Obama Care and Original Intent of the Necessary and Proper Clause of the U.S. Constitution

Constitution of the United States of America

The First page of the Constution
The First page of the Constution | Source

Article I Sec. 8.18: Enumerated Powers

 “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”  

Judge Vinson's Reasoning Behind his Decision

On January 31, 2011 Federal Judge Roger Vinson declared the Patient Protection and Affordable Care Act, otherwise known as Obama care, unconstitutional. Judge Vinson stated that the Necessary and Proper Clause “augments that enumerated powers by authorizing Congress “To make all Laws which shall be necessary and proper” to regulate interstate commerce.’ ” (page 13 Vinson Opinion footnote 7). Judge Vinson took the original intent view of the Constitution.

The Founding Fathers

Scene at the Signing of the Constitution of the United States, by Howard Chandler Christy
Scene at the Signing of the Constitution of the United States, by Howard Chandler Christy | Source

Original Intent

What did the Founding Father intend when they wrote the Constitution?

The original intent of the Constitution can be discerned from the Federalist Papers. Another source of original intent, which is often over looked, are the Anti Federalist Papers which where publish at the same time as the Federalist Papers. The Anti Federalist Papers voiced concerns over the proposed new form of government and the dangers to liberty it represented.

Two Famous Anti Federalist

Patrick Henry; "Give me liberty, or give me death!" fame.
Patrick Henry; "Give me liberty, or give me death!" fame. | Source
Elbridge Gerry: famous for introducing Gerrymandering. The redrawing of the boundaries of state legislative districts to favor his party.  He became what Brutus feared.
Elbridge Gerry: famous for introducing Gerrymandering. The redrawing of the boundaries of state legislative districts to favor his party. He became what Brutus feared. | Source

Anti Federalist Concerns about the Loss of Liberty

The fears that Congress would use that clause to “abolish state legislatures” were clearly stated in the anti Federalist paper written by Brutus on October 18, 1787 (most likely New York Judge Robert Yates). The Necessary and Proper clause “is a power very comprehensive and definite, and may, for ought I know, be exercised in such a manner as entirely to abolish the state legislature.” After describing a hypothetical situation of congress abusing this power, Brutus states “…the legislature of the United States are vested with great and uncontrollable powers … Besides, it is a truth confirmed by the unerring experience of ages, that every man, and every body of men, invested with power, are ever disposed to increase it, and to acquire a superiority over every thing that stands in their way,” Brutus’ argument was countered by Federalist #33 and #44

One of America's First Constitutional Lawyers

Alexander Hamilton, wrote teh majority of the Fedrealist papers.
Alexander Hamilton, wrote teh majority of the Fedrealist papers. | Source

Hamilton: Federalist # 33

If we look at Federalist papers 33, The Constitutionality of National Tax Laws, written by Hamilton, the intent of the founders is clear and unambiguous. Hamilton was rebutting charges that the Necessary and Proper clause along with the Supreme law of the land clause, article 6 sec 2, could be used to relieve the states of all sovereign power at the whim of Congress.

Hamilton states:

“These two clause have been the source of much virulent invectives and petulant declamation against the proposed Constitution. They have been held up to the people in all the exaggerated colors of misrepresentation as the pernicious engines by which their local government were to be destroyed and their liberties exterminated; as the hideous monster whose devouring jaws would spare neither sex nor age, nor high nor low, nor sacred nor profane; and yet strange as it may appear, after all this clamor, to those who may not have happened to contemplate them in the same light, it may be affirmed with perfect confidence that the operation of the intended government would be precisely the same, if these clauses were entirely obliterated … They are only declaratory of a truth which would have resulted by necessary and unavoidable implication from the very act of constituting a federal government,…”

Hamilton continues his analysis of the words themselves: “What is power, but the ability to or faculty of doing a thing? What is the ability to do a thing, but the power of employing the means necessary to its execution? What is LEGILATIVE power, but a power of making laws? What are the means to execute a LEGISLATIVE power, but laws? What is the power of laying and collecting taxes, but a legislative power, or a power of making laws to lay and collect taxes? What are the proper means of executing such power, but necessary and proper.”

Hamilton then stated “ I have applied these observation thus particularly to the power of taxation, …But the same process will lead to the same result, in relation to all other powers declared in the Constitution, Any laws passed by Congress will be the supreme law of the land, but those laws must be made ‘pursuant to the Constitution.’ ”

Father of the United States Constitution

Fourth President of The United States, wrote 26 of the Federalist Papers
Fourth President of The United States, wrote 26 of the Federalist Papers | Source

Federalist # 44 Madison, Restriction of the Powers of the State

Madison discussed the reasoning behind the phrasing of the “Necessary and Proper” clause. “Had the convention attempted a positive enumeration of the powers necessary and proper for carrying their other powers onto effect, the attempt would have involved a complete digest of laws on every subject to which the Constitution relates; accommodated too, not only to the exciting states of things, but to all the possible changes which futurity may produce;”.

Madison continued; “If it maybe asked what is to be the consequence, in case the Congress shall misconstrue this part of the Constitution, and exercise powers not warranted by its true meaning,”. If the Executive and the Judiciary do not act to stop the “usurpation” of power by Congress then “a remedy must be obtained from the people, who can, by election of more faithful representatives, annul the acts of the usurpers.”

Supreme Court Justice Kennedy stated, in his concurring opinion, in UNITED STATES, PETITIONER v. GRAYDON EARL COMSTOCK, JR., ET AL. [May 17, 2010]

“ The Court concludes that, when determining whether Congress has the authority to enact a specific law under the Necessary and Proper Clause, we look “to see whether

the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power.” How can forcing people to participate in an economic activity come under Congress' enumerated powers. The Civil Rights cases involved a person running a business who refused to serve a customer. Forcing someone to buy health insurance when they do not want it does not come with in the reach of Congress under Article 1 Sec 8 of the Constitution.     

 

Judge Vinson on Solid Constitutional Ground

Judge Vinson Stated that many parts of the Health Care Reform act were constitutional, but the individual mandate portion of the law was unconstitutional. Since, “the defendants concede that [the individual mandate] is absolutely necessary for the Act’s insurance market reforms to work as intended.” Vinson had no choice but to declare the whole act unconstitutional. (Florida v United States Dept. of Health and Human Services Case No.: 3:10-cv-91-RV/EMT p.63-4 )

Was the Necessary and Proper Clause written as a stand alone clause to be the “the last, best hope of those who defend ultra vires (unauthorized ; beyond the scope of power allowed by or granted by a corporate charter or by law) congressional action.” (See Printz, 521 U.S. at 923.”, Vinson Opinion)?  The Original intent of the founders seems to say otherwise.

Nancy Pelosi Believes the Congress can do anything it wants.

When Congress Usurps Power

The original intent of the founders is clear and unmistakable. Madison’s suggested remedy took place last November 2010 when the democrats lost control of the house. The people, by election of more faithful representatives, annul the acts of the usurpers.” As Hamilton stated in Federalist # 33, the law enacted “ …by Congress will be the supreme law of the land, but those laws must be made ‘pursuant to the Constitution.’ ” The people spoke.

Pelosi "We have to pass the bill so you can find out what is in it."

The Lest They Could Have Done was Read the Darn Thing

The issue is no longer whether the Health Care Reform bill is constitutional. The issue is whether the elected representatives of the people believe they can “acquire a superiority over every thing that stands in their way.” If you ask Nancy Pelosi, her answer is YES. She would use the Necessary and Proper Clause as “the last, best hope…” to “defend ultra vires congressional action.” (see Printz, in Vinson Opinion)

(Ultra vires: unauthorized … by law)

Should there be national health care in this country? Yes, should it be rammed down our throat without a national debate on the substantive issue. No! Congress is the servant of the people. We elect them to do what we say. We are not their servants. When Nancy Pelosi stated “We’ll know what’s in the bill when we pass it,” The Congress of the United States had overstepped its authority. Congress was passing a bill they “thought” was constitutional but they never read the complete bill.

What is your Opinion

Does Congress have the power to pass any law it deems necessary under the Necessary and Proper Clause?

  • Yes
  • No
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