Will Congress disobey the Consitution, again? Yes, if it passes Obama's health care "reforms"
One
of the things which has gotten less attention than it needs in all
the noise that has been generated by the debate over health care
reform is one that is fundamental to not only health care, but the
very manner in which our country is governed. Simply stated it is
this: can the Congress legally mandate changes to our health care
system and then turn the operation over to bureaucrats? According to
our Constitution the answer is also very simple: No. The reason lies
in the very first line of the Constitution proper where, in Article
I, Section 1 it says: “All legislative Powers herein
granted shall be vested in a Congress of the United States, which
shall consist of a Senate and House of Representatives. “
And yet, turning legislation, that is the making of the laws under
which we all live, over to an ever growing Federal bureaucracy is
exactly what the proponents of “change” wish to do. You see,
once the Congress passes the law enabling changes to how the nation's
health care is provided, the details of its implementation – the
actual writing of the rules, that is the laws, defining how things
will work – is turned over to some Federal agency.
I
realize that I'm out of step with the times on this issue, but this
is certainly not what the Founding Fathers intended for our
government to be. You see, not only do bureaucrats make the rules
but they also, via the mechanism of so-called “administrative
courts” decide how those rules are to be enforced. In effect they
get to act as law makers, law enforcers, and judges. Combining these
three functions under one roof is certainly not what those who spent
considerable time and effort figuring out how to separate them
intended for our nation. Our Founding Fathers set forth the
principles of separation of powers not because they wanted to make
our government complex but because they recognized that doing so
would help to prevent the rise of tyranny. They counted on the greed
for power that is present in the heart of every politician to
maintain that separation: they believed that the Congress would act
as a check on the President and the Courts would act to check the
power of both. They did not dream of the possibility that the three
branches would collude to increase the power of all of them so as to
be able to kill the liberty and freedom that they had struggled so
hard to obtain and pass on to future generations. But that is
precisely what has happened.
For
many years our Constitution worked pretty much as intended. While it
did so Americans not only saw their country grow in size, but also in
economic power, so that by the time of WWI our nation was the largest
economic power in the world, having overtaken Great Britain in the
1880s. In a space of less than 150 years our country went from being
so feeble that its very continuation in existence was in doubt for
many years, to a position of world leadership – all under the basic
structure that had been laid down in the summer of 1787. There had
been a few deviations from the intent of the Founding Fathers, but
they were few and far between and, as yet, the power of the Federal
bureaucracy was still very limited. All this happened during a
period of change in technology, science, and the arts such as the
world had never seen before – a period which saw the average
American's yearly income rise considerably even though there were
millions of people immigrating to this country. Not everything was
perfect, understandable as we are dealing with humans here. But, in
any case life got better for the vast majority of people over a
considerable period of time under a Federal government that remained
small and which by-and-large lived according to the rules set up in
the Constitution.
Things
began to change some in the early years of the 20th
century with the growth of the so-called “Progressive” movement –
a movement which held that people would be better off under a
government which was run by an expert bureaucracy: a system which
allowed outside third parties to make the decisions about how others
should act, because they supposedly knew what was best for them. The
movement made some progress and managed to establish such now
monumental bureaucracies as the FDA and the U.S. Department of
Agriculture. On the whole, though our system of government still
worked as the Founding Fathers intended it should. The executive,
legislative, and judicial functions of government were kept separate
and people were still largely able to live their lives free from the
interference of the government.
All
that changed with the coming of the Great Depression and Franklin
Delano Roosevelt. He was elected in 1933 on promises to bring a “New
Deal” to Americans; a government which cared about them as
individuals, one which would bring order and stability back into
their lives, one which would provide them jobs, certainly not one
they should fear. And Americans bought it as they valued economic
security above freedom and liberty. FDR, for his part, kept his
promises, pushing a veritable deluge of legislation through the
Congress in his fabled first 100 days in office. He created a forest
of Federal bureaucracies with a plethora of initials to go with them:
the NLRB, NIRA, CCC, WPA, and a host of other agencies and programs
came into being.
The
Supreme Court held back the tide of socialist legislation finding
that many of Roosevelt's new agencies and laws were unconstitutional
– mainly on the grounds that the Congress was delegating its
legislative powers. At that time the Court recognized what most
Americans seemingly did not – that allowing the consolidation of
legislative, enforcement, and interpretive powers to reside in one
agency was a sure path to the destruction of the liberty and freedom
which made the United States unique among the nations of the world.
The Court realized the truth of Benjamin Franklin's old adage about
giving up a little liberty for a little safety and losing both in the
long run.
FDR
was furious that the Supreme Court would dare to stand in the way of
his schemes to vastly expand the power and reach of the Federal
government and launched his infamous attempt to pack the Supreme
Court with justices who would rule in his favor. It was at this
point that a couple of the judges on the Court, fearing more for
their future job security than they did for the Constitution, had a
change of heart and began to rule in favor of the Administration on
many of the contentious issue of the day. The lack of the courage of
their convictions on the part of two or three men in 1937 has doomed
Americans to lives in which the wishes of unelected Federal
bureaucrats count more than our own in many areas of life.
And
it's all built on a legal fiction. The fiction is that the Congress
hasn't really delegated its legal authority to make the laws because
it continues to exercise some type of “oversight” of the powerful
bureaucracies it has created. The fact that Congressional oversight,
certainly in its ability to control the day to day operations of our
multitude of Federal agencies, is a farce, doesn't keep the courts
from insisting that it exists. A few Congresscritters holding
hearings into some matter whenever the public outcry becomes such
that they fear for their own re-election, particularly when no
individual is held accountable for his or her actions, is not
oversight: it is political theater designed to keep the masses happy.
This is another insistence in which clever politicians and lawyers
have subverted the clear meaning of the Constitution to the detriment
of the American people. Yet most people don't even stop to think
about it so ingrained has the apparatus of oppression become in our
lives.
Now,
the President and his supporters wish to expand the reach of the
government into the one area in which its control has been, to this
point, relatively controlled. The supporters of the President's
scheme to “reform” health care are at pains to point out that
there really in no difference between having health care decisions
made by lackeys of the State or employees of health insurance
companies. They fail to realize that there is a critical difference
– if a health insurance company too often abuses its customers it
finds that those customers begin taking their business elsewhere –
an option that will not be available once Federal bureaucracies are
set up to make health care decisions for us. The private insurers
are not perfect. It is important to realize that some of their
policies are brought about by Federal government regulations that are
already in place concerning rates of reimbursement for procedures and
limits on lifetime expenditures for things such as durable medical
equipment. It is doubtful that putting more power into the hands of
unaccountable minions of the State will improve the overall quality
of health care in this nation.
The
American public needs to wake up and realize that it is the results
of policies, not the intentions behind them that are important in the
final analysis. I may want to set up a government-mandated wage
structure that insures everyone who works a decent wage. But if the
result of the policies that I put in place to achieve that goal is
that many marginally employable persons lose their jobs because
businesses can no longer afford them at my new higher wage rates I
have actually achieved the result of consigning more people to the
welfare rolls or life on the street. Certainly I would not expect to
be rewarded for having brought about such a debacle, but that is
exactly what happens when Americans continue to return the same old
faces to Congress election after election. Given the lengthy track
record of policy failure that the Federal bureaucracies have it is
doubtful that they will do any better if they are given the power to
directly govern the course of health care in this nation. And that's
what will happen if Congress passes such a law because the Congress
will give up its legislative power as part of the deal, even though
out Constitution says that it cannot do that. Federal employees will
have the power to make the laws, enforce them, and interpret what
they mean (becoming judge, jury, and, in some instances literally,
executioner). If you think our current health care system is a mess
give it a few years under the gentle ministrations of an all-powerful
bureaucracy – it will get worse.