Ron Morley's Freedom Blog : constitution

Will Congress disobey the Consitution, again? Yes, if it passes Obama's health care "reforms"

Ronald D. Morley — Thu, 01 Oct 2009 18:20:00 GMT

One of the things which has gotten less attention than it needs in all the noise that has been generated by the debate over health care reform is one that is fundamental to not only health care, but the very manner in which our country is governed. Simply stated it is this: can the Congress legally mandate changes to our health care system and then turn the operation over to bureaucrats? According to our Constitution the answer is also very simple: No. The reason lies in the very first line of the Constitution proper where, in Article I, Section 1 it says: “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives. “ And yet, turning legislation, that is the making of the laws under which we all live, over to an ever growing Federal bureaucracy is exactly what the proponents of “change” wish to do. You see, once the Congress passes the law enabling changes to how the nation's health care is provided, the details of its implementation – the actual writing of the rules, that is the laws, defining how things will work – is turned over to some Federal agency.

I realize that I'm out of step with the times on this issue, but this is certainly not what the Founding Fathers intended for our government to be. You see, not only do bureaucrats make the rules but they also, via the mechanism of so-called “administrative courts” decide how those rules are to be enforced. In effect they get to act as law makers, law enforcers, and judges. Combining these three functions under one roof is certainly not what those who spent considerable time and effort figuring out how to separate them intended for our nation. Our Founding Fathers set forth the principles of separation of powers not because they wanted to make our government complex but because they recognized that doing so would help to prevent the rise of tyranny. They counted on the greed for power that is present in the heart of every politician to maintain that separation: they believed that the Congress would act as a check on the President and the Courts would act to check the power of both. They did not dream of the possibility that the three branches would collude to increase the power of all of them so as to be able to kill the liberty and freedom that they had struggled so hard to obtain and pass on to future generations. But that is precisely what has happened.

For many years our Constitution worked pretty much as intended. While it did so Americans not only saw their country grow in size, but also in economic power, so that by the time of WWI our nation was the largest economic power in the world, having overtaken Great Britain in the 1880s. In a space of less than 150 years our country went from being so feeble that its very continuation in existence was in doubt for many years, to a position of world leadership – all under the basic structure that had been laid down in the summer of 1787. There had been a few deviations from the intent of the Founding Fathers, but they were few and far between and, as yet, the power of the Federal bureaucracy was still very limited. All this happened during a period of change in technology, science, and the arts such as the world had never seen before – a period which saw the average American's yearly income rise considerably even though there were millions of people immigrating to this country. Not everything was perfect, understandable as we are dealing with humans here. But, in any case life got better for the vast majority of people over a considerable period of time under a Federal government that remained small and which by-and-large lived according to the rules set up in the Constitution.

Things began to change some in the early years of the 20^th century with the growth of the so-called “Progressive” movement – a movement which held that people would be better off under a government which was run by an expert bureaucracy: a system which allowed outside third parties to make the decisions about how others should act, because they supposedly knew what was best for them. The movement made some progress and managed to establish such now monumental bureaucracies as the FDA and the U.S. Department of Agriculture. On the whole, though our system of government still worked as the Founding Fathers intended it should. The executive, legislative, and judicial functions of government were kept separate and people were still largely able to live their lives free from the interference of the government.

All that changed with the coming of the Great Depression and Franklin Delano Roosevelt. He was elected in 1933 on promises to bring a “New Deal” to Americans; a government which cared about them as individuals, one which would bring order and stability back into their lives, one which would provide them jobs, certainly not one they should fear. And Americans bought it as they valued economic security above freedom and liberty. FDR, for his part, kept his promises, pushing a veritable deluge of legislation through the Congress in his fabled first 100 days in office. He created a forest of Federal bureaucracies with a plethora of initials to go with them: the NLRB, NIRA, CCC, WPA, and a host of other agencies and programs came into being.

The Supreme Court held back the tide of socialist legislation finding that many of Roosevelt's new agencies and laws were unconstitutional – mainly on the grounds that the Congress was delegating its legislative powers. At that time the Court recognized what most Americans seemingly did not – that allowing the consolidation of legislative, enforcement, and interpretive powers to reside in one agency was a sure path to the destruction of the liberty and freedom which made the United States unique among the nations of the world. The Court realized the truth of Benjamin Franklin's old adage about giving up a little liberty for a little safety and losing both in the long run.

FDR was furious that the Supreme Court would dare to stand in the way of his schemes to vastly expand the power and reach of the Federal government and launched his infamous attempt to pack the Supreme Court with justices who would rule in his favor. It was at this point that a couple of the judges on the Court, fearing more for their future job security than they did for the Constitution, had a change of heart and began to rule in favor of the Administration on many of the contentious issue of the day. The lack of the courage of their convictions on the part of two or three men in 1937 has doomed Americans to lives in which the wishes of unelected Federal bureaucrats count more than our own in many areas of life.

And it's all built on a legal fiction. The fiction is that the Congress hasn't really delegated its legal authority to make the laws because it continues to exercise some type of “oversight” of the powerful bureaucracies it has created. The fact that Congressional oversight, certainly in its ability to control the day to day operations of our multitude of Federal agencies, is a farce, doesn't keep the courts from insisting that it exists. A few Congresscritters holding hearings into some matter whenever the public outcry becomes such that they fear for their own re-election, particularly when no individual is held accountable for his or her actions, is not oversight: it is political theater designed to keep the masses happy. This is another insistence in which clever politicians and lawyers have subverted the clear meaning of the Constitution to the detriment of the American people. Yet most people don't even stop to think about it so ingrained has the apparatus of oppression become in our lives.

Now, the President and his supporters wish to expand the reach of the government into the one area in which its control has been, to this point, relatively controlled. The supporters of the President's scheme to “reform” health care are at pains to point out that there really in no difference between having health care decisions made by lackeys of the State or employees of health insurance companies. They fail to realize that there is a critical difference – if a health insurance company too often abuses its customers it finds that those customers begin taking their business elsewhere – an option that will not be available once Federal bureaucracies are set up to make health care decisions for us. The private insurers are not perfect. It is important to realize that some of their policies are brought about by Federal government regulations that are already in place concerning rates of reimbursement for procedures and limits on lifetime expenditures for things such as durable medical equipment. It is doubtful that putting more power into the hands of unaccountable minions of the State will improve the overall quality of health care in this nation.

The American public needs to wake up and realize that it is the results of policies, not the intentions behind them that are important in the final analysis. I may want to set up a government-mandated wage structure that insures everyone who works a decent wage. But if the result of the policies that I put in place to achieve that goal is that many marginally employable persons lose their jobs because businesses can no longer afford them at my new higher wage rates I have actually achieved the result of consigning more people to the welfare rolls or life on the street. Certainly I would not expect to be rewarded for having brought about such a debacle, but that is exactly what happens when Americans continue to return the same old faces to Congress election after election. Given the lengthy track record of policy failure that the Federal bureaucracies have it is doubtful that they will do any better if they are given the power to directly govern the course of health care in this nation. And that's what will happen if Congress passes such a law because the Congress will give up its legislative power as part of the deal, even though out Constitution says that it cannot do that. Federal employees will have the power to make the laws, enforce them, and interpret what they mean (becoming judge, jury, and, in some instances literally, executioner). If you think our current health care system is a mess give it a few years under the gentle ministrations of an all-powerful bureaucracy – it will get worse.

Corporations bow to Federal power

Ronald D. Morley — Thu, 24 Sep 2009 19:59:00 GMT

The Federal government has now grown so powerful that some in this nation are taking its slightest wish to be a command. The announcement on Monday by a group of major American corporation, including Hewlett-Packard, AT&T, Tyco and others, that they will be adopting new executive compensation guidelines is a sign of this. The corporations have said that they will develop new rules regarding the compensation of top executives based on a report from the Conference Board that was also announced on Monday. Some will maintain that this is nothing new, that businesses have many times tried to get out in front of possible new regulations by adopting some sort of voluntary self-regulatory scheme on their own. While that is true, it's never been a good sign, but this move is much more significant. To my knowledge American corporations have never subscribed to the idea that the State has any power in the area of setting the compensation that corporate employees, particularly those at the upper end of management, may receive. To my way of thinking this is yet another example of the expansion of the powers of the Federal government far beyond anything allowed by the Constitution or envisioned by the nation's Founding Fathers.

The companies are making this move in an obvious attempt to head off yet more regulation by the anti-business Obama regime. President Obama has repeatedly stated that he believes that corporate executives' pay is too high and is not properly linked to the actual performance of the executives or the companies. According to the new guidelines executive pay is to be more transparently linked to performance and the compensation packages are to be “more affordable”, eliminate “golden parachutes”, and be subject to more oversight by company boards of directors. None of these things can be measured objectively: one man's excessive pay is another's reasonable reward for effort made and results obtained. Likewise, the amount of gold in one's parachute is a matter of interpretation, not solid fact. That means that any regulations based on these ideas will be open to interpretation and companies will be left to wonder if they've overstepped the limits until they're reprimanded by some Washington-based bureaucrat. About the only thing missing is a requirement that the executives bow daily in the direction of Washington and give thanks to President Obama that they have a job. Given this administration's propensity for exacting arbitrary ex post facto punishments for corporations and executives which it thinks have crossed the boundary of what is “reasonable” (just look at the recently announced prosecution of Bank of America for fulfilling the contractual requirements that it inherited when it took over Merrill Lynch – at the State's insistence it should be noted see: http://www.ncbusinesslitigationreport.com/2009/04/articles/fiduciary-duty/threats-and-secret-promises-bank-of-americas-merger-with-merrill-lynch/). How long will it be before executive pay is held in escrow until the State determines whether or not it is “excessive”?

This is the sort of corporate kowtowing that demonstrates how tight the link is between regulation by the State and corporate well-being. Left unsaid in this announcement is the realization that the socialists in Washington have it within their power to simply regulate executive pay in any manner they may wish. The fact that such regulations would be unconstitutional no longer even comes up for discussion. It's as though American businesses have lost their backbone. A generation ago the very idea that the Federal government has the power to place limits on how much money the top employees in a business may make would have been considered laughable. Furthermore, businesses of yesteryear, faced with such an extension of the power of the State would have stood up for their rights and filed suit in court to prevent any such regulations from being put into effect. How the mighty have fallen.

Some will argue that the new rules (a version of which are already in effect for any financial institution that submitted to the State's blackmail and accepted TARP money) aren't any different than other Federal rules that corporations already abide by. What they overlook is that the State has never before (except during WWII and a short time during the Nixon years) set limits on how much money a person is able to earn in the course of legal employment. What is more troubling in some ways, than the restrictions themselves, is the general reaction by the public that “those scoundrels had it coming to them”. The Obama regime is deliberately making this change as a populist act of class warfare. And Americans are falling for it because they fail to realize two things: there is considerable mobility between classes in the U.S. and those who are in the lower ranks of earners today generally move up the ladder to higher paying jobs in the future; and once the State is allowed to regulate compensation in one area or for one class the precedent will be used to gradually lower the limit at which such regulation kicks in. President Obama has already defined $250 thousand dollars as the amount of income which delimits the “wealthy” from everyone else. By using class envy to drive his new regulations President Obama is deliberately pandering to one of the worst emotions of man: envy. This emotion has been considered to be a sin by many as it makes it all too easy to justify shackling those of whom one is envious. President Obama has been at pains to point out that racism has no place in American society and he is to be applauded for that. However, he is deliberately acting to substitute class-envy for racism so as to set the stage for ever more onerous burdens to be placed on the supposed “wealthy” of this nation. Not only is the President introducing a darker, more vindictive tone into the debate over compensation, but he is also greatly extending the extra-constitutional reach of the Federal government. This is yet another example of how little constitutional limitations on Federal power matter to this man whom we are told is a “constitutional law expert”. Once again the powers that be are able to act as they please because they know that the vast majority of the American populace has no idea what is actually written in the Constitution. Because of this ignorance the Obama regime is able to more-or-less make up the rules as it goes along and change the interpretation of existing rules to fit its conception of how things should work.

There are many Americans who think that strict limits should be placed on executive pay. They cite supposed gaps between performance and compensation, a lack of oversight of pay packages by corporate boards of directors, and how “unfair” it is that some executives make millions of dollars a year while other employees work for far less. According to the thinking of such people all of these “problems” are best addressed by extending the power of the State over business activities. What they overlook is that the corporations themselves do not seem to view the situation with alarm – something which would be happening if any of these businesses felt endangered by the levels of executive compensation they are dispensing.

It is entirely possible for boards of directors to discuss in great detail the amount of money to be paid to a member of upper management and reduce the amount if they feel that it is out of line with the benefits that they anticipate the new employee will bring to the company. The pay scales of upper management in American businesses are high because the amounts of money which these people can make for their employers is also high. It is not unreasonable to pay a manager who brings in $700 million dollars of new business or introduces similar operational savings to the bottom line of a company $300 million. From the standpoint of the company they've gotten a bargain and it should not be anyone else's view which prevails in the setting of the wage – outsiders are not privy to all of the information available to a corporate board, nor are they affected by the amount of compensation given out. Once again Americans are falling victim to the liberal credo that outside third parties know what is the best course of action for other to take. Once again the State is usurping power which rightfully belongs to others. And once again Americans are being suckered into giving up yet more liberty – this time by the promise that they'll get to watch as greedy corporate executives “get theirs”. In the end the only certainty is that the Federal government will have further expanded its powers at the expense of the American public.

Constitution? What Constitution?

Ronald D. Morley — Tue, 31 Mar 2009 19:33:00 GMT

The President of the United States fired the President of General Motors Corporation over the weekend. This would have been unthinkable even a decade ago. But, things have changed and, apparently, this doesn't bother most of the American people or the great majority of the mass media's talking heads. However, it is troublesome for several reasons. Where is the Constitutional power granted to the President of the U.S. to make such decisions? There's nowhere that I can see that there's a clause which, even given the twisted reasoning lawyers are so proud of, gives the Executive the power to reach into the board rooms of private corporations and pick and choose who will be allowed to head up those organizations. Surely no one can argue with a straight face that the Commerce Clause grants the President this sort of power. If it does then there is no limit on the powers of the Federal government and no one is safe from the exercise of arbitrary government power. For if the President can fire the head of General Motors, then there is nothing to prevent him from firing the head, or, indeed, any employee, of any business in America. An extremely dangerous precedent has been set over the weekend and a large number of the American people, if not an outright majority, are applauding the move; indifferent to the potential harm that such power can do to everyone in the country. Instead, the State's propaganda machine continues to spout the party line: the move was “necessary” in order to give President Obama's plan to save the domestic auto industry a chance to succeed politically; Rick Wagoner was too “old school” General Motors to be able to make the changes to the company that the President has deemed necessary for the corporation to be considered for nationalization, er, excuse me, more "bridge loans"; the firing “sends a message” to the automakers that it is “no longer business as usual” to quote one commentator on NPR yesterday.

The only person who seems upset by President Obama's firing of Mr. Wagoner is Michigan Governor Jennifer Granholm, who seems almost offended by the move. This is ironic in that Governor Granholm was one of the prime cheerleaders for a Federal bailout of the Detroit automakers. Apparently, the good governor of my state overlooked the fact that granting the Federal government unconstitutional powers by way of allowing it to “lend” money to individual companies, would lead to further abuses of power. Was she really so naive as to think that the Federal government would not impose all sorts of new rules and regulations upon the companies that it was moving to “save”? Did she really imagine that the Federal government would not seek to exercise that power in such a way as to strike fear into the hearts of any in the business community who might oppose it? If that's the case it's no wonder that the State of Michigan is in the severe economic trouble that it finds itself. Of course, even the good governor's objections to the President's action is not based on Constitutional or other legal grounds, but on the fact that Rick Wagoner is a “good man” who was, according to the governor, leading GM out of its troubles.

There is an extremely dangerous mindset growing in this country – that only the Federal government can solve the nation's economic ills and that it must be granted virtually unlimited powers in order to be able to accomplish this goal. Almost no one is heard objecting to the vast expansion of power over the nation's economy that has occurred over the last few months. There is no longer any debate as to whether or not the Federal government has the Constitutional authority to undertake any particular action. No, the debate is now only over how much money a certain program is going to cost and what group it will favor when put in place. We are seeing the culmination of the many precedents that we've allowed our presidents, ever since at least the days of Franklin D. Roosevelt's tenure, if not earlier, to set in the direction of increasing the amount of power wielded by the occupant of the house at 1600 Pennsylvania Ave. The President is now looked upon as the one person upon whom all of the nation's hopes, fears, and troubles lie. To paraphrase (and greatly condense) an article from Reason Magazine sometime last year, Americans are so used to placing all blame or, conversely, all accolades upon the President for whatever is happening that the Presidents over the years have found it more and more easy to argue that they “need” all the power in order to match the supposed responsibility they have for everything that is going on. The cultural trend away from persons accepting responsibility for their own actions and, instead, placing that responsibility on some third party is finding its logical conclusion here. If individual Americans are not accountable for their own actions then they do not need power to decide how to live their lives: that power should, by rights, be given to the person who is primarily accountable for everything that goes on – the President of the United States. It is not right, constitutionally, morally, or ethically, but it is now a fact of life. The government of the United States, in the person of the President, has asserted that it has the right to dictate the smallest details of the operations of businesses and the manner in which individual citizens may live.

Many people will say that I'm being overly-pessimistic, that the Federal government will not make it a habit to fire corporate executives, or set business policy, or interfere in matters of citizen's private affairs. Those who maintain that idea are sorely lacking in historical perspective and understanding of the nature of the State. A few examples of how Federal power has expanded over the decades should be sufficient to show the trend. When the income tax was first put in place, in 1913, it was limited to 1% on income above $3,000 (a large income for the period) rising to 7% at $500,000 and the people were assured that there was no reason to think the rates would ever increase. As of 2008 the lowest tax rate is 10% for those making less than $8,025 per year to 35% for those making over $357,701 per year and those rates will have to increase in order to pay for the Obama regime's “economic stimulus” packages. Indeed, we've already been told that $250,000 per year is to be considered as making too much money. (Figures from: http://en.wikipedia.org/wiki/Income_tax_in_the_United_States) The New Deal brought with it the minimum wage, first set at $.25/hr. it covered only workers directly engaged in interstate commerce or those producing goods sold in interstate commerce, the minimum wage has grown to $7.25/hr. and covers virtually every worker in America. (figures from: http://www.dol.gov/ESA/minwage/chart.htm) The Federal Occupational Safety and Health Administration is another example of the growth of Federal power and interference in the lives of citizens and ways in which businesses may operate; with precise standards set for such things as the height above the floor for fire extinguishers, the construction of ladders, and the placement and types of myriads of safety equipment – even though there is no constitutional justification for the agency. The ubiquity and power of the Federal government is such that most people don't even stop to think whether or not that government has any right to operate as it does – they simply acquiesce and attempt to carry on as best they can. To believe that the Federal government, especially in light of the furor over the retention bonuses paid to AIG employees, will not continue to expand its power in what was once called “the private sector” is the equivalent of believing that the local McDonald's will suddenly appear with three stars in the Michelin guide.

Now that President Obama has established that he has the authority to fire the heads of corporations we can expect to see yet more interference in the operations of private enterprises, in particular those which have accepted the poison pill of Federal bailout funds. Furthermore, I will not be surprised to see the definition of “Federal aid” expanded to include taking advantage of so-called “tax loopholes”. The reasoning will be relatively straightforward for Washington. We have already been told, repeatedly, that paying Federal taxes is patriotic. It follows, therefore, that failure to pay the maximum Federal tax one may be eligible for is unpatriotic. Taking advantage of “tax loopholes” is to avoid paying the maximum tax to the Federal government. Therefore, taking advantage of “tax loopholes” is unpatriotic in that it amounts to taking money from the American taxpayer. As we know from the actions of the Federal government up to this time, taking money from the American taxpayer gives the Federal government the right to determine how a business may operate. Thus, the power of the Federal government, which will become ever more hungry for tax revenue, will be extended. And, again as the recent AIG case attests, one cannot rely on Congress not to at least attempt to change the rules retroactively; so that what is permissible today will be illegal tomorrow, in spite of the Constitutional ban on bills of attainer and ex post facto laws.

President Obama has nearly completed the job of destroying the U.S. Constitution in the arena of what was formerly considered “private activity”. He is doing for Federal regulatory agencies what the G.W. Bush regime did for Federal law enforcement and espionage agencies with the PATRIOT ACT – extending the power of the State and destroying the foundation of civil liberties that this nation was founded upon. The truly sad part is that the American people are largely applauding him as he does so.