constitutionality

Tea Partiers’ Winning “Contract from America”

by Kathryn Ciano on November 9, 2010

in Culture, Odds & Ends, Zeitgeist

Tea Partiers won big last Tuesday, sending a clear message to politicians that Americans want government’s hands off!

What makes the Tea Party interesting is that it’s not a party at all, really. Political parties operate by establishing a reputation steeped in culture and rhetoric and then shifting values according to whimsy (a political trick prominent in America since at least the Federalists became the Antifederalists). The Tea Party rejects all of that.

Instead, the Tea Party proposes an 10-point contract for governance. These 10 points serve as a metric to determine whether politicians are delivering on their promises. An objective 10 points, so it’s immediately obvious whether a politicians has succeeded or failed.

ABC covered this contract in April, but it’s worth taking a look again (the numbers in parentheses denote percent of votes each item earned on the contract-generating plank):

  1. Protect the Constitution: Require each bill to identify the specific provision of the Constitution that gives Congress the power to do what the bill does. (82.03 percent)
  2. Reject Cap & Trade: Stop costly new regulations that would increase unemployment, raise consumers prices, and weaken the nation’s global competitiveness with virtually no impact on global temperatures. (72.20 percent)
  3. Demand a Balanced Budget: Begin the Constitutional amendment process to require a balanced budget with a two-thirds majority needed for any tax hike. (69.69 percent)
  4. Enact Fundamental Tax Reform: Adopt a simple and fair single-rate tax system by scrapping the internal revenue code and replacing it with one that is no longer than 4,543 words — the length of the original Constitution. (64.90 percent)
  5. Restore Fiscal Responsibility & Constitutionally Limited Government in Washington: Create a Blue Ribbon taskforce that engages in a complete audit of federal agencies and programs, assessing their Constitutionality, and identifying duplication, waste, ineffectiveness, and agencies and programs better left for the states or local authorities, or ripe for wholesale reform or elimination due to our efforts to restore limited government consistent with the U.S. Constitution’s meaning. (63.37 percent)
  6. End Runaway Government Spending: Impose a statutory cap limiting the annual growth in total federal spending to the sum of the inflation rate plus the percentage of population growth. (56.57 percent)
  7. Defund, Repeal & Replace Government-run Health Care: Defund, repeal and replace the recently passed government-run health care with a system that actually makes health care and insurance more affordable by enabling a competitive, open, and transparent free-market health care and health insurance system that isn’t restricted by state boundaries. (56.39 percent)
  8. Pass an ‘All-of-the-Above’ Energy Policy: Authorize the exploration of proven energy reserves to reduce our dependence on foreign energy sources from unstable countries and reduce regulatory barriers to all other forms of energy creation, lowering prices and creating competition and jobs. (55.51 percent)
  9. Stop the Pork: Place a moratorium on all earmarks until the budget is balanced, and then require a 2/3 majority to pass any earmark. (55.47 percent)
  10. Stop the Tax Hikes: Permanently repeal all tax hikes, including those to the income, capital gains and death taxes, currently scheduled to begin in 2011. (53.38 percent)

Many of these items directly contradict legislature that has passed in President Obama’s first two years in office. Sure, this is a reflexive response to the government having gone very far in one direction. But remember: It was this objective metric that spelled out big midterm victories.

Let’s see how objective this criteria stays over the next two years.

Experts Question Enormous Cost and Constitutionality of Healthcare Legislation

by Hans Bader on January 13, 2010 · 1 comment

in Health and Illness, Healthcare, Insurance, Legal, Nanny State, Politics as Usual, Precaution & Risk, Regulation

The health care legislation backed by the president and congressional leaders will increase Americans’ health care costs by more than $200 billion, concludes an expert at the federal Centers for Medicaid and Medicare Services.

Earlier, Senator Orrin Hatch (R-Utah), a lawyer, argued that the “individual mandate” in the health care bill legislation, which forces people to buy health insurance, is unconstitutional.  Florida Attorney General Bill McCollum likewise is questioning whether it is constitutional to force people to do so.

This so-called “individual mandate” is unprecedented and appears to exceed Congress’s power under the Commerce Clause of the Constitution.  As the Congressional Budget Office noted in 1994, “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.”

As a news story notes, in Supreme Court rulings issued in 1995 and 2000, “the high court said the commerce clause is limited to economic activities that substantially affect interstate trade.”  (I was an attorney in the latter ruling, United States v. Morrison (2000).)  As UPI notes, “the weight of Supreme Court jurisprudence seems to favor a Commerce Clause challenge” to the health care legislation.

The individual mandate does not regulate activities, much less economic activities, but rather inactivity, by penalizing those who decline to buy health insurance. That exceeds Congress’s powers under the Supreme Court’s Morrison ruling, as I explained earlier.

The health care legislation also contains unconstitutional racial preferences for minority applicants, and lower standards of care for patients in predominantly-minority institutions.  These drew criticism from the Civil Rights Commission.

Most Americans oppose the health care legislation. It would reduce lifesaving medical innovation, raise taxes, drive up insurance premiums and the deficit, break many campaign promises, and impose heavy burdens on state budgets.  It  would also jeopardize the quality of medical care for many, while imposing restrictions that failed when tried at the state level, and ignoring advice from federal and academic experts, and lessons from countries with universal health care, about how to keep costs down.