinics are two of the prime examples.
I agree with you on Obama care, it is not going away. It would be nice if it could be fixed but the harsh reality is that there is enormous, entrenched interests who are just fine with the way things are. Insurance companies get the healthier patients while the taxpayers get to pay for the seniors and the uninsured who use the ER as their source of primary care. Insurance companies routinely drop people and deny claims because they can. I see this as nothing but a shell game of cost shifting, but in Republican stronghold states, our ridiculously segmented health care system is seen as a "free market". There is a lot of magical thinking out there that reality is whatever you think it is.
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ReplyDeleteFirst I have to apologize. This article was pasted as a draft some time ago for a thought that is now less than clear. I am not sure how it got posted because I rarely post an article without personal comment or at least a link to the source. Perhaps I attempted to delete it and posted it instead or some glitch in the system... I don’t know but it wasn’t meant to be posted.
ReplyDeleteThe width and breadth of the constitution has been contested as you say, from the beginning. I would suggest that the same progressive mentality that today redefines ‘rights’ as anything they want it to be, are the same type of people who took the failings of the Articles of Confederation with was without a doubt ‘pro states’ and turned it into Constitution that gives the Federal government, essentially unlimited power in all areas of .... well... everything. I.E ... the interwoven ‘interpretations’ of the Commerce, Necessary and General Welfare clauses... Very creative but also very harmful and inconsistent to the ‘Life, Liberty and Pursuit of Happiness called out in the preamble.
The ‘interpretation’ of the ‘necessary and proper’ clause is of course just that. Previously you put the anti-federalist papers in the same light as the Federalist papers. I disagree. They were conceived and written as a direct rebuttal to the deceptions they sought to expose. And if you read them, they are pretty accurate as to the state of affairs we see today. As I said before, if the federalist papers are to be taken in the same light as the puffery of a cigarette ad then the anti-federalist papers were the Surgeon Generals warning. You missed my point however. While you will just call all of the words that come out of politicians mouths as a spin on the truth and resign yourself to that type of leadership, I don’t. The allowance for ‘embellishment’ given to politicians by the general public is astonishing. Honesty and Integrity are no longer a value and the perverse thing is that when you talk about honesty, you are looked at with suspicion...
Your comment about Jeffersonians having 24 years.... Rick, the realization of just how far some were willing to go to enhance federal power only really showed itself with Lincoln and after that with the 16th and 17th amendments...and that is where the real intrusion begins...
While you are very correct, there were people in the drafting process who wanted to remake the US in the image of the King they left behind. Just as there are people today who want the federal government and indeed the president to have no less power and control over the American people than the Duma of Russia and the President that presides over it... Be very careful what you wish for because the utopian ‘workers paradise’ you strive for may not look so nice when you get there... ask the many defectors from Russia, Cuba, East Germany, Nazi Germany, Mussolini’s Italy, Soviet Czechoslovakia and on and on and on.
The difference between you and I is that I think all departments of the federal government is an overreach of its mandate (or remiss in their duties) while you only see a miss allocation of funds from one department to another and can’t see where the federal government has no business in whether a child has a lemonade stand in their front yard or why people in Michigan might have vastly different problems and required solutions from folks in Utah. What use to be an issue of diversity is now one of forced social, economic and ideally biological homogeny... I can see confrontations between the Klingons and homo-progressive earthlings now. But no fear, homo-progressives with run with open arms to the Borg.. a collective beyond a mere communist’s wildest dreams... there, smart people even have their intellect forcibly distributed for the equality of all and no one has any right to decent... lest you be unplugged.
Continued...>
I am sure that the intent of the framers envisioned the evisceration of state power by a rather dubious 17th amendment or abrogating its money creation to some crony capitalist appendage ... or legislating a child’s lemonaid stand out of existence....
ReplyDeleteThe EU seems to have done quite well with the original intent of the Maastricht Treaty and the Schengen Agreement. Progressives however will not stop until they control everyone’s behaviour from their lofty perch in Belgium. Member states finally told the EU to F.off over a restriction on ‘curved cucumbers’ ... and of course one must have a strong federal to prohibit children under 8 from blowing up balloons unsupervised. How about an EU law that says that it is legal to sell and eat horse meat but it is against the law to eat your own horse if it was ever deemed a ‘pet’. But as we see, no federalist will ever say that enough is enough. Now the EU determines that it is against the human rights to deprive a prisoner from voting... “Humm... now who should our next police commissioner be?”. It has decided that customs that have survived for hundreds of years no longer meet its criteria.. from how bread is made to how olive oil is served. Yeah... we need a government just like the monster that is growing from the original Maastricht Agreement
Quite interesting that you even bring up the USSR... again the subject of your leftist ideas of Trotsky with his ‘World Revolution’ and Lenin’s mother Russia. A creation of people who were never elected to power but took it by force. So what are you saying... we are all Bolshevik’s now? The only thing that created the USSR was the barrel of a gun. As far as the chaos that followed the breakup of the Soviet Union... well tell me what you would think it would look like after 70 years of forcing people to become dependent on state handouts? The only thing that was chaotic before the Bulshevik revolution was that the satellite countries to Russia hadn’t yet seen the clear vision of Lenin and Trotsky....
Only someone who sees socialism and totalitarianism as fundamentally different could hold up the ‘government’ of the USSR as an example of why we need to be like them.....
“This could have been the United States without a strong central government.”
Interestingly enough, the only time in the history of the US that states actually came to armed aggression against each other was created by U.S. Federal policy and its lack of will to actually enforce the laws of the land. I would suggest that we don’t need an iron fisted federal to keep the states from killing each other but if the federal government doesn’t back off, it may find itself at war with the states... and its people.
With respect to Obamacare... Yeah, you are probably right. Obamacare or the insurance prescription was nothing more than a Trojan horse used to dismantle the insurance industry that government created in the first place and the cost shifting that the government created in the first place ... or the cost of drugs created by the government in the first place. Maybe all of these problems have been a very carefully crafted plan of the same people who followed the words:
“Give me four years to teach the children and the seed I have sown will never be uprooted.” -Vladimir Lenin
And followed it up with Hitler’s: “whoever has the youth has the future”. Hitler’s view on education was that it served a sole purpose – to ensure that a child was loyal to the Nazi state to ensure that the Third Reich lasted for 1000 years. Given that our educational standards have flat lined internally since the inception of the US Dept of Education and we have gone from 1st to 39th in the world… one has to wonder if turning the social fabric and its morals on their heads was the only real reason for federal control in the first place… Yes, you can call me cynical.. :-).. but results are results so one must look for an alternative reason for the existence of these departments.
James Madison wrote" constitutional interpretation must be left to the reasoned judgment of independent judges, rather than to the tumult and conflict of the political process. If every constitutional question were to be decided by public political bargaining, Madison argued, the Constitution would be reduced to a battleground of competing factions, political passion and partisan spirit." So although the constitution did not explicitly give the court the powers of constitutional evaluation of laws, it was assumed that this would be the purpose of the court, by one of your own. The practice of judicial review of laws and measures was already being done at the state level. The court is the third leg of our checks and balances system and without it we would be at the mercy of those who make our laws, partisan politics that would destroy the rights of some while enhancing the rights of others. That TS goes back to the greed and selfishness of mankind and John Marshall was right in asserting the courts purpose as that of determining by a lengthy process the constitutionality of the laws we live under. It is one of the biggest protections of individual freedoms not a hindrance to it. Alexis de Tocqueville investigated and wrote extensively about the new American democracy. He loved the system that was in place with the three legs of checks and balances, the only one in the world with a check on the legislative branch.
ReplyDeleteMercy Warren wrote in the anti federalist that the constitution as written would be a protection for the aristocratic or gilded class and that it is even today. But you continue to defend that. I defend equal opportunity.
The as yet to be discovered Centenel wrote Anti federalist #21 in Philadelphia, stated " From the first settlement of this country until the commencement of the late war, the taxes were so light and trivial as to be scarcely felt by the people. " It is hard to support a document that calls into question the one major cause, the most important reason for the whole forming of a new country, the constant taxation without representation that the colonies found reprehensible, and unacceptable. If the taxes were no problem then why did we fight so hard to end the practice? How many times TS was taxation without representation invoke by the founders as a major reason for the war? What other thing did the British do except to quarter troops within our midst to invoke such a violent upheaval of it's subjects? It’s called spin.
Standing armies? Is anyone for them. They are expensive drains on our country and economy. At the time the worst that could be foreseen by the founders was more war with England (1812) which did happen, a war that if continued we would have lost trying to fight the bulk of it with state militias. Untrained troops who except for it’s professional leadership, knew little of the tactics of war and had even less of a desire, in general, to die for the cause they were fighting for. They fled in battle and went home at their pleasure. The threat of War with Napoleon’s France which was also alleviated through diplomacy. No way the founders could have know the perils of the future world but also nowhere in the constitution does it call for a standing army. That was the main reason for the second amendment, an economical solution to an expensive problem. Let the people be armed so they can rise up and squash any threats to our country. The people just weren’t all that good at it. In today’s world of intrigue and fighting a standing army has become a necessity for the protection of our freedoms and to promote freedom for those who are oppressed.
ReplyDeleteNow I am not or ever was a fan of the Soviet Union. But unfortunately many places were better off under that repressive regime. Some people just can’t seem to govern themselves. It all goes back to the same theme, why we live under so many laws, rules and regulations, the greed of some and the jealousy of others.
The anti federalist #30
ReplyDeleteIt has been the language, since the peace, of the most virtuous and discerning men in America, that the powers vested in Congress were inadequate to the procuring of the benefits that should result from the union. It was found that our national character was sinking in the opinion of foreign nations, and that the selfish views of some of the states were likely to become the source of dangerous jealousy. The requisitions of Congress were set at naught; the government, that represented the union, had not a shilling in its treasury to enable it to pay off the federal debts, nor had it any method within its power to alter its situation. It could make treaties of commerce, but could not enforce the observance of them; and it was felt that we were suffering from the restrictions of foreign nations, who seeing the want of energy in our federal constitution, and the unlikelihood of cooperation in thirteen separate legislatures, had shackled our commerce, without any dread of recrimination on our part. To obviate these grievances, it was I believe the general opinion, that new powers should be vested in Congress to enable it, in the amplest manner, to regulate the commerce, to lay and collect duties on the imports of the United States. Delegates were appointed by most of them, for those purposes, to a convention to be held at Annapolis in the September before last. A few of them met, and without waiting for the others, who were coming on, they dissolved the convention-after resolving among themselves, that the powers vested in them were not sufficiently extensive; and that they would apply to the legislatures of the several states, which they represented, to appoint members to another convention, with powers to new model the federal constitution. The states decided that we needed a stronger federal bind. The author goes on to disagree with the document because the state governments would be rendered powerless. Well TS we know that that is not true. Although much is done at the federal level, states still have a lot of rights within their boundaries. Much of the federal restrictions hinge on the federal awarding of federal dollars to the individual states. Those dollars have strings attached. You don’t want the regulation then don’t accept the money. But I dare you to find one state that hasn’t advanced in someway because of federal help. They all have and they all line up at the trough as stated in another thread on
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ReplyDeleteSorry for the deletion above it was this comment that needed some changes.
ReplyDeleteNow I will disregard all of your reference to Hitler as off topic. I never mentioned him and I disagree with the common position of the right that we are indoctrinating our youth to something other than freedom and liberty. That is a talking point that has no merit just because you don’t like that today’s youth seem to be more liberal than in the past few decades. That stuff comes and goes. According to your rant about the Department of Education, we aren’t teaching them anything and I do tend to wonder what they are learning in today’s schools. I get this from talking to some of my college student employees. It is sometimes unbelievable what simple trivial facts they absolutely don’t know that you and I place in the realm of common knowledge. But you can rest assured that they aren’t learning a political doctrine. It is one area where they are the weakest. Today’s youth are just more open minded to things that were taboo in past generations and I don’t think that that is necessarily a bad thing. They are breaking down some of the last walls of discrimination and hate. They do have a different perspective on our country, one that is void of some of the prejudices that we grew up with. For that I commend them.
And it is that type of thinking that will keep us from a totalitarian regime because they harbor less hate and greed then our generation. It’s why they live in the basement so long because they don’t want all of the things we wanted, they don’t need cars, they don’t need a house at an early age, they don’t need, need ,need. As Phil Robertson said we didn’t have much and we were happy, happy, happy. Maybe today’s youth are onto something that we missed. Maybe we worry too much about this shit instead of just going out and living our lives the within the bounds that we are given. I Agree with what Max said in another thread, nothing the government does really affects me all that much. The most effective government the one most affecting our lives is what is done in our individual counties and cities. Not much else really matters.
I disagree with you that the arguments of the anti federalist have come true. Most of them anyway. These papers like the federalist, even like the constitution in many ways are dated and written for the times that they pertain to. Nothing, nothing in today’s world could have even been remotely imagined by the writers of any of these documents. Changing times call for changing laws, changing beliefs and changing regulations. Our problem is that nothing ever goes away so the laws and regulations just pile up even when their essential usefulness has expired. So we get these weird situations when a child can’t sell lemonade and even here in my town we can’t set up a table and feed the hungry and homeless in a park where they all hang out anyway. It’s laziness on the part of the government to enact and forget all these stupid little rules. They were enacted for a purpose but when that purpose has passed they never go away or get amended for the times. Government is hard, and it is time consuming. As we more through time we have less interest and less participation in the governing of our nation. I just wonder how long that any interest remains. It has caused the ruination of many empires, neglect of the government and the governed.