Jul 29, 2012 | Constitution, Healthcare, Immigration, Take Action
By Dr. Harold Pease
What if the Supreme Court became an arbitrator trying to please both sides rather than “letting the cards fall where they may,” ruling alone on constitutionality as designed? In the end neither side is really happy and the Court’s function is blurred or discredited. What if preserving its own image became more important to justices than defending the Constitution? Or worse, what if the Court forced a round peg into a square hole, so to speak, to force a decision not intended, or argued for by either side therefore creating new law—a function of Congress alone? What if all of the above were in one decision such as with the recent Supreme Court decision on National Healthcare? How can the states or people keep the Supreme Court in line with the U. S. Constitution? The answer is in the Constitution as understood by the Founders.
Our constitution first divided power between the states and the federal government with the powers given to the federal government listed, defined, and limited and those of the states left undefined and not listed, as per Amendment 10. This is known as federalism and is sometimes thought of as a marriage—shared and equal—neither the state nor federal government the master nor slave of the other.
The portion of power left to the federal government is then divided between the legislative, executive, and judicial branches. The down side of federalism (our marriage) is that the umpire is one of the three branches of government at the federal level and as such is likely to rule in favor of a strengthened federal government were it to arbitrate between the states and the federal government. It is equivalent to two adversarial teams playing basketball and the referee is a member of the federal team. The balancing component to this, potentially lopsided division of power, is the doctrine of nullification.
Is it constitutional to say no to the federal government when a state believes a Supreme Court decision to be unconstitutional? One having a limited knowledge of the Constitution would say no and cite Article VI, the supremacy clause, as the end of the matter. On matters listed in the Constitution he would be right, but this time the Supreme Court has ruled on something where it lacks authority to rule, clearly a state issue, and as such, if left unchallenged, certainly damages, perhaps even nullifies, the 10th Amendment of the Constitution, which leaves to the states all areas not delegated to the federal government. This understanding pre-existed any law on health by a couple of centuries.
To curb the umpire (Supreme Court), should he clearly favor one side, the Founders supported the doctrine of nullification. Rather than sue the federal government for having exceeded its constitutional power, the 26 states so doing should instead have followed the Idaho example and in essence said “not in our state.” The effort to grow the federal government beyond the listed bounds would have been unenforceable if enough states did so.
Such has two historical precedents. Thomas Jefferson in 1798 attempted to nullify The Alien and Sedition Acts created by his Federalist Party predecessors. These raised residency requirements for citizenship from 5 years to 14. Moreover, the law allowed the president to deport “dangerous” foreigners during times of peace and imprison them during times of hostilities. Anyone defaming or impeding government officials, including the president, was subject to heavy fines and/or imprisonment. Jeffersonians objected on the basis of the unreasonable empowerment of the president and the attack on the First Amendment, particularly freedoms of speech and press. They too said, “no will do.” Because nullification was better understood as part of the “balance formula” of the Constitution and because the offending law was designed to last only until 1801, (Federalists did not want it used against them should they lose the next election), nullification stayed in place.
Next to use the Nullification Doctrine was South Carolina with respect to the 1828 “Tariff of Abominations,” believed by them, and neighboring states, to be unconstitutional. Opponents to it declared it to be “null and void” within their border and threatened to take South Carolina out of the Union if Washington attempted to collect custom duties by force. President Andrew Jackson prepared to invade the state. A compromise Tariff of 1833 gradually lowered the tariff to acceptable levels and the issue faded away.
One might argue that the Civil War ended the Nullification Doctrine but the real root cause of the Civil War was the practice of slavery, (I am aware that the immediate cause was keeping the union together), which practice made a mockery of the whole liberty concept. The slave issue pre-dated the Declaration of Independence and I would need another column to show why the war did not exempt the nullification argument.
Critical to the success of the Nullification Doctrine is the number of states committed to it. Obviously one state or a few, unable to prevail at least a majority to follow, would be easily overpowered by an overwhelming federal government power. But if the 26 states, who sued the federal government on the mandate issue, now said we will not comply, the federal government would be forced to find a face-saving exit on the issue and back down. That is the final constitutional check on overreaching federal power—the one least talked about and understood. If, at this time, the states do not care enough to preserve their power they deserve not to have it, or liberty.
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.
Jul 17, 2012 | Constitution, Economy, Healthcare
By Dr. Harold Pease
The U.S. Constitution requires that states remain a republic and gives the federal government authorization to mandate such (Art. IV, sec. 4), but does it work the other way? Can the states require that the federal government remain a republic and not turn into a socialist state? With the Affordable Care Act one seventh of the economy is turned over to the federal government.
Such is the question posed by Arizona in a new initiative that just qualified for the November ballot. If passed it would give Arizonians two ways of ignoring federal law that exceeds the constitutional powers of the federal government as identified in the U.S. Constitution, either by vote of the Arizona Legislature with the signature of the Governor, or, by the people through a ballot measure. All other powers “are reserved to the States, or to the people,” as noted in Amendment 10 of the Constitution. Arizona acknowledges the U.S. Constitution as “the Supreme law of the land” but will add to her state constitution language prohibiting the U. S. Constitution from being violated by any government, including the federal government.
One of the reasons that the states took three years to ratify the constitution, as submitted by the Constitutional Convention in 1787, was because of their paranoia of big government. Having expelled British tyranny, the last thing that they wanted was to have it return in an American form. They wanted a list of “thou shalt nots;” things that the federal government could never do to them under any circumstances. They called it a Bill of Rights. In the 10th Amendment of that document, they made it clear that all power not listed belonged to the states so the “Arizona take” is clearly constitutionally implied. The federal government is to act only in the 17 areas listed in the Constitution. The word health, or anything like unto it, is not there so such is clearly a state issue. Regardless of the Supreme Court ruling and Justice John Robert’s judicial legislation, the federal government has stolen state authority and in doing so has violated the Constitution.
Both democracy and socialism are hostile to the basic elements of a republic which is decidedly weighted in limited government, is based upon natural inalienable rights, and favors individual differences rather than absolute equality in its philosophical orientation. How far into socialism we have traveled and at what point we are no longer a republic no one can say, at what point does gray become black or pink become red, but certainly one law turning over a seventh of the economy to the federal government is a giant step from a republic and should concern all. It does Arizona.
It isn’t just the one issue of health care where Arizona is concerned but it is the pattern of the never-ending enlargement of the powers of the federal government, at the expense of state prerogatives, and the 10th amendment, that is transforming the federal government from a republic, as understood by the Founders, into something else. It is Constitutional defilement to them and the use of Amendment 10 is central to the restoration of freedom from government and the return of checks and balances of which state jurisdiction is essential, before all power is housed at the federal level and we are no longer free.
Examples of federal overreach are everywhere. Proponents of this change in the Arizona Constitution cite federal speed limits and the federal ban on incandescent light bulbs, as examples of other intrusions into state power (Arizona’s Secession-lite plan, by Alex Seitz-Wald, July 6, 2012) but they could list dozens more. This has to stop they contend and with an overreaching compliant court, they are rightfully using the 10 Amendment tool to do so. Certainly in upholding the 10th Amendment to the Constitution other states should join them.
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 articles, please visit www.LibertyUnderFire.org.
Jul 9, 2012 | Constitution, Healthcare, Taxes
By Dr. Harold Pease
With respect to the Supreme Court’s ruling on National Health Care, Justice Anthony M. Kennedy said that the court majority “regards its statutory interpretation as modest. It is not.” Then, noticeably disturbed by the ruling, added. “It amounts to a vast judicial overreaching. It creates a debilitated, inoperable version of health care regulation that Congress did not enact and the public does not expect.” He called it “judicial legislation” and accused Chief Justice John Roberts of trying to “force on the nation a new act.”
Judicial activism is when a law of Congress is interpreted by the Supreme Court in such a way as to give it new meaning. George Washington warned us in his Farewell Address of the inclination of government to do so. “Let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed.” Usurpation, in his day meant twisting things around to extract meaning that was initially not there.
So what did Justice Roberts twist or legislate that changed the National Affordable Healthcare Act (Obamacare) as passed by Congress? At the top of the list, his rewrite called it a tax when 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. Rich Lowry, a political commentator, said it best. “Obamacare as passed by Congress had a mandate to buy health insurance and a penalty for failing to comply. Obamacare as passed by the Supreme Court has an optional tax for those without health insurance. Obamacare as passed by Congress required states to participate in a massive expansion of Medicaid, or lose all their federal Medicaid funds. Obamacare as passed by the Supreme Court makes state participation in the Medicaid expansion optional.” In short, “Obamacare as passed by Congress didn’t pass constitutional muster. Obamacare as passed by the Supreme Court didn’t pass Congress” (The Umpire Blinks, by Rich Lowry, The Corner, National Review Online, June 29, 2012).
Judicial Legislation or Activism is not new. The desire for the Court to “legislate” through decisions expressed itself more fully the last sixty years as it attempted to “right” perceived wrongs instead of sending the faulted legislation back to the legislative branch for correction by the peoples’ representatives. By altering legislative law it has moved into state prerogatives such as education, state residency requirements, and imposed federal standards of procedure on local police to name but a few. In broadening its power base, far beyond Constitutional restraints, it has almost destroyed the idea of two co-equal governments, one federal the other state, known as federalism.
In the National Affordable Healthcare Act the Supreme Court has effectively retrained further encroachment (mutilation) of the Commerce Clause but opened wide the interpretive door that the federal government can control anything it taxes. So, does this mean that if the federal government wishes to control free speech, press, assembly, religion, guns, or any other activity, it first simply levies a tax on that activity? Apparently judicial legislation creates a “need” for additional judicial legislation. God help us!!
We must return to our foundation the U.S. Constitution as written, without all the judicial or executive alterations that go beyond this document. According to Article I Section I, “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” There is no authority for either of the two other branches of government to make law—any law; and law made by Congress is specifically listed in Article I, Section 8 where 18 clauses identify the powers of the federal government. So, even Congress cannot make any law they like. The issue of health is not noted and is therefore, as per Amendment 10, entirely a state issue. The Supreme Court majority ruling ignored this long-term clarity and instead chose to violate the document they are charged with upholding.
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.
Apr 23, 2012 | Constitution, Healthcare
By Dr. Harold Pease
In light of the President’s recent concern, as expressed in the Wall Street Journal, that it would be “an unprecedented, extraordinary step” for the Supreme Court to “overturn a law [i.e., the Affordable Care Act] that was passed by a strong majority of a democratically elected Congress” (“Obama Warns Court” by Laura Meckler and Carol E. Lee.”), let me remind him that the measure barely squeaked by with a majority of seven votes in the democratically controlled House of Representatives (219-212) and in the Senate with a minimum number to avoid a filibuster—hardly a “strong majority.” Nor would such a decision by the Court be “unprecedented” or “extraordinary,” but these arguments need explanation another day.
My concern is with the article’s conclusion: “In his first public comments about the case since the justices first took it up last week, Mr. Obama appeared to be framing the political argument he would make should he have to face voters this fall after a loss at the high court.” If right, that the President’s strategy is to pit the majority against the minority of the population, to further democratize our system of government, then it must be stopped in its tracks. We are a republic, not a democracy!!
Allowing “a mere nine old people” to strike down what a majority want is certainly undemocratic and it does smack of unfairness. Majority rule is the heart of democracy. Nothing is fair in our government and nothing can be made to be fair without the total destruction of our form of government, a republic. Surely, President Barack Obama knows this, but the people are made to believe we are a democracy by the constant long-term use of that word by those holding high office and the media. An artful politician playing the “fairness card” can prey on the ignorance of the people to gain or retain public office. If enough come to believe that we should be a democracy, instead of a republic, they, unfortunately, can “fundamentally change America.” Is this what we have to look forward to in the debates this Fall should the Supreme Court rule against “Obamacare?”
How undemocratic are we? The Senate, initially chosen by the state legislatures—not the people—was created to serve the interests of the states, which is why we have two legislative branches rather than one—two perspectives, the House represented the people and the Senate the states. The president is elected by the Electoral College rather than by popular vote. Supreme Court members are chosen for life by the Electoral College “selected” president and confirmed only by the “state selected” Senate. Our entire system is undemocratic by design. The House alone is democracy.
Why are we so undemocratic? It is because we are not all equal in experience, wisdom, common sense, understanding of natural law, and knowledge as to how we maintain freedom from government. I ask my students how many months did they spend analyzing the propositions in the last election before they voted? Weeks? Days? Hours? Minutes? None? If only hours or minutes, why should their vote cancel one who took the privilege far more seriously? Why is the democratic notion of “one man one vote” not decidedly unfair to those who spend serious time contemplating the issues.
In a democracy the ignorant rule because they have the same power as the informed and there are more of them. Thomas Jefferson saw the harm in such when he wrote: “A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other forty-nine.” Alexis de Tocqueville, the famous French philosopher traveling America in the 1840s, foresaw the end of our liberty experiment when he wrote: “The American Republic will endure until the Congress discovers that it can bribe the public with the publics money.” That day is today! Both were aware of the demand for “bread and circus” made by those under democracy in Rome that ended freedom.
How did the Founders, who clearly understood the problems of democracy with respect to its failure to endure in both Greece and Rome, protect us from democracy? The answer was a republic that preserved the caring elements of democracy by instilling frequent elections with options in the House of Representatives. All war, taxes and impeachment powers originate with the House. If the House is upset much change can occur in just two years. The Senate and Presidency were less democratic with the Supreme Court the most undemocratic end of our government—totally immune from the erratic whims of the emotion of the masses.
Time-tested principles embedded in the Constitution had to be preserved. Difficult to understand concepts such as separation of powers, federalism, limited government, and all the rights listed in the Bill of Rights had to be protected from the majority because the majority can vote them away. The Founders knew that liberty could be destroyed by democracy, as had happened in the two republics before our own, and gave us our justices to protect us from democracy. So, Mr. President let them.
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 articles, please visit www.LibertyUnderFire.org.
Feb 23, 2012 | Economy, Healthcare, Take Action, Tea Party
By Dr. Harold Pease
Both parties have succumbed to the temptation of getting elected by promising ever more goodies from the public coffers, irrespective of constitutional limits, and to the point that they have irresponsibly enslaved our children with 15.25 trillion dollar indebtedness.
Everything is talked about in the presidential debates except this. We will just pretend it away. Why? Because both parties know that the cuts that have to be made to save the terminal cancer patient have to be drastic and advocating such to a population drunk with the idea that they are entitled to such is political suicide. Congress appears to be, or is, inept in solving this and other debt related problems.
Predicting a Super Committee failure, Freedom Works, a Tea Party affiliate, selected 12 of their own members and through the Internet invited 150,000 members to make suggestions on what should be done. Boldly they opened the unfunded liabilities door, Pandora’s box, the door neither party dares to open as potentially it could destroy career politicians and political parties.
What follows are their recommendations with respect to Medicare and Medicaid. Almost everyone knows that Medicare, 13% of the federal budget, growing at about 7% each year, is unsustainable. Formerly the favored method of controlling expenditures in this area was to limit reimbursement rates to healthcare providers rather than focus on fraud and the use of the free market to limit costs.
The Tea Party Debt Commission saw the Medicare program as outdated, inefficient, and corrupt and recommended six major changes that if followed would save, they predicted, $676,000,000 the first year and $2,030,843,000,000 in 10 years. These changes are first “let individuals opt out of Medicare under Senator Jim DeMint’s ‘Retirement Freedom Act.”’ Second, let all new Medicare beneficiaries after 2013 enroll in the Federal Employees’ Health Benefit Program (FEHBP) introduced by Senator Rand Paul as the “Congressional Health Care for Seniors Act.” Third, reduce Medicare subsidies to actual cost of hospitals’ graduate medical education. Fourth, maintain Medicare’s physician payment rates at the 2011 level. Fifth, convert the open-ended Medicaid program into a capped block grant to the states. And six, call on all states to reform their medical malpractice and product liability systems—tort reform.
Opting into the same Medicare program the members of Congress use, the second Tea Party change recommended, is much better for participants because it “relies on competing private insurers to provide benefits, and as a result has very little of the fraud and waste problems that plague today’s outdated and poorly designed Medicare system.” One wonders why Congress can make for themselves such a good system and leave us one with “somewhere between 10 and 20 percent of Medicare’s $450 billion annual budget being attributable to waste, fraud, and abuse….”
Converting Medicaid to block grants to states, Tea Party Debt Commission recommendation number five, is critical in stopping Medicare’s open ended liability. They argue that the program “has exploded into a semi-middle class entitlement that is bankrupting the states while providing low-quality care to poor families.” The conversion to grants “would give states the incentives and flexibility to focus scarce resources on those who truly need help.” It would also incentivize removing fraud.
Their answer to excessive medical malpractice awards that drive up medical costs for everyone was recommendation number six, state tort reform. They especially endorsed the “loser pays rule” so successful in the states that have it. Here those unsuccessful in winning frivolous lawsuits are punished thus discouraging such by others, especially lawyers, looking to benefit off the taxpayer. I once knew a woman who busied herself with multiple simultaneous frivolous lawsuits as a source of income because those sued would prefer to pay her, because it was less expensive, than to defend themselves.
Bottom line we can keep Medicare, even making it more efficient and sustainable, with six changes. It is not too late, but we need to realize our danger and move quickly to do so. Will Congress explore these changes with intent to make them? Not unless you ask them to do so.
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
Jan 31, 2012 | Healthcare
Those who oppose The National Defense Authorization Act. which authorizes the military to arrest, detain without trial, and deport to Cuba American citizens without benefit of Bill of Rights protection are encouraged to participate in a national demonstration in front of the offices of those U.S. Senators or Congressmen voting in favor of it encouraging them to rescind their vote. Learn more, see website below, about this demonstration Friday, Feb. 3 between Noon and 7:00 p.m. If unable to attend at least phone. If they voted against it thank them. Unfortunately Kevin McCarthy, my Congressman voted for it. His district office is 4100 Empire Dr Ste 150, Bakersfield, CA 93309. His local telephone number is 661-327-3611 and his Washington DC office is 202-225-2915. It’s about saving the Bill of Rights my friends.
http://www.govtrack.us/congress/vote.xpd?vote=h2011-932
