Pushing back against the unconstitutional overreach of the federal health care legislation is priority number one for many liberty and tea party groups in the Great State of Tennessee.  Many ideas have been floated by various groups throughout the country as to the best means of revoking the federal health care legislation.  Several interesting ideas have been proposed, among them are federal lawsuits, interstate compacts, and state nullification. 

When one takes a critical look at these options, it becomes clear that all three of these options boil down to a simple question.  Do we ask permission from the federal government to undo Obamacare or simply undo it?

Federal Lawsuits: Asking Permission from the Federal Courts to Exercise Our Constitutional Rights

A point to be made with regards to lawsuits is that they will be pursued in FEDERAL courts.  We will be asking the federal government to police itself, which it is most likely unwilling and, quite frankly, unfit to do.  The judges in these courts are appointed by and employed by the federal government, draw a federal paycheck, and will most likely be unwilling to “bite the hand that feeds them” as it were.  The federal court system has proven time and again that it most likely will rule on the side of expanding the role of the federal government, as it is a part of the vast federal bureaucracy whose primary concern is perpetuating itself.

Further, as Thomas Jefferson wrote, the federal government, via the courts or any other system it devised, does not have the exclusive right to judge what it can and cannot do.  In his words from the Kentucky Resolution of 1798:

Resolved, That the several States composing, the United States of America, are not united on the principle of unlimited submission to their general government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes — delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force: that to this compact each State acceded as a State, and is an integral part, its co-States forming, as to itself, the other party: that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.

It is clear from Jefferson’s statement that the federal court system, as part of the federal government, does not have the exclusive authority to judge what is and is not constitutional.  The state governments have equal authority to the federal government in judging the constitutionality of any federal legislation.  For the states to go and ask the federal government for permission to judge the constitutionality of the federal health care law is ridiculous and counterproductive – the states already have this power and do not need the federal court system’s permission to exercise it.

Interstate Compacts:  Asking Permission from the U.S. Congress to Exercise Our Constitutional Rights

While Interstate Compacts are an interesting idea in theory to challenge Obamacare, ultimately they do have to be ratified by all participating states and then by the U.S. Congress per Article I, Section 10 of the Constitution.   Again, this puts the states in the role of asking the federal government for permission to exercise the powers already guaranteed to them in the Constitution.  While such a compact might make it through the incoming House of Representatives, it is hard to believe that with the Senate still controlled by the majority who passed the federal health care legislation would approve an interstate compact that would reject the very legislation that they consider one of their greatest accomplishments. This leaves the states in the position of waiting years for a sympathetic House and Senate, if one ever comes into power, and by then the federal health care legislation would already be fully implemented.

The states don’t need to ask for further permission from the federal government through Congress to exercise the powers already granted to them by the Constitution, they already have these powers.  The states just need to use their existing powers to reject Obamacare!

State Nullification:  Exercising Our Constitutional Rights Whether the Federal Government Gives Us Permission or Not

We as Tennesseans must exercise our constitutionally guaranteed rights, whether or not the federal government wants to give us permission to do so.  Tennessee does not need permission from federal courts or any other federal agency to exercise the powers guaranteed to it under the Constitution and the Tenth Amendment. Our best hope is nullification, and encouraging our legislators and governor to have the courage and conviction to tell the federal government that the federal health care law is null and void within the boundaries of the state of Tennessee, and further enforce boldly penalties for any agents of the government who try to enforce these provisions of federal law.

Nullification requires that the state government PROTECT the people of Tennessee from the encroachment of the federal government on their liberties, not just pass non-binding resolutions stating “we don’t like this.”  By joining with other states that have already passed or soon will pass legislation to nullify Obamacare, Tennessee has the power to thwart the federal government’s ability to implement the unconstitutional health care legislation.

Nullification is the solution to federal overreach, such as Obamacare, proposed by Thomas Jefferson and James Madison in 1798 with the Kentucky and Virginia Resolutions, legislation that those states used to nullify the unconstitutional Alien and Sedition Acts in 1798.

James Madison declared in the Virginia Resolution that it is the duty of the State government to protect its citizens from the “evil” of federal overreach:

…the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.

Considering these opinions came from the Father of the Constitution and his mentor (and writer of the Declaration of Independence), I will take their opinions on nullification and constitutional law any day over those of any federal judge or congressional approval/disapproval of an interstate compact.

Nullification requires active and engaged citizens, legislators, and governors who are willing to stand up and fight for what is right and what is constitutional.  There is no easy option, but nullification will by far be the most effective, if we are willing to do the work required to see it through.  The bottom line is this – are we willing to exercise our constitutional rights whether the federal government gives us permission or not?

To download a copy of the Tenth Amendment Center’s model Federal Health Care Nullification Act – click here.  Please share a copy of this legislation with your state legislators.

Lesley Swann [send her email] is the state chapter coordinator for the Tennessee Tenth Amendment Center and founder of the East Tennessee 10th Amendment Group. She is a native of Anderson County, Tennessee.

Copyright © 2011 by TenthAmendmentCenter.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given.

With the executive branch of the federal government making Obamacare headline news once again by issuing regulations regarding end-of-life counseling – while the same law silently threatens ‘to generate over 100,000 pages of enabling regulations’ absent any congressional debate or vote – now would be an excellent time to revisit Article I, Section 1, of the U.S. Constitution.

Art. I, Sec. 1, states simply enough, ‘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.’

But is the Congress the only institution of the federal government currently exercising those legislative powers? The answer, as illustrated above, is clearly No. The bureaucracy of the executive branch is and has been unconstitutionally exercising the legislative power for decades.

And let there be no mistake: The rules and regulations issued by the executive bureaucracy are laws, though they are not called laws. The legal definition of ‘law’ should suffice to prove this. According to William Blackstone, a law is

“A rule of … conduct prescribed by the supreme power in a state, commanding what is right and prohibiting what is wrong.”

(See also other legal definitions from this web site.)

Furthermore, law is ‘binding’ on the people of the land and ‘enforced by a controlling authority.’

All of these characteristics of law apply to the rules promulgated by the federal executive.

But there is only one way prescribed in the Constitution for enacting a new law: passage of a proposed bill by both the House and the Senate. The role of the executive branch is secondary; it is Congress alone that is the primary cause in matters of legislation. The President may sign or not sign a bill, in either of which cases it becomes law. He may veto a bill passed by Congress, but his veto may be overridden, in which case the bill still becomes law. (See Article I, Sec. 7.)

Other than signing, not signing, or vetoing proposed laws, the only other function of the federal executive branch with regard to legislation is ‘to take Care that the Laws be faithfully executed’ (Art. II, Sec. 3).

If it be argued that the executive branch needs to have the flexibility to write rules to execute the laws passed by Congress, even this argument has been answered in the text of the Constitution in the famous Necessary and Proper Clause (Art. I, Sec. 8): ‘The Congress shall have Power … To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.’ The legislative branch alone – not the executive branch, or any other ‘Department or Officer’ of the federal government – is granted the power to write rules governing the execution of laws it passes.

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So the Congress is supreme according to our Constitution when it comes to passing new laws.

What does this mean, then? That there is another constitutional basis for declaring many federal regulations decreed by the executive bureaucracy ‘unauthoritative, void, and of no force’, whether regarding health care, the environment, agriculture, etc.

‘Legislative supremacy’ let us call this constitutional principle, and let us define it thusly: Only the U.S. Congress may pass laws, or any rule or regulation having the characteristics of law. Should any other branch, department, or officer of the federal government issue anything purporting to have the force of law, that fraud ought to be ignored and resisted by state and local governments and the citizens themselves in the way deemed most prudent.

If any of the constitutional scholars at the Tenth Amendment Center or elsewhere would like to help clarify and buttress this principle, such aid would be gratefully received.

Finally, I wish to thank the Texas Public Policy Foundation for giving me this idea in the first place via a wise proposal of their own:

‘Our representatives in Congress can have an important role in stopping federal overreach. A simple amendment to the Administrative Procedures Act could establish that the Supremacy Clause of the Constitution (Article VI) shall not apply to regulatory action, and that in cases of conflict between an administrative agency rulemaking and state law, state law prevails.’ (Ted Cruz and Mario Loyola, Reclaiming the Constitution: Towards an Agenda for State Action, P. 16. Available for download as a PDF file here

Walt Garlington is the founder of the Louisiana State Sovereignty Committee.

Copyright © 2010 by TenthAmendmentCenter.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given

EDITOR’S NOTE: Joe Wolverton, II will be joining us as a featured speaker at Nullify Now! Chattanooga. Get tickets here – http://www.nullifynow.com/chattanooga/ – or by calling 888-71-TICKETS

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Late last week a federal judge ruled that according to the settled case law undergirding the jurisprudence of the Commerce Clause, the individual mandate of ObamaCare is constitutional.

According to the holding in the Michigan case, one of at least fifteen similar challenges wending their way through the federal court system, ObamaCare’s requirement that all individuals, regardless of personal choice, purchase a qualifying health insurance plan does not violate the Constitution, in fact it is but another of an acceptable example of “activities that substantially affect interstate commerce.” It is that precise phrase — “substantially affect interstate commerce” — that set the threshold over which the Supreme Court for decades has determined that challenges to Congress’s Article I power to regulate interstate commerce must climb.

Judge George C. Steeh, a Clinton era appointee, sided with the Obama Administration in his ruling that if an individual does not buy health care insurance, he is making a conscious decision to go without health insurance and if enough people make the same mistake, then such a decision “viewed in the aggregate, [will] have clear and direct impacts on health care providers, taxpayers and the insured population who ultimately pay for the care provided to those who go without insurance.” That is to say, if you don’t obey the ObamaCare mandates, you are increasing the cost of obedience to the national government for the rest of the country and that sort of dissent is incompatible with the principles of statism now being judicially enforced.

The “rational basis” for the decision cited by Judge Steeh is that increased cost of health care affects everyone and since everyone, at one time or another, sips from the stream of commerce, the affect is substantial and thus Congress is empowered to manipulate the flow into and out of the stream that after years of judicial misinterpretation of the Constitution and usurpation of the legislative power, has reached Nile-like proportions.

Despite this setback, the other legal challenges to ObamaCare will proceed as scheduled. The Florida case, perhaps the most publicized as it was filed by attorneys general of 20 states, will likely have a hearing on the merits of the case as currently docketed on December 16. The complaint filed by Virginia attorney general Ken Cuccinelli will be heard as early as October 18, provided that all goes according to the timeline currently in place.

In the case of ObamaCare, as in the case of so many other cases that have expanded the reach of congressional regulating authority, the federal courts are complicit in the systematic constricting of the sphere of personal liberty. What were once the economic choices of free individuals have become the incriminating evidence of aggregated crimes. You needn’t participate materially in the restricted activity if your participation, no matter how slight, can be combined with similarly insignificant contributions to form one substantially affecting whole.

What recourse remains available to Americans determined to cling to the liberties that have made us free and kept us the envy of all nations? As this ruling and its antecedents clearly demonstrate, the courts offer no hope as they have tied their wagons to the horses of tyranny running roughshod over our Constitution. There is one place to which we may turn for refuge, however. A place protected by law and armed with the natural and unalienable sovereignty by which all its citizens were “endowed by their Creator.”

The several states are the answer. Not in their present and frankly debasing role as plaintiffs in lawsuits against the federal government, but rather in their traditional and ennobling role as bulwarks of liberty and checks on the unconstitutional imbalance created by federal overreaching. While states are unarguably free to assert their natural right of self-government in the manner they deem most fitting, history and the timeless principles of constitutional law have provided a sound and permanent option, one absolutely independent of federal oversight and unsusceptible to the conspiracy of tyranny consisting of the legislative, executive, and judicial branches of the national government.

Nullification has been written about in this magazine by this author and others since before the enactment of the ObamaCare package. We have touted its benefits and promoted its worthiness as a foil to the mandates of ObamaCare and other similarly untenable laws passed by a power-mad Congress.

In a nutshell, nullification is the principle that each state retains the right to nullify, or invalidate, any statute passed by the national government that the state regards as unconstitutional. This powerful weapon against tyranny is in the arsenal of every state. As the sovereign states formed the union, and as creators of that compact, they hold the ultimate authority as to the limits of the power of the central government to enact laws that are to bind the states and the people. That is to say, may the creation be more powerful than the creator?

As cited previously in this magazine, the Founding Fathers were very clear as to their views of this matter. James Madison, writing in the Federalist Papers, declared very plainly that the states were sovereign and that they relinquished none of that sovereignty in the act of confederating to form the Constitution. No clause or phrase of that document may be accurately interpreted to exalt the national government to a position above the states or the people.

In light of Judge Steeh’s decision in the Michigan case (the plaintiffs in which have expressed their intent to appeal the decision), perhaps it is time for that bloc of Americans who are yet determined to uphold the Constitution, to retrench the federal government to within the boundaries of constitutional enumeration, and to steadfastly defend the sovereignty of states and ultimately of themselves, to elect men and women to the state legislatures who are equally committed to exercise the privileges and obligations attendant to their status as sovereigns and nullify ObamaCare and all other similarly oppressive statutes.

In time, perhaps the pursuit of such a program by a plurality of enlightened state assemblies will “substantially affect” the balance of power in this nation and restore the delicate equilibrium of federalism that is the hallmark and the genius of the American experiment.

Apart from his work as a journalist, Joe Wolverton, II is a professor of American Government at Chattanooga State and was a practicing attorney until 2009. He lives in Chattanooga, Tennessee. Since 2000, Joe has been a featured contributor to The New American magazine. Most recently, he has written a cover story article on the Tea Party movement, as well as a five-part series on the unconstitutionality of Obamacare.

This article originally appeared in The New American magazine – and is republished here with permission of the author.

Unbelievably brazen… the “State of Oregon” has replied to my inquiry on how…. When the state coffers are at an unprecedentedly low state, the Attorney General is traveling the country offering friend of the court briefs in support of the largest unfunded mandate ever to leave the town limits of Washington D.C. (Not to mention the death-bell of all liberties as we know them.)

I decided that I would disassemble the letter and lay it out for all to see. Please note that the paragraphs in italics are the replies/comments from the Oregon DOJ (Kate Medema, Legislative and Constituent Affairs, Office of Oregon Attorney General John Kroger), and the paragraphs below are my continued replies.

Thank you for contacting the Oregon Department of Justice (DOJ) regarding the landmark health care overhaul recently approved by the United States Congress. We appreciate your taking the time to comment on this important issue. I apologize for the delay in our response.

The Attorney General agrees that the constitutionality of federal health care legislation is a matter of great importance. Based on our extensive review, DOJ is of the opinion that the health care reform bill is constitutional and that challenges to the legislation are without merit. Legal scholars around the nation have expressed similar views. As a result, Attorney General Kroger will not waste taxpayer dollars on filing merit-less litigation to challenge the legislation.

Okay, if you say it is Constitutional… then what enumerated power gives the authority to the Federal Government to take over the administration of healthcare services in the entirety of the private sector? By what authority is it legal to require, as a condition of our mere existence, that we purchase a product that we may not desire, or may not need!? As I have read the Constitution, over and over again – I see no such authority. That means that the Federal Government is usurping STATE authority and acting arbitrarily (the definition of tyranny).

While the state of Oregon has general governmental authority, and thus can enact items of this nature (the individual mandate excepted), the Federal Government is outside of their jurisdiction. There are no powers in the Constitution which give D.C. this right. And is it not “necessary and proper” to the carrying out of any other powers in the Constitution.

Historically, opponents of reform have turned to the courts when they have failed to muster the votes to block major legislation. The Social Security Act, the Civil Rights Act and the Voting Rights Act were all challenged on constitutional grounds and all three of these monumental pieces of legislation were upheld by the courts. We expect a similar result in this case.

Not to oppose reform, but if we have not read all the pages in this monstrosity of legislation, how can we be expected to follow the law? I do not know any citizens who have the requisite time and/or energy to spend nearly a week going through the U.S. legal code to check their own compliance to this law, nor do I personally have the resources to pay a lawyer to do the same.

Couldn’t it be that people who are challenging this law may be more concerned with the ability of the average citizen to comply with this law, and not the further subjugation of those who cannot afford health care? Might it alternately be true that citizens may oppose this statute based on the fact that a law, which requires frequenting a certain business or being in defiance of the law, is an infringement on the rights of those so bound?

Attorney General Kroger is a military veteran and knows well the sacrifices that have been paid by those who fought to defend our Constitution. After his time in the Marines, Attorney General Kroger was a law professor and he closely studied the Constitution and fully understands its importance as the foundation of our legal system.

If the Attorney General has – as he has said – studied the Constitution, I wish he would answer the questions I raised above. Did I miss an Amendment to the Constitution, or are you just being a shill for the administration in D.C. because you share the same party affiliation? You make a mockery of the legal system when you ignore the common rules of construction under which the Constitution is supposed to be viewed.

Although we recognize this may not be the response you desire, please know that we are grateful to engaged citizens like you who take the time to express their views and keep us informed. Feel free to stay in touch with our office if you have any future questions or concerns.

Well, I hope you will answer all of my questions in the future with the same doublespeak you have exhibited here in this dismissive letter.

—————End —————-

It is one thing not to defend the rights of the citizens of our state, but now the Government of the State of Oregon is actively trying to play a role in the oppression of the entire country. With the state having a $1 billion budget hole, they somehow find the money to use resources to actively support the enactment of the largest unfunded mandate in history, as well as the largest infringement of our rights in generations!

Through the filing of briefs in support of this bill and the traveling of Attorney General Kroger, we are wasting money and working against the best interests of our state – and of the Constitution itself.

Tim Reeves is an 11 year veteran of the U.S Navy, and is now an engineer, He grew up in Michigan, but has resided in the Pacific NW since 1992. He’s the State Chapter Coordinator for the Oregon Tenth Amendment Center.

Copyright © 2010 by TenthAmendmentCenter.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given

Federal Health Insurance Mandates: Why You Can’t Oppose them and Support Federal Marijuana Bans at the Same Time.

Is there any limit to what the Commerce Clause allows Congress to do?   Let’s take a look at the Commerce Clause, which states, “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;”

Though the clause has been extended by the U.S. Supreme Court in an almost continuous fashion since the Constitution was ratified, its 1942 decision in Wickard v. Filburn was a monumental extension.  In issue in Wickard was the ability of Congress to regulate how much wheat a farmer could grow, when the wheat was not going to be traded in the market and would be used for the farmer’s own consumption.  Filburn was prosecuted for growing 23 acres of wheat in the face of a federal statute allowing only 11.1 acres to be grown.   Filburn argued Congress had no authority to restrict how much wheat he could grow because the excess wheat he was growing was for his own use on his farm and not for sale on the market.  Thus, he claimed the excess wheat would never become involved in interstate commerce.

In holding that Congress did not exceed its authority, the Supreme Court stated:

One of the primary purposes of the Act in question was to increase the market price of wheat, and to that end to limit the volume thereof that could affect the market. It can hardly be denied that a factor of such volume and variability as home-consumed wheat would have a substantial influence on price and market conditions. This may arise because being in marketable condition such wheat overhangs the market and, if induced by rising prices, tends to flow into the market and check price increases. But if we assume that it is never marketed, it supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market. Home-grown wheat in this sense competes with wheat in commerce.

(emphasis added).

Above, it is seen that regulating commerce has been interpreted to mean regulating things that “could affect” interstate commerce.   The Court ruled that excess wheat “tends” to find its way into interstate commerce, without any proof that the wheat in question actually does – much like assuming that since black markets tend to arise when government limits supply, Filburn was already in that class of persons who trade in black markets.   One would have to ask whether it is an appropriate standard of judicial review for our Supreme Court to assume guilt, rather than innocence.

However, the Court partly dodged its assumption of guilt by pointing out that even if Filburn was an otherwise law-abiding citizen, to the extent he grew his own wheat, he would not have to purchase what he needed from the open market.   Thus, the Court concluded, allowing many people to avoid price regulation by supplying their own needs would thwart Congress’ desire to maintain higher wheat prices.   Filburn’s lack of demand for wheat on the market would accordingly “affect” interstate commerce by the simple fact that he would have no need to make purchases from the market.

Incidentally, one can easily speculate that the federal mandate to purchase health insurance might be upheld on this reasoning – i.e., the absence of need for health insurance reduces demand for it.  Is this not true with respect to every product offered for sale by third-parties?

Gonzales v. Raich was a 2005 U.S. Supreme Court opinion which relied heavily on Wickard.  Raich relied on California’s laws permitting marijuana use for medicinal purposes, which also allowed her to grow marijuana for her personal consumption.  The federal government refused to recognize that California’s laws afforded her any rights to engage in such activities.

The Supreme Court wrote:

The similarities between this case and Wickard are striking. Like the farmer in Wickard, respondents are cultivating, for home consumption, a fungible commodity for which there is an established, albeit illegal, interstate market. Just as the Agricultural Adjustment Act was designed “to control the volume [of wheat] moving in interstate and foreign commerce in order to avoid surpluses …” and consequently control the market price, id., at 115, a primary purpose of the CSA is to control the supply and demand of controlled substances in both lawful and unlawful drug markets….

More concretely, one concern prompting inclusion of wheat grown for home consumption in the 1938 Act was that rising market prices could draw such wheat into the interstate market, resulting in lower market prices. Wickard, 317 U. S., at 128. The parallel concern making it appropriate to include marijuana grown for home consumption in the CSA is the likelihood that the high demand in the interstate market will draw such marijuana into that market.

Interestingly, the issue in Raich was not one of price controls.  Instead, it concerned an outright ban.   Nobody was arguing the price of marijuana should be higher and Raich should go out on the open market and purchase it.

So, what remains is the Court’s observation that regulation by the federal government was proper because of “the likelihood that the high demand in the interstate market will draw such [home-grown] marijuana into that market.”  Here, it can be seen that the Court’s opinion inescapably hinges on its assumption that Raich would turn criminal and begin selling her home-grown marijuana in the interstate market.

In short, what can be concluded from the similarities between Wickard and Raich is that it is enough to justify federal intrusion into state concerns if something has the potential to become involved in interstate commerce, and not whether it actually does.  Moreover, Raich makes it clear that in the face of federal regulation of interstate commerce, one who possesses items against the will of the federal government will inevitably become a criminal.   Thus, a person’s potential to become a criminal makes him a criminal.

Justice Thomas vigorously dissented in Raich, stating as follows:

Even the majority does not argue that respondents’ conduct is itself “Commerce among the several States,” Art. I, § 8, cl. 3. Ante, at 22. Monson and Raich neither buy nor sell the marijuana that they consume. They cultivate their cannabis entirely in the State of California — it never crosses state lines, much less as part of a commercial transaction. Certainly no evidence from the founding suggests that “commerce” included the mere possession of a good or some purely personal activity that did not involve trade or exchange for value….

This Court has never held that Congress can regulate noneconomic activity that substantially affects interstate commerce. Morrison, 529 U. S., at 613 (“[T]hus far in our Nation’s history our cases have upheld Commerce Clause regulation of intrastate activity only where that activity is economic in nature” (emphasis added)); Lopez, supra, at 560. To evade even that modest restriction on federal power, the majority defines economic activity in the broadest possible terms as the “`the production, distribution, and consumption of commodities.’” Ante, at 25 (quoting Webster’s Third New International Dictionary 720 (1966) (hereinafter Webster’s 3d)). This carves out a vast swath of activities that are subject to federal regulation. See ante, at 49-50 (O’CONNOR, J., dissenting). If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States. This makes a mockery of Madison’s assurance to the people of New York that the “powers delegated” to the Federal Government are “few and defined,” while those of the States are “numerous and indefinite.” The Federalist No. 45, at 313 (J. Madison).

(emphasis added).

In Thomas’ dissent, the emphasized language is the exact language relied upon by opponents of the new health insurance mandates.   Simply put, opponents argue that the insurance mandates are Unconstitutional because the decision not to purchase insurance is not the act of engaging in “economic” activity; it is merely the act of one’s existing and deciding not to engage in a particular economic activity.

In conclusion, Raich involved an issue, legalized marijuana, which a great number of people oppose.   For that reason, it is common to see many advocates for less government who have the opinion that Raich was properly decided.   They advocate for less government but oppose legalizing marijuana.

For those who are within the foregoing category, a serious conflict arises.   To support the decision in Raich is to admit that the federal government does, indeed, have the authority to force purchases of health insurance and to require compliance with a myriad of mandates with which such people would normally disagree.

Some might argue that Raich actually engaged in behavior, i.e., growing plants, thus, laying the grounds to allow federal regulation over her.  However, the same could be said for any activity.   For example, consuming alcohol and fast food, as well as working hard, are activities that, under the same logic, should be subject to regulation by the federal government, e.g. “Any person who consumes alcohol or fast food, or who works hard, shall be required to maintain health insurance meeting the minimum requirements of this Act.”

It seems there are only two plausible ways in which to deal with this conflict in the context of the limits, if any, on the federal government’s authority to regulate commerce among the states.   The first is simply not to concern one’s self with the rules of law and to just argue points based on an inconsistent reasoning.  The second is to gain a higher appreciation for why the rules of law were crafted as they were and to be willing to concede to proper reasoning.

Using the principles of law relied on by the federal courts to maintain a federal ban on marijuana use, one cannot be both:  (1) against the federal government’s new health insurance mandates, and (2) against a state’s right to legalize marijuana use.

Jeff Matthews [send him email] is a practicing attorney in Houston. He graduated from the University of Texas, School of Law in 1993 and was licensed that year.

Copyright © 2010 by TenthAmendmentCenter.com. Permission to reprint in whole or in part is gladly granted, provided full credit to the author and this website is given.

Many readers of this site may find what happened in late March to be unbelievable.  They may wonder how the paradigm was set that the Federal Government has no bounds to its authority whatsoever. 

This is the product of naiveté, as conservatives turned a blind eye to President Bush’s Medicare Part D expansion, the U.S. Patriot Act, and budget-busting deficits as far back as the eye can see. 

Indeed, republican presidents seem to use the somewhat stronger affinity of their party towards a smaller government as a kind of cover to allow them to expand the government beyond the bounds it had prior to their presidency.

Not that the other statists are any better, but when they expand the government they say ‘I am going to expand government so that more people are dependent upon it’ – such as the “Obamacare” bill.  In 4 years (the delay was primarily so the Congressional Budget Office score would come in better) people will start expecting the government to take care of their every medical need. 

Any person at that point who tries to do any reform or cost cutting will be viewed as a tyrant, intent on denying the most needy among us our (entitled) health care.  At that point it will be too late to save the American republic.

When the full affects of Obamacare are in play, health insurance companies will become just a Government-sponsored entity. They will have the responsibility to provide care for any applicants- without the possibility of denying coverage. At this point, the risk pool will expand exponentially (as they will be required to provide for any request, from any citizen, for any procedure). 

In tandem with this expansion of requirements for benefits, they will be denied any rate increase to cover the increased risk. There are only two possibilities:

1.  The “private” insurers will go bankrupt, leaving all of their insure-ees as medical wards of the state.  These people will have to join a Government Plan (once all the private insurers are bankrupt) as it will be clear there is no money to be made in the health insurance market. So, no new companies will be started to take the place of the old ones.

2.  The “private” insurers will have to go begging to the Government to allow them to raise rates.  This will cause all citizens of the country to pay more for health insurance than they previously did, and would also be on top of the already higher taxes we will be paying to provide care for the poor.  The healthy young who previously had declined coverage, or had a high deductible plan, will pay the most for this- as they will now have to have an “approved” plan.

The budgetary effects of this expansion hardly need to be mentioned.  The U.S Government will, in short order, end up being the provider of all medical benefits.  Initially there will be no restraint in the spending, whatsoever.  This will cause demand for medical services (which will be perceived as free) to skyrocket. 

The law of supply and demand still applies, so with no increase in the supply of doctors or medicine (and most likely a decrease) the price will increase proportionately to the increase in supply.  Since the insurance companies will all be bankrupt in short order, the Federal budget will ultimately pay for all of this expansion.

This will bring us to rationing. With a limited supply of doctors/medicine, the Federal Govt. will have to decide which medical proceedures are worth doing and which should be (indefinitely) delayed.  The rational basis that these decisions will have to be made on is:  The person with a higher likelyhood of actually contributing to the tax base will have first crack at service, along with the political elite.  This rationing will also result in a near halt to all medical “breakthrough treatments,” as these will be viewed by Bio-tech companies as unprofitable to pursue.

This is all due to the process of “nationalization” of our politics that has been going on since the Civil War.  Think about it, if this was just on a state-by-state basis…for example, just in Oregon or Massachusetts, these would not be the same kind of problem (and as a side note- they would be constitutional, whether good policy or not) because the other states would be able to pick up the slack and allow citizens an escape hatch. 

If our Senators were still appointed by the statehouses (as originally intended) they would have stopped Obamacare (as it is the Mother of all unfunded mandates). If we were still on the Gold standard, no one in Washington would dare propose such a plan- as there would be no magical Federal Reserve Bank to get an unlimited source of funds for any fantasy that politicians dream up.  If states were still willing to nullify unconstitutional laws, D.C. would be less bold in proposing laws which are clearly outside the enumerated powers possessed by the Federal Government.  I won’t even address the Supreme Court, as they are not the only arbiters of what is constitutional.

Republicans seem to want to repeal this law and replace it (probably with something less socialistic).  This is unlikely- and even if it happens, it would be only a delay of the inevitable.  The statists will be in power again, and when they are, this same fight will happen all over again.  No national redress is truly available. 

The only way forward is to nullify through the statehouses. If we are to pull this one out, we will have to nullify this law. There is no other option.

Remember in 1994 when “Hillarycare” was defeated?  Everyone breathed a sigh of relief. How about when Truman proposed it?  Government structured as a national democracy (as it is) always tends towards socialism. 

Indeed if the bill had been defeated in D.C. this time, it would only be a matter of time before it was attempted again.  This is because citizens will always vote for politicians who promise the expensive entitlements that will lead to debt slavery for their children. 

We need to reinvigorate the State Governments to nullify unconstitutional acts by Congress, and we need to do it now before the outrage felt in the electorate fades into comfort/complacency.  Only in this way can we permanently put the Government on solid footing.

The Tenth Amendment Center has produced a model nullification law which I have linked here: http://www.tenthamendmentcenter.com/legislation/federal-health-care-nullification-act/
Everyone who reads this post needs to call their state Representatives/Senators/Governors and demand that they introduce this bill in the next session of legislature.  If this passes- along with other states, your state can be part of the solution.

Tim Reeves is the State Chapter Coordinator for the Oregon Tenth Amendment Center.

Copyright © 2010 by TenthAmendmentCenter.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given.

by Jack Hunter, from The American Conservative

With its recent passage, Obamacare has quickly become to the Right what the Iraq war was to the Left-a disastrous and costly mistake heralding unprecedented government action, expansion and intrusion. Conservatives consider forcing Americans to purchase health insurance every bit as unconstitutional as liberals once considered the PATRIOT Act, and needless to say, anytime massive, sweeping government action occurs, those who protest the loudest are who Washington leaders ignore the most.

But a number of states are refusing to be ignored. In fact, they’re refusing, period.

As of this writing, 14 states have filed lawsuits against the federal government, declaring Obamacare to be in violation of the 10th amendment. Said South Carolina Attorney General Henry McMaster: “A legal challenge by the States appears to be the only hope of protecting the American people from this unprecedented attack on our system of government.”

But what is “our system of government?” Today, strict constitutionalists who still adhere to the explicit letter of the law of our nation’s founding document are few. Those who still agree with James Madison, who wrote that the “powers delegated” to the federal government are “few and defined,” while those of the states are “numerous and indefinite,” have been outnumbered and out-lawyered by generations of politicians and judges who have magically discovered new and virtually limitless federal powers, rendering the rights of the states less numerous and more finite than ever.

As an example of just how far we’ve drifted, when Prohibition was enacted in 1919, Congress found it necessary to ratify the 18th amendment, a procedure the Founders intended to be the proper mechanism for any needed or necessary changes to the Constitution. Modern day prohibition, or the “war on drugs,” has been waged by executive order and various bureaucratic measures. The Constitution does not give the federal government this power–an obvious fact in 1919, hence the need for an amendment–and yet the federal war on drugs continues.

Along with programs like Social Security and Medicare, anyone who really believes the Founding Fathers intended for the federal government to regulate-much less mandate-healthcare insurance, needs to have their head examined. But what can Americans upset about this legislation do? States’ rights challenges to Obamacare are certainly a step in the right direction, but does anyone believe the Supreme Court is going to side with the states and against the federal government? History suggests otherwise.

Perhaps it is time to cut the federal government out of the equation altogether. While supporters of Obamacare are still pointing to Franklin Roosevelt and Lyndon Johnson as guiding lights, opponents might want to point to Thomas Jefferson by revisiting his famous “nuclear option” of limiting federal power: nullification.

Jefferson’s theory of nullification, outlined in his 1798 Kentucky Resolutions, is fairly simple: the US Constitution was a compact among the states where certain, limited powers were delegated to the federal government; any powers assumed by the federal government that were not expressly delegated to it, automatically become void–the federal courts be damned.

Explained bestselling author Thomas Woods during an interview with National Public Radio’s Tom Ashbrook: “the argument that gee, the federal courts would never uphold this, that was precisely Thomas Jefferson’s point. Thomas Jefferson emphasized repeatedly that the federal courts are a branch of the federal government, so if you’re going to say that we’ve got a dispute between the states and the federal government, let’s have the federal government decide it… I mean, if you and I are having a dispute and I refer it to my cousin, you immediately know the deck is stacked. So his argument was the states are the constituent parts of the union, so therefore they have to make their interpretation of the constitution count for something.”

Woods also noted that some of the earliest examples of nullification were in defiance of fugitive slave laws, where some states refused federal demands to return escaped slaves to their masters. Today, an undeclared nullification is taking place in some states concerning medicinal marijuana, where the Supreme Court has judged the practice illegal yet the states are simply ignoring federal dictates. With so many states defying the federal government, the Obama administration has instructed federal prosecutors not to pursue these cases.

Is nullification “radical?” Perhaps, but no more radical than running up a $14 trillion national debt, starting undeclared “preventive” wars or transforming our constitutional republic into a heavily centralized, European-style state. Is nullification “lawless?” Quite the opposite. Our leaders in Washington, DC are lawless in the sense that for too long they have ignored their constitutional restraints. Nullification would be a powerful check on Washington, DC’s entrenched and unchallenged lawlessness, which was exactly Jefferson’s intention.

It is true that the economic implications of nullifying Obamacare could be complex and tedious, but no more so than the plan itself. Regardless, one thing remains clear: if those currently pursuing 10th amendment challenges to Obamacare are to take states’ rights seriously-they will have to find the courage to defy a federal government that does not.

The “Southern Avenger” Jack Hunter is a conservative commentator (WTMA 1250 AM talk radio) and columnist (Charleston City Paper) living in Charleston, South Carolina. See his blog.

Copyright 2010, The American Conservative

Federalism and Tenth Amendment state’s rights have been under assault since the days of FDR.

The federal government was created to serve the states and, in the words of James Madison, “to be exercised principally on external objects, as war, peace, negotiation, and foreign commerce.”   Under the Tenth Amendment,

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.

The astute constitutional student will recognize that there is no authority whatsoever under Article 1 Section 8 of the U.S. Constitution (the part of the Constitution which outlines the powers of the federal government) to create or administer a health care system.

In the past year, several states have moved to assert their rights under the Tenth Amendment. States such as South Dakota, Tennessee, Texas, Louisiana, North Dakota, Alaska, Idaho, Oklahoma and more have passed resolutions telling the federal government to keep its paws off areas that don’t belong to it.

Alabama has specifically moved to short-circuit the federal government’s plan to cripple the country under the cap and trade global warming tax.  Other states such as Arizona, Florida, and Texas are moving to specifically tell the federal government if they pass socialized health care, it isn’t going to fly in their states.

More states–and more work–may be needed, given what the socialists in congress and the White House have in mind.

The Heritage Foundation has an analysis of how Obamacare would hit federalism and state’s rights hard.

State flexibility regulations will be removed, making states merely administrative arms of the federal government’s bidding

If congress succeeds in raising eligibility to 133% of poverty in the final bill (if it passes, God forbid), 33 states could see their Medicare rolls increase 30%, with 10 states seeing an increase of 50%. And since–contrary to a popular conception–government can’t create money out of thin air, guess who gets to pay for that?  What will it look like if they raise it to 150% of poverty?  Got your wallet handy?

There are any number of real reform actions congress could take if only they wanted to; these involve real solutions like tort reform, promoting consumer involvement and choice, making insurance more portable, etc.

But they don’t want to improve the system and get it back within constitutional parameters and into the realm of common sense.

Their goal is to push socialized health care on America, and they’ll do it in a big step or several smaller ones.  We the people must not allow them to take even small steps in that direction.  We’re already too close to the lip of that socialist abyss.

Bob Ellis [send him email] is the founder and editor of Dakota Voice.

Andrew Napolitano: “There are limited, delegated and discreet powers of Congress in the Contitution…how can the government take over health care and still comply with the Constitution?”