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Best Option to Repeal Obamacare

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If House Republicans are serious about wanting to repeal Obamacare, they should pass a Resolution stating that some, or all, portions of the Obamacare law are unconstitutional. A House Resolution doesn't require Senate approval and cannot be vetoed as would be the case with a bill eliminating Obamacare.

The Resolution should include a statement reminding the courts that the only justification Chief John Marshall could cite for ruling on the constitutionality of an Act of Congress in Marbury v. Madison was the oath the justices took to support the Constitution. Members of Congress take the same oath and thus have the same authority to express opinions of the Constitution.

The voters provide the ultimate check on government. If one Congress acts contrary to what voters think is correct, they have the option of electing new members to correct the improper action. The House of Representatives is the closest to the people because each district is approximately equal in population and all are subject to replacement every two years.

Those challenging Obamacare in court could use such a Resolution to support their claims that the law is unconstitutional.

House members should consult with those challenging Obamacare for suggestions about what the Resolution should include. The following indicate some of the substantial constitutional problems with Obamacare.

Regulating individual behavior using the Interstate Commerce Clause sounds like a violation of the 13th Amendment which abolished slavery. Congress could regulate the behavior of humans as elements of commerce when those humans were commodities to be bought and sold as slaves. Free citizens have the freedom to engage in interstate commerce or not engage in interstate commerce.

Requiring people to pay for health care by purchasing insurance violates their right to privacy in making health care decisions. The Supreme Court in Roe v. Wade and other cases has held that government cannot interfere in a person's right to make personal health care decisions. Requiring people to purchase insurance can force them to turn over health care decisions to an insurance company. Forcing them to turn money over to an insurance company instead of using it to pay for the type of health care they desire can deprive them of their right to choose health care options the insurance company doesn't support, such as plastic surgery, a sex change operation or treatment insurance companies considers "experimental".

Abortion supporters don't understand that Obamacare could eliminate abortion funding if health insurance companies considered late term or other abortions too costly or "risky". If the Interstate Commerce Clause can override the right to privacy on health insurance, then it can override the right to privacy on other health care decisions. This possibility may not be important for Obamacare opponents, but it is important to many Supreme Court justices.

Requiring people to purchase private health insurance violates the freedom of religion guarantees of the First Amendment. Some religions such as the Amish religion and Islam consider purchasing private insurance wrong. The Christian Science religion questions the use of medical doctors. Requiring members of these religions to purchase private health insurance deprives them of their right to practice their religion.

Exempting them from the requirement, creates a special benefit that amounts to a subsidy of their beliefs because they are allowed to keep more of their money for their own use, including donating it to their organization, than those who belong to other religious groups or don't belong to any religious group. Allowing members of some religions to spend money that members of other religions don't have to spend has the same impact as providing a direct government subsidy of the privileged religious groups. The First Amendment refers to government subsidy of a religion(s) as an "establishment of religion".

I have heard that the act creating Obamacare contains a provision that in effect states that if the Supreme Court finds any part of the act unconstitutional than the entire act would be invalid. Such a provision in and of itself would render the act unconstitutional because the provision would alter the powers of the Supreme Court. The Supreme Court's ruling in Marbury v. Madison invalidated an Act of Congress for a less significant attempt to alter the Court's power.

Such a provision would drastically alter the Court's Article 3 powers both expanding and restricting them. The provision would in effect grant the Court a stronger veto power than the President has because Congress could not override the Court's "veto". On the other hand the provision would dictate to the Court by removing the option of invalidating or modifying only those provisions in legislation that in the opinion of a majority of the Court violate some portion of the Constitution. The Constitution established the judicial branch to limit the ability of the government to control the lives of its citizens by limiting the circumstances under which the government could impose punishment. The judicial branch is not supposed to function as a super legislature.

The requirement that individuals purchase health insurance from private companies at rates set by those companies involves the transfer of the government's taxing authority to private companies which deprives voters of the ability to elect those who determine their taxes.

The Resolution should remind the Court that forcing people to purchase private health insurance is unnecessary to provide people with access to health care. Government can raise revenue to pay for health care with its taxation powers and then use that money to directly pay health care costs as it already does with Medicare and Medicaid.

The comparison of Obamacare to requirements for purchasing auto liability insurance is invalid. The auto liability insurance requirement is a requirement that those who engage in the dangerous activity of driving a motor vehicle prove they can compensate anyone who suffers a loss because of their mistakes while operating a motor vehicle. Many states allow motorists to fulfill this liability requirement by posting a bond rather than purchasing insurance.

Comments

Bob Forer 3 years, 11 months ago

You obviously aren't a lawyer, nor do you understand the separation of powers doctrine.

"Members of Congress take the same oath and thus have the same authority to express opinions of the Constitution."

99% wrong. The only Constitutional opinions that have any weight are those rendered by our Court system. And as the highest court in the land, The Supreme Court of the United States has the final say.

Congress makes laws. The Federal Courts interpret them. What don't you understand about the Separation of Powers Doctrine?

snowwater 3 years, 11 months ago

RE: "You obviously aren't a lawyer, nor do you understand the separation of powers doctrine."

TheSychophant, you are correct about the obvious... Reasonmclucus has a profile that begins: "I'm a retired janitor who has 100 hours of graduate study beyond an M.A."

Are you a lawyer as you suggest? Please make your point on its merits without demeaning another and avoid using a "nor" lacking a "neither." Thank you.

Bob Forer 3 years, 11 months ago

is this what they mean by "the pot calling the kettle black." What is your purpose in mentioning the writer's former occupation as a janitor, if not to demean him?

Bob Forer 3 years, 11 months ago

"Nor" is also a coordinating conjunction. Have you seen this easy-to-remember list of coordinating conjunctions? Just remember FANBOYS!!!

For And Nor But Oor Yet So

"Nor" is on this list! Want an example? Looky here:

Tom told us he didn't want to come to our party, nor did any of us want him to come.

Are you an English major? I minored in English?

tomatogrower 3 years, 11 months ago

But I'm not sure what you would want. Many provisions in the bill were originally promoted by the conservatives during the Bush administration. If it hadn't been for that bill my son would have not been on our insurance recently when he had a very expensive injury. The hospital would have had to treat him anyway, and since he is currently laid off from his job, the hospital would have eaten the costs, then passed the costs on to those who pay for or have insurance. Instead my insurance took care of enough of the bill that he can pay for the rest. I am personally thankful for the bill. I also instill in him that as soon as he is old enough he needs to have some sort of insurance on his own, either through his job, or on his own. This is just being responsible, whether or not the government tells you to do it or not. Kind of like not drinking and driving or texting and driving. Maybe there shouldn't have to be a law, but there are many people who think that they will never have medical costs, so they'd rather buy luxuries, instead of necessities. Other's irresponsibility will cost you in the end no matter what.

notajayhawk 3 years, 11 months ago

"I also instill in him that as soon as he is old enough he needs to have some sort of insurance on his own"

So the rest of us have to pay more for our insurance because, in your opinion, he's not "old enough" yet?

"Other's irresponsibility will cost you in the end no matter what."

Such as, for instance, your son's failure to carry his own insurance, which cost the other policyholders with your insurance company a bundle.

Hoots 3 years, 11 months ago

This health care bill is garbage. We do need a better system but this isn't it. Obama made a deal with the insurance industry and Big Pharma to get a plan...any plan even if it was a bad one. Basically the bill was written by the people who want to continue picking your pocket. It's just 2400+ pages that cheat the taxpayer. Frontline did a great show on this. If you think you got a good deal then watch this. http://www.pbs.org/wgbh/pages/frontline/obamasdeal/view/?utm_campaign=viewpage&utm_medium=grid&utm_source=grid

Bob Forer 3 years, 11 months ago

I agree with you Hoots. But I don't think the author wants to replace the current law with a single payer system. He is obviously a pimp for the millionaires, and would rather see the poor and underclass go without medical care and lower the taxes for his wealthy masters.

notajayhawk 3 years, 11 months ago

Actually, the government does give them cell phones.

Clark Coan 3 years, 11 months ago

Attorney General Derek Schmidt erroneously claims that requiring individuals to have health insurance beginning in 2014 violates the Commerce Clause of the Constitution and has joined a multi-state lawsuit challenging this provision.

The U.S. Supreme Court ruled 70 years ago in Wickard v. Filburn (1942) that the Federal government can, under the Commerce Clause, require individuals to perform certain acts. In that specific case, the court ruled that Congress can require farmers to limit crop production or face fines.

This is settled law and will not be overturned.

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