What kind of America allows the President to grant waivers to laws passed by Congress?

That is not a rhetorical question.

•

Stop thinking that this discussion is merely about ObamaCare. You’re getting caught up in the noise. We all are. We think that this is about politics.

Clear your head and think about some things that actually matter. Think about that one history teacher who got through to you that year that you finally grasped how special America is. Think about that indescribable feeling deep in your soul when you look at our beautiful flag as you listen to the national anthem.  Think about the people who paid horrible prices so that they could hand over the American Experiment to us, from Crispus Attucks to the Marines who lost their lives in Afghanistan last week.

Think about whatever it takes for you to get to that state of mind where you are in awe of American Exceptionalism.

Clear your mind and think about the majesty and importance of the US Constitution.

Find your patriotic center.

•

This doesn’t have a damned thing to do with ObamaCare.

We talk about how it is “unfair” that the President is granting waivers on ObamaCare to certain corporations and groups, which is true.  But this is so much more fundamental than that.

The United States Congress passes a law, and the President of the United States gets to select who has to follow that law.

In that situation, is there any law?  Is that how your United States of America works?  Not mine, brother.

This is so much bigger than arguments over Interstate Commerce Clause overreach.  This is a fundamentally illegal and unconstitutional affront to our American Ideals.

•

What was tyranny again? Someone please remind me. I want to recognize it when I see it. The Declaration of Independence told me that I was supposed to look out for that sort of thing.

For decades liberals have gotten away with posturing themselves as having some moral authority to preach at the rest of us about any array of rights that they purported to treasure.  The Age of Obama has finally put an end to that canard.

MYTH: It’s My Body

You know the line.  Many proponents of abortion rights make their argument based upon the idea that our bodies are our own and that government cannot regulate them.  The idea is that the baby, once born, enters the realm of government protections enjoyed by the rest of us, but up until that point it is none of its business.  “My body, my choice”, the mantra goes.  Over the years they have managed to position abortion rights as some sort of sacred canary in the gold mine indicator of individual liberty, even coining the oddly inapplicable phrase reproductive rights for the debate.  Proponents of abortion rights always position themselves as the ones who believe in individual freedom.

But then along came ObamaCare to shatter the myth that their position on abortion was based on a general philosophy of individual freedoms.  If the government can tell its subjects how and where they can get health care, that government effectively has complete control over their bodies.  Given that the Left has now implicitly admitted that we in fact do NOT have control over our own bodies, they can no longer make any parallel claims of self-ownership to justify abortion rights.  They gave that up in pursuit of third world socialized medicine.  They simply cannot have that one both ways, though with their typical intellectual dishonesty they will certainly try.

RESULT: BUSTED

MYTH: Liberals Revere and Defend Individual Rights

We all remember how liberals shrieked at the passage of the Patriot Act – when it was Bush, that is – they let it go when their Dear Leader renewed it.  They claimed that the Bush Patriot Act was a violation of our 4^th amendment rights (one of only two amendments with which most liberals are familiar) because it permitted the monitoring of foreigners who communicate with suspected overseas terror groups.  However, in the new Obama Age in which people have accepted that we are not free individuals but are instead simply livestock living on the government collective, such talk is ridiculous.  The freedom-loathing mindset that allows people to support ObamaCare requires that the government monitor all of us all the time.  You cannot have it both ways; either we are free or we are not.

RESULT: BUSTED

MYTH: Liberals Protect and Defend the US Constitution

Those of us who are familiar with the Constitution laugh when liberals try to refer to it because they routinely demonstrate a complete lack of familiarity with it.  Thinly veiled political groups like the ACLU act like several of the clauses and amendments do not even exist.  To most liberals, their grasp of the Constitution consists of a murky understanding of the first amendment and the fourth amendment but very few can speak about much of the remainder.  Admittedly, they do like to wrap up their ideology in Constitutionality when it comes to baseless things like claims of civil rights violations in the new Arizona law, but they can never have an informed discussion about the Constitution nor can they ever get beyond vague claims of “rights”.  Many liberals have put far more time into studying the Communist Manifesto than the Federalist Papers, and it shows.

In the Obama Age, liberals simply cannot even mention the US Constitution again.  From their ignorance of the text in general, to their denial of the very existence of the 10^th amendment, to their egregiously dishonest contortions of the Commerce Clause in order to seize more power over our lives, they have always thoroughly despised our founding document and typically trot it out only when they want to defend some immoral behavior.  Those of us on the libertarian side of conservatism have known that for decades.  But now they have shown once and for all that they view the Constitution merely as a hindrance standing in the way of implementing their immoral collectivist ideology.  Most recently, Elena Kagan’s unwillingness to answer whether Congress could make a law requiring that we all eat vegetables every day is as clear a window into their demented thought processes are you are likely ever going to get.  They genuinely think that government owns every one of us.

Liberals reject the Constitution and should be called on it even when they pay lip service to it.  They are enemies of Constitutional government and our historical individual rights.  We should never even humor them when they try to pretend otherwise.

RESULT: BUSTED

MYTH: Liberals Are Serious About Fiscal Responsibility

In the Obama Age, we have clearly seen that liberals are willing to throw all future generations under the bus in pursuit of their agenda.  The radicals running our country have no problem borrowing money from Americans not yet born in order to fund their vote-buying agenda today – after all, most of them will be dead and buried before the whole thing comes crashing down.  Though no clear thinking person has ever taken liberals seriously when it comes to spending restraints, with a $13 trillion debt and a $3.7 trillion budget they have forever lost any credibility when it comes to spending.  Just as important, they can never criticize anyone for over-spending, though their more likely class warfare laced insult is that we are under-taxing.

RESULT: BUSTED

MYTH: Liberals Care About “The Children” (It Takes A Village)

One common refrain from politicians of all stripes is that we need to do something “for the children”.  Though the Democrats love to tout welfare programs like SCHIP under the notion that they are compassionate and concerned about America’s children, the Democrat party and its continued supporters have shown via their out of control spending that they have absolutely no concern for today’s young people or for future generations of Americans.  To compare them to drunken sailors is an unfair insult to inebriated servicemen.  True to the core selfishness of liberalism, they only care about what is good for them today.  It is decidedly adolescent thinking, but all too often that is par for the course for liberals.

RESULT: BUSTED

MYTH: Liberals Protect Senior Citizens

Over the years liberals have played a dishonest but successful game involving senior citizens.  They claim to be huge proponents of Medicare and Social Security, but that myth was quietly busted decades ago when they started stealing every bit of the surpluses to spend on other vote-buying schemes, all the while knowing that they have created unfunded liabilities for the future generations about whom they simply do not care.

Then along comes ObamaCare, which will not only ration care for the elderly like other countries with Soviet-style health care – several of Obama’s advisors have made past statements confirming that reality – but it steals money from Medicare in order to prop up the preposterous notion that ObamaCare is budget-neutral.

The Left has thrown America’s senior citizens under the bus, and many of them do not even know it yet.  Though they will certainly not be called death panels when they arrive, such decision making panels are coming.  Liberals can never again pay lip service to the idea that they give a rodent’s posterior about America’s senior citizens.  Senior citizens and future generations are effectively cannon fodder for the Left’s agenda.

RESULT: BUSTED

MYTH: Liberals Care Deeply About the Environment

One long standing liberal myth involves their concern for the environment.  They all shrieked loudly when a biased and only partially truthful report about arsenic in water was used to slam the previous administration. But outside of a few liberals who hail from the Gulf region their silence on the Gulf Oil spill is truly deafening given the pathetic response and weak leadership from the White House.

President Obama intentionally dragged his feet in his initial response on the oil spill because he immediately saw it as a too-good-to-pass-up vehicle for his anti-energy agenda.  He wanted the mess to get big enough to be successfully used to strong-arm domestic energy policies, but he once again showed his incompetence by letting it go too far.  Adding insult to injury, he chose his allegiance to labor unions over his alleged concern for the environment when he refused to waive the Jones Act, which would have dramatically helped contain the damage from the oil spill.

The fact that the liberals are not going after Obama for his dismal performance on the oil spill shows that their alleged concern for the environment is just another political game for them.  Their silence in the face of the federal government keeping the press away from the oil spill mess speaks volumes about where liberals are really coming from.  They do not really care about the environment unless it can be used as a political bludgeon against their opponents.

RESULT: BUSTED

MYTH: Liberals Are Civil Libertarians

Though it’s undeniable that the Democrat party is historically the party of racism, including Jim Crow laws and the filibuster of the Civil Rights Act, with the aid of a complicit media they have managed to construct a myth involving an opposition to race-consciousness and bigotry.  But once again, their Dear Leader President has busted yet another myth.

The case against the New Black Panther Party members for voter intimidation was already won.  The defendants never responded and were found guilty.  After being found guilty, the Obama administration dropped the case.  The only conclusion that an objective observer can draw is that they only care about bigotry and intimidation when it is a white person doing the intimidating – they do not really care about equal rights or the Voting Rights Act at all.

RESULT: BUSTED

Thanks to President Obama, we no longer have to believe in these liberal myths.

When a President nominates a judge for the Supreme Court or an important lower federal court, discussions immediately begin about litmus tests for acceptability.  Historically the issue has typically revolved around the nominee’s position on abortion.

The Wikipedia entry titled Litmus Test (politics) makes a common mistake that I hope to correct here, which is conflating issue positions with judicial philosophy.  They are two very different concepts and one largely supersedes the other.  The Wikipedia entry’s error is in attempting to equate a nominee’s position on abortion with support for strict constructionism, portraying them as equivalent litmus tests.  The comparison is inherently flawed because the former is simply a position whereas the latter is a philosophy.  In fact, in most cases the philosophy should form the position.

After successfully stepping back from an issue-based perspective to a philosophy-based perspective it becomes obvious that there is only one litmus test that matters when it comes to a nominee to a federal court.  That question is does this individual subscribe to the philosophy of originalism?  If not, that person is wholly and inherently unqualified to sit on a court that acts as the final arbiter on issues of Constitutionality.  No other questions are required.  An Originalist simply argues that the United States Constitution means what it says, while the diametrically opposed so-called Living Document crowd argues that the text can (and should) be finagled to achieve desired results.

When Bill Clinton was still President I started using a home mortgage analogy in an attempt to explain my Constitutional philosophy while making the case that it is the only perspective that makes sense.  Over the last year or so I have heard the best talk radio host in America present essentially the same analogy, and it is a good one.

If your bank contacted you to let you know that they had decided to increase your interest rate, you would categorically reject this change in the terms of the agreement.  You would sensibly point to the words in the contract and would expect those words to mean what they say.  You would not be impressed with claims by your bank that some vague wording about their management of the account has now been decided to construe an ability to change the rules.  You would once again point to the words in the mortgage paperwork.  Even if they made the argument that increasing your interest rate would allow them to provide mortgages to the less fortunate, you would tell the greedy banker to take a hike.

[Keep thinking like the angry consumer against whom the bank is trying to play word games!]

The Commerce Clause

[The Congress shall have power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes;

When the federal government – or one of its leftist myrmidons – tells you that the commerce clause (Article 1, Section 8, Clause 3) gives it the power to regulate every single aspect of your life, you should sit down and spend some quality time with your Constitution.  Ask yourself with a clear head why the founding fathers would have taken the time to get so very specific in Article 1, Section 8, which includes the enumeration of powers like coining money and running the post office, if they were granting wide ranging powers to regulate at will by including a grant of power to regulate commerce “among the several states”.  Ask yourself if those preeminent guardians of liberty would agree that those words legitimately confer the power to regulate your light bulbs or toilets or, most recently, to grant the federal government the new power to make health care decisions for you.  The obvious answer, known even by those in the living document crowd, is that the founding fathers intended no such thing and would be appalled at the success of the commerce clause based power grab.

Lawyers and politicians who recklessly bend and misrepresent the words of the Constitution in an attempt to contort them into something that will achieve their desired political agenda are no different than a slimy lawyer redefining the definition of the word is.  They are egregiously dishonest and selfish, regardless of the results of their judicial activism.  In fact, they are a danger to the future of the republic.

So, in summation, my Supreme Court Litmus Test is really quite simple:

Does the Constitution mean what it says?

I wrote most of this before President Obama nominated Elena Kagan to replace John Paul Stevens on the high court.  Though Ms. Kagan has no judicial experience whatsoever –certainly Mr. Obama’s clumsy attempt at a stealth candidate – an intelligent observer should know that the President would never consider nominating a judge who subscribes to Originalism.

Not being an Originalist, Elena Kagan is categorically unqualified to sit on the Supreme Court.

UPDATE: Last night my son and I listened to Friday night’s Mark Levin show podcast on the way to little league practice (I always listen to them a day or two later) and Mark was talking about Originalism as well.  Further, pointing out that Ms. Kagan seems to be uniquely unqualified to be a justice – she has never been a judge nor argued a case before an appellate court – Levin calls on the GOP Senators to filibuster her nomination.  We all know that they do not possess the cojones for that.

The consistent and continuing energetic opposition to ObamaCare in the face of its forced passage poses an interesting question.  Is it ever acceptable for the federal government to force unpopular and unwanted legislation or rulings down to the states and the people?  Given that this is a limited government that allegedly governs only with the consent of the governed, is that the sort of thing that we tolerate in America?  In fact there are situations in which this is legitimate, but certainly not in the broad and dangerous way being demonstrated by the freedom loathing Marxists now running our government, who view the American people as a simple-minded herd of cattle living on their government collective.

When the founding fathers crafted the US Constitution they were faced with the challenge of creating a system that attempted to balance a very legitimate fear of an abusive central government with the reality that the weak Articles of Confederation had been an utter failure.  To address these observed shortcomings while remaining true to the underlying principles of the American Experiment and its Declaration of Independence, the proposed Constitution delegated very specific powers to certain branches of the nascent federal government.  Additionally, providing a balance to the long list of powers and limitations in the Constitution, the Bill of Rights listed specific protected rights of the people and related limitations on government.  Making a final point, they underscored this underlying limited-government philosophy with the all too often ignored 9^th and 10^th amendments, which make it crystal clear how limited the central government was intended to be.

The founding fathers clearly believed that the biggest threat to liberty came from a powerful central government and that most issues should be handled by the several states.  In most cases this is a prudent approach.  But if the central charter of our government involves a commitment to individual rights, what can that federal government do – and what should it do – when the truly fundamental rights required for that civil society are being violated?

After the American Civil War, slavery was finally prohibited in America with the ratification of the 13^th amendment.  However, contrary to the principle so eloquently stated in our founding document that “all men are created equal”, the non-white citizens of many states continued to live as second class citizens, lacking voting rights and the ability to run for elected office.  In short, the states were depriving many American citizens of rights that our system claimed to champion.  At the same time, these very states wished to count these people for purposes of congressional representation.  This unacceptable chasm between the inherent rights so clearly spelled out in our founding documents and the contrasting reality faced by many Americans living without those rights drove the next amendment to our Constitution.

In response to egregious violations of Americans’ individual liberties including acts such as the Black Codes, which were attempts by some states “to control the labor, movements and activities of newly-freed slaves”, the 14^th amendment was proposed to the states.  The first clause of the 14^th amendment demands that the citizens of all states enjoy the constitutional rights of American citizens:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

When the racist Democrats in many southern states would not protect the legitimate constitutional rights of some of their citizens, the federal government rightly stepped in many times.  Most recently, when the Supreme Court declared Chicago’s handgun ban to be unconstitutional in McDonald v. Chicago, they leveraged the 14^th amendment’s privileges or immunities clause.  In both examples the federal government contended that Americans have inherent constitutional rights and that not even the states can violate those unalienable rights.

I provided these as legitimate examples of what you could rightly call guidance from above, in which the federal government is playing its appropriate (post-14^th amendment) role in protecting our liberties – even from the states.  Put simply, we have a basic constitutional template for certain rights and privileges and the 14^th amendment was passed in order to ensure that the states play by these rules.  While there is certainly no shortage of abuses of the 14^th amendment, this legitimate use of what is commonly called Incorporation is in clear contrast with the dangerous and egregiously dishonest manipulations of the Commerce Clause used to justify limitless power grabs by the Obama administration.

The Commerce Clause:

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

Seriously, that is the entirety of the commerce clause that is being used by statists to gut the Constitution.  You truly have to be a destructive wordsmith capable of skillfully warping the language in order to bend that short clause into the idea that Congress can regulate everything it sees fit, as evidenced by the Obama administration’s contention that the commerce clause gives them the power to force Americans to purchase health insurance.  From the utterly indefensible Wickard v. Fillburn to the current attempts by the Left to control more of our lives, the commerce clause has been abused by tyrants for decades in pursuit of more power.  While reasonable people can see that the intent was to encourage commerce among the states, the left makes the case that any product made can be regulated if it is bought or sold, even if it never crosses state lines to become interstate commerce!  In addition to countless far less benign abuses, this clause is actually used to legitimize Congressional control of the amount of water in your toilet.

In his excellent opinion in US v. Lopez, Justice Clarence Thomas perfectly points out the danger of embracing such an expansive view of the commerce clause:

if taken to its logical extreme, would give Congress a “police power” over all aspects of American life. Unfortunately, we have never come to grips with this implication of our substantial effects formula. Although we have supposedly applied the substantial effects test for the past 60 years, we always have rejected readings of the Commerce Clause and the scope of federal power that would permit Congress to exercise a police power; our cases are quite clear that there are real limits to federal power.

Accepting the Left’s interpretation of the Commerce Clause means that absolutely nothing is outside the legitimate control of the federal government.

Standing in stark contrast to the legitimate protection of constitutional rights, that is nothing less than tyranny from above.

During a regular O’Reilly Factor segment with Lis Weil and Kimberly Guilfoyle last night (March 30^th), Bill mentioned the legislation recently passed in Idaho that will require that the state’s Attorney General sue the federal government to block any insurance mandate included in President Obama’s health care takeover.  When he was discussing it, O’Reilly actually said that if two-thirds of the states did this then it would add a Constitutional amendment!  I am not kidding, and neither of the lawyers sitting with him on the segment questioned him on it.  I was pretty stunned.

On the next segment, which included Charles Krauthammer, he admitted that Dr. Krauthammer had corrected him during the break and Bill said that it requires three-fourths of the states in order to ratify an amendment.  I have no doubt that Krauthammer knew full well how completely wrong Bill O’Reilly was in that segment.  You probably do as well.

In fact, as readers of this blog are likely aware, there are only two ways to get a Constitutional amendment on the table for potential ratification by the states.  Only one of them has ever been used.  The unused method is a Constitutional Convention, which many reasonable people believe to be highly inadvisable because everything is essentially on the table – it is not limited in scope.  The only other method requires that both houses of the United States Congress pass a specific proposed amendment with a two-thirds majority.  Regardless of how the amendment is proposed to the states, three-fourths of the several states must then ratify the proposed amendment in their state legislatures for it to become a Constitutional Amendment.  This process is intentionally difficult and lengthy, providing a long time for analysis, criticisms, and reflection.  Contrast that with the “living and breathing” nonsense of the non-Originalist crowd…

I think that Bill just got confused about the ratio required for the States’ to call a convention and what the Idaho state legislature actually did.  But since we are all sharpening our rhetorical swords here to take part in this peaceful constitutional revolution, let’s take this opportunity to clarify the facts.

Here is the actual text of Article 5 of the US Constitution from the US Constitution Online:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

Let’s break it down just to be clear.

• Amendments can be proposed by either:
  • A vote of two-thirds majority in both the House and Senate.
  • The never used Constitutional Convention, which will be called when two-thirds of the states’ legislatures apply for it.
• Amendments can only be ratified with the agreement of the legislatures of three-fourths of the states.

I think that the biggest chance that we have of rolling this back is going to come as a result of push-back from the states themselves.  Does anyone else remember the 10^th amendment?  Lefties can spare me the tortuous and consistently tyrannical Commerce Clause claims until they can defend something like Wickard v. Fillburn.

The federal government was granted very few enumerated powers in Article 1, Section 8 for a reason.  That reason is becoming clearer and clearer to more and more Americans watching the Obama Government Love onslaught.

But let’s ask an honest question.  Who are the real revolutionaries here?

Several months ago I was listening to a Mark Levin show podcast and was reminded that because of our nation’s birth in a revolution, all Americans are in effect revolutionaries.  History is certainly full of examples of groups of people rebelling against a colonial power, but our birth was not just a revolt against the nation-state of England.  The birth of the United States of America and the evolution of what became our Constitution in the years that followed represented a revolution against an otherwise accepted notion of the appropriate role of government in the lives of free people.  Unlike so many other revolutions in history, which end up enslaving the populace in the false freedom of central control and collectivism, our revolution freed up individuals to excel and succeed in ways unprecedented in world history.  America is not great because of government but because of the things that free people can do if government will stay out of their way, acting as an umpire instead of a parent.

Those on the left who are now briefly in power are in effect counter-revolutionaries revolting against the principles of the Constitution.  Nothing in either the specific words of the Constitution, nor in the well documented debates or the arguments in the Federalist Papers, could even come close to supporting the notion that the legitimate enumerated powers of the federal government include instituting a national health care system.  It requires a ridiculously expansive interpretation of the Commerce Clause – one that accepts that the Congress can regulate anything anywhere as long as it gets bought or sold – to support most of the mechanisms of the modern liberal welfare state.  Interestingly, American Thinker published an article today comparing some quotes from The Federalist Papers to Obama Care.

Concerning Article 1, Section 8(3) of the Constitution that “Congress shall have the power to regulate Commerce with foreign nations, and among the several States, and with the Indian tribes,” Alexander Hamilton wrote in Federalist 17:

“The administration of private justice between the citizens of the same state; the supervision of agriculture, and of other concerns of a similar nature; all those things, in short, which are proper to be provided for by local legislation, can never be desirable cares of a general jurisdiction.”

 (Note: if a transaction between a doctor and patient is not local and therefore subject to local and not general jurisdiction, like buying produce from a farmer, then I don’t know what is. Article I, Section 8 was clearly focused on regulating commerce with foreign nations, eliminating multiple currencies within the states and removing inter-state tariffs in place during the Articles of Confederation. The Founding Fathers are turning in the graves at this massive intrusion into individual liberty.)

The counter revolutionaries have certainly achieved a huge victory.  There is no denying it.  Somehow, even though we have all been making our voices heard in this debate, they remain on the offensive and we are still playing defense.  But remember who is defending what.  We are defending the Constitutional principles that made this country the freest and most successful country in the history of human kind.  They are leading a counter-revolution against the principles of the American Revolution.  They are the revolutionaries.

November is Trenton.  Yorktown is a long way away.

We all know that we are going to enjoy significant wins at the polls in November.  What we need to remember is that our gains in November will only be analogous to Washington’s victory at Trenton on the day after Christmas in 1776.  It will be the first victory in what should be planned as a long, multi-front counterattack on the gains already made by the Constitution-hustling American statists.  We have a tough row to hoe.

Though I found the American Thinker article quoted above after writing this post because I was looking for Federalist Papers references, Jakeway’s article ends with the same basic (though more stirring) call for patriots to come to the aid of their country that I attempted last night in American Up.

From that American Thinker article:

The Founding Fathers defined the citizens as the natural guardians of the Constitution. Ultimately, it comes down to us. Remember the immortal motto of Gen. Nathaniel Greene who led his rag-tag militia across the Carolina in 1779-1780, “lost” every battle until providing the Continentals their first major victory at Kings Mountain and cut down Cornwallis’ troops from 30,000 to 15,000 before he quit Charleston and headed to Yorktown:

“I fight, I am defeated, I rise and fight again.” 

It is precisely now that one must not despair. Now is the time for lovers of liberty to throw themselves into the national scale. You are the natural guardians of the Constitution. Now is not the time for Summer Soldiers and Sunshine Patriots; now is the time for the heirs of George Washington, Thomas Jefferson, James Madison, Alexander Hamilton, John Hancock, Ben Franklin, James Monroe, John Adams, John Paul Jones, Patrick Henry, Nathaniel Greene and Ethan Allen.

You have a choice. What will it be? Acquiescence? Submission? Defeat? Where would we be if all the aforementioned had quit when they faced a little headwind (and, comparatively speaking, this is light breeze next to Valley Forge). Be ashamed; be very ashamed if you choose to go gently into that dark neo-Soviet night.  Be assured; a new dawn of American liberty will rise as American Patriots resolve to protect their Constitution and use all of its provisions to protect their liberties.

Yep.

The Congressional Budget Office has been in the news recently for reporting higher costs for some proposed legislation than Democrat supporters of those proposed laws have claimed.  Essentially, the CBO’s charter is to go through a proposed bill in order to analyze its costs and the effects of that spending on the budget and national debt.  Douglass Elmendorf, the current director of the CBO, has come under harsh fire from supporters of health care legislation for his more critical financial analyses than those put forth by the statist propagandists Democrats who seek to take over the US health care system.

This new CCO is a great idea for an ambitious politician to seize right now, perhaps a conservative firebrand like Michele Bachmann.

The Congressional Constitution Office would be a mandatory part of the legislative process.  All legislation that made it through the House or Senate would require an addendum from the CCO analyzing exactly where the US Constitution grants the legislative branch of government the power to pass the particular legislation (please see the 10^th amendment).  Rule changes stipulating that bills must be constrained to one similar topic would be required to make this work, for example no social program spending can be combined with a military appropriations bill, and would provide the side benefit of making the legislative sausage-making process more transparent.

The second part of the CCO would be its requirement to be completely transparent.  The CCO website would be required to show a graphical representation of the amount of money spent by government and the purported constitutional provisions involved.  Clearly this would consistently show that they use two basic approaches: the flawed “General Welfare” argument and their overreaching (and illegitimate) interpretation of the commerce clause.

If you look at the following breakdown of the 2009 budget from Wikipedia you can see that they break the spending numbers out into many agencies:

In order to get my arms around the truth of the spending versus the constitutional authority I decided to break the spending items out into three groups.  The first group consists of powers that are delegated to the legislative branch by Article 1, Section 8 of the Constitution.  The second group are exercises of power that can only be justified by a dishonest interpretation of the General Welfare clause, and the third group are spending items that can only be justified by relying on the Interstate Commerce clause.  As a constitutionalist, I argue that only those items in the first group are legitimate, constitutional exercises of legislative branch power.

Article 1, Section 8:

Interest on National Debt (8.5%)

Department of Defense (16.85%)

Global War On Terror (4.75%)

US Dept of Veterans’ Affairs (1.46%)

Homeland Security (1.23%)

Dept of Justice (.66%)

NASA (.58%)

Dept of Treasury (.41%)

Judicial Branch (.21%)

Legislative Branch (.15%)

Executive Office of the President (.01%)

Total: 34.81%

General Welfare:

Social Security (21.05%)

Medicare (13.34%)

Medicaid and SCHIP (7.32%),

Unemployment, welfare, other mandatory spending? (11.77%)

Health and Human Services (2.3%)

US Dept of Education (1.93%)

HUD (1.26%)

Social Security Administration (.27%)

EPA (.28%)

National Science Foundation (.23%)

Corps of Engineers (.15%)

Other Agencies (.24%)

Other Off-Budget Discretionary Spending (1.27%)

Total: 61.41%

Interstate Commerce:

Energy (.82%)

Dept of Agriculture (.68%)

Transportation (.38%)

Interior (.35%)

Labor (.34%)

Small Business Administration (.02%)

Total: 2.59%

Interestingly, though my intent with this post was simply to propose this new agency, my own analysis of the budget breakdown illustrated some interesting points.

The dishonest statist’s best friend: the General Welfare Clause

When arguing with people on the Left, I have often made the statement that at least two-thirds of the federal budget is extra-constitutional, meaning that the legislative branch has no constitutional authority to legislate in those areas.  After breaking up the budget data into these three groups I can see that my previous gut feeling about that was not far off – by my count over 60 percent of the federal budget is justified with egregiously dishonest references to the General Welfare clause.  Note that the Left’s position on that clause is completely contradictory to the very clear 10^th amendment.  For example, CNS News asked Nancy Pelosi where the Constitution grants her the power to force Americans to purchase health insurance.  Her classic statist response was “Are you serious?”.

Interestingly, it is not hard to find a response to that General Welfare clause dishonesty from the founding fathers themselves, who presciently predicted that we would have charlatan politicians like Obama and Pelosi and Reid.  The man considered to be the father of the US Constitution, James Madison, specifically addressed this:

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.

 – James Madison

Interstate Commerce Clause

Though most observers are familiar with the argument that the Interstate Commerce clause is abused by the legislative branch to control things that it has no authority to control, it was interesting to find that (based upon my breakdown) they do not use that clause to justify spending as much as they use it to justify legislation that controls the states and usurps the states’ 10^th amendment protections.  FDR, no friend of the Constitution, managed to get the Supreme Court to overturn 150 years of precedent in the horrible Wickard v. Filburn decision, which held that Congress could regulate intrastate commerce  under the guise of interstate commerce.

When you think about it, it’s amazing how many of today’s problems in America were instigated by that statist jerk Franklin Delano Roosevelt.  I’d like to walk my dog around his grave until nature called.

While my proposed Congressional Constitution Office would not solve all of our problems it would clearly illuminate the perennial constitutional dishonesty that is par for the course for the United States Congress.  Obviously it will never pass because it takes away their power, but during an election year it could be used by savvy conservatives to show the contrast between conservatives and the socialists that now own the Democrat party.

Though he dropped it as soon as he was elected, didn’t candidate Obama espouse transparency in government?