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The Constitution does not Grant the Federal Government
the Authority to Establish a so-called National Health Care Program

By Robert Greenslade © Nitwit Press

August 24, 2009

President Obama, in concert with his ass kissers and boot lickers in Congress, is preparing to stuff a so-called national health care program down our throats in spite of the fact that there is no constitutional basis for the legislation.  In response, many freedom loving Americans are engaging in some good old fashion civil disobedience and protesting this massive power grab.  Unfortunately, as I stated in: “The Tea Party Movement Needs a Shield and Some Tactics,”  many of the protestors are making a huge tactical mistake that opens the door for them to be attacked by minions of the nanny state.

Stop Debating the Merits and Details of a Usurpation of Power

Opponents of the proposed health care plan need to stop debating the merits and details of this health care scheme and focus on the core issue—the Constitution does not grant the federal government the authority to establish this program within the 50 united States.  Period end of the debate.  When the American people do not oppose federal usurpations of power on constitutional grounds, they validate the power grab because the debate is reduced to a discussion of the details and constitutional questions are ignored or become secondary considerations.

Let me make this point by way of example.  Let’s say you have a 17-year-old son who just got his driver’s license and you tell him he does not have permission to drive your car under any condition.  Then, the following Friday night he asks what time you want him to return your car after his date with the new girl in math class.  Would you engage him in a debate over the details or would you shut down the debate by reminding him that he was not authorized to use your car in the first place?

The Constitutional Separation of Power is the Key

The Constitution, contrary to popular belief, established a separation of power between the States and their federal government.  James Madison explained this principle in Federalist Essay No. 45:

The powers delegated by the proposed Constitution to the federal government are few and defined.  Those which are to remain in the State governments are numerous and indefinite.  The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected.  The powers reserved to the several States will extend to all the objects which in the ordinary course of affairs, concern the lives, liberties, and properties of the people; and the internal order, improvement, and prosperity of the State.

The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments in times of peace and security.

In the New York State Convention debating ratification of the proposed constitution in 1788, John Jay, who was one of the authors of the Federalist Essays and would later become a justice on the United States Supreme Court, expressed this principle as follows:

What are the objects of our state legislatures?  Innumerable things of small moment occupy their attention; matters of a private nature, which require much minute and local information.  The objects of the general government are not of this nature.  They comprehend the interests of the states in relation to each other, and in relation to foreign nations.

The limited powers delegated to the federal government, as stated by Madison and Jay, are concerned, for the most part, with external or foreign affairs while the numerous and indefinite powers reserved to the several States pertain to the lives, liberties and properties of the people.

The health care bill, any way you cut it, violates this principle and is fatally defective.  No law passed by Congress can change this principle.  No delegated power in the constitution can be invoked to circumvent this principle.  This is the key.  Everything after this is simply a debate over the details of another attempt by the scumbags in the federal government to usurp power.

Congress will ignore this Constitutional Principle

Since Presidents and members Congress, irrespective of party, have a track record of trashing the Constitution except when it is politically expedient, we can count on them to ignore this constitutional principle, once again, and move forward with their unconstitutional health care legislation.  Thus, I will discuss some of the ways they will attempt to justify their power grab and provide some additional nails to help seal the health care legislation in the unconstitutional coffin where it belongs.

The Massachusetts Plan is the Model

In 2007, the State of Massachusetts became the first State in the Union to require its residents to be covered by health insurance.  Under this law, all uninsured adults, who could afford insurance, were compelled to purchase some kind of health insurance or face monetary penalties.  This "buy insurance or else" legislation is patterned after the State’s auto insurance law that requires all operators of a motor vehicle to be covered by insurance.

Apparently, members of Congress who have been unable to come-up with a constitutional basis for their proposed legislation, thought using a state car insurance model would trick the American people into believing the federal government was granted the power to compel them to have health insurance.  This deceptive tactic is working according to plan because it has shifted scrutiny away from their lack of authority to the specific details of the plan.

After they have the people focused on the details and find out what provisions are objectionable, they will simply modify or remove those provisions and constitutionally challenged Americans will claim a victory without realizing they just lost the war.

Natural Rights and the Power of Contract

In the Declaration of Independence, the Founders acknowledged that people have been endowed by a creator with certain unalienable rights and these rights exist independent of government or a written constitution.

Among the unalienable or natural rights of the American people is the unlimited right of contract.  This means you can choose to enter or not enter into a contract.  In order for a contract to be valid, it must be a voluntary act on the part of the parties.  In the normal course of life, you cannot be compelled under threat or coercion to enter into a contract with anyone—including government.

Note: Social Security is a general fund income tax; it is not a contract between you and the federal government.  Individuals paying Social Security taxes do not acquire any property or contractual rights as they would under an insurance or annuity plan.

Government cannot compel you to Engage in a Contract

When you take out an insurance policy of any kind, you are entering into a contract with the insurance company.  The proposed health care law, irrespective of how it is couched, is an enter into a contract or else proposal.  In essence, the federal government is putting a gun to the heads of the American people and saying sign on the dotted line and secure heath insurance based on the standards we set or suffer the consequences.  Not only is this a compelled contract, but the federal government is setting the terms and conditions for the validity of the contract.  If the federal government had the authority to exercise this type of power over the American people, then freedom and liberty would cease to exist because the flip side of the coin is the power to prohibit you from engaging in a contract.

Patterning this legislation after Massachusetts’ auto insurance law is simply an attempt to deceive the American people concerning their obligations under the law.  There is an important distinction between auto and health insurance.  Unfortunately, most Americans have not been taught to recognize the difference.

In order to operate a motor vehicle, and I do not want to get into a discussion over the right to travel vs. a license in this article, the people of Massachusetts are required to be licensed.  A license, in pure legal terms, is simply permission from government to do something that would otherwise be illegal.  When you ask permission from government to engage in a licensed activity you must comply with all the conditions imposed by government.  Auto insurance is one of those conditions.  There is no compelled contract because the individual voluntarily agreed to the insurance requirement as a condition of securing the license.

Congress seems to have lost sight of the fact that if someone does not own or operate a motor vehicle then they are not required to have a driver’s license or secure vehicle insurance.  Thus, the requirement to have vehicle insurance is a special requirement not a universal one like their health care proposal.

Thus, the federal government cannot use a state auto insurance law as the model for mandatory health insurance because living and breathing is not a government created privilege that requires a license.  The right to exist comes from God—not government.  It appears Congress is asserting that our life is a government created privilege and they want insurance to protect the health of their taxing paying slaves.

Since the requirement to secure a driver’s license falls under the powers reserved to the States banner, any attempt to justify a federal health insurance law based on a state-licensing scheme is simply an attempt to mask the fact that Congress lacks the constitutional authority to enact the legislation.

The Preamble to the Constitution

I have read and heard people attempt to cite the word “welfare” in the preamble of the Constitution to justify their belief that the federal government was empowered to enact health care legislation.  There are 2 problems with this assertion, First, the word “welfare” was copied from the Articles of Confederation and is derived from the words “well” and “fare” and means a “state of faring well” or “well being.”  When the Framers used the word welfare, they were using it in this context.  They were not referring to government social programs.  These programs were virtually unknown to the Framers and would have been classified, in the language of the day, as a form of poor relief.  Second, the preamble is an introductory provision that does not grant the federal government any legislative power.  Thus, any attempt to use the preamble is a ruse.

The Taxing and Spending Clause (Article I, Section 8, Clause 1)

Since taxation is a component of the health care plan, Congress could invoke the taxing and spending clause in an attempt to justify the plan.  Congress’ power to tax and spend is found in Article I, Section 8, Clause 1 of the Constitution.  This Clause grants Congress the power:

To lay and collect Taxes, Duties, Imposts and Excises, to pay the debts and provide for the common Defense and general Welfare of the United States.

Pursuant to this Clause, Congress can only impose taxes for three purposes.  First, to “pay the debts...of the United States.”  This provision was inserted, primarily, to give the federal government the ability to extinguish the existing debts of the United States and was not intended to grant Congress the discretionary power to dream-up ways to incur new debts.  Second, to “provide for the common Defense...of the United States.”  This provision enumerates the primary purpose of the federal government and grants Congress the power to raise the needed revenue.  Third, to “provide…for the general Welfare of the United States.”  Since health care has nothing to do with paying the debts or providing the common defense of the United States, that only leaves the general welfare provision as the possible basis for the health care plan.

In order to accurately examine the general welfare provision, it is necessary to establish the meaning of the words general and welfare.

“General.  1: involving or applicable to the whole.   2: involving, relating to, or applicable to every member of a class, kind or group.”

“Welfare.  1: the state of doing well, esp. in respect to good fortune, happiness, well-being or prosperity.”

The common definition of the general welfare phrase, as used by the Framers in the taxing clause is: “the whole group’s well being.”

Since the general welfare phrase is annexed to the words “United States,” the whole group being referenced is a group of States called the “United States of America.”  Thus, this Clause grants Congress the power: “[t]o lay and collect taxes to provide for the well being of the States in their united or collective capacity.”

Unless the States agreed to unite for the purpose of providing health care through the limited powers delegated to Congress, and they did not, the federal government lacks the constitutional authority to invoke the taxing and spending clause because the States are not united outside of the delegated powers.  Outside of the delegated powers each State is a separate political entity.

Note: Every appropriation of money under this Clause must be general  [i.e., apply to the whole].  No appropriation can be local or particular.  If the federal government attempts to assert that its powers apply the American people collectively, as comprising one nation, and they do not, then the bill fails this test because the appropriation of tax dollars to fund health care does not apply across the board to everyone [i.e., the appropriation would NOT be general].

The Taxing and Spending Clause cannot be used as a Penal Provision for not Engaging in a Contract

A provision of the health care bill imposes a special tax on businesses and individuals as a penalty for not securing insurance via the compelled contract referenced above.

In his 1833 commentaries on the Constitution, Joseph Story, a Justice on the United States Supreme Court from 1811-1845 wrote the following:

The power to lay taxes is a power exclusively given to raise revenue, and it can constitutionally be applied to no other purposes.  The application for other purposes is an abuse of the power; and, in fact, however it may be in form disguised, it is a premeditated usurpation of authority.

As stated by Story, the structure of the taxing and spending clause PROHIBITS Congress from using this provision as a penal provision to punish someone for not engaging in conduct the federal government wants to promote.  It also cannot be used to penalize someone for not engaging in a contract with a private entity.  Congress can only invoke its taxing power to raise revenue for one of the 3 purposes enumerated above and health care fails this test because authority over the public health was reserved to the States.

The Commerce Clause (Article I, Section 8, Clause 3)

Since the Commerce Clause has been perverted by the federal judiciary to expand federal regulatory power beyond the intent of the Framers, there is a good chance Congress will attempt to use this provision in whole or in part to justify the health care legislation.

The purpose of the words “to regulate commerce…among the several States” in this Clause was to insure the free passage of goods between the individual States.

During the debates in the Federal [Constitutional] Convention of 1787 on this provision, Oliver Ellsworth stated:

The power of regulating trade between the States will protect them against each other.

James Madison reiterated this point in the Convention as follows:

[P]erhaps the best guard against an abuse of the power of the States on this subject, was the right in the General Government to regulate trade between State and State. [Emphasis added]

The Commerce Clause granted Congress the power to make regular, or normalize, commerce between individual State and individual State.  It did not grant Congress the power to control individuals or private business engaged in commerce.  This fact is substantiated by the 13th Amendment passed in 1865 (banning slavery), the 18th Amendment passed in 1919 (banning intoxicating liquors), and the 21st Amendment passed in 1933 (repealing the ban on intoxicating liquors).  All of these amendments involved commerce, yet Congress realized that it took a constitutional amendment before it had the power to legislate in these areas.

Under the umbrella of the Commerce Clause, the federal government is attempting to obliterate the system of limited government established by the Constitution and seize control over every aspect of human existence in these United States.

On October 29, 1993, Attorney General Janet Reno, in response to Hillary Clinton’s health care proposal, issued a written opinion  concerning health care and the Commerce Clause.  Her opinion endorsed federal usurpation of power through this Clause of the Constitution.

Even if this Clause granted the federal government the broad power it now asserts, Congress cannot use this Clause to compel someone to engage in interstate commerce. By the same token, Congress cannot negate the right of contract by forcing someone to engage in a contract under the banner of regulating interstate commerce.

The Necessary and Proper Clause (Article I, Section 8, Clause 18)

This provision grants Congress the 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 purpose and extent of this clause was put in simple language by George Nichols in the Virginia Ratifying Convention of 1788:

The committee will perceive that the Constitution had enumerated all the powers which the general government should have, but did not say how they were to be exercised.  It therefore, in this clause, tells how they shall be exercised.  Does this give any new power?  I say not.  Suppose it had been inserted, at the end of every power, that they should have power to make laws to carry that power into execution; would that have increased their powers?  If, therefore, it could not have increased their powers, if placed at the end of each power, it cannot increase them at the end all.  This clause only enables them to carry into execution the powers given to them, but gives them no additional power.

Members of Congress have perverted this Clause by asserting that it grants them the power to make any law they determine is “necessary and proper” irrespective of whether it has any relationship to the actual powers granted to the federal government by the Constitution.  As shown above, this Clause is a benign power that does not constitutionally expand the legislative powers of Congress.

In addition, the separation of power between the States and their federal government negates this assertion because the public health falls under the heading of powers reserved to the States.  Thus, even if members of Congress had the power to dream-up legislation they determine is “necessary and proper,” which they do not, the fact that federal power is confined to foreign affairs and relations between the States [federal affairs] would exclude health care.  The States are perfectly capable, as the State of Massachusetts has proved, to make decisions concerning health care.

Note: If health care fell under the heading of powers granted to Congress, then where did Massachusetts get the power to establish their program?

Conclusion

The federal government only exists within the confines of its foreign and federal powers.  Thus, the enumerated powers delegated to the federal government by the Constitution are also confined to this sphere of powers.  This means Congress cannot, from a constitutional perspective, invoke its legislative powers to negate or circumvent this constitutional separation of power.  Any attempt to do so is, in the words of Justice Story—“a premeditated usurpation of authority.”

Your comments and feedback are welcome!
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Some other, related reading:

The Flawed Second Amendment Debate

The Second Amendment and the Preamble to the Bill of Rights

Another Look at the Wording of the Second Amendment

Would the Repeal of the Second Amendment Empower the Federal Government and Negate the Right to Own a Firearm?

Tell me why the States needed the so-called "Collective Right" Second Amendment?

The Second Amendment is an Individual Right

A Question For The Supreme Court


Book now Available! See Editor's review here.

"The Bill of Rights Does Not Grant You Any Constitutional Rights"
By Robert Greenslade and Claude Ellsworth

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Email any questions concerning the book/booklet to Bob at-govtnitwit [at] yahoo.com

Robert Greenslade focuses his writing on issues surrounding the federal government and the Constitution. He believes politicians at the federal level, through ignorance or design, are systematically dismantling the Constitution in an effort to expand their power and consolidate control over the American people. He has dedicated himself to resurrecting the true intent of the Constitution in the hope that the information will contribute, in some small way, to restoring the system of limited government established by the Constitution.

If you are interested in finding out more about the Constitution, take a look at this book. I use it in many of my articles and it is the best book I've found on this subject. Bob

The Federal Government: Its True Nature and Character: Being a Review of Judge Story's Commentaries on the Constitution of the United States.

Reprint of the 1868 edition. ''Perhaps the ablest analysis of the nature and character of the federal government that has ever been published. It has remained unanswered.'' This review of Judge Story's Commentaries on the Constitution of the United States is perhaps the ablest analysis of the nature and character of the Federal Government that has ever been published. It has remained unanswered. Indeed, we are not aware that any attempt has been made to challenge the soundness of its reasoning. The great vise of Judge Story and the Federalists consisted in desiring the clothe the federal government with almost monarchical power, whereas the States had carefully and resolutely reserved the great mass of political power for themselves. The powers which they delegated to the federal government were few, and were general in their character. Those which they reserved embraced their original and inalienable sovereignty, which no state imagined it was surrendering when it adopted the constitution. Mr. Madison dwelt with great force upon the fact that ''a delegated is not a surrendered power.'' The states surrendered no powers to the federal government -- they only delegated them. 160 pages.

Please see the bottom of the page for Bob's book offer.

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