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Is ObamaCare Constitutional?

November 22, 2009

Glenn Beck’s concerns about the lack of constitutional authority for federal government spending and federal programs are always well-intentioned and often well-founded, but uncharacteristically Beck slipped up last week.

On his TV show he asked, “What’s in the House and Senate health care bills that is not in the Constitution? The redistribution of wealth.” Actually, Beck’s wrong on this one. Unfortunately, the redistribution of wealth –at least of income– is enshrined in the Constitution as the 16th Amendment. If Congress wants to use income taxes to fund a socialized healthcare system, there is nothing in the Constitution to stop it from doing so.

But other aspects of the proposed socialist healthcare scheme may be unconstitutional. It seems to me the smarter consitutional ground to use to attack ObamaCare is the seemingly totalitarian requirement to purchase health insurance. Never before in the history of the republic has the federal government imposed such a sweeping mandate on Americans.

Legal thinkers David B. Rivkin Jr. and Lee A. Casey argue that “The Constitution assigns only limited, enumerated powers to Congress and none, including the power to regulate interstate commerce or to impose taxes, would support a federal mandate requiring anyone who is otherwise without health insurance to buy it.”

Rivkin and Casey concluded

Of course, these constitutional impediments can be avoided if Congress is willing to raise corporate and/or income taxes enough to fund fully a new national health system. Absent this politically dangerous — and therefore unlikely — scenario, advocates of universal health coverage must accept that Congress’s power, like that of the other branches, has limits. These limits apply regardless of how important the issue may be, and neither Congress nor the president can take constitutional short cuts. The genius of our system is that, no matter how convinced our elected officials may be that certain measures are in the public interest, their goals can be accomplished only in accord with the powers and processes the Constitution mandates, processes that inevitably make them accountable to the American people.

Beck said on the same show from last week that if the Senate were to approve a motion over the weekend to move forward with debate on ObamaCare that ultimately the Senate would approve the legislation. Beck’s probably wrong on that point too.

The Senate did vote 60 to 39 to move forward with debate on the legislation but it’s far from in the bag. Many of the Democrats had to be bought off in order to vote to avoid a Republican filibuster. For example, Sen. Mary Landrieu (D-La.), had to be promised an extra $100 million for her home state of Louisiana in order to vote against a filibuster.

There are still plenty of opportunities to prevent a fascistic takeover over the nation’s healthcare system.

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39 Comments
  1. F. Swemson permalink
    November 23, 2009 12:11 am

    Matt;

    The genius of our system is that, no matter how convinced our elected officials may be that certain measures are in the public interest, their goals can be accomplished only in accord with the powers and processes the Constitution mandates, processes that inevitably make them accountable to the American people.

    You say that:

    “Unfortunately, the redistribution of wealth –at least of income– is enshrined in the Constitution as the 16th Amendment. If Congress wants to use income taxes to fund a socialized healthcare system, there is nothing in the Constitution to stop it from doing so.

    Yes… Lawyers can interpret it that way, but it still flies in the face of the basic principles of the Declaration of Independence.

    What possible meaning can the idea of “LIFE, LIBERTY AND THE PURSUIT OF HAPPINESS” have if we’re not allowed to keep the fruits of our labors?

    So how’s this working out for us lately ?

    Logic would dictate that they couldn’t get away with this, but when was the last time we saw reason and logic play any meaningful role in the deliberations of our lawmakers.

    It’s become an adversarial system. They no longer represent us the way our founding fathers intended. Instead, they represent only themselves, and with their pathological lust for power at any cost, what chance do we actually have for that magnificent document to protect us the way it’s supposed to ?

    The lawyers have seen to it that we can’t even understand what the words mean anymore…

    The one overriding principle that our system of government is based on is the sanctity of individual rights. If I’m hungry, that doesn’t give me the right to “TAKE” food from my neighbor. Therefore, since I don’t possess that right, how can I delegate it to the government to enforce for me ?

    As Ayn Rand said: NEED IS NOT A CLAIM !

    We saw this bull$hit reach the critical point when Slick Willy questioned what the meaning of “is” is….

    The document that we revere, was simply not strong enough to stand up to the assault made on it by what WIll Rogers described as America’s only true criminal class… “Congress”

    I have nothing but admiration for what the folks like Glenn Beck and David Horowitz are trying to do, but I’m afraid their measures are too little and too late.

    I don’t think we can win a battle of words with these liars and looters any more…

    I’m afraid that Thomas Jefferson’s “Tree of Liberty” is going to have to be nourished once again…. and soon !

    • Matthew Vadum permalink
      November 23, 2009 6:47 am

      I’m not endorsing redistributionism. Just saying the Income Tax Amendment allows it to an extent.

      • Michael D. permalink
        November 23, 2009 8:16 am

        Matthew,

        Again, the 16th Amd. permits the “collection” of money. It does not change the clear, absolute restrictions in the Constitution on what the money can be “spent” on.

        Regards,

        Michael

        • November 23, 2009 8:46 am

          I just can’t imagine the Supreme Court telling Congress it can’t spend money it collected constitutionally on purposes not stipulated in the Constitution.

          (I’m a huge fan of James Madison, by the way.)

          Socialized medicine has to be fought but the argument that the Constitution doesn’t permit the redistribution of wealth is, unfortunately, not a good one. The Constitution allows all sorts of horribles that lawmakers would be crazy to enact.

          Perhaps someone should start a movement to repeal the Income Tax Amendment which got the ball rolling for socialism in America.

          • Michael D. permalink
            November 23, 2009 9:10 am

            Don’t get me wrong. I am a big fan of repealing the 16th Amendment. But Congress has other ways of raising revenue. So then what do you do when Congress attempts to redistribute that revenue?

            The essential point here really is that the Constitution DOES narrowly restricts what Congress is permitted to spend money on; in spite of what the Left may say.

            The Madison quotes below are clear of the Framer’s intent. Plus the language of the Constitution is clear.

            The issue really is dishonest politicians and judges who betray their oath to uphold the Constitution.

            Others use stronger terms than my language of “dishonest” and “betrayal.” In some of his writings, Chief Justice Marshall has actually referred to the failure of someone to uphold their oath to the Constitution as treason.

          • The Inquisitor permalink
            November 23, 2009 9:19 am

            Perhaps you can’t imagine it, but I can. Many people could not imagine the Berlin Wall falling either. It’s time to take our country back. Concessions to precedent or any other kinds of concessions are not the way to do it.

          • winoceros permalink
            November 30, 2009 5:56 am

            My husband just picked up the new Madison biography; he’s going to review it for bookreporter.com. Have you read it yet?

      • The Inquisitor permalink
        November 23, 2009 9:07 am

        What you endorse or what I endorse isn’t the issue.

        No way does the Sixteenth Amendment allow redistribution. It provides for securing revenue, nothing else. The way that revenue is spent is strictly limited by the remainder of the Constitution.

    • November 23, 2009 8:40 am

      What possible meaning can the idea of “LIFE, LIBERTY AND THE PURSUIT OF HAPPINESS” have if we’re not allowed to keep the fruits of our labors?

      Exactly.

  2. howiem permalink
    November 23, 2009 4:47 am

    As we have come to the point that constitutionality is a discretionary and arbitrary decision of stacked courts and bought judges, the arguments may have no meaning whatsoever. Remember well the words of Milton Friedman,
    “Fundamental differences in basic values can seldom if ever be resolved at the ballot box; ultimately they can only be decided, though not resolved, by conflict.”
    Milton Friedman – Capitalism and Freedom

  3. The Inquisitor permalink
    November 23, 2009 5:30 am

    Beck is right. The Sixteenth Amendment grants the federal government the power to collect taxes on income. Period. It says nothing about how those taxes are to be spent. Spending is restricted by the remainder of the constitution.

    The Constitution enumerates eighteen areas of federal dominion and leaves the rest to the people or several states. None of those areas of dominion can remotely be interpreted as subsuming health care.

    • Freeme permalink
      November 23, 2009 6:30 am

      you’re absolutely right! Furthermore, the 10th Amendment covers all bases:
      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.

  4. David Thomson permalink
    November 23, 2009 5:59 am

    “None of those areas of dominion can remotely be interpreted as subsuming health care.”

    Your argument is very weak. Whether we like it or not, the Medicare bill passed some forty years ago is now a firmly established precedent. We need to cease going down blind alleys. The odds are the U.S. Supreme Court is unlikely to rule in our liking. Matthew Vadum’s position may be debatable abstractly over a couple of beers—but it is unassailable on a practical level.

    • The Inquisitor permalink
      November 23, 2009 6:35 am

      I don’t give a hoot about precedent. I care about the Constitution. When it come to the Constitution Beck is on solid ground.

      Why are people so cowardly? Give up the Constitution to precedent and you are lost. If the American people would wake up we could sweep away those precedents and restore the Constitution.

    • Swemson permalink
      November 23, 2009 12:37 pm

      Medicare itself was unconstitutional, and even if you could make an argument that it wasn’t, the deviations form the original intent of the bill certainly render it null and void..

      Only the people who paid into the system, were supposed to derive any benefits from it.. that’s not the way it is today.

      Furthermore the Medicare & Medicaid bills have been the direct cause of some of the worst fraud in American history, and with the govt paying the bills, nobody cares anymore about what things count. The Lawyers who feeding on the system like the vultures that they are, also boost the costs of our healthcare to absurd levels..

      Like everything else that the left does, they blame the free market system for thing that occurred as a result of their own meddling in the system itself, We haven’t had a free capitalist society in so many years, that nothing that’s happening no can legitimately be blamed on the free market.

      I fear that the only way to stop this is for ATLAS to SHRUGG. If the top 5% of earners in this society were to simply retire (go on strike) we could hasten the fall of our government by many years After the money stops coming in, (and they can only print so much) they’ll be forced to take actions to insure their survival that will turn the American public on them, as by that time, even the common folks will understand what’s really been going on.

      At that point I expect we’ll see lynching parties right in front of the capital steps.

      The global warming hoax is finally being exposed, and the rest of their lies be be exposed pretty soon, but in the meantime, we must be vigilant to not let them make any more major inroads into our freedoms and liberties.

      All they’re doing now is trying to engineer a crisis that’s so severe, that it will give them the excuse they need to declare martial law, and suspend further elections. If they can pull that off, then we’re going to be in for a slaughter, and unfortunately some patriotic Americans are going to pay the ultimate price to protect our freedoms and liberties.

    • In the Know permalink
      November 24, 2009 12:58 pm

      Medicare as it is today is unconstitutional. It was originally a voluntary, self funded entity that was non for profit. However, a democrat congress voted to raid it’s funding and changed it into the monstrosity we have today.

  5. Janet permalink
    November 23, 2009 6:02 am

    But let’s return to “the requirement to purchase health insurance”. I suggested to my husband that that mandate would appear to me to be unconstitutional. His reply, “automobile insurance is a requirement”, followed by my “yes, but only if you drive a car, and that is your option”. So, is that a legitimate rationale? And if so, wouldn’t these clowns in Congress who are trying so desperately to get a bill passed know that it will get to the Supreme Court, hopefully sooner rather than later?

    • In the Know permalink
      November 24, 2009 1:02 pm

      You mean to a Supreme court that recently added a judge who could care less about the law?

  6. Joseph White permalink
    November 23, 2009 6:08 am

    Nowhere in the constitution does it grant the government the right to be tyrants. I think what everyone is sort of overlooking here, are the clauses,

    1) If you don’t have health care insurance, you *Will* be fined anywhere from 1500 to 250,000 dollars.

    2) If you don’t pay the fine, you *Will* serve from 1 to 5 years in jail.

    This is extortion and tyranny, and is clearly against the law. The Federal government can not arrest you or detain you without good reason, and in my opinion, the lack of insurance isn’t a compelling reason.

    • Freeme permalink
      November 23, 2009 6:38 am

      You are right, IF we were operating under The Constitution and good old common sense rather than letting the Judges rule from the bench on these decisions. However, we have not been operating this country from The Constitution and according to TIME…”we’re all Socialists now”. Make sense?
      Socialism is just a watered-down version of communism…and that is waiting in the wings soon to be born from all the BILLS signed and delivered excitedly by this Draconian administration.

      • Swemson permalink
        November 23, 2009 12:42 pm

        Another question Joe, is where the hell are they going to put all these new criminals?

        The prisons are already overflowing and the courts are backed for years.

        There’s a chance that this may be mostly a bluff, which they’ll use only in a small number of limited cases when they have to teach someone of influence how to behave.

        • In the Know permalink
          November 24, 2009 1:04 pm

          There will be plenty of room after the criminals are released and employed as a domestic protection force as powerful as the military.

    • November 23, 2009 8:48 am

      ” The Federal government can not arrest you or detain you without good reason…”

      Ah, but now the Feds CAN arrest and detain you without good reason. The trial of KSM will establish a fun, new precedent in this regard. If KSM can be prosecuted in civilian court with all the due process and Constitutional protections of an American citizen, then why can’t the government arrest and detain an American citizen under some trumped-up charge involving “national security”?

  7. November 23, 2009 6:26 am

    How high must the percentage of imposed taxes on my income go until I become a servant to the government – Serving that which I can not directly benefit from? At what point will the US Constitution’s 13th amendment protect me, my family, my children’s families?

    • Freeme permalink
      November 23, 2009 6:44 am

      “if you have been duly convicted of a crime” then the socialist/commie judges can do whatever they want from the bench, right?

    • November 23, 2009 9:01 am

      You’re already a servant to the gub’mint. You work 192 days of the year to pay for your gub’mint to spend and regulate. That’s about 53%. You spend more than half of the year enslaved to the gub’mint. Think you’ll spend more or less time working for the gub’mint in the coming months and years?

  8. Carterthewriter permalink
    November 23, 2009 6:56 am

    Since the inception of the Constitution, our representatives have continued to find ways to subvert its intentions and now, have almost succeeded in nullifying it.

  9. Michael D. permalink
    November 23, 2009 8:12 am

    Dear Matthew,

    Perhaps you should rethink your claim that “Actually, Beck’s wrong on this one. Unfortunately, the redistribution of wealth –at least of income– is enshrined in the Constitution as the 16th Amendment. If Congress wants to use income taxes to fund a socialized healthcare system, there is nothing in the Constitution to stop it from doing so.”

    Sure the 16th Amendment lets government “collect” money.

    But government can still only “spend” money on constitutional matters.

    “Socialized healthcare” is nowhere to be found in the US Constitution.

    Neither is any provision for the “redistribution of wealth.”

    James Madison, the father of our constitution, explained, “If Congress can do whatever in their discretion can be done by money, and will promote the general welfare, the government is no longer a limited one possessing enumerated powers, but an indefinite one subject to particular exceptions.” And he was specific, “With respect to the two words ‘general welfare,’ I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.”

    James Madison is somebody who knew a bit about original intent. In 1794, when Congress appropriated $15,000 for relief for French refugees who fled from insurrection in San Domingo (now Haiti) to Baltimore and Philadelphia, James Madison (then a member of Congress) said disapprovingly, “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.”

    Thomas Jefferson said, “Congress has not unlimited powers to provide for the general welfare, but only those specifically enumerated.” That means only those powers enumerated in the Constitution.

    On another occasion, Jefferson opined “To take from one, because it is thought his own industry and that of his father’s has acquired too much, in order to spare to others, who, or whose fathers, have not exercised equal industry and skill, is to violate arbitrarily the first principle of association, the guarantee to everyone the free exercise of his industry and the fruits acquired by it.”

    The language of the Constitution is clear, as was the intent of framers like Madison. Programs like Social Security, Medicare, Medicaid, S-CHIP, etc. are clearly unconstitutional. We just have legislators, presidents and judges who betray their oaths of office by saying such legislation is permissible.

    As such, we are at a crossroads in the Republic. Either we restore America to the pre-Progressive principles that uphold and defend the Constitution, or those who betray it will eventually bring the Republic down.

  10. Sassamon permalink
    November 23, 2009 8:25 am

    Blanche (Dubois) Lincoln, “I know I fib a good deal. After all, a woman’s charm is 50% illusion”, and Mary, “Big Easy” Landrieu have sold our collective southern souls to the devil.

    • Carterthewriter permalink
      November 23, 2009 9:12 am

      May her jowls droop for her sins.

  11. Wayne permalink
    November 23, 2009 10:50 am

    Not being American I will only ask the question — what is the purpose of the constitution if not to protect the rights of the individual from the expanding and predatory nature of the power of the state? National health care isn’t the first instance of the state expanding its reach into the affairs of the individual — and socialism in it’s old disguise of a wolf in sheep’s clothing always makes national health care one of its major thrusts. Today represents late stage terminal cancer and is the Declaration of Independence and Constitution not the patient about top be wheeled out of the ward to the morgue?

    Of course before instituting National Health Care it helps to have invaded and conquered the education system and the media. So those previously conquered segments act as cheer leaders for those that would destroy the founding principles of the country and replace liberty with socialistic tyranny.

    • Carterthewriter permalink
      November 23, 2009 11:19 am

      Wayne, you have written a fine piece and we welcome your input. Sometimes it takes someone standing away to make some good points. That, you did, thanks

      • Swemson permalink
        November 23, 2009 2:02 pm

        Excellent Wayne !

  12. November 23, 2009 10:53 am

    Actually, you, too, are wrong when you say there’s nothing in the Constitution that can stop Congress if Congress “wants to use income taxes to fund a socialized healthcare system.” Article I, Section 8 limits what Congress can spend money on. If a program is not authorized in this part of the Constitution, that program may NOT be Federally-funded. “Health care” is not in the 18 categories listed in Article I, Section 8. Thus, no Federal-funding for “health care.” End of discussion — which would be the case if members of Congress kept their oath to support the Constitution. But, alas, most are liars, even to God, Whose Word (Romans 13) also does not authorize any civil government spending on “health care.” So, we have Godlless, un-Constitutional government. Tells you a lot about why the total cost of all unfunded Congressional promises is approximately $56 TRILLION, according to David Walker, former head of the oxymoronically-named Government Accountability Office.

    John Lofton, Editor, TheAmericanView.com
    Communications Director, Institute on the Constitution
    Recovering Republican
    JLof@aol.com

  13. David Thomson permalink
    November 23, 2009 12:23 pm

    “what is the purpose of the constitution if not to protect the rights of the individual from the expanding and predatory nature of the power of the state?”

    Life is cruel. The majority of the American public supported the 16th Amendment. They exercised their free will perhaps in a foolish manner. Alas, they also approved the amendment outlawing the drinking of alcoholic beverages. What can I say? Elections matter.

  14. Sassamon permalink
    November 23, 2009 12:42 pm

    I predict future happiness for Americans if they can
    prevent the government from wasting the labors of the
    people under the pretense of taking care of them.
    Thomas Jefferson

  15. eriand48 permalink
    November 27, 2009 1:24 pm

    The power to tax does not empower action: rather the power to act is enumerated and limted. and id so empowered to act, taxes colleected by the power to tax may be applied to actions empowered to be taken.

  16. eriand48 permalink
    November 28, 2009 8:37 am

    Let me try this again:

    You say: “Unfortunately, the redistribution of wealth –at least of income– is enshrined in the Constitution as the 16th Amendment. If Congress wants to use income taxes to fund a socialized healthcare system, there is nothing in the Constitution to stop it from doing so.”

    My response: You are wrong. It appears you believe the central government is empwered to act if there is “nothing in the Constitution to stop it from doing so.” You have it backwards, as it is just the opposite i.e., the central government is only empwered if there is something in the Constitution to permit it to do so. Its civics 101…just read the 10th amendment. So, you see the power to tax does not create a power to act. Rather, the power of congress to act is limted, as any law enacted must be based upon an enumerated power. Thus, the power to tax does not empower Congress; power to tax is no greater than the power to act. Taxes collected by the power to tax may only be applied to actions empowered to be taken by our constitution.

    • F. Swemson permalink
      November 28, 2009 3:09 pm

      Eriand48:

      You are exactly right.

      The key language is in Article 1 Section 8 which begins:

      Section 8. The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;

      Take it in context, and the meaning couldn’t be more clear.

      1: “For the common defense” obviously refers to the defense of the entire country and ALL of its citizens, not any specific part of or group of its citizens.

      2: It therefore follows that the words “and general welfare of the United States“ also refer to the entire country and ALL of its citizens.

      The idea that (for example) of the government taking somebody’s private property (as in the recent eminent domain cases) because it could be of more value to the community as a whole in another use, or because if developed, it could generate more tax revenues for the government, is a blatant and obvious violation of the meaning of the language above.

      The single most important building block of the foundation for our form of government, is that Individual rights are 100% sacrosanct.

      It’s absolutely unconstitutional for the government to use public money for the benefit of any individual or group of individuals, to the exclusion of all others.

      An excellent story that illustrates and explains this principle can be found at the following URL.

      If you haven’t read it, I strongly urge you to do so.

      http://www.garymcleod.org/1/ConstitutionSoc/davy.htm

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