Forcing a company to give away a product for free

Charles Krauthammer points out yet another problem with President Obama’s contraceptive mandate compromise:

The president of the United States has just ordered private companies to give away for free a service that his own health and human services secretary has repeatedly called a major financial burden.

On what authority? Where does it say that the president can unilaterally order a private company to provide an allegedly free-standing service at no cost to certain select beneficiaries? . . . .

To solve his own political problem, the president presumes to order a private company to enter into a contract for the provision of certain services — all of which must be without charge. And yet, this breathtaking arrogation of power is simply the logical extension of Washington’s takeover of the private system of medical care — a system Obama farcically pretends to be maintaining.

Under Obamacare, the state treats private insurers the way it does government-regulated monopolies and utilities. It determines everything of importance. Insurers, by definition, set premiums according to risk. Not anymore. The risk ratios (for age, gender, smoking, etc.) are decreed by Washington. This is nationalization in all but name. The insurer is turned into a middleman, subject to state control — and presidential whim. . . .

This constitutional trifecta — the state invading the autonomy of religious institutions, private companies and the individual citizen — should not surprise. It is what happens when the state takes over one-sixth of the economy.

via Charles Krauthammer: Overreach — Obamacare vs. the Constitution – The Washington Post.

Is the U.S. Constitution obsolete?

[An earlier version of this post went up with just the raw quotation and with my introduction, edits, and commentary  not showing up, for some reason.  Sorry for the confusion.]

Conservatives worry that the U. S. Constitution is being ignored.  The next step is for the Constitution to be spoken against and then repudiated.  That seems to be happening, even by a Supreme Court Justice!  In the meantime, the rest of the world has stopped imitating America’s constitutional system, which, in many people’s minds does not parcel out enough rights, and the rights it does recognize are the wrong ones:

In a television interview during a visit to Egypt last week, Justice Ruth Bader Ginsburg of the Supreme Court seemed to agree [with the irrelevance of the Constitution to new nations today]. “I would not look to the United States Constitution if I were drafting a constitution in the year 2012,” she said. She recommended, instead, the South African Constitution, the Canadian Charter of Rights and Freedoms or the European Convention on Human Rights.

The rights guaranteed by the American Constitution are parsimonious by international standards, and they are frozen in amber. As Sanford Levinson wrote in 2006 in “Our Undemocratic Constitution,” “the U.S. Constitution is the most difficult to amend of any constitution currently existing in the world today.” (Yugoslavia used to hold that title, but Yugoslavia did not work out.)

Other nations routinely trade in their constitutions wholesale, replacing them on average every 19 years. By odd coincidence, Thomas Jefferson, in a 1789 letter to James Madison, once said that every constitution “naturally expires at the end of 19 years” because “the earth belongs always to the living generation.” These days, the overlap between the rights guaranteed by the Constitution and those most popular around the world is spotty.

Americans recognize rights not widely protected, including ones to a speedy and public trial, and are outliers in prohibiting government establishment of religion. But the Constitution is out of step with the rest of the world in failing to protect, at least in so many words, a right to travel, the presumption of innocence and entitlement to food, education and health care.

It has its idiosyncrasies. Only 2 percent of the world’s constitutions protect, as the Second Amendment does, a right to bear arms. (Its brothers in arms are Guatemala and Mexico.) . . . .

“America is in danger, I think, of becoming something of a legal backwater,” Justice Michael Kirby of the High Court of Australia said in a 2001 interview. He said that he looked instead to India, South Africa and New Zealand.

Mr. Barak, for his part, identified a new constitutional superpower: “Canadian law,” he wrote, “serves as a source of inspiration for many countries around the world.” The new study also suggests that the Canadian Charter of Rights and Freedoms, adopted in 1982, may now be more influential than its American counterpart.

The Canadian Charter is both more expansive and less absolute. It guarantees equal rights for women and disabled people, allows affirmative action and requires that those arrested be informed of their rights. On the other hand, it balances those rights against “such reasonable limits” as “can be demonstrably justified in a free and democratic society.”

via ‘We the People’ Loses Appeal With People Around the World – NYTimes.com.

I suspect that in the years ahead, since nations come and go, that eventually we will be hearing calls to eliminate our obsolete constitution in favor of something new.   The new constitution will feature new rights (to food?  to health care? to travel?), but other rights will pass away–the right to keep and bear arms will be sure to go.  Also, if Canada is to be our guide, the right to express criticisms of Islam.  And we can be sure that there will be lots of other “reasonable limits” to what we will be allowed to do.

Recess vs. pro forma sessions

Former U.S. Attorney General Edwin Meese on why, according to the Constitution, pro forma sessions in the Senate do not allow for recess appointments:

As a former U.S. attorney general and a former Office of Legal Counsel lawyer who provided advice to presidents on recess appointment issues, we have defended and will continue to defend the lawful use of the recess appointment power. Although originally conceived by the Framers for a time when communicating with and summoning senators back to the Capitol might take weeks, it is still valid in a modern age — but only as long as the Senate is in recess. Not only was the Senate not in recess when these purported appointments were made, it constitutionally could not have been.

Article I, Section 5, of the Constitution states that neither house of Congress may adjourn for more than three days without the consent of the other house. The House of Representatives did not consent to a Senate recess of more than three days at the end of last year, and so the Senate, consistent with the requirements of the Constitution, must have some sort of session every few days.

The president and anyone else may object that the Senate is conducting “pro forma” sessions, but that does not render them constitutionally meaningless, as some have argued. In fact, the Senate did pass a bill during a supposedly “pro forma” session on Dec. 23, a matter the White House took notice of since the president signed the bill into law. The president cannot pick and choose when he deems a Senate session to be “real.”

It does not matter one whit that most members of Congress are out of town and allow business to be conducted by their agents under unanimous consent procedures, because ending a session of Congress requires the passage of a formal resolution, which never occurred and could not have occurred without the consent of the House.

President Obama is not the first to abuse the recess appointment power. Theodore Roosevelt did as well, but for almost 90 years the executive branch has generally agreed that a recess as recognized by the Senate of at least nine to 10 days is necessary before the president can fill any vacancies with a recess appointment.

When Senate Majority Leader Harry Reid (D-Nev.) kept the chamber in pro forma sessions at the end of the George W. Bush administration, he declared that was sufficient to prevent Bush’s use of the recess appointment power. Reid was right, whether or not his tactics were justified.

via Obama’s recess appointments are unconstitutional – The Washington Post.

Newt and the courts

What do you think of Newt Gingrich’s expressed plan, if he is elected president, to ignore court rulings that he disagrees with, to legislate judicial districts out of existence, to arrest judges in order to haul them before legislators to explain their rulings, to over-rule the Supreme Court with the agreement of the other two branches of government, and to attach riders to some laws that make them unreviewable by the courts?

What I think is that this would be a dangerous tampering with the constitutional division of powers.  In place of the rule of law (the conservative ideal), our government would be reduced to an unstable and arbitrary power struggle.  Yes, the judicial branch gets out of hand sometimes, but this is no solution.  Conservatives might like the idea of squelching liberal judges, but liberals can play the same game against conservative judges.  And for whatever legal precedents Gingrich thinks he has for all of this, throwing our whole system of government up in the air to try something else is NOT conservative and certainly NOT wise.

I’m open to persuasion, but this is turning me against Newt.

 

Gingrich, the anti-conservative – The Washington Post.

The National Debt and the Constitution

As we wrestle with the national debt and as Congress debates over whether to raise the debt limit or risk default, we should consider what the Constitution says about the issue.  First, Congress does have the right to borrow money:

‘The Congress shall have power … To borrow money on the credit of the United States.’  Article I, Section 8

But read on to the 14th Amendment and you find this:

‘The validity of the public debt of the United States … shall not be questioned.’  14th Amendment, Section 4

The 14th Amendment deals with the wreckage of the Civil War, giving citizenship to former slaves by virtue of their having been born here (another controversial issue in the immigration debate, though clearly addressed in the Constitution) among other things.  Article 4 repudiated the debt of the Confederacy, but in doing so it affirmed that the United States will always honor its debts.

This was a brilliant addition, serving as the basis for the idea that U.S. bonds are backed by the “full faith and credit” of the United States of America, meaning they are a rock solid investment.  It isn’t just our full faith and credit that backs them but the Constitution itself.  It would be unconstitutional to default on our loans.

But, as some experts are saying now in the midst of the debt ceiling negotiations in Congress, the 14th Amendment would render all of that moot.  There is no need to raise the debt ceiling because the Constitution provides that all debt that we incur must be paid.  The money that our lawmakers are squabbling over has already been spent and has been authorized by statute.  According to the 14th Amendment, that debt has to be honored.

Debt can certainly be too high and need to be controlled.  But the 14th Amendment means that whatever we borrow must be paid back.   According to some attorneys, if the current negotiations to raise the debt ceiling break down, to prevent the country from going into default, the President simply needs to sign an executive order invoking the 14th Amendment and keep borrowing money to pay our obligations, despite what Congress does.

Do you see any flaws in this legal reasoning?

 

see U.S. Constitution Under Siege over Libya, Taxes, Health Care – TIME.

HT:  Jimmy Veith

An even bigger reason why Obamacare is unconstitutional

So far the main argument why the “Patient Protection and Affordable Care Act” is unconstitutional is that it forces individuals to buy health insurance.  But there is a much bigger constitutional issue at stake, as George Will points out:

The point of PPACA is cost containment. This supposedly depends on the Independent Payment Advisory Board. The IPAB, which is a perfect expression of the progressive mind, is to be composed of 15 presidential appointees empowered to reduce Medicare spending — which is 13 percent of federal spending — to certain stipulated targets. IPAB is to do this by making “proposals” or “recommendations” to limit costs by limiting reimbursements to doctors. This, inevitably, will limit available treatments — and access to care when physicians leave the Medicare system.

The PPACA repeatedly refers to any IPAB proposal as a “legislative proposal” and speaks of “the legislation introduced” by the IPAB. Each proposal automatically becomes law unless Congress passes — with a three-fifths supermajority required in the Senate — a measure cutting medical spending as much as the IPAB proposal would.

This is a travesty of constitutional lawmaking: An executive branch agency makes laws unless Congress enacts legislation to achieve the executive agency’s aim.

And it gets worse. Any resolution to abolish the IPAB must pass both houses of Congress. And no such resolution can be introduced before 2017 or after Feb. 1, 2017, and must be enacted by Aug. 15 of that year. And if passed, it cannot take effect until 2020. Defenders of all this audaciously call it a “fast track” process for considering termination of IPAB. It is, however, transparently designed to permanently entrench IPAB — never mind the principle that one Congress cannot by statute bind another Congress from altering that statute. . . .

Diane Cohen, the [Goldwater] institute’s senior attorney [a group filing suit on this issue], demonstrates that the IPAB is doubly anti-constitutional. It derogates the powers of Congress. And it ignores the principle of separation of powers: It is an executive agency, its members appointed by the president, exercising legislative powers over which neither Congress nor the judiciary can exercise proper control.

via Government by the ‘experts’ – The Washington Post.


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