Laws and Freedoms

I missed a corner, yesterday. I was driving down the street and I drove right by my turn.

I was too distracted. While I was driving, I was listening to Fox Radio on the Satellite. Neil Cavuto was interviewing a socialist who was marveling at how great it was to force everyone to buy health insurance, and he kept commenting over and over that we are "an nation of laws." He also asked the question four or five times, "Would you rather live in a banana republic" where the law is corrupt?

I was screaming at the radio when I drove right by the street I was supposed to turn on.

Well, Mr Liberal-Spout-the-Democrat-Party-Line (I didn't catch who the guest was), it seems to me that we DO live in a banana republic where the law is corrupt. The new health care law was passed by a corrupt congress in a corrupt manner and it exempts those who created the law. How much more corrupt can you get?

But what really got me thinking was the idea of what makes America a great place to live. Or, maybe more accurately, what USED TO make America a great place to live, before Congress shredded the Constitution?

It isn't the fact that we are a nation of laws that makes America a great place to live.

What has made America great, what made America the place that people from other places in the world flock to the U.S., is not our laws, but rather our freedoms. People come here because we have, or rather HAD, a Constitution that protected us FROM the government and FROM the laws it wants to pass to deprive us of our freedoms.

Until this year, you could come to the U.S. and as long as you didn't do something to harm someone else, you could pretty much do what you wanted and the government was FORCED (by the Constitution) to leave you alone.

Now, for the first time in our nation's history, that is no longer the case. Simply by existing, simply by being here, you are now FORCED by the government to buy something, whether or not you want it.

Now, someone tell me .... how does that make us any better than those so-called "banana republics?"

Federalism Gone

In an excellent article in The New Republic, Sean Wilentz takes to task those who wish to resurrect the pernicious doctrine of “nullification” to thumb their nose at the federal government on health care reform. Unfortunately, Wilentz conflates nullification with the idea of “states’ rights” in general:

Although not currently concerned with racial supremacy, the consequence of their doctrine would uphold an interpretation of the constitutional division of powers that would permit the majority of any state to reinstate racial segregation and inequality up to the point of enslavement, if it so chose.

Is opposition to health care reform at the state level leading to a resurrection of slavery? Really?

That much has been done in the last 100 years to undermine the 10th Amendment is not debatable. That the cause for this was considered just is equally true.

At the same time, in our zeal to improve the lives of American citizens, we have allowed the very concept of federalism to atrophy. Even debating the idea that the 10th Amendment can be redefined so that it can be made relevant in a 21st century industrialized democracy is seen as an exercise in futility.

There are few functions of government that are incompatible to the concept of federalism. While the idea of 50 nuclear regulatory commissions doesn't make sense, there is no doubt that the FDA (just to use one example) could be modified to be an agency that is overseen by a consortium of 50 States and that issued recommendations to the states instead of being an agency that wields the power it currently does. Nobody wants to see 50 OSHAs, but couldn't OSHA be another body that recommended standards to be adopted by states, instead of requiring them?

It is possible to take a hard look at federal agencies and discover a few responsibilities they currently enjoy that might be better performed by states? If it can be done without gutting them, why not try? Shouldn’t states have a lot more to say about how federal lands are used within their boundaries? Those lands are enormously valuable in many respects and yet the states have little say in the leasing and development schemes of the federal government. And it is long past time we take a very hard look at the Department of Education (with a $63 billion budget) and find a way to turn that department into an adjunct to local efforts at teaching our children rather than as a repository for bureaucrats to carve out their petty empires. With educational achievement at historic lows, it is evident that at least some of that money might be better given to states and local school districts to use as they see fit.

The concept of federalism today is a far cry from what the Founders envisioned. They may have written the Constitution for a small coastal republic of 7 million citizens, but were prescient enough to give their creation the revolutionary ability to change with a changing country. Yet the basic concepts, separations and the freedoms granted by the Constitution must remain in place. By deciding that we can simply toss portions of the constitution aside because they are inconsistent with our political ideology puts us in the same company as the former Soviet Union, China, Fidel Castro and Hugo Chavez.

Now that we are a continental nation of 300 million – as diverse and vibrant a society that has ever existed -it is time to re-examine and reinvigorate the founding notion that power shared and dispersed among many is the bulwark against which no force can threaten our liberties. Resurrecting the ghosts of the past to discredit this notion should be met with the contempt it deserves.

Quote of the Day

“I cannot undertake to lay my finger on that article of the Constitution which granted a right to Congress of expending, on objects of benevolence, the money of their constituents.”

— James Madison, 4 Annals of Congress 179, 1794

Unconstitutional Procedure Will Be Used to Pass Unconstitutional Bill

House leaders are preparing to ram through ObamaCare this week without a vote. Not only is the legislation unconstitutional, but the process being used to pass it is unconstitutional. The House is preparing a rule that would consider the Senate-passed version of ObamaCare passed in the House even though members would never directly vote on it. That would violate Article 1, Section 7 of the U.S. Constitution.

Here is how the trick would work: In the House, the Rules Committee sets up the parameters for debate on legislation. House leaders are considering a complicated rule that would be structured so that a vote on the rule setting down the structure for the ObamaCare debate would allow the Senate’s version of health care reform to pass without a vote. First, there would be a vote on a rule. If the rule is passed by the House, then the House would vote on a health care budget reconciliation measure that is an amendment to the Senate passed ObamaCare bill. If that reconciliation measure passes, then reconciliation goes to the Senate and the ObamaCare legislation is deemed passed without a direct vote. The plan for the legislation is unclear. House leadership will either structure the rule to either immediately present ObamaCare to the President for his signature or they will hold the bill and deliver it only if the Senate passes a health care reconciliation measure. Either way, the Constitution and the American people are the losers.

Understand that this procedure is drafted in a way so your average American can’t understand it. The simple way to understand the situation is that the House is trying to pass a bill without a vote.

The Constitution states that the House and Senate are supposed to pass identical versions of a bill before the President can sign it into law. One of the reasons for this tricky procedure is to provide cover for moderate Democrats who don’t want to vote for the Senate-passed ObamaCare bill because it includes the federal funding of abortion.

Michael McConnell, Professor and Director of the Constitutional Law Center at Stanford Law School, explains it this way at the Wall Street Journal today:

Democratic congressional leaders have floated a plan to enact health-care reform by a procedure dubbed “the Slaughter solution.” It is named not for the political carnage that it might inflict on their members, but for Rep. Louise Slaughter (D., N.Y.), chair of the powerful House Rules Committee, who proposed it. Under her proposal, Democrats would pass a rule that deems the Senate’s health-care bill to have passed the House, without the House actually voting on the bill. This would enable Congress to vote on legislation that fixes flaws in the Senate health-care bill without facing a Senate filibuster, and without requiring House members to vote in favor of a Senate bill that is now politically toxic.

McConnell is right. The Constitution says that:

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law.

If a branch does not vote on a bill, then that bill did not pass. This proposed procedure seems to be a clear violation of the letter and spirit of the Constitution. There will be debate on the proper remedy for this constitutional affront, but all can agree that, at a minimum, House members can raise a constitutional point of order against the rule.

Liberals in the House understand that this process is hard to defend. Chris Frates at Politico writes about a leaked memo drafted by Assistant to the Speaker Chris Van Hollen (D-MD) intended to provide talking points to Democrat members when challenged on the unconstitutional process.

The Van Hollen memo also advised members to avoid talking about the process. “At this point, we have to just rip the band-aid off and have a vote — up or down; yes or no? Things like reconciliation and what the rules committee does is INSIDE BASEBALL,” the memo says. “People who try and start arguments about process on this are almost always against the actual policy substance too, often times for purely political reasons.”

Speaker Nancy Pelosi (D-CA) and the House Rules Committee have come up with a very complicated procedure to get ObamaCare to the President’s desk without House members having to vote directly on the bill. This procedure is going to be debated extensively this week and may be the key issue as to whether President Obama signs legislation to provide a de facto government-run health care system.

Rendering the Constitution Irrelevant

Throughout most of 2009, the liberal wing of the Democrat Party, the inhabitants of the White House, and the slavishly progressive mainstream media dismissed the Tea Party movement. They apparently assumed that the Tea Party was populated by the “fringe conservative” element of the Republican Party, which meant that their base was still solidly affixed. They apparently assumed that the Tea Party would not organize, which Tea Partiers have done – quite effectively. They apparently assumed that if they could force enough laws through by political will and curious expediency, the Tea Party would dissolve under the weight of new bureaucracies.

Moreover, leaders in the Republican Party foolishly believed that Tea Partiers would “return” to the fold after their period of wandering.

All of them were wrong.

Long before the Tea Party movement came into being, a quiet war was taking place in America. Popular talk-show host Glenn Beck has gained a huge following by connecting the dots between Cloward, Piven, Progressives, and the White House, which is symptomatic of the war. He has put together many pieces of the puzzle, and new pieces are fitting everyday. It’s no surprise he’s the darling of and inspiration for the Tea Party movement. He sees, and more Americans are beginning to recognize, that the goal of fanatical Progressives is not progress; their goal is rendering the Constitution irrelevant.

Progressives have long used the law, whether through the courts or the legislature, to force radical change. When propositions are repeatedly defeated in the public forum, progressives seek any and all alternative routes to push their agenda. They believe that they can effectively intimidate the American people, and strip them of their identity, through the weight of the law, regardless of Constitutional limits or safeguards.

Is it any wonder that they actively promote the flawed notion of a “living” Constitution? If the limits within the Constitution are malleable, they can be altered to expand the role of government on a whim. Is it any wonder that they slap the term “rights” onto initiatives or programs that are, in fact, privileges, thereby blurring the line between the two? They do not see rights as an inalienable, integral and inherent component of our humanity; rights, like “privileges,” are viewed as gifts of the State.

The more Americans they can convince of this twisted logic, the easier it will be to affect the kind of change informed Americans would otherwise reject.

Health Care and the Constitution

Let me expand on yesterday's post. Yesterday, we discussed (I monologued) on the opinion that the federal government does not have the constitutional power or authority to use tax dollars to give to other nations, either for humanitarian aid or for other kinds of foreign aid.

I feel the same way about health care.

Where in the constitution is the authority granted to the federal government to provide health insurance to citizens (and non-citizens, for that matter)?

The tenth amendment to the constitution says simply:

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.

In other words, any power not spelled out as being given to the federal government, is automatically given to the states or the people. If health care isn't a power granted to the federal government, then it doesn't have that power or authority. Am I wrong on this?

As far as I'm concerned, Medicare, Medicaid and ObamaKare are all unconstitutional.

Clearly, all of us who believe in the constitution should oppose ObamaKare in all its forms and any move toward Universal Health Kare. We should also oppose most of the Republican "alternatives," which also grant more power and authority to the federal government than the constitution allows.

As O'Reilly would say.... "Where have I gone wrong?"

The Earthquake and the Constitution

Natural disasters are great opportunities for politicians to gain political points and to look good. That, of course, is one reason the left went after Bush so voraciously after Hurricane Katrina. Bush did nothing wrong, of course, during the storm or the aftermath of one of the worst Hurricanes to strike that area, but the left COULD NOT allow Bush to look good in the aftermath of a natural disaster. Particularly one that they wanted to blame on him.

Today (Saturday), Chile was hit by an earthquake of 8.8 magnitude, one of the strongest ever recorded. Obama couldn't wait to get out on the White House lawn and offer his support to Chile. Of course, we haven't actually DONE anything, yet, but we can't waste the opportunity for Obama to LOOK GOOD doing it.

THe point this brings up is one that I feel particularly strong about, and that is the limited powers of government. I just re-read the constitution (again). I have always felt that the federal government has never been given the constitutional authority to take money from the citizens of the US (in the form of taxes) in order to send that money to foreign governments (many of which are run by dictators and warlords, and are full of citizens who dislike us).

Of course, every president since World War II has done that, and I'm not sure how you challenge the constitutionality of that action. Once the precedent has been established, the Supreme Court seems to simply ignore the constitution and just go with the flow.

While it's very "nice" for the US to help out nations like Haiti and Chile and other nations who are in need. But I don't see that the constitution gives the President or Congress the authority to send our troops and our dollars to those nations, even for humanitarian reasons.

If private citizens want to give money to programs and organizations (such as the Red Cross) to assist these nations in time of need, I think that's entirely proper and appropriate. However, my tax dollars should NOT be used to help or build other nations. Our nation is BROKE. We don't have the money to be sending elsewhere.

Am I wrong? Am I heartless?

Obama Exempts INTERPOL from Search and Seizure Restrictions

"Borrowed" from The Patriot Room:

The concept of granting immunity to foreign nationals in our country goes back at least as early as 1790 when we passed "An Act for the Punishment of Certain Crimes against the United States," wherein immunity was granted to foreign diplomats. (This Act was revised in 1798 by the (in)famous "Sedition Act.")

The immunities were not as broad as one would think, and that lack of a broad immunity has been tagged as a reason, among many, why the League of Nations failed. In 1945, at the same time as the United Nations was formed, we passed the United States International Organizations Immunities Act. This Act gave foreign diplomats many of the same rights as citizens and permanent residents - to enter into contracts, own real property, etc. Additional rights were given, and in particular was this:

Section 2(c) Property and assets of international organizations, wherever located and by whomsoever held, shall be immune from search, unless such immunity be expressly waived, and from confiscation. The archives of international organizations shall be inviolable.

This section of the Act is the legal force behind all those "diplomatic pouches" we see in movies that cannot be inspected.

Before we get our knickers in a bunch, there is logic to this immunity. While we like our Constitution and laws, other countries like their Constitution and laws. It doesn't matter if the concept of personal freedom is more expansive here. If we expect immunity in their country, we have to extend it to them here. So we're somewhat stuck - we need to dwell in reciprocity.

The issue has been litigated plenty, with DeLuca v. the United Nations, (41 F.3d 1502 (1994)) being one of the most important of recent vintage. Our courts have consistently upheld the concept of immunity for international organizations - even though to do so leaves an aggrieved American plaintiff with no legal recourse to correct their injury.

Along comes INTERPOL: The International Criminal Police Organization. INTERPOL "facilitates cross-border police co-operation, and supports and assists all organizations, authorities and services whose mission is to prevent or combat international crime."

In 1983, President Reagan signed Executive Order 12425:

By virtue of the authority vested in me as President by the Constitution and statutes of the United States, including Section 1 of the International Organizations Immunities Act (59 Stat. 669, 22 U.S.C. 288), it is hereby ordered that the International Criminal Police Organization (INTERPOL), in which the United States participates pursuant to 22 U.S.C. 263a, is hereby designated as a public international organization entitled to enjoy the privileges, exemptions and immunities conferred by the International Organizations Immunities Act; except those provided by Section 2(c), the portions of Section 2(d) and Section 3 relating to customs duties and federal internal-revenue importation taxes, Section 4, Section 5, and Section 6 of that Act. This designation is not intended to abridge in any respect the privileges, exemptions or immunities which such organization may have acquired or may acquire by international agreement or by Congressional action.

Through EO 12425, President Reagan extended to INTERPOL recognition as an "International Organization." In short, the privileges and immunities afforded foreign diplomats was extended to INTERPOL. Two sets of important privileges and immunities were withheld: Section 2(c) (presented in full text above), and the remaining sections cited (all of which deal with differing taxes).

And then comes December 17, 2009, and President Obama. The exemptions in EO 12425 were removed:

By the authority vested in me as President by the Constitution and the laws of the United States of America, including section 1 of the International Organizations Immunities Act (22 U.S.C. 288), and in order to extend the appropriate privileges, exemptions, and immunities to the International Criminal Police Organization (INTERPOL), it is hereby ordered that Executive Order 12425 of June 16, 1983, as amended, is further amended by deleting from the first sentence the words "except those provided by Section 2(c), Section 3, Section 4, Section 5, and Section 6 of that Act" and the semicolon that immediately precedes them.

What does this mean? It means that we have an international police force authorized to act within the United States that is no longer subject to 4th Amendment Search and Seizure. The "property and assets of [INTERPOL], wherever located and by whomsoever held, shall be immune from search, unless such immunity be expressly waived, and from confiscation."

INTERPOL, an international criminal police organization, is now poised to reside above the United States Constitution - in a place of sanctity beyond our FBI, CIA, DIA, and all other criminal investigatory domestic organizations.

President Obama has just placed our Constitutional rights under international law.

Constitutionality of Obamacare Challenged

Two republican senators are trying to stop Obamacare on the grounds of constitutionality. Whenever you have the time available, you may want to send Senators DeMint and Ensign handwritten thank you cards for actually possessing the testicular fortitude to stand up and take their oath to the Constitution seriously. (Unlike Harry Reid who wants to make sure that no future congress will be able to change death panel recommendations.)

From Senator DeMint’s senate site:

Ensign, DeMint to Force Vote on Health Care Bill Unconstitutionality

December 22, 2009 – WASHINGTON, D.C. – Today, U.S. Senators Jim DeMint (R-South Carolina) and John Ensign (R-Nevada), raised a Constitutional Point of Order on the Senate floor against the Democrat health care takeover bill on behalf of the Steering Committee, a caucus of conservative senators. The Senate will vote tomorrow on the bill’s constitutionality.

“I am incredibly concerned that the Democrats’ proposed individual mandate provision takes away too much freedom and choice from Americans across the country,” said Senator Ensign. “As an American, I felt the obligation to stand up for the individual freedom of every citizen to make their own decision on this issue. I don’t believe Congress has the legal authority to force this mandate on its citizens.”

“Forcing every American to purchase a product is absolutely inconsistent with our Constitution and the freedoms our Founding Fathers hoped to protect,” said Senator DeMint. “This is not at all like car insurance, you can choose not to drive but Americans will have no choice whether to buy government-approved insurance. This is nothing more than a bailout and takeover of insurance companies. We’re forcing Americans to buy insurance under penalty of law and then Washington bureaucrats will then dictate what these companies can sell to Americans. This is not liberty, it is tyranny of good intentions by elites in Washington who think they can plan our lives better than we can.”

Americans who fail to buy health insurance, according to the Democrats’ bill, would be subject to financial penalties. The senators believe the bill is unconstitutional because the insurance mandate is not authorized by any of the limited enumerated powers granted to the federal government. The individual mandate also likely violates the “takings” clause of the 5th Amendment.

The Democrats’ healthcare reform bill requires Americans to buy health insurance “whether or not they ever visit a doctor, get a prescription or have an operation.” If an American chooses not to buy health insurance coverage, they will face rapidly increasing taxes that will rise to $750 or 2% of their taxable income, whichever is greater.

The Congressional Budget Office once stated “A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States.”

A legal study by scholars at the nonpartisan Heritage Foundation concluded: “An individual mandate to enter into a contract with or buy a particular product from a private party, with tax penalties to enforce it, is unprecedented– not just in scope but in kind–and unconstitutional as a matter of first principles and under any reasonable reading of judicial precedents.”

Read the Bill? How about Reading the Constitution?

Recently, Sen. Thomas Carper, D-DE, and Rep. John Conyers, D-MI, scoffed at the idea that they should read the health care legislation working its way through Congress (hey, it's only a matter of life and death). That attitude has inspired the "Read to Vote" campaign--designed to get congressmen to pledge to "read every word of every bill before casting my vote."

Read to Vote's efforts earned them a condescending Washington Post editorial last month, complaining that their proposal "would bring government to a standstill." (Heaven forbid.) "To read all 1,427 pages of Waxman-Markey," the Post fretted, "it would take at least 12 hours -- tough on a tight legislative timeline."

Is reading the cap and trade bill tough? Tough. If you're planning to regulate every industrial process in America, you may have to do some heavy slogging.

True enough, the bills Congress passes have become increasingly impenetrable over the years. In Abraham Lincoln's first State of the Union, he worried about the growing complexity of federal law, but noted that, with a modest effort at revision, "all the acts of Congress now in force [could fit in] one or two volumes of ordinary and convenient size." Today, the Senate Finance Committee's 1,502-page health-care bill would take up more than that much space by itself.

Worse still, most of the actual "law" in this country--the rules that citizens have to follow, at pain of fine or imprisonment--is generated by unelected administrative agencies, which use broad authority delegated by Congress to add over 75,000 new pages to the Federal Register every year.

It's said that the Roman emperor Caligula posted new laws high on the columns of buildings so citizens couldn't read them and figure out how to avoid their penalties. He could have achieved the same effect by covering the country with such a dense thicket of rules that no one could tell what the law commands.

Legend has it that Caligula also made his favorite horse a senator. Considering how lightly most of our legislators take their constitutional obligations, you could probably do worse.

In February 2003, the New York Times reported that both parties had hired lawyers to run seminars for congressmen, explaining the requirements of the McCain-Feingold campaign finance law they had just passed. "I didn't realize what all was in it," said Rep. Robert Matsui (D.-CA); "A real education process," echoed Rep. Thomas M. Reynolds (R.-NY).

If congressmen can't be bothered to read a law that directly affects them, should we be surprised that they're not planning to read the health care bill, which won't?

But, even assuming we could force legislators to read the bills, would that lead to better government? Maybe not. Carper had a point when he said that modern legislative language "is so arcane, so confusing...[that] it really doesn't make much sense."

If congressmen had to read what they passed, they might draft shorter, more comprehensible bills. But one way to do that is by punting yet more lawmaking authority to the permanent bureaucracy, which can then issue its own mammoth set of unintelligible rules. That hardly solves the problem.

A better idea can be found in a resolution recently introduced by Sen. Jim Bunning, R-KY, requiring all new legislation to be posted online for 72 hours before consideration. That could put the distributed intelligence of the web to work, ferreting out the many devils in the details of proposed laws.

However, that's still just treating symptoms. Federal law has become incomprehensible because Congress has inserted itself into every area of American life. As James Madison explained, though, Congress's constitutional powers are "few and defined.... [to be] exercised principally on external objects," like foreign policy and international trade.

It's obvious to anyone who's read the constitution that, like many laws we currently have, the proposed health care reforms are unconstitutional. The problem is that challenging the law would be nearly impossible, and it's unlikely that a challenge would ever reach the Supreme Court.

Read the bills? It's more important for congressmen to read the Constitution. They'll be pleased to learn that it's short and written in plain English.