By Dr. Harold Pease
This week commemorates Constitution day and week and as such it is well to remind our governments and elected officials, all of who have sworn under oath to abide by it, to reread and follow it. It is also well for our citizenry to do the same so that we can identify those who would take away our liberty and without regard to political party remove these dangerous people from their places of power.
Look around!! Our president spies on us through the NSA in complete disregard of the 4th Amendment to the Constitution and uses the IRS to intimidate and harass his political opposition, most notably conservative, religious and Tea Party groups. Moreover, he upends existing law as in 2012 when by executive order he refused to continue enforcing the deportation of a class of illegal emigrants. Or, in healthcare, some get a year to implement while others do not and Congress gets exempted. Today he no longer attempts to justify his numerous executive orders to any constitutional base and taken together his branch, including his over thirty unconstitutionally appointed czars, make far more rules on us than does our elected Congress. But he does want to take this nation into a totally unconstitutional war with Syria.
Look around!! Congress seems inept at best, unable or unwilling to investigate and bring to justice those in the government who deliberately allowed some 2,000 guns to go to the Mexican drug cartels who used these in some of the murders of over 70,000 Mexicans including our own border patrol Agent Brian Terry. They have shown themselves to be unwilling or unable to thoroughly investigate the four deaths of Americans in Benghazi, a scandal now a year old. Unwilling or unable to investigate, stop, and punish IRS agents using their positions to silence political opposition. Unwilling or unable to investigate, stop and punish NSA spying and storing indefinitely all electronic information on all Americans. Why? Because most who sit in Congress are party lap dogs justifying or condemning whatever on party lines instead of the Constitution.
As the President absorbs more and more of Congress’ law making powers, making Congress more irrelevant each day, they pretend all is well. While not guarding their own powers from an encroaching executive branch, they trample the rights of the states where all power not listed in the Constitution belongs. They have mocked the 10th Amendment and have been complacent in the demise of the first, second, fourth, fifth, sixth and ninth amendments as well. Indeed our liberties would have been better protected by the Boy Scouts of America who, in fact, may understand freedom better than they. There are a few members of Congress who do put the Constitution in front of party and career such as Rand Paul, Mike Lee and Ted Cruz but they are far too few.
Look around!!!! The Supreme Court no longer uses the Constitution, as understood by the Founding Fathers when written, as important. Past practice has replaced original intent and natural law as first consideration. Even international law has come to have more value then original intent in their rendered decisions. Even Justice Ruth Bader Ginsburg, advised Egypt to not modal their new constitution after ours because ours was too dated. The Court makes new law, a constitutional function of Congress alone, by ruling on an issue in such a way as to give it new meaning, thus new law. It is called judicial legislation. The laws of the land have been changed by dozens of such rulings the last fifty years.
Healthcare comes to mind. Congress never passed it as a tax and the political party passing it, and their President, Barack Obama, emphatically resisted any description of it as such. Nevertheless Justice John Roberts ruled it to be a tax, then argued that Congress can tax, therefore it was constitutional. The Court omitted the fact that the word health (or anything remotely similar) is nowhere in the Constitution and is therefore entirely a state issue, as per Amendment 10, until an Amendment to the Constitution ratified by three-fourths of the state legislatures moved health to the limited list in the Constitution. Healthcare by any previous combination of justices would have been 100 percent unconstitutional with or without the tax issue.
When the Supreme Court no longer protects the Constitution it falls upon the states to do so defending the 10th Amendment and using the Doctrine of Nullification (understood and endorsed by the Founders) and previously used in 1798, 1832, and 1852. But it is so poorly understood today that few can defend it, nevertheless it was and is the final check on an over reaching federal government.
When reading the Constitution this happy Constitution Day or Week, 226 years since its origin, please pay special attention to the list provided to each of these branches of the federal government. The concept of a list is so vital to our interpretation of the Constitution. If they were to do as they pleased no list would be needed.
By Dr. Harold Pease
Many may not be familiar with Article I, Section 7 of the U. S. Constitution that requires that “all bills for raising revenue shall originate in the House of Representatives.” This means that any law, which extracts money from the American people, can only come from the House. The problem is The Patient Protection and Affordable Care Act, known as Obamacare, originated in the U.S. Senate not in the House as constitutionally required. The Pacific Legal Foundation, a Sacramento, California based foundation, is pursuing the matter before the U.S. District Court for the District of Columbia.
So why does this matter, a tax is a tax? For thousands of years governments taxed their citizens with no limits. Rulers lived lavishly off the wealth extracted from their poor subjects with little or no mercy toward them—lavish physical structures and frivolous wars of conquest were too often the norm. The Founders wisely took this power from the rich and gave it to the poor themselves by requiring that the poor, then the majority, had to consent to any taxation over them. The power to tax is the only constitutional power exclusively given to the masses. The House of Representatives was the only branch of government designed to actually represent them as it is based upon population. The Senate was to represent the states, the people only indirectly.
As far as I know the United States is the first, possibly the only, country in world history that puts its tax base with the masses who pay the taxes. It is a priceless freedom. If we are over-taxed in the United States we have chosen to be and one body alone is responsible—The House of Representatives. No tax can constitutionally originate with the President or the Supreme Court, (even if Justice John G. Roberts, Jr. says that it is okay), not even the Senate, although it can modify as on other bills once originated by the House. The House is also in charge of spending. We must not let this freedom dwindle or allow the line between the two legislative branches to be blurred into oblivion.
In the Supreme Court’s decision of June 2012, it took great pains to establish that Obamacare is not a law passed under the Commerce Clause; this is a tax they ruled. Whether a fine, as the Administration argued throughout the case, or a tax as Roberts insisted, it is an extraction of money from the masses and therefore a tax and therefore must originate from the House, not the Senate. The philosophical switch created by Roberts made the constitutional error far more glaring. By letting origin slide the House looses its clear distinction on the origin of taxes and the people their right of first approval of taxation for generations yet unborn and probably forever.
What is worse it smacks of a sloppy cover-up by Senate Majority Leader Harry Reid. Now that the Supreme Court made healthcare constitutional by deeming it a tax, it mandated a House of Representative origin rather than the Senate. A House version HR 3200 was available but Reid did not like it favoring his own HR 3962, The Patient Protection and Affordable Health Choices Act. Prior to the Supreme Courts tax ruling the tax was called a fine, not a tax, so he reasoned that it did not make any difference which legislative body originated the fine. The ruling necessitated resurrecting a bill that had passed the House first but had not been acted upon in the Senate, the Service Members Home Ownership Tax Act of 2009 HR 3590, deleting its contents and pasting in the contents of the Senates bill HR 3962.
The Home Ownership Tax Act was a tax providing a first time home buyer’s credit to members of the Armed Services, never mind that it had nothing to do with healthcare and now, after being deleted leaving only the empty shell, had nothing to do with the Armed Services or home buying either. The only thing that Reid kept was the original date, September 17, 2009, which now deceptively confirmed that it preceded Senate action. Accomplices to Reid were the original authors of the deleted bill: Congressman Charlie Rangel of NY, and Senator Clare McCaskill of MO. This is the kind of morphing that reeks of illegitimacy and fraudulency (“Lawsuit to test Origination clause,” The Washington Times, April 8, 2013, p. 12. See Also www.Patriot Guardian.org).
What is even worse. If Reid had indeed simply pasted in his own bill into the dead Service Members Home Ownership Tax Act, as believed, this tax bill HR 3962, the one that became Obamacare, has never actually been before the House of Representatives, the only body actually authorized to originate a tax. Obamacare may be the only revenue-raising bill in American history originated, processed, and implemented by the Senate alone. Nothing could be more unconstitutional!!
If left unchallenged Obamacare severely damages Article I, Section 7 of the Constitution. As an accomplice, the Senate is unlikely to sympathize but you should find a friend in your Congressperson and governor. Each should have a vested interest in this power shift. Contact them with your own summation of the problem or send them a copy of this article.
Dr. Harold Pease is an expert on the United States Constitution. He has dedicated his career to studying the writings of the Founding Fathers and applying that knowledge to current events. He has taught history and political science from this perspective for over 25 years at Taft College. To read more of his weekly articles, please visit www.LibertyUnderFire.org.