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#healthcare: 3 Ways It’s Unconstitutional

At the moment and according to Reuters, the next (and by no means anywhere near the final) vote on healthcare legislation is slated to take place early in the day on Christmas Eve. But first, a quick note on a party switcher: Rep. Parker Griffith (D-to-R-AL) has switched parties today, citing impending healthcare legislation as the main reason for the change (video via Politico):

From the Politico article:

Griffith, who captured his seat in a close 2008 open seat contest, will become the first Republican to hold the historically Democratic, Huntsville-based district. A radiation oncologist who founded a cancer treatment center, Griffith cited the Democratic health care bill as a major reason for his switch.

“I want to make it perfectly clear that his bill is bad for our doctors, our patients and will have unintended consequences far beyond what we know today,” he said. “As a doctor and as a Republican, I plan to once again oppose this measure and hope that we can defeat this bill that is a major threat to our nation.”

While the timing of his announcement was unexpected, Griffith’s party switch will not come as a surprise to those familiar with his voting record, which is one of the most conservative among Democrats. “He has bucked the Democratic leadership on nearly all of its major domestic initiatives, including the stimulus package, health care legislation, the cap-and trade energy bill and financial regulatory reform. “He was one of only 11 House Democrats to vote against the stimulus.

AllAmericanBlogger opines:

There are Democrats retiring, some having to fight for their seats (cough, cough, Harry Reid, cough, cough) and now they are just jumping ship for the Republican party. You know, the party that is on its death bed.

Looking at the way things are going, 2010 is going to be a very interesting year.

To go just a wee bit further on this story, AmericanPower posts a rather unflattering link to the following YouTube video that the RNCC ran against Rep. Griffith last year, so the primaries for 2010 could be interesting:

Yet, the same posting closes with the following:

Griffith is known for this statement from his 2008 campaign:

I think America’s greatest enemy is America and its materialism. And I think that we have nothing to fear from radical Islam. We have nothing to fear from any other religion if we are strong on our own beliefs. I don’t fear radical Islam.

He claims his remarks were taken out of context, but there’s plenty of context right there to know that his party switch is meaningless. Vote him out in the primary.

Back to healthcare, per se: HotAir reports that the vote is slated to occur at 8am on Christmas Eve. RedState thinks this should literally be the end of the road for Republicans (e.g.: they need to leave the Capitol), but I happen to agree with HotAir:

So he [Sen. Mitch McConnell] held out for a Christmas Eve vote anyway, even though it’s not a vote on the final final bill and it’ll be a pure formality if they get 60 tomorrow for cloture. What’s the problem? They’ve all got kids and grandkids they want to see on Christmas, as do their staffers. Why work late if you don’t have to and doing so would accomplish nothing? Pure spite is a poor political strategy, especially when the basic symbolic point — forcing the Dems to wait until the last possible day to pass this travesty — is preserved. Actually, the early vote will achieve something the late vote couldn’t: A full day of media devoted to a bill the public hates and which both left and right agree is garbage. Good luck getting people to watch the news after dark on Christmas Eve; now, thanks to the new arrangement, they’ll have almost 12 extra hours to stew about it before the holiday draws them away. McConnell knows what he’s doing here.

In fact, back in the early days of my site, I promulgated exactly this type of response in The Art of Conservative Political War. Also, liberals may be ready to throw key points like the “public option” overboard to get a bill passed. The constitutionality of the healthcare bill is being challenged in three parts — two in the Senate (predominantly by Sen. Jim DeMint (R-SC)) and one at the State level. First, CommonAmericanJournal reports that Majority Leader Sen. Harry Reid (D-NV) has allowed the following supermajority requirement to change a certain section of the bill:

On page 1020 of the text, DeMint discovers that Reid has created a rule binding future sessions of Congress to a supermajority requirement to overrule the bill’s rationing board, the Independent Medical Advisory Board, whose purpose (stated on page 1001) is to “reduce the per capita rate of growth in Medicare spending.” DeMint demands an explanation of how the Majority Leader can allow legislation to alter the rules of the Senate, both on the floor and in committee. The Weekly Standard has the key portion of the transcript:

RedState has the full transcript, including the actual verbiage of the offending section:

Section 3403 of Senator Harry Reid’s amendment requires that “it shall not be in order in the Senate or the House of Representatives to consider any bill, resolution, amendment, or conference report that would repeal or otherwise change this subsection.” The good news is that this only applies to one section of the Obamacare legislation. The bad news is that it applies to regulations imposed on doctors and patients by the Independent Medicare Advisory Boards a/k/a the Death Panels.

While the above Weekly Standard embedded link talks about some work-arounds to this section, to me, the bottom line is that while either chamber is constitutionally called to come up with their own rules of order, the Constitution trumps all laws in the land insofar as what can be changed and what can’t. In other words, if the law is in the Constitution, it absolutely requires a supermajority from both the bicameral legislature as well as the several States before it can be changed. Anything else is otherwise fair game for change. And trying to tell future Congresses what they can or cannot do? That would likely fall flat at the outset of a different party’s majority as soon as that Session agreed to its own rules for the session.

Secondly, Sens. DeMint and John Ensign (R-NV) are intending to raise a constitutional point of order on the Senate floor (DeMint PR):

Ensign, DeMint to Force Vote on Health Care Bill Unconstitutionality December 22, 2009 – WASHINGTON, D.C. – Today, U.S. Senators Jim DeMint (R-South Carolina) and John Ensign (R-Nevada), raised a Constitutional Point of Order on the Senate floor against the Democrat health care takeover bill on behalf of the Steering Committee, a caucus of conservative senators. The Senate will vote tomorrow on the bill’s constitutionality. “I am incredibly concerned that the Democrats’ proposed individual mandate provision takes away too much freedom and choice from Americans across the country,” said Senator Ensign. “As an American, I felt the obligation to stand up for the individual freedom of every citizen to make their own decision on this issue. I don’t believe Congress has the legal authority to force this mandate on its citizens.” “Forcing every American to purchase a product is absolutely inconsistent with our Constitution and the freedoms our Founding Fathers hoped to protect,” said Senator DeMint. “This is not at all like car insurance, you can choose not to drive but Americans will have no choice whether to buy government-approved insurance. This is nothing more than a bailout and takeover of insurance companies. We’re forcing Americans to buy insurance under penalty of law and then Washington bureaucrats will then dictate what these companies can sell to Americans. This is not liberty, it is tyranny of good intentions by elites in Washington who think they can plan our lives better than we can.” Americans who fail to buy health insurance, according to the Democrats’ bill, would be subject to financial penalties. The senators believe the bill is unconstitutional because the insurance mandate is not authorized by any of the limited enumerated powers granted to the federal government. The individual mandate also likely violates the “takings” clause of the 5th Amendment. The Democrats’ healthcare reform bill requires Americans to buy health insurance “whether or not they ever visit a doctor, get a prescription or have an operation.” If an American chooses not to buy health insurance coverage, they will face rapidly increasing taxes that will rise to $750 or 2% of their taxable income, whichever is greater. The Congressional Budget Office once stated “A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States.” A legal study by scholars at the nonpartisan Heritage Foundation concluded: “An individual mandate to enter into a contract with or buy a particular product from a private party, with tax penalties to enforce it, is unprecedented– not just in scope but in kind–and unconstitutional as a matter of first principles and under any reasonable reading of judicial precedents.”

Thirdly and most interestingly, MattLewis reports that Sens. DeMint and Lindsey Graham (R-SC) have sent the following letter to South Carolina’s Attorney General Henry McMaster concerning the deal that Sen. Reid used to buy Sen. Ben Nelson’s (D-NE) vote. Bottom line: the deal would unfairly allow one State to receive 100% of required monies for new Medicaid enrollees while all 49 other States would not receive the same benefit. See Article 1, Section 8, Clause 1 of the Constitution:

Section. 8. The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States; [emphasis mine]

Here’s the letter:

GrahamDeMint.png picture by mklpolitics

Assuming that the healthcare legislation passes the Legislative branch, it’s looking like there are more and more reasons to take the law to Court.

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