« NATO Ministers Support McChrystal — Easy For Them To Say
A Refreshing Speech from the Floor of the Ohio House of Representatives »
Nancy Pelosi’s Perfect Answer to a Perfectly Ridiculous Question
The question, which came from a reporter for the right-wing Internet publication CNS.com:
“Madam Speaker, where specifically does the Constitution grant Congress the authority to enact an individual health insurance mandate?”
And Speaker Pelosi’s answer:
“Are you serious? Are you serious?”
Pelosi moved on to the next question; later, Pelosi’s press person, Nadeam Elshami, told CNS, “You can put this on the record. That is not a serious question.”
Ed Morrissey, of course, concludes that Pelosi did not answer the question because she lacked an answer and did not know what else to say:
Pelosi avoided answering the question, probably because she doesn’t have an answer. Her spokesman said that it was “not a serious question,” but if so, one would presume that Pelosi or her office could provide an easily-corroborated answer. After all, the Constitution is where Congress derives all of its authority. It’s not exactly a lengthy document. How difficult is it to cite the clause that enables Congress to impose a mandate on its citizens to spend money on anything but a tax?
Well, as it turns out, pretty darned difficult. The interstate commerce clause doesn’t apply because Congress doesn’t allow for interstate commerce in health insurance. The “general welfare” clause has never applied to individual mandates, which is why neither Leahy or Pelosi will invoke it publicly. If they trot that out in front of the Supreme Court, they’ll essentially be arguing that the federal government has the authority to impose any kind of mandates at any time on anyone in the country, which makes the limitations of power in the Constitution meaningless — and by extension, makes the Supreme Court meaningless as well.
It’s more likely that Pelosi was at a loss for words because she could not decide which of the thousands of laws Congress has passed in the past 220 years could stand if each one had to be explicitly authorized by the Constitution:
I am particularly perplexed/annoyed by the conservative assumption that unless explicit text directly authorizes a legislative enactment, then Congress necessarily lacks the power to pass the law. This is a extraordinarily foolish and unsupportable view of the Constitution. The Constitution is written in general terms; only a few provisions define individual rights and governmental powers with precision. To make this point more concrete, I quote from a previous essay on the subject:
It is absolutely absurd to ask whether the constitution specifically or explicitly allows Congress to regulate or reform healthcare. The Constitution speaks broadly and ambiguously. Only a few provisions are specific and beyond dispute (like the age requirement for presidents and members of Congress).
The Constitution does not specifically or explicitly authorize the creation of the Air Force or Medicare, nor does it discuss the federal prosecution of crack cocaine possession. And the “Framers” certainly did not specifically contemplate airplanes, prescription drug and hospital plans for seniors, or crack cocaine because these things were not realities when they wrote the Constitution.
If conservatives only believe Congress can regulate things that are explicitly mentioned in the actual text of the Constitution, then they should essentially advocate the abolition of the federal government. At a minimum, they should seek the immediate repeal of laws banning partial-birth abortion and kidnapping; the Constitution does not mention children or abortion.
Also, as many students of high school and college civics classes know, Article I of the Constitution contains the “necessary and proper” clause, which endows Congress with unenumerated powers that are needed to carry out its expressly delegated powers. In the very first case interpreting this provision (McCulloch v. Maryland), the Supreme Court rejected the narrow interpretation offered by anti-federalists.
Many of today’s conservatives pretend that the Necessary and Proper Clause does not exist or that courts can only interpret it conservatively. Nothing in the history of the clause or the Court’s interpretation of it compels an exclusively narrow interpretation.
As Ed himself says, “It’s not exactly a lengthy document.”
131 Responses to “Nancy Pelosi’s Perfect Answer to a Perfectly Ridiculous Question”
“I am saying we have not stepped over any bounds because the Constitution does not establish those bounds”
You are mistaken, Kathy. There are such bounds. It is up to you to explain (prove) why what you want or what is sought lies within those bounds, not outside them.
We have US as well as state citizenship. The concept of citizenship has meaning in the modern welfare state that establishes a direct relationship between the federal government and its citizens, that may be the subject of some laws. We have civil rights laws, for example, that proscribe behavior by citizens that is injurious to other citizens. But note that these are constraints, and otherwise behavior is not the proper object of legislation. There are few positive commands on citizens, other than to pay taxes (and even then, most laws and interventions by the federal government are related to proscribed offenses, such as failure to pay taxes, or evading them). Intervention of any kind, but the greater in scope, the more so, such as anything compulsory or “mandatory,” must be justified by proponents of it. That is even more fundamental than the related issue that government is properly viewed as a necessary evil (and no substitute for private individuals and behavior), and should be minimized. The burden of proof of government intervention, in this country, lies on the advocates and proponents of compulsory behavior.
Where is the justification? You must explain not only why the federal government can do this, but even more importantly (and imperatively), why it should.
“So it's at least reasonably arguable that requiring citizens to have health care, and health care reform in general, is a part of the general welfare, and thus included in Congress's power to legislate.”
This does not follow from the “general welfare” clause in Article 1 Section 8 of the U.S. Constitution.
Neither compulsory purchase of insurance (even though it's a prelude to paying tax for federally controlled and provided health care in the future, once the private insurers are replaced) is justified by this clause, nor can one stoop to a very low intellectual plane, as many left-activists do, and say the word “welfare” justifies commonly-known government “welfare programs” or anything else with that name.
Try again, Ma'am.
Jeff Davis and Nic Rivera: The dispelling of the myth that “general welfare” is a grant of broad general powers to the federal government, and the amelioration of concerns of critics of the Constitution on this basis (which was scoffing at how pathetic the argument was), is found here, among the Federalist Papers. (See below.)
Federalist #41 (Madison):
“Some, who have not denied the necessity of the power of taxation, have grounded a very fierce attack against the Constitution, on the language in which it is defined. It has been urged and echoed, that the power “to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States,” amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction.
Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms “to raise money for the general welfare.”
But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon? If the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity, which, as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the Constitution, we must take the liberty of supposing, had not its origin with the latter.
The objection here is the more extraordinary, as it appears that the language used by the convention is a copy from the articles of Confederation. The objects of the Union among the States, as described in article third, are “their common defense, security of their liberties, and mutual and general welfare.” The terms of article eighth are still more identical: “All charges of war and all other expenses that shall be incurred for the common defense or general welfare, and allowed by the United States in Congress, shall be defrayed out of a common treasury,” etc. A similar language again occurs in article ninth. Construe either of these articles by the rules which would justify the construction put on the new Constitution, and they vest in the existing Congress a power to legislate in all cases whatsoever. But what would have been thought of that assembly, if, attaching themselves to these general expressions, and disregarding the specifications which ascertain and limit their import, they had exercised an unlimited power of providing for the common defense and general welfare? I appeal to the objectors themselves, whether they would in that case have employed the same reasoning in justification of Congress as they now make use of against the convention. How difficult it is for error to escape its own condemnation!”
Sadly, the Founders didn't understand the “distress,” or the extent, or rather the intellectual and moral depths to which modern leftists would descend in attempting to justify seeing their ends met in any way.
Look at the bright side. With all the false arguments the lefties have made over the decades, at least they haven't gone crazy yet with misuse of the word “right” (as in “right to health care,” here) to uncork the Ninth Amendment genie (as some of us feared the more fervent ClintonCare advocates and Hillary Clinton herself, in particular, were possibly going to do during the early 1990s).
Professor Elwood:
Many were still suspicious that power would be sought anyway by the feds — which is why something actually redundant was added, to clearly state this, and make it not an issue (sadly, not true among so many nowadays): the Tenth Amendment.
At least New Dealers like Tugwell were honest that they were inverting it (for the federal government, “what is not prohibited may be undertaken,” along with 100% federal supremacy, of course, over those pesky state and other governments) because the Constitution was an encumbrance.
Nowadays, caught in the wrong, lefties are usually more desperate. I've even encountered the deliberate misconstruction of the Tenth Amendment, completely bypassing “the United States” and saying that “the people” is the federal government (“the United States”) because the federal government (“the United States”) is the agent or representative of the people.
The only basis for such an easily dismissible piece of garbage for an argument is one that is strictly literal, but which exposes their hypocrisy and which is truly delectable. They must be bypassing the scope of the first part of the Tenth Amendment and claiming additional powers because of the extra words in the first part of the Amendment,
“delegated to the United States by the Constitution”
are too limiting(!).
[skewering lefties on a sword]
“Kathy absolutely refuses to taken into consideration, any writings of the Founding Fathers.”
Never mind that the scope of what was written and approved may be reasonably (ah, that isn't enough to underpin what lefties want!) be extended to modern times. Never mind that the Constitution has been amended since then, and — *** AHEM *** — may be so changed today if lefties can get others to agree to this.
Note that this is selective. Some things are disparaged or dismissed. The Second Amendment, first and foremost, by many activists. But not the First Amendment, that dastardly creation of powdered-wig evil wealthy white male hierarchists-patriarchists. (In fact, the First Amendment is seized on by activists to justify all kinds of inapplicable, offensive misconduct.) Nor anything else that can be creatively used by courts as a political weapon to mean what leftists want it to mean. Much of the Founders' work (or what is said to be it) is, in fact, valued. (So is stuff not done by the Founders, like the Fourteenth Amendment, but this, too, is mishandled…)
Referring (selectively and hypocritically!) to the Founders or other objects improperly doesn't support their position.
DLS,
Thanks for expounding on the general abuse of the US Constitution – this abuse is a real tragedy since your Consitution was the result of the hard work of great intellects, liberty lovers, and ultimately the greatest known experiment in self government.
The animating spirit behind America has been systematically and thorougly perverted by the so called “progressives/liberals/closeted socialists”.
As much as I agree with the conservative viewpoint on this issue, i am afraid that this is a losing battle.Since the advent of the New Deal, modern liberalism has been built on coercion and federal mandates – Social Security and Medicare are the two most prominent examples.
Who in their sane and rational mind would ever contribute voluntarily and freely to Ponzi schemes like Social Security and Medicare? And if they are indeed so great, why not let people choose it freely instead of being mandated ?
When I hear that there is a proposal for States to “opt out” of the public option, I wish why this “opt out” principle HAS NEVER EVER BEEN applied to Social Security, Medicare ?
I guess some mandates are “more good” than other mandates.
Honestly and to be fair SB, this thread has really turned into a more partisan discussion of Federal overreach in general. And neither side can claim the high ground on that.
Conservatives (not the Republican Party, mind you) and Libertarians do believe in limited Government, as defined by the Constitution. While the Republican Party gives lip service to the concept, in reality they are almost no better than the Democrats, who are unabashed Federalists, or worse.
The quote does not exist.
In fact, when asked why the Constitution contained no reference to God, Alexander Hamilton replied, “We forgot.”
One of the funniest quotes by a Founding Father ever, IMHO.
To be more precise, “general welfare” includes things that benefit the people as a whole, but “specific welfare” benefits one person at a time. General welfare would include defense, which benefits everyone in the country, roads, which benefits all those in the area, and standardized currency, which benefits all who engage in trade (just don't ask me about the Fed). If you have to write a check to one person (other than someone who is working for the government, like a sailor), that's specific welfare, which can be done, constitutionally, only by the states.
Hot Air: Not quite understanding the word mandate
http://hotair.com/archives/2009/10/24/not-quite…
Not having an influenza epidemic like the one of 1918 would generally be considered to be in the “general welfare”.
I Imagine that the “Conservative Constitution” would have poll taxes so that only men of property could vote, make military service obligatory, explicitly ban unions, make debtors prison legal, reinstate slavery, and make “Christianity” the state religion.
“Thanks for expounding on the general abuse of the US Constitution – this abuse is a real tragedy since your Consitution was the result of the hard work of great intellects, liberty lovers, and ultimately the greatest known experiment in self government.”
Thank you, too. (And I'm sorry I flubbed spelling your name correctly, earlier.) Too many in this country are ignorant of the obvious(!) facts and willingly so, and even when shown they are demonstrably (even laughably or risibly) incorrect, they don't care or are angrily defiant about it (and contempuous of those who know better, and question impropriety, as you can see with Pelosi's example — though note that it is also a consequence of concentration and corruption by power, and at least some elitism at play in her case).
“i am afraid that this is a losing battle”
I agree. The trend is obvious. (Many Republicans are happy with “Big Government” and with buying votes.) There's a big history of “accomplished fact.” At this point I say we just have to be wary here, watch our wallet, prepare always for unfortunately damage control after more damage is done — “water under the bridge” isn't the end of the story, but just the story to date; the flow and flood-trend continue.
“I wish why this 'opt out' principle HAS NEVER EVER BEEN applied to Social Security, Medicare ?”
Actually, this merits a postscript: I've written before that once we have universal federal health care (we can't afford a guaranted income for everyone, too), at that point, duplication of government program health services, any kind of “private option” (the opt-out you refer to), will be prohibited, of course. To use a word current advocates misuse: The last thing that government universal-participation advocates will tolerate is (real) COMPETITION. (Voila!)
And as for Social Security and Medicare, well, the Trustees have warned people for ages, but the fools insist on not heeding the warnings. The problems will begin as soon as deficits begin in earnest and redeeming the bonds for these programs requires additional new revenues in order not to reduce benefits.
“Agreed the 17th should be repealed.”
The Senators should be super-ambassadors, with plenipotentiary powers in Congress over their states.
Modern trends see us changing instead to elect the President directly, for example. (About all we can hope for is that with abolition of the Electoral College we see resolution of the clusiness of the election and the office of the Vice President.)
” didn't see the arguement regarding the Ninth Amendment that states that it should not be assumed that people do not have a right to something just because it's not specifically mentioned”
The Ninth Amendment genie has yet to be uncorked and support bogus claims of federal positive “rights” (benefits, entitlements, claims on the taxpayers or on Someone Else's Money, health care as a “human right” [sic] that should be provided by the federal government, et cetera).
It means there are rights (real rights, liberties) that cannot be presumed not to exist because they are not mentioned, that the federal government is not obliged to respect only those rights that are enumerated (just as it may not be presumed that the federal government has broad, unlimited powers).
That it is subject at any time to being misconstrued to support claims to “rights” [sic] and power of the federal government to provide more entitlements or do intervene to support claims to “rights” [sic] has long been a concern.
Nic,
That quote was made in 1778 in an address to the Virginia Gerneral Assemby. Perhaps you should have spent more than fifteen minutes on the research. Snopes is great to eliminate urban legends about a boy who ate his own foot, or for disproving chain mail assertions that dell will give you a new computer if you send out so many emails. Snopes' ability to provide research in the political or spiritual arena is not, for lack of a better word, dependable.
My main purpose behind listing these quotes was to underscore that we have drifted away from what the Founding Fathers originally intended. Not only have we done this politically, but spiritually as well. We are, indeed, a pluralistic society where religion is whatever you want it to be, but the Founding Fathers knew that our Constitution would not and could not survive without a higher power embraced by all who serve under it – the diest God. You may call Him what you want “God, Jehovah, Allah, Vishnu, etc”, but He should remain a part of the national fabric. This is not a religious right wing assertion. It is the same assertion that Jefferson, Adams, Hamilton, etc… had.
Let's see how you do with these:
John Quincy Adams:
Is it not that the Declaration of Independence first organized the social compact on the foundation of the Redeemer's mission upon earth? That it laid the cornerstone of human government upon the first precepts of Christianity”?
–1837
Benjamin Franklin:
“ God governs in the affairs of man. And if a sparrow cannot fall to the ground without his notice, is it probable that an empire can rise without His aid? We have been assured in the Sacred Writings that except the Lord build the house, they labor in vain that build it. I firmly believe this. I also believe that, without His concurring aid, we shall succeed in this political building no better than the builders of Babel” –Constitutional Convention of 1787
Alexander Hamilton:
For my own part, I sincerely esteem the Constitution a system which without the finger of God, never could have been suggested and agreed upon by such a diversity of interests.” – 1787 after the Constitutional Convention.
Thomas Jefferson:
“God who gave us life gave us liberty. And can the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are a gift from God? That they are not to be violated but with His wrath? Indeed I tremble for my country when I reflect that God is just, and that His justice cannot sleep forever.” – 1781
Noah Webster:
No truth is more evident to my mind than that the Christian religion must be the basis of any government intended to secure the rights and privileges of a free people.” – 1828
George Washington:
“reason and experience both forbid us to expect, that national morality can prevail in exclusion of religious principle…” – Fairwell Address.
“ It is impossible to rightly govern the world without God and Bible.” – 1778
http://www.eadshome.com/QuotesoftheFounders.htm
Don Quijote,
Thanks for re-stating liberal paranoia – and yes, thanks much for being so concise and not letting lose another angry leftist rant…the internets is chock full of these anyways
“Welfare does mean health by your own definition”.
Yes, MSF, it does. It means GENERAL health, not INDIVIDUAL health. In this context, the government should guarantee clean streams or clean water for all to use, and provide for sewage treatment and clean air, NOT make sure I do not have polyps in my intestine or make sure I have pills to treat a cold.
That is the intrinsic difference between liberals (federalists) and conservatives. You see welfare as an individual right when the Constitution states general right for the populace. The healthcare bill is for individual health, not for health of the populace. Thus it is unconstitutional.
DLS,
The whole idea of the Government providing “competition” is truly the most diabolical thing in the whole narrative for a public option – we are supposed to forget that there are Govt mandates upon mandates on what an insurance policy must look like, who it can and should cover etc..
Increased mandates has only lead for a transfer of costs of conforming to these mandates to the consumers. Not to mention, competition is explicitly prohibited by Government in not allowing insurance companies to provide access across state lines. imagine living in illinois and being told that you can buy a laptop/PC ONLY if the manufacturer happens to be doing business in Ilinois !
And these are the same people talking about competition – positively Orwellian
“The whole idea of the Government providing “competition” is truly the most diabolical thing in the whole narrative for a public option … these are the same people talking about competition – positively Orwellian”
Oh, nobody with a warm-to-the-touch IQ believes the “competition” that the proponents refer to. There is no such thing (or “keeping the insurers honest” and all the rest of their nonsense). This is merely a new governmental alternative that is presented with the obvious intention and objective of displacing, then later of replacing, the private sector (called “crowd-out” or “crowding out” in this light). “Competition” is a label and handy euphemism for what is actually sought and undertaken, federal government takeover.
Which is why we have no actual conservative party because both are federalist. One side wants to impose its social views on everyone else, which is in no way shape or form liberty, but they focus on economic liberty at least the type they agree to(meaning you can buy and sell what they do not outlaw) but they of course are the party that was founded on federalism, the Republicans. The other party wants to impose its social programs on everyone else and though they have a good deal of respect for social freedoms that is about all they believe in.
Both sides parse words to get the constitution to look like it is on their side when in reality both are no where near what is in the document. Libertarians from my point of view are the only ones with any moral high ground when it comes to our founding documents and that is only until they vote R or D, this includes me, since both trample all over the founding documents.
Corporations should only function in the interest of the public good and when they are no longer needed or become harmful should be dissolved which neither side supports. We should not have a standing army and if we did it would merely be a skeleton crew for maintenance of our physical equipment in the interest of DEFENSE which is not how we have used our military with the exception of Afghanistan and WWII(and only against Japan but an argument could easily be made against Germany since it was Japans partner) which neither side supports. We should have a TINY federal government with states having full rights to do as they wish and the commerce clause has been so bastardized at this point I would guess the founding fathers would prefer it had never been written which again neither side supports. Empire America is a direct assault on our founding documents and neither side nor the ruling class will ever accept that.
I move to the left in direct correlation to inflationary spending in the interest of personal survival(when the dollar is stable and tied to say gold and handed out by banks its yours, when the federal gov creates any entity to print money when ever it chooses in the interest of creating inflation the money is not yours only the paper is which of course is how our system works), short of us finding someone like say Ron Paul that would actually melt the Fed I see little liberty for anyone and both sides just look silly trying to say that they are closer to the founding fathers ideals when in reality they are equally wrong. I am also a gun bunny but the arguments for the second amendment are also word parses so you may wish to consider that when judging word parses but from my point of view welfare=health care just like the second amendment=personal unregulated gun rights for individuals and I actually agree with both because it gives me greater liberty though the reasons for my feeling greater liberty are different.
Let me take on some of the arguments here.
First, the use of the Preamble. Hate to tell you this, but the Preambles, both of the Constitution proper, and the clauses thereof, are going to get you laughed out of court, since they are not binding at all. Hence why every single copyright case challenging something as a useful art or science has come out as upholding the Copyright insofar as it is at least a useful art or science. Same reason that Heller v. DC came out the same way, because the “Well Regulated Militia” clause is preambulatory and carries no weight. So the Preamble is out.
Now let's move to the general welfare and national defense clauses of Art. I, Sect. 8, as well as the Necessary and Proper clause thereof. You can't use those, because you need a program otherwise constitutionally justified to use those clauses. So otherwise, if you want to use those clauses, you need a constitutional program already to use those clauses. The Necessary and Proper clause, as well as the other clauses herein mentioned, merely allow the Congress to enact laws to make effective an already constitutional program.
Then there's the Interstate Commerce Clause. This is the best argument in existence. The argument I would make in court is that because the Congress can keep people from buying insurance interstate, the Government can regulate the industry. So it would allow only regulation of the insurance industry, not a public option.
Finally, there is the Ninth Amendment, which is completely inapposite. We do not protect positive rights, such as a right to healthcare. The Ninth Amendment has never been read to protect positive rights, merely negative rights, that is, Government shall not interfere with this right. The concept of a positive right is that you have a right to something, like healthcare, or a clean environment. A negative right, however, is just the right to be free from government interference with some activity, such as free speech. The Ninth Amendment does not protect you so that the Government will give you a right. No, it just keeps the Government from interfering with a right you have to make your own choices.
So, for that reason, Speaker Pelosi, and the drafters of the healthcare legislation still need to answer the question, because nothing already offered can be used.
[...] but occasionally one runs across a post that is unbelievably moronic even by Lefty standards. This post at The Moderate Voice, by Kathy Kattenburg is an illustrative example: Pelosi was at a loss for [...]
Do people really fall for this false analogy equating individual health care and national defense? This is an apples-and-artillery comparison.
The federal government has a Constitutional mandate to provide for the national defense. Therefore, as military technology evolves, so must the military. Thus, Air Force. No “spirit” required.
There is no Constitutional mandate to provide for – much less impose – individual health care insurance for all American citizens (and, by practical necessity therefore, all legal and illegal aliens). There is nothing in the Commerce clause that gives government the authority to mandate the purchase of individual health insurance, either privately or publicly.
Pretending that “implied” powers can be defined as “anything the government can dream up using 'general welfare' as an excuse” is not only intellectually dishonest, but specifically and emphatically rejected by Madison in Federalist 41.
Why do you biblical literalists “take a leak” to use your memorable words, on 95% of the Bible, and only take the remaining 5% literally? How is it that, as a Christian, you can speak so harshly and judgmentally about poverty and sickness? When you can give me an answer to those questions that makes any sense at all, then I will give you a 2,000-word essay on why the physical and mental health and well-being of individual Americans is part of the general welfare of all Americans.
No, it wasn't. This is what the reporter asked: ““Madam Speaker, where specifically does the Constitution grant Congress the authority to enact an individual health insurance mandate?””
Okay, AD, let's do a little role-play here. I'll be Nancy Pelosi, you be the CNS reporter. You have asked your question, above; now I answer, realizing of course that you are not asking me to tell you where the literal language is in the Constitution to allow Congress to enact an individual health insurance mandate:
NP: Congress has the authority to enact laws regarding the regulation of interstate commerce. The selling and purchase of health insurance is part of interstate commerce.
How do you respond?
The limits to congressional power are enumerated in the Constitution — I quoted them above. Again, as we all agree, these are general categories that cover specific laws implied by the categories. If the need for a specific service or action or policy is implied under one of Congress's enumerated powers, Congress has the authority to enact that law.
Awesome, nicrivera.
Yes, armies. Not an Air Force. The Air Force is not “armies,” and the Founders certainly did not have airplanes in mind when they referred to “raising armies.”
I believe I have answered your question about “general welfare” several times above, to other commenters. Furthermore, your question, in the way you have parsed it, is unanswerable. You cannot give an affirmative answer to a negative question. Certainly, however, public programs and government-subsidized programs that address problems of hunger, homelessness, income loss, et al., are implied by the general welfare clause.
Do you have a link to a cite for that quote, AR?
[...] [...]
“paranoia”?
I think not…All you need to do is read the 2008 Texas Republican Party platform…
Does the word THEOCRACY ring a bell?
JeffersonDavis,
I continue to have my doubts regarding the authenticity of the James Madison quote.
You cite as evidence for the quote http://www.eadshome.com/QuotesoftheFounders.htm, a religious conservative's website. On both the page you linked to and on the site's James Madison page, it mentions the quotation, followed by its source: [1778 to the General Assembly of the State of Virginia]. Yet it does not cite any written document or link to whatever resource was used to verify the authenticity of the quotation.
Perhaps I'm being a wee bit picky on this one. However, it would not be the first time a quotation was falsely attributed to a famous person. People seem to take delight in posting such quotations on political blogs and forwarding them in emails, but as with political soundbytes in general, not a lot of effort is taken to verify that the quotations that they are passing along were correctly atributed.
I find it odd that whenever I want to ascribe political views to any of the Founding Fathers, I am typically able to find credible resources to verify my claim–whether it is the Federalist Papers or documents or letters that have been preserved by the Library on Congress. Yet whenever a religious conservative wants to ascribe religious views to the Founding Fathers, the primary resources to verify the authencity of the quotation is rarely to be found.
The fact that so many of the Founding Fathers uttered quotations mentioned God is hardly surprising, as all of the Founding Fathers professed a belief in God. Yet the efforts by some of today's religious conservatives to tie some of our Founding Fathers to the idea that the United States was founded as a Christian nation or that our laws have their basis in the Bible or the Ten Commandments–this is something I find baffling, particularly when it comes to people like Benjamin Franklin, Thomas Jefferson, and James Madison, whose religious views were quite different than many of today's religious conservatives. Jefferson was a deist whose version of the Bible removed all references to the divinity, miracles, and resurrection of Jesus Christ. Franklin and Madison professed some deist sympathies, though to a lesser extent. And Madison's writings make very clear the dangers he saw of mixing politics with religion (as referenced in my earlier post, which cited an original document).
If the need for a specific service or action or policy is implied under one of Congress's enumerated powers, Congress has the authority to enact that law.
In many cases, yes. In all cases, no – otherwise the power of Congress is essentially limitless.
As I mentioned in another thread, there is a dispute between some states and the federal government over marijuana. These states believe Congress does not have the power to prevent them from legalizing it in certain cases. I think a provision that forced, from the federal level, individuals to purchase health insurance from private companies or a public option should and will be challenged as well. In short, I don't think it's the open-and-shut “ridiculous” case that you and Rep. Pelosi seem to think it is. There is a reason there is not a federal auto and homeowner insurance mandate – because such provisions have been viewed as a clear state responsibility.
For similar reasons, the federal government could not force the states to adopt other measures like the 55mph speed limit and the 21 drinking age. They compelled the states to change state law by threatening to withhold federal money, not through fiat. If the federal government and Congress thought they had the authority to mandate those provisions they would not have used extortion to compel states to change state law.
I don't see much difference between these cases and the federal insurance mandate. Congress could go the extortion route (adopt the mandate, states, or no more federal medicare money for you) and that would be constitutional. A federal insurance mandate by fiat, on the other hand, is definitely of questionable constitutionality whether you choose to believe it or not.
What if, for instance, a state wanted to change the mandate as it applied to it's state? Or what if the state nullified the mandate?
Yes, armies. Not an Air Force. The Air Force is not “armies,” and the Founders certainly did not have airplanes in mind when they referred to “raising armies.”
They didn't have tanks and machine guns or a ton of other stuff in mind either. Unless you think Congressional authority is limited to purchasing muskets, horses and smooth-bore artillery, Congress has the explicit enumerated power to equip and sustain the armed forces including aircraft, tanks and all the rest. That some of this military equipment is sustained and organized in an organization that doesn't have “Army” in the name does not magically make it unconstitutional. The idea that air forces, tanks, machine guns, etc. are only constitutionally legitimate if they are part of an organization with “Army” or “Navy” in the name does not make much sense to me.
“How do you respond?”
Thank you, Madam Speaker, for your respectful answer. If I may ask you a few follow up questions:
1) How do you respond to those who would argue that an individual mandate to buy health insurance does not fall into the category of health insurance regulation, but is more accurately a regulation of individual private behavior? Can you give an example of another industry that is regulated at the federal level by forcing the consumer to buy their product?
2) Would you argue that any proposed law is constitutional as long as its stated purpose is to regulate health insurance? If not, what additional requirements must a proposed law meet in order for it to be constitutional, in your opinion?
(In honesty, if I were a reporter, I would probably not ask those questions depending on the setting. I would record her answer and report it, and let the public decide if her answer is sufficient. The questions above would be what I would ask if I, as private citizen, had an individual interview with her.)
The originalist argument is wonderful. I wonder if you'd consider advocating for a complete disbanding of the professional standing army as well?
In honesty, if I were a reporter, I would probably not ask those questions depending on the setting.
Yes, indeed — and I doubt that the actual CNS reporter would have asked the hypothetical questions you asked, either. I think if Pelosi had responded in the way I hypothetically wrote, and if the reporter had then asked a follow-up question, that question would most likely have been, “Yes, but where is the specific language in the Constitution that gives Congress the power to require Americans to buy health insurance?” Or “Yes, but where does the Constitution say that interstate commerce includes health insurance” or something else similar to those.
No matter how you slice it, dice it, or parse it, AD, the CNS reporter was clearly, plainly, and obviously asking, expecting, and wanting a very literal answer from Pelosi.
A few other points, including some that have either been lost, or are being ignored.
1. According the Federalist paper #41 (quoted twice on this thread), “general welfare” included no power on it's own. To repeat that it does is to dismiss that document, and presumably all other federalist papers.
2. According to Article I, section 8 (also quoted on this thread), there is supposed to be a standing Navy, but not a standing army. If skilled tank drivers are required, then they must be allowed to take the tanks home, put under state militias, put under the Navy, or a constitutional amendment must be passed to allow that standing army.
3. The constitution is not really considered a document of authority by the federal government or the supreme court. Jefferson himself violated it when he established the department of education, and made the Louisiana Purchase. Constitutional law is more of a study in how the constitution has been manipulated rather than what it is supposed to mean.
4. Many conservatives don't care about the constitution either. Just find a Wall Street Journal article on extraordinary rendition or warrant-less wiretapping, go to the comment section, and see how they treat those who argue for the constitution.
5. The current push for the public option is not to create real competition. McCarran-Ferguson is how the government purposely destroyed competition. If they wanted real competition, they would simply repeal it.
Finally, I have to respond to Kathy's comment that Christians (ahem) ignore 95% of the Bible. If you're referring to compassion on the poor, I can quote the statistics that liberals substitute activism for charity, and are much more likely to believe that it's their job to force someone else to help the poor, and much less likely to do the job personally.
So it's not the reporter's question you object to, it's the hypothetical follow-up question that you assume she would have asked?
“No matter how you slice it, dice it, or parse it, AD, the CNS reporter was clearly, plainly, and obviously asking, expecting, and wanting a very literal answer from Pelosi.”
As opposed to a figurative answer? Yes, the report expected a literal answer. The answer you gave, although debatable, at least would have been a legitimate answer to a legitimate question. Arguing about what the reporter hypothetically might have asked next seems to be a waste of time to me.
Arguing about what the reporter hypothetically might have asked next seems to be a waste of time to me.
As does arguing about what the reporter “clearly meant” as opposed to what the reporter “clearly said.”
As opposed to a figurative answer? Yes, the report expected a literal answer.
No, as opposed to an answer that responds to an implied question. The reporter asked, “Madam Speaker, where specifically does the Constitution grant Congress the authority to enact an individual health insurance mandate?” You contend that this question really means, “Which of Congress's enumerated powers implies the authority to enact an individual health insurance mandate?” That's not what the reporter asked. It's what you insist the reporter meant. The literal meaning of the reporter's question is the plain, unambiguous meaning of the words he used. And I would further argue that if the reporter had not intended his question to be taken literally — if, indeed, his actual intended question was implied rather than clearly and plainly stated — then one would have expected him to make that clear when Pelosi asked him, incredulously, “Are you serious? Are you serious?” At that point, even if he had not intended a literal meaning, he should have realized that Pelosi was taking his question literally. He could have cleared up the confusion in 10 seconds. If he had half a brain, of course. Which is not necessarily a legitimate assumption.
As I said earlier, it seems to me that the meaning of the question is clear. I'm not arguing that the reporter meant something different than what he said. I'm arguing that what he meant and what he said are the same thing, and that is different from what you apparently believe he meant.
And, as I also said before, I can see how you could have interpreted his words in a different way (although in doing so it seems to me it is you who is making assumptions about what he “meant” versus what he “said”, not me), but given two interpretations–one of which is reasonable and the other absurd, generally we go with the reasonable one.
It's not clear that it should have been obvious to the reporter how exactly Pelosi was misunderstanding when she responded “Are you serious?”. Perhaps Pelosi should have asked her to restate the question if she was unsure of the meaning.
I understand the constitution requires re-authorization of funds to provide for common defense every 2 years in order to guard against potential abuse caused by standing armies, and I understand that the congress does re-authorize funds every two years. I'm admittedly not an expert in the subject, so I would honestly appreciate it if you could fill me in regarding what is unconstitutional about that. From my reading of the federalist papers (specifically number 25) it seems the founding fathers argued that a standing army in peace time is justified:
“If, to obviate this consequence, it should be resolved to extend the prohibition to the RAISING of armies in time of peace, the United States would then exhibit the most extraordinary spectacle which the world has yet seen, that of a nation incapacitated by its Constitution to prepare for defense, before it was actually invaded.”
I agree nicrivera. I have little interest in what the founding fathers said except for what is in the constitution and what they have said to explain what was intended in that document. Other than that, I don't care what religious beliefs or other opinions they might have had.
I think you and Kathy are splitting hairs. The reporter's question was both reasonable and clear, and Ms. Pelosi had certainly heard it 100 times previously.
She dismissed it because she has no better answers than Kathy does to these questions. Like Kathy, she probably recognizes no limits to the federal government's power, save certain parts of the bill of rights. But neither will come out and say that because, well, it sounds kind of extremist.
What nonsense. Yes, obviously Pelosi had heard the question 100 times before if not more, and a stupid question asked 100 times is 100 times more annoying than the first time it was asked. The reason I won't come out and say that I recognize no limits to the federal government's power is because I don't hold that view and never have stated or implied that I hold that view.
I certainly hope that in the future you will attempt to get angry about what I've said and not about what I haven't said.
Actually, that's not exactly what I was getting at with that comment, Elwood. I was referring back to a lengthy argument JD and I had in the comments section of another post. I'm sure JD understood the reference.
Let's just review the facts, Kathy. I asked you twice to name something the government may not do, and you couldn't. The best you could manage was to point to the totality of article 1, section 8, which–if one swallows your unbounded interpretation of “general welfare”–permits anything at all.
You even claimed the question is impossible to answer. It certainly isn't, and people who believe in constitutional limits would have no trouble coming up with an example or two. It seems clear you're simply not among those people.
Why don't we just get it out in the open: you don't believe there should be limits on what government can do in the name of the public good. It will come as a surprise to none of your readers. Sorry you're the last to know.
Do you have a link to a cite for that quote, AR?</>
I cannot find a definitive source (busy working on the house), but here is a reference to it:
http://www.thenation.com/doc/20050221/allen