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Are Mandates Unconstitutional?

Posted Dec 08 2009 6:29pm

Stanley Feld M.D.,FACP,MACE

There are a growing number of congressmen and constitutional lawyer that are challenging the constitutionality of President Obama’s healthcare bill.

The American Center for Law and Justice, is prepared to take the case to the Supreme Court and challenge its constitutionality if the bill is passed by Congress.

Senator Orin Hatch, a longtime member of the Judiciary Committee, said recently
“I think there’s a real constitutional issue there,”

“You know, the illustration they give all the time is: Well, states require people to buy auto insurance. Yeah, they do, if they want to drive,” said Hatch. “But here would be the first time where our [federal] government would demand that people buy something that they may or may not want.”

President Obama taught constitutional law in Chicago. He should understand the Bill of Rights. The justification for President Obama’s view is discussed beautifully in a Washington Post article by Ruth Marcus. The issue is between a strict interpretation of constitutional rights and a broad interpretation of interstate commerce.

President Obama’s bill being debated in Congress requires Americans to either secure or purchase health insurance with a particular threshold of coverage, estimated to cost up to $15,000/year for a typical family or pay a tax penalty. Such a purchase mandate has never been attempted.

The underlying purpose of this forced healthcare insurance purchase, coupled with the arbitrary price ratios and controls, is to require all citizens who do not qualify for government subsidy to buy artificially high-priced policies to subsidize the coverage for others. Its stated purpose is to increase the insurance pool. Increasing the insurance pool and increasing the deductible will presumably keep insurance premiums down.

I believe this will not solve the healthcare insurance problem.

A reader sent me letter that critiques President Obama’s healthcare bill. It is written by Michael Connelly a constitutional lawyer. I called Mr.Connelly and received verbal permission to publish his critique.

Michael Connelly’s critique also appears on his excellent and insightful blog site http://michaelconnelly.viviti.com/.

OBAMA HEALTHCARE BILL:

I have done it! I have read the entire text of proposed House Bill 3200
The Affordable Health Care Choices Act of 2009. I studied it with
particular emphasis from my area of expertise, constitutional law.


I was frankly concerned that parts of the proposed law that were
being discussed might be unconstitutional. What I found was far worse than what I had heard or expected.

To begin with, much of what has been said about the law and its
implications is in fact true, despite what the Democrats and the media are
saying.

  • The law does provide for rationing of health care, particularly
    where senior citizens and other classes of citizens are involved,
  • Free health care for illegal immigrants,
  • Free abortion services, and probably forced participation in abortions by members of the medical profession.
  • The Bill will also eventually force private insurance companies out
    of business and put everyone into a government run system.

  • All decisions about personal health care will ultimately be made by federal bureaucrats and most of them will not be health care professionals.

  • Hospital admissions, payments to physicians, and allocations of necessary medical devices will be strictly controlled.
    However, as scary as all of that is, it just scratches the surface.


In fact, I have concluded that this legislation really has no intention of
providing affordable health care choices.

Instead it is a convenient cover for the most massive transfer of power to the Executive Branch of government that has ever occurred, or even been contemplated.

If this law or a similar one is adopted, major portions of the Constitution of the United States will effectively have been destroyed.

The first thing to go will be the masterfully crafted balance of power between the Executive, Legislative, and Judicial branches of the U.S. Government.

The Congress will be transferring to the Obama Administration authority in a number of different areas over the lives of the American people and the businesses they own.

  • The irony is that the Congress doesn't have any authority to legislate in most of those areas to begin with. I defy anyone to read the text of the U.S. Constitution and find any authority granted to the members of Congress to regulate health care.
    This legislation also provides for access by the appointees of the Obama administration of all of your personal healthcare information,
  • Your personal financial information, and the information of your employer,
    physician, and hospital.
  • All of this is a direct violation of the specific provisions of the 4th Amendment to the Constitution protecting against unreasonable searches and seizures.
  • You can also forget about the right to privacy. That will have been legislated into oblivion regardless of what the 3rd and 4th Amendments may provide.
  • If you decide not to have healthcare insurance or if you have private insurance that is not deemed "acceptable" to the "Health ChoicesAdministrator" appointed by Obama there will be a tax imposed on you.
  • It is called a "tax" instead of a fine because of the intent to avoid application
    of the due process clause of the 5th Amendment.
  • However, that doesn't work because since there is nothing in the law
    that allows you to contest or appeal the imposition of the tax,

  • It indefinitely deprives someone of property without the "due process of law.

So, there are three of those pesky amendments that the far left hate so much out the original ten in the Bill of Rights that are effectively nullified by this law. It doesn't stop there though.

  • The 9th Amendment that provides: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people;"

  • The 10th Amendment states: "The powers not delegated to the United States by the
    Constitution, nor prohibited by it to the States, are preserved to the States respectively, or to the people." Under the provisions of this piece of Congressional handiwork neither the people nor the states are going to have any rights or powers at all in many areas that once were theirs to
    control.

I could write many more pages about this legislation, but I think you get the idea. This is not about health care; it is about seizing power and limiting rights.

Article 6 of the Constitution requires the members of both houses of Congress to "be bound by oath or affirmation" to support the Constitution. If I was a member of Congress I would not be able to vote for this legislation or anything like it without feeling I was violating that sacred oath or affirmation. If I voted for it anyway I would hope the American people would hold me accountable.

For those who might doubt the nature of this threat I suggest they consult the source.

Here is a link to the Constitution:
http://www.archives.gov/exhibits/charters/constitution_transcript.html

And another to the Bill of Rights

http://www.archives.gov/exhibits/charters/bill_of_rights.html

There you can see exactly what we are about to have taken from us.

Michael Connelly
Retired attorney,
Constitutional Law Instructor
Carrollton, Texas

None of these provisions will guarantee universal coverage, affordable healthcare insurance or improve the quality of medical care. President Obama has a chance to pass a historic healthcare bill that would Repair the Healthcare System. If this present bill passes it will not achieve his goal while increasing taxes, increase federal government power over our freedoms to choose, and increase out of pocket expenses.

Write to the President and congress.

The email address can be found at;

http://www.whitehouse.gov/CONTACT/

https://writerep.house.gov/writerep/welcome.shtml

http://www.senate.gov/general/contact_information/senators_cfm.cfm

The opinions expressed in the blog “Repairing The Healthcare System” are, mine and mine alone.

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