Obama Care Insurance Mandate Is Illegal
-- Atlanta Federal Appeals Court
The 26 states won this suit in a federal district court. The government appealed the case, and today a decision was handed down by the 11th Federal Circuit Court in Atlanta, Georgia.
In a two-to-one decision, the appeals court struck down the portion of the law levying fines upon those who do not acquire mandatory insurance.
"This economic mandate represents a wholly novel and potentially unbounded assertion of congressional authority: the ability to compel Americans to purchase an expensive health insurance product they have elected not to buy, and to make them re-purchase that insurance product every month for their entire lives," the court's majority opinion read.
A related court case was decided in favor of the federal government by the Sixth Circuit Court of Appeals in Cincinnati. The ultimate fate of Obama Care will probably be an issued determined by the Supreme Court.
Summarized from: http://news.yahoo.com/blogs/ticket/circuit-court-strikes-down-part-health-care-law-192457277.html
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Originally, the United States was a confederation of independent states, as stated in the Declaration of Independence. This confederation didn’t work well – the states didn’t have to recognize each others’currencies, the states arguably had the right to negotiate their own treaties, there was no ultimate unifying legal authority, and substantial legal quarrels were commonplace. A set of principles, the Articles of Confederation, were enacted to resolve these issues, yet those Articles failed to quell the disputes.
Congress got together again to consider scrapping the Articles of Confederation, to replace them with a new Constitution. The legislature quarreled interminably. Ultimately, the doors were locked and transcribers banished. The Constitution was finalized without a written record of the deals made and compromises reached – because the Founding Fathers knew, through the experience of English law, that those deliberations could be brought up in court to revise that Constitution if there existed a written record of the deliberations and compromises themselves.
When ten amendments (the "Bill of Rights") were added, this new document was accepted by all 13 states. There was a national currency established, a national and superior court system, and other features emblematic of our modern central government.
It is said, as a dangerous over-simplification, that the central government "won" and the states "lost" in the replacement of the Articles by the Constitution. But the states retained an enormous amount of power. Any treaties signed by the President had to be ratified by the Senate (then exclusively selected by the state legislatures – and any one Senator could gum up a treaty and keep it from coming to a vote). The states weren’t then and aren’t now required to extradite a man to face trial in another state (and free states weren’t required to return runaway slaves to slave states until the disastrous Dredd Scott decision of 1857, which invited a civil war).
Furthermore, states had then and have now police powers. A governor can require that all citizens of a city evacuate because of a hurricane or plague. A governor can mandate health insurance and require adult citizens to purchase it (as was done in Massachusetts under governor "Mitt" Romney’s administration). All governors can and do declare that driving a car is a privilege and not a right. A governor can declare that the state militia (now called the "national guard") may shoot and fire upon citizens of that state during a disruption. This happened at Kent State University in Ohio in May of 1970, when Governor Rhodes told the Ohio national guard to open fire on demonstrators. They did. Four were killed. The national guard was performing its duty and no one was prosecuted. Governor Rhodes became a political pariah and was never elected to any office again for the rest of his life.
The American people were horrified by the deaths of these demonstrators; the source of the demonstration was the Vietnam War, and two weeks later, Congress rescinded the authorization for that war, the Gulf of Tonkin Resolution of August, 1964. In 1973, Congress additionally limited the President’s power to engage in military conflicts with the War Powers Act. Both these actions were the direct result of the deaths at Kent State in Ohio.
There’s another wrinkle. As a result of the civil war and the reunification of the country following reconstruction, the Posse Comitatus Act was passed.
The Posse Comitatus Act is a United States federal law (18 U.S.C. paragraph 1385) passed on June 18, 1878, after the end of Reconstruction, with the intention (in concert with the Insurrection Act of 1807) of substantially limiting the powers of the federal government to use the military for law enforcement. The Act prohibits members of the Army from exercising nominally state law enforcement, police, or peace officer powers that maintain "law and order " on non-federal property (states and their counties and municipal divisions) within the United States.
The statute prohibits Army and Air Force personnel and units of the National Guard under federal authority from acting in a law enforcement capacity within the United States, except where expressly authorized by the Constitution or Congress.
The order itself was illegal. The governor of Pennsylvania has the police power to order that airliner shot down. The President of the United States does not.
This situation was overtaken by events. Before the fighter jet could intercept the airliner, the passengers themselves, hearing of the hijackings and damage over their cell phones, voted to mutiny and storm the cockpit. The aircraft went out of control and all aboard died.
But the delicious yet extra-constitutional notion of federal government police power persists.
Obama Care represents a new and clever assault on the limitation of the federal government to its enumerated powers, meaning powers specifically listed and described in the constitution. The idea of forcing economic activity under federal penalty upon those who are not participating at all, and economically need not engage in the activity, is new and dangerous, as well as potentially dictatorial.
POST SCRIPT: Speaking as a certified public accountant, I cannot resist pointing out that the federal government already has the power to demand universal health care. All it has to do is blanket everyone under Medicare and raise the Medicare payroll tax to pay for it.
"Why wasn’t this done?"
Because it would have properly been seen as a power grab, and because it would have been hellishly expensive. Medicare taxes would have risen from 8/10ths of one percent to, say, eight percent. That’s eight percent on every employee and another eight percent from every employer. That roughly covers the 16% of GDP that goes to health care. Politically, the public would have screamed at the expense.
Merely Has Enumerated Powers
-- Atlanta Federal Appeals Court
Twenty-six states filed suit (Florida et alia vs. Department of Health and Human Services et alia) against Obama Care, claiming that the mandate for all American adults to purchase health insurance goes beyond the authority granted to the federal government by the Constitution. The suit objects to the fines imposed on citizens above a certain income level who fail to purchase health insurance.
The 26 states won this suit in a federal district court. The government appealed the case, and today a decision was handed down by the 11th Federal Circuit Court in Atlanta, Georgia.
In a two-to-one decision, the appeals court struck down the portion of the law levying fines upon those who do not acquire mandatory insurance.
"This economic mandate represents a wholly novel and potentially unbounded assertion of congressional authority: the ability to compel Americans to purchase an expensive health insurance product they have elected not to buy, and to make them re-purchase that insurance product every month for their entire lives," the court's majority opinion read.
A related court case was decided in favor of the federal government by the Sixth Circuit Court of Appeals in Cincinnati. The ultimate fate of Obama Care will probably be an issued determined by the Supreme Court.
Summarized from: http://news.yahoo.com/blogs/ticket/circuit-court-strikes-down-part-health-care-law-192457277.html
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Comments by the Blog Author
Originally, the United States was a confederation of independent states, as stated in the Declaration of Independence. This confederation didn’t work well – the states didn’t have to recognize each others’currencies, the states arguably had the right to negotiate their own treaties, there was no ultimate unifying legal authority, and substantial legal quarrels were commonplace. A set of principles, the Articles of Confederation, were enacted to resolve these issues, yet those Articles failed to quell the disputes.
Congress got together again to consider scrapping the Articles of Confederation, to replace them with a new Constitution. The legislature quarreled interminably. Ultimately, the doors were locked and transcribers banished. The Constitution was finalized without a written record of the deals made and compromises reached – because the Founding Fathers knew, through the experience of English law, that those deliberations could be brought up in court to revise that Constitution if there existed a written record of the deliberations and compromises themselves.
When ten amendments (the "Bill of Rights") were added, this new document was accepted by all 13 states. There was a national currency established, a national and superior court system, and other features emblematic of our modern central government.
It is said, as a dangerous over-simplification, that the central government "won" and the states "lost" in the replacement of the Articles by the Constitution. But the states retained an enormous amount of power. Any treaties signed by the President had to be ratified by the Senate (then exclusively selected by the state legislatures – and any one Senator could gum up a treaty and keep it from coming to a vote). The states weren’t then and aren’t now required to extradite a man to face trial in another state (and free states weren’t required to return runaway slaves to slave states until the disastrous Dredd Scott decision of 1857, which invited a civil war).
Furthermore, states had then and have now police powers. A governor can require that all citizens of a city evacuate because of a hurricane or plague. A governor can mandate health insurance and require adult citizens to purchase it (as was done in Massachusetts under governor "Mitt" Romney’s administration). All governors can and do declare that driving a car is a privilege and not a right. A governor can declare that the state militia (now called the "national guard") may shoot and fire upon citizens of that state during a disruption. This happened at Kent State University in Ohio in May of 1970, when Governor Rhodes told the Ohio national guard to open fire on demonstrators. They did. Four were killed. The national guard was performing its duty and no one was prosecuted. Governor Rhodes became a political pariah and was never elected to any office again for the rest of his life.
The American people were horrified by the deaths of these demonstrators; the source of the demonstration was the Vietnam War, and two weeks later, Congress rescinded the authorization for that war, the Gulf of Tonkin Resolution of August, 1964. In 1973, Congress additionally limited the President’s power to engage in military conflicts with the War Powers Act. Both these actions were the direct result of the deaths at Kent State in Ohio.
There’s another wrinkle. As a result of the civil war and the reunification of the country following reconstruction, the Posse Comitatus Act was passed.
The statute prohibits Army and Air Force personnel and units of the National Guard under federal authority from acting in a law enforcement capacity within the United States, except where expressly authorized by the Constitution or Congress.
- Wikipedia at http://en.wikipedia.org/wiki/Posse_Comitatus_Act
This established law and constitutional principle was violated on September 11, 2001 when the President (or Vice President, the details are vague) ordered the shooting down of a civilian airliner over Pennsylvania before such aircraft could approach Washington DC and strike a government facility (arguably either the White House or Capitol). Fighters were scrambled from Virginia to shoot down the airliner and kill all the passengers, most of whom were American citizens.
The order itself was illegal. The governor of Pennsylvania has the police power to order that airliner shot down. The President of the United States does not.
This situation was overtaken by events. Before the fighter jet could intercept the airliner, the passengers themselves, hearing of the hijackings and damage over their cell phones, voted to mutiny and storm the cockpit. The aircraft went out of control and all aboard died.
Since the order to shoot down the aircraft was moot, a constitutional crisis was avoided. President Bush himself attended the funeral of the passenger who famously said, "Let’s roll." He cried at the ceremony, as well he should have. His presidency had been saved by a valorous civilian.
But the delicious yet extra-constitutional notion of federal government police power persists.
Obama Care represents a new and clever assault on the limitation of the federal government to its enumerated powers, meaning powers specifically listed and described in the constitution. The idea of forcing economic activity under federal penalty upon those who are not participating at all, and economically need not engage in the activity, is new and dangerous, as well as potentially dictatorial.
The circuit court in Atlanta reached the right decision.
POST SCRIPT: Speaking as a certified public accountant, I cannot resist pointing out that the federal government already has the power to demand universal health care. All it has to do is blanket everyone under Medicare and raise the Medicare payroll tax to pay for it.
"Why wasn’t this done?"
Because it would have properly been seen as a power grab, and because it would have been hellishly expensive. Medicare taxes would have risen from 8/10ths of one percent to, say, eight percent. That’s eight percent on every employee and another eight percent from every employer. That roughly covers the 16% of GDP that goes to health care. Politically, the public would have screamed at the expense.
So, instead, one of the political parties decided to let the lobbyists write the law, and they did so. A legal mandate was invented instead, hiding the costs and diverting attention from the power grab of police authority that a President lacks. This dishonest strategy isn’t working, because the central government’s enumerated powers include the power to tax but not the power to coerce economic participation.
States Exercise Police Powers;
the Federal Government Merely Has Enumerated Powers
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