UNCONSTITUTIONAL? MAYBE, MAYBE …
Posted by Andrew Roman on December 22, 2009
Zip, at the great Weasel Zippers blog, wrote precisely what I was thinking about South Carolina Senator Lindsey Graham: “For once I can wholeheartedly agree with Graham.”
It does sound funny to say, I admit.
To be fair, Graham was quite good – great, in fact – in questioning Attorney General Eric Holder not too long ago about President Obama’s decision (and make no mistake about it, it was Obama’s decision) to try the mastermind of the 9/11 terrorist attacks in civilian court.
Obviously, it isn’t unheard of that Graham would say something that makes sense. It just doesn’t happen as often as it should.
For instance, on Sunday, he was definitely on his game when he said that the agreements reached with various Senators leading up to the passage of Harry Reid’s “manager’s amendment” was the result of “seedy Chicago politics.”
Today, Graham was even better.
Earlier, Graham said that the deal given to the State of Nebraska in exchange for Ben Nelson’s support of ObamaCare (or ReidCare, if you prefer) may be Constitutionally unsound.
Susan Jones, Senior Editor at CSN News writes:
Sen. Lindsey Graham (R-S.C.) is blasting the deal Democrats made with Sen. Ben Nelson (D-Neb.) in exchange for Nelson’s vote to advance the health care bill.
In exchange for Nelson’s critical 60th vote to cut off debate early Monday morning, Sen. Harry Reid agreed that the federal government would pick up 100 percent of the tab for the planned Medicaid expansion in Nebraska – forever.
“Legally, I think other states can make a constitutional challenge,” Graham said in an appearance on Fox & Friends Tuesday morning.
Instead of negotiating in public, there was a back-room deal, Graham said. “It goes sort of like this,” Graham said, imitating Democratic leaders:
“What do you need, Ben, for this last vote? Well, I tell you what, Medicaid’s expanding under this bill for everybody in the country…Ben, what would happen if we let Nebraska expand their Medicaid enrollment and the federal government pay for it?’”
“Done!’” Graham said, imitating Ben Nelson.
Graham recited a list of things that are not fair about the Democrats’ health care bill – including the unfairness of giving a special deal to the people of Nebraska to get one senator’s vote “and not share that deal with the rest of the country.”
One can make the argument – and a damn good one – that Ben Nelson’s sweetheart buy-out does not pass the constitutional smell taste. The notion that one state should be singled out for non-emergency preferential treatment under a federal law (unlike disaster relief after a hurricane, for example) at the expense of other states might prompt some sort of constitutional challenge. In effect, the feds would be commanding other states to foot Nebraska’s bill for Medicaid. It might be enough to get some eagle-eyed constitutionalists wondering if such a thing doesn’t violate the tenth amendment. Maybe even the fourteenth.
Earlier today, on his talk radio program, Dennis Prager was speaking with Martin Gross, bestselling New York Times author of such books as “National Suicide: How Washington is Destroying the American Dream” and “The Government Racket: Washington Waste From A to Z”:
Gross: [The federal government is} now telling the states that they have to pay for Nebraska. All the Republicans have to do is have an emergency call of the Supreme Court and point out that it’s a “crisis,” and have the Court, within a week, give a decision. And the Court – unless they’re illiterate in a judicial sense – they’re going to say it’s unconstitutional to get Nebraska off the hook when you have a health care bill.
And the Republicans should do it very rapidly, get a decision, and the bill will be dead, because it is plainly unconstitutional. It violates the federal and state compacts of the Tenth Amendment.
Prager: I will pose this question to Senator Kyle tomorrow.
Gross: Good. Good. Good.
Prager: have you posed this to any Republicans in office?
Gross: This is the first time I’ve mentioned it.
Prager: With all your knowledge, you do not know of a precedent of a federal bill – a congressional bill – that isolated a state?
Gross: Never before in history. They’re giving [Louisiana Senator Mary] Landrieu the $300 billion because of the disaster in New Orleans. That might pass or it might not pass. But the Nebraska thing is a pure anti-Constitutional violation of the Tenth Amendment which specifies federal and state opportunities and obligations. You cannot take from New York and Connecticut and give it to Nebraska – not only for an emergency period – this is forever.
Another point of constitutionality could be in the fact that this bill requires people to purchase health insurance. Earlier today, Nevada Senator John Ensign said, “”I don’t believe Congress has the legal or moral authority to force this mandate on its citizens.”
And while there is obviously nothing in the Constitution requiring American citizens to purchase anything, ObamaCare proponents will fall back on the old stand-by of citing the Commerce Clause as its reason for annexing 16% of the American economy. (You knew that was coming).
What doesn’t the Commerce Clause cover in lib-world? It is the justification for everything leftocrats feel they need to be in control of for the betterment of the nation. It gets more of a workout than Tiger Woods’ wood. (Golf club, I mean).
And for those who like to use the requirement of automobile insurance as a means of validating mandatory health care, the comparison is painfully flawed. First, the main purpose of auto insurance is not – repeat not – to make sure drivers themselves are covered. It’s to make sure that other drivers are covered in the event of an accident. Second, auto insurance is only required if one chooses to drive. Third, auto insurance is not a federal issue. It is a state issue.
Assuming that a health care bill eventually does become law – after what will be, at the very minimum, a whole lot of screamin and yelling between House and Senate Dems – and these constitutional challenges do, indeed, make it to the Supreme Court, it becomes abundantly clear why it is absolutely necessary to elect the right people to the Presidency (literally and figuratively).
It is the Chief Executive who appoints justices to the Supreme Court.
If, for instance, the moderate John McCain would have won the election last November, and the question of this health care law’s constitutionality came before the Supreme Court with an appointee of his as David Souter’s replacement – a strict constructionist – the bill would almost certainly face the death it deserves … which it may anyway.
There is hardly a Presidential legacy more enduring than whom he appoints to the Supreme Court – except maybe that of government run health care.