So, what becomes of Printz v. United States?

In ruling that the Second Amendment applies to the State as the Court announced today in McDonald, the concept that when it comes to gun regulations States are a separate and independent sovereignty as Scalia discusses in the majority opinion does become muddled.

However, Scalia preemptively addressed this point in noting that in New York v. United States in 1992, the Court noted that while Congress may have near exclusive federal jurisdiction under the constitution to regulate an activity under the interstate commerce clause, the federal constitution does not confer Congress the power to compel the States’ to forbid or regulate such interstate activities.  Direct regulation by the federal government is required.  Anything less violates the federal constitutional concept of a unitary executive (this is not the concept of unitary executive as understood and expressed by the Bush/Cheney Administration, but a far more benign conceptualization.)  Therefore, just because a federal court can declare a State’s attempt to regulate firearms as unconstitutional, that doesn’t mean that Congress can commandeer the State government to enforce its federal regulatory scheme.

http://www.plunderbund.com/2010/06/28/so-what-becomes-of-printz-v-united-states/

Florida judge strikes down Obama health care law

A federal judge in Florida struck down President Obama's health care law today, saying it is invalidated by the requirement that nearly all Americans buy health insurance.

http://content.usatoday.com/communities/theoval/post/2011/01/florida-judge-strikes-down-obama-health-care-law/1

Which Side of History?

Interesting theoretical questions, to be sure. But the only real question is whether any of these arguments will find a warm reception from at least five Supreme Court justices. The answer, almost certainly, is no.

The challengers invoke and seek to build upon the Rehnquist court’s “federalism revolution” that flowered briefly during the 1990’s. In a series of 5-to-4 rulings, the court took a view of Congressional authority that was narrower than at any time since the early New Deal. The court struck down a federal law that barred guns near schools, on the ground that possession of a gun near a school was not the type of activity that the Constitution’s Commerce Clause authorized Congress to regulate. It ruled that Congress could not require states to give their employees the protections of the federal laws against discrimination on the basis of age or disability. It ruled that the federal government couldn’t “commandeer” state officials to perform federal functions like federally mandated background checks of gun purchasers.

So isn’t it reasonable to suppose that the constitutional attack on the health-insurance mandate, which states must facilitate by setting up insurance exchanges, will resonate with today’s majority?
It’s a fair question — to which my answer is, “That was then, this is now.”

John Roberts is an acutely image-conscious chief justice, as watchful and protective of the Supreme Court’s image as he is of his own.

The architects of the Rehnquist federalism revolution were Chief Justice William H. Rehnquist and his fellow Arizonan, Justice Sandra Day O’Connor (Chief Justice Rehnquist was actually from Milwaukee, but he decided during his Army service in North Africa that he liked the air of the desert rather than the cold and damp of the Great Lakes.) They were Westerners to whom the notion of states’ rights came naturally.

But Chief Justice John G. Roberts Jr. is not William Rehnquist, and Justice Samuel A. Alito Jr. is not Sandra Day O’Connor. John Roberts has made his career inside the Beltway ever since coming to Washington to clerk for Rehnquist. As for Sam Alito, I don’t believe that apart from a brief part-time gig as an adjunct law professor, this former federal prosecutor, Justice Department lawyer and federal judge has cashed a paycheck in his adult life that wasn’t issued by the federal government. Nothing in their backgrounds or in their jurisprudence so far indicates that they are about to sign up with either the Sagebrush Rebellion or the Tea Party.

Chief Justice Roberts appears particularly in tune with the exercise of national power. One of his handful of major dissenting opinions came in the 2007 case of Massachusetts v. Environmental Protection Agency, in which the court ordered the federal agency to regulate global warming or give a science-based explanation for its refusal to do so. That case was brought by a group of coastal states, which argued that climate change was lapping at their borders. Chief Justice Roberts objected that the states should not have been accorded standing to pursue their lawsuit. He denounced the “special solicitude” that the court’s majority showed the state plaintiffs. An early Roberts dissenting vote, just months into his first term, came in Gonzales v. Oregon, a 6-to-3 decision rejecting the United States attorney general’s effort to prevent doctors in Oregon from cooperating with that state’s assisted-suicide law.

Students of Rehnquist-style federalism will recall that the master himself blinked when his revolution got too close to the core of issues that people really care about. After all, hardly anyone had ever heard of the Gun-Free School Zones Act, the law the court invalidated in United States v. Lopez as beyond Congress’s commerce power. But plenty of people cared about the Family and Medical Leave Act, the law at issue in a 2003 case, Nevada Department of Human Resources v. Hibbs. Chief Justice Rehnquist surprised almost everyone in that case, not only voting to uphold the law’s application to state employees, but also writing a majority opinion displaying so much sympathy for the aims of the law it could have been ghost-written for him by Justice Ruth Bader Ginsburg. And with that decision seven years ago, the federalism revolution sputtered to an end.

John Roberts is an acutely image-conscious chief justice, as watchful and protective of the Supreme Court’s image as he is of his own. I find it almost impossible to believe that this careful student of history would place his court in the same position as the court that has been rewarded with history’s negative judgment for thwarting the early New Deal.


http://opinionator.blogs.nytimes.com/2010/03/25/which-side-of-history/

Federalism and Health Care Reform

It seems appropriate at the beginning of this new year to talk about the new healthcare legislation.

One judge has found a crucial piece of the statute – the requirement that individuals buy health care – unconstitutional. It will surely go to the United States Supreme Court which may be very receptive to the attack. The Rehnquist and Roberts Courts have used federalism to narrow national power wherever it conflicted with the justices’ ideologies. The Court even found federal civil rights acts regulated states unconstitutionally, though the Fourteenth Amendment was primarily aimed at state misbehavior. Federalism proved to be a convenient way for the justices to overrule things they don’t like.

If the Supreme Court overturns the legislation it will be too late for the Democrats to try to change it. If the Supreme Court sustains the legislation, the Republicans may be unable to change it. So there may be grounds for some sort of deal between the parties that would substitute a system of state options or tax credits and therefore have a better chance of succeeding when this program goes in front of Roberts Court judges all too ready to substitute their personal views for constitutional law.

http://constitutionalismanddemocracy.wordpress.com/2011/01/04/federalism-and-health-care-reform/

Federalism in the Roberts Court

http://www.naag.org/federalism_in_the_roberts_court.php

Judiciary Reorganization Bill of 1937

The Judiciary Reorganization Bill of 1937, frequently called the court-packing plan,^[1] was a legislative initiative proposed by U.S. President Franklin Roosevelt to add more justices to the U.S. Supreme Court. Roosevelt's purpose was to obtain favorable rulings regarding New Deal legislation that had been previously ruled unconstitutional.^[2] The central and most controversial provision of the bill would have granted the President power to appoint an additional Justice to the U.S. Supreme Court, up to a maximum of six, for every sitting member over the age of 70½.

Lochner vs. New York

Lochner vs. New York, 198 U.S. 45 (1905), was a landmark United States Supreme Court case that held a "liberty of contract" was implicit in the due process clause of the Fourteenth Amendment. The case involved a New York law that limited the number of hours that a baker could work each day to ten, and limited the number of hours that a baker could work each week to 60. By a 5-4 vote, the Supreme Court rejected the argument that the law was necessary to protect the health of bakers, deciding it was a labor law attempting to regulate the terms of employment, and calling it an "unreasonable, unnecessary and arbitrary interference with the right and liberty of the individual to contract." Justice Rufus Peckham wrote for the majority, while Justices John Marshall Harlan and Oliver Wendell Holmes, Jr. filed dissents.

West Coast Hotel Co. v. Parrish

West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937), was a decision by the United States Supreme Court upholding the constitutionality of minimum wage legislation enacted by the State of Washington, overturning an earlier decision in Adkins v. Children's Hospital, 261 U.S. 525 (1923). The decision is usually regarded as having ended the Lochner era, a period in American legal history during which the Supreme Court tended to invalidate legislation aimed at regulating business.^[1]

Board of Trade of City of Chicago v. Olsen

Board of Trade of City of Chicago v. Olsen, 262 U.S. 1 (1923), is a decision by the Supreme Court of the United States, in which it upheld the Grain Futures Act as constitutional under the Commerce Clause of the United States Constitution.

Hill v. Wallace

Hill v. Wallace, 259 U.S. 44 (1922), was a case in which the United States Supreme Court held that the Future Trading Act is unconstitutional use of Congress's taxing power.

The Futures Trading Act of 1921, approved August 24, 1921. 42 Stat. 187 187, c. 86 attempted to institute Federal regulation of grain futures contract trading by imposing a prohibitive tax on futures contracts traded on any market other than those that met the statute's requirements and were regulated by the Secretary of Agriculture. The court found it was an unconstitutional exercise of the taxing power of Congress. Congress responded to the Court's decision by passing the Grain Futures Act in September 1922 based on the Commerce Clause. The Grain Futures Act was held to be constitutional by the Court in Board of Trade of City of Chicago v. Olsen (1923)

Grain Futures Act

The Grain Futures Act (ch. 369, 42 Stat. 998, 7 U.S.C. § 1), is a United States federal law enacted September 21, 1922 involving the regulation of trading in certain commodity futures, and causing the establishment of the Grain Futures Administration, a predecessor organization to the Commodity Futures Trading Commission.

The bill that became the Grain Futures Act was introduced in the United States Congress two weeks after the US Supreme Court declared the Futures Trading Act of 1921 unconstitutional in Hill v. Wallace 259 U.S. 44 (1922).^[1] The Grain Futures Act was held to be constitutional by the US Supreme Court in Board of Trade of City of Chicago v. Olsen 262 US 1 (1923).

In 1936 it was revised into the Commodity Exchange Act (CEA). The act was further superseded in 1974 by establishing the Commodity Futures Trading Commission. In 1982 the Commodity Futures Trading Commission created the National Futures Association (NFA).

Sheppard–Towner Maternity and Infancy Protection Act

The Sheppard–Towner Maternity and Infancy Protection Act of 1921 was a U.S. Act of Congress providing federal funding for maternity and child care. It was sponsored by senators Morris Sheppard and Horace Mann Towner, and signed by President Warren G. Harding on November 23, 1921.
The act was a response to the lack of adequate medical care for women and children. The deficit became especially noticeable during World War I, when many potential recruits were rejected for military service due to the sequellae of childhood diseases.^{[citation needed]} However, the act was allowed to lapse in 1929 after successful opposition by the American Medical Association, which saw the act as a socialist threat to its professional autonomy. This opposition was in spite of the fact that the Pediatric Section of the AMA House of Delegates had endorsed the renewal of the act. The rebuking of the Pediatric Section by the full House of Delegates lead to the members of the Pediatric Section establishing the American Academy of Pediatrics.[1

Lochner era

The Lochner era is a period in American legal history in which the Supreme Court of the United States tended to strike down laws held to be infringing on economic liberty or private contract rights.^[1][2] The beginning of the period is usually considered to be the Court's decision in Allgeyer v. Louisiana (1897) with the end marked forty years later by the overturning of a prior Lochner era decision in the case of West Coast Hotel Co. v. Parrish (1937).^[3] The Lochner era coincided roughly with the Second Industrial Revolution.

The Supreme Court during the Lochner era has been described as "play[ing] a judicially activist but politically conservative role."^[4] The Court invalidated state and federal legislation that inhibited business or otherwise limited the free market, including laws on minimum wage, child labor, regulations of banking, insurance and transportation industries.^[4] Originating in the late 19th century, the Lochner era carried into the mid-1930s, when the Court's tendency to invalidate labor and market regulations came into direct conflict with Congress' regulatory efforts to bring about economic recovery as part of the New Deal.

Free-Market Health Care Policy

We have a health care crisis because doctors, patients, employers and employees are trapped in a wasteful, broken system that is too bureaucratic and far too unresponsive to patient needs and market forces. To solve our problems, your doctor needs the opportunity to produce higher-quality, less-costly care. As a patient, you need access to services you are not now getting. At the workplace, you need access to health insurance that costs less and gives you more.

How Obamacare Burdens Already Strained State Budgets

Finally, state lawmakers should demand that federal officials be held accountable for dumping billions in unfunded liabilities onto states. They should apply maximum pressure on the Obama Administration and Congress to explain how states are expected to implement PPACA without appropriate funding or administrative guidance. This public pressure will inform taxpayers of the incredible burdens that PPACA places on the states and, ultimately, on them. Moreover, it allows citizens to hold the right people accountable for the poor policy outcomes created by PPACA.
The difficult budgetary choices that states face in the years ahead are yet more unintended consequences of President Obama’s health care “overhaul.” Had the Administration instead pursued a federalist model of health care reform, allowing states to be the laboratories of democracy that the Founders intended, states could then focus their energies on the innovative health care reforms that work best for their own citizens. Instead, PPACA has left policymakers in capitals across the country worrying about how to deal with billions in new spending during already-harsh times.

United States v. South-Eastern Underwriters Association

United States v. South-Eastern Underwriters Association, 322 U.S. 533 (1944) is a United States Supreme Court decision that held that the Sherman Act, the federal antitrust statute, applied to insurance. To reach this decision, the Court held that insurance could be regulated by the United States Congress under the Commerce Clause, overturning Paul v. Virginia.

Sherman Antitrust Act

Purpose

Despite its name, the Act has fairly little to do with "trusts". Around the world, what U.S. lawmakers and attorneys call "Antitrust" is more commonly known as "competition law." The purpose of the act was to oppose the combination of entities that could potentially harm competition, such as monopolies or cartels. Its reference to trusts today is anachronistic. At the time of its passage, the trust was synonymous with monopolistic practice, because the trust was a popular way for monopolists to hold their businesses, and a way for cartel participants to create enforceable agreements.^[4]

In 1879, C. T. Dodd, an attorney for the Standard Oil Company of Ohio, had devised a new type of trust agreement to overcome Ohio state prohibitions against corporations owning stock in other corporations. A trust is a centuries-old form of a contract whereby one party entrusts its property to a second party. The property is then used to benefit the first party.

The law attempts to prevent the artificial raising of prices by restriction of trade or supply.^[5] In other words, innocent monopoly, or monopoly achieved solely by merit, is perfectly legal, but acts by a monopolist to artificially preserve his status, or nefarious dealings to create a monopoly, are not. Put another way, it has sometimes been said that the purpose of the Sherman Act is not to protect competitors, but rather to protect competition and the competitive landscape. As explained by the U.S. Supreme Court in Spectrum Sports, Inc. v. McQuillan,

“

The purpose of the [Sherman] Act is not to protect businesses from the working of the market; it is to protect the public from the failure of the market. The law directs itself not against conduct which is competitive, even severely so, but against conduct which unfairly tends to destroy competition itself.[6] This focus of U.S. competition law, on protection of competition rather than competitors, is not necessarily the only possible focus or purpose of competition law. For example, it has also been said that competition law in the European Union (EU) tends to protect the competitors in the marketplace, even at the expense of market efficiencies and consumers.[7]

Estimating ObamaCare's Effect on State Medicaid Expenditure Growth

Unless repeal attempts succeed, the Patient Protection and Affordable Care Act of 2010 (ObamaCare) promises to increase state government obligations on account of Medicaid by expanding Medicaid eligibility and introducing an individual health insurance mandate for all US citizens and legal permanent residents. Once ObamaCare becomes fully effective in 2014, the cost of newly eligible Medicaid enrollees will be almost fully covered by the federal government through 2019, with federal financial support expected to be extended thereafter.

http://www.cato.org/pub_display.php?pub_id=12693

The 1798 ”Act for the Relief of Sick and Disabled Seaman”

1798: Congress passes the Act for the Relief of Sick and Disabled Seamen. It provides health services to members of the merchant marine and funds a loose network of hospitals through the Marine Hospital Fund. The MHF is plagued by cost overruns, administrative mismanagement, and rationing of care. Some leaders oppose the new federal subsidies as an abuse of state sovereignty.

 Washington Post and Forbes.

On the politics of this, note that John Adams, who signed the bill into law as president, was on the “big government” end of the Founders, and his big-government approach in office in the 1790s–like signing the Alien and Sedition Acts–led to the ouster of the Federalists by Thomas Jefferson in 1800.

Individual Mandate is severable

U.S. District judge Henry E. Hudson ruled that the interstate commerce clause has no power to compel individuals to buy policies from private health insurers. Unfortunately judge Hudson also found that this clause was severable from the legislation, leaving the rest of Obamacare intact. Despite this outcome, many believe that the elimination of the individual mandate must lead to the downfall of Obamacare. According to this line of thinking, if the government outlaws actuarially accurate premiums, by forbidding insurers from taking account of pre-existing conditions, people will just wait until they get sick to apply for health insurance.

This is precisely what happened in a number of states, such as New York, when they imposed these limits on the market for individual health insurance. Premiums skyrocketed and only older and sicker people bought coverage. Such a “market” cannot survive.

Unfortunately, this will not be the case with Obamacare. Once the political class expresses a sentiment for “universal coverage” it will assert control of people’s access to medical care irrespective of an individual mandate. The actual mechanism is a “death spiral” of taxation and subsidy.

Faceoff! States tell feds to back down

What if Washington made a law and nobody paid attention? Or even more significantly, what if states specifically repudiated it and threatened to prosecute those enforcing it?
The questions no longer are rhetorical but a real option as eight states consider a blanket nullification of the Obamacare nationalization of health-care decision-making advances in their legislatures.

"Thomas Jefferson advised, 'Whensoever the general government assumes undelegated powers … a nullification of the act is the rightful remedy,'" states the Tenth Amendment Center, which advocates a return to the constitutionally delegated powers for the federal government.
"When states pass laws to reject and nullify unconstitutional federal 'laws,' regulations and mandates – it's not rebellion … it's duty," the organization states.

Read more: Faceoff! States tell feds to back down http://www.wnd.com/?pageId=253521#ixzz1BvDPCEfh

Paul v. Virginia

Paul v. Virginia, 75 U.S. (8 Wall) 168 (1869), was a historic case in corporate law in which the United States Supreme Court held that a corporation is not a citizen within the meaning of the Privileges and Immunities Clause. Of greater consequence, the Court further held that "issuing a policy of insurance is not a transaction of commerce," effectively removing the business of insurance beyond the United States Congress's legislative reach.

In the case of Paul v. Virginia, 75 U.S. 168 (1868), the Court said the following:

It was undoubtedly the object of the clause in question to place the citizens of each State upon the same footing with citizens of other States, so far as the advantages resulting from citizenship in those States are concerned. It relieves them from the disabilities of alienage in other States; it inhibits discriminating legislation against them by other States; it gives them the right of free ingress into other States, and egress from them; it insures to them in other States the same freedom possessed by the citizens of those States in the acquisition and enjoyment of property and in the pursuit of happiness; and it secures to them in other States the equal protection of their laws.

Privileges and Immunities Clause

The Privileges and Immunities Clause (U.S. Constitution, Article IV, Section 2, Clause 1, also known as the Comity Clause) prevents a state from treating citizens of other states in a discriminatory manner. The text of the clause reads:

“

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

”

Obamacare is Unconstitutional

First, there’s a difference between health care and health insurance.  Nobody in the United States is denied health care.  Between Medicaid and federal law requiring emergency rooms to treat all comers, we simply do not have children dying in the street (like in, say, Rwanda, where, according to the Times, the most common causes of death are “diarrhea, pneumonia, malaria, malnutrition, infected cuts”).  As Michael says, “Yes, the poorer nation has a higher levels of health insurance coverage.  But the wealthier nation does a better job of providing medical care to everyone, insured and uninsured alike.”  That is, you can (and often do) have universal health insurance that provides universally bad care – except for the political elites, who pay extra for proper Western care.  Is there any American who would have better health living in Rwanda or any number of countries where the government provides universal health insurance?

Second, and relatedly, health care is not and cannot be a “right” — because rights are things that inhere in human beings by virtue of their being human.  As the Declaration of Independence says, we are “endowed by [our] Creator with certain unalienable Rights.”  These “natural” rights are things we enjoy without burdening the rights of others: freedom of speech and belief, the right to earn an honest living, freedom of movement, the right to acquire and possess private property, the right to decide what we do every day . . . all the way down to the right to get out of bed on the left or right side (or to stay in bed all day) – and the right to defend ourselves against those who would take away these rights.  Once you start making “rights” out of things that somebody has to provide you — food, shelter, health care, employment — then you’ve violated everyone’s natural rights and reduced their inherent liberty.

PAYGO, the CBO, and Repealing ObamaCare

When the CBO believes that the law and actual policy are at variance, they actually do two types of cost projections: one based on the law as written and one based on the policy they think Congress is likely to adopt, based on past performance. They call the latter their “alternate fiscal scenario.”
ObamaCare opponents submit that this law is one of those instances where law and policy are at variance. So even though ObamaCare will reduce the deficit under existing budget rules, the spending cuts (actually, reductions in future spending growth) in the law were never going to take effect anyway. The CBO, CMS, and even the IMF have all discredited the idea that ObamaCare would reduce the deficit, because they all question the sustainability of ObamaCare’s spending “cuts.” Exempting ObamaCare repeal from PAYGO rules is appropriate if those rules have failed to protect taxpayers.

Chart: Comparing Health Reform Bills: Democrats and Republicans 2009, Republicans 1993

http://www.kaiserhealthnews.org/Graphics/2010/022310-Bill-comparison.aspx

Talk of Replacing ObamaCare Is a Bit Premature

Now that a bipartisan coalition in the House has voted to repeal ObamaCare, an even larger bipartisan coalition has approved a Republican resolution directing four House committees to “replace” that ill-fated law.  House Resolution 9 instructs the committees to “propos[e] changes to existing law” with the following goals:

1. Foster economic growth and private sector job creation by eliminating job-killing policies and regulations.
2. Lower health care premiums through increased competition and choice.
3. Preserve a patient’s ability to keep his or her health plan if he or she likes it.
4. Provide people with pre-existing conditions access to affordable health coverage.
5. Reform the medical liability system to reduce unnecessary and wasteful health care spending.
6. Increase the number of insured Americans.
7. Protect the doctor-patient relationship.
8. Provide the States greater flexibility to administer Medicaid programs.
9. Expand incentives to encourage personal responsibility for health care coverage and costs.
10. Prohibit taxpayer funding of abortions and provide conscience protections for health care providers.
11. Eliminate duplicative government programs and wasteful spending.
12. Do not accelerate the insolvency of entitlement programs or increase the tax burden on Americans; or
13. Enact a permanent fix to the flawed Medicare sustainable growth rate formula used to determine physician payments under title XVIII of the Social Security Act to preserve health care for the nation’s seniors and to provide a stable environment for physicians.

The 19th-century French economist Frederic Bastiat foresaw schemes like this when he wrote:

"Government is the great fiction, through which everybody endeavors to live at the expense of everybody else."

Cognitive dissonance

Cognitive dissonance is defined as holding two completely contradictory ideas at the same time.

McCarran–Ferguson Act

The McCarran–Ferguson Act, 15 U.S.C. §§ 1011-1015, is a United States federal law that exempts the business of insurance from most federal regulation, including federal anti-trust laws to a limited extent. The McCarran–Ferguson Act was passed by Congress in 1945 after the Supreme Court ruled in United States v. South-Eastern Underwriters Association that the federal government could regulate insurance companies under the authority of the Commerce Clause in the U.S. Constitution.

The McCarran–Ferguson Act does not itself regulate insurance, nor does it mandate that states regulate insurance. "Acts of Congress" that do not expressly purport to regulate the "business of insurance" will not preempt state laws or regulations that regulate the "business of insurance."

The Act also provides that federal anti-trust laws will not apply to the "business of insurance" as long as the state regulates in that area, but federal anti-trust laws will apply in cases of boycott, coercion, and intimidation. By contrast, most other federal laws will not apply to insurance whether the states regulate in that area or not.

Getting Health Care Reform Back on Track

There are many policy options Congress should consider, after repeal of PPACA, to begin moving the system in the right direction and put the country on the right path toward market-based health care change that gives people better choices and allows them to take account of the price and value of health care. For example, Congress should:

• Provide individual tax relief for all persons purchasing private health insurance, regardless of where they work;
• Eliminate barriers to individuals purchasing health care coverage that best suits their personal needs across state lines;
• Allow employers to convert their health care compensation from a defined benefit package to a defined contribution system;
• Promote new group purchasing arrangements based on individual membership organizations and various associations, including union, fraternal, ethnic, and religiously based groups;
• Improve consumer-directed health options (such as health savings accounts, health reimbursement arrangements, and flexible spending accounts) that encourage greater transparency and consumer control over health care decisions;
• Extend rational pre-existing condition protections in the non-group health insurance markets for those with continuous creditable coverage, thus rewarding responsible persons who buy and maintain coverage;
• Set up a fair competitive bidding process to determine government payment in traditional Medicare fee-for-service and Medicare Advantage programs;
• Review Medicare rules and regulations and eliminate those that unduly burden doctors and patients, such as the restriction preventing doctors and patients to contract privately for medical services outside of the traditional Medicare program;
• Encourage the states to set up mechanisms such as high-risk pools and risk transfer models that help lessen the problems of individuals who are difficult to insure;
• Expand states’ ability to develop consumer-based reforms that enable states to customize solutions for their citizens;
• Strengthen premium assistance in Medicaid to enable young families to obtain private health insurance coverage;
• Improve patient-centered health care models for those on Medicaid;
• Increase federal and state efforts to combat fraud and abuse in Medicaid, including tightening eligibility loopholes in Medicaid for long-term-care services;
• Encourage personal savings and the development of a robust private insurance market for long-term-care needs;
• Make the ban on taxpayer-funded abortion permanent and government-wide and extend a similar permanent policy to ensure protection of the right of conscience among medical providers and personnel; and
• Stop new tax increases and promote tax cuts that would expand private insurance coverage and grow the economy.

Dual Federalism

Dual federalism, a legal theory which has prevailed in the United States since 1787, is the belief that the United States consists of two separate and co-sovereign branches of government. This form of government works on the principle that the national and state governments are split into their own spheres, and each is supreme within its respective sphere. Specifically, dual federalism discusses the relationship between the national government and the states' governments. According to this theory, there are certain limits placed on the federal government. These limits are:

1. National government rules by enumerated powers only.
2. National government has a limited set of constitutional purposes.
3. Each governmental unit—state and federal—is sovereign within its sphere of operations.
4. Relationship between nation and states is best summed up as tension rather than cooperation.

Footnote Four

Carolene Products is best known for its "Footnote Four", which is considered to be "the most famous footnote in constitutional law." ^[2] The Court applied minimal scrutiny (rational basis review) to the economic regulation in this case, but proposed a new level of review for certain other types of cases.
Justice Stone suggested there were reasons to apply a more exacting standard of judicial review in other types of cases. Legislation aimed at discrete and insular minorities, who lack the normal protections of the political process, should be an exception to the presumption of constitutionality, and a heightened standard of judicial review should be applied. This idea has greatly influenced equal protection jurisprudence, and judicial review.

[edit] Text of Footnote Four

“

There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth… It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation. Nor need we inquire whether similar considerations enter into the review of statutes directed at particular religious … or national … or racial minorities …: whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.

”

Footnote Four introduced the idea of levels of judicial scrutiny. In keeping with the New Deal Revolution, Footnote Four established the rational basis test for economic legislation, an extremely low standard of judicial review. The "rational basis test" mandates that legislation (whether enacted by Congress or state legislatures) which deals with economic regulation must be rationally related to a legitimate state interest.
Therefore, Footnote Four outlines a higher level of judicial scrutiny for legislation that met certain conditions:

1. On its face violates a provision of the Constitution (facial challenge).
2. Attempts to distort or rig the political process.
3. Discriminates against minorities, particularly those who lack sufficient numbers or power to seek redress through the political process.

This higher level of scrutiny, now called "strict scrutiny", was first applied in Justice Black's opinion in Korematsu v. U.S. (1944).
Some argue that this "most famous footnote" was in fact written not by Justice Stone, but by his law clerk, Louis Lusky.^[3] In fact, the cited work above (while quite useful on the origin and growth of the footnote) does not claim that the law clerk was the author, and implies the opposite through letters between the justices. In his later work, Our Nine Tribunes: The Supreme Court in Modern America, however, Lusky includes facsimiles of the original drafts of the footnote, the first of which is in his own hand. Stone edited the second, typed draft and, at the behest of the Chief Justice, added certain passages. While Justice Stone was doubtless intimately involved in the writing of the footnote, it seems clear that original authorship belongs to Lusky.

The Constitution in One Sentence: Understanding the Tenth Amendment

n a certain sense, the Tenth Amendment—the last of the 10 amendments that make up the Bill of Rights—is but a truism that adds nothing to the original Constitution. Since the federal government only possesses those powers which are delegated to it (Article I, Section 1), this amendment merely restates that all powers not delegated are in fact reserved to the States or to the sovereign people. In this sense, the Tenth Amendment concisely articulates the very idea and structure of a government of limited powers. The Tenth Amendment reinforces the federal system created by the Constitution and acts as a bulwark against federal intrusion on state authority and individual liberty. While the Supreme Court has countenanced a far-reaching expansion of federal power since the New Deal, Congress, as a co-equal branch of government, is not bound by these precedents and should uphold the concept of federalism embodied in this amendment.

http://www.heritage.org/Research/Reports/2011/01/The-Constitution-in-One-Sentence-Understanding-the-Tenth-Amendment

PPACA - social legislation

On March 23, President Barack Obama signed one of the most sweeping pieces of social legislation in American history. The new health care law would require nearly all Americans to purchase health insurance or face fines and possible jail time. The U.S. Constitution grants Congress the power to regulate interstate commerce, but does that mean that Congress can compel Americans to engage in specific commercial transactions? Several states and other plaintiffs have filed suit against this "individual mandate." How will those cases fare?

ObamaCare: Historic, but Is It Constitutional?

Federalist No. 78 - The Judiciary Department

There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.

If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their WILL to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

Free-Market Health Care Policy NCPA

We have a health care crisis because doctors, patients, employers and employees are trapped in a wasteful, broken system that is too bureaucratic and far too unresponsive to patient needs and market forces. To solve our problems, your doctor needs the opportunity to produce higher-quality, less-costly care. As a patient, you need access to services you are not now getting. At the workplace, you need
access to health insurance that costs less and gives you more.
At the NCPA, we believe sensible reforms, based on the innovative
and competitive nature of the free-market, would help us build a more sustainable health care system

NCPA Repeal and Replace

Repeal and Replace: 10 Necessary Changes

The National Center for Policy Analysis and four other think tanks are conducting a Capitol Hill briefing today to discuss 10 structural flaws in the Affordable Care Act (ACA).  The briefing will be shown live on C-SPAN at noon Eastern.  Below are five of the 10 flaws and solutions.
An impossible mandate.

• The ACA requires individuals to buy a health insurance plan whose cost will grow at twice the rate of growth of their incomes.
• Solution: Repeal the individual and employer mandates and offer a generous tax subsidy to people to obtain insurance.

A bizarre system of subsidies.

• The ACA offers radically different subsidies to people at the same income level, depending on where they obtain their health insurance.
• Solution: Offer people the same tax relief for health insurance, regardless of where it is obtained or purchased.

Perverse incentives for insurers.

• The ACA creates perverse incentives for insurers and employers to attract the healthy and avoid the sick, and to overprovide to the healthy and underprovide to the sick (to encourage them to leave).
• Solution: Instead of requiring insurers to ignore the fact that some people are sicker and more costly to insure than others, adopt a system that compensates them for the higher expected costs.

Impossible benefit cuts for seniors.

• By 2020, Medicare nationwide will pay doctors and hospitals less than what Medicaid pays.
• Solution: Medicare cost increases can be slowed by empowering patients and doctors to find efficiencies and eliminate waste.

Lack of portability.

• The single biggest health insurance problem for most Americans is the lack of portability.
• Solution: 1) Allow employers to do something they are now barred from doing: purchase personally-owned, portable health insurance for their employees; 2) Give retirees the same tax relief now available only to employees; and 3) Allow employers and employees to save for postretirement care in tax-free accounts.

Source: John C. Goodman, "What Most Needs Repealing and Replacing," National Center for Policy Analysis, January 17, 2011.
For text:
http://healthblog.ncpa.org/what-most-needs-repealing/
For more on Health Issues:
http://www.ncpa.org/sub/dpd/index.php?Article_Category=16

The Impact of the PPACA on the HI Trust Fund and on the Budget as a Whole

In a report released this afternoon, CBO and the staff of the Joint Committee on Taxation (JCT) estimated that the PPACA, incorporating the manager’s amendment, would reduce Part A outlays by $245 billion and increase HI revenues by $113 billion during the 2010-2019 period. Those changes would increase the trust fund’s balances sufficiently to postpone exhaustion for several years. However, the improvement in Medicare’s finances would not be matched by a corresponding improvement in the federal government’s overall finances. CBO and JCT estimated that the PPACA as amended would add more than $400 billion ($245 billion + $113 billion + interest) to the balance of the HI trust fund by 2019, while reducing federal budget deficits by a total of $132 billion by 2019.

What are national health accounts (NHA)?

They address a basic set of questions:

• Where do the resources come from?
• Where do the resources go?
• What kinds of services and goods do they purchase?
• Who provides what services?
• What inputs are used for providing services?
• Whom do they benefit?

According to the WHO

Three fundamental, interrelated problems restrict countries from moving closer to universal coverage. The first is the availability of resources. No country, no matter how rich, has been able to ensure that everyone has immediate access to every technology and intervention that may improve their health or prolong their lives.

At the other end of the scale, in the poorest countries, few services are available to all.
The second barrier to universal coverage is an overreliance on direct payments at the time people need care. These include over-the-counter payments for medicines and fees for consultations and procedures. Even if people have some form of health insurance, they may need to contribute in the form of co-payments, co-insurance or deductibles.
The obligation to pay directly for services at the moment of need – whether that payment is made on a formal or informal (under the table) basis – prevents millions of people receiving health care when they need it. For those who do seek treatment, it can result in severe financial hardship, even impoverishment.

The third impediment to a more rapid movement towards universal coverage is the inefficient and inequitable use of resources. At a conservative estimate, 20–40% of health resources are being wasted. Reducing this waste would greatly improve the ability of health systems to provide quality services and improve health. Improved efficiency often makes it easier for the ministry of health to make a case for obtaining additional funding from the ministry of finance.

The path to universal coverage, then, is relatively simple – at least on paper. Countries must raise sufficient funds, reduce the reliance on direct payments to finance services, and improve efficiency and equity. These aspects are discussed in the next sections.

Chief Justice John Marshall said very clearly in a case called Barron vs. Baltimore, 1833, that the Bill of Rights

"...demanded security against the apprehended encroachments of the [federal] government - not against those of the [state] governments... These amendments contain no expression indicating an intention to apply them to the state governments. This Court cannot so apply them."

Bill of Rights Purpose - Response of the Anti-Federalists

Federalists such as Alexander Hamilton and James Madison believed that a Bill of Rights was unnecessary because they didn't think that people were giving up these rights in the first place by accepting the Constitution. They also worried that if certain rights were spelled out in the Constitution as being protected, that it might imply that other rights that were not mentioned, were not protected.

Health insurance mandate began as a Republican idea

Republicans were for President Obama’s requirement that Americans get health insurance before they were against it.

	Discuss

The obligation in the new health care law is a Republican idea that has been around at least two decades. It was once trumpeted as an alternative to Bill and Hillary Rodham Clinton’s failed health care overhaul in the 1990s. These days, Republicans call it government overreach.

Prisoners have insurance why don't citizens?

The "cruel and unusual punishment" clause of the 8th Amendment to the Constitution has been interpreted by the Supreme Court to require prisoners, as part of their humane treatment during detention, to be guaranteed the right to health care. (2)

Currently prisoners are the only group who are specifically granted the right to health care. It is probable that the founders of our country, if they could have predicted the importance of health care, would have granted that the same standard of humane treatment be extended to every citizen.

The Federalist, No. 45

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

Natural Right

What is a natural right? Natural rights are those rights that people have just because they are human. They are natural to mankind and should not be violated by the government. So, things like freedom of speech, freedom of religion and freedom from cruel and unusual punishment, were judged by the Founding Fathers, to be natural rights, that the government could not violate.

Bailey v. Drexel Furniture Co.

Bailey v. Drexel Furniture Co., 259 U.S. 20 (1922)^[1], was a case in which the U.S. Supreme Court ruled the 1919 Child Labor Tax Law unconstitutional as an improper attempt by Congress to penalize employers using child labor. The Court indicated that the tax imposed by the statute was actually a penalty in disguise.

On February 24, 1919, Congress passed the Child Labor Tax Law which imposed an excise tax of 10 percent on the net profits of a company who employed children. The law defined child labor as “under the age of sixteen in any mine or quarry, and under the age of fourteen in any mill, cannery, workshop, factory, or manufacturing establishment.” The definition also included the use of children between the ages of fourteen and sixteen who worked more than eight hours a day or more than six days a week, or who worked between the hours of 7:00 p.m. and 6:00 a.m.” Drexel was a furniture manufacturing company in North Carolina.

On September 21, 1921, a collector from the Bureau of Internal Revenue (now the Internal Revenue Service) assessed $6,312.79 in excise taxes for employing a child under fourteen during the 1919 tax year. Drexel paid the tax under protest and sued for a refund.

Taft argued the law describes a set course for businesses and when they deviate from that course, a payment is enacted. Taft said “scienter is associated with penalties, not with taxes.” “The court must be blind not to see that the so-called tax imposed to stop the employment of children within the age limits prescribed.” Taft said that the court must commit itself to the highest law of the land and the duty of the court, even though it requires them to refuse legislation designed to promote the highest good. He went on to say that the good sought in unconstitutional legislation leads citizens and legislators down a dangerous path of breaching the constitution and recognized standards. In addition, Congress could take control of many areas of public interest, which the States have control over reserved by the Tenth Amendment, by enacting regulating subjects and enforcing them by a so-called “tax.” This would break down the constitutional limitations on Congress and eliminate the sovereignty of States. A tax is a source of revenue for the government, while a penalty is a regulation and punishment for a certain behavior.

FEDERALIST No. 41

he power of levying and borrowing money, being the sinew of that which is to be exerted in the national defense, is properly thrown into the same class with it. This power, also, has been examined already with much attention, and has, I trust, been clearly shown to be necessary, both in the extent and form given to it by the Constitution. I will address one additional reflection only to those who contend that the power ought to have been restrained to external taxation by which they mean, taxes on articles imported from other countries. It cannot be doubted that this will always be a valuable source of revenue; that for a considerable time it must be a principal source; that at this moment it is an essential one. But we may form very mistaken ideas on this subject, if we do not call to mind in our calculations, that the extent of revenue drawn from foreign commerce must vary with the variations, both in the extent and the kind of imports; and that these variations do not correspond with the progress of population, which must be the general measure of the public wants. As long as agriculture continues the sole field of labor, the importation of manufactures must increase as the consumers multiply. As soon as domestic manufactures are begun by the hands not called for by agriculture, the imported manufactures will decrease as the numbers of people increase. In a more remote stage, the imports may consist in a considerable part of raw materials, which will be wrought into articles for exportation, and will, therefore, require rather the encouragement of bounties, than to be loaded with discouraging duties. A system of government, meant for duration, ought to contemplate these revolutions, and be able to accommodate itself to them. 

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.

General Welfare clause

A General Welfare clause is a section that appears in many constitutions, as well as in some charters and statutes, which provides that the governing body empowered by the document may enact laws as it sees fit to promote or provide for the general welfare of the people. In some countries, this has been used as a basis for legislation promoting the health, safety, morals, and well-being of the people governed thereunder (also known as the police power). Such clauses are generally interpreted as granting the state broad power to regulate for the general welfare that is independent of other powers specified in the governing document.

The historical controversy over the U.S. General Welfare Clause arises from two distinct disagreements. The first concerns whether the General Welfare Clause grants an independent spending power or is a restriction upon the taxing power. The second disagreement pertains to what exactly is meant by the phrase "general welfare."


Prior to 1936, the United States Supreme Court had imposed a narrow interpretation on the Clause, as demonstrated by the holding in Bailey v. Drexel Furniture Co.,^[12] in which a tax on child labor was an impermissible attempt to regulate commerce beyond that Court's equally narrow interpretation of the Commerce Clause. This narrow view was later overturned in United States v. Butler. There, the Court agreed with Associate Justice Joseph Story's construction in Story's 1833 Commentaries on the Constitution of the United States. Story had concluded that the General Welfare Clause was not a general grant of legislative power, but also dismissed Madison's narrow construction requiring its use be dependent upon the other enumerated powers. Consequently, the Supreme Court held the power to tax and spend is an independent power and that the General Welfare Clause gives Congress power it might not derive anywhere else. However, the Court did limit the power to spending for matters affecting only the national welfare.

Shortly after Butler, in Helvering v. Davis,^[13] the Supreme Court interpreted the clause even more expansively, conferring upon Congress a plenary power to impose taxes and to spend money for the general welfare subject almost entirely to its own discretion. Even more recently, the Court has included the power to indirectly coerce the states into adopting national standards by threatening to withhold federal funds in South Dakota v. Dole.^[14] To date, the Hamiltonian view of the General Welfare Clause predominates in case law.

Ex post facto law

An ex post facto law (from the Latin for "from after the action") or retroactive law, is a law that retroactively changes the legal consequences (or status) of actions committed or relationships that existed prior to the enactment of the law. In reference to criminal law, it may criminalize actions that were legal when committed; or it may aggravate a crime by bringing it into a more severe category than it was in at the time it was committed; or it may change or increase the punishment prescribed for a crime, such as by adding new penalties or extending terms; or it may alter the rules of evidence in order to make conviction for a crime more likely than it would have been at the time of the action for which a defendant is prosecuted. Conversely, a form of ex post facto law commonly known as an amnesty law may decriminalize certain acts or alleviate possible punishments (for example by replacing the death sentence with life-long imprisonment) retroactively.

A law may have an ex post facto effect without being technically ex post facto. For example, when a law repeals a previous law, the repealed legislation no longer applies to the situations it once did, even if such situations arose before the law was repealed. The principle of prohibiting the continued application of these kinds of laws is also known as Nullum crimen, nulla poena sine praevia lege poenali, particularly in European continental systems.

In the United States, the federal government is prohibited from passing ex post facto laws by clause 3 of Article I, section 9 of the U.S. Constitution and the states are prohibited from the same by clause 1 of Article I, section 10. This is one of the very few restrictions that the United States Constitution made to both the power of the federal and state governments prior to the Fourteenth Amendment. Over the years, when deciding ex post facto cases, the United States Supreme Court has referred repeatedly to its ruling in the Calder v. Bull, 3 U.S. 386 (1798), in which Justice Samuel Chase established four categories of unconstitutional ex post facto laws. The case dealt with Article I, section 10, since it dealt with a Connecticut state law.

The Doc Fix

The short version: In 1997, Republicans passed the Medicare Sustainable Growth Rate into law. The provision created a simple equation meant to hold down Medicare costs and cut doctor payments when they rose. But the provision was passed when Medicare's costs were uncommonly low. Suddenly, SGR was forcing huge cuts rather than the modest adjustments that had been intended. So legislators began voting to delay implementation rather than cut doctor payments.

The first delay was passed in 2003, under Republicans. Then again in 2005, also under Republicans. Then in 2006, under Republicans. Then in 2007 and 2008, under Democrats. For those keeping count at home, this is a policy in a Republican bill that Republicans delayed three times and Democrats delayed twice.

For a longer explanation of this issue, head to this post.

H. R. 2 – Repealing the Affordable Care Act

The Administration strongly opposes House passage of H.R. 2 because it would explode the deficit, raise costs for the American people and businesses, deny an estimated 32 million people health insurance, and take us back to the days when insurers could deny, limit or drop coverage for any American.

In a preliminary analysis of H.R. 2, the Congressional Budget Office found that repealing the law would increase the deficit by $230 billion in the first decade and roughly one-half of one percent of GDP, or over a trillion dollars, in the second decade; increase the number of uninsured Americans by 32 million; impose higher premiums on large firms; and cause consumers who buy coverage in the individual market to pay more out of pocket for fewer benefits. Medicare’s insolvency would be accelerated by repeal – the Medicare actuaries previously stated that the Affordable Care Act extended solvency by 12 years. Repealing the Affordable Care Act would not only increase deficits in the coming decade, but would also significantly worsen the long- term fiscal burdens on American businesses and families.

When the Affordable Care Act provisions are fully in effect, insurance companies will no longer be able to discriminate against any American with a preexisting condition, charge women higher rates, or charge drastically higher premiums for older Americans. H.R. 2 would eliminate the important patient protections, coverage expansions, affordability provisions, and fiscal savings in the Affordable Care Act. If the President were presented with H.R. 2, he would veto it.

Federal preemption

Federal preemption refers to the invalidation of US state law when it conflicts with Federal law.

In Altria Group v. Good, the Court reiterates that "Congress may indicate pre-emptive intent" in two ways: "through a statute’s express language or through its structure and purpose.

Supremacy Clause

The Supremacy Clause is a clause in the United States Constitution, Article VI, Clause 2. This clause asserts and establishes the Constitution, the federal laws made in pursuance of the Constitution, and treaties made by the United States with foreign nations as "the Supreme Law of the Land" (using modern capitalization). The text of Article VI, Clause 2, establishes these as the highest form of law in the American legal system, both in the Federal courts and in all of the State courts, mandating that all state judges shall uphold them, even if there are state laws or state constitutions that conflict with the powers of the Federal government.

The Supremacy Clause has been interpreted to come in effect only when the Federal Government has acted in a given field. In the case of Edgar v. Mite Corporation, 457 U.S. 624 (1982), the Supreme Court ruled that "A state statute is void to the extent that it actually conflicts with a valid Federal statute." In effect, this means that a State law will be found to violate the supremacy clause when either of the following two conditions (or both) exist:^[1]

1. Compliance with both the Federal and State laws is impossible, or
2. "...state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress..."

The Supreme Court further found in Crosby v. National Foreign Trade Council, 530 U.S. 363 (2000), that even when a State law is not in direct conflict with a Federal law, the State law could still be found unconstitutional under the Supremacy Clause if the "state law is an obstacle to the accomplishment and execution of Congress's full purposes and objectives."^[3] Congress need not expressly assert any preemption over State laws either, because (the Supreme Court said) Congress may implicitly assume this preemption under the Constitution.^[4]

Necessary and Proper Clause

The Congress shall have Power - To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Article One of the United States Constitution, section 8, clause 18

Madison then argues at length for the Necessary and Proper Clause, noting that no part of the constitution had come under more attack. He states flatly that the clause is "invulnerable" and that without it the constitution would be a "dead letter." He says that the Constitution might have listed either enumerated those necessary and proper powers or attempted to list those that were expressly not necessary and proper, but argues that either exercise would have been futile in that no list could ever fully take into account all of the nation's present and future concerns.

He responds to critics who feared that the clause would allow the government to overstep its powers that the people would have the same redress to this as to any occasion on which the legislature abused its powers: the balance of the executive and legislative branches, and the potential to remove the offending legislators via the ballot box.

Tenth Amendment to the United States Constitution

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.

The Federalist Papers/No. 84

Hamilton argued against a "Bill of Rights," asserting that ratification of the Constitution did not mean the American people were surrendering their rights, and, therefore, that protections were unnecessary: "Here, in strictness, the people surrender nothing, and as they retain everything, they have no need of particular reservations." Critics pointed out that earlier political documents had protected specific rights, but Hamilton argued that the Constitution was inherently different:

Hamilton expressed the fear that protecting specific rights might imply that any unmentioned rights would not be protected:

I go further, and affirm, that Bills of Rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and on this very account, would afford a colorable pretext to claim more than were granted.

For why declare that things shall not be done which there is no power to do? 

Why, for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretence for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority, which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the National Government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for Bills of Rights.

Certain General and Miscellaneous Objections to the Constitution Considered and Answered
From McLEAN'S Edition, New York.
Author: Alexander Hamilton

Ninth Amendment to the United States Constitution

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The Ninth Amendment has generally been regarded by the courts as negating any expansion of governmental power on account of the enumeration of rights in the Constitution, but the Amendment has not been regarded as further limiting governmental power. 

Consumer-driven health care

Defined narrowly, consumer driven health care (CDHC) refers to third tier health insurance plans that allow members to use personal Health Savings Accounts (HSAs), Health Reimbursement Arrangements (HRAs), or similar medical payment products to pay routine health care expenses directly, while a high-deductible health insurance policy protects them from catastrophic medical expenses. High-deductible policies cost less, but the user pays routine medical claims using a pre-funded spending account, often with a special debit card provided by a bank or insurance plan. If the balance on this account runs out, the user then pays claims just like under a regular deductible. Users keep any unused balance or "rollover" at the end of the year to increase future balances, or to invest for future expenses.

Article. I. Section. 8.

Clause 1: The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

Clause 2: To borrow Money on the credit of the United States;

Clause 3: To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

Clause 4: To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

Clause 5: To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

Clause 6: To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

Clause 7: To establish Post Offices and post Roads;
 
Clause 8: To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

Clause 9: To constitute Tribunals inferior to the supreme Court;

Clause 10: To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

Clause 11: To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

Clause 12: To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

Clause 13: To provide and maintain a Navy;

Clause 14: To make Rules for the Government and Regulation of the land and naval Forces;

Clause 15: To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

Clause 16: To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

Clause 17: To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, byCession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;--And

Clause 18: To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.