Loy's Blog

(This column is based on a chapter in our new book 2010: Take Back America — A Battle Plan.)

As Republicans contemplate their response to President Obama‘s coming nomination to the Supreme Court, we should go beyond the traditional scrutiny over social issues and demand that any nominee elaborate his or her views about the constitutionality of the recent legislation passed by this Administration. The hearings on his nominee will be an ideal opportunity to convince the public of the unconstitutionality of his power grabs.

The Obamacare bill, for example, not only strips states of the right to determine who will get Medicaid coverage within their borders, but it forces the states to pick up part of the tab. This is a violation of the very concept of the Tenth Amendment which provides that “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 Medicaid mandate literally takes budgeting and taxing out of the hands of state governments and gives the power to the federal government. About one-third of the difference between the high tax levels in a state like New York (8.5% income tax) and Texas (no income tax) is the difference in their Medicaid eligibility standards. By forcing Texas to come up to New York’s standards — and to pay for part of it — the health care law socks the lawmakers in Austin with a $2.7 billion annual hole in their budget. Effectively, this unfunded mandate takes away from the states the right to determine their own level of taxation for state services.

Obama‘s lawyers justify this outrageous usurpation by claiming that states do not have to participate in the Medicaid program and can opt out entirely. But, the courts have held that when such “voluntary” decisions are so draconian that they are really unrealistic, they amount to coercion. For example, states may not require drug tests for welfare recipients claiming that they do not have to apply for welfare. No state is going to throw all of their elderly nursing home patients out on the street by opting out of Medicaid.

Judge Andrew Napolitano, author of the excellent new book, Lies the Government Told You, warns of the unconstitutionality of the limitation on executive pay contained in the TARP program. He cites the doctrine “against unconstitutional conditions,” arguing that “The government may not condition the acceptance of a governmental benefit on the non-assertion of a constitutional liberty.” Because the freedom of contract is constitutionally protected, the government may not “condition corporate welfare on the prohibition of contracts with employees above an arbitrary salary amount.”

The very foundation of the health care bill — the individual mandate that people have to buy health insurance — is unconstitutional. Clearly, the government would have the authority to tax each person and use the money to provide insurance. But can it make everyone buy a privately provided product from a third party?

The Heritage Foundation thinks not, noting that “an individual mandate to enter into a contract with or buy a particular product from a private party, with tax penalties to enforce it, is unprecedented–not just in scope but in kind–and unconstitutional as a matter of first principles and under any reasonable reading of judicial precedents.”

The Foundation correctly points out that “nowhere in the Constitution is Congress given the power to mandate that an individual enter into a contract with a private party or purchase a good or service and… no decision or present doctrine of the Supreme Court justifies such a claim of power.”

The authors of the Obama Bill say that requiring people to buy health insurance is covered by the constitution’s interstate commerce clause, which allows Congress to regulate a “class of activity.”

But where is the interstate commerce? Congress has refused specifically and repeatedly to allow health insurance companies to compete across state lines. Republicans have been seeking this authority for years as a way to use private competition to hold down costs, but the Democrats have always refused.

And the Heritage Foundation asks a further question: What activity is being regulated? The activity of not buying health insurance? As the foundation notes, “proponents of the individual mandate are contending that, under its power to ‘regulate commerce’ . . . Congress may regulate the doing of nothing at all.” The absurdity of this is clear: “never in this nation’s history has the commerce power been used to require a person who does nothing to engage in economic activity. Therefore, no decision of the Supreme Court has ever upheld such a claim of power.”

Liberals who try to justify the individual mandate to buy health insurance often cite state government requirements that drivers must buy automobile insurance. But this comparison misses two key points: First, that requirement extends only to those who wish to drive, not to every citizen. And, second, states do indeed have broad police powers to act in the interest of the public’s health, safety, and welfare. But Washington doesn’t. Its powers are confined to those enumerated in the Constitution–and, try as they might, it’s hard to find any provision allowing the feds to impose such a requirement on all Americans.

The Republicans on the Senate Judiciary Committee need to ask Obama‘s nominee to defend the constitutionality of his legislation and use the hearings as a forum to demonstrate how these bills violate not just the letter of the Constitution but the very spirit of federalism and individual freedom.

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It’s sobering that 58 percent of American voters support the repeal of Obamacare just three weeks after Congress passed it, and that’s probably without even realizing the extent of the tainted cost estimates from the Congressional Budget Office or the tax consequences of the bill. If accurate accounting and the actual tax consequences were to be fully publicized, this nightmare would be even less popular.

The White House would disagree, of course, but don’t be fooled. The newspaper The Hill reports that White House budget director Peter Orszag says the CBO numbers actually underestimate the savings from the bill.

Orszag cites two reasons. One is that “on major pieces of legislation,” the CBO historically has been “too conservative rather than too optimistic” in its projections. The other is that the CBO’s scoring “largely does not take into account this evolution toward paying for quality,” which, Orszag thinks, “in this decade will begin to pay off.”

Well, the first reason — that the CBO historically has been “too conservative” — says nothing about the scoring of this particular bill. We know that government estimates involving health care programs have been grossly underestimated in the past, such as the government’s cost projections in 1965 that Medicare Part A would rise to $9 billion by 1990; its actual costs were $67 billion. The government’s 1987 projections for the Medicaid special hospitals subsidy were underestimated by a staggering factor of more than 100; they projected annual costs to be $100 million, and they ended up being $11 billion by 1992. American voters instinctively understand this phenomenon. In a Wall Street Journal op-ed last month, Scott Rasmussen and Doug Schoen argued that the main reason Obama hasn’t been able to move the skeptical public toward supporting Obamacare is that “people simply don’t trust the official projections. … Eighty-one percent of voters say it’s likely the plan will end up costing more than projected.”

Orszag’s second reason appears to be that Obama‘s bureaucrats will start denying payments for treatments and procedures they deem unwarranted. That is, they’ll start dictating care decisions — something they’ve vehemently denied — and they’ll ration and pay only for that which they approve. So even if there are some savings here — which is highly doubtful — they will be achieved at the cost of patient and physician choice and the quality of care.

You would think the administration wouldn’t look a gift horse in the mouth and would leave the CBO’s ultimately favorable scoring alone because further scrutiny might backfire on the White House.

Former CBO Director (2003-05) Douglas Holtz-Eakin maintained on Fox News that CBO’s scoring grossly understates Obamacare‘s costs, which he quickly explained is not CBO’s fault because it has to use the information given to it by Congress.

There are glaring problems with the information Congress provided. First, said Holtz-Eakin, it omitted some inconvenient spending: “We’re going to have to spend $250 (billion) to $300 billion more on Medicare doctors over the next 10 years; they just left that out. It’s going to cost $115 billion to implement this bill; they left that out. So it underestimates the cost dramatically.” Holtz-Eakin didn’t have time to finish expounding on his points, but he provided more detail in a March 20 New York Times op-ed (web site).

In that piece, he noted that the $70 billion in premiums expected to be raised in the first 10 years is counted as deficit reduction, but the benefits they will have to finance are assumed not to materialize in the first 10 years, so they are not figured into the costs. It’s a complete gimmick, which others have also pointed out. Holtz-Eakin cited other gimmicks and inaccuracies, but the “most amazing bit of unrealistic accounting” is that the legislation contemplates shifting $463 billion from Medicare spending to finance insurance subsidies without any reforms to recover those losses from an “already bleeding” Medicare.

The bottom line, said Holtz-Eakin, is that Obamacare “would raise, not lower, federal deficits, by $562 billion. … And the nation would be on the hook for two more entitlement programs rapidly expanding as far as the eye can see.”

This is horrifying stuff, folks, which the public already understands in its gut. We were headed for national bankruptcy before Obamacare, but this will seal the deal, unless repealed.

In addition, Holtz-Eakin, in a paper published on his American Action Forum Web site, shows Obamacare will likely increase taxes for 25 percent of filers making less than $200,000 — and for 52 percent of all taxpayers — the impact of which will pass through to small-business owners when unemployment is already skyrocketing. How’s Obama‘s “no new middle-class taxes” pledge working out for us now?

But costs and taxes aren’t even the main reasons to fear Obamacare. Try the evaporation of our personal liberties.

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When Supreme Court Justices retire, there is usually some pious talk about their “service,” especially when it has been a long “service.” But the careers of all too many of these retiring jurists, including currently retiring Justice John Paul Stevens, have been an enormous disservice to this country.

Justice Stevens was on the High Court for 35 years– more’s the pity, or the disgrace. Justice Stevens voted to sustain racial quotas, created “rights” out of thin air for terrorists, and took away American citizens’ rights to their own homes in the infamous “Kelo” decision of 2005.

The Constitution of the United States says that the government must pay “just compensation” for seizing a citizen’s private property for “public use.” In other words, if the government has to build a reservoir or bridge, and your property is in the way, they can take that property, provided that they pay you its value.

What has happened over the years, however, is that judges have eroded this protection and expanded the government’s power– as they have in other issues. This trend reached its logical extreme in the Supreme Court case of Kelo v. City of New London. This case involved local government officials seizing homes and businesses– not for “public use” as the Constitution specified, but to turn this private property over to other private parties, to build more upscale facilities that would bring in more tax revenues.

Justice John Paul Stevens wrote the Supreme Court opinion that expanded the Constitution’s authorization of seizing private property for “public use” to seizing private property for a “public purpose.” And who would define what a “public purpose” is? Basically, those who were doing the seizing. As Justice Stevens put it, the government authorities’ assessment of a proper “public purpose” was entitled to “great respect” by the courts.

Let’s go back to square one. Just who was this provision of the Constitution supposed to restrict? Answer: government officials. And to whom would Justice Stevens defer: government officials. Why would those who wrote the Constitution waste good ink putting that protection in there, if not to protect citizens from the very government officials to whom Justice Stevens deferred?

John Paul Stevens is a classic example of what has been wrong with too many Republicans‘ appointments to the Supreme Court. The biggest argument in favor of nominating him was that he could be confirmed by the Senate without a fight.

Democratic presidents appoint judges who will push their political agenda from the federal bench, even if that requires stretching and twisting the Constitution to reach their goals.

Republicans too often appoint judges whose confirmation will not require a big fight with the Democrats. You can always avoid a fight by surrendering, and a whole wing of the Republican party has long ago mastered the art of preemptive surrender.

The net result has been a whole string of Republican Justices of the Supreme Court carrying out the Democrats‘ agenda, in disregard of the Constitution. John Paul Stevens has been just one. There may have been some excuse for President Ford’s picking such a man, in order to avoid a fight, at a time when he was an unelected President who came into office in the wake of Richard Nixon’s resignation in disgrace after Watergate, creating lasting damage to the public’s support of the Republicans.

But there was no such excuse for the elder President Bush to appoint David Souter, much less for President Eisenhower, with back-to-back landslide victories at the polls, to inflict William J. Brennan on the country.

In light of these justices’ records, and in view of how long justices remain on the court, nominating such people was close to criminal negligence.

If and when the Republicans return to power in Washington, we can only hope that they remember what got them suddenly and unceremoniously dumped out of power the last time. Basically, it was running as Republicans and then governing as if they were Democrats, running up big deficits, with lots of earmarks and interfering with the market.

But their most lasting damage to the country has been putting people like John Paul Stevens on the Supreme Court.

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Post on your Refrigerator

You might want to print this, cut it out and put it on your fridge so you won’t forget!

*******************************************************************

Retribution is less than 1 year away!

Take a look at this and just remember elections in November 2010.

U..S. House & Senate have voted themselves $4,700 and $5,300 raises.

They voted to NOT give you a S.S. Cost of living raise in 2010 and 2011.

Your Medicare premiums will go up $285.60 for the 2-years

You will not get the 3% COLA: $660/yr.

Your total 2-yr loss and cost is -$1,600 or -$3,200 for husband and wife.

Over these same 2-years each Congress person will get $10,000

Do you feel SCREWED?

Will they have your cost of drugs – doctor fees – local taxes – food, etc., decrease?

NO WAY.

Congress received a raise and has better health and retirement benefits than you or I.

Why should they care about you?

You never did anything about it in the past.

You obviously are too stupid or don’t care.

Do you really think that Nancy, Harry, Chris, Charlie, Barnie, et al, care about you?

Send the message to these individuals — “YOU’RE FIRED!”

In 2010 you will have a chance to get rid of the sitting Congress: up to 1/3 of the Senate and 100% of the House!

Make sure you’re still mad in November 2010 and remind their replacements not to screw-up.

It is ok to forward this to your sphere of influence if you are finally tired of the abuse. Maybe it’s time for Amendment 28 to the Constitution..

28th Amendment will be as follows:

“Congress shall make no law that applies to the citizens of the United States that does not apply equally to the Senators or Representatives, and Congress shall make no law that applies to the Senators or Representatives that does not apply equally to the citizens of the United States .”

Let’s get this passed around, folks – these people in Washington have brought this upon themselves! It’s time for retribution. Let’s take back America ..

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In Tuesday’s primary election, Massachusetts Democrats chose as their Senate nominee a woman who kept a clearly innocent man in prison in order to advance her political career.

Martha Coakley isn’t even fit for the late Teddy Kennedy’s old seat. (What is it about this particular Senate seat?)

During the daycare/child molestation hysteria of the ’80s, Gerald Amirault, his mother, Violet, and sister, Cheryl, were accused of raping children at the family’s preschool in Malden, Mass., in what came to be known as the second-most notorious witch trial in Massachusetts history.

The allegations against the Amiraults were preposterous on their face. Children made claims of robots abusing them, a “bad clown” who took the children to a “magic room” for sex play, rape with a 2-foot butcher knife, other acts of sodomy with a “magic wand,” naked children tied to trees within view of a highway, and — standard fare in the child abuse hysteria era — animal sacrifices.

There was not one shred of physical evidence to support the allegations — no mutilated animals, no magic rooms, no butcher knives, no photographs, no physical signs of any abuse on the children.

Not one parent noticed so much as unusual behavior in their children — until after the molestation hysteria began.

There were no witnesses to the alleged acts of abuse, despite the continuous and unannounced presence of staff members, teachers, parents and other visitors at the school.

Not one student ever spontaneously claimed to have been abused. Indeed, the allegations of abuse didn’t arise until the child therapists arrived.

Nor was there anything in the backgrounds of the Amiraults that fit the profile of sadistic, child-abusing monsters. Violet Amirault had started the Fells Acre Day School 18 years before the child molestation hysteria erupted.

Thousands of happy and well-adjusted students had passed through Fells Acres. Many returned to visit the school; some even attended Cheryl’s wedding a few years before the inquisition began.

It’s one thing to put a person in prison for a crime he didn’t commit. It’s another to put an entire family in prison for a crime that didn’t take place.

In the most outrageous miscarriage of justice since the Salem witch trials, in July 1986, Gerald Amirault was convicted of raping and assaulting six girls and three boys and sentenced to 30 to 40 years in prison. The following year, Violet and Cheryl Amirault were convicted of raping and assaulting three girls and a boy and were sentenced to 8 to 20 years.

The motto of the witch-hunters was “Believe the Children!” But the therapists resolutely refused to believe the children as long as they denied being abused. As the police advised the parents: In cases of child abuse, “no” can mean “yes.”

To the children’s credit, they held firm to their denials for heroic amounts of time in the face of relentless questioning.

But as copious research in the wake of the child abuse cases has demonstrated, small children are highly suggestible. It’s surprisingly easy to implant false memories into young minds by simply asking the same questions over and over again.

Indeed, the interviewing techniques in the Amirault case were so successful that the children also made accusations against three other teachers, two imaginary people named “Mr. Gatt” and “Al” and even against the child therapist herself — the one claim of abuse that was provably true.

But only the Amiraults were put on trial for any alleged acts of abuse.

Coakley wasn’t the prosecutor on the original trial. What she did was worse.

At least the original prosecutors, craven and ambition-driven though they were, could claim to have been caught up in the child abuse panic of the ’80s. There had not yet been extensive psychological studies on the suggestibility of small children. A dozen similar cases from around the country had not already been discredited and the innocent freed.

Of all the men and women falsely convicted during the child molestation hysteria of the ’80s, by 2001, only Gerald Amirault still sat in prison. Even his sister and mother had been released after serving eight years in prison for crimes that never occurred.

In July 2001, the notoriously tough Massachusetts parole board voted unanimously to grant Gerald Amirault clemency. Although the parole board is not permitted to consider guilt or innocence, its recommendation said: “(I)t is clearly a matter of public knowledge that, at the minimum, real and substantial doubt exists concerning petitioner’s conviction.”

Immediately after the board’s recommendation, The Boston Globe reported that Gov. Jane Swift was leaning toward accepting the board’s recommendation and freeing Amirault.

Enter Martha Coakley, Middlesex district attorney. Gerald Amirault had already spent 15 years in prison for crimes he no more committed than anyone reading this column did. But Coakley put on a full court press to keep Amirault in prison simply to further her political ambitions.

By then, every sentient person knew that Amirault was innocent. But instead of saying nothing, Coakley frantically lobbied Gov. Jane Swift to keep him in prison to show that she was a take-no-prisoners prosecutor, who stood up for “the children.” As a result of Coakley’s efforts — and her contagious ambition — Gov. Swift denied Amirault’s clemency.

Thanks to Martha Coakley, Gerald Amirault sat in prison for another three years.

Remember all that talk about President Bush shredding constitutional rights? Overzealous liberal prosecutors and feminist do-gooders allowed Gerald Amirault to sit in prison for 18 years for crimes that didn’t exist — except in the imaginations of small children under the influence of incompetent child “therapists.”

Martha Coakley allowed her ambition to trump basic human decency as she campaigned to keep a patently innocent man in prison.

Anyone with the smallest sense of justice cannot vote to put this woman in any office. If you absolutely cannot vote for a Republican on Jan. 19, 2010, write in the name “Gerald Amirault.”

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