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Thoreau: "Government is Best Which Governs Least"

Archive for November 2009

Senate Health Care Bill Also Lacks Constitutional Authority

Before the House of Representatives had even released their health care bill a few weeks ago, I had written my Congressman explaining that all 5 of the health care bills being written and re-written in the Congress lacked Constitutional authority.  One of the reasons I knew this was the case was that I knew the Congress would attempt to use its Article I, Section 8 enumerated power to regulate commerce.  I wrote my Congressman in part saying:

But I know others have argued that if it is not a power that exists under the “general welfare” clause, then it certainly is a power derived from the commerce clause of the enumerated powers.  To which, I consult those same Federalist Papers, but once again upon reading several of the Federalist Papers, <sic> the arguments seem to indicate that some of the States were participating in unfair trade practices with each other at the time of the drafting of the Constitution.  Therefore, the commerce clause was included as an enumerated power in order to allow the Federal Government (i.e. the Legislative Branch) the power to make regular commerce between the States.  And when I think of the enumerated power of making commerce regular between the States and how that relates to health care legislation, I conclude that the Constitutional power seems to lend itself to allowing private Insurance companies to provide their health insurance products across State lines [but not compel citizens to buy said products]…

So sure enough when I began reading the health care bill now coming out of the Senate, we find the following commerce clause citation beginning on page 320 of the legislation:

(1)    IN GENERAL.—The individual responsibility requirement provided for in this section (in this sub section referred to as the ‘‘requirement’’) is commercial and economic in nature, and substantially affects interstate commerce, as a result of the effects described in paragraph (2).<snip>

(2)    EFFECTS  ON THE NATIONAL ECONOMY AND INTERSTATE COMMERCE.—The effects described in this paragraph are the following:

(A)   The requirement regulates activity that is commercial and economic in nature: economic and financial decisions about how and when health care is paid for, and when health insurance is purchased.

Let’s pause right there and see what the Senate is saying.  Leave it to liberal Democrats to take the immediate leap from having the ability to regulate commerce between the States to result in their now new found supposed power to compel the purchase of what they have decided to regulate. I should at least pause here and say that at least the Senate unlike the House of Representatives tried to find the Constitutional authority to compel individuals to purchase health care.  The House Bill (HR 3962) did not bother to attempt to seek or articulate Constitutional authority.   Never before in the history of our Country has a citizen of the United States been required to make a private purchase or face a tax.  So let’s look further into the bill and see what the consequences will be for the Senate’s new found power to regulate health insurance commerce.

First the Senate attempts to show us that they are serious about their Constitutional authority to require us to purchase health care insurance by citing a Supreme Court case.  On page 324 of the bill, you will find the following:

(3)    SUPREME COURT RULING.—In United States v. South-Eastern Underwriters Association (322 U.S. 533 (1944)), the Supreme Court of the United States ruled that insurance is interstate commerce subject to Federal regulation.

But once again, they make a major leap from being able to regulate insurance as interstate commerce and then compelling a United States citizen to purchase health care.  And they make this giant leap by immediately following the paragraph cited above with the following paragraph:

IN GENERAL.—Subtitle D of the Internal Revenue Code of 1986 is amended by adding at the end the following new chapter:

I will spare you the legalese of the next few sections, but it essentially says that beginning in 2013 (conveniently after the next Presidential election), all individuals and any qualifying dependents of said individuals will be required to provide “minimal essential coverage.”  Failure to do so will result in a penalty.  But what will that penalty be?  Well it takes them several pages to detail the penalty, and they certainly are incapable of using clear and concise language, but here is the convoluted section where they get to the penalty you will pay.  And when they say penalty, they really mean a federal income tax as stated on pages 325 and 326:

(1) IN GENERAL.—If an applicable individual fails to meet the requirement of subsection (a) for 1 or more months during any calendar year beginning after 2013, then, except as provided in subsection (d), there is hereby imposed a penalty with respect to the individual in the amount determined under subsection (c).<snip>

(c) AMOUNT OF PENALTY.— (1) IN GENERAL.—The penalty determined under this subsection for any month with respect to any individual is an amount equal to 1⁄12 of the applicable dollar amount for the calendar year. (2) DOLLAR LIMITATION.—The amount of the penalty imposed by this section on any taxpayer for any taxable year with respect to all individuals for whom the taxpayer is liable under subsection (b)(3) shall not exceed an amount equal to 300 percent the applicable dollar amount (determined without regard to paragraph (3)(C)) for the calendar year with or within which the taxable year ends. ‘‘(3) APPLICABLE DOLLAR AMOUNT.—For purposes of paragraph (1)— ‘‘(A) IN GENERAL.—Except as provided in subparagraphs (B) and (C), the applicable dollar amount is $750.

(B) PHASE IN.—The applicable dollar amount is $95 for 2014 and $350 for 2015.

Now if that was all perfectly clear to you, then congratulations, you too can become a U.S. Senator.  Yes it is clear that you will pay $750.00 by the year 2016, but it really does not matter because the United States Congress has no authority to tax a United States Citizen for not making a private purchase.  The authority to regulate commerce between the States does not allow the government to add an income tax for failure to make a private purchase.

Congress’ authority to tax an individual’s income comes from the XVI Amendment to the U.S. Constitution.  The XVI Amendment to the U.S. Constitution states in full the following:

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several states, and without regard to any census or enumeration.

As I have argued before, if the members of Congress would have simply taken a basic accounting class, they would be familiar with the concept of a balance sheet that features both incomes and expenses.  The XVI Amendment above clearly gives them the right to tax incomes, but it certainly does not grant them the power to tax expenses.  Health Insurance is an expense.  I don’t know how to describe this to the Congress because they seem to have such a difficult time understanding this concept.  When you pay for something, in this case health insurance, it comes out of the expense column of the budget.  The last time I checked the health insurance companies do not pay you and then give you health care as an income item on a balance sheet would require.  But maybe the Congress does not understand this concept because they never actually have to pay for anything, so they don’t view payments for things as  expenses hence our 12 trillion deficit.  Maybe if we could get them all to take an accounting class we could solve two problems:  1)show them they have no Constitutional authority to compel a U.S. citizen to purchase health care and 2)solve our country’s massive deficit as they may start to understand expenses eventually have to be paid.  Oh well, we can dream can we not?

Once again the United States Congress has overreached on its Constitutional authority attempting to set another precedent against our Constitutional rights and protections.  I know that I’ll be calling both of my Senators tomorrow, and I encourage all of you to do the same.  If we do not adamantly insist that our Constitutional protections be adhered to, we will find ourselves one day without any Constitutional protections at all.  I just hope that day has not already arrived, and that it is not too late.

Update:  You can find a more comprehensive article on this same issue that I wrote for The Post & Email.  I based the article for The Post & Email from this piece and is entitled Congress Hath Not the Authority.

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There is no Intellectual Honesty in Speaker Pelosi’s House

The one thing that truly annoys me is when there is no intellectual honesty.  I don’t care if it comes from the left or the right, I will not tolerate a lack of intellectual honesty.  If you were silly enough, like I was, to watch 8 hours of C-SPAN on Saturday covering the 4 separate committee health care debates on the house floor, you did not witness a debate on the health care legislation.  What you saw was proselytizing a progressive point of view and republican point of view, but you saw very little of actual debate on the Constitutionality of the bill.

First I’d like to know why all bills don’t begin with the language that cites the portion of the Constitution granting the authority to the Congress to even put forth the bill.  Wouldn’t it be nice if every piece of legislation first had to cite the authority they have to produce the legislation? But I digress.  The point is if Nancy Pelosi’s house exercised any intellectual honesty whatsoever on the merits of this bill, we wouldn’t see it being supposedly debated on the house floor on a Saturday afternoon and early evening when no constituent could contact his or her house member via telephone.  The phones in Congress were not being manned on Saturday.  I contacted 3 Democratic Arizona Representatives on Saturday afternoon and none of their phones were answered by a human and all of their voice mails were full.  If Nancy Pelosi’s house had any intellectual honesty, then she certainly wouldn’t be bringing a bill to the floor of the house only two days after the first successful terrorist attack on this nation since 9-11.  People were rightfully distracted by the tragedy and travesty at Fort Hood, and did not expect a Congress with any compassion or moral ethic to take over 1/6 of the economy by passage of a bill on a wholly partisan vote two days after a massacre on a military installation.  But that’s exactly what Speaker Pelosi’s House did.

Speaker Pelosi’s House has been asked on two separate occasions that I am aware of in just the past two weeks regarding the Constitutionality of the legislation.  On the first occasion, Democrat Patrick Leahy was asked if the bill was Constitutional.  Representative Leahy stated that no one questions the Constitutionality of the bill.  Really Representative Leahy, then why were you just being asked the question, clearly someone is questioning its Constitutionality.  On the second occasion, Speaker Pelosi laughed and did not answer the question.  Think about that for a moment.  I don’t care what your political affiliation, if you are a U.S. House of Representatives member, you have sworn an oath to protect and defend the Constitution.  If a member of the media asks you about the Constitutionality of your bill, why would your first reaction be to say nobody questions it or to laugh?  Of course there are Constitutional questions regarding the legislation Representative Leahy, the problem is, you simply don’t care sir.  But Speaker Pelosi laughing, that is simply an insult to all Americans.  There is nothing funny Speaker Pelosi about our Constitution.  It is the people’s only guarantee against the tyranny of government.  But after calling Speaker Pelosi’s office, I’m not convinced her nor her staff have any fear continuing their tyrannical regime against the people of America.  If you think my language is too strong here, let me share with you my experience with the Speaker’s office this morning.

I contacted Speaker Pelosi’s office to ask a specific question regarding the Constitutionality of the bill with respect to the section on “Individual Responsibility.”  That section begins on page 297 of the original 1990 page bill.  In that section it states that you will purchase a government approved health care insurance plan or risk a tax of 2.5% of your adjusted gross income.  First, the 16th Amendment of the Constitution which grants the Congress the Constitutional right to tax individuals only grants them authority to tax an income.  The purchase of a health care plan is not an income.  For the members of Congress that did not pass a basic accounting class, a purchase is noted in the expense column of a balance sheet not the income column.  Never in the history of our country has a citizen been forced to make a private purchase or risk a tax.  And please don’t give me the example of car insurance as that is a false analogy.  You are not taxed by the federal government if you fail to purchase automobile liability insurance.  If you do not purchase it, you may lose your privilege to drive that vehicle, but you will not pay a tax on your federal income tax return.  Very different from being forced to make a purchase or risk a tax.  So I contacted Speaker Pelosi’s office to pose this very simple question.

Six calls ensued within less than 5 minutes all resulting in the same conclusion – they transferred me to voicemail without even telling me they were transferring me to voicemail.  First call:  a gal answered the phone and I said I had a quick question that the media had posed to Speaker Pelosi which she had failed to answer.  Without responding to me at all, the female who answered the phone immediately transferred me to voicemail.  I called back and a gentleman answered the phone.  I said I had just called and had a question but that the person answering the phone before transferred me to voicemail.  I explained that a voicemail can’t answer a question and began to ask my question.  I was transferred to voicemail before I even completed my question again with no spoken words by the man who answered the phone.  He just transferred me to voicemail without saying a word.  I called back a third time and this was the most successful call of the six.  I think the gentlemen who answered the call stayed on the line with me about 90 seconds before he transferred me to voicemail.  I explained to him that it was my third call and that I simply wanted an answer to a simple question.  I told him in the section on “Individual Responsibility” I wanted to know what Constitutional authority.  He interrupted me and said are you citing an email or the actual bill.  I explained I was citing the original bill posted online 8 days before the vote as the final bill was not posted online before the vote.  I then stated from page 297 of the original bill, and I began reading verbatim from the bill.  I got one sentence out that had the word tax in it, and he transferred me without saying a word to voicemail.  I called back 3 more times.  Each time I either got out the words I have a question, or this is my X call and I just have a simple question, and without saying a word, the person answering the phone would abruptly transfer me to voicemail.

Now I fully understand that maybe the folks that answer the phone in the Speaker’s office are not able to speak on behalf of the Speaker and are not allowed to answer my question, but could they at least tell me that.  Is it too much to ask the Speaker’s Office to have a conversation with the American people and provide them with information, any information, even if that information is I can’t help you, I have to transfer you to voicemail?  I can only describe the way my phone calls were treated as the act of arrogant leaders that rule more as a monarchy than a Constitutional Republic.  I’m sorry Speaker Pelosi but you are not a Queen, you are an elected official in a Constitutional Republic and you have a duty to uphold the Constitution and to treat the American people with at least a modicum of civility and intellectual honesty.  But the Speaker’s House doesn’t appear to give one iota of respect to our Constitution nor to the idea of intellectual honesty.  I ask those of you who support Speaker Pelosi and this health care bill is this how you would want your legitimate concerns about legislation to be treated?  If so, I suggest you move to a country where they would be happy to treat you in this manner.  Cuba and Venezuela immediately come to mind.  Maybe you can hop the next plane with one of your favorite celebrities or Congressperson on their next trip to these wonderful locations.

Written by KJ Kaufman

November 12, 2009 at 12:13 pm