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  • The Coming Constitutional Debate

    The Constitution has returned to Congress. It began with a ceremonial reading of the document on the House floor for the first time in US history. While the event had some problems, the act of reading the document that provides the authority for Congress in the first place sets the tone and defines the core purpose of the new Congress: to restore constitutional limits on the federal government.

    The real test comes with the debates over the new House rule requiring that each piece of legislation cite its constitutional authority. “A bill or joint resolution may not be introduced unless the sponsor has submitted for printing in the Congressional Record a statement citing as specifically as practicable the power or powers granted to Congress in the Constitution to enact the bill or joint resolution,” reads Rule XII. Objections over a particular constitutional citation will be subject to debate.  And the first good fight will be over the repeal of Obamacare.

    On the first day of the session, Rep. Eric Cantor (R-VA) submitted the Constitutional Authority Statement for H.R. 2, “Repealing the Job Killing Health Care Law Act,” referring to the Patient Protection and Affordable Care Act, better known as Obamacare. The statement for repeal asserts Congress’s independent responsibility to uphold and interpret the Constitution, not only challenging the court’s claim of exclusive power over the Constitution but also liberalism’s view of a limitless regulatory state:

    For over 200 years, the Congress, the Executive, and the Judiciary have acted according to the principle of coordinate branch construction based on their respective obligations to ensure that all their actions are constitutional. This is the clear meaning of the Vesting Clauses of Articles I, II, and III along with the Supremacy Clause of Article VI, as well as of the Oath of Office that each constitutional officer of the Federal government must take pursuant to Article VI. James Madison made this clear in 1834 stating, ‘As the Legislative, Executive, and Judicial departments of the United States are co-ordinate, and each equally bound to support the Constitution, it follows that each must in the exercise of its functions be guided by the text of the Constitution according to its own interpretation of it.’

    The citation then proceeds to express the opinion of Congress that Obamacare went “beyond the enumerated powers granted to Congress by the Constitution, including, in particular, the Commerce, Taxing, and the Spending Clauses of Article I, Section 8, as well as the Necessary and Proper Clauses contained therein, and that otherwise improperly extend authority to Federal agencies in a manner inconsistent with the Vesting Clause of Article I, Section 1.” That pretty much covers everything.  The last remark is especially interesting, as it makes the point, long ago dropped by the Supreme Court, that there is a constitutional problem when Congress delegates its lawmaking responsibilities to actors outside of the legislative branch.  Raising that issue is a direct challenge to the very legitimacy of the bureaucratic mechanisms of the modern administrative state. The citation also notes that “The general repeal of this legislation is consistent with the powers that are reserved to the States and to the people as expressed in Amendment X to the United States Constitution.”

    Constitutional objections to Obamacare have mostly focused on the individual mandate section, which requires Americans to purchase health insurance or face penalties. It establishes a dangerous premise: if Congress may use its coercive power to require the purchase of health insurance, is there anything Congress cannot impose? But the individual mandate is not the most egregious offense against the Constitution.

    In passing Obamacare, Congress transferred important aspects of its legislative authority to various administrative agencies. The legislation creates a multitude of federal agencies, and consequently, empowers hoards of unelected, unaccountable bureaucrats to write detailed rules over one-sixth of the economy. This act of transferring such vast rule-making authority to another body (known as the delegation of legislative power) is contrary to the Constitution. As a recent essay in our Constitutional Guidance for Lawmakers series explains, legislative powers are not Congress’s to give away: “The principle of non-delegation is fundamental to the idea of a limited government accountable to the people. The delegated powers are defined as placed in distinct branches of government for the ‘accumulation of all powers, legislative, executive, and judiciary, in the same hands,’ writes James Madison in Federalist No. 47, ‘may justly be pronounced the very definition of tyranny.’”

    Supporters of Obamacare respond that the health care legislation is indeed constitutional. The General Welfare Clause, the Necessary and Proper Clause, the Commerce Clause, and the Taxing Power have each been cited as providing the constitutional seal of approval. Although the 111th Congress did not require constitutional support for legislation, Washington Post writer, Ezra Klein commented that “the one bill that did [have constitutional citation was] the health care bill. In the individual mandate section it names the constitutional authority for the mandate.” What was the constitutional citation for Obamacare that Klein highlights? The Supreme Court, of course: “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.” The problem with Klein’s analysis is that the Supreme Court is not the Constitution.

    Starting with the repeal of Obamacare, the House’s rule on constitutional citation marks a new era of debate about constitutional meaning.  This will be an intense fight, and there will be many mistakes and disagreements along the way.  Congress’s constitutional muscles are greatly atrophied, and lawmakers need to relearn how to think constitutionally.  But it could well mark the beginning of a serious and timely restoration of constitutional limits on government, and so the recovery of our liberty.

    Posted in First Principles, Obamacare [slideshow_deploy]

    23 Responses to The Coming Constitutional Debate

    1. Brian, Monroe Twp NJ says:

      Perhaps Pelosi would like to cite the Supreme Court's Dred Scott decision and declare us all property of the State!

    2. Red Stendel Zip 6006 says:

      Health insurance is a run of the mine domestic issue that is beyond the scope of the constitution. Attacking two countries in Asia without declaring war was a major violation of the constitution. Where were you then? Red

    3. West Texan says:

      Thanks Matt. James Madison also stated in his Federalist # 45 commentary that "The powers delegated to the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite." And for Red's benefit, Madison went on to say "The former [federal government] will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce. The powers reserved to the several states will extend to all objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people."

      The latter statement sounds very much like health care to me. Part of each state's power as agreed to by the U.S. House of Representatives is the formation of interstate business compacts.

      In addition, Woodrow Wilson undermined basic constitutional protections with the 16th and 17th Amendments. The combined effect increased federal taxing powers far beyond those delegated. As such, DC's elite social engineers exploit this vast revenue to control and manipulate states. State assemblies concerned about their own budgets are powerless to say or do anything about it? Why? Because they've been robbed of their voice in the U.S. Senate. Old Woodrow knew exactly what he was doing. I say it's high time to repeal both of these abusive amendments.

    4. West Texan says:

      PS: Before any liberals bash me with their hateful banter, Woodrow gladly welcomed the 17th as it aided his centralized power grab.

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    6. Bobbie says:

      Constitutional debate? May the intellect of the true meaning of the Constitution reach those minds that lack the knowledge.

    7. Pingback: Lexiconservatives: Word Warriors

    8. Pingback: AntiObamaBlog.com » The Coming Constitutional Debate

    9. Roy, Denver says:

      Based on comments from several liberal Democrats, the debate will turn on not whether it is constitutional, but rather, is it the role of the Congress to interpret and apply the Constitution. Even George Bush took the path, that doing so was not his job (remember the sell-out of our 1st Amendment rights through the "Campaign Finance Reform act?), but solely the role of the courts. So, is it the task of everyone, even regular citizens, to attempt to live within the Constitution, or can we act in a way of our own choosing…until an unelected body tells us otherwise?

    10. George (Oldguy), Wes says:

      Bobie… Amen to that and may the knowledge that there are penalties for violating their oath of office be brought to their attention. I believe these sections of the U.S. Code may apply.

      5 USC Sec. 2903

      TITLE 5

      PART III

      Subpart A

      CHAPTER 29


      *[71 U.S. 333, 334] ON the 2d of July, 1862, Congress, by 'An act to prescribe an oath of office, and for other purposes,'1 enacted:

      'That hereafter every person elected or appointed to any office of honor or profit under the government of the United States, either in the civil, military, or naval departments of the public service, excepting the President of the United States, shall, before entering upon the duties of such office, take and subscribe the following oath or affirmation:

      5 U.S.C. Sec. 3331 01/06/97



      Subpart B – Employment and Retention



      Sec. 3331. Oath of office


      An individual, except the President, elected or appointed to an office of honor or profit in the civil service or uniformed services, shall take the following oath: ''I, AB, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.'' This section does not affect other oaths required by law.

      'Any person who shall falsely take the said oath shall be guilty of perjury; and, on conviction, in addition to the penalties now prescribed for that offense, shall be deprived of his office, and rendered incapable forever after of holding any office or place under the United States.'

      18 U.S.C. Sec. 1621 01/26/98




      Sec. 1621. Perjury generally

      Whoever -

      (1) having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true; or (2) in any declaration, certificate, verification, or statement under penalty of perjury as permitted under section 1746 of title 28, United States Code, willfully subscribes as true any material matter which he does not believe to be true; is guilty of perjury and shall, except as otherwise expressly provided by law, be fined under this title or imprisoned not more than five years, or both. This section is applicable whether the statement or subscription is made within or without the United States.

      If nothing else a copy of these mailed to our Representatives may have some effect on their thinking.

    11. George (Oldguy), Wes says:

      P.S. I am not an attorney so my previous post is a layman's opinion!

    12. Mike, Wichita Falls says:

      Good point. Everytime Congress cites Supreme Court rulings and precedent, they do indeed "pass the buck" and abdicate their equal responsibility to "protect, defend and uphold the Constitution". I hope this new House rule specifically rejects citations of court rulings and demands citation of Constitutional text.

      The same goes for the Supreme Court itself when it cites precedent instead of Constitutional text. The "wall of separation" between church and state" or "right to privacy", the Roe v. Wade ruling itself or O'Connor's "undue burden" standard are no reason to take down crosses on federal lands or uphold abortion, respectively, as those words are not found in the people's contract.

    13. Gerald H. Treffinger says:

      Per Reagan : If not now , WHEN? ; If not us WHO? .GHT

    14. Steve S. California says:

      “Health insurance is a run of the mine domestic issue that is beyond the scope of the constitution”

      That would be germane to the discussion if the existence of medical insurance were what was being discussed, but it is not!

      What is at issue is the requirement imposed on the people by the government to purchase a product for sale, which most certainly is a constitutional issue, especially as the unique properties of such insurance, and the fines levied against those who would choose not to purchase it. It’s not like requiring a onetime fee for, say, a driver’s license. If one chooses, one may opt out, and simply not drive. You do have a choice. So tell me, how do you opt out of Obamacare? Die?

      The line being crossed here may not be evident to you, but it exists just the same. Free choice is the cornerstone of liberty. Lack of it is the cornerstone of tyranny. Taking it in the name of “the good of the people” is the same ruse that has been used in all but the most extreme incidences of the death of liberty to convince people to give up their freedom. In all instances free men have lived to regret it in the best case.

      Some folks don’t mind, and will assume the baby bird pose willingly, letting lesser men and women stuff their will down their throats. As for me, my gag reflex works perfectly well, thank you.

    15. Bobbie says:

      Amen to you, George. This is a necessary "change," to hold members of government accountable with reprimand, to their words and actions, where the rules of conduct are violated. Let's see if Mr. President will live up to holding them accountable, with reprimand and see if he has any will to respect the Constitution to follow.


    16. (Mr.) Whitney Galbra says:

      As welcome as specific Constitutional references in legislative initiatives might be, this is not likely to initiate a generally accepted understanding of the Constitution. Decades of political assault on the document have left it largely a dead reference point for how we govern ourselves. There is no general agreement on what it does say. I will offer prima facie evidence of its irrelevance. When the U. S. Supreme Court hands down a 5-4 decision, no matter what the issue, it tells us that the most authoritative individuals in the country do not agree on what the Constitution means and that it only means what any given judge on any given day wants it to mean. The U. S. Constitution, sadly, no longer “constitutes” anything. When one federal judge condemns the entire social and constitutional history of the United States in order to advance his own personal agenda by arbitrarily redefining marriage out of existence, “we the people” are left with no constitutional defense against a tyranny of the minority. I call for a national constitutional convention, involving the fifty states and the District of Columbia, to start from scratch, taking the Constitution as ratified in 1787 and the original Bill of Rights as ratified in 1791, enact a universal “sunset” schedule designed to force a review and constitutional justification of all subsequent federal legislation. What else can we do?

    17. D J Filak, Bisbee, A says:

      Why not make them all read the bills before voting on them? I'm sick and tired of someone entering a contract without first reading it, more so when that contract concerns me. And, I'm not talking about having staff read it, I did not appoint their staff, I appointed, by popular vote, the representative and they are passing the buck. I think it's high time they earn their salary by doing what they were elected to do, and if they can't do that, time for a change..

    18. Nolo rume says:

      Sorry, I must disagree with the majority of te article. The thought that everyone in America isn't entitled to reasonable healthcare is absurd. That everyone needs to contribute is not an objectionable question. All workers contribute to Medicare – is this the nexxt objection of the foolish right?

      I would like to suggest that every law written not be more than 1 page long and written in plain English.

    19. George (Oldguy), Wes says:

      This piece is worth a few minutes of your time. I extracted some from the beginning. Take a look.

      "We the People" or We the Judges?

      Ronald R. Cherry M.D.

      Representative Henry Waxman (D-Calif.) recently stated:

      “When I went to law school they said the law’s what a judge says it is. Whether it is constitutional or not is going to be whether the Supreme Court says it is.”

      Such an opinion runs counter to that of our Founding Fathers. The men who wrote our Constitution believed that “We the People” should ultimately decide whether or not a law is Constitutional because “We the People” did “ordain and establish this Constitution for the United States of America.” Our Constitution was not ordained or established by “We the Judges” and therefore Supreme Court Judges should not be the “ultimate arbiters of all Constitutional questions.” Thomas Jefferson specifically refuted the opinion of Henry Waxman in his 1820 letter to William Jarvis:

      “You seem to consider the judges the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy… The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots… I know of no safe depository of the ultimate powers of the society, but the people themselves…” Thomas Jefferson


    20. Bobbie says:

      Nolo rume, what is your argument? What is defined as "reasonable health care?" And who is arguing against it? If people aren't smart enough to take care of themselves at their own expense, how would they know what is "reasonable?"

      To me, "reasonable health care" would consist of the ethics of Marcus Welby, MD. Although it was a tv show, it did depict the ethics of doctors, of the time. To compare the doctors ethics of today, good, positive, trusting ethics of the past, no longer exists. Doctors today, in no doubt due to government, pass the buck like everyone else. They make work so those that hand out suckers can be equally paid the same as those that give the shots.

      I whole heartedly agree with your suggestion of every law written.

    21. Robert VanHoesen (Sc says:

      This is a classic discussion on "loose" versus "strict" interpretation of the US Constitution. The health care bill takes full advantage of "loose" or constructivist interpretation. However the federal courts are correctly utilizing their authority of judicial review to reel in this over reaching legislation. John Marshall would be proud.

      The Founders were students of the Enlightenment and of natural rights. They constructed a set of rules that were firmly grounded on democratic principles. It will be interesting to see how the best minds of the 18th century will stand up against the challengers of this era. My money is on Madison!

    22. Susan Wilshusen says:

      American voters need to monitor and repeal unconstitutional legislation that is effectively repealing their Constitution before unconstitutional drivel masquerading as US Law papers over your Constitutional and Declaration of Independence rights with the cumulative effect to change the very form of your government without it ever having been formally announced that the repeal of the US Constitution and Declaration of Indeopendence was taking place.

    23. marketingconcept says:

      I am sure that many citizens will react on what is to be the outcome of this debate. Positive or not is the result, still there will be humors that will exist on it.

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