Akaka: I’m not aware of any constitutional power that lets us force you to buy health insurance

posted at 6:19 pm on November 12, 2009 by Allahpundit

Another amazing clip from CNS. There are two answers typically given by Democrats when asked about the constitutionality of a mandate. The dumb, lazy one is that it’s covered by the part of the preamble that refers to “general Welfare,” which, if taken seriously, would swallow the idea of limited powers by granting Congress the authority to do anything its well-intentioned heart might desire. The better answer is that it’s covered by the Commerce Clause, which, ever since the New Deal, has in practice granted Congress that same authority — provided that the legislation touches on interstate commerce in some bare, glancing manner. Akaka doesn’t offer either of those. His take, essentially, is that Democrats are trying to help people, which makes the constitutional question more or less beside the point. If you can find a more candid, succinct statement of the left’s approach to this issue than that, let me know in the comments.

After you watch, read Ace’s post about the crazy wingnut alarmism over people possibly being sent to prison for defying the mandate. This part cuts to the heart of it:

Back to this leftist insistence that we’re all paranoid to even think this way, to even define “freedom” in an antique, right-wing fashion, meaning “stuff you are permitted to do or not do without penalty and coercion from the state:” It is especially risible to me, in gallows-humor way, that the left continues to call us lunatics for fretting about increasing state control and increasing state coercion and increasing state outlawing of previously-legal behavior and freedoms even as, in their very first bill out of the socialist box, they propose jailing Americans for engaging in unobjectionable behavior which no one ever before dreamt of being a crime.

Think about this.

The left says: You are crazy to claim your so-called freedoms are being taken away, and you are a lunatic to scream about an overly powerful state which will use violent coercion (no one goes to jail without the threat of violence if he doesn’t, after all) to enforce its notions of the “economic good.”

And with the next breath the left says: By the way, you shall either buy health care insurance or we will throw you in prison for two or three years.

Prison time for not buying insurance is authorized by the Good Intentions clause of the Just Looking Out For You amendment, if I’m not mistaken.


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Evil. It must be stopped.

WesternActor on November 12, 2009 at 6:21 PM

Ask Burris, he knows where to find it.

29Victor on November 12, 2009 at 6:23 PM

Barney Fwank and Peloski didn’t get the memo.

Punditpawn on November 12, 2009 at 6:23 PM

Comment got stuck in moderation…

CNSNews does a lot of good work…

AmeriCorps Inspector General Shredded White House Documents at Request of Agency’s Spokeswoman

cnsnews.com/news/article/57052

ninjapirate on November 12, 2009 at 6:23 PM

Looky here Allah haters! For every Palin snark, Allah puts up ten of these!

Count your many blessings, name them one by one….

csdeven on November 12, 2009 at 6:23 PM

This is all caca.

ICBM on November 12, 2009 at 6:24 PM

What is this “Constitution” that you keep referring to…?

Seven Percent Solution on November 12, 2009 at 6:24 PM

These people don’t even care about the Constitution or even bother citing it anymore. They went 0 to 60 on just making shit up in record time.

myrenovations on November 12, 2009 at 6:26 PM

What a relief. I was worried we might be headed to the Colorado super site. Whew!

Kissmygrits on November 12, 2009 at 6:28 PM

Does that mean Akaka is against the bill? If so, that would be awesome.

Enoxo on November 12, 2009 at 6:28 PM

Stunning, in a way, and yet as AP notes it’s really just a doddering old liberal who isn’t quick witted enough to spew the lies (“commerce clause”) that more talented attorneys have on the tips of their tongues. Or maybe he’s old enough that he rightfully claims immunity for telling the truth?

Jaibones on November 12, 2009 at 6:30 PM

Glad I watched that. There’s no need to be concerned after all. They’re just “helping” and “enabling choice”!

Hesiodos on November 12, 2009 at 6:31 PM

Macacca?

portlandon on November 12, 2009 at 6:32 PM

Does that mean Akaka is against the bill? If so, that would be awesome.

Enoxo on November 12, 2009 at 6:28 PM

Unfortunately, I doubt the fact he knows it’s unconstitutional will stop him from supporting it.

LibertarianRepublican on November 12, 2009 at 6:32 PM

Remember when the idiots on the Left were going after Sarah Palin because her husband supposedly supported Alaska seceding from the US?

This same guy wrote the Akaka Bill, and admitted that it would allow Hawai’i to do the exact same thing. After he made that admission, the bill fizzled out.

But not after getting the endorsement (and votes) of Senators Joe Biden (D-DE) and B. Hussein O’bama (D-Chicago).

Del Dolemonte on November 12, 2009 at 6:33 PM

Frankly, throwing somebody in jail for not buying insurance is just the kind of case that would be good to establish the whole system’s unconstitutionality. I can’t imagine the SCOTUS squaring that circle, and the problem would pretty much solve itself.

Ferris on November 12, 2009 at 6:34 PM

Though I can be wrong, I feel the prison time part was possibly added in so as to prevent acts of civil disobedience frm becoming widespread–by making the opportunity cost too high for the average person. This means the people writing this bill–arrogant know-it alls in their 20s and 30s, convinced of their superiority–know know know that they are attempting to force upon the populace something that the populace does not want, and thus have to strongarm the populace into compliance.

It is a tyrannical act, and a poor one from those who would claim to be the heirs of Martin Luther King, Jr. As a counterproposal, I suggest that all those arrested during protests, especially of the kind progressives like to attend, serve the equivalent amount of time if they do not pay a mandatory fine after being arrested.

Horatius on November 12, 2009 at 6:34 PM

I guess they can put me in jail, along with about another 40 million. I’d be getting free room and board …………… and health care.

It is time for a revolt.

SC.Charlie on November 12, 2009 at 6:35 PM

Leave it to Paul Anka to talk some sense to congress.

Jeff M (Formerly Jeff_McAwesome) on November 12, 2009 at 6:36 PM

Akaka is caca.

HornetSting on November 12, 2009 at 6:39 PM

I called the offices of my Democratic reps today and told them that with this inclusion of possible jail time over insurance.. they have officially, collectively lost their ever loving minds and I will vote for anyone running against them. Warts and all.

Terrye on November 12, 2009 at 6:41 PM

The dumb, lazy one is that it’s covered by the part of the preamble that refers to “general Welfare,” which, if taken seriously, would swallow the idea of limited powers by granting Congress the authority to do anything its well-intentioned heart might desire.

Can’t we get the President, along with sufficient Democrats to give a GOP majority in both Houses, thrown out of office based on Article IV, Section 4?

The United States shall guarantee to every State in this Union a Republican Form of Government

I mean, it’s just as legitimate a reading as saying the “general welfare” clause actually grants Congress powers.

malclave on November 12, 2009 at 6:43 PM

In reality, no more than a handful of people would ever be sent away for this. Dems would never risk a “mother taken from her family for not buying insurance” story, even if it would only run on Fox. Soon enough, people would forgo buying insurance with impunity, and then buy it if and when they get old or acquire a “pre-existing condition”, fear of which is what drives a lot of healthy people to buy insurance now.

So the young healthy people who are expected to prop up the system won’t, and the fantasy numbers projected will be off by a few trillion. Taxpayers will have to pick up the slack, of course.

The consequences of this are about as predictable as forcing banks to give out loans to the uncreditworthy leading to the financial meltdown.

BuzzCrutcher on November 12, 2009 at 6:48 PM

Laugh while you can, folks, but if this Communist coup isn’t soon put down, America, as we know it, is toast.

Dave R. on November 12, 2009 at 6:50 PM

Laugh while you can, folks, but if this Communist coup isn’t soon put down, America, as we know it, is toast.

Dave R. on November 12, 2009 at 6:50 PM

Agreed!!!

capejasmine on November 12, 2009 at 6:57 PM

Terrye on November 12, 2009 at 6:41 PM

If only they cared.

truetexan on November 12, 2009 at 6:57 PM

There you go, folks, the left in this country will force you to follow their prescription for a just society, or throw you in jail.

It matters not what is in the constitution, what matters is there innate sense of justice being mandated through the iron rule of law, regardless of what the majority think.

That is fascism, and no amount of hemming and hawing will make it anything less. But, other than Jonah Goldberg and the folks at National Review, who is calling them on it? Michael Steele and the Republican Party? HA!

Joe Pyne on November 12, 2009 at 6:57 PM

You can tell Akaka has never read the Constitution, and isn’t inclined to, either. He clearly feels he’s above that arcane document. THIS IS THE ATTITUDE WE HAVE TO VOTE AGAINST! AND WERE IS THE SUPREME COURT ON THIS?

stonemeister on November 12, 2009 at 6:58 PM

I’ll be exercising my own Constitutional rights at Cabela’s tomorrow.

Bishop on November 12, 2009 at 7:01 PM

BuzzCrutcher on November 12, 2009 at 6:48 PM

If this passes we are totally screwed. People either go broke paying for premiums that were supposed to help the little man or go to jail. However they play it we will all pay for this crazy legislation and watch our economy tank even worse than it is tanking now because of the lawsuits for truly negligent care. And all just so Dems can feel good about themselves that they have done something for the little people. STOP TRYING TO HELP ME WASHINGTON! I CAN THINK AND MAKE DECISIONS FOR MYSELF!

truetexan on November 12, 2009 at 7:03 PM

There will be blood…

d1carter on November 12, 2009 at 7:05 PM

There will be tens of millions who won’t buy. Not due to protest, just due to their lifestyles. 10 million homeless, they gonna buy? Day workers at Manpower, they gonna buy? 18-22 year old minimum wage/part-time/drug dealer/student/dropouts, they gonna buy? Alcoholics/drug addicts on disability, they gonna buy? People working in the underground cash economy, they gonna buy?

They’re not gonna buy.

Meremortal on November 12, 2009 at 7:19 PM

Meremortal on November 12, 2009 at 7:19 PM

I think it is buy your own or get on the government tit plan. I think.

kahall on November 12, 2009 at 7:21 PM

Incidentally, and perhaps mentioned elsewhere, does not the mandate to buy insurance violate the free association clause (as currently interpreted by the legal guild) of the First Amendment? By forcing me to associate with something, and preventing me from freely associating (in mutual assistance) with something else?

And does not the requirement for me to buy something that I will not receive the full benefit of essentially involve a condemnation of my property for public use, akin to eminent domain, and if so–by the logic of the current legal thinking–have I not been denied due process of law? For it would seem to me that the only way this is not eminent domain is if it is considered a tax. Now, if it is a tax, I freely yield the government’s right to do so, though I yield not to what they propose to spend the money on, from either a Constitutional perspective or one of prudence. Sometimes, you just don’t have the money even if a thing be good–and doubly so if the thing be bad.

Back to the subject–if it be a tax–and it is, both in the form of mandate and the form of fine (the backers of the prison time requirement freely admitting that in their view the prison time requirement is justified because not paying one’s taxes also so justifies) then the backers are going to very great pains to say it is in fact not a tax on all to gain coverage for a few–even though that is exactly what it is. They do this because they know the people would be opposed.

Now, there is another question. If it is a tax–and it is–then where is the Congressional authority to do so? Why, obviously by Amendment XVI, one would first think. However, that only grants Congress the power to tax income–not to lay a tax directly on people. This would seem to be a direct tax, not an income tax, as people are required to buy regardless of ability to pay. Thus, it is not a tax on income. It is instead a direct tax.

Now, Congress has the power to lay a direct tax. Unfortunately for Mr. Akaka and others of his ilk, by Article I, Section 9, this kind of tax can only be done in proportion to the Census population; which could be taken to mean that the medium-wealth state of Maine cannot expect to have other states support it’s health care program (as Ms. Snowe wishes) since the tax can only be applied via population, which should mean, as a matter of logic and fairness that is is only spent via population; which therefore means there cannot and should not be a social welfare wealth transfer between states. However, the last argument is not a Constitutional one, merely a philosophical one–but the main point is that if this is a direct tax–which it is–and that if such a tax can only be applied in proportion to population of the states–which is also a true statement, as the Capitation clause in Section 9 is a limitation on the taxation clause of Section 8–then it is pointless to have the mandate function be done at the federal level at all, even were it within the Constitutional grant of power to Congress–which it is not–because another clause of the Constitution prevents it from being the wealth transfer function that its backers truly are intending it to be, unless the backers are willing to freely admit they are in fact taxing the people of states with better health care systems to support the people of states with poorer systems, whatever the reasons.

This is a political issue for the backers that I do not think they will be able to surmount, and hence the reasons why they have tried to obfuscate. This is nothing but a wealth transfer program. Even if the tax is switched to being on income, with subsidies for those who cannot afford the mandate, then it will be clear again this is socialism, pure and simple–a tax on those who have money to give to those who do not. Well, perhaps this is indeed the course of action we should pursue (though I have my doubts), but at the end of the day I hope I have raised at least certain doubts that a.) our Congress has any idea there is something called the Constitution, and b.) this is welfare redux, except this time for health care not income.

The mandate is a tax, pure and simple, a tax to provide coverage for those who do not have it. But because such a tax could not be approved by the people, the people feeling they have been considerate enough to the common purpose; are of concern of the national debt; and having but poor memories of the efficacy of welfare programs past, they have decided to lower all the people’s ability to have care so as to provide everyone coverage and to call it anything but what it is. In short, they would destroy the village to save it.

If this is what we agree to, that is one thing–but if passed under the obfuscations, misleading characterizations, and subterfuges currently going on, that is another, and unworthy of a major legislative act in a democratic Republic.

Horatius on November 12, 2009 at 7:23 PM

This bill is going to pass, not nearly enough people are rising up and making a fuss.

Thing is, it will be the death of this country. It may sound like an exaggeration, but really think about it. Can we afford the huge amount of debt it will create, considering how overstretched we already are?

The bill will kill small business, there’s no way they can afford to provide insurance to their employees, that will create massive unemployment, and/or drive costs for everyday living through the roof for most Americans.

The solution to the misery will be bigger government, higher taxes, which will drive out more businesses, and spur more unemployment. Dependence on the government will outpace the governments ability to tax the rich into the poorhouse and the whole thing will come crashing down like a house of cards. The answer then will be, and will be welcomed by the suffering people, totalitarianism and outright confiscation of all assets and wealth, a Marxist hellhole.

flyfishingdad on November 12, 2009 at 7:24 PM

hhmmmm lets get this straight, if you choose not to buy health insurance you go to jail. That sounds like an idea hugo chavez or castro would come up with.

jaboba on November 12, 2009 at 7:26 PM

hhmmmm lets get this straight, if you choose not to buy health insurance you go to jail. That sounds like an idea hugo chavez or castro would come up with.

jaboba on November 12, 2009 at 7:26 PM

Yep, and we are but three congressional votes of having it here, too.

One in the Senate, then one in each chamber on the final bill.

Try reversing this insanity after 2012.

Dave R. on November 12, 2009 at 7:35 PM

Frankly, throwing somebody in jail for not buying insurance is just the kind of case that would be good to establish the whole system’s unconstitutionality. I can’t imagine the SCOTUS squaring that circle, and the problem would pretty much solve itself.

Ferris on November 12, 2009 at 6:34 PM

BINGO! The Dems have given the people the ticket to take this to the SC. Without the bill showing actual harm it would have been hard to bring it before the court. I’m willing to be the first person to take a helmet for the country.

Fed45 on November 12, 2009 at 7:37 PM

What does he care, if he gets his way his whole state will be able to opt out as a Polynesian reservation.

Chris_Balsz on November 12, 2009 at 7:44 PM

Okay, they want to be nice tyrants… maybe get some lebensraum for the population just because they are so nice! Maybe a bit of going after the malcontents, because they are so nice! Some of that eugenics screening for the ‘fitness’ of the population, and the unfortunate ‘medical care’ for those that aren’t ‘fit’… because they are so nice and mean so well for all of us!

Its deja vu all over again.

There are not enough cluebats to fix this problem.

Prediction: yet another run on ammo in the near future.

ajacksonian on November 12, 2009 at 7:58 PM

correct me if Im wrong but didn’t every member of Congress take an oath to uphold the consitution?

does this not make every person that voted for this bill oathbreakers? And does that not also make them traitors to the Government that swore to defend?

Just asking

unseen on November 12, 2009 at 8:04 PM

Happy faced fascism.

Rambotito on November 12, 2009 at 8:12 PM

From Politico…

RNC insurance plan covers abortion

disillusioned on November 12, 2009 at 8:29 PM

Evil loves to cloth itself in good intentions.

ronsfi on November 12, 2009 at 8:40 PM

It’s unconstitutional because Article I, Section 9 forbids a capitation or direct tax, and this is indeed effectively a head tax.

oddball on November 12, 2009 at 8:40 PM

Ummm Allah, I believe the Dem’s have now upped the ante to 5yrs + $25K. Some how the crime in question can be charged as a misdemeanor or a felony.

I guess there will be an aggravated uninsured category. With how this whole concept is affecting my current disposition, I’d be one of those charged in the latter

Archimedes on November 12, 2009 at 8:49 PM

Does the go to jail for not buying insurance rule apply to illegal immigrants who show up unexpectedly at emergency rooms? Just wondering.

Resolute on November 12, 2009 at 8:56 PM

I am seriously thinking of sending a letter to Pelosi and both my radical senators (Franken and Klobuchar) that if this becomes law, I will make very attempt to be the first one indicted under the provisions of this grossly anti-American, unconstitutional law maneuver.

Amendment X on November 12, 2009 at 9:05 PM

After you watch, read Ace’s post about the crazy wingnut alarmism over people possibly being sent to prison for defying the mandate.

Interesting. The scary part is, what if guys like Glenn Beck are right more often than not?

I listened to him for about a year, and found the radio show pretty funny. A friend took me to a live show, and I enjoyed it, he is pretty witty and entertaining. After a while, I got sick of the doom and gloom, and only tuned in occasionally. I don’t have Foxnews, so never really saw that show.

I always thought his predictions were worst-case scenarios, but lately…. second look at Beck? I also met him at a book signing, and exchanged some brief words and shook his hand, and he seems genuine (you can tell a lot about meeting someone in person, even briefly).

I know this isn’t a Beck post, but he seems to be the main wingnut alarmist according to the left, Obama and a lot of folks here.

reaganaut on November 12, 2009 at 9:09 PM

Does the go to jail for not buying insurance rule apply to illegal immigrants who show up unexpectedly at emergency rooms? Just wondering.

Resolute on November 12, 2009 at 8:56 PM

Good point. That would make them “racist” according to their definition. Or there is collusion to round up a majority of illegals or drive them back to their home country.
I can see it know: “Please fill out this admission form and this bail bond agreement.”

Amendment X on November 12, 2009 at 9:09 PM

Does the go to jail for not buying insurance rule apply to illegal immigrants who show up unexpectedly at emergency rooms?

No. If you can’t afford it, you don’t have to pay it. If you can afford it, you have to pay it (how else can those who can’t pay receive care?).

That’s how wealth redistribution works.

When insurers and hospitals charge more to cover the uninsured (not to mention lawsuits) it’s evil. When gub’mint does it, it’s noble.

reaganaut on November 12, 2009 at 9:18 PM

They believe that they can do as they please and will do as they please…..still don’t think so? Read the following link!

http://gatewaypundit.firstthings.com/2009/11/going-venezuela-team-obama-announces-marxist-purge-of-gop-civil-servants/

When you are done join me in line for the revolution!

stacy on November 12, 2009 at 9:28 PM

The Constitution means nothing to these people. They’ll do it just because it feels good; never mind that they don’t have the power. They’ll do it just because they think the majority wants it or at least won’t get in their way.

I always thought the battle would come if they tried to disarm us, or shut us up. It might come from them trying to lock us up for not buying insurance. You know … this list keeps getting longer and longer. How much longer does it have to get to be as long as the list of grievances in the Declaration of Independence?

Woody

woodcdi on November 12, 2009 at 9:32 PM

BINGO! The Dems have given the people the ticket to take this to the SC. Without the bill showing actual harm it would have been hard to bring it before the court. I’m willing to be the first person to take a helmet for the country.

Fed45 on November 12, 2009 at 7:37 PM

I wouldn’t bet the farm on a SCOTUS case.

Look what they did with Kelo and McCain-Feingold.

Hell, put enough wise latinas on the court an they’ll declare anything constitutional for dear leader.

Chaz706 on November 12, 2009 at 9:54 PM

I don’t look upon it as a penalty, but as a way of getting help with health insurance.

Yeah? Well, explain me how my paying this non-penalty to the IRS gets me help with health insurance. What gobbledygook. Reminds me of the good old depends on the meaning of “sexual relations” and “is” days. Dems defending Bill Clinton had to tie themselves in rhetorical knots, too.

SukieTawdry on November 12, 2009 at 11:31 PM

My Senator, has never been aware.

Kini on November 13, 2009 at 1:42 AM

Got a tip for you Skip….
Ahh, We The People DO NOT want your help…….K!

BigMike252 on November 13, 2009 at 2:17 AM

The better answer is that it’s covered by the Commerce Clause, which, ever since the New Deal, has in practice granted Congress that same authority — provided that the legislation touches on interstate commerce in some bare, glancing manner

WRONG answer Killroy. The “General Welfare Clause” in Article 1, Section 8, clause 1, only has any jurisdiction to the 17 enumerated items mentioned in Article 1, Section 8, and even then, cannot make any duties, impost and excise fees that are not UNIFORM to every State and CITIZEN of that State.
Article 1, Section 8, clause 3, means to make commerce between the States REGULAR, but that’s only according to Madison, Hamilton and Mason, who actually WROTE the Constitution.
Congress is PLAINLY not given the authority to pass Healthcare Legislation, nor are they permitted to create a “Bill of Attainder” in Article 1, Section 9, clause 3.
BILL OF ATTAINDER:
1. An act of the legislature declaring a person or group of persons guilty of some crime and punishing them without benefit of a trial.
2. A punitive tax.

This National Healthcare Legislation also violates the 4th Amendment; “The right of the people to be secure in their persons, houses, papers, and effects”. The 5th Amendment “No person shall…be deprived of life, liberty, or property, without due process of law”. The 14th Amendment; 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.” (To which the House Healthcare Bill forces States to violate).
What would you want to be I can find several other Constitutional violations in the House’s Healthcare Bill?

nelsonknows on November 13, 2009 at 3:32 AM

You say Akaka,
I say Macaca,
Akaka, Macaca,
Macaca, Akaaka,
Let’s call the whole thing off…

J.J. Sefton on November 13, 2009 at 6:50 AM

Next thing you know it’ll be a law that we all have to buy a green uniform with a little green cap. And wear it everywhere.

Akzed on November 13, 2009 at 9:01 AM

The scum of the Senate will pass this. Time to start lining up the constitutional attorneys to argue this case before SCOTUS. I mean real constitutional lawyers, not phony, ignorant affirmative action hires like Obama.

SKYFOX on November 13, 2009 at 9:04 AM

Frankly, throwing somebody in jail for not buying insurance is just the kind of case that would be good to establish the whole system’s unconstitutionality. I can’t imagine the SCOTUS squaring that circle, and the problem would pretty much solve itself.

Ferris on November 12, 2009 at 6:34 PM

I wish I could share your optimism. Except for the recent 2nd amendment case, the record of the Supreme Court in defending individual rights guaranteed by the Constitution is not so encouraging the past 50 years.

JDPerren on November 13, 2009 at 12:25 PM

Execise you right to bear arms while you still have the chance.

TrickyDick on November 13, 2009 at 1:46 PM

On Fox this morning Geraldo got in quick and said Seeker of Allah. The others followed on from his lead.

davod on November 13, 2009 at 5:17 PM

Next thing you know it’ll be a law that we all have to buy a green uniform with a little green cap. And wear it everywhere.

Akzed on November 13, 2009 at 9:01 AM

It’ll be grey. Commies, Fascists, and Marxists prefer grey for the proletariat, don’t they?

Woody

woodcdi on November 15, 2009 at 9:43 PM