AMERICAN DUE PROCESS

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By: Wayne Brown

It is time to get very clear on the recent Supreme Court ruling on the Affordable Healthcare Act as a constitutionally compliant law. The ruling handed down this past week has stated in a matter of words that the High Court in a 5 to 4 decision will allow the law to stand as constitutional though the use of the Commerce Clause as the basis for a mandatory requirement on all Americans to purchase the healthcare did not pass muster. Had the Court stopped at that point and essentially took the position that the Congress would have to find an alternative method by which to fund this legislation, its implementation, and sustainment, then America would have had a ruling which stayed well within the bounds of the established checks and balances originally intended with the design of the three branches of government. That action did not take place and basically sent things into circumstance where it seems the law is allowed to stand without further action.


Let’s break things down so we can understand it better. Look at the Court’s majority position to really begin to understand what happened here. The Court could not sustain the mandate under the Commerce Clause as it pertains to commerce which actually does not yet exist. The Court has established the fact that Congress does not have the power to regulate commerce in the fashion as proposed by this mandate. In order to allow the law to stand constitutionally, the Court then assumed that the intent of Congress must have been to “tax” or in effect establish a tax by requiring a premium be mandatory on the American people and that a penalty be assessed for those who were not in compliance with the requirement. This assumption on the part of the Court as the “intent” of the Congress becomes the justification for the law to stand because Congress does possess the power to enact and levy taxation. This single assumption was a great error on the part of the Justices and put in motion a process which could indeed totally circumvent the checks and balances of the established system.


By the Courts position, there is no barrier to the act moving forward. Now, you might want to remember that the argument was made by Congress, by the President, and by all those who supported the legislation or plead for it before the High Court that the mandate was indeed “not a tax”. President Obama still holds to that claim in the aftermath of the Court’s ruling though it is clearly decisive that the Court sees the mandate as an “intent to tax”. Given that premise, the American taxpayer, as it currently stands has seen legislation enacted with no “intent to tax” which in the eyes of the Court essentially does. The outcome of that circumstance is we are to experience “taxation without representation” which is, I recall, something which the American people were not endure.


Clearly the original vote on this legislation and the outcome was taken and decided with the idea that a mandate was being established but there was no basis to tax. The Court has reversed that position by its “assumption of intentions” within the recognized powers of the Legislative body. Given that premise, if we are to be taxed as defined by the Court, then another vote on this legislation is required so that the legislation is truly vetted and debated from a “taxation” standpoint before being applied upon the American people. Taxation without Representation cannot stand. Even the most ardent supporter voting for this legislation did not do so with the intent of establishing a tax on his/her constituents therefore that elected official has never truly represented his/her constituency in consideration of the tax which will indeed be proposed. Within the framework of our government, and clearly by the ruling of the court, a vote is not only justified but required if this law is to have any legitimate legs.


The Court also failed to leave the teeth in the law which would have financially penalized any state not enacting this legislation by holding back federal funding of Medicaid. Clearly the federal government will have to find alternative methods by which to penalize the deviant States if arm-twisting is the order of the day. On the basis of the Court’s position on this issue, one can go a step further to say the Court does not intend for the Federal Government to attempt without anything of value from the States as a form of penalty for non-compliance. Given that premise, it would appear that the Court has handed the decision as to whether or not the Affordable Healthcare Act will apply down to the State’s discretion. Here again is another reason which demands that this legislation be taken to a new vote for it is apparent that the intent of the legislation cannot be carried out without full participation to hold down the projected costs to each participant. In effect, as we always are, we are back to issues of State’s Rights…a never-ending debate.


Why is that the case? That is the case for one consistent reason down through history. Those who designed and built the founding documents and the infrastructure of our governance never intended the federal government to be a center of absolute power. Therefore, the Constitution is clear on that point in not establishing those powers of the Federal Government over both the individual and the state. The Federal Government’s primary purpose was essentially two-fold…maintain a standing militia and speak as the representative, official, singular voice of the people in matters of state and international issues…no more, no less.


Speaker of the House, Boehner, has implied that the House will take a vote to repeal after returning from vacation break in late July. Boehner failed miserably with this statement to the public in that he did not make it clear that such vote was more than an attempt to repeal. This vote should be about everything which I have discussed above. This vote should be about whether American taxpayers are to be “taxed” to establish and sustain a national healthcare program. That vote has never been taken yet the American public is now subject to a law which implements that action as sustained by the Supreme Court ruling. If Boehner and others in the House take only a token and symbolic motion to repeal rather than take the high ground on the basis of this argument, then all of them need to be on the train headed out of town for good along with anyone who voted originally for this sham legislation.


A significant portion of the American public on both sides of the aisle are fed up with being lied to and deceived about how things are done and what can and cannot be done in Washington. The current president leads that pack by dishing out misinformation on a constant basis, by making claims about what he will and will not do or tolerate, by pointing fingers at the actions of others in criticism and condemnation only to take up the same mantra himself when that direction becomes necessary to him. We still have a country which is built on the principles by which it was founded and no American should be willing to tolerate this behavior in our federal government without feeling misrepresented, misled, intentionally confused, and deliberately lied to in the process.


How this process plays out will also be a function of the deceitful and misleading actions of those we have entrusted with our representation. If it is not handled in a fair and equitable fashion which allows the taxpayer due consideration of proper representation prior to the institution of known taxation, then it will have failed miserably and God help those who seek elected office or re-election to office in November of 2012 for the wrath of the American voter will surely be upon you.


©Copyright WBrown2012. All Rights Reserved.

30 June 2012

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Comments 17 comments

peoplepower73 profile image

peoplepower73 4 years ago from Placentia California

With all due respect, I think you are missing a very important point in your discussion and it's the use of the words "we and mandate." It's unfortunate that people are connecting the word mandate with all of the Obama Care law. The individual mandate is only for people who are not already insured but can afford it. They will pay a tax or penalty for not having health insurance. If they are so poor that they can't afford it, they will be given financial assistance so they can. It has nothing to do with "we" are all going to be taxed because of the individual mandate. If we have insurance, this part of the law will not affect us. I hope I have helped clarify this point. Voting up, useful, and sharing.


Angela Blair profile image

Angela Blair 4 years ago from Central Texas

Excellently written and right-on information, Wayne. Thank you. Best/Sis


Wayne Brown profile image

Wayne Brown 4 years ago from Texas Author

@jschams...I agree with totally...to allow this law to stand and continue forward simply through the politicians ignoring the ruling that the mandate is indeed a tax cannot happen...I hope. Thanks much. WB

@peoplepower73....Thank you for your comment. You comment assumes that people will have a "choice" and that has become rather clear that it is not the case...you might remember all the hoopla about Obama lying on that point early on and then it being discovered there was no choice. Many companies are at this very moment attempting to determine what this law will do to their healthcare benefit or if that process will indeed be migrated to the ACA platform (with a charge to the company of course). Regardless, the mandate entails a fee or penalty for those unwilling to purchase coverage and a provision to cover those who are incapable of coverage on their own. In that light, a cost to each individual taxpayer is being imposed because the money to pay for that welfare must come from somewhere...thus a tax as ruled by the Court. Medicare is a tax and basically provides a similar provision yet all who can pay bear the burden of the costs associated with Medicare in the form of taxes. "We" are very much involved in that process as Americans by mandate of Congress to tax us for the benefit. As it stands now, ACA goes forward as if the mandate stands yet the mandate has not been upheld so basically the only way it can go forward without further action of Congress is to follow as a "tax" as declared by the court. Denial by the President or the Congress does not change that fact. On that basis, and viewing this legislation from that perspective, it is apparent that another vote is necessary as a clear representation of "the will of the people" to be taxed for such benefit whether it be for everyone or just as an act of welfare. Thanks much. WB

@Angela Blair...Thank you Sis. As voters, we must demand a vote on this law as the enactment of a tax on the American people without consideration or consent. WB


Wayne Brown profile image

Wayne Brown 4 years ago from Texas Author

@JS Chams...Personally, I believe that Roberts was trying to keep the face of the Court looking objective in that he made sure the law stayed in place but derailed the mandate. By all right, the law should have been restricted from going into effect until Congress designed a viable alternative to the mandate and clearly weighed that alternative to the litmus test as to whether it was indeed a tax on the people. As it appears to me, the Court has not blocked the law but simply dissallowed the penalty as a function of regulating commerce by the Congress. If that is the case the it would appear that implementation can go forward without further legislative action as long as the mandate relative to the Commerce Clause is never imposed. All the President and the Congress have to do is to continue to deny that the American people are being taxed. At the same time, for that 30+ million not currently covered, there will be no penalty imposed for not taking coverage, and someone will have to bear the costs of the welfare application of the program for those who cannot afford it...that comes back to a cost imposed on the government which will have to be passed on to the taxpayers....plain and simply, a tax imposed without due process or adequate representation. Thanks much. WB


ib radmasters profile image

ib radmasters 4 years ago from Southern California

Wayne

First, the Obamacare calls is a Penalty, and not a tax. It can't be both as they are mutually exclusive.

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Second, the tax if it is so deemed a tax has not taken effect, and therefore the Supreme Court should not have listened to the case.

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Third, the checks and balances of the three branches has a very shaky Judicial Branch in the form of 5-4 decisions. The voters should require their congressmen to submit a constitutional amendment to change it from 5-4 to 6-3 or better 7-2. This would correspond to the percentage needed to submit and ratify a constitutional amendment. The Supreme Court decisions as the supreme law of the land have much the same power as a constitutional amendment, so why not treat is as such.

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Fourth, the voters can by not reelecting any of the Democratic Incumbent send a message to Obama and the Democrats that they are still the People.

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Fifth, in California and in the US Southwest there are ten million illegal aliens that get free education and free medical, and I doubt whether Obamacare will have any effect on it.

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Sixth

The Interstate Commerce clause which is only two lines in the original document has been used to change the founders concept of a small federal government into a huge and ever growing federal government.

There was a federal case in the 1940's, I think in Mass. where a farmer had some ten acres where he grew his own produce for his family consumption. It never less his property. Yet, the court held that it violated the Interstate Commerce Clause because it had an impact on produce from other states, because the farmer wouldn't be buying their produce.

The Roberts decision using ICC smacks of that 1940s case rationale.

Thanks


The Frog Prince profile image

The Frog Prince 4 years ago from Arlington, TX

Obama is a liar. He is also pathological when he does it but from the start of his term he bamboozled the American people into this piece of legislative crap that from first examination was nothing more than the largest tax bill to ever be passed in our nation. Why do you think it was crafted in secret? What do you think the chances of it being passed would have been if it had been presented for what it is - a very large tax increase on the middle class. That is something Obama had "PROMISED," along with thousands of toher broken promises, since he was elected. He's again been caught on tape when he continually denied that the mandate wasn't a "tax." Then his own Solicitor General, in verbal arguments, argued before the SCOTUS, that it wasn't a penalty but was a tax.

So now again Obama wants to have it both ways. It is a tax, was a tax and always will be a tax. The unfortunate beneficiaries of this tax will be the young people of this nation. They are the ones that Obama has perpetrated the biggest fraud he has accomplished to date. But then again they were some oif the very ones who helped elect this fraud to be the CEO of this nation.

Turn the Senate, build on the House and get rid of Obama and we'll see what happens. I have to agree with Roberts regarding that the SCOTUS shouldn't be in the position of determining what is, or isn't, bad law. That is up to us as voters. The problem is that these career professional pick pockets have yet to get the message that it is the electorate who has the ability to fire every swinging one of them. It's now time to do our job and not rely on the SCOTUS to do it for us.

The Frog


Wayne Brown profile image

Wayne Brown 4 years ago from Texas Author

@JS Chams, IB Radmaster, TFP...Great comments and exchange on this one. I liked it all. I can see why too many Americans might be a bit confused by this outcome but it plays handily to Obama and the supporters of the legislation and that is why it is so necessary to force the vote on it as a "tax". We cannot take the Court's ruling both ways unless the welfare and the penalty knocked down under the mandate are to be costs shouldered by those who can pay in this process. The other consideration is allowing no penalties to be levied against States not in compliance with ACA...that blows the bottom out of full participation and thus does one of two things...either reduces the base to cover the costs or it allows a tax which has not been deliberated to be imposed upon people who are receiving no benefit from it....just like paying in Social Security and getting nothing. The way I see it, we either get a vote here or we proceed with tyranny. WB


Davesworld profile image

Davesworld 4 years ago from Cottage Grove, MN 55016

Trouble is, Froggy, too damn many in the electorate actually beieve there is such a thing as a free lunch.


Wayne Brown profile image

Wayne Brown 4 years ago from Texas Author

@Davesworld...You hit that one out of the park, Dave and the reason why is those who have held elected office for so many years have come up with social program after social program to buy votes. We cannot afford this stuff even if we tax at 100%....even if we could, it would only be for a short while as the programs would just keep coming and coming. It has to stop and people have to start being more responsible for their own destiny in life...plain and simple. WB


Mhatter99 profile image

Mhatter99 4 years ago from San Francisco

good and well thought out points. as this whole "whatever' is going on about universal healthcare I think about a bill for my insurer that fell into my hands. That bill contained an expensive charge for something that never happened.had I not received this bill the insurance company would have paid. I wonder how much of this type of thing goes on


breakfastpop profile image

breakfastpop 4 years ago

Somewhere along the way, we the people became irrelevant. It is as though what we want believe, or think could matter less. Washington is operating recklessly and breaking every rule in the book. There is no longer separation of powers. We deserve a vote on this hideous intrusive expensive waste of a law. Up and awesome, useful and interesting.


Wayne Brown profile image

Wayne Brown 4 years ago from Texas Author

@Mhatter99...Thank you! That sort of fraudlent billing is commonplace in Medicare as claimed by the government to the tune of billions of dollars each year. The government claims that they do not have the ability to discover it thus one more justification for healthcare reform. It seems to me that if they can put a price tag on it then they must have some idea of where and when it occurs or...maybe they are just making up numbers to justify other actions. This is the reason we need to question the actions of those in Washington again and again. As long as they believe they can lie to us and do whatever they want, our form of government will continue to move further and further toward tyranny. WB


Wayne Brown profile image

Wayne Brown 4 years ago from Texas Author

@breakfastpop...We the people most certainly do deserve another up or down vote on this legislation if it is to be a standing law. Let's see what happens. One thing they can count on...any Senator or Representative from my area of the world who does nothing to push such a vote just lost mine in the next election. The Dems now want to "just move on"...basically, let the law which came to be under false premise to stand as the "will of the people" when it is everything but that. In my America, the majority still rules and this action never did have anywhere near a majority of support....it is a lie from the first word of the legislation...that is the only truth about it. Thanks Poppy...WB


drbj profile image

drbj 4 years ago from south Florida

I am aware, Wayne, that not every voter may understand the ramifications of this new tax, but how much intelligence does it take to realie that Obama has lied about his intent from the very beginning - with this and many other 'executive privilege' decisions. We must 'clean house' come November or we deserve what we get! Thanks for speaking the truth!


Wayne Brown profile image

Wayne Brown 4 years ago from Texas Author

@drbj...A funny thing happen on the way to Bill Clinton meeting Monica Lewinsky, Doc. The concept of "character" went right down the crapper and that exact moment occurred when Clinton uttered "It depends on what the definition of 'is' is." From that point forward, the left looked at things to say that one need not worry about character if one is attempting to do what is right by the people (according to their definition, of course). It matters not if you lie, cheat, or steal if you get the desired outcome. One is only doing what it takes to accomplish the goal and those who would judge or condemn should be ashamed. Now, in light of the Supreme Court ruling (and a stupid one it was), the President and the Democrats want to shrug their shoulders, swear it is not a tax, and "move on" toward the goal. Since the first days of the Revolution, "taxation without representation has equaled tyranny", yet that is okay because what was necessary has been accomplished and all they people will see it and know that it is true for it is written under the Democrats definition of character.

You are so correct...the place needs a good cleaning on both sides of the aisle. We better hear some folks on the right side of the aisle raising some hell until we get another vote on this as a "tax"....I want them to have to look us in the eye and tell us that they have instituted a "tax" to pay for ObamaCare. At the same time, when this "tax" money is flowing into the general fund and new spending ideas for social programs are being stacked up against it allowing the debt accumulation to continue, I want Obama to stand before the American people and lie once more telling them this is a "debt neutral" program. We have come a long way as a country to end up like this...led by the dregs of humanity. WB


50 Caliber profile image

50 Caliber 4 years ago from Arizona

Wayne, kudos, you written a well worded piece, that is broke out a pretty civil discussion. It's covered the points that I just can't top. I voted it up all over the place except for funny. It's just a great writing on the serious topic right now. It generated many good thoughts on the topic at hand.

I don't know what the outcome of this is going to be. If we can get it handled by ballot I just feel there's some more serious, down the line. And I sincerely hope it doesn't go that route.

I sit and wonder as I look at the big topics in the news and try to figure out which one is a smokescreen for the other one. Is it the healthcare, or Eric holders job? The latter I feel is more important as I believe it was meant to bust the Second Amendment. The Second Amendment is our last ditch effort to ensure that the insurance scandal doesn't see the light of day.

Seems like cool hand Luke, what we have here is a failure to communicate. I believe Congress knows what America wants, and they know what they want. I just hope that they decide to do their job instead of ignore the American people.

Time will tell and I hope you keep punching out great articles with a good message from now until November. I'm crossing my figures and load magazines you know like Sports Illustrated and the TV Guide LOL.

Peace,

dust


Wayne Brown profile image

Wayne Brown 4 years ago from Texas Author

@50 Caliber....No doubt the Fast & Furious situation is the most sensitive. Obama pushed the Healthcare consideration in front of the court because he wanted the outcome to be as faded in folks memory as possible by the time the election rolled around. Though he got a favorable ruling, the hangnail is the element of "taxation without representation" which he will try to tap dance because the whole thing is down the crapper if it goes back to Congress for a vote from the "tax" perspective. As for Holder, your earlier reference to the email as to what Hilary is up to directly ties into why Holder cannot provide the request evidence to the Congress. If he did that it leads back to Obama and likely Hilary and the plan to use F&F as the platform of justification for the international treaty on gun control. Of course he will also add in escalating violence on the part of OWS which will scare the elderly sector of the population into literally begging for gun control. This one has some deep evil roots...very deep. Thanks Dusty. WB

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