Health Insurance, Obamacare and Government

January 25, 2017 Frank Kuchar

Congress and our new President are pushing to “repeal and replace” Obamacare. I wholeheartedly applaud the goal of repealing Obamacare. However, the greater issue surrounds its passage to begin with and the follow up notion of “replacing”.

Obamacare is a clear violation of the statement laid down by James Madison in Federalist 45 that “The powers delegated by the proposed Constitution to the federal government are few and defined.” Nowhere in the Constitution’s enumeration of the federal government’s powers is there any hint of a reference to its operation in the realm of health care. Consequently, from this basic truth, Obamacare is unconstitutional and on that ground demands repeal.

However, that same principle also demands that Congress and President Trump not seek any kind of “replacement” by the federal government. The proper role of the government in healthcare from the standpoint of the Constitution is no role at all. If anything, it could be argued that the power of Congress to regulate commerce among the several states would authorize it to pass legislation which would allow insurance companies located in one state to “sell” its services in all other states. This commerce clause in Article I Section 8 was inserted to prevent the states from charging tariffs on goods sent into them from other states, and in a sense insurance services could be likened unto an importation of a product from one state into another. Hence, Congress legislating that all states allow insurance companies in one state to sell in another would be within its constitutional purview. (It seems such action should be unnecessary as Congress didn’t have to pass legislation requiring states to allow Chevrolet or Ford to send their products from Michigan and other locations to all of the other states, so why should it be required to force states to allow insurance companies to “sell across state lines”?)

Those who oppose this move of repealing the so-called “Affordable” Care Act claim that access to health insurance is a “right”. I have addressed this matter in previous essays in more detail, but simply put, a “right” is something that has always been and will always be – something neither created nor granted by man. Obviously, a cursory examination of the history of health insurance indicates that it fails this basic premise of “rights.” The concept of health insurance is less than 100 years old and has changed and been modified considerably since its introduction into our society. Therefore, access to health insurance cannot be a right in the same vein as the right to life, liberty and property. There is a reason why companies that provide health insurance coverage options to their employees style it as a “benefit”, administered by their “Benefit Department”. Benefits are something that can be given and taken back, unlike rights which cannot be.

I would hope that Congress and President Trump will indeed repeal Obamacare in its entirety and then butt out and allow the free market to provide a variety and innovative options from which we can choose coverage that is both affordable and appropriate for our individual needs.

-January 27, 2017

Article IV and the Antiquities Act of 1906

December 30, 2016 Frank Kuchar

President Obama just used his “pen” again to nationalize large swaths of federal land in the western states, removing them from development, as well as hundreds of millions of acres of the ocean from exploration. This action raises a number of constitutional issues.

First is the issue of just who has the constitutional right to these lands and seas? Laws have been passed regarding federal authority over these areas, but the larger question remains, are they constitutional? Article I, Section 8 of the Constitution lists the properties that the federal government has the authority to own, and all of these areas addressed by President Obama (and many presidents prior to him) are not included in that specific list. So if the federal government has no right to these lands/seas, then it has no authority to dictate to the states how the land may or may not be used. The lands belong to the states within whose boundaries they lie; to argue that they ceded ownership to the federal government and therefore legitimizes federal ownership does nothing to change the fact that the Constitution says nothing about such ownership rights.

When President Jefferson sought to acquire what came to be known as the Louisiana Purchase, he had such grave misgivings about the constitutionality of such an acquisition that he pushed for a constitutional amendment that would grant federal ownership to such properties. In 1803 Jefferson wrote “The General Government has no powers but such as the Constitution gives it… it has not given it power of holding foreign territory, and still less of incorporating it into the Union. An amendment of the Constitution seems necessary for this.” The land belongs to the states. The ocean shore out to the international limit belongs to the states. It is they who have the constitutional authority over those areas and not the federal government.

This brings us to Article IV, Section 3 of the Constitution. It states that “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.” Furthermore, Article VI, clause 2 goes on to state that “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof;…shall be the supreme Law of the Land.” Any law, therefore, which the enforcement of or granting of powers is in conflict with the Constitution is not “in Pursuance of” the Constitution, and must of necessity be null and void.

The Antiquities Act of 1906 was passed to preserve archeological sites on public lands from looters. It gave the President absolute authority to single-handedly designate any federal public lands as national monuments, and thus protect it from looters. This Act is the basis for President Obama’s actions, and yet this law clearly flies in the face of the Constitution’s granting to Congress and Congress only the “Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.”

The states should stand together and nullify this unconstitutional Act and take back those lands and seas that rightfully belong to them, with the exception of those few constitutionally authorized properties that Article I, Section 8 grants to the federal government.

-December 30, 2016

Why Congress MUST Stay in Session

December 9, 2016 Frank Kuchar

In most instances I would say the less time Congress is in session, the safer our freedom and liberties are. However, for the upcoming holiday break and the time between the swearing in of the new congress and the inauguration of President-elect Trump, this is not the case – at least for this year.

My concern is the vacancy on the Supreme Court left by the unfortunate passing of Justice Antonin Scalia. In March of this year President Obama fulfilled his constitutional duty of nominating Merrick Garland to fill that vacancy on the court. However, the Senate has stated they will not take up deliberations on confirming his appointment, which is both their constitutional responsibility and prerogative. This leaves us at a stalemate over the vacancy.

So what’s this got to do with Congress taking its traditional holiday adjournment and the break between their swearing in and the presidential inauguration? Article II, Section 2, Clause 3 of the Constitution states that “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” In addition, Article I, Section 5, Clause 4 states that “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.”

Should both houses of Congress agree to adjourn for more than three days during either of the two time periods I’ve mentioned, then President Obama could appoint a liberal, progressive judge to the Supreme Court without the consent of the Senate, and that individual would sit on the court until a new Congress is elected in 2018, at which time the Senate could confirm or deny confirmation, in which case that individual would be removed from the Court and President Trump would be free to nominate a conservative replacement. Indeed, there are some in the Democrat caucus in Congress that are encouraging President Obama to do just this. Yet if Congress remains in session he could not constitutionally make any appointments.

Hopefully the Republicans will not be so arrogant to think that President Obama would not do this or that if he did, they could undo the appointment in 2019. There are two serious dangers with this thinking. First, President Obama has shown in the past that he is indeed willing to make controversial recess appointments. In January 2012 he appointed three liberal, pro-union individuals to the National Labor Relations Board and it wasn’t until June 2014 that the Supreme Court ruled unanimously that the appointments were illegal. By then, however, those three individuals had done much damage in their rulings.

Second, consider what would happen if the Republicans fail to maintain their majority in the Senate in the 2018 elections. Then the Democrat-controlled Senate would confirm the appointment and that justice would have his/her life-time appointment to the Court. Not only this, but even if the Republicans maintained their majority status in the Senate in the 2018 elections, that would still give the Court a liberal majority for two years, during which time much mischief could be done to our Constitution, our freedom and our liberties.

So, there you have it. It is imperative that Congress put the wellbeing of the country and the future of the Supreme Court above their desire to “take a break” from their elected duties. Many in our military won’t be home for the holidays because of their duties in service to our country; why should members of Congress be any different?

-December 9, 2016

Term Limits Isn’t Enough

November 4, 2016 Frank Kuchar

Thanks to their corruption and lack of identity with those they represent, a vast majority of Americans want to have term limits imposed upon members of Congress. We have, as a people, reached the point described by the Baron Charles de Montesquieu in his monumental work The Spirit of the Laws, written in 1748:

“…if the legislative body were continuously convened,…if the legislative body were once corrupted, the ill would be without remedy. When various legislative bodies follow each other, the people, holding a poor opinion of the current legislative body, put their hopes, reasonably enough, in the one that will follow; but if the legislative were always the same, the people, seeing it corrupted, would expect nothing further from its laws; they would become furious or would sink into indolence” (Book 10, Part II, chapter 6).

The Anti-Federalists, during the debates over the ratification of the Constitution in 1787-1788, had picked up on this warning and asserted that in time, without limitation on members of the House and Senate, America would evolve into the corrupt government we have today. The Federalists, led by Madison’s defense of the Constitution’s structure of the House in The Federalist Papers, argued that those who sought the office of a Representative would do so out of the noble desire to serve, and then only briefly for the people would not tolerate those who would seek to make it a profession by which they could enrich themselves. Obviously, on this matter, the Anti-Federalists “had it right.”

One of the issues that Republican presidential nominee Donald Trump has made part of his campaign is to push for Congress to send to the states for ratification an amendment to the Constitution to limit the length of years individuals can serve in Congress. However, unlike others who have pushed for term limits, he has added another ingredient that must be included else term limits, by themselves, will not end the corruption but instead, abet it.

The other side of the term limit coin that Trump has added is the limitation and/or prohibition of former members of Congress becoming lobbyists after they leave office. During the time of our founders, they referred with disdain to those we call lobbyists as “stock jobbers”, and were against allowing these kind of individuals from influencing those in power. Trump suggests that former members should be prohibited from becoming lobbyists for at least 5 years after leaving office, but I would suggest he should go further and make it a lifetime ban.

The reason this is necessary and why term limits alone will not end corruption is that in a representative’s or senator’s final term, he/she would be a “lame duck” and therefore more interested in “paving the way” for their future rather than serving the interests of the people. Thus they would be more inclined than ever before to do favors for those they hoped would employ them when their term was up.

We’ve had enough of the “pay to play” not so “merry-go-round” with the Clintons to last us a lifetime – we don’t need to create an environment that would encourage it. Term limits – yes, an unfortunate remedy which I have reluctantly come to embrace, but only if we have the other side of the coin put in place along with it.

-November 3, 2016

Do We Need More Representatives in Congress?

October 8, 2016 Frank Kuchar

Before you dismiss me as having lost my mind, let me take you back to the debate over the ratification of our Constitution over this very question. During the Constitutional Convention in 1787 there was much debate over how many representatives were to compose the House of Representatives. The final compromise was for each state to have no less than one representative and that there would be a limit of no more than one representative for every 30,000 citizens (which was a reduction in the original ceiling of 40,000 that had been proposed). As a result, for a population of around three million the first House of Representatives was set at sixty-five (interestingly, James Madison had argued for double that number).

In the ensuing debate in the papers during the ratification process those who opposed the Constitution as it was written repeatedly argued that this ratio allowed for too few representatives. Patrick Henry in his speech on June 7, 1788 during the Virginia Ratification Convention argued that the style of the language in Article I Section 2 was too vague and would be subject to future manipulation. The Anti-Federalist Robert Yates, a delegate from New York who used the pseudonym “Brutus”, wrote a scathing essay (Essay # IV, November 29, 1787) on this matter:

“The small number which is to compose this legislature, will not only expose it to the danger of that kind of corruption, and undue influence, which will arise from the gift of places of honour and emolument, or the more direct one of bribery, but it will also subject it to another kind of influence no less fatal to the liberties of the people, though it be not so flagrantly repugnant to the principles of rectitude…A farther objection against the feebleness of the representation is, that it will not possess the confidence of the people.”

The number was increased as the population of the country grew until The Permanent Apportionment Act was signed into law on June 18, 1929 which set the number at our current level of 435, based upon the 1910 census. Those who opposed this Act argued it was unconstitutional, but the law stood, and the current method of reapportionment was adopted in 1941. Obviously the objection of Patrick Henry over the vagueness of the wording in the Constitution proved to be true.

In Federalist #56, James Madison took on this argument of too few representatives, and in it made this observation: “It is a sound and important principle that the representative ought to be acquainted with the interests and circumstances of his constituents.” So the question is, given our population today and the number of representatives allotted, can this principle hold true?

We now have a ratio of approximately 700,00 citizens for each representative. Consider the fact also that according to many recent reports as much as two-thirds of a representative’s day is devoted to fund-raising for his/her party as well as his/her own re-election efforts. Given also the amount of time spent away from their districts and the sheer number of constituents, how can they possibly fulfill Madison’s dictum? The answer is, they can’t, despite the best efforts of some to do so; it just isn’t humanly possible.

This is part of the reason it is also hard for a challenger to defeat a well-entrenched, well-funded incumbent. I know from personal experience as I tried to do so twice, in the 2012 and 2014 GOP primaries. In my case I had to cover two and a half counties while holding down a full-time job and relying on a small group of loyal un-paid volunteers who also had full-time jobs. In such instances, reaching 700,000 people requires more time and money than an average citizen can muster, and so it is that those elected tend to be individuals who are well-connected or who have worked their way up the political ladder, building their name recognition and “war chest” of funds along the way. Such was not the intention of our founders in their vision of what the House of Representatives would be.

By increasing the number of representatives you reduce this ratio, making it more likely that citizen-statesmen could arise and be more ” acquainted with the interests and circumstances of his constituents.” As for The argument that too many would make it difficult to pass legislation, etc, I say “Good”! We have too many laws encroaching upon our freedom and liberties that exceed the constitutional boundaries of the general government anyway. Admittedly, too many representatives would make the Congress unwieldy. What that number ought to be I do not know, but it should be more than one for every 700,000 citizens.

-October 7, 2016