The Declaration of Independence, adopted by Congress on July 4, 1776 publicly announced to the world that the American colonies declared themselves free and independent states. Four years after American victory in the War of Independence a group of delegates convened in Philadelphia to create a new constitution for governing the nation. Their task was to create the institutional arrangements for limiting power and securing the rights promised in the Declaration of Independence while preserving a republican form or government that reflected the consent of the governed. The three branches of government were created; the executive branch, the legislative branch and the judiciary with separated powers and with different functions and responsibilities. Included in the document was Federalism that divides authority between the national and state governments. The Constitution was ratified in 1789. James Madison introduced the first ten amendments, called the Bill of Rights, which would protect individual freedoms and specify what government cannot do.

Professor Kris Kobach

The recently released Health Care Reform and Affordability Act (H.B. 3200) filled three large binders and containing all 2,032 pages, rested on the table. Professor Kobach stated that the bill contains thirty-one pages that references Social Security and would reduce Medicare funding by $400 billion. The bill devotes 43 pages to civil rights. It is back loaded so taxes will begin immediately but benefits would not begin until 2014. It does not include the $250 billion “doc fix” that would maintain funding to doctors and hospitals mandated to care for Medicare patients. It mandates that the 17 million people, who do not currently have health insurance, buy health insurance. This bill includes 111 separate bureaucracies that will write the regulations for this bill. These new agencies (bureaucracies) will function under the Secretary of Health and Human Resources, Kathleen Sebelius. The Congressional Budget Office announced that this bill would cause a $1.2 trillion deficit.

Where does the Constitution give Congress the power to mandate?

 In addressing the constitutionality of this bill, Kobach stated that Congress would most likely try to use Article I the “general welfare” phrase and Section 8 “to regulate Commerce with foreign Nations and among the several States, and with Indian tribes” to justify passage.  Section 8 also authorizes Congress to raise revenue. Congress has been stretching, reinterpreting and distorting the provisions of the Commerce clause over the years. The “general welfare” phrase is not a statement of power. The strongest powers are for roads, streams and business transactions that regulate commerce across state lines. In 1995 Congress passed a law that prohibited guns near schools justifying the law by using Article I. The Supreme Court struck it down.

The Federal Government has never before attempted to mandate that citizens buy anything, let alone health insurance. In H.B. 3200 anyone who fails to buy health insurance will be taxed 2.5% of his/her income. Section 8 authorizes Congress to lay taxes which would be the way to raise revenue for this bill.

Congress has the authority to spend money for the general welfare. Can Congress use its power in a coercive way to force citizens to buy a good or a service? The Commerce power is strongest when the country is in a recession and States, which must have balanced budgets, are having difficulty balancing budgets. Congress is then willing to spend exorbitant amounts to help states but then attach regulations that States must comply, if the money is accepted. Federal law prevails over state law.

The constitutionality of H.B. 3200, if passed, will have to be challenged in court. The old precedent that established Social Security in 1937 may be used to justify the Constitutionality of this bill.

Of course we do not know at this point if this bill will pass. The Democrats certainly can pass it without any Republican votes. No one knows what the Senate bill contains.

The Constitution provides for the separation of powers. Federalist 10 and 51 reason that divided power protect the freedom and liberties of the people. The principal officers of the United States Government are in the Cabinet. The Senate approves these officers. The “czars” can be called anything but cannot have more power than the Cabinet.

The Second Amendment provides that the citizens have a fundamental right to keep and hold arms. Armies can bear arms to protect the nation. The Supreme Court has ruled that individuals can keep arms.

H.B. 3200 uses the word “shall” 3000 times. When the word “shall” is used in legislation, it is a mandate. Currently, approximately 17 million people can afford health insurance but choose not to purchase it for various reasons.

Senator Mary Pilcher-Cook

The Tenth Amendment in the Bill of Rights states “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”.

Congress needs to better understand State Sovereignty. The Tenth Amendment limits the power of the Federal Government over states. Resolution 1615 has over 1600 petition signatures. It does not change anything but it does send a message to Congress that reminds them of this amendment.

The Health Care Freedom Act would challenge the income tax on health insurance or if health insurance is not purchased. The State Constitution has a right to resist Federal law. The States have powers that provide for the health, safety and welfare of its citizens.

In the last session the Legislature voted to accept stimulus money before the regulations were written. When the regulations were published, it was discovered that 50% of the money must be spent on Special Education or new programs. Accepting that Federal money did not help Education funding where it was needed most.

The Health Care Freedom Act does not prevent anyone from purchasing any health insurance, choosing the kind of health insurance desired or choosing to buy long-term care. It does state that government cannot mandate that health care be purchased. This Act would be an amendment to the Kansas Constitution. If it passes both the House and Senate, it will be put on the ballot and citizens will vote on passage. The Governor will not have veto power.

The Hierarchy of Law:

Federal Constitution

Treaties (must pass Senate with 2/3 vote)

Federal Statute

State Constitution

State Statute

Local charter

Local law

Local statute

Common law