Florida joins in kicking 4th Amendment's dead horse

In an apparent rush to further destroy the already largely lifeless Fourth Amendment [1], Florida law enforcement has joined other states in implementing "no refusal" DUI checkpoints.  These checkpoints, in addition to already being constitutionally questionable, add the extra layer of immediate forced blood draws after a warrant is issued by the on-site judge.

The right to protection against unlawful search and seizure be damned.

While I would normally make the argument that the states, and therefore by extension local law enforcement, are not subject to the same constitutional restraint as the federal government, the Supreme Court has applied the Fourth Amendment to the states by way of the Fourteenth Amendment's 'Due Process Clause' in the Mapp v. Ohio case of 1961 [2].

This is, unfortunately, another attempt by government to overstep its constitutional obligations in the name of "public safety." The same case has been made for decades with regard to gun rights - notwithstanding the protections afforded to the People in the Second Amendment, the Congress has implemented gun control legislation on a substantial scale, even to the degree of banning automatic firearms in the National Firearms Act (NFA) of 1934 [3], and to some degree further in the ill-named Firearm Owners Protection Act (FOPA) signed by President Reagan in 1984.  Ironically, the FOPA further restricted the sale of automatic firearms sold in compliance with the NFA only to weapons manufactured prior to the date of the act, or prior to 1986.  As a result, all automatic firearms in the US which are available for legal purchase by the public were manufactured at least 25 years ago.

To its credit, however, the FOPA included provisions to protect firearm dealers against abusive searches and audits conducted by the Bureau of Alcohol, Tobacco, and Firearms (ATF), prevented the requirement of federal gun registration (although some states can and do have registries, which is a different matter), restricted record keeping of ammunition purchases, and removed a former restriction on long gun sales across state lines [4].

As I have already published at least one lengthy piece regarding Congressional authority to regulate interstate commerce, it seems appropriate to comment here that the Congress asserting regulatory authority due to the effect that long gun sales across state lines has on interstate commerce is dubious - especially in light of the Second Amendment.  Congress, in this situation, could indeed regulate the commerce taking place in the interstate sale, but since when did the term regulate become synonymous with ban?

Getting back to the DUI checkpoint story, the entire concept of checkpoints is to protect the safety of the public.  Drunk driving is indeed a serious matter than claims far too many lives each year, particularly around the New Year celebrations.  But is casting a net of suspicion over all drivers on a road at any given time to pick out the one or two who may be intoxicated an appropriate exercise of authority?  As far as I am concerned, the answer is no.

The Fourth Amendment protections again unlawful search and seizure are also further expanded and clarified in the introductory clause of the amendment, which states that the purpose of protecting against unreasonable search is explicitly for "The right of the people to be secure in their persons".  How can the average, law abiding driver be "secure in their person" if they are subjected to suspicion of drunk driving (i.e. a search) by a police officer stopping them at a sobriety checkpoint, especially in the complete absence of probable cause?  They can't.

Random searches of a driver's "person," in order to comply with the absolute protections afforded by the Fourth Amendment, must be by warrant issued resulting from a reasonable suspicion of intoxication.  The language of the amendment makes this absolutely clear:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.  (Emphasis mine.)

Public safety plays no role in the execution of a lawful search.  In order for liberty to be maintained, the People must be absolutely secure in their persons and property from unlawful intrusion, even if public safety suffers.

This conclusion is sure to arouse at least two additional questions:

1.  Does this mean that all DUI action by law enforcement is unconstitutional?  Absolutely not.  Law enforcement is welcome to pull over any driver who is speeding, abruptly changing lanes, or who appears unable to safely operate the vehicle, but probable cause must be present before lawful contact with the driver can occur.  Anything less is a violation of the driver's constitutional rights.

2.  Does this mean that we should allow public safety to be sacrificed in the name of "protecting someone's rights?"  To some degree, yes.  However, if the penalties imposed for drunk driving were severe (i.e. lengthy prison terms) rather than lax, drunk driving wouldn't be as much of a problem to begin with.  Punish the offender, not the law abiding citizen.

In this particular story, the fact that the DUI checkpoints have a judge present on site is immaterial.  A judge's presence does not give the police probable cause, and therefore a warrant cannot be lawfully issued ("no Warrants shall issue, but upon probable cause").  Refusing to submit to a breathalyzer is not probable cause.

Further, if we are going to simply make judges available on the spot to issue warrants whenever law enforcement wants to do anything, why even require warrants?  Why not simply deputize all police officers as non-commissioned judges?

The People's liberties are at stake and fading fast.  If we fail to assert these liberties for ourselves or depend on government to protect them for us, we will quickly find ourselves without any liberties at all.  After all, if we're willing to tolerate the violation of constitutional protections against unlawful search and seizure to protect ourselves from drunk drivers, what violations are we willing to tolerate next in the name of public safety?

Benjamin Franklin put it best:

They that can give up essential liberty to obtain a little temporary safety deserve neither safety nor liberty.

In love of liberty,
The Bulletproof Patriot

Breaking News: Obama birth certificate found at Area 51

Headline AP (New York):

Barack Obama's original birth certificate was discovered Tuesday evening by a night janitor while clearing out several piles of long-discarded alien space "junk" in a remote corner of the Area 51 compound located about an hour north of Las Vegas.

"It really was surprising," noted janitor Edward Moppe, a seasoned veteran of the Area 51 cleaning staff.  "I happened across the certificate when clearing away some dusty electronics stored behind the co-pilot's seat in one of the several black helicopters stored in the sub-basement level of the facility.  When I saw it, I immediately knew how important this would be to so many Americans," said Moppe.  "So, I tucked it safely into my til foil hat, ran past the glowing pink tanks of alien bodies, past the offices of Elvis and Lee Harvey Oswald, through the collection of unmeltable [1] steel wreckage from the World Trade Center, up the stairs next to the 'AIDS and Smallpox Research, Adjustment, and Delivery' laboratory, and into the UN office for global warming affairs."

"Finally the mystery has been solved," said Moppe.  "We now know, thanks to the original birth certificate, than Barack Obama is in fact Keynesian! [2]"

RIP: Internet freedom dead at 19

The FCC has voted to impose so-called "Net Neutrality" rules on the internet [1].  The vote was 3-2, strictly along party lines, with the three Democrats voting in favor.  Democrats have also expressed concern that the proposed Net Neutrality rules were too weak and needed to be strengthened [2].  Elsewhere in the media you will undoubtedly find stories proclaiming the goodness of the decision, suggesting that the new regulations will guarantee consumers the "right to view content," prohibit providers from blocking content such as Bittorrent, streaming video, and other high-bandwidth activities [3].

Unfortunately, these proclamations ignore the fundamental problem with Net Neutrality:

The federal government (FCC) has now gifted itself by regulatory fiat the power to regulate the internet without approval from Congress and seemingly in violation of a decision by the 2nd Circuit Court of Appeals earlier this year [4].

The major concern here is that the FCC is imposing regulations to solve a nonexistent problem.  Now that the FCC has its foot in the door, what regulations are next?  An internet Fairness Doctrine to ensure that all points of view are heard [5]?

When was the last time federal regulations lead to more freedom?

Individual Responsibility is Doubleplusungood

The Hill has reported that HHS Secretary Kathleen Sebelius and Attorney General Eric Holder penned an op-ed [1] entitled, “Health reform will survive its legal fight,” in response to Judge Hudson’s ruling [2] that the so-called ‘individual mandate’ to purchase private health insurance is unconstitutional, as the activity of not purchasing insurance is not an economic activity that affects interstate commerce.  Not surprisingly, Progressives disagree.

In the usual and customary Progressive play to emotion rather than logic, the op-ed opens with a heart-wrenching story about a New Hampshire preschool teacher who, unable to obtain insurance through her employer, put off treating her Lymphoma since the cost of chemotherapy was $16,000 per round.  Now, thanks to the PPACA signed by the President in March of this year, the teacher is on an affordable, temporary coverage program that apparently can be used to treat her cancer.  I am very sincerely happy that she is receiving treatment, and it is a shame that it had to be delayed due to prohibitive cost and insurance coverage problems.

However, in their attempt to offer the playbook emotional reasoning to wholeheartedly support the PPACA (and any number of other Progressive causes), Sebelius and Holder willfully gloss over a few important details:

1.  Not all health insurance must be provided or purchased through an employer.  There is (or was) a plethora of individual plans, both temporary and long-term, available for purchase from a range of providers – just check out ehealthinsurance.com if you don’t believe me.  Now, before Progressives scream and moan about prohibitively high cost, I will mention that high deductible plans can be purchased for as low as ~ $50.  In fact, several plans are available for under $100 a month that offer 20% coinsurance above a yearly deductible of a few thousand dollars, as well as access to in-network rates if you choose a PPO- or network-type plan.  Sure, it's not "free," but it would limit the damage considerably in a catastrophe such as this.

On a side note, in consideration of the oft-lauded UK National Insurance (NI) program, the average UK citizen under age 65 and making a salary equivalent to the 'average' American salary of $50,000 per year (32,165 GBP as of 2010) would be expected to pay approximately $4,522 (2,909 GBP) per year towards NI.  The employer-covered share would be approximately an additional $5,262 (3,385 GBP) per year for a grand total of $9,784 (6,294 GBP) per year, per employee, for coverage under the UK NI program.  This isn't terribly different from the value of a typical American health insurance plan that covers himself plus a spouse at a price of, say ~$12,000.  The average American employee pays approximately 28% of such a plan's premium [3],which works out to $3,360 per year, or about $1,100 less than what the UK employee pays for his insurance.  (Note that this does not include co-pays, co-insurance, etc. which will be discussed in a future post.)

For all of the noise Progressives make about how wonderful the UK National Insurance program is, one might be lead to think that the British are living in a sort of socialist health care utopia enshrined with golden bed pans and surgeons waiting on every corner.  Unfortunately, this isn't true, especially if you're a male with cancer [4] - your chance of survival in the United States is nearly 67%.  In England, your survival rate is 45% [5], not to mention you might find yourself neglected by the NI hospital staff and having to find your own source of the rare and difficult to produce pharmaceutical product known as water in the potted plant in the corner of your hospital room [6] [7] [8] [9].

The UK isn't alone in having such deplorable conditions present themselves in local hospital facilities.  In 2007, the Washington Post reported on a series of incidents involving rats, feces, and mold [10] infesting a portion of Walter Reed Army Medical Center in Washington, D.C.  Unfortunately, this facility is also government operated and doesn't help Progressives' promotion of national public health care.  But, then again, I guess it's just not fair that the nonprofit Mayo Clinic, which is routinely ranked among the top 3 health care facilities in the US [11] and is known for providing top quality care for low cost [12], takes all the glory.  Anyway, back to the original story...

2.  A condition is not considered ‘pre-existing’ so long as the person had some form of health insurance coverage for the six months prior to changing plans, or attempting to buy into an employer-sponsored plan.  When you leave a health insurance policy, you will be sent a Certificate of Creditable Coverage – a certification that your health was insured for at least six months prior to your date of departure.  You can provide this certificate to your new health insurance provider, who must then accept you in whatever condition you arrive, even with pre-existing conditions.  This certificate effectively removes the pre-existing conditions clearing period found at the beginning of most health insurance plans.  Since the teacher in this story was unable to obtain employer-sponsored health insurance due to a pre-existing condition, this suggests that she was uninsured at the time that the condition began (and lymphoma is not a life-long condition).  Presumably, she was otherwise healthy prior to her diagnosis, and had made the decision to not purchase any form of health insurance.  After all, even a $50 a month plan would have severely limited her financial liability for chemotherapy after say a $5000 deductible and 20% coinsurance had been paid – her first round would have cost approximately $7,200, and all subsequent rounds wound have cost $3,200, assuming the provider was approved by her insurance company and did not have a contract for a cheaper rate with the provider.  In this scenario, a $50 a month policy could have potentially saved her $36,400 over the cash cost of three chemotherapy rounds.

3.  The federal government is not the sole source of funding or treatment for serious medical conditions.  The story makes no mention of the woman’s appeals to her local community, her church, family, potential negotiations with local doctors and/or drug companies to provide reduced service costs (which I know first-hand is available for cancer treatment [13]), or other organizations in her state which deal with cancer and/or low-income medical treatment.  Had she thought of contacting the Huntsman Cancer Institute?  John Huntsman is a self-made billionaire and a seemingly reasonable, caring, and motivated individual.  After all, he has donated most of his wealth to charitable causes.  Instead, the story describes how this teacher’s life was saved when the federal government rode in on a white horse, with the name “taxpayer” written on its thigh.

To take this even further, the story continues by expressing how the right’s attack on the “individual responsibility [to purchase basic health insurance]” is ill-fated because we each have a responsibility to each other, by way of shared medical expenses (expressed as an additional $1,000 that each insured pays per year to support the uninsured).  Call me crazy, but what part of being forced to purchase a private insurance policy under threat of a fine is “individual responsibility”?  Wouldn’t “individual responsibility” be when the individual takes responsibility for their own individual health and chooses whether or not to spend the money to insure it?  Certainly not!  The term "individual responsibility" in this article is simply Progressive-speak (similar to Newspeak [14]) for collective responsibility, or in other words, socialism.  I would venture that Madison, Franklin, and the like would find this new responsibility doubleplusungood.

The article goes on to say, 

Opponents claim the individual responsibility provision is unlawful because it 'regulates inactivity.'  But none of us is a bystander when it comes to health care.  All of us need health care eventually.  Do we pay in advance, by getting insurance, or do we try to pay later, when we need medical care?

Excuse me, but what business is it of the federal government's to decide whether or not I am a 'bystander' when it comes to health care?  Are we to assume that Holder and Sebelius are correct in asserting that the only two possible options are either to "pay in advance, by getting insurance," or "try" to pay for our medical care later, when we need it?  Who the hell are they to assume that it's only an insurance policy that pays the bill and that the individual can't be responsible enough to plan ahead and negotiate with our doctors for reasonable fees in advance?  Of course, reduced flat rates offered by private doctors geared to the uninsured have already been attempted in New York, but were shut down by state bureaucrats who claimed the business was attempting to operate as an insurance company - and insurance regulatory law simply won't allow it [15] [16].

The article continues,

The individual responsibility provision says that as participants in the health-care market, Americans should pay for insurance if they can afford it. That's important because when people who don't have insurance show up at emergency rooms, we don't deny them care. The costs of this uncompensated care - $43 billion in 2008 - are then passed on to doctors, hospitals, small businesses and Americans who have insurance.

As two federal courts have already held, this unfair cost-shifting harms the marketplace. For decades, Supreme Court decisions have made clear that the Constitution allows Congress to adopt rules to deal with such harmful economic effects, which is what the law does - it regulates how we pay for health care by ensuring that those who have insurance don't continue to pay for those who don't.

Holder and Sebelius are correct in stating that emergency rooms don't deny care to anyone who enters - the federal government made sure of that in the Emergency Medical Treatment and Active Labor Act of 1986 [17], when the Congress mandated that emergency rooms treat everyone regardless of ability to pay.  Have you ever wondered why being treated for uncontrollable nausea and vomiting at 2:00 am cost you $1,800?  Why it's because the ten year old child with an ear infection was brought in by his parents (who are quite possibly in the United States illegally [18] [19] [20]) rather than to a regular doctor or urgent care clinic the following morning because they know they won't be forced to pay for the service, thanks to federal legislation.

A more shining example of the federal government riding to the rescue to solve a problem that it created is hard to come by.  Fortunately, rather than allowing hospitals as private businesses to decide which medical conditions to treat on an emergency basis and which to deny and send elsewhere for treatment, Holder and Sebelius have proposed the ultimate bureaucratic solution to the problem - you must buy health insurance.  How, you ask, will this prevent runaway health care costs due to unpaid emergency room visits?  Nobody knows, including the government, but is sure sounds good, doesn't it?

In closing, Holder and Sebelius make the statement,

It's not surprising that opponents, having lost in Congress, have taken to the courts. We saw similar challenges to laws that created Social Security and established new civil rights protections. Those challenges ultimately failed, and so will this one.

Yes, similar challenges were brought against the Social Security Act of 1935, a part of the New Deal brought by FDR, one of America's most Progressive presidents.  Several pieces of New Deal legislation were determined to be unconstitutional by the Supreme Court, only to be rewritten and eventually found to be constitutional in the same year that FDR threatened to stack the court [21].

Since the Progressive Era of the 1920's and up through FDR's death, Progressives have long held that the Congress has the authority and the moral responsibility to legislate social programs such as Social Security, Medicare, and Medicaid.  This marked a stark change of course in jurisprudence prior to ~1920 and it is clear that the Constitution was never intended to provide the Congress with such broad social authority - during James Madison's tenure as the fourth President of the United States, he vetoed a bill which the Congress had sent to him entitled, "An act to set apart and pledge certain funds for internal improvements."  The bill had intended to construct roads and waterways to promote and secure commerce within the states and to improve the cost effectiveness of 'the common defense.'

In Madison's rejection of the bill on March 3, 1817, he, as the former principle author of the Constitution, opined,

The legislative powers vested in Congress are specified and enumerated in the eighth section of the first article of the Constitution, and it does not appear that the power proposed to be exercised by the bill is among the enumerated powers, or that it falls by any just interpretation with the power to make laws necessary and proper for carrying into execution those or other powers vested by the Constitution in the Government of the United States.

"The power to regulate commerce among the several States" can not include a power to construct roads and canals, and to improve the navigation of water courses in order to facilitate, promote, and secure such commerce without a latitude of construction departing from the ordinary import of the terms strengthened by the known inconveniences which doubtless led to the grant of this remedial power to Congress.

To refer the power in question to the clause "to provide for common defense and general welfare" would be contrary to the established and consistent rules of interpretation, as rendering the special and careful enumeration of powers which follow the clause nugatory and improper. Such a view of the Constitution would have the effect of giving to Congress a general power of legislation instead of the defined and limited one hitherto understood to belong to them, the terms "common defense and general welfare" embracing every object and act within the purview of a legislative trust. It would have the effect of subjecting both the Constitution and laws of the several States in all cases not specifically exempted to be superseded by laws of Congress... [emphasis mine] [23]

Could the "Father of the Constitution" have been any more clear?  The passage of such a social works program, he found, would have the effect of "giving to Congress a general power of legislation instead of the defined and limited one hitherto understood to belong to them."  Evidently, Madison simply didn't understand just how important and morally obligated the federal government's public works program would be to the People of the United States.

In light of such a profound opinion clearly defining the Constitution's provision of Congressional powers, by none other than the author of the Constitution himself, it should be unequivocally insulting that the Congress has passed legislation creating Social Security, Medicare, and any other of the thousands of public and social works legislative disasters we live under today.

Who then, Progressives might ask, will come riding to the rescue of the poor, down-trodden American citizen who needs these social programs?  In Madison's day, as it should be in ours, the answer would have been wholly embodied in two simple words:  individual responsibility.

In love of liberty,
The Bulletproof Patriot

Federalism, Health Care, and Car Insurance

The Wall Street Journal has reported today that US District Judge Henry Hudson of Virginia has ruled that the so-called "Individual Mandate" contained within the Patient Protection and Affordable Care Act (PPACA), signed into law by the President in March of this year exceeds the authority of the Congress to regulate interstate commerce [1].  Judge Hudson's decision can be read elsewhere [2].

While this is certainly a victory for Federalism, at least to some limited degree, there was no shortage of media coverage highlighting the contrast between this decision and previous federal District Court decisions.  Perhaps the most notable was the decision issued by Judge George Steeh of Michigan earlier this year, which declared that an individual's decision to not purchase insurance coverage had a substantial effect on interstate commerce, which in turn gave Congress the authority to regulate that activity under the Commerce Clause of Article 1, Section 8 of the US Constitution [3].

That decision, among other things, suggested that the source of Congress's broad power to regulate even purely intra-state commerce began with Wickard v. Filburn (1942), wherein the Supreme Court ruled that Congress had the authority to regulate personal activity which had a distant and indirect effect on interstate commerce, even though no economic activity or transfer of money, goods, or other value changed hands [4].  In that case, the Supreme Court ruled that Roscoe Filburn had violated the Agricultural Adjustment Act of 1938 [5] by growing more wheat on his property than Congress permitted in the Act, even though the wheat was grown for his own personal use (in the feeding of his animals) and was not being sold or changing hands.

The Court's interpretation relied on the indirect effect Filburn's action had on other commerce; that the growing of his own wheat in excess of what Congress had allowed would lead to him purchasing less wheat from others, that wheat purchases are frequently made across state lines (although not necessarily in Filburn's case), and that therefore the Congress had the authority to regulate Filburn's activity under the interstate commerce clause.  Filburn's activity, however innocent it may have been, had gotten in the way of the economic manipulation the federal government had embarked upon in an effort to prop up falling wheat prices.

This decision, not surprisingly, occurred at the tail end of the Progressive Era [6] under the Presidency of Franklin Delano Roosevelt.  The author of the decision for the majority was Justice Robert H. Jackson, an FDR appointee.  Wickard v. Filburn is one of a set of Supreme Court decisions which rounded out the first wave of the Progressive Era, and is the principle decision relied on by Progressives to find the authority to legislate nearly anything the Congress deems in the interest of the general welfare of the People.  Indeed, no Supreme Court decisions were issued for the next 53 years which substantially limited the powers of the federal government to impose legislation on purely intra-state commerce.  In 1995, the decision issued in United States v. Alfonso Lopez found that the Congress did not have the authority to regulate the carrying of a firearm, as that action did not have a significant effect on interstate commerce.

When combined with the Filburn opinion and nearly 70 years of case law based on the assumption that the Congress has broad regulatory powers granted under the interstate commerce clause, the Steeh opinion (MI) has effectively provided the final, closing remark of the Progressive argument that the federal government has unlimited regulatory powers, wholly unconstrained by any provision contained within the Constitution.  The Progressive argument has now become that the regulatory powers are indeed so unlimited that the Congress can legally regulate inaction by an individual who refuses to purchase a private service.

The logical argument follows; to what degree can the Congress regulate any activity, even inactivity?  Can the Congress impose regulations that restrict the purchase and use of firearms which are produced, sold, and constrained for use strictly within the boundaries of one state [7]?  Can the Congress impose regulations on states to require the spending of money on Medicaid [8]?  Can the Congress (by way of an 800 page Federal Highway Administration regulation) require local governments to replace all street signs that contain all capital letters with signs that have only the first letter of each word capitalized [9] [10]?  Can the Congress dictate to local schools what kinds of foods may be sold in their cafeterias and regulate bake sales [11]?  If I produce in my basement one of those miniature umbrellas that goes in tropical drinks and put it in my own drink, can Congress regulate what type of wood I use, or how much it weighs?  According to Progressive thought, yes it can - after all, by producing my own miniature umbrella, I am likely to not purchase a miniature umbrella from someone else, and since miniature umbrellas are commodities which are routinely sold across state lines, I am affecting interstate commerce.  I suspect that the writing of the "Miniature Drink Umbrellas and Plastic Fake Poop Act of 2011" is already well underway at the Center for American Progress [12].

To that end, federalism has taken yet another punch to the gut.  The era where states' rights reigned supreme and the United States were (notice I used the word 'were' rather than 'was') a collection of pseudo-sovereign states and not simply territories which had slightly different laws and different income tax rates, is over.  Rather, we have become a society of Progressively-brainwashed citizens who answer to an all-powerful national government rather than our state or locality.  We have effectively become subjects, albeit with the power to elect our own captors who make their way to Washington, only to become complicit bureaucratic automatons unwilling to face tough questions from their constituents [13] [14] [15].

Perhaps the most amazing indication of the stranglehold Progressivism has on modern American culture is illustrated by the percentage of Americans who don't understand the definition of the word "Federalism" - an informal poll [16] has indicated that 35% of Americans believe that Federalism is "a political system where the national government has ultimate power."  The correct answer, of course, is that Federalism is a system wherein the states and federal government share power, the answer selected by 57% of respondents.  Another 8% thought that Federalism was either "a political party at the time of the founding," or "a set of essays defending the Constitution."

These views are substantially forwarded by the Progressive media and locally by Colorado's Progressive Talk station on the AM dial.  Sadly, callers into some of the local shows also frequently offer up an assumption of unlimited government, apparently oblivious to the restrictions placed on the power of the federal government by the Constitution, and espoused by our Founders.  But ordinary citizens aren't the only ones who apparently have no concept of limited government - even Nancy Pelosi, the Speaker of the House, when questioned on Congress's Constitutional authority to enact health care legislation, could only respond with, "Are you serious?  Are you serious? [17]"  When pressed further, Speaker Pelosi's office officially responded by forwarding a press release which cited - you guess it - the interstate commerce clause as the source of Congress's new found health care regulatory powers [18] [19].  The release also uses the equally Constitutionally-questionable Medicare and Medicaid programs to prop up the justification for health care reform, and goes on to make what is perhaps the most honest statement issued by Progressives regarding Congressional regulatory authority:

Since virtually every aspect of the heath care system has an effect on interstate commerce, the power of Congress to regulate health care is essentially unlimited [18].

The ignorance of limited Congressional authority and the concept of Federalism is made strikingly clear by a seemingly widespread Progressive argument which attempts to define why the PPACA can require an individual to purchase health insurance - after all, you're required to purchase car insurance, aren't you?  Yes, in Colorado you are required to purchase car insurance by the state.  There is no federal government requirement to purchase car insurance (yet).  The car insurance comparison only works when compared to state legislation - whether or not your state can require car insurance or the purchase of private health insurance is a matter to be left to your state constitution and state courts, and in many cases has indeed been affirmed [20].  Such matters are outside the jurisdiction of the Congress, and you won't find Constitutionalists arguing otherwise, much to the surprise and chagrin of Mario Solis Marich.

If we lastly consider the words of the "father of the Constitution," we must ask if the unlimited authority assumed granted to Congress to regulate anything it wishes is in accord with the original principle of a government of enumerated powers:

The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State [21].  - James Madison, Federalist 45 (1788)

 and

THE Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution [22].  - U.S. Constitution, Preamble to the Bill of Rights (1791)

and

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people [23].  - U.S. Constitution, Amendment 9 (1791)

and

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people [24].  - U.S. Constitution, Amendment 10 (1791)

In love of liberty,
The Bulletproof Patriot

...and Atlas shrugged

Among the happy, upbeat economic outlook being peddled by the federal government to a somewhat still lethargic and puerile public, news has begun to break that the American economy may potentially be at the threshold of not only a "W-shaped" recession, but, when combined with other poor conditions of our currency, GDP, record low treasury yields, and national debt, a severe economic collapse.

The Hidenburg Omen, an economic harbinger used to predict substantial market corrections by tracking various indicators around the NYSE, has been triggered on four separate occasions within the last two weeks, indicating a high probability of serious market volatility within the next approximately six weeks.

In general, a single cluster of triggering of the Hindenburg Omen has historically resulted in the following:

1. A 77% chance of a market correction of more than 5% within the next 40 days
2. A 41% chance of investors pulling money out of the market in panic
3. A 24% chance of a major market crash

The Hidenburg Omen has correctly predicted every NYSE crash for the last 25 years.

I might remind you that the market crash of 1929 and the resulting depression of the following 10 years were filled with short periods of rapid "recovery," which were hidden within the overall decline of the economy as a whole. America has been here before, and unfortunately for us, we have applied the exact same "solutions" as before - massive federal government debt spending on new social entitlements and public-works projects, reduction of interest rates, abuse of the so-called "discount window," and the general stringing along of the public under the guise that "government is the answer." The result of these policies in the 1930's was drastically prolonged economic depression and a legacy of unsustainable social programs (social security, for example) to burden future, unborn generations for short-term gain.

Hold on to your seats - it's going to be a long, bumpy ride down.

In love of liberty,
The Bulletproof Patriot

[1] http://www.zerohedge.com/article/hindenburg-omen-confirmation-1
[2] http://en.wikipedia.org/wiki/Hindenburg_Omen
[3] http://www.zerohedge.com/article/third-hindenburg-omen-confirmation

Federal Reserve purchases own debt, endangers the dollar

Years ago, the Fed stopped publishing the M3 Money Supply indicator, which was used to measure (among other things) inflation and the amount of money available in circulation.  The M3 indicator is now showing inflation similar to what was seen in the 1930's, probably indicating that we have succeeded in extending this recession by foolishly diving head first into Keynesian economic spending.  The same thing was accomplished during the Great Depression, where the United States prolonged the depression by establishing massive federal government social programs and engaging in debt spending.  The rest of the world did not follow our lead and subsequently exited the depression nearly a decade before the United States.  The depression was only known as the "great" depression here.  Similar action was taken in Japan in the 1990's, which led to what the Japanese now call "The Lost Decade."  Federal debt spending has never worked any time it has been tried.  It is truly a "failed policy of the past" and history bears this out very clearly.

http://www.telegraph.co.uk/finance/economics/7769126/US-money-supply-plunges-at-1930s-pace-as-Obama-eyes-fresh-stimulus.html

Now, the Fed (in the story I sent out earlier) is purchasing US Government debt, or monitizing the debt.  This literally means that the Federal Reserve is printing money to loan to the government, because the government has been much less successful in selling our debts to places such as China recently.  The United States is becoming a money hole and foreign governments no longer recognize us as a good investment - they don't know whether or not they'll get their investment back.  As such, we have resorted to the situation we are in now, where we are taking money out of one pocket and putting it in the other.  (The only alternative is auctioning debts at an increased interest rate or for a shorter period, i.e. 6 months rather than 60, which has been happening for several months.  The problem now is that we can't raise our interest rates high enough to entice foreign interests to invest.)

http://www.bloomberg.com/news/2010-08-10/fed-to-reinvest-principal-on-mortgage-proceeds-into-long-term-treasuries.html

If the current actions continue at this pace, the US Dollar is in serious danger of hyperinflation.  We have already opened all of the valves that the federal government can open to try to stop the recession - there aren't any left to open.  We are in serious risk of not only a W-shaped recession, but a severe economic collapse never before seen in the United States.

In love of liberty,
The Bulletproof Patriot

A Comment on Democracy and Individual Liberty

The Administration is pushing to have an existing law changed to allow the FBI to obtain domestic internet traffic records (i.e. email, access records, etc) - without a warrant.  In addition, the law requires the internet service to remain silent about the request.  This is extraordinarily dangerous and a rapid erosion of individual liberties.  Just another sector of life under the unconstitutional scrutiny of the federal government.  This is in addition to the FCC and DOJ actively arguing in court this year that they are within their rights to obtain domestic emails without a warrant.  Please read:

 

http://www.washingtonpost.com/wp-dyn/content/article/2010/07/28/AR2010072806141.html

 

In addition, there is a dangerous movement afoot to abolish the electoral college among the states.  This is an unveiled move to appeal to popular, direct 'democracy' (please read James Madison's words in Federalist #10 and #14 to learn why a republic was chosen for the United States and the dangers of true democracies).  I might remind you that Hugo Chavez, Hitler, and Mussolini were all 'democratically elected.'  Now, the Massachusetts (story is below) legislature has approved a bill that will award the state's 12 electoral votes not to the winner of the most votes by county within the state, but to the winner of the national popular vote tally.  This is exactly what the founders were trying to prevent - the state is voluntarily giving up its rights and sovereignty to the will of the public.  The Founders expressly warned that such moves would lead to mob rule and the destruction of the rights of a minority.

 

This move follows a similar one made in 1913 (during the Progressive Era of Woodrow Wilson) in which the 17th Amendment was passed, removing the election of senators by the state legislatures and subjecting them to 'direct democracy' - i.e., by direct, popular election of the People of the state.  Why is this important?  Shouldn't the People choose their representatives?  Yes - but in a federal republic, the states' are also represented independently of the People.  This balance was established by having the People represented in the House of Representatives and the States represented in the Senate.  The balance was destroyed in 1913, and now the states no longer have any representation.  Hence the slide of states' rights and the rapid move towards the gigantic, repressive national government we are now experiencing.

 

Federalist #10:

http://www.constitution.org/fed/federa10.htm

 

Federalist #14:

http://www.constitution.org/fed/federa14.htm

 

Mass. Legislature Approves Plan to Bypass Electoral College:

http://www.boston.com/news/local/breaking_news/2010/07/mass_legislatur.html?p1=News_links

 

In love of liberty,

The Bulletproof Patriot

An Open Letter on Health Care

Originally Written on August 10, 2009

Re: H.R. 3200 – America’s Affordable Health Choices Act of 2009


Congressman:
Based on the recent media buzz regarding angry Townhall attendees as “mobs,” “astroturf,” and “un-American” I unfortunately feel the need to establish my credentials before continuing in my comments to you regarding H.R. 3200.

I am 27 years old, a U.S. citizen by birth, well informed, and well educated. My wife was recently laid off from her position at a local law firm due to economic downsizing. I am not a Democrat or a Republican – I no longer believe in the two-party system as a viable, honest, or useful system for governing this Republic. Neither side has shown that they truly understand the fundamentals that our Founders clearly espoused, as so eloquently detailed in the Federalist and Anti-Federalist Papers, Declaration of Independence, and the Constitution of the United States. Both parties have dug this nation deeper and deeper into debt, while wholly abandoning the ideals that have made this country great. Now, it seems, rather than relying on our tried and true American work ethic and reward to the individual for hard work and success, we are sliding faster and faster towards establishing a national government hell bent on intruding into every facet of our life and punishing any attempt to change the new status quo.

I am not funded by any health care provider, insurance company, or pharmaceutical manufacturer. I have not been contacted by any group attempting to organize a Townhall protest or any other political exercise. I am simply writing to you as an individual American who has a strong knowledge of both history and current events and who is paying attention.

My concern with H.R. 3200 lies in several key areas, although the main source of my concern is in the implementation of a so-called “public option.” While the Congress may be acting out of true concern and with good intentions, I sincerely believe that there are two key reasons that such a public option is not only a bad idea, but one that will forever change the health care fabric of this country for the worse:

1.  The establishment of a public option is unconstitutional. The Constitution provides absolutely no authority to the Federal government for the establishment of a system of national, public health care or public insurance. While the statement “promote the general welfare” contained within the preamble to the Constitution has been abused to suggest that the Founders would have allowed a national health care plan, the preamble does not specifically assign any powers to the federal government, nor has the language of the preamble ever been used as a primary factor in any judicial review in deciding a case.

Further, the preamble to the Bill of Rights states unequivocally:

The Conventions of a number of the States having at the time of their adopting the Constitution, expressed desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution. [Italics mine.]

The text of the 10th Amendment to the Constitution reads:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people. [Italics mine]

Additionally, Thomas Jefferson made clear the point that the Constitution did not grant any powers to the Federal Government unless specifically outlined:

I consider the foundation of the Constitution as laid on this ground: That 'all powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States or to the people' (10th Amendment). To take a single step beyond the boundaries thus specifically drawn around the powers of Congress, is to take possession of a boundless field of power, no longer susceptible to any definition. [Italics mine].

“The Tenth Amendment is the foundation of the Constitution.”

“A wise and frugal Government, which shall restrain men from injuring one another, shall leave them otherwise free to regulate their own pursuits of industry and improvement.”

James Madison wrote, in Federalist 45:

The powers delegated by the proposed Constitution to the Federal Government are few and defined. Those which are to remain in the State Governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace negotiation, and foreign commerce; The powers reserved to the several states will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people, and the internal order, improvement, and prosperity of the state.

The Articles of Confederation as ratified in March 1781 and upon which the Constitution was established, stated:

Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by the Confederation expressly delegated to the United States, in Congress assembled. [Italics mine].

Two previous judicial decisions have also expressly found that the federal government has limited power and therefore no role in the direct control of medicine[1]:

Any provision of an act of Congress ostensibly enacted under power granted by the Constitution, not naturally and reasonably adapted to the effective exercise of such power but solely to the achievement of something plainly within the power reserved to the states, is invalid and cannot be enforced. P. 268 U. S. 17.

“Direct control of medical practice in the states is obviously beyond the power of Congress.” P. 268 U. S. 18.

Based upon this evidence, it is clear that the Founders had absolutely no intention of allowing the federal government any powers to legislate on any subject not specifically granted it within the Constitution. Based on this premise, I believe that any form of public health care is unconstitutional. Moreover, the existing federal health care programs such as Medicare are also unconstitutional on this basis, and any attempt to further them in any form will be yet another abuse perpetrated against our Republic.


2.  Medicare and Social Security are already insolvent. The current federal deficit for Medicare and Social Security alone is projected to be $53 trillion by 2019. This does not include the rising national debt which currently stands at $11.67 trillion [updated 3/14/2010 - $12.6 trillion]. Under President Obama’s plan, the national debt would nearly double over the next 10 years, putting us in the hole for nearly $75 trillion. What is the kicker? This doesn’t include any new spending on Universal health care or any “public options.”

Now I know, the provisions in H.R. 3200 aren’t really Universal health care, just an option to compete with private health insurance with a goal of driving prices down. Of course, since the federal government has no incentive to turn a profit (for a good example look at Amtrak, which has required a federal bailout every year for the past 40 years of its operation), the public option insurance premium can be held artificially low which will drive more and more people to suckle at the government teat, thus reducing the size and scope of private insurance rolls. Add to this new taxes on individual’s who have employer-sponsored private insurance, taxes on those who don’t have any health insurance (amazing, I know), and a tax on small businesses who don’t offer any health insurance, and in effect the federal government has tilted the playing field. More and more people will join in on the public option until private insurance is not able to compete, because after all, in the private sector a profit must be had for the insurance plan to be fiscally viable.

Let us make no mistake in defining exactly what President Obama is looking for in terms of health care reform:

“I happen to be a proponent of a single payer universal health care program. I see no reason why the United States of America, the wealthiest country in the history of the world, spending 14 percent of its Gross National Product on health care cannot provide basic health insurance to everybody. And that’s what Jim is talking about when he says everybody in, nobody out. A single payer health care plan, a universal health care plan. And that’s what I’d like to see. But as all of you know, we may not get there immediately. Because first we have to take back the White House, we have to take back the Senate, and we have to take back the House. [2]”

“Someone once said to me, ‘this is a Trojan Horse for single-payer.’ I said, well it’s not, a Trojan Horse, right? It’s just right there! I’m telling you! We’re going to get there over time, slowly, but we’ll move away from reliance on employment-based health insurance, as we should, but we’ll do it in a way that we’re not going to frighten people into thinking they are going to lose their private insurance. We’re going to give them a choice of public and private insurance when they’re in the pool, and we’re going to let them keep their private, employment-based insurance if their employer continues to provide it.” - Dr. Jacob Hacker, July 21, 2008

“But I don’t think we’re going to be able to eliminate employer coverage immediately. There’s going to be potentially some transition process, I can envision a decade out, or 15 years out, or 20 years out…”

“I happen to be a proponent of a single payer Universal Health Care program [applause]…”

“A single payer health care plan – a Universal health care plan, that’s what I’d like to see.”

Based on both of these points, although more directly on the former, it is clear that the Congress has no authority to enact legislation creating any form of national health insurance or health care, any form of national insurance exchange, or any mandate of requiring an individual to purchase a private good or service of any sort. The provisions contained within H.R. 3200 are unconstitutional and should be rejected on this basis alone.

If Congress wishes to enact some form of health care legislation, I would suggest that it begin by removing federal legislative controls preventing the purchasing of insurance policies across state lines. Consider this – there are approximately 1,400 private health insurance companies in existence in the United States. However, a resident of New York City, as a result of both federal and state legislation, only has access to less than a dozen. This is the direct result of Progressive legislative controls on commerce.

In love of Liberty,

The Bulletproof Patriot

1. Linder v. United States, U.S. 1925.

2. Obama, B. 2003; Available from: http://www.breitbart.tv/obama-in-03-id-like-to-see-a-single-payer-health-care-plan/