ObamaCare – The Final Straw That Keeps on Giving

During the process of passing ObamaCare, a reporter asked then Speaker of The House Nancy Pelosi if the health care legislation was Constitutional. Dumbfounded by the question, she responded with her own question: “Are you serious?” The question she was asked appeared inane and stupid to the incredulous Ms. Pelosi. Apparently anything Congress does cannot be wrong in her mind, excepting most things done by Republicans.

Too many politicians consider themselves unaccountable to anyone other than God (and some consider this characterization a demotion). The first test of any legislation should be its Constitutionality. Only long-term politicians consider Constitutionality as irrelevant, impolite or ignorant. Ordinary folks still consider the Constitution valid and an important protection against oppressive government.

Congress takes an oath of office to uphold the Constitution. For most politicians this oath is considered of little import, a quaint, ceremonial ritual from a bygone era. To them, it represents little more than useful pomp and circumstance to convince the public of government’s importance and goodness. After all, a group of 500 plus people needs such props to successfully exploit the other 300 million. Ceremony can be useful tool to convince the masses that you represent them and not yourself.

Ms. Pelosi’s fantasy world was jolted in the November elections. Then on January 1, 2011 Federal Judge Vinson, in a 78 page opinion in a suit brought by 26 states, found the health care law unconstitutional. This excerpt from the Judge’s ruling, with emboldening added, must have been painful reading for Ms. Pelosi:

Regardless of how laudable its attempts may have been to accomplish these goals in passing the Act, Congress must operate within the bounds established by the Constitution. Again, this case is not about whether the Act is wise or unwise legislation. It is about the Constitutional role of the federal government.

Ms. Pelosi was unequivocally reminded that the Judiciary is an equal branch of government, not subservient to Congressional wishes and whims. Unfortunately the joy of Ms.Pelosi learning this fact was not captured on video, depriving millions of YouTube viewers untold pleasure.

The practical effect of Judge Vinson’s decision is questionable. Ultimately a final ruling will likely be required by the U.S. Supreme Court. That may be a year or more away. According to Roger Pilon, “ObamaCare cannot be further implemented.” Yet, Pilon, also admits that ambiguous issues still exist, especially regarding the Administration’s intent to implement the program in spite of Judge Vinson’s ruling:

What would the remedy be if the federal Department of Health and Human Services were to continue implementing ObamaCare? If an injunction had been issued, HHS officials might be found in contempt of court. But without an injunction, there is no obvious remedy.

Ilya Shapiro recognizes the limitations of a district court decision, but is guardedly optimistic:

It’s hard to get too excited about a district court decision – this is one of several, and will be superseded by circuit and eventual Supreme Court decisions — but this decision in Florida v. U.S. Dept. of Health and Human Services is remarkable.  Most notably, the 78-page ruling is well theorized and engaging (Vinson’s opus is a joy to read compared to most stuff I have to wade through to understand what the courts are doing) and sets the stage for the appellate writings to come.  It puts “facts on the ground,” if you will.

Judge Vinson apparently believed an injunction redundant. A law ruled unconstitutional cannot be implemented. Vinson did not account for the arrogance and lawlessness of this Administration. Based on Obama’s (mistaken) belief that he can pick and choose the laws he wants to enforce, Judge Vinson should have been more specific.

The latest example of Administration lawlessness pertains to the Defense of Marriage Act. Newt Gingrich offered the following comments:

[Obama] swore an oath on the Bible to become president that he would uphold the Constitution and enforce the laws of the United States. He is not a one-person Supreme Court. The idea that we now have the rule of Obama instead of the rule of law should frighten everybody.

Some states (Alaska, Florida and Wisconsin) that opposed the Administration in court announced they will not implement unconstitutional legislation. In a bizarre response, it was reported the Justice Department asked Judge Vinson to order states to implement the law. If so, these folks are from an Alice in Wonderland world! Would any Judge require implementation of a law that he has declared unconstitutional? Some might, but Judge Vinson is not from Chicago.

Gingrich suggestion of impeachment with respect to refusal to enforce the Defense of Marriage Act would seem to be as valid as the implementation of an unconstitutional law. Unless and until Judge Vinson’s decision is overruled by a higher court, it is the law. That would certainly seem to be the case for the 26 states that participated in the decision, if not all the states.

Belief that Judge Vinson made an incorrect decision is irrelevant. So too, is the expectation that some future court will overrule. Until that happens, his decision remains the law. As such, any Congressperson voting to fund ObamaCare willfully violates his/her pledge to uphold the Constitution.

Justice Brandeis

The Law is not to be taken lightly. Government does serious damage believing it is entitled to choose which laws matter or create laws of their own. All laws matter! Nothing is more important to freedom than the Constitution and the Rule of Law. As Justice Louis Brandeis pointed out:

In a government of laws, the existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipotent teacher. For good or ill, it teaches the whole people by its example. If government becomes a lawbreaker it breeds contempt for law: it invites every man to become a law unto himself. It invites anarchy.

Just as Obamacare routed the Democrats in the election of 2010, it continues to plague them. For the Republicans, it appears to be the gift that keeps on giving. How many Democrats already out of office and those still in office wish they had never heard of ObamaCare? If Democrats were smart, they would vote with Republicans to overturn the legislation and start anew. Not doing so allows this open political wound to fester at the detriment of the Democrat party.

Repealing ObamaCare is seen as destroying the Obama Presidency. Most of the country believes that Obama has already destroyed his Presidency. To protect Obama and ObamaCare, the party seems intent on destroying itself.

Funding a law deemed unconstitutional is likely an impeachable offense, if not a legal issue. Republicans and Democrats need to restore respect and standing for the Constitution. That is the only way they can regain standing and respect from the citizens of the country. To do so, the first step should be to bring impeachment proceedings against anyone voting to fund an unconstitutional law Conditions for impeachment are vague and elastic. Congress has loyalties that go beyond party affiliations. Thus, it is likely that impeachment, even if deserved, may not occur.

The impeachment process should be started if a known unconstitutional law is voted to be funded, regardless of whether it is passed or not. Forcing the process will reveal the seriousness of Congress to changing “business as usual.” In the event that impeachment fails, voters can take matters into their own hands. Forcing the process identifies those supporting the Constitution and those not. Anyone voting against proceeding with impeachment those voting for an unconstitutional law are themselves guilty. They too should be voted out of office, regardless of political affiliation.

I am not an attorney (thank God!) nor a student of Congressional procedure. Thus what I have presented is my opinion of what should be done to protect the Constitution. Those more knowledgeable should feel free to correct any legal reasoning or defects. The important point is that we must re-empower the Constitution at the expense of the political class. If impeachment is not the answer, then the ballot box is.

The ultimate justice appears to be developing. Those who imposed the health care program against the wishes of the voters cannot escape justice. Many already have felt voter wrath and no longer hold office. Others may face impeachment or career change depending upon their continued support of ObamaCare.

The country should insist that Republicans force as many votes and/or showdowns as possible on this incredibly flawed legislation. Voters should observe these votes and take names. Legislators trying to move the legislation forward should be removed from office, regardless of whether they are Republicans or Democrats.

2 Comments

  1. Nicely done. The tendencies of Washington politicians to act beyond the limits of the Constitution is becoming just as common as false advertising. Perhaps more frightening is the latter instance was never really recognized to any degree, but rather melted itself into the framework of American commerce. This, of course, begs the question as to whether our political and legal system can take the same degree of watering-down as our economic system. The irony is that our economic system is what it is today for that very reason – individuals refusing to see our central banking system and subsequent policy choices for what they are. Rather, people would bind themselves to a sinking ship so long as it was with a Party rather than swimming to shore themselves. Keep up the good work!

    Jeremiah Dow
    http://www.kapitalcon.wordpress.com

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