Senator Jim DeMint wrote a nice op-ed today and I encourage you to take a couple of minutes to read it.
You can click on the title of this post or just click here (http://www.foxnews.com/opinion/2009/12/09/jim-demint-health-care-tea-parties-government/) to read it.
Wednesday, December 9, 2009
Thursday, October 29, 2009
Hypocrite of the Day
Yesterday morning, while driving to a work, I saw a blue SmartCar with a "Save the Planet" bumper sticker on it. The kicker is that it was being pulled behind a giant, new RV. The RV had out of state tags. I am still trying to figure out how the RV helps with the whole "global warming" thing.
Wednesday, October 7, 2009
Become a Follower
If you like what you read on here, please become a follower of this blog. I moved the Follower widget to the top of the sidebar so it can be easily accessed. Just click on the "Follow" link and become more engaged with this site. Hopefully more of you will participate and we can have discussions that follow new posts.
The Constitutionality of ObamaCare
Many Americans are starting to question the Constitutionality of the proposed health care legislation. Journalists, opinion writers, and various other media personalities are beginning to examine these contentions and discuss or dispute the validity of the claims. As I discussed in a previous post about the conflict that may arise due to the right to privacy, much more analysis is necessary before any legislation becomes federal law.
One of the arguments claiming that ObamaCare is unconstitutional focuses upon a provision within the proposed legislation that mandates all Americans purchase health insurance or pay a tax as penalty (see page 167: HR 3200). Opponents to this feel that the federal government does not have the power to force citizens to purchase anything, regardless of whether someone within the government feels it is “good for you” or provides you with some benefit. It is a fundamental belief that individuals have the right to choose what to purchase, or not to purchase, and that the federal government is reaching far beyond its intended grasp. The argument is that our political system is one where the federal government is limited in authority only to the specific, enumerated powers listed within the text of the Constitution and that any further actions should be found void by the final arbiter of these disputes. That arbiter is the U.S. Supreme Court.
Supporters of the many variations of health care reform point to the Commerce Clause, the General Welfare Clause, and the Taxing Power as the constitutional authority to mandate that all citizens purchase health insurance (that is, when supporters actually consider these contentions and attempt to establish legitimacy to their preferred method of universal health insurance). These powers alone may not be able to justify the proposed federal action but taken together do present a stronger argument; although, as I will discuss, this specific mandate is distinguishable and presents serious constitutional questions.
Constitutional Clauses in Question
The Commerce Clause, the General Welfare Clause and the Taxing Power are all found within Article I, Section 8 of the U.S. Constitution.[1] The relevant provisions read as follows:
“The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States…”
“To regulate Commerce with foreign Nations, and among the several States and with the Indian Tribes”
Article I Section 8, Subsections 1 and 3, respectively (Emphasis mine). The language seems straight forward; however, the Courts have historically taken an extremely broad reading of these provisions and have thus expanded the power of the federal government.
Without getting into too much detail, the Commerce Clause was put into place for specific, limited situations. One was to regulate Commerce between any State in the USA and with foreign nations. This is straight forward enough. In order to promote conformity throughout the land, you need all States to trade similarly with foreign nations. Second, it was to regulate trade from States or the federal government with Native Americans. The land granted to the Native Americans was considered separate from the federal government and the States and was treated as such. Again, you want conformity when a State deals with an entity outside of the union. Finally, the Commerce Clause was meant to regulate commerce between the States. The justification lies in the desire to have conformity and because of the need to resolve disputes between States that wouldn’t result in a weakening of the nation.
From the time of our Nation’s founding until the Great Depression, the Commerce Clause tested the boundaries of federal power but failed to make any exceptional extensions of the power. In 1942, the Supreme Court heard the case of Wickard v. Filburn (317 U.S. 111). President Roosevelt had signed into law many pieces of legislation that were collectively known as the “New Deal.” These federal laws were meant to stabilize the decimated economy and create a safety net for citizens. One such statute, The Agricultural Adjustment Act of 1938, placed restrictions on wheat farmers and attempted to stabilize the price of wheat by controlling the amount of wheat that was ultimately grown and harvested.
Filburn used more land than the government allotted and harvested more wheat than the government allowed. However, Filburn used the excess amount of wheat for personal consumption in his home – it never went to market or entered the so-called “stream of commerce.” This argument was vigorously made to the Supreme Court, but it ultimately failed in a unanimous decision. The Court reasoned that Filburn’s consumption of the wheat he harvested should be regulated because of the cumulative effect it had on interstate commerce. Specifically, the Court stated that had he not grown and harvested excess wheat, he would have purchased it on the open market. This effect, when taken in the cumulative possibility of every farmer acting similarly, had a substantial impact on the economy. The Court concluded that this private behavior was now under the purview of federal regulations.[2] Many now feel that the Commerce Clause can be used to regulate any economic behavior, public or private.
The Taxing Power is much more straight forward. Essentially, the government is allowed to raise revenue by taxing the population. However, the taxation was only intended to be used to pay for the common defense or the general welfare. National security through military presence and force is easy enough to understand and does not present grounds for dispute.
The General Welfare Clause is another story. The meaning of this provision has been debated since its inception. James Madison, co-author of The Federalist Papers and one of the leading proponents of the Constitution and our Republic’s founding, did not read this clause liberally. In a letter to Rev. Frederick Beasley in 1825, Madison stated:
“With respect to the words "general welfare," I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.”
(Emphasis mine) Alexander Hamilton, another co-author of The Federalist Papers and a leading advocate for the Constitution, read the provision much more broadly and stated that it expanded federal power beyond that which was enumerated in the text. The Supreme Court did not hear a case on this clause until the 1930’s. Two cases were heard within a year of one another on the meaning of this constitutional provision. The cases, United States v. Butler (1936) and Helvering v. Davis (1937) had similar outcomes. The general holding was that the Welfare Clause is an expansive power, much like Hamilton’s perspective, and that Congress was able to determine what “the General Welfare” meant. The only real limitation placed upon Congress was that the legislation must be national or general, not local or limited issues. The Welfare Clause has lost much of its luster and power because of the growth of the Commerce Clause through the interpretation of the Courts.
Distinctions in Constitutional Text/Judicial Decisions and ObamaCare
With the basic understanding of the Constitution discussed, the focus can now shift to whether a requirement to purchase health insurance or pay a penalty is permitted action by the federal government. The supporters of ObamaCare can make some valid arguments as to the legitimacy of the proposed legislation within our Constitutional framework. These arguments, though, can be disposed of fairly quickly.
The Taxing Power is a means to collect revenue and by itself does not present any real issues as to the constitutionality of federal action. The caveat here is that the President, the Congress, and supporters of this, or a similar, plan unequivocally state, both in person and the text of the legislation, that the individual mandate is not a tax. If they stand firm in this position and do not treat the mandate as a tax, then this Constitutional provision is moot.
Likewise, the General Welfare clause, by itself, does not present an overly significant hurdle. It can be argued that universal health insurance is in the best interests of society and promotes the General Welfare of the population. However, the General Welfare clause must be read in conjunction with the Taxing provision. As we know, the Taxing power does not apply; this comes from the language of the proposals and from the proponents of the so-called health care reform. If the politicians pushing this legislation take the politically unpalatable position of calling the mandate a tax (thereby causing the President to break a campaign pledge less than 9 months into his first term), then a host of other issues will arise and require further review.
What then remains as evidence of the constitutionality of such federal action is the Commerce Clause. However, there is one major distinction present in the current debate that has yet to exist in previous jurisprudence. Namely, the legislation, and the accompanying mandate to purchase health insurance, is an attempt to regulate the individual. Remember that the Commerce Clause specifically states that it is meant “[t]o regulate Commerce[.]” There is no mention of regulating citizens nor has any Court decision I know of stated such.
Previous judicial interpretations have only gone so far as to regulate economic activity. Granted, Wickard v. Filburn did regulate the economic behavior of an individual. However, it did so in the context of controlling his commercial activity (the farmer grew and used his own wheat instead of purchasing it on the open market). In the case of ObamaCare, individuals will be required to purchase health insurance. They will, for all intents and purposes, be treated as some sort of commerce and not as a person participating in commerce.
This distinction is important. Our legal system has never accepted an interpretation of the Constitution that states that the individual can be regulated as commerce. A judicial decision making this leap and the break from legal precedent would be an exceptional extension of the understanding of this provision. The potential for abuse here is another factor that would require consideration as future politicians could expand the behavior to be regulated almost infinitely. This argument is commonly known as the “slippery slope,” meaning that once you start down a hill, you can quickly fall all the way to the bottom. This would most likely further tilt the playing field against validating this concept. Therefore, it is highly unlikely that a majority of Supreme Court justices would support the notion that people are commerce and under the purview of the Commerce Clause.
One final note, a strong case can be made that this discussion is irrelevant and that an individual mandate is really just a Bill of Attainder, which is specifically prohibited in Article I, Section 9, Subsection 3 of the Constitution.
This is a legislative concept that stems from English law and was specifically singled out by our Founders. A Bill of Attainder is a congressional action penalizing individuals for certain behavior without allowing them a chance to defend themselves in a court of law. Requiring individuals to purchase health insurance or pay a penalty to the federal government fits squarely within the recognized definition of this type of action; there is no process for allowing the individual to file a legal action and make a case against not choosing to spend money on something he does not desire. The outcome is that the legislature commands that you spend money on health insurance or give money to the government for health insurance without a chance to defend yourself and legally justify your decision.
Essentially, our Constitution refuses to acknowledge this type of statute and states that no one can be punished for behavior without due process of law and the full protections of the judiciary. This is another example of the separation of powers that were incorporated into our governmental framework to ensure maximum protection of the individual’s natural rights. It is also a legitimate threat to the individual mandate and something that must be addressed before any legislation is passed into law.
[1] Article I regulates the behavior of the federal legislature.
[2] Former Chief Justice of the Supreme Court William Rehnquist called this a “doctrinal change” and discussed the vast expansion of the Court’s interpretation in US v. Lopez.
One of the arguments claiming that ObamaCare is unconstitutional focuses upon a provision within the proposed legislation that mandates all Americans purchase health insurance or pay a tax as penalty (see page 167: HR 3200). Opponents to this feel that the federal government does not have the power to force citizens to purchase anything, regardless of whether someone within the government feels it is “good for you” or provides you with some benefit. It is a fundamental belief that individuals have the right to choose what to purchase, or not to purchase, and that the federal government is reaching far beyond its intended grasp. The argument is that our political system is one where the federal government is limited in authority only to the specific, enumerated powers listed within the text of the Constitution and that any further actions should be found void by the final arbiter of these disputes. That arbiter is the U.S. Supreme Court.
Supporters of the many variations of health care reform point to the Commerce Clause, the General Welfare Clause, and the Taxing Power as the constitutional authority to mandate that all citizens purchase health insurance (that is, when supporters actually consider these contentions and attempt to establish legitimacy to their preferred method of universal health insurance). These powers alone may not be able to justify the proposed federal action but taken together do present a stronger argument; although, as I will discuss, this specific mandate is distinguishable and presents serious constitutional questions.
Constitutional Clauses in Question
The Commerce Clause, the General Welfare Clause and the Taxing Power are all found within Article I, Section 8 of the U.S. Constitution.[1] The relevant provisions read as follows:
“The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States…”
“To regulate Commerce with foreign Nations, and among the several States and with the Indian Tribes”
Article I Section 8, Subsections 1 and 3, respectively (Emphasis mine). The language seems straight forward; however, the Courts have historically taken an extremely broad reading of these provisions and have thus expanded the power of the federal government.
Without getting into too much detail, the Commerce Clause was put into place for specific, limited situations. One was to regulate Commerce between any State in the USA and with foreign nations. This is straight forward enough. In order to promote conformity throughout the land, you need all States to trade similarly with foreign nations. Second, it was to regulate trade from States or the federal government with Native Americans. The land granted to the Native Americans was considered separate from the federal government and the States and was treated as such. Again, you want conformity when a State deals with an entity outside of the union. Finally, the Commerce Clause was meant to regulate commerce between the States. The justification lies in the desire to have conformity and because of the need to resolve disputes between States that wouldn’t result in a weakening of the nation.
From the time of our Nation’s founding until the Great Depression, the Commerce Clause tested the boundaries of federal power but failed to make any exceptional extensions of the power. In 1942, the Supreme Court heard the case of Wickard v. Filburn (317 U.S. 111). President Roosevelt had signed into law many pieces of legislation that were collectively known as the “New Deal.” These federal laws were meant to stabilize the decimated economy and create a safety net for citizens. One such statute, The Agricultural Adjustment Act of 1938, placed restrictions on wheat farmers and attempted to stabilize the price of wheat by controlling the amount of wheat that was ultimately grown and harvested.
Filburn used more land than the government allotted and harvested more wheat than the government allowed. However, Filburn used the excess amount of wheat for personal consumption in his home – it never went to market or entered the so-called “stream of commerce.” This argument was vigorously made to the Supreme Court, but it ultimately failed in a unanimous decision. The Court reasoned that Filburn’s consumption of the wheat he harvested should be regulated because of the cumulative effect it had on interstate commerce. Specifically, the Court stated that had he not grown and harvested excess wheat, he would have purchased it on the open market. This effect, when taken in the cumulative possibility of every farmer acting similarly, had a substantial impact on the economy. The Court concluded that this private behavior was now under the purview of federal regulations.[2] Many now feel that the Commerce Clause can be used to regulate any economic behavior, public or private.
The Taxing Power is much more straight forward. Essentially, the government is allowed to raise revenue by taxing the population. However, the taxation was only intended to be used to pay for the common defense or the general welfare. National security through military presence and force is easy enough to understand and does not present grounds for dispute.
The General Welfare Clause is another story. The meaning of this provision has been debated since its inception. James Madison, co-author of The Federalist Papers and one of the leading proponents of the Constitution and our Republic’s founding, did not read this clause liberally. In a letter to Rev. Frederick Beasley in 1825, Madison stated:
“With respect to the words "general welfare," I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.”
(Emphasis mine) Alexander Hamilton, another co-author of The Federalist Papers and a leading advocate for the Constitution, read the provision much more broadly and stated that it expanded federal power beyond that which was enumerated in the text. The Supreme Court did not hear a case on this clause until the 1930’s. Two cases were heard within a year of one another on the meaning of this constitutional provision. The cases, United States v. Butler (1936) and Helvering v. Davis (1937) had similar outcomes. The general holding was that the Welfare Clause is an expansive power, much like Hamilton’s perspective, and that Congress was able to determine what “the General Welfare” meant. The only real limitation placed upon Congress was that the legislation must be national or general, not local or limited issues. The Welfare Clause has lost much of its luster and power because of the growth of the Commerce Clause through the interpretation of the Courts.
Distinctions in Constitutional Text/Judicial Decisions and ObamaCare
With the basic understanding of the Constitution discussed, the focus can now shift to whether a requirement to purchase health insurance or pay a penalty is permitted action by the federal government. The supporters of ObamaCare can make some valid arguments as to the legitimacy of the proposed legislation within our Constitutional framework. These arguments, though, can be disposed of fairly quickly.
The Taxing Power is a means to collect revenue and by itself does not present any real issues as to the constitutionality of federal action. The caveat here is that the President, the Congress, and supporters of this, or a similar, plan unequivocally state, both in person and the text of the legislation, that the individual mandate is not a tax. If they stand firm in this position and do not treat the mandate as a tax, then this Constitutional provision is moot.
Likewise, the General Welfare clause, by itself, does not present an overly significant hurdle. It can be argued that universal health insurance is in the best interests of society and promotes the General Welfare of the population. However, the General Welfare clause must be read in conjunction with the Taxing provision. As we know, the Taxing power does not apply; this comes from the language of the proposals and from the proponents of the so-called health care reform. If the politicians pushing this legislation take the politically unpalatable position of calling the mandate a tax (thereby causing the President to break a campaign pledge less than 9 months into his first term), then a host of other issues will arise and require further review.
What then remains as evidence of the constitutionality of such federal action is the Commerce Clause. However, there is one major distinction present in the current debate that has yet to exist in previous jurisprudence. Namely, the legislation, and the accompanying mandate to purchase health insurance, is an attempt to regulate the individual. Remember that the Commerce Clause specifically states that it is meant “[t]o regulate Commerce[.]” There is no mention of regulating citizens nor has any Court decision I know of stated such.
Previous judicial interpretations have only gone so far as to regulate economic activity. Granted, Wickard v. Filburn did regulate the economic behavior of an individual. However, it did so in the context of controlling his commercial activity (the farmer grew and used his own wheat instead of purchasing it on the open market). In the case of ObamaCare, individuals will be required to purchase health insurance. They will, for all intents and purposes, be treated as some sort of commerce and not as a person participating in commerce.
This distinction is important. Our legal system has never accepted an interpretation of the Constitution that states that the individual can be regulated as commerce. A judicial decision making this leap and the break from legal precedent would be an exceptional extension of the understanding of this provision. The potential for abuse here is another factor that would require consideration as future politicians could expand the behavior to be regulated almost infinitely. This argument is commonly known as the “slippery slope,” meaning that once you start down a hill, you can quickly fall all the way to the bottom. This would most likely further tilt the playing field against validating this concept. Therefore, it is highly unlikely that a majority of Supreme Court justices would support the notion that people are commerce and under the purview of the Commerce Clause.
One final note, a strong case can be made that this discussion is irrelevant and that an individual mandate is really just a Bill of Attainder, which is specifically prohibited in Article I, Section 9, Subsection 3 of the Constitution.
This is a legislative concept that stems from English law and was specifically singled out by our Founders. A Bill of Attainder is a congressional action penalizing individuals for certain behavior without allowing them a chance to defend themselves in a court of law. Requiring individuals to purchase health insurance or pay a penalty to the federal government fits squarely within the recognized definition of this type of action; there is no process for allowing the individual to file a legal action and make a case against not choosing to spend money on something he does not desire. The outcome is that the legislature commands that you spend money on health insurance or give money to the government for health insurance without a chance to defend yourself and legally justify your decision.
Essentially, our Constitution refuses to acknowledge this type of statute and states that no one can be punished for behavior without due process of law and the full protections of the judiciary. This is another example of the separation of powers that were incorporated into our governmental framework to ensure maximum protection of the individual’s natural rights. It is also a legitimate threat to the individual mandate and something that must be addressed before any legislation is passed into law.
[1] Article I regulates the behavior of the federal legislature.
[2] Former Chief Justice of the Supreme Court William Rehnquist called this a “doctrinal change” and discussed the vast expansion of the Court’s interpretation in US v. Lopez.
Wednesday, September 2, 2009
President Obama to Speak to American Youth
Should we, as a nation, be concerned that our President wants to speak to every school age child in the US and have them participate in activities that he has sanctioned? The answer to me seems to be: "it depends." If the message is study hard, listen to your teachers, respect the opinions of your peers, and aim to be good citizens, then we should all celebrate his efforts. On the other hand, if the purpose has political motivations, then we should oppose such action. Is asking young people to write down how Obama "inspires" them or how they can help Obama pass his plans or why his reforms should be supported truly educational or is it something more?
As Americans, we should respect and support the office of the Presidency. We should not, however, put too much support or blind faith in the individual who holds that office. There is a fine line that should not be forgotten. It is acceptable to question policies and the individual while still honoring the position. After all, we are a Republic which elects citizens from amongst ourselves to lead for a finite period of time. We are not some form of monarchy or despotism that pays homage to any single individual.
Take a look at the following news article and the press release from the Department of Education and decide for yourself - is this action an educational and inspiring speech from the office of the President or is it a move to build political support for the individual holding that position?
http://www.foxnews.com/politics/2009/09/02/critics-decry-obamas-lesson-plan-students/
http://www.ed.gov/admins/lead/academic/bts.html
As Americans, we should respect and support the office of the Presidency. We should not, however, put too much support or blind faith in the individual who holds that office. There is a fine line that should not be forgotten. It is acceptable to question policies and the individual while still honoring the position. After all, we are a Republic which elects citizens from amongst ourselves to lead for a finite period of time. We are not some form of monarchy or despotism that pays homage to any single individual.
Take a look at the following news article and the press release from the Department of Education and decide for yourself - is this action an educational and inspiring speech from the office of the President or is it a move to build political support for the individual holding that position?
http://www.foxnews.com/politics/2009/09/02/critics-decry-obamas-lesson-plan-students/
http://www.ed.gov/admins/lead/academic/bts.html
Tuesday, August 11, 2009
Parenting Skills and Health Care?
Does government intervention into the home of expecting parents have anything to do with the health care debate? Apparently so. This article (http://townhall.com/columnists/ChuckNorris/2009/08/11/dirty_secret_no_1_in_obamacare or go to http://townhall.com and go to the story entitled "Dirty Secret No. 1 in Obamacare") discusses a section of the House Bill currently being offered by House Democrats. On page 838, Sections 440 and 1904, the proposed legislation discusses sending government agents into private homes to educate citizens on how to be parents. The legislation even goes so far as to "identify" certain sectors of society that it feels needs more help than others, "especially communities with a high proportion of low-income families."
Although some of the language in the article exposing this is a bit dramatic, the point is still valid. We have a constitutional right to rear our children as we see fit. The government has never had the ability to come into the home and tell parents what to teach their children, how to raise them, and which theories of child development they think work best. Supreme Court decisions have upheld this right of parents, and restriction on government action, for over a hundred years. For a listing of just some of the cases relevant to this, go here: http://www.childrensjustice.org/cases1.htm.
This provision within the "reform" bill is yet another example of the politicians supporting it saying one thing but failing to understand the implications of the text itself. As I discussed in a previous post (The "Right" to Healthcare v. The "Right" to Privacy), this bill raises serious constitutional questions and this section is another example of the government eroding natural law and infringing upon the fundamental liberty interests of the people who grant that same government its power.
Although some of the language in the article exposing this is a bit dramatic, the point is still valid. We have a constitutional right to rear our children as we see fit. The government has never had the ability to come into the home and tell parents what to teach their children, how to raise them, and which theories of child development they think work best. Supreme Court decisions have upheld this right of parents, and restriction on government action, for over a hundred years. For a listing of just some of the cases relevant to this, go here: http://www.childrensjustice.org/cases1.htm.
This provision within the "reform" bill is yet another example of the politicians supporting it saying one thing but failing to understand the implications of the text itself. As I discussed in a previous post (The "Right" to Healthcare v. The "Right" to Privacy), this bill raises serious constitutional questions and this section is another example of the government eroding natural law and infringing upon the fundamental liberty interests of the people who grant that same government its power.
Friday, August 7, 2009
Shocking Statement from the President
http://www.breitbart.tv/obama-dont-want-the-folks-who-created-the-mess-to-do-a-lot-of-talking/
This is an unedited clip from a Virginia speech where President Obama was trying to garner support for his health care reform. Our President, the same one who took an oath to defend the Constitution, is stating that he doesn't want to hear any opposition speech (i.e. protected free speech under the 1st Amendment). He says: "But I don't want the folks who created the mess to do a lot of talking. I want them to get out of the way so we can clean up the mess. I don't mind cleaning up after them, but don't do a lot of talking." Mr. Obama then reiterates that he is the President, reminding the crowd who has the power. As an American, I do not want to attack the individual who is President even when I oppose his policies. This statement by President Obama, though, shows an unnerving level of arrogance that is unbecoming of the office and, I fear, reveals much about his personal character.
This is an unedited clip from a Virginia speech where President Obama was trying to garner support for his health care reform. Our President, the same one who took an oath to defend the Constitution, is stating that he doesn't want to hear any opposition speech (i.e. protected free speech under the 1st Amendment). He says: "But I don't want the folks who created the mess to do a lot of talking. I want them to get out of the way so we can clean up the mess. I don't mind cleaning up after them, but don't do a lot of talking." Mr. Obama then reiterates that he is the President, reminding the crowd who has the power. As an American, I do not want to attack the individual who is President even when I oppose his policies. This statement by President Obama, though, shows an unnerving level of arrogance that is unbecoming of the office and, I fear, reveals much about his personal character.
Thursday, August 6, 2009
Letter to the White House from Sen. Cornyn
After the White House asked for citizens to begin spying on one another and reporting "fishy" people and their problems with Obamacare to a government (i.e. taxpayer funded) website, one Senator (John Cornyn) decided to stand up for liberty and the American people. You can read the letter he submitted here: http://abcnews.go.com/images/Politics/Obama_Monitoring_Program%20_090805.pdf
Let us all hope that this request for information was not sanctioned by our President or any elected representatives. Those in political office should know better than to request information that can be seen as chilling political opposition and limiting free speech. Our democracy requires citizens to speak up and speak out on issues and we can not allow this program, or any similar to it, to exist if we are to respect and perpetuate our cherished traditions. No politician, President or not, is above questioning of his policies, character, or beliefs. Please take a moment to write or call your representatives and express your disbelief that such an idea would even be floated in a free and open society.
Senators: http://www.senate.gov/general/contact_information/senators_cfm.cfm.
Congressmen: https://writerep.house.gov/writerep/welcome.shtml
Let us all hope that this request for information was not sanctioned by our President or any elected representatives. Those in political office should know better than to request information that can be seen as chilling political opposition and limiting free speech. Our democracy requires citizens to speak up and speak out on issues and we can not allow this program, or any similar to it, to exist if we are to respect and perpetuate our cherished traditions. No politician, President or not, is above questioning of his policies, character, or beliefs. Please take a moment to write or call your representatives and express your disbelief that such an idea would even be floated in a free and open society.
Senators: http://www.senate.gov/general/contact_information/senators_cfm.cfm.
Congressmen: https://writerep.house.gov/writerep/welcome.shtml
Wednesday, August 5, 2009
North Carolina Budget/Tax Increases
North Carolina Governor Bev Perdue and the Democrat controlled legislature have come to an agreement about the budget for the next fiscal year. Many people will not be happy with the alterations.
The plan will increase the sales tax by 1%, making the new sales tax rate 5.5% in addition to the local rates (which make the effective sales tax and usage rate anywhere from 7.75% to 8.25% depending on the county in which you live).
There will also be an increased tax on alcohol and tobacco products purchased within the State. Any internet purchases made will, for the first time, be subject to these rates. Digital downloads, for things like iTunes, will be included, as well.
The final increase will be to income taxes on those deemed to be wealthier citizens. This means that any individual making $60,000 a year or couples making $100,000 a year will face a 2% surtax. If you make $150,000 a year as an individual or $250,000 as a married couple, the surtax will be 3%. For those that are not aware, a surtax comes off the top of your tax return. This means that it is taken before any deductions, credits, and adjustments. After the surtax is confiscated, you then move forward with the normal process of determining your tax liability for the year.
The bill is accessible at this link: http://www.ncleg.net/sessions/2009/budget/2009/S202-CCSMAxf-3.pdf. The changes to the income and sales taxes begin on page 218.
The part that is the most galling is that the budget next year (after a $4.5 billion shortage this year) will remain the same $20.3 billion dollars that it was this fiscal year. The politicians in power see fit to increase the taxpayer burden for shrinking the gap but do not seem to think that decreasing their superfluous spending is necessary. As a citizen of this State, I find it incomprehensible that our politicians think that $60,000/$100,000 is wealthy. The responsible thing to do (and the choice that average citizens would have to make) is to prioritize spending and focus on core needs while trimming the outputs.
The plan will increase the sales tax by 1%, making the new sales tax rate 5.5% in addition to the local rates (which make the effective sales tax and usage rate anywhere from 7.75% to 8.25% depending on the county in which you live).
There will also be an increased tax on alcohol and tobacco products purchased within the State. Any internet purchases made will, for the first time, be subject to these rates. Digital downloads, for things like iTunes, will be included, as well.
The final increase will be to income taxes on those deemed to be wealthier citizens. This means that any individual making $60,000 a year or couples making $100,000 a year will face a 2% surtax. If you make $150,000 a year as an individual or $250,000 as a married couple, the surtax will be 3%. For those that are not aware, a surtax comes off the top of your tax return. This means that it is taken before any deductions, credits, and adjustments. After the surtax is confiscated, you then move forward with the normal process of determining your tax liability for the year.
The bill is accessible at this link: http://www.ncleg.net/sessions/2009/budget/2009/S202-CCSMAxf-3.pdf. The changes to the income and sales taxes begin on page 218.
The part that is the most galling is that the budget next year (after a $4.5 billion shortage this year) will remain the same $20.3 billion dollars that it was this fiscal year. The politicians in power see fit to increase the taxpayer burden for shrinking the gap but do not seem to think that decreasing their superfluous spending is necessary. As a citizen of this State, I find it incomprehensible that our politicians think that $60,000/$100,000 is wealthy. The responsible thing to do (and the choice that average citizens would have to make) is to prioritize spending and focus on core needs while trimming the outputs.
An Economist's View on ObamaCare
Arthur Laffer is a well-known and respected economist. In this opinion piece in the Wall Street Journal, he presents a brief case on how ObamaCare will actually increase the costs of health care in this country. He concludes by quickly stating what type of reform could slow future cost growth and protect individual liberty.
http://online.wsj.com/article/SB10001424052970204619004574324361508092006.html
http://online.wsj.com/article/SB10001424052970204619004574324361508092006.html
Insights of Victor Davis Hanson
I can't help but post this article from Victor Davis Hanson. It is reflective about American society and the out-of-control spending and debt creation by politicians, Republican and Democrat alike. As is often the case with Hanson, he sums up his argument with wisdom imparted by a previous generation, in this case his grandfather, that we have somehow as a society forgotten.
http://article.nationalreview.com/print/?q=MjdiZTliMTdmY2FjZjI2ZmUxNGRjOGM2ZDZjYTM0MDQ=
http://article.nationalreview.com/print/?q=MjdiZTliMTdmY2FjZjI2ZmUxNGRjOGM2ZDZjYTM0MDQ=
The “Right” to Healthcare v. the “Right” to Privacy
It seems like you can’t turn on the television or radio, open a newspaper or other print article, or search an online newspaper or blog without hearing someone arguing for so-called healthcare reform and justifying it by declaring that Americans have a “right to healthcare.” The terminology itself creates more problems than most want to admit. Parsing the language of this phrase leads to two separate, yet equally vital, issues. First, is there a “right” to health care? And, if so, what do the proponents of ObamaCare mean by “health care.” Second, if there is a right to health care, how does government involvement in the medical and insurance industries respect the “right” to privacy? And, if it does respect this right, does it ensure individual Americans freedom from federal intrusion into their lives?
Rights in the United States
We must begin our discussion by first looking to what the word “right” means within the context of our Constitutional framework and the intentions of our Founding Fathers. Rights emanate from Natural Law. This theory posits a proposition stated in the Declaration of Independence; that premise is “that all men are endowed by their Creator with certain unalienable rights.” This is a conviction upon which our government was based. Notice that there is no grant of these rights from one group of people to another or from a government to the populace. Since all men are born with certain rights, no law or government can contravene them. This is essential to understanding what it means to have a right to something in our nation.
Our Constitution originally did not contain any enumerated list of rights; it was initially crafted without any Amendments. Those who supported the Constitution in this format felt that rights did not need to be specifically itemized since the framework constructed by the drafters limited the powers of government to particular functions, and only those functions. However, a group of Founders, including James Madison and Thomas Jefferson, pushed for the inclusion of a list of basic liberties and refused to ratify the Constitution until they were included. This process is how we ended up with the first ten amendments, or, as they are commonly called, the Bill of Rights. This was not meant as an all inclusive catalog of rights, merely a documentation of the most vital and basic of them.[1]
We are all familiar with many, if not all, of these basic rights. They include freedom of speech, freedom to practice religion as one sees fit, freedom of the press, the right to own firearms, certain judicial system protections (due process, trial by jury, no double jeopardy), and the protection against unreasonable searches and seizures, to name but a few. This listing of primary liberties was intended to cover the most important rights granted to each man at birth.
Notice also what you don’t see. There is no right to breathe. There is no right to eat. There is no right to have access to clean drinking water. Does this exclusion mean that our Founders thought that the people did not have a right to these things? Of course not. These rights all existed at the time of our Founding; however, those who created our system of government did not specify them because they were the personal responsibility (or in the case of breathing, involuntary action) of those within society to care for themselves. It was never intended that our government provide them for us.
Again, this distinction matters. Our nation was founded upon the belief that government did not grant certain rights or provide rights to people. Rather, our government was limited from extinguishing those rights man already possessed.
Health care or Health Insurance & the Obama-Democrat Plan
Health care, via doctors, has existed for thousands of years. Our nation and the early settlers here had access to doctors and medical treatment. Yet, there is no mention of a right to health care in the Constitution or the Amendments to it. Nor will one find such an argument made by any of our Founding Fathers in public debate, speeches, or their writings. It is curious that the very men who created our nation failed to recognize what so many in today’s society clamor for as a right.
Further, our system of governance, even if it recognized such a right, would not be responsible for providing that right to the people. Our government is only set up to perform certain enumerated functions which promote a civil society, not to provide for every need or want of the public. We have a right to bear arms in this nation; however, our government does not hand out guns to those who want them (or to those whom the government thinks should possess them). We have a right to practice religion freely but the government does not give us houses of worship.[2]
I do not believe, nor does history suggest, that we have a right to health care in this nation. However, for argument’s sake, we will continue the debate under the assumption that such a right does, in fact, exist.
The next logical question then becomes: what exactly is health care? Health care can be defined as “the maintaining and restoration of health by the treatment and prevention of disease especially by trained and licensed professionals.”[3] In basic terms, this means treatment of an individual, whether curative or preventative, by a doctor.
If this definition is the standard, then our current medical system already meets this minimum hurdle. Any individual, citizen or not, who enters an emergency room must be cared for by the hospital staff. The hospital is not limited to only assisting those in dire situations. If an individual comes in for a minor illness or injury, the staff must still treat the patient. Additionally, there are free medical clinics in all 50 states and in nearly every mid-size city or larger (many cities have several of these clinics). The populace can utilize these institutions to remedy medical maladies and to attempt to prevent illness. The only requirements are that the individual travel to the clinic and then wait to see the physician or other medical provider, which, admittedly, may require considerable time spent in a waiting room.
Since our health care system currently provides access to doctors for all people, what then do the proponents of reform seek? Listening to the words chosen by advocates of change, it becomes clear that reformers want to see improved health insurance, or in most cases, health insurance for all people.
Health insurance is defined as “insurance against loss through illness or injury of the insured; especially insurance providing compensation for medical expenses.”[4] The arguments currently proffered tend to focus on the ability of Americans to pay for treatment given by physicians and their staff. Examples of citizens declaring bankruptcy is often cited or of people losing their homes in foreclosure because of burdensome medical bills. This problem is then clearly health insurance, since the focus is on the financial burden and not the access to medical care.
An overview of the plan(s) being presented and argued in both houses of Congress illustrates this point (you can read one of the many versions of the proposals here: http://energycommerce.house.gov/Press_111/20090714/aahca.pdf). One need go no further than the table of contents beginning on page 2 (of 1018) to find evidence of this. The list of titles and subtitles focuses almost exclusively on health insurance. Examples of the topics include “Protections and Standards for Qualified Health Benefits Plans,” “Health Insurance Exchange and Related Provisions,” and “Medicare and Medicaid Improvements.” Look closely at this list and it is obvious what the principal focus is. Additionally, this is relevant because no one is articulating a right to health insurance.
Those in favor of changing our system seek to alter the financial aspects of medical care, which is quite different than access to quality medical treatment. This is not meant to diminish their objective. I just feel that it is important to honestly frame the debate and the intentions of the legislators pushing the legal changes.
One last aspect of this proposed legislation that is important to discuss is how costs will allegedly be controlled. Specifically, the government will create oversight panels/boards that will review various treatments available in the marketplace.[5] These groups will attempt to determine which treatments are most cost-effective for large swaths of society. It will be their mandate to review procedures and medicines to determine which will be permitted.
Individual circumstances will not be considered because controlling costs on a macroeconomic level will take priority. President Obama even stated during his prime time press conference that “[people are] going to have to give up paying for things that don't make them healthier. ... If there's a blue pill and a red pill, and the blue pill is half the price of the red pill and works just as well, why not pay half for the thing that's going to make you well.” In other words, the government will decide which treatment it believes is best for you by computing the costs for treatment and the subsequent burden on the system as a whole.[6]
Right to Privacy
Government decisions dictating personal medical treatment raises the specter of potential conflicts with what we refer to as the right to privacy. To understand how this may occur, it is important to understand what exactly is meant by the right to privacy.
This right can not be found in the text of the Constitution, nor will it be found by perusing the Bill of Rights or any subsequent Amendments. In order to discover what this right entails, one must begin his review with the 1965 case of Griswold v. Connecticut.[7]
Connecticut had passed a law making use of any contraceptives a crime, regardless of who desired to use such means to prevent pregnancy. The State also made it criminal for any person to assist individuals, in any manner, in acquiring or using contraceptives. Once the law was enacted, a few doctors (including the Director of Planned Parenthood) were charged with assisting in the violation of this law by counseling married couples and were fined according to the criminal statute. The doctors appealed the decision up through multiple courts before finally ending at the Supreme Court of the United States.
The Supreme Court, in a split decision, decided that the Connecticut law was unconstitutional, voiding the law. The majority opinion was joined by three separate concurrences and opposed by two separate dissents.[8] What this ultimately means is that the outcome was at least partially controversial to those judges who determined the invalid nature of the Connecticut statute.
We do not need to explore all of the nuances of legal theory here. What is important is that the decision found that a right to privacy, although not found in the Constitution or Bill of Rights or any other Founding Documents, was nevertheless present as a fundamental principle of American liberty. The justification for this was that the “penumbras” and “emanations” of the Bill of Rights led to the conclusion that an implied right to privacy always existed. For example, the Court stated that since the 3rd Amendment prevented the government from forcing citizens to quarter soldiers in their homes, citizens must have a right to be secure in their home. Another example presented was the protection against unreasonable searches and seizures found in the text of the 4th Amendment. The Court felt that an implied right to privacy was present since the government was limited to searches based upon facts to support justification for the intrusion. Further examples were said to flow from the 1st, 5th, 9th, and 14th Amendments.
The dissent written by Justice Black strongly argued against this expansion of rights. His contention was that the absence of this “right” in the text of the Constitution and Bill of Rights meant that it did not exist. His fear, as expressed in his argument, was that an open reading of the Constitution would allow Judges to read their own opinions and views into the text.
Griswold as originally decided only applied to married couples. The right to privacy was extended to unmarried couples in Eisenstadt v. Baird in a 1972 Supreme Court case. The argument was that unmarried couples enjoyed the same Constitutional right to privacy as married couples; the legal reasoning remained unchanged for the most part.
The following year, 1973, the Supreme Court heard the case of Roe v. Wade. As this is one of the most famous and widely known legal decisions in U.S. history, the analysis can remain brief. A woman wanted to have an abortion but state law prohibited it. Individuals, on behalf of the impregnated woman, filed suit and appealed decisions all the way to the Supreme Court. What is essential to take away from this decision is that the Court again found that the right to privacy is a fundamental right and that the government must meet a high burden to infringe upon that right.[9][10] In essence, the lesson learned from this case was that women have decisional autonomy to determine whether to keep or abort a fetus after consulting with their physicians.[11]
The "right to choose" movement embraces this argument and uses it as the primary justification for their position. The social liberals who support the ability to seek and get an abortion claim that the government needs to keep its hands off their bodies. The claim focuses on the decisional authority of the individual without any imposition of government morality or interests. It is quite interesting that those same individuals now wholly support a health care overhaul that will do exactly what they argued against for the last three decades.
In summary, the Courts, not the Constitution or legislature, found that every American is born with a right to privacy. This right establishes that government can not interfere with matters quite personal to the individual without an extremely good reason for doing so. Citizens have the right to make most of their decisions without government prying or input.
How do you reconcile ObamaCare with a Right to Privacy?
Since we have an established, if not undisputed, right to privacy and we have supporters of President Obama’s changes to the medical industry claiming that health care is a right of all people, do we have a conflict between competing rights?
ObamaCare, as mentioned above, will oblige government officials to mandate treatment within the medical profession. The legislation is structured to cover the maximum number of individuals while, allegedly, reducing the costs of treatment. There are only a limited number of ways that this can be done, if it is possible at all. First, the government can limit the variety of treatments, drugs, and equipment available to patients to the least costly options. Second, the government can choose to ration care to patients. Third, the government can pressure the health care professionals to accept less payment for treatment.[12]
All of these options indicate that the government will interfere with the decisional autonomy of patients (i.e. their right to privacy). Roe v. Wade explicitly held that women alone have the right to choose medical procedures and courses of care based upon their own beliefs and assessments after consulting with medical professionals. The Democrat health care proposal, in turn, impairs the right to privacy that Americans possess. This occurs because government bureaucrats will determine your medical treatment, even if it is in direct opposition to the outcome you would choose after consulting with your doctor and your conscience. In order for the government plan to then succeed, the law in question must be for a compelling federal interest and must be narrowly construed to fit that interest in the least restrictive manner.
It is at least arguable that providing health insurance to all people is a compelling state interest. However, it must again be noted that prior to this date in history, no right to health insurance (or health care as the proponents argue) has ever been legally recognized. The federal government will likely meet this first prong of the test and articulate, to what will most likely be a friendly judiciary, the importance of extending health insurance coverage to more people.
The next prong of the test provides bigger problems, and potentially shows that the statute is unconstitutional. The government will have to demonstrate that the plan is narrowly tailored to the compelling interest and is the least restrictive means of achieving health insurance for all. It is not hard to imagine many other means of reaching the same goal with less intrusion into the private decisions of individuals. If a Court hearing such an argument were to place any weight upon alternatives, the legislation could find itself in jeopardy. Again, the current makeup of many Courts in this country leads to the conclusion that the Judges would possibly side with the government in favor of the legislation. However, strong Constitutional and moral arguments can be made against such an outcome and would likely incite the passions of the people in standing against such a plan.
A more basic comparison may be in order to accentuate the conflict between these claimed rights. In this country, we have a right to an open and free press. It was considered essential by our Founders that our media have access to stories deemed newsworthy and that journalists check the power of government on behalf of the populace. In today’s society, potential issues arise when this right of the press intersects with the right to privacy of the individual.
The media is permitted to photograph, ask questions, and even follow public figures when those individuals are in public places. The media is not permitted to perform those same tasks on private property. For example, a photographer from the National Enquirer can snap as many pictures of your favorite celebrity as he desires while that person is driving a car, eating at a restaurant, shopping in a boutique, or walking his dog. The cameraman may not snap pictures of the individual in his home. He may not enter the home and place video cameras in bedrooms. The photographer may not violate the individual's right to privacy.[13]
Analysis leads us to the proposition that one right of the citizens may not infringe upon another right without clearing a very high hurdle. It seems unlikely, based upon the facts at hand, that the government can meet this hurdle with health care reform. This so-called health care plan is furthered weakened when you realize that there is no right to health care in this country. It is battered even more once it becomes clear that the legislation is not about health care; it is about financial coverage of health care, and therefore concerns health insurance. The deduction made is that a select few in this country are pushing an insincere play on vocabulary in an attempt to pass legislation that infringes upon a (judicially created) fundamental right to privacy. The end result is an unconstitutional usurpation of power that weakens our Constitutional protections and allows the federal government to begin making medical decisions for us. Once the government opens this door and violates a fundamental right, the chances of preventing subsequent erosion lessen and freedom is placed in an ever more precarious position.
[1] The 9th Amendment (which states “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people[.]”) was added to the list to ensure that no future government could limit rights only to those clearly spelled out in the Bill of Rights.
[2] Admittedly, our government may provide tax exemption or subsidies to these organizations. It must be stated that this is to promote a certain level of morality within our society (which religion provides) and not to fully fund, support, or promote these religious institutions.
[3] This definition is courtesy of Merriam-Webster's Medical Dictionary, © 2002.
[4] This definition is courtesy of Merriam-Webster's Dictionary of Law, © 1996.
[5] Page 30, Section 123 of the bill previously linked in this article (http://energycommerce.house.gov/Press_111/20090714/aahca.pdf) establishes a committee “to recommend covered benefits and essential, enhanced, and premium plans.” (See also, page 42, Section 142).
[6] Page 29, which is part of Section 122’s discussion on essential benefits, discusses limitations on care for individuals and families so as to not overwhelm the system.
[7] You can learn more about this Supreme Court decision by following this link (http://www.law.cornell.edu/supct/html/historics/USSC_CR_0381_0479_ZO.html) to the Cornell Law school collection of landmark legal cases.
[8] A concurrence in a legal decision means that the author of the “concurring opinion” agrees with the outcome of the case but takes a different view on how to get to the conclusion. Sometimes these differences attempt to limit the majority decision, sometimes they seek to expand it, and sometimes it serves only to clarify points of law. A dissent is an opinion by a Justice (or Justices) who oppose the majority decision. The dissent is his chance to explain why he thinks the Court is wrong and to present his case to the legal community.
[9] When dealing with fundamental rights, the Court utilizes a standard of review called strict scrutiny. This means that the government, in creating laws conflicting with rights, must have a compelling interest and narrowly tailor the law to the compelling interest in the least restrictive possible manner.
[10] The legal analysis used in this case is still debated today and gets into obscure arguments not necessary for this writing.
[11] Subsequent to Roe, the Supreme Court has heard cases clarifying, and in some cases, expanding, the right to privacy. Planned Parenthood v. Casey (1992) slightly altered the legal analysis but kept in place the fundamental right to privacy. Other cases are included in this line of argument dealing with privacy and due process under the 14th Amendment.
[12] This option has the perverse effects of shifting the costs to those privately insured and of decreasing the incentives for individuals to work in the health care industry. When doctors have to accept less from a public plan, they increase costs to those privately insured to make up the difference. This means that some people pay for their own insurance plan and the public plan. It further creates the potential for even more severe doctor and nurse shortages than we currently have because the financial rewards for the profession decrease.
[13] I understand that the press is not a government actor but the analysis of how rights conflict still holds value as an example.
Rights in the United States
We must begin our discussion by first looking to what the word “right” means within the context of our Constitutional framework and the intentions of our Founding Fathers. Rights emanate from Natural Law. This theory posits a proposition stated in the Declaration of Independence; that premise is “that all men are endowed by their Creator with certain unalienable rights.” This is a conviction upon which our government was based. Notice that there is no grant of these rights from one group of people to another or from a government to the populace. Since all men are born with certain rights, no law or government can contravene them. This is essential to understanding what it means to have a right to something in our nation.
Our Constitution originally did not contain any enumerated list of rights; it was initially crafted without any Amendments. Those who supported the Constitution in this format felt that rights did not need to be specifically itemized since the framework constructed by the drafters limited the powers of government to particular functions, and only those functions. However, a group of Founders, including James Madison and Thomas Jefferson, pushed for the inclusion of a list of basic liberties and refused to ratify the Constitution until they were included. This process is how we ended up with the first ten amendments, or, as they are commonly called, the Bill of Rights. This was not meant as an all inclusive catalog of rights, merely a documentation of the most vital and basic of them.[1]
We are all familiar with many, if not all, of these basic rights. They include freedom of speech, freedom to practice religion as one sees fit, freedom of the press, the right to own firearms, certain judicial system protections (due process, trial by jury, no double jeopardy), and the protection against unreasonable searches and seizures, to name but a few. This listing of primary liberties was intended to cover the most important rights granted to each man at birth.
Notice also what you don’t see. There is no right to breathe. There is no right to eat. There is no right to have access to clean drinking water. Does this exclusion mean that our Founders thought that the people did not have a right to these things? Of course not. These rights all existed at the time of our Founding; however, those who created our system of government did not specify them because they were the personal responsibility (or in the case of breathing, involuntary action) of those within society to care for themselves. It was never intended that our government provide them for us.
Again, this distinction matters. Our nation was founded upon the belief that government did not grant certain rights or provide rights to people. Rather, our government was limited from extinguishing those rights man already possessed.
Health care or Health Insurance & the Obama-Democrat Plan
Health care, via doctors, has existed for thousands of years. Our nation and the early settlers here had access to doctors and medical treatment. Yet, there is no mention of a right to health care in the Constitution or the Amendments to it. Nor will one find such an argument made by any of our Founding Fathers in public debate, speeches, or their writings. It is curious that the very men who created our nation failed to recognize what so many in today’s society clamor for as a right.
Further, our system of governance, even if it recognized such a right, would not be responsible for providing that right to the people. Our government is only set up to perform certain enumerated functions which promote a civil society, not to provide for every need or want of the public. We have a right to bear arms in this nation; however, our government does not hand out guns to those who want them (or to those whom the government thinks should possess them). We have a right to practice religion freely but the government does not give us houses of worship.[2]
I do not believe, nor does history suggest, that we have a right to health care in this nation. However, for argument’s sake, we will continue the debate under the assumption that such a right does, in fact, exist.
The next logical question then becomes: what exactly is health care? Health care can be defined as “the maintaining and restoration of health by the treatment and prevention of disease especially by trained and licensed professionals.”[3] In basic terms, this means treatment of an individual, whether curative or preventative, by a doctor.
If this definition is the standard, then our current medical system already meets this minimum hurdle. Any individual, citizen or not, who enters an emergency room must be cared for by the hospital staff. The hospital is not limited to only assisting those in dire situations. If an individual comes in for a minor illness or injury, the staff must still treat the patient. Additionally, there are free medical clinics in all 50 states and in nearly every mid-size city or larger (many cities have several of these clinics). The populace can utilize these institutions to remedy medical maladies and to attempt to prevent illness. The only requirements are that the individual travel to the clinic and then wait to see the physician or other medical provider, which, admittedly, may require considerable time spent in a waiting room.
Since our health care system currently provides access to doctors for all people, what then do the proponents of reform seek? Listening to the words chosen by advocates of change, it becomes clear that reformers want to see improved health insurance, or in most cases, health insurance for all people.
Health insurance is defined as “insurance against loss through illness or injury of the insured; especially insurance providing compensation for medical expenses.”[4] The arguments currently proffered tend to focus on the ability of Americans to pay for treatment given by physicians and their staff. Examples of citizens declaring bankruptcy is often cited or of people losing their homes in foreclosure because of burdensome medical bills. This problem is then clearly health insurance, since the focus is on the financial burden and not the access to medical care.
An overview of the plan(s) being presented and argued in both houses of Congress illustrates this point (you can read one of the many versions of the proposals here: http://energycommerce.house.gov/Press_111/20090714/aahca.pdf). One need go no further than the table of contents beginning on page 2 (of 1018) to find evidence of this. The list of titles and subtitles focuses almost exclusively on health insurance. Examples of the topics include “Protections and Standards for Qualified Health Benefits Plans,” “Health Insurance Exchange and Related Provisions,” and “Medicare and Medicaid Improvements.” Look closely at this list and it is obvious what the principal focus is. Additionally, this is relevant because no one is articulating a right to health insurance.
Those in favor of changing our system seek to alter the financial aspects of medical care, which is quite different than access to quality medical treatment. This is not meant to diminish their objective. I just feel that it is important to honestly frame the debate and the intentions of the legislators pushing the legal changes.
One last aspect of this proposed legislation that is important to discuss is how costs will allegedly be controlled. Specifically, the government will create oversight panels/boards that will review various treatments available in the marketplace.[5] These groups will attempt to determine which treatments are most cost-effective for large swaths of society. It will be their mandate to review procedures and medicines to determine which will be permitted.
Individual circumstances will not be considered because controlling costs on a macroeconomic level will take priority. President Obama even stated during his prime time press conference that “[people are] going to have to give up paying for things that don't make them healthier. ... If there's a blue pill and a red pill, and the blue pill is half the price of the red pill and works just as well, why not pay half for the thing that's going to make you well.” In other words, the government will decide which treatment it believes is best for you by computing the costs for treatment and the subsequent burden on the system as a whole.[6]
Right to Privacy
Government decisions dictating personal medical treatment raises the specter of potential conflicts with what we refer to as the right to privacy. To understand how this may occur, it is important to understand what exactly is meant by the right to privacy.
This right can not be found in the text of the Constitution, nor will it be found by perusing the Bill of Rights or any subsequent Amendments. In order to discover what this right entails, one must begin his review with the 1965 case of Griswold v. Connecticut.[7]
Connecticut had passed a law making use of any contraceptives a crime, regardless of who desired to use such means to prevent pregnancy. The State also made it criminal for any person to assist individuals, in any manner, in acquiring or using contraceptives. Once the law was enacted, a few doctors (including the Director of Planned Parenthood) were charged with assisting in the violation of this law by counseling married couples and were fined according to the criminal statute. The doctors appealed the decision up through multiple courts before finally ending at the Supreme Court of the United States.
The Supreme Court, in a split decision, decided that the Connecticut law was unconstitutional, voiding the law. The majority opinion was joined by three separate concurrences and opposed by two separate dissents.[8] What this ultimately means is that the outcome was at least partially controversial to those judges who determined the invalid nature of the Connecticut statute.
We do not need to explore all of the nuances of legal theory here. What is important is that the decision found that a right to privacy, although not found in the Constitution or Bill of Rights or any other Founding Documents, was nevertheless present as a fundamental principle of American liberty. The justification for this was that the “penumbras” and “emanations” of the Bill of Rights led to the conclusion that an implied right to privacy always existed. For example, the Court stated that since the 3rd Amendment prevented the government from forcing citizens to quarter soldiers in their homes, citizens must have a right to be secure in their home. Another example presented was the protection against unreasonable searches and seizures found in the text of the 4th Amendment. The Court felt that an implied right to privacy was present since the government was limited to searches based upon facts to support justification for the intrusion. Further examples were said to flow from the 1st, 5th, 9th, and 14th Amendments.
The dissent written by Justice Black strongly argued against this expansion of rights. His contention was that the absence of this “right” in the text of the Constitution and Bill of Rights meant that it did not exist. His fear, as expressed in his argument, was that an open reading of the Constitution would allow Judges to read their own opinions and views into the text.
Griswold as originally decided only applied to married couples. The right to privacy was extended to unmarried couples in Eisenstadt v. Baird in a 1972 Supreme Court case. The argument was that unmarried couples enjoyed the same Constitutional right to privacy as married couples; the legal reasoning remained unchanged for the most part.
The following year, 1973, the Supreme Court heard the case of Roe v. Wade. As this is one of the most famous and widely known legal decisions in U.S. history, the analysis can remain brief. A woman wanted to have an abortion but state law prohibited it. Individuals, on behalf of the impregnated woman, filed suit and appealed decisions all the way to the Supreme Court. What is essential to take away from this decision is that the Court again found that the right to privacy is a fundamental right and that the government must meet a high burden to infringe upon that right.[9][10] In essence, the lesson learned from this case was that women have decisional autonomy to determine whether to keep or abort a fetus after consulting with their physicians.[11]
The "right to choose" movement embraces this argument and uses it as the primary justification for their position. The social liberals who support the ability to seek and get an abortion claim that the government needs to keep its hands off their bodies. The claim focuses on the decisional authority of the individual without any imposition of government morality or interests. It is quite interesting that those same individuals now wholly support a health care overhaul that will do exactly what they argued against for the last three decades.
In summary, the Courts, not the Constitution or legislature, found that every American is born with a right to privacy. This right establishes that government can not interfere with matters quite personal to the individual without an extremely good reason for doing so. Citizens have the right to make most of their decisions without government prying or input.
How do you reconcile ObamaCare with a Right to Privacy?
Since we have an established, if not undisputed, right to privacy and we have supporters of President Obama’s changes to the medical industry claiming that health care is a right of all people, do we have a conflict between competing rights?
ObamaCare, as mentioned above, will oblige government officials to mandate treatment within the medical profession. The legislation is structured to cover the maximum number of individuals while, allegedly, reducing the costs of treatment. There are only a limited number of ways that this can be done, if it is possible at all. First, the government can limit the variety of treatments, drugs, and equipment available to patients to the least costly options. Second, the government can choose to ration care to patients. Third, the government can pressure the health care professionals to accept less payment for treatment.[12]
All of these options indicate that the government will interfere with the decisional autonomy of patients (i.e. their right to privacy). Roe v. Wade explicitly held that women alone have the right to choose medical procedures and courses of care based upon their own beliefs and assessments after consulting with medical professionals. The Democrat health care proposal, in turn, impairs the right to privacy that Americans possess. This occurs because government bureaucrats will determine your medical treatment, even if it is in direct opposition to the outcome you would choose after consulting with your doctor and your conscience. In order for the government plan to then succeed, the law in question must be for a compelling federal interest and must be narrowly construed to fit that interest in the least restrictive manner.
It is at least arguable that providing health insurance to all people is a compelling state interest. However, it must again be noted that prior to this date in history, no right to health insurance (or health care as the proponents argue) has ever been legally recognized. The federal government will likely meet this first prong of the test and articulate, to what will most likely be a friendly judiciary, the importance of extending health insurance coverage to more people.
The next prong of the test provides bigger problems, and potentially shows that the statute is unconstitutional. The government will have to demonstrate that the plan is narrowly tailored to the compelling interest and is the least restrictive means of achieving health insurance for all. It is not hard to imagine many other means of reaching the same goal with less intrusion into the private decisions of individuals. If a Court hearing such an argument were to place any weight upon alternatives, the legislation could find itself in jeopardy. Again, the current makeup of many Courts in this country leads to the conclusion that the Judges would possibly side with the government in favor of the legislation. However, strong Constitutional and moral arguments can be made against such an outcome and would likely incite the passions of the people in standing against such a plan.
A more basic comparison may be in order to accentuate the conflict between these claimed rights. In this country, we have a right to an open and free press. It was considered essential by our Founders that our media have access to stories deemed newsworthy and that journalists check the power of government on behalf of the populace. In today’s society, potential issues arise when this right of the press intersects with the right to privacy of the individual.
The media is permitted to photograph, ask questions, and even follow public figures when those individuals are in public places. The media is not permitted to perform those same tasks on private property. For example, a photographer from the National Enquirer can snap as many pictures of your favorite celebrity as he desires while that person is driving a car, eating at a restaurant, shopping in a boutique, or walking his dog. The cameraman may not snap pictures of the individual in his home. He may not enter the home and place video cameras in bedrooms. The photographer may not violate the individual's right to privacy.[13]
Analysis leads us to the proposition that one right of the citizens may not infringe upon another right without clearing a very high hurdle. It seems unlikely, based upon the facts at hand, that the government can meet this hurdle with health care reform. This so-called health care plan is furthered weakened when you realize that there is no right to health care in this country. It is battered even more once it becomes clear that the legislation is not about health care; it is about financial coverage of health care, and therefore concerns health insurance. The deduction made is that a select few in this country are pushing an insincere play on vocabulary in an attempt to pass legislation that infringes upon a (judicially created) fundamental right to privacy. The end result is an unconstitutional usurpation of power that weakens our Constitutional protections and allows the federal government to begin making medical decisions for us. Once the government opens this door and violates a fundamental right, the chances of preventing subsequent erosion lessen and freedom is placed in an ever more precarious position.
[1] The 9th Amendment (which states “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people[.]”) was added to the list to ensure that no future government could limit rights only to those clearly spelled out in the Bill of Rights.
[2] Admittedly, our government may provide tax exemption or subsidies to these organizations. It must be stated that this is to promote a certain level of morality within our society (which religion provides) and not to fully fund, support, or promote these religious institutions.
[3] This definition is courtesy of Merriam-Webster's Medical Dictionary, © 2002.
[4] This definition is courtesy of Merriam-Webster's Dictionary of Law, © 1996.
[5] Page 30, Section 123 of the bill previously linked in this article (http://energycommerce.house.gov/Press_111/20090714/aahca.pdf) establishes a committee “to recommend covered benefits and essential, enhanced, and premium plans.” (See also, page 42, Section 142).
[6] Page 29, which is part of Section 122’s discussion on essential benefits, discusses limitations on care for individuals and families so as to not overwhelm the system.
[7] You can learn more about this Supreme Court decision by following this link (http://www.law.cornell.edu/supct/html/historics/USSC_CR_0381_0479_ZO.html) to the Cornell Law school collection of landmark legal cases.
[8] A concurrence in a legal decision means that the author of the “concurring opinion” agrees with the outcome of the case but takes a different view on how to get to the conclusion. Sometimes these differences attempt to limit the majority decision, sometimes they seek to expand it, and sometimes it serves only to clarify points of law. A dissent is an opinion by a Justice (or Justices) who oppose the majority decision. The dissent is his chance to explain why he thinks the Court is wrong and to present his case to the legal community.
[9] When dealing with fundamental rights, the Court utilizes a standard of review called strict scrutiny. This means that the government, in creating laws conflicting with rights, must have a compelling interest and narrowly tailor the law to the compelling interest in the least restrictive possible manner.
[10] The legal analysis used in this case is still debated today and gets into obscure arguments not necessary for this writing.
[11] Subsequent to Roe, the Supreme Court has heard cases clarifying, and in some cases, expanding, the right to privacy. Planned Parenthood v. Casey (1992) slightly altered the legal analysis but kept in place the fundamental right to privacy. Other cases are included in this line of argument dealing with privacy and due process under the 14th Amendment.
[12] This option has the perverse effects of shifting the costs to those privately insured and of decreasing the incentives for individuals to work in the health care industry. When doctors have to accept less from a public plan, they increase costs to those privately insured to make up the difference. This means that some people pay for their own insurance plan and the public plan. It further creates the potential for even more severe doctor and nurse shortages than we currently have because the financial rewards for the profession decrease.
[13] I understand that the press is not a government actor but the analysis of how rights conflict still holds value as an example.
Thursday, July 30, 2009
Logic v. Emotion
It occurs to me that far too often serious debates on social, political, and economic policy divulge into a morass that does little good for the American people. What we need is intelligent debate on the facts to enlighten the public and those voting on their behalf. It is my desire that all sides to an issue bring facts, comprehension of them, and logic to the table. However, far too often it appears that emotion replaces rationale for one, or both, sides. The healthcare debate is a shining example of this. Too many people revert to emotional retorts and lose credibility on a complicated subject.
If you are interested in seeing an example of this, compare the following articles. One written by a prominent conservative and the other written by a Nobel prize winning liberal. Who do you think presents the stronger case?
http://www.realclearpolitics.com/articles/2009/07/24/why_obamacare_is_sinking_97598.html
http://www.nytimes.com/2009/07/24/opinion/24krugman.html?_r=1
If you are interested in seeing an example of this, compare the following articles. One written by a prominent conservative and the other written by a Nobel prize winning liberal. Who do you think presents the stronger case?
http://www.realclearpolitics.com/articles/2009/07/24/why_obamacare_is_sinking_97598.html
http://www.nytimes.com/2009/07/24/opinion/24krugman.html?_r=1
President Obama and the Birth Certificate Controversy
With all of the talk this week about President Obama and birth certificates, I thought it appropriate to post this link: http://article.nationalreview.com/print/?q=ZmJhMzlmZWFhOTQ3YjUxMDE2YWY4ZDMzZjZlYTVmZmU.
The article is posted on National Review and was written by Andrew McCarthy. Personally, I think the evidence heavily leans toward President Obama being born in Hawaii. However, I am also troubled by his secrecy and his refusal to put the controversy to rest by producing original documents (birth, schooling, citizenship, etc.). McCarthy does an excellent job of explaining why people are asking these questions, how the media is failing in its duties to investigate, and why blindly trusting the President and his supporters isn't inherently reliable.
If you are at all interested in this topic, take some time to read this article, learn the facts, help put an end to all of the conspiracy theories floating endlessly through email and blogs, and get the discussion focused on what is important and relevant.
The article is posted on National Review and was written by Andrew McCarthy. Personally, I think the evidence heavily leans toward President Obama being born in Hawaii. However, I am also troubled by his secrecy and his refusal to put the controversy to rest by producing original documents (birth, schooling, citizenship, etc.). McCarthy does an excellent job of explaining why people are asking these questions, how the media is failing in its duties to investigate, and why blindly trusting the President and his supporters isn't inherently reliable.
If you are at all interested in this topic, take some time to read this article, learn the facts, help put an end to all of the conspiracy theories floating endlessly through email and blogs, and get the discussion focused on what is important and relevant.
Thursday, July 16, 2009
The Good and The Bad of the Day
The Good
*This is a must read/see speech. Ronald Reagan gave this in support of Barry Goldwater in the 1964 Presidential Election. It is as timely today as it was when he first gave it 45 years ago. Take a look and think about the power contained in his words.
-A black and white video: http://video.google.com/videoplay?docid=-1777069922535499977
-A transcript: http://www.pbs.org/wgbh/amex/reagan/filmmore/reference/primary/choose64.html
The Bad
*America's Affordable Health Choices Act of 2009 has been introduced in the House of Representatives. The Bill is over 1,000 pages long but wastes no time dropping a bombshell about private health care coverage being federally prohibited if the bill becomes law. Page 16 contains the text which clearly announces this.
-The article on Investor's Business Daily: http://www.ibdeditorials.com/IBDArticles.aspx?id=332548165656854
-The link to the bill in the House: http://energycommerce.house.gov/Press_111/20090714/aahca.pdf (go to page 16, Section 102)
*This is a must read/see speech. Ronald Reagan gave this in support of Barry Goldwater in the 1964 Presidential Election. It is as timely today as it was when he first gave it 45 years ago. Take a look and think about the power contained in his words.
-A black and white video: http://video.google.com/videoplay?docid=-1777069922535499977
-A transcript: http://www.pbs.org/wgbh/amex/reagan/filmmore/reference/primary/choose64.html
The Bad
*America's Affordable Health Choices Act of 2009 has been introduced in the House of Representatives. The Bill is over 1,000 pages long but wastes no time dropping a bombshell about private health care coverage being federally prohibited if the bill becomes law. Page 16 contains the text which clearly announces this.
-The article on Investor's Business Daily: http://www.ibdeditorials.com/IBDArticles.aspx?id=332548165656854
-The link to the bill in the House: http://energycommerce.house.gov/Press_111/20090714/aahca.pdf (go to page 16, Section 102)
Wednesday, July 15, 2009
ObamaCare: The Flowchart
The Republicans in the House of Representatives have put together an organizational chart depicting health care coverage and treatment under the Obama-Democrat plan. You can find it here: http://docs.house.gov/gopleader/House-Democrats-Health-Plan.pdf.
Take a moment to look at this. Once your eyes uncross, ask yourself a few questions.
- Why are the Physicians and Consumers so far apart?
- Where are all of the people advocating that medical decisions be decided by a patient with the advice and consent of the doctor?
- How is a process with this many moving parts going to provide quality health care?
- How can something so large and bureaucratic cut costs?
- If overall costs can possibly be cut, is it more likely that the cuts will hurt the administrative agencies or the Physicians/Consumers? (Look to history for examples, i.e. Veterans Hospitals)
- Where are all of the non-government parties? And is there even room for them? (remember that we are told repeatedly that we can keep our insurance)
- Why does the American public need this many people weighing in on their medical treatment?
- If we do need this many inputs, how have we survived over 230 years without them while providing the best healthcare on the planet?
- Can pharmaceutical companies actually get new medicines and medical devices (possibly life saving or life altering) approved by all of these bureaucracies and added to the system?
- If the pharmaceutical companies can get innovation into this stream of government morass, will the cost be so prohibitive as to prevent new advances in medicine? (If so, will you be happy with 2009 level medical treatment for perpetuity?)
- How can cost cutting come primarily from preventing waste and fraud (as Senator Chris Dodd and President Barack Obama have suggested) when there are dozens of agencies that can commit those exact acts?
- Why is the Department of Defense on the chart?
- How many "advisory panels" do we need? Isn't overlap an example of waste?
- Do we really need three different agencies to monitor identity politics and race (Office of Civil Rights, Office of Minority Health, Cultural and Linguistic Competence Training)? Is this redundancy not waste?
- What does a federal mandate for websites do to improve healthcare?
There are dozens more questions that can be asked. With this much uncertainty on a healthcare plan that will only get larger and more complex, you have to ask yourself if it is actually going to benefit you, and/or society in general, and whether it is financially viable. If the answer to any of these questions is no, then how do you justify such a plan?
Take a moment to look at this. Once your eyes uncross, ask yourself a few questions.
- Why are the Physicians and Consumers so far apart?
- Where are all of the people advocating that medical decisions be decided by a patient with the advice and consent of the doctor?
- How is a process with this many moving parts going to provide quality health care?
- How can something so large and bureaucratic cut costs?
- If overall costs can possibly be cut, is it more likely that the cuts will hurt the administrative agencies or the Physicians/Consumers? (Look to history for examples, i.e. Veterans Hospitals)
- Where are all of the non-government parties? And is there even room for them? (remember that we are told repeatedly that we can keep our insurance)
- Why does the American public need this many people weighing in on their medical treatment?
- If we do need this many inputs, how have we survived over 230 years without them while providing the best healthcare on the planet?
- Can pharmaceutical companies actually get new medicines and medical devices (possibly life saving or life altering) approved by all of these bureaucracies and added to the system?
- If the pharmaceutical companies can get innovation into this stream of government morass, will the cost be so prohibitive as to prevent new advances in medicine? (If so, will you be happy with 2009 level medical treatment for perpetuity?)
- How can cost cutting come primarily from preventing waste and fraud (as Senator Chris Dodd and President Barack Obama have suggested) when there are dozens of agencies that can commit those exact acts?
- Why is the Department of Defense on the chart?
- How many "advisory panels" do we need? Isn't overlap an example of waste?
- Do we really need three different agencies to monitor identity politics and race (Office of Civil Rights, Office of Minority Health, Cultural and Linguistic Competence Training)? Is this redundancy not waste?
- What does a federal mandate for websites do to improve healthcare?
There are dozens more questions that can be asked. With this much uncertainty on a healthcare plan that will only get larger and more complex, you have to ask yourself if it is actually going to benefit you, and/or society in general, and whether it is financially viable. If the answer to any of these questions is no, then how do you justify such a plan?
Tuesday, July 14, 2009
Recommended Employment Article
This is a well written and informative article and includes many facts you may not know. I encourage you to take a few minutes to read it.
http://online.wsj.com/article/SB124753066246235811.html
http://online.wsj.com/article/SB124753066246235811.html
Monday, July 6, 2009
Foreclosures, Renters, and Federal Law
The current economic downturn is damaging to citizens all across this country and across all walks of life. Americans watch as home values plummet, wealth dissipates, and consumer confidence gets shaken to levels not seen in decades. Foreclosures are a particularly unfortunate aspect of our current economic predicament. Families are losing their homes and real estate values become further depressed by fire-sale prices at auctions.
Individuals and families renting residences are also beginning to find themselves in unpleasant situations as the owners they lease from are unable to pay the mortgages on the rental property. In many instances, these people sign contracts to lease the property and rely on the obligations of the owners. When the owners default on their responsibility to repay a note on the property, the renters suddenly find themselves looking for a new place to live. This creates problems with moving costs, finding suitable alternatives for residence, and having little time to remedy the situation, even though the renters typically bear no fault in these scenarios.
As is often the case in our modern society, government feels the need to get involved and attempt to cure the problem. Never mind that the legal system, and typically the signed lease agreements themselves, provide remedies for breach of contract by either party.
The federal legislature has passed, and President Obama has signed, Public Law 111-22, also known as the “Preventing Mortgage Foreclosures and Enhancing Mortgage Credit” Act of 2009 (You can view the law here: http://thomas.loc.gov/cgi-bin/bdquery/D?d111:2:./temp/~bdFBvl::/bss/111search.html). This statute was written in an attempt to alleviate the current housing downturn and the effects on the economy and on individuals and families. Both are noble causes but the law itself fails to respect private contracts and further allows government to infringe upon reciprocal agreements between consenting parties.
Title VII, Protecting Tenants at Foreclosure Act, is a particularly good example of just how this occurs within the context of this law. The statute requires any foreclosure of property backed by a federal loan, or any loan made subsequent to this law, to provide at least 90 days notice to any bona fide tenant before eviction can occur. It even requires this 90 day grace period for leases that can be terminated at any time by either party and situations where no lease was even signed. At first blush, this may not seem all that unreasonable. After all, it is easy to claim how unfair the situation is to the renter. This is exactly how the justification for the law is framed. Herein lays the problem with many politicians and the legislation they support.
As we should all know by now, there is always more than one side to the story. Yes, the renter is probably the victim of someone else’s irresponsible behavior. That bad actor is not the purchaser of the property at auction. However, the high bidder at auction is the one who must pay the price the federal government set for this situation.
A simple illustration may assist understanding of this. Owner purchases property to rent. Owner finds a suitable tenant and enters into an agreement with Tenant. Tenant moves in and pays rent on time. Owner is in a dire financial situation and can no longer afford to keep the rental property, even with Tenant paying as agreed. Owner defaults on his promissory note and the lender decides to foreclose to recoup the money it loaned. Notice of the foreclosure is sent to Owner and the property address prior to the sale occurring. A sale then occurs and a high Bidder becomes the new title owner of the real estate. Tenant is not required to move out of the residence until Bidder files eviction proceedings.
In reviewing this incredibly simplistic example, you can now identify several problems that may, and often will, arise. First of all, Bidder does not have someone living on his property that he chose nor has he established any relationship with Tenant. Tenant is required by federal law to be allowed to live in that house for at least 90 days. Second, Tenant is not required to pay any money to Bidder because Tenant signed a lease with Owner (who no longer retains title to the property). Bidder owns property that he cannot live in or rent out for money so he is taking a loss with each passing day. Third, the government removed the rights of Bidder in favor of the rights of Tenant. The sole justification for this was to correct a perceived wrong by Owner. Bidder must now deal with the consequences of such prying. Fourth, Bidder’s only recourse against damage caused by Tenant is a lawsuit (remember the security deposit went to someone else); this may become lengthy, costly, and ultimately unproductive. Finally, Bidder must incur the costs of complying with the new law (mailings, reading statutes or paying an attorney to do it, etc.). All of these impacts have the consequence of chilling the real estate market for those interested in purchasing foreclosed homes, which is exactly the opposite of what our economy needs at this point in time.
All of these costs and consequences to the new owner can easily be avoided by simply utilizing the legal system already in place. The proper way to handle this situation is for Tenant to file suit against the original owner of the property; this is the other party to the lease agreement and the party to whom the grievance should be directed. Contracts have terms which must be met by both parties. If either party fails to perform as agreed, the other party may proceed with a breach of contract lawsuit. This is how contract disputes have been handled throughout our history. The proper venue for such a claim is State court. Real estate suits are properly, and typically exclusively, the realm of State courts. The issue is rarely, if ever, one to be decided on the federal level.
I have met a significant number of these renters and have a great deal of sympathy for them; however, I also respect the rule of law and despise the notion that our federal government is interfering with individual contracts. These issues, in dealing with real property, should be discussed and dealt with at the State and local level. The principles of Federalism require States to retain sovereignty over situations such as these and our Constitution placed constraints on the federal government to prevent this kind of meddling.
When our government no longer respects the rights of individuals to contract and participate in commerce, then our entire economic system is put in jeopardy. The government is creating instability by removing the certainty that written agreements have meaning and will be upheld. At some point, laws have to be honored and the government has to allow the system in place to sort out the facts. Otherwise, we inch closer to anarchy. Intruding upon private contracts sends the message that any mutual agreements may be trampled upon if the political winds change. A government that fails to respect the decisions of private actors in the economy will soon find that agreements will not be made as often or will end up not being adhered to by the parties at all. This creates a vicious cycle of even more chaos.
Individuals and families renting residences are also beginning to find themselves in unpleasant situations as the owners they lease from are unable to pay the mortgages on the rental property. In many instances, these people sign contracts to lease the property and rely on the obligations of the owners. When the owners default on their responsibility to repay a note on the property, the renters suddenly find themselves looking for a new place to live. This creates problems with moving costs, finding suitable alternatives for residence, and having little time to remedy the situation, even though the renters typically bear no fault in these scenarios.
As is often the case in our modern society, government feels the need to get involved and attempt to cure the problem. Never mind that the legal system, and typically the signed lease agreements themselves, provide remedies for breach of contract by either party.
The federal legislature has passed, and President Obama has signed, Public Law 111-22, also known as the “Preventing Mortgage Foreclosures and Enhancing Mortgage Credit” Act of 2009 (You can view the law here: http://thomas.loc.gov/cgi-bin/bdquery/D?d111:2:./temp/~bdFBvl::/bss/111search.html). This statute was written in an attempt to alleviate the current housing downturn and the effects on the economy and on individuals and families. Both are noble causes but the law itself fails to respect private contracts and further allows government to infringe upon reciprocal agreements between consenting parties.
Title VII, Protecting Tenants at Foreclosure Act, is a particularly good example of just how this occurs within the context of this law. The statute requires any foreclosure of property backed by a federal loan, or any loan made subsequent to this law, to provide at least 90 days notice to any bona fide tenant before eviction can occur. It even requires this 90 day grace period for leases that can be terminated at any time by either party and situations where no lease was even signed. At first blush, this may not seem all that unreasonable. After all, it is easy to claim how unfair the situation is to the renter. This is exactly how the justification for the law is framed. Herein lays the problem with many politicians and the legislation they support.
As we should all know by now, there is always more than one side to the story. Yes, the renter is probably the victim of someone else’s irresponsible behavior. That bad actor is not the purchaser of the property at auction. However, the high bidder at auction is the one who must pay the price the federal government set for this situation.
A simple illustration may assist understanding of this. Owner purchases property to rent. Owner finds a suitable tenant and enters into an agreement with Tenant. Tenant moves in and pays rent on time. Owner is in a dire financial situation and can no longer afford to keep the rental property, even with Tenant paying as agreed. Owner defaults on his promissory note and the lender decides to foreclose to recoup the money it loaned. Notice of the foreclosure is sent to Owner and the property address prior to the sale occurring. A sale then occurs and a high Bidder becomes the new title owner of the real estate. Tenant is not required to move out of the residence until Bidder files eviction proceedings.
In reviewing this incredibly simplistic example, you can now identify several problems that may, and often will, arise. First of all, Bidder does not have someone living on his property that he chose nor has he established any relationship with Tenant. Tenant is required by federal law to be allowed to live in that house for at least 90 days. Second, Tenant is not required to pay any money to Bidder because Tenant signed a lease with Owner (who no longer retains title to the property). Bidder owns property that he cannot live in or rent out for money so he is taking a loss with each passing day. Third, the government removed the rights of Bidder in favor of the rights of Tenant. The sole justification for this was to correct a perceived wrong by Owner. Bidder must now deal with the consequences of such prying. Fourth, Bidder’s only recourse against damage caused by Tenant is a lawsuit (remember the security deposit went to someone else); this may become lengthy, costly, and ultimately unproductive. Finally, Bidder must incur the costs of complying with the new law (mailings, reading statutes or paying an attorney to do it, etc.). All of these impacts have the consequence of chilling the real estate market for those interested in purchasing foreclosed homes, which is exactly the opposite of what our economy needs at this point in time.
All of these costs and consequences to the new owner can easily be avoided by simply utilizing the legal system already in place. The proper way to handle this situation is for Tenant to file suit against the original owner of the property; this is the other party to the lease agreement and the party to whom the grievance should be directed. Contracts have terms which must be met by both parties. If either party fails to perform as agreed, the other party may proceed with a breach of contract lawsuit. This is how contract disputes have been handled throughout our history. The proper venue for such a claim is State court. Real estate suits are properly, and typically exclusively, the realm of State courts. The issue is rarely, if ever, one to be decided on the federal level.
I have met a significant number of these renters and have a great deal of sympathy for them; however, I also respect the rule of law and despise the notion that our federal government is interfering with individual contracts. These issues, in dealing with real property, should be discussed and dealt with at the State and local level. The principles of Federalism require States to retain sovereignty over situations such as these and our Constitution placed constraints on the federal government to prevent this kind of meddling.
When our government no longer respects the rights of individuals to contract and participate in commerce, then our entire economic system is put in jeopardy. The government is creating instability by removing the certainty that written agreements have meaning and will be upheld. At some point, laws have to be honored and the government has to allow the system in place to sort out the facts. Otherwise, we inch closer to anarchy. Intruding upon private contracts sends the message that any mutual agreements may be trampled upon if the political winds change. A government that fails to respect the decisions of private actors in the economy will soon find that agreements will not be made as often or will end up not being adhered to by the parties at all. This creates a vicious cycle of even more chaos.
Friday, July 3, 2009
The Reason We Celebrate the 4th of July
As you gather with friends and family this weekend, grill food, relax during the long summer days, enjoy the amazing firework displays provided by municipalities and private organizations, but most importantly take a minute to stop and reflect on why this day is celebrated coast to coast by millions of Americans.
In the summer of 1776, representatives from the British-American Colonies signed the Declaration of Independence. The signing of this document was the culmination of long discussions, philosophical debates, and a review of both the history of the Colonies and of nations throughout recorded history. The purpose of the document was to initially, yet quite briefly, declare the philosophical and political underpinnings of the American people. What followed was a litany of abuses which the representatives felt were perpetrated upon them by the King of Britain and his government.
The language used by the authors of the Declaration was beautiful, brilliant, and displayed a wisdom that could only come from intellectually rigorous study of governments and history along with an amazing ability to perceive the nature of man.
Please take a few moments to read the Declaration of Independence. If you do, read it slowly. Pay attention to the words that they chose to capitalize. Think about the enormous meaning of the words, even though they use concise language. Read their understanding of where rights come from and why, in exceptional times, the people must rise up to protect those rights. Allow yourself to imagine what they must have felt at the time of signing – fear, exhilaration, escape from tyranny, power. And lastly, remember just how revolutionary the thoughts and words really were in a world dominated by monarchs, theocrats, and various other governments that controlled their subjects instead of governing on behalf of the populace.
You can read the document at the following website: http://www.ushistory.org/declaration/document/index.htm. I hope each of you enjoy this as much as I do. Have a happy, safe, and reflective holiday.
In the summer of 1776, representatives from the British-American Colonies signed the Declaration of Independence. The signing of this document was the culmination of long discussions, philosophical debates, and a review of both the history of the Colonies and of nations throughout recorded history. The purpose of the document was to initially, yet quite briefly, declare the philosophical and political underpinnings of the American people. What followed was a litany of abuses which the representatives felt were perpetrated upon them by the King of Britain and his government.
The language used by the authors of the Declaration was beautiful, brilliant, and displayed a wisdom that could only come from intellectually rigorous study of governments and history along with an amazing ability to perceive the nature of man.
Please take a few moments to read the Declaration of Independence. If you do, read it slowly. Pay attention to the words that they chose to capitalize. Think about the enormous meaning of the words, even though they use concise language. Read their understanding of where rights come from and why, in exceptional times, the people must rise up to protect those rights. Allow yourself to imagine what they must have felt at the time of signing – fear, exhilaration, escape from tyranny, power. And lastly, remember just how revolutionary the thoughts and words really were in a world dominated by monarchs, theocrats, and various other governments that controlled their subjects instead of governing on behalf of the populace.
You can read the document at the following website: http://www.ushistory.org/declaration/document/index.htm. I hope each of you enjoy this as much as I do. Have a happy, safe, and reflective holiday.
Tuesday, June 30, 2009
Cap & Trade: Real Estate Concerns
As we all know, our economy is reeling and Americans are desperately trying to recapture trillions of dollars in lost wealth. One of the essential components, if not the primary one, of this suffering is the declining value of individuals’ homes. The real estate market has plunged; this leaves many people in situations where their homes are now worth less than what is owed to the bank. This problem may get significantly worse if the American Clean Energy and Security Act (“Cap & Trade”) (HR 2454: http://www.govtrack.us/congress/bill.xpd?bill=h111-2454) is approved by the Senate with the same provisions passed by the House of Representatives.
John Boehner, the House Republican Leader and an elected Representative from Ohio, posted the following information on his website Friday afternoon:
Homebuyers Beware. Trying to save up for a new home? You may have to save up a little longer for your purchase. The Democrats’ bill would dramatically increase new home costs by mandating California’s expensive new building codes for the entire nation. Immediately upon enactment, the Democrats’ bill would demand a 30 percent increase in energy efficiency for new construction. A couple of years later, the Democrats’ bill would require an additional 50 percent improvement. These numbers were chosen with no concern for cost to consumers or feasibility in implementation.
Homebuilders Beware. The Democrats’ bill imposes new mandatory regulations and civil penalties for homebuilders. If your state refuses to accept the stringent and costly California building codes, the federal government may assess penalties. And don’t get too comfortable with the new mandatory regulations because the Democrats’ bill allows for “consensus-based” codes to supplant those outlined in the bill. So, as soon as you’ve invested your hard-earned money to comply with the bill’s mandates, the rug could get pulled from underneath you. Translation? You’ll pony up more and more money.
Home Sellers Beware. Having a hard time selling your home? Here’s one more hurdle to jump: all homes sales are conditioned upon an energy audit and a new energy rating assessment and energy labeling program for your home that’s outlined in the Democrats’ bill. And if you thought you could improve your property with a fresh coat of paint and some granite counters? Think again! Now your home will be subjected to a new energy rating assessment and energy labeling program that will penalize you for older windows, original fixtures, and dated appliances. So the Democrats’ bill would bring down the value of your home!
(Emphasis mine) You can read his entire commentary by following this link: http://republicanleader.house.gov/News/DocumentSingle.aspx?DocumentID=134491).
Look closely at this information and think about it in the context of your next home purchase or sale. If you buy a newly constructed home, you will either pay more for the house or you will have to buy a smaller home to account for the increased penalties placed upon you and the homebuilder by this legislation. If you are in a home, especially an older home, and want to sell, you are faced with either placing it on the market for much less than what typical conditions would warrant or you will be required to spend a considerable amount of money just to meet government standards to sell. This bill actually requires you to hire a government worker and pay him to do the inspection. Further, you may spend money to comply with the new laws only to find changed standards after you wasted resources, including your valuable time and effort.
The costs alone are prohibitive; however, there is another, more sinister, problem with this bill. Namely, the government will intrude into your privacy. This bill forces you to allow a government inspector to enter your home, evaluate things such as your choice in appliances, and then tell you how much your home is worth or what you need to do to bring it up to code. This goes way beyond normal building codes and replaces your personal choices and preferences with those of a group of bureaucrats far removed from your everyday life and financial circumstances.
If you do not find these costs problematic when compared to your desire to curb “global climate change” and the alarmists’ claims for impending doom, then consider the potential impact of Cap & Trade. The best-case scenario, assuming all provisions work nearly flawlessly and the restrictions have maximum effect, is a decrease in global temperatures of .2 degrees Celsius by the year 2100 (go here for a thorough analysis of the numbers involved: http://www.heritage.org/Press/FactSheet/fs0028.cfm). Weigh the scales. It is hard to fathom that a bill which will, as President Obama stated, cause energy prices to “necessarily skyrocket” is justified by such a minuscule effect on the planet in 91 years. This becomes even more apparent when you view it in the context of an economy and housing market that are in the midst of a slump with no end in sight. Who can really afford to lose more wealth and see their home lose more value for what amounts to nothing more than bureaucrats getting a warm fuzzy feeling in their collective stomachs?
John Boehner, the House Republican Leader and an elected Representative from Ohio, posted the following information on his website Friday afternoon:
Homebuyers Beware. Trying to save up for a new home? You may have to save up a little longer for your purchase. The Democrats’ bill would dramatically increase new home costs by mandating California’s expensive new building codes for the entire nation. Immediately upon enactment, the Democrats’ bill would demand a 30 percent increase in energy efficiency for new construction. A couple of years later, the Democrats’ bill would require an additional 50 percent improvement. These numbers were chosen with no concern for cost to consumers or feasibility in implementation.
Homebuilders Beware. The Democrats’ bill imposes new mandatory regulations and civil penalties for homebuilders. If your state refuses to accept the stringent and costly California building codes, the federal government may assess penalties. And don’t get too comfortable with the new mandatory regulations because the Democrats’ bill allows for “consensus-based” codes to supplant those outlined in the bill. So, as soon as you’ve invested your hard-earned money to comply with the bill’s mandates, the rug could get pulled from underneath you. Translation? You’ll pony up more and more money.
Home Sellers Beware. Having a hard time selling your home? Here’s one more hurdle to jump: all homes sales are conditioned upon an energy audit and a new energy rating assessment and energy labeling program for your home that’s outlined in the Democrats’ bill. And if you thought you could improve your property with a fresh coat of paint and some granite counters? Think again! Now your home will be subjected to a new energy rating assessment and energy labeling program that will penalize you for older windows, original fixtures, and dated appliances. So the Democrats’ bill would bring down the value of your home!
(Emphasis mine) You can read his entire commentary by following this link: http://republicanleader.house.gov/News/DocumentSingle.aspx?DocumentID=134491).
Look closely at this information and think about it in the context of your next home purchase or sale. If you buy a newly constructed home, you will either pay more for the house or you will have to buy a smaller home to account for the increased penalties placed upon you and the homebuilder by this legislation. If you are in a home, especially an older home, and want to sell, you are faced with either placing it on the market for much less than what typical conditions would warrant or you will be required to spend a considerable amount of money just to meet government standards to sell. This bill actually requires you to hire a government worker and pay him to do the inspection. Further, you may spend money to comply with the new laws only to find changed standards after you wasted resources, including your valuable time and effort.
The costs alone are prohibitive; however, there is another, more sinister, problem with this bill. Namely, the government will intrude into your privacy. This bill forces you to allow a government inspector to enter your home, evaluate things such as your choice in appliances, and then tell you how much your home is worth or what you need to do to bring it up to code. This goes way beyond normal building codes and replaces your personal choices and preferences with those of a group of bureaucrats far removed from your everyday life and financial circumstances.
If you do not find these costs problematic when compared to your desire to curb “global climate change” and the alarmists’ claims for impending doom, then consider the potential impact of Cap & Trade. The best-case scenario, assuming all provisions work nearly flawlessly and the restrictions have maximum effect, is a decrease in global temperatures of .2 degrees Celsius by the year 2100 (go here for a thorough analysis of the numbers involved: http://www.heritage.org/Press/FactSheet/fs0028.cfm). Weigh the scales. It is hard to fathom that a bill which will, as President Obama stated, cause energy prices to “necessarily skyrocket” is justified by such a minuscule effect on the planet in 91 years. This becomes even more apparent when you view it in the context of an economy and housing market that are in the midst of a slump with no end in sight. Who can really afford to lose more wealth and see their home lose more value for what amounts to nothing more than bureaucrats getting a warm fuzzy feeling in their collective stomachs?
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