November 9, 2009


Rep. John Boehner (R-Ohio) calls the recently passed healthcare reform bill “the most unconstitutional thing I have ever seen.”

Really? The most unconstitutional you have ever seen? Either you have a short memory or you are fond of rose colored shades, Mr. Boehner.

Congress has done far worse. For reference I would point to HR 3172, enacted by the 107th Congress on September 19, 2001, signed into law by President George W. Bush on October 26, 2001. The Patriot Act was a true bipartisan effort, with the House voting 357-66 in favor of the measure, and 98-1 in the Senate.

The USA Patriot Act of 2001, a contrived acronym for “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorists,” is the most blatantly unconstitutional legislation to stumble through Congress since the Alien and Sedition acts of 1789. Before recent revisions, the Patriot Act violated Article I, Section 9 of the Constitution by suspending the Habeas Corpus and Bill of Attainder provisions, and it all but vacated the protections of the First, Fourth, Fifth, Sixth, Seventh and Eighth, Thirteenth and Fourteenth amendments.

Eight years have passed since Patriot became law. Stories of abuse still surface in tales of government lies and extravagances, with U.S. citizens delivered into a byzantine morass of legal entanglement on flimsy, sometimes contrived evidence. Reading the stories and listening to the court cases makes one think of the old Soviet Union.

As an example, take the sad case of Brandon Mayfield, an attorney and citizen of the U.S.A. Mayfield was jailed and held in federal lockup for 19 days… as a material witness against himself. His house was searched and bugged, computer files (even those pertaining to clients, which violated attorney client privilege) were downloaded and seized, and the children’s homework copied. It was Mayfield’s daughter’s Spanish homework, combined with a misidentified fingerprint, which convinced the FBI that Mayfield was involved in the March 2004 Madrid train bombings.

When the FBI’s “evidence” was finally presented to a judge, the case was tossed on its ear. The FBI had utilized the now infamous Section 215 to make unlawful entry into the Mayfield home, plant listening devices, download computer files, and seize evidence to support what turned out to be a bogus charge that even the Spanish authorities scoffed at.

Section 215 grants the FBI the power to seize a vast array of sensitive personal information and belongings, including medical, library and business records, using a secret intelligence court that does not require any suspicion of individual criminal activity. Although a court order is required to obtain these records, judges are compelled to issue them, making judicial review in this process nothing more than a rubber stamp.

Patriot amended 15 different federal laws, including the Foreign Intelligence Surveillance Act (FISA) of 1978, the Electronic Communication Privacy Act (ECPA)of 1986, the Computer Fraud and Abuse Act and the Family Education Rights and Privacy Act. The act authorized roving wiretaps and the so-called “sneak and peek” warrants, obliterated the wall between foreign and domestic intelligence, and amended the definition of domestic terrorism.

Robert Levy, senior fellow in constitutional studies at the Cato Institute, has written that the Patriot Act represents "the looming sacrifice of civil liberties at the altar of national security." The Mayfield family learned the truth of this all too well, and their case is but one of hundreds.

You want unconstitutional? Look no further than the truly bipartisan Patriot Act. The healthcare boondoggle doesn’t hold a candle to that. Mr. Boehner’s pomposity is nothing more than clownish, but standard right wing fare. The Democrats have behaved similarly in the past, so I don’t pretend to give them a pass, but this crop of Republicans is definitely pushing the limits of the legitimate.

Supreme Court Justice Louis Brandeis, writing in his dissent in Olmstead v. United States (1928), said it best. “Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”

I’m old enough to remember a time when all of the Congress didn’t suck all of the time, and there were at least a few rational members on both sides of the aisle. Those days, it seems, are long gone.


For further reading, try Section 505 and the National Security Letter and the related cases, Doe v. Ashcroft (2004) and Doe v. Gonzales (2005). Other Patriot related cases include Muslim Community Association of Ann Arbor v. Ashcroft (2006), Humanitarian Law Project v. Ashcroft and the associated Humanitarian Law Project v. Reno, which was an earlier challenge to Bill Clinton’s Antiterrorism and Effective Death Penalty (AEDPA) Act.


Old NFO said...

Interesting point MB- I predict if the bill passes, it will be challenged on Constitutional grounds (whether right or wrong, I don't know). Thanks for the post!

Mule Breath said...

I don't see how it can rise to a constitutional challenge any more than Medicare, social security, Medicaid, or even veterans health benefits. If you see a violation in the bill, please point it out.

OTOH, Patriot has been successfully challenged on several points.

Old NFO said...

MB- I don't know what points, but I'm 'sure' a bunch of @#^&* lawyers can find some way to bill the hell outta us...

Anonymous said...


While I don't like SS or MC I don't believe these programs are unconstitutional as the 16th amendment authorized income taxes from any source of income. These programs are funded thru income taxes. Don't want to participate? Simple, don't have any taxable income.

The constitution limits the power of the government and I just don't see anything in it that allows the government to force an individual to buy any type of goods or services under penalty of law. If they can get away with this, what will be the next thing they will force us to buy?

Are they going to start throwing all the homeless and poor people in jail when they can't afford even the government option or the fines that come with not buying insurance? If the public option is going to be free for this class of people who is going to pay for this?


Mule Breath said...

Steve, what about auto liability insurance? That is mandated in all, or almost all states, and it was demanded by the public. If mandating health coverage is unconstitutional, wouldn't mandated auto liability also be unconstitutional?

Or vaccinations for school children. Those are also mandated at the expense of the parent. Is this unconstitutional or is this a means to protect the public and to control costs to the public? Would health insurance coverage not help control costs that are now borne by the taxpayer?

Inquiring minds want to know...

Anonymous said...


Both auto liability and vaccinations for school children are not a requirement of the federal government but requirements by states as it should be. Something about the 10the amendment that provides the states to do this but prohibit the federal government's involvement.

People keep bringing up the auto liability insurance as a comparative example but they're not the same. If I don't own a car I don't have to buy auto insurance. If I don't want health insurance am I supposed to just, um ----- DIE?

This bill will do nothing to bring down health care costs as it has not addressed tort reform and the majority of those without insurance that use the ER as their primary care physician will still not have insurance unless it is provided to them free. Who is going to pay for this? The same people that do today, those with health insurance.

I'm still interested in your thoughts on where in the constitution the federal government is granted the power to force the public to buy anything.


Mule Breath said...


Have you perhaps been reading Urbanowicz's commentary? He is a wise gentleman, but uses faulty logic in this argument. The Roberts Court has recently affirmed that Congress has wide latitude in legislating interstate commerce. See the GWB era Gonzales v. Raich (2005).

And regardless of your dismissal, both the auto liability and vaccination arguments hold weight regardless of their state mandated origins, as both are rooted in federal mandates upon the states. As you assert, you may avoid the auto mandate by not owning a car or driving, but if you have children in public schools you are not going to avoid the vaccination mandate.

Perhaps a provision could be written into the healthcare bill to allow for you to opt out if you agree to pay cash for any care you might require, and relinquish any rights to care for which you could not pay. Would that be more reasonable for you?

But none of this has much to do with the intent of my blog post. Perhaps you misread my discussion to indicate some support for a healthcare bill? If so, you assume incorrectly. My support is for reasonable discussion... and for the hope of a reasonable outcome... something which is not happening. One side of the aisle is doing fair imitation of ostriches (or asses), while the other is running amuck like children in a candy store.

Insurance industry needs reform and oversight, and the people deserve access to affordable healthcare. We needed some kind of rational debate on this, and some willingness to compromise, but the time for all that has passed and the outcome will be something none of us will like.