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The Repeal Amendment OR Repeal The Amendment?

Updated on January 28, 2017
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As we all know, Senators are supposed to represent their States Legislatures. When a majority of States challenged the Health Care Reform Law in court, we could ask, are our Senators doing their job? We can develop an answer to this by asking some simple questions, using the recent Health Care debacle as an example:

  • Which States challenged the law?
  • How did these States' Senators vote?
  • How did each States' Senators vote on repealing the law?
  • Were the States that challenged the law faithfully represented by their Senators?


Collect The Data

Which States challenged the law?

This answer used to be available at 21statelawsuit.com . The two highest visibility lawsuits were filed by Virginia, and by Florida and other states. The Florida lawsuit went to the Supreme Court. Additional information is available by web-searching the term "health care lawsuits states", where one can find additional States that are planning to outlaw the enforcement of the health care law in their States. It is not the purpose of this article to identify all the States that are challenging the law, just the ones that were not represented by their Senators.

How did each States' Senators vote?

Thanks to our transparency in government, this answer is available at www.senate.gov . On the right hand side you can select the "Votes" tab which gives you access to the "Roll Call Tables". We seek the roll calls of the 111th Congress, 2nd session. Select roll call number 00105 to see how each individual senators voted. The page allows selectable views by name, by vote position, and by home state. It does not allow selection by party, but a quick review by position shows:

  • 56 Yea Votes, of which 2 are Independent and 54 are Democrat
  • 43 Nay Votes, of which 40 are Republican and 3 are Democrat
  • 1 Abstain, Republican

This data could easily be interpreted to indicate that the vote was clearly along partisan lines. Only three (or four) Senators broke with the party position.

How did each States' Senators vote on repealing the law?

While this article was being written, a vote to repeal Health Care came up in the Senate and was rejected. To find this roll call, follow the links at www.senate.gov similar to above, selecting 112th Congress, 1st session, roll call number 9. Review by position shows:

  • Keep the Law – 51 Votes, of which 1 is Independent and 50 are Democrat
  • Repeal the Law – 47 Votes, all 47 are Republican
  • 2 Abstain, 1 Democrat and 1 Independent (the Democrat is from my home State, Virginia)

Once again, the data could easily be interpreted to indicate that the vote was clearly along partisan lines. Only one Senator broke with party position. Independents are, by definition, non-partisan.

Once you have the data in hand, it is fairly straightforward to construct a table that shows each state, how their senators voted, whether that state was part of a lawsuit challenge, and whether the state is seeking to outlaw enforcement of the law within their borders. Result is the table here. States where Senators voted one way and lawsuits went the other way are highlighted.


How The Senators Voted

STATE
PASS HEALTH CARE
LAWSUITS?
NOT HERE?
REPEAL HEALTH CARE
Alabama
Against
Yes
 
For
Alaska
Split
Yes
 
Split
Arizona
Against
Yes
 
For
Arkansas
Against
 
 
Split
California
For
 
 
Against
Colorado
For
Yes
 
Against
Connecticut
For
 
 
Split
Delaware
For
 
 
Against
Florida
Split
Yes
 
Split
Georgia
Nay & abstain
Yes
 
For
Hawaii
For
 
 
Against
Idaho
Against
Yes
 
For
Illinois
For
 
 
Split
Indiana
Split
Yes
 
For
Iowa
Split
 
 
Split
Kansas
Against
 
 
For
Kentucky
Against
 
 
For
Louisiana
Split
Yes
 
Split
Maine
Against
 
Yes
For
Maryland
For
 
 
Against
Massachusetts
Split
 
 
Split
Michigan
For
Yes
 
Against
Minnesota
For
 
 
Against
Mississippi
Against
Yes
 
For
Missouri
Split
 
 
Split
Montana
For
 
In process
Against
Nebraska
Against
Yes
Yes
Split
Nevada
Split
Yes
 
Split
New Hampshire
Split
 
 
Split
New Jersey
For
 
 
Against
New Mexico
For
 
 
Against
New York
For
 
 
Against
North Carolina
Split
 
 
Split
North Dakota
For
Yes
 
Split
Ohio
Split
 
 
Split
Oklahoma
Against
Yes
 
For
Oregon
For
 
Yes
Against
Pennsylvania
For
Yes
 
Split
Rhode Island
For
 
 
Against
South Carolina
Against
Yes
 
For
South Dakota
Split
Yes
 
Split
Tennessee
Against
 
 
For
Texas
Against
Yes
Yes
For
Utah
Against
Yes
 
For
Vermont
For
 
 
Against
Virginia
For
Yes
 
Nay & abstain
Washington
For
Yes
 
Against
West Virginia
For
 
 
Against
Wisconsin
For
 
 
Split
Wyoming
Against
 
Yes
For

Did Our Senators Represent Their States Legislatures?

Comparing these two lists we can identify States where the Senators vote seems to be in direct conflict with their States Legislature. These States are either filing lawsuits or are considering laws to outlaw the enforcement of the Health Care law within their borders. Those states are:

  • Colorado, Michigan, Montana, North Dakota, Oregon, Pennsylvania, Virginia, Washington

In addition, the following states had split representation:

  • Alaska, Florida, Indiana, Louisiana, Nevada, South Dakota

In other words, 22 Senators broke with the position of their States. If we had reduced the number twenty-two down by eight, eight of twenty two Senators faithfully representing their states would have been enough to prevent the Health Care Reform from passing the Senate. This would in turn have prevented the costly and time-consuming lawsuits that followed.

The repeal vote showed a similar trend, with five States Senators all voting against repeal and ten States with split votes, or a total of 20 Senators voting against their own States' legislatures as evidenced by the lawsuits filed and anti-Health care laws created. Note also that these 20 Senators, together with the 47 who voted for repeal, would be enough to form the two-thirds Constitutional majority needed in the Senate to overcome a veto of the repeal by the President.

It seems difficult to me not to conclude that our Senators allegiance to party outweighed their allegiance to their States. While it is not true of all senators, the trend to represent party rather than State is there. It is worth noting also that prior to the 17th Amendment in the 1913, Senators were chosen by and owed their allegiance to their States Legislatures. That was the original role defined for the Senate in our original Constitution.

In the Election of 2010, in my opinion, voters made a statement about Representatives representing their districts. That happened because "We the People" stood up and said "enough is enough". We have the power of the vote to replace Representatives when we feel they no longer represent us. Senators are more slowly affected. The point here is that States Legislatures no longer hold power over those who represent them in the Senate. Instead, our States Legislatures rely on voters to remember until the next election that their States Legislature was not represented. The States rely on voters to care about and remember such things.

Our Tax Money Down The Drain
Our Tax Money Down The Drain

Example: Constitutionality of Affordable Health Care Act


On January 31, 2011, United States Federal District Judge Roger Vinson, for the Northern District of Florida, declared the Individual Mandate in section 1501 of The Patient Protection and Affordable Care Act unconstitutional.


Shortly afterward, discussion began about efforts to repeal the health care bill. The controversy regarding repealing the law and replacing it with something better continued through the times of the Obama administration, and into the time of the Trump administration. The early perspectives on constitutionality were discussed in another article here on HubPages titled “Why the New Federal Health Care Bill is Unconstitutional.”



Question: What Do We Do?

It seems logical to consider whether we want our government to function like this, two separate factions, democrat and republican, each taking power in turn, creating the laws they want, and forcing the People and the States to undo them if the law is unwanted. Over the past thirty or forty years the attitude seems to have been "We have the power, we make the laws, what are you going to do about it?", with only the faces changing every now and then dependent on which party is perceived as the least threat to the people.

Are there alternatives? Overwhelmingly, YES, there are alternatives, and our states exercised one of those alternatives (see the lawsuits in the table above) as this article was being written. Eventually our Supreme Court made a decision. Ultimately though, taxpayers do not want to be paying for a process that creates and undoes laws. Lawsuits are costly time consuming actions, and we go into an unproductive state of "wait and see" every time an unpopular law goes into effect, rather than exercising our normal creative and competitive processes for solving whatever problem faces us.

So, to do a quick analysis, consider the following options, and do an elementary comparison based on magnitude of cost, not by dollars, but by relative number of how many tax-paid people need to be involved. Evaluate also by amount of time that we spend resolving lawsuits. So, consider these options:

  • Leaving things as they are.
  • Creating a New State’s Repeal Amendment.
  • Repealing the 17th Amendment.

For sake of argument, regard a cost unit with the symbol "($)", regard the cost of two Senators representing their States as two cost units (2$). Treat the cost of one State filing a federal lawsuit as twenty cost units (20$). Treat the cost of one State creating its' own law as ten cost units (10$). Treat the cost of Supreme Court involvement as ten cost units (10$). The base cost of creating a law in the Senate is 100$. Don’t expect these numbers to be accurate; they are just one man’s guess as to relative magnitude of taxpayer cost.

Time spent in chaos is a little bit different to evaluate, since the jobs overlap and two or more of these jobs can be done at once. Dollars accumulate rather than getting spent in two places at once, so are easier to guess a. Denote the time for Senate to do their job, one time unit (Θ). Denote the time for States to either write there own "not here" law, or file a federal lawsuit as one time unit (Θ). Treat the time for Supreme Court to do their thing as one time unit (Θ).

Option One: Leaving things as they are.

The cost items here are for 100 Senators, noted here as 100$. Twenty seven states are involved in lawsuits in the Federal Court System, noted here as 540$. Expectation is that the Supreme Court will rule on two lawsuits, noted as 20$. Seven States are creating "not here" laws, noted here as 70$.

Time spent is for:

  1. the Senate to pass the law, or one time unit (Θ),
  2. States to file lawsuits or ‘not here’ laws, or one time unit (Θ), and
  3. time to go through the Supreme Court process, or one time unit (Θ).

Total relative cost for this process is 730$. Total relative time spent is three time units (ΘΘΘ).

Option Two: Creating a New States Repeal Amendment.

For this case, we add to the costs above. Denote relative cost per state as ten cost units (10$). Denote relative time for state’s to exercise a repeal amendment (if it goes forward) as three time units (ΘΘΘ). States will all travel this path at the same time (we hope), so we will regard time to repeal as overlapping. Two thirds of our fifty states would be thirty four states, so overall all cost would increase by 340$.

This brings the total relative cost for this process to 1070$, and total time to six time units (ΘΘΘΘΘΘ).

Option Three: Repealing the 17th Amendment.

If the 17th amendment had never been passed, and Senators knew they would be held accountable by their state’s legislature, our example Health Care bill never would have passed, and the total relative cost for this process would be 100$ and one time unit (Θ).

In summary, the relative costs are (not including the one-time relative cost to amend our Constitution one way or the other):

  • Leaving things as they are - 730$, three time units (ΘΘΘ),
  • With a New State’s Repeal Amendment in effect - 1070$, six time units (ΘΘΘΘΘΘ),
  • With the 17th Amendment repealed - 100$ and one time unit (Θ).

Repeal the 17th Amendment

Answer: RESTORE STATES REPRESENTATION

Given these options, I would favor repealing the 17th Amendment as the more fiscally responsible means for restoring States representation. The data indicated above indicates that the Senate is currently acting as a representative body for their party, not for their States. The hypothetical analysis for cost indicates it is costing the taxpayer extra tax dollars.

Afterword & Notes

While the Affordable Health Care Act is used as the example, I think we all agree we want some sort of Health Care in place. But the result should be agreeable to the people and the States, and not leave us feeling "They did it to us again", or leave us feeling like we have to fight to retain our Constitutional rights. It is not about any one issue, it is about our government no longer appearing to function according to the roles defined by our forefathers in our Constitution.

Links to additional Internet Resources on this topic are located below the comments.

Status Notes:

  1. 5 Feb 2011 - Creating a New States Repeal Amendment passed the House but was rejected by the Senate.
  2. 5 Feb 2011 - Lawsuits from two states, one backed by 25 other states (maybe more) were filed against the Affordable Health Care law.
  3. April 14, 2011 - A second Senate vote on repealing Health Care was agreed to as part of compromise on passing H.R. 1473 (Department of Defense and Full-Year Continuing Appropriations Act, 2011) of 14 April 2011.
  4. August 12, 2011 - 11th Circuit United States Court of Appeals (Atlanta) ruled 2-1 against the Health Care bill.
  5. June 28, 2012 - The Supreme Court upheld the "individual mandate" of the law. The mandate was regarded by many analysts as key to the ability to fund the law, and was opposed on the basis that it requires every individual to have Health Insurance, or pay a fine. The laws stated penalty for not having insurance was regarded by the court as a "tax".
  6. July 11, 2012 - The House voted to repeal the Affordable Health Care Law.
  7. November 2012 - President Obama was re-elected. Five Senators whose States appealed the Health Care Bil were re-elected. None were voted out. Two retired.
  8. November 2014 - Two Senators whose States appealed the Health Care Bill were re-elected. Three were voted out. Two chose not to run. One retired.
  9. November 2016 - Three Senators whose States appealed the Health Care Bill were re-elected. Senator Reid of Nevada retired. President Trump was elected.
  10. Since that time, school children continue to be taught in school that Senators represent for their States. They resolutely believe the lie, or flunk their government class.

Ever Since

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    • Pete Maida profile image

      Pete Maida 6 years ago

      It is easy for people that have good health coverage in their jobs to looks at the numbers and say that this health care isn't good for them. I know people that are stuck in a bad job that feel they can't leave because they need the medication that they are taking and the would not be able to afford it without insurance. Even if a new job had health coverage the insurance company may not cover them because it is a pre-existing condition. So they are stuck. No one speaks for these people because, in most cases, these people are too busy trying to put food on the table to lend their voice to any issue. They do not show up in the opinion polls, and none of the state reps give a hoot about them.

    • FitnezzJim profile image
      Author

      FitnezzJim 6 years ago from Fredericksburg, Virginia

      Thanks for the comment, Pete.

      The intent of the article was to look at data for the recent Health Care events to point out that our government system is performing poorly (overly expensive and time consuming) because States representation has been replaced by party representation.

      I think we all want to see good health care available to everyone, just not weighted down by the usual government bureaucratic systems.

    • Pete Maida profile image

      Pete Maida 6 years ago

      The Repos offer no alternative. They want business as usuall in order to maintain the insurance company profits. Repealing of the health care will put the people out in the cold back out in the cold.

      I know you want health care for all but I do not think the people behind the repeal could care less about health care for people in need.

      They want the insurance companies back in control. When you look at the opinion on this subject in an overall popular survey the result shows it 50 50. There is no real mandate by the people.

    • breakfastpop profile image

      breakfastpop 6 years ago

      Bravo. What a fabulous and useful piece of writing. Once our "representatives"get to Washington the people who got them there become unimportant and invisible. Your excellent research proves that. Voted up and awesome.

    • FitnezzJim profile image
      Author

      FitnezzJim 6 years ago from Fredericksburg, Virginia

      Pete, the feedback I'm seeing indicates that Judge Vinson thought our Congress had overstepped it's authority with this law. I concur, and in addition I'm saying we would not be wasting taxpayer dollars with lawsuits if our Senators had faithfully represented their States and taken the time to come up with an approach to Health Care that didn't Constitutionally violate our individual and States rights. The responsibility for representing the people, including people in need, falls on our House representatives.

    • FitnezzJim profile image
      Author

      FitnezzJim 6 years ago from Fredericksburg, Virginia

      Pop, thanks for the comment. How many times have we heard 'things are different in Washington?'.

      This data would lead one to believe they owe allegience to their party, and not to the People, States, or Country. Wrose than that, the data seems to indicate this attitude continues in the Senate, despite the 2010 Election. My conclusion, as usual, they've twisted the message to hear the mandate they wanted to hear. My question is, who stands up for the States?

    • eovery profile image

      eovery 6 years ago from MIddle of the Boondocks of Iowa

      I do not understand where the Obamacare is sitting. It was ruled unconstitutional, they need to back off, but they are continuing like the ruling means nothing.

      And what about the garbage they has already been done? This is going to be a mess.

      Keep on hubbing!

    • FitnezzJim profile image
      Author

      FitnezzJim 6 years ago from Fredericksburg, Virginia

      The appeals on Unconstitutionality have not yet reached the Supreme Court. That will be the next 'final' answer.

    • Mimi721wis profile image

      Mimi721wis 6 years ago

      Great charts. Good info. If only more concerned citizens would take the time and do a little research. God knows we can't just rely on partisan mud slinging. Our politicians are two arrogant. It's insulting at times. We really need a change.

    • Cyrellys profile image

      Cyrellys 6 years ago from Montana

      I think it is something a little deeper than party affiliation calling the shots. What we here in montana are running up against is that the primary activity in governance process is being engaged by the corporations and other special interest groups (s.i.g's). For example, a piece of legislation comes up for public discussion, with an opportunity for the public to come and present an opinion or hear from their representatives on the piece...but who is it that shows up? It's less the people than a large number of plain clothes corporate or other special interest group representatives who come to the session pretending to be individual citizens representing public sentiment. The very information which representatives are fed is being twisted! There is a clear deliniation between the desires of the citizens and the corps/s.i.g.'s This is a clear problem. Corporations are being given the same standing as a citizen and seem to have greater clout with politicians than citizens do. The commercial sector has invaded everything, even our educational system so that propaganda is supplanting knowledge and the students being naive never realize the difference. Our entire society is experiencing this remolding process on every level. So what do individual citizens do? Well rather than jump off the couch and find some way to get involved effectively, they say it's too far gone or too complicated, or they just don't have the time and energy to care. (I ran into the 'I just don't care' excuse, from a relative this winter) Until this lack of responsibility ceases on the part of the mass of citizenry, you will not be capable of holding representatives to task, no matter what legislation you get passed or repealed to accomplish it. The system was designed to be interactive. If the corporations and other non-governmental special interest group organizations are the only one's using it, then you will be forced to eat whatever profits them, at your expense.

      Cy

    • profile image

      Ghost32 6 years ago

      Interesting, Jim--both your excellent treatise laying out the case for repeal of the 17th Amendment and the apparent assumptions by the majority of folks commenting that this page is about Obamacare.

      The bottom line is that with the 17th in place, anyone who can spin the TV commercials and blamestream media talking heads...can and does absolutely control who does or does not get elected to EITHER the House or Senate. No more checks and balances; it's only Roman "bread and circuses".

      Gotta run; I'm off to put a link to this page in one of my relevant hubs...:)

    • James A Watkins profile image

      James A Watkins 6 years ago from Chicago

      I enjoyed this outstanding article. I must sheepishly admit I didn't remember what the 17th Amendment was. Thanks to your article, I do now. Thank you for a fine read.

    • FitnezzJim profile image
      Author

      FitnezzJim 6 years ago from Fredericksburg, Virginia

      Mimi,

      I'm a bit late on response, but appreciate the visit.

      I tried to mix into this article a little bit of information about how to go about looking relevant information from government sites. The archives tend to present uninterpreted facts. I'm never too sure about other sites sticking strictly to facts (including me).

    • FitnezzJim profile image
      Author

      FitnezzJim 6 years ago from Fredericksburg, Virginia

      Ghost, I've noticed that recently, nearly everything gets interpreted with Health Care in mind. That's what is on peoples minds.

      I regard it as a distraction of sorts, since the real problem we have is that our government is functioning competitively because of the two-party system, rather than representatives seeking cooperation or collaboration.

    • FitnezzJim profile image
      Author

      FitnezzJim 6 years ago from Fredericksburg, Virginia

      James, thanks for the visit.

      Hopefully, I put forward a different perspective.

    • WillStarr profile image

      WillStarr 6 years ago from Phoenix, Arizona

      Great Hub and I agree. The founding Fathers knew what they were doing. Repeal the 17th.

    • katiem2 profile image

      katiem2 6 years ago from I'm outta here

      This is a touchy subject but I will stick with what you covered and thats the performance of the government. They need to be called into the office and given a verbal, then a written, then canned. Whew wouldn't it be great if they were actually held accountable to do their jobs and perform successfully or get canned?

      Our founding fathers had it right we need to get back to that plan! Great job and well written. :) Katie

    • Max Havlick profile image

      Max Havlick 5 years ago from Villa Park, Illinois

      Jim, is there something special in the Virginia water that makes people there want to revise constitutions in their spare time? Do you guys grow up with James Madison and Thos. Jefferson and Patrick Henry as your role models pressing you ever onward?

      To set oneself up to do battle with the 17th amendment, or any other part of the constitution, is a formidable challenge, and you respond with a detailed analysis of how your proposed change would have impacted a major recent legislative event, and the relative harm of other possible changes.

      All this is impressive work, Jim, not exactly the cause that I am keyed up about (I did start to write a book on the 14th amendment once), but the nation would be poorer, and more clearly headed toward stagnation, without creative people like you opening up new constitutional possibilities for discussion. The fact that you're here on hubpages getting some response, pro and con, and giving you a chance to respond, seems to me like a huge boost and energizer to your interest.

      I'm interested in constitutional law, so I'll look at your other hubs on this subject. One idea, if you have not done it, you might gather up all the objections you can find to repealing the 17th and list them one by one with your succinct answer to the objection.

    • FitnezzJim profile image
      Author

      FitnezzJim 5 years ago from Fredericksburg, Virginia

      I was reminded of my first interest in the Constitution when President Obama was elected. A vacationer was visiting the area where I lived as a kid and firmly stated that it was not possible for a black man to be elected. I did not know. So, at suggestion of our parents, we pulled out a copy of the Chicago Tribune (or Sun) almanac, looked up the Constitution, and carefully searched for anything about restrictions on becoming President. I was 10 or 11, and he was 7 or 8. Why kids that age were even thinking about such questions is beyond my comprehension today. Anyway, we found out that 1) there was nothing in the Constitution that stopped a black man from becoming president, 2) a black man had never been president (and given the conflicts of the 60's it seemed like it might never happen), and 3) the world would change one day and it would eventually happen.

      True change takes decades, or longer.

    • Credence2 profile image

      Credence2 5 years ago from Florida (Space Coast)

      Hi, fitnessjim, a good hub with interesting charts and graphs, as you are obviously conservative in your views. Tell me how repeal of the 17th Amendment, Direct Election of Senators is to the advantage of the voting electorate? Thanks for allowing me to join your team, from the other side of the ideological divide, Credence2

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