Ron Morley's Freedom Blog

This is the place where I do my little bit to explain the evils of the State.

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.