By Joseph Arminio
WASHINGTON - The adoption of Barack Obama's signature legislation, the Obamacare takeover of health care, was in violation of the U.S. Constitution, according to one outraged member of Congress.
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But perhaps there shouldn't be any surprise, as Obama previously has advocated that the nation should move beyond the "constraints" of the founding document.
That happened in 2001 when Obama told Chicago radio station WBEZ-FM that the U.S. has suffered from a fundamentally flawed Constitution.
Now U.S. Rep. Louie Gohmert, R-Texas, a former judge, is joining the chorus of those who challenge the constitutionality of Obamacare. Some, such as those mounting a challenge before the U.S. Supreme Court, argue it is unconstitutional on the grounds of what it mandates – the purchase of insurance. Gohmert argues that it is unconstitutional because of the way it became law.
He is upset because the bill violates the "origination clause" of the Constitution, namely, Article 1, Section 7, which requires, "All bills for raising revenue shall originate in the House of Representatives."
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Moreover, the breach of the "origination clause" encompasses Obamacare as a whole – the bulk of the law dealing with health care – as well as a portion that references a new national security force, what some have called Obama's "private army."
In fact, Gohmert said, there's no clear trail exactly where the law originated.
Obamacare 'comes out of nowhere'
In the summer of 2009, the House was working up a very large health care bill. This bill had very serious problems, Gohmert said, but, at least, it was being generated in the chamber required by the Constitution.
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In September 2009, Obama insisted he address a joint session of Congress. It was convened, and, Gohmert said, Obama made promises such as no federal funding of abortions and no illegal alien subsidies. But Gohmert said the president left people confused over the health care deliberations, talking about the House bill and about "his" bill, when no one had seen the other bill. He used "intimidating language," the congressman said, demanding that Congress pass the other, unseen bill. Indeed he would push the other, unseen bill 17 times in his joint session address.
Soon after the joint session, Gohmert phoned Secretary of Health and Human Services Kathleen Sebelius, seeking clarification of the unseen bill that Obama had referenced and demanded should be passed. Sebelius told him, "I think he [Obama] was talking only about [health care] principles; there is no other bill."
Several weeks later came the bolt from out of the blue:
"A 2,000-page bill that [essentially] no one took credit for and that did not go through the House deliberating process, appeared out of nowhere in the Senate," Gohmert told WND.
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The day before Christmas 2009, the U.S. Senate approved the bill that ultimately became the health care takeover.
Gohmert explained the Democrats were in a hurry and cutting corners in Congress in late 2009 because they were fearful that they might lose their ability to override a Republican filibuster in the Senate in 2010.
At that time there was the risk that Republican Scott Brown of Massachusetts would fill the U.S. Senate seat (he eventually did) previously held by Democrat Ted Kennedy, and that would mean 41 Republican senators could sustain a filibuster and block a vote on Obamacare.
It was on Nov. 7, 2009, when the House passed its version of a health care bill, H.R. 3962, flaws and all, said Gohmert. But the Senate ignored it, setting down its own and what ultimately became the foundation of the new law on March 21, 2010.
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Democrats' maneuver skips deliberation
By having Obamacare originate in the Senate in late 2009, the Democrats may have skipped an important phase of congressional deliberation, Gohmert said.
That's because a joint conference committee of the House and Senate wasn't used in the process, and the deliberation among the voters in the Massachusetts Senate race was tossed aside.
There were issues with the very process used. Democrats encountered three problems when the duly passed House health-care bill, H.R. 3962, appeared on the Senate calendar on November 16, 2009. Their margin of victory in the passage of H.R. 3962 had been very slim, 220 to 215, with 176 of 177 Republicans and 39 Democrats voting no. Secondly, their ability to vote down a filibuster in the Senate was not certain; and although there were only 40 Republican senators or one less than what would be needed to sustain a filibuster, the anti-filibuster coalition was fragile, among other reasons, because independents Lieberman and Sanders were not firmly committed. Thirdly, the risk of facing 41 Republican senators in January if Scott Brown won in Massachusetts seemed to increase daily.
According to Article 1, Section 7 of the Constitution, Democrat Senate Majority Reid ought to have used H.R. 3962 as the jumping off point for Senate amendments. But some of the House bill's provisions were so controversial that any debate might have produced a considerable backlash and caused Reid's anti-filibuster coalition to collapse, Hill analyst Keith Hennessey on Dec. 19, 2009, and others pointed out. If Reid's coalition collapsed, then he and House Speaker Nancy Pelosi would have had no choice but to constitute a joint conference committee, consisting of members drawn from both chambers and given the task of proposing a new bill acceptable to Congress.
But whatever else might have developed, experts say it would have been virtually impossible to negotiate a new bill acceptable to the Senate and the House before year's end. And without a passed Senate bill in hand by year's end, there might not have been a new health care law at all in 2010, since Brown and 40 other senators might have been able to prevent it.
Reid and Pelosi did not allow the constitutional sequencing of debate and voting in Congress to develop, and as a result prevented the additional deliberation sure to have emerged, said observers.
Consequences of Obamacare
Gohmert believes that such deliberations would only have helped in the case of a law as massive, complicated and fateful as Obamacare.
One of those impacts he cites as an example is the "regular corps and ready reserve corps" serving at the whim of the president detailed in the law. On March 30, Gohmert warned the nation from the floor of the House about this new "corps" in the context of the war in Libya and wondered "maybe there's this intention to so deplete the military that we're going to need that presidential reserve officer commissioned corps and non-commissioned officer corps that the president can call up on a moment's notice involuntarily, according to the Obamacare bill."
He's still raising the issue.
Is this "private army" the fulfillment of Obama's campaign promise of July 2, 2008? Obama said at that time, "We cannot continue to rely only on our military. … We've got to have a civilian security force just as powerful, just as strong, just as well-funded. We cannot continue to rely only on our military in order to achieve the national security objectives we've set."
WND has reported several times on the potential ramifications of such an "emergency health army" or president's "private army."
Another serious consequence of Obamacare cited by Gohmert is the financial burden it mandates and the exacerbation of the national debt crisis. The total cost of implementing the new health care program (estimated at $105 billion over eight years) and providing the actual "care," another $1 trillion, approximates to the $1.2 trillion that the Supercommittee of Congress desperately tried to agree to cut out of the budget, Gohmert pointed out.
Nor does this even come close to exhausting the grim consequences of Obamacare, referenced by Gohmert.
He points to Obamacare's trampling of religious freedom and religious rights by requiring even pro-life groups to fund abortifacients, various illegal immigrant issues and the threat of wholesale population control.
Once you cede to the federal government the power to mandate what consumers purchase for health care purposes, "you open up the prospect of controlling diet and exercise and even more," Gohmert said.
Unconstitutional tactics used to pass
Obamacare supporters would argue that the tactics used in its passage do not make the law vulnerable to a court challenge because legislative gimmickry has been used in the past.
"Over time, the courts and House custom have determined that the Senate can perform [a] ... switcheroo as long as the Senate does not initiate bills whose primary purpose is raising funds for the general operation of the federal government," according to John Dickerson of Slate in 2009. "The House, often finding the parliamentary procedure in its interest, has objected to its use only slightly more than once a year for the past 20 years."
Reid's procedure was to take a "shell" bill, H.R. 3590, and delete every line, Gohmert said. In its place Reid dropped a "complete substitute amendment" on November 19, 2009, that is, a Senate health care bill of 2,074 pages that no one had ever seen before.
The original H.R. 3590, all eight pages of it, had no connection to health care. It was a revenue-raising bill (a modest outlay for first time home purchases by veterans), and it did originate in the House. What is more, Article 1, Section 7 of the Constitution also says "the Senate may propose or concur with amendments as on other bills." Thus the Democrats could argue the origin of their Senate bill technically met the letter of the constitutional requirements.
Possession of a passed Senate bill by end of 2009 did not solve all of the problems of the Obamacare supporters. They still had to get the House to agree to a new bill. Toward's that end, the Democrats employed yet another parliamentary maneuver.
The "reconciliation" process allows the Senate and House to get around the threat of a filibuster by making it unnecessary to convene a typical joint conference committee of the two chambers, whose product – a new bill – could be vulnerable to a filibuster. The "reconciled" Senate bill must meet certain prior conditions, including being a budget bill, which the Senate version of H.R. 3590 most certainly is.
Gohmert's concern is over the preceding legislative gimmick of a "shell" bill and "complete substitute amendment."
Gohmert says the origin of Senate Bill H.R. 3590 doesn't meet the intent of the Constitution. Nor was this intent ever modified by a necessary amendment to the Constitution.
The constitutional language in question (Article 1, Section 7) is called the "origination clause," and with this language the Founding Fathers intended to ensure that revenue raising measures originate in the legislative chamber closest to the people, to buttress separation of powers, to ensure transparency and to make likely a thorough examination of issues and solutions.
Even more flagrant is new security force
If one accepts Gohmert's argument that the Democrats in the Senate, with the consent of the Democrats in the House, breached the true intent of the "origination clause" of the Constitution when they manipulated the "shell" bill H.R. 3590 in the context of health care, then it follows that what they did in the context of the aforementioned president’s "regular corps and ready reserve corps" or "private army" went even beyond that.
Although the Senate originated a revenue raising bill on the subject of health care, the House was debating the same subject at the time. The Senate's origination of a revenue raising measure on the subject of a brand new security force was on a subject not even debated or proposed in the House beforehand.
Both the Senate's "complete substitute amendment" of November 19, 2009, and the Senate Bill H.R. 3590, passed on December 24, 2009, called for the funding of the novel "regular corps and ready reserve corps." The law itself contains the same language.
However, no reference to this "regular corps and ready reserve corps" appeared in any version of the health care bill in the House, whether via House committee or the House as a whole, prior to November 19, 2009.
Language about "public health care professionals" serving under the Secretary of Health and Human Services in a medical capacity or capacities was commonplace in the sundry House health care bills put forth by committees and by the House as a whole through November 7, 2009, however.
Language about a "regular corps and ready reserve corps for service in time of national emergency" and "appointed by the president," appeared in "health care" bills proposed by the Senate Committee on Health, Education, Labor and Pensions on July 15, 2009 (page 430 and following) and on September 17, 2009 (page 645 and following).
Obama declares Constitution flawed
It was in a 2001 interview with Chicago 's public station WBEZ-FM in 2001 that Obama charged that the Constitution was flawed..
He was discussing "redistributive change" and contended that the U.S. Supreme Court under Chief Justice Earl Warren failed in its rulings on civil rights issues in the 1960s because it didn't "break free from the essential constraints" in the U.S. Constitution.
In the interview, Obama said:
If you look at the victories and failures of the civil rights movement and its litigation strategy in the court, I think where it succeeded was to invest formal rights in previously dispossessed people, so that now I would have the right to vote. I would now be able to sit at the lunch counter and order and as long as I could pay for it I’d be OK
But, the Supreme Court never ventured into the issues of redistribution of wealth, and of more basic issues such as political and economic justice in society. To that extent, as radical as I think people try to characterize the Warren Court , it wasn't that radical. It didn't break free from the essential constraints that were placed by the Founding Fathers in the Constitution, at least as it's been interpreted, and the Warren Court interpreted in the same way, that generally the Constitution is a charter of negative liberties. Says what the states can't do to you. Says what the federal government can't do to you, but doesn't say what the federal government or state government must do on your behalf.
And that hasn't shifted and one of the, I think, tragedies of the civil rights movement was because the civil rights movement became so court-focused I think there was a tendency to lose track of the political and community organizing and activities on the ground that are able to put together the actual coalition of powers through which you bring about redistributive change. In some ways we still suffer from that.
The interview was available on YouTube until this week when its content was cited, when the account abruptly was closed.