Who owns you? The risk of ‘unlimited submission’

By Frank Miele | The Daily Inter Lake

Hear ye, hear ye: “Resolved, that the several States composing the United States of America, are not united on the principles of unlimited submission to their General Government; ... that whensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force...”

Do you agree?

Or do you think it is crazy for states and individuals to reject unlimited submission to the federal government?

Certainly, in the wake of a new law that orders American citizens to surrender their right to make their own decisions about the most personal of matters — their health and well-being — it is no surprise that many states have indeed risen up to protest against what appears to be an unconstitutional seizure of power by Congress.

But the words quoted above are not the latest resolution to come out of some “right-wing wacko” tea party convention, as MSNBC would put it. They are instead the words of the Founding Father who wrote the Declaration of Independence, Thomas Jefferson.

In the Kentucky Resolutions, Jefferson gave voice to the notion that the several states — as the creators of the federal union — must retain some level of judgment over whether that “General Government” had overstepped its bounds as originally agreed to by the states in the compact known as the United States Constitution.

Jefferson, our third president, maintained that the sovereign states had the right to reject (or “nullify”) any law which the federal government passed without constitutional authority. He further maintained that “without this right, they [the states] would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them...”

Jefferson ultimately lost that argument, but his long-ago words serve as inspiration today for, yes, those very tea-party patriots who still read and honor the Constitution and are vilified on the left as ugly Americans precisely because they DO read and honor the Constitution.

That, of course, is the situation which we have reached now.

Thanks to the “judgment” of Congress that it can “create” new rights “ex nihili” (out of nothing) — namely the peculiar right to be forced to buy health insurance — the states, and the individual citizens therein, have fallen under the “dominion, absolute and unlimited,” of the federal government.

You will not find anything like this power of Congress in the Constitution, which is why more than a dozen state attorneys general have already filed suits to block the health-care bill from taking effect.

The argument is simple — that without any constitutional authority, the Congress of the United States has arrogated to itself the power to tell American citizens how they must spend their money. In doing so, it thumbed its nose at “we the people,” and at the Constitution. We have been ordered to buy health insurance whether we want it or not. So much for freedom.

Mind you, this is not a tax, although there are most certainly taxes and fines levied in the Patient Protection and Affordable Care Act signed into law by President Obama Tuesday. But what Congress did was establish an individual mandate that every citizen must buy health insurance as a condition of citizenship. This is an unprecedented abuse of power in the 221-year history of our precious Constitution.

Nor, for that matter, can Congress claim that it is using its power to regulate interstate commerce to justify this new law. Commerce is the buying and selling of goods and services. But what this strange law does is claim that anyone who chooses NOT to buy a good or service (namely, health insurance) is breaking the law. This is not regulation of interstate commerce, but dictatorship.

As I have pointed out previously, even the Congressional Budget Office recognized the unfairness of mandatory insurance as long ago as 1994 when they wrote the following about Hillary Clinton’s proposal for national health care:

“A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States.”

Moreover, the 10th Amendment plainly prohibits the federal government from adding new powers that are not plainly delegated to it by the Constitution. That is the strong foundation many states are basing their lawsuit on.

But don’t think President Obama and his Democratic allies will give up easily. The president’s adviser David Axelrod has said he is confident that the health-care bill will survive all constitutional challenges, and so apparently is the mainstream media.

Legal experts quoted by newspapers and TV stations say the lawsuits have little chance of succeeding because, under the Constitution, federal law trumps state law. Here are a couple of examples:

— Richard Pildes, New York University: “If there’s anything that’s settled in American constitutional law, it’s that when the federal government acts within the scope of its constitutional powers, federal law prevails over any conflicting state law.”

— Michael McConnell, Stanford University: “If the federal bill is constitutional, then the state laws will be of no legal effect. If the federal bill is unconstitutional, then the state measures will be unnecessary.”

This is nonsense, of course. The first scholar begins with the assumption that the federal government IS acting “within the scope of its constitutional powers.” To use the common phrase taught in law school, this “assumes facts not in evidence.” The attorneys general of the various states maintain that the Congress is claiming an undelegated power by forcing citizens to purchase a good or service against their will. Were the states not to sue, the issue could never be resolved and Congress would have gotten away with a brazen expansion of its powers.

The second scholar makes a valid point with his first statement. If the federal bill IS constitutional, then the state laws rejecting it clearly will have no legal effect. That really goes without saying. But his second statement is mere chicanery. The ONLY way the federal bill COULD be found to be unconstitutional is IF the states (or some individual lucky enough to be granted legal standing) were to challenge it. Thus the state measures that challenge the federal law are not only necessary, but indispensable.

On the other hand, it is hard to be optimistic that the Supreme Court will ultimately rule in favor of the people over the government. Too often in the past, the court has merely rubber-stamped power grabs by the federal government. If it does so again in this case, then the federal government does not merely run the country. It owns you.