Contrasting an America that can versus an America that can’t, Gingrich compared America’s speed and might in winning WWII versus her current inability to seal its own border. In a lighter moment, the former Speaker contrasted the efficiency of package tracking by Federal Express with the government’s inability to track illegal immigrants, suggesting sending each one a package may be the best way to apprehend the latter.

He also mentioned repealing Obamacare, Dodd Frank, and Sarbanes Oxley on his first day in office. He stated his desire to be a “paycheck president” versus a “food stamp president,” a term he used to denigrate Barack Obama.

Calling for a Fall campaign focused on substance, Gingrich also mentioned eliminating the Capital Gains tax and implementing 100% expensing for all new equipment written off in one year to help get the economy growing. Additionally, he called for a modernization of the workforce, proposing that unemployment compensation be linked to business training programs to avoid paying people for 99 weeks “for doing nothing.”

The solutions were bold but would obviously involve more than giving one speech. He called for the elimination of the EPA, replacing it with a new agency that would take economics and business interests into account in all decision-making. On tax policy, Gingrich called for a 12.5% corporate tax rate, abolishing the death tax, and the option of a 15% flat tax for individuals he called a tax cut.

Citing the need to shrink spending to meet revenue levels and the replacement of the current Civil Service system with a new modern personnel management system, his remarks appeared to be well received. Gingrich also cited abolishing the Dept of Energy (DOE) and a task forced to be headed by Texas Governor Rick Perry focused on the 10th amendment to return power to the states, as appropriate.

Gingrich also called for an audit of the Federal Reserve and an end to Ben Bernanke’s term as Chair of the Federal Reserve. The former Speaker also called for a more honest foreign policy, one acknowledging the dangers of radical Islamists intent on doing America and Americans harm.

We were reminded of this on Monday as Gov. Rick Perry sat in front of group of South Carolina citizens and was asked: “Are you for gun control?”

The audience howled with laughter that the question was even asked, but Perry answered dutifully: “I am actually for gun control.” (At this point you could hear the laughter nervously diminish.) Then Perry added, “Use both hands.”

Ah, the howling of laughter and thunderous applause returned.

While it was obvious that Gov. Perry enjoyed the opportunity to demonstrate again his absolute love of the 2^nd Amendment, something we should all be noticing by now is that Perry loves freedom – period. His love of freedom is not an extension of his love for guns rather, his love for guns an extension of his love for freedom.

I’m not trying to over-parse things here. I just can’t help but notice how Gov. Perry’s unmistakable defense of the 10^th Amendment over the last few years has already given him the reputation of a defender of something bigger than the 2^nd Amendment alone. In other words, he’s literally been a defender of freedom itself.

Since Obama took office, Perry has been on the gubernatorial front lines, firing volley after volley at DC and reminding them that the 10^th Amendment draws a line in the sand the federal government is not to cross. Perry has fought Obamacare on 10^th Amendment grounds, has hinted secession on 10^th Amendment grounds, and has furthered, in Texas, an atmosphere of freedom from government that has resulted in an influx of thousands upon thousands of new citizens to that state. (These are citizens and businesses trading taxation and regulation for freedom.)

And through all this, on those same 10^th Amendment grounds, Gov. Perry has defended the inherent right other states possess to choose a path that differs from the one Texas has taken.

It just seems that Gov. Perry not only loves freedom but understands it. Thus we see the 2^nd and 10^th Amendments so clearly coalesced in him.

Therefore, it was natural for him to look at the Tea Partiers Big Sis had maligned in 2009 and say: “I’m just not real sure you’re a bunch of right-wing extremists. But if you are, we’re with you.” And it was equally as natural for him to look out at that audience in South Carolina on Monday and tell them gun control means using both hands.

It’s all part of being free.

I am not sure why I have to keep repeating this, but there is NO SUCH THING AS STATES’ RIGHTS!  And people that use that term, or the term “nullification,” do not help our cause.

States have powers, and while those powers diminish in the face of the progressive-statist attack upon our Constitution, powers run contrary to individual rights.  So let me break it down:

1) Prop C places a duty on the state of Missouri to defend its citizens from the IRS enforced individual mandate.

2) Prop C denies the federal government state resources to enforce the individual mandate.

Anyone with an ounce of constitutional knowledge knows that neither of those aspects of Prop C conflict directly with the Supremacy Clause.

Individual Freedom

No part of Prop C provided any protection for the state.  Prop C placed a duty on the state to defend Missourians from the individual mandate.  Contrary to Lefty arguments regarding the costs of such a defense, the state attorney general has a fixed budget, and I am not sure why people have a problem with the state’s top lawyer defending individual Missourians from an arguably unconstitutional mandate.  Imagine these same naysayers suggesting we not push integration because it would cost too much through litigation.

Prop C recognizes the first principles enshrined in the 9th Amendment:

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

The fact that the Constitution did not mention a right of the people to choose whether or not to purchase insurance does not grant Congress the ability to mandate the purchase of insurance.  Interestingly, the private lawsuits initiated against Obamacare deal directly with 9th Amendment issues.  The lawsuit out of Mississippi uses the infamous Roe v. Wade to advance the concept of the right to privacy.  If there are any legitimate Democrats left in this country, they should realize that progressive-statists do not like either the right to privacy or the freedom to choose.  The private lawsuit initiated in Missouri by Lt. Gov. Peter Kinder should consider some of the same arguments surrounding the 9th Amendment.

Federalism

Prop C falls within constitutional jurisprudence preventing the national government from co-opting state resources.  The national government can try to enforce the individual mandate through the IRS, but it will get no help from Missouri.  Combine this with the state’s obligation to defend individual Missourians, and one can see the difficulty the national government will have.  The Supreme Court decision in Printz v. United States recognized the constitutional limitations of Congress in imposing its will upon the states. And one need look no further than the decriminalization of marijuana in California to see this concept in practice.  Again, I am not sure why true liberals do not see the danger in supporting the progressive-statists controlling the Democratic Party.

Many non-experts have argued that the individual mandate “trumps” Prop C’s rejection.  First of all, the Supremacy Clause only applies to laws passed in pursuance to the Constitution, and as many in Congress have made clear, constitutional powers played no role in the drafting of Obamacare.  Second, as stated above, Missouri has no obligation to enforce the individual mandate.  I dare the Administration to file another unpopular lawsuit against a state operating within the confines of the Constitution.  And please do it before the November midterms.

The national government possibly has recourse through the withholding of federal funds, but with so many states challenging the individual mandate, I cannot imagine the national government withholding funds from a majority of the states.  At any rate, Prop C did not advance the powers of the state of Missouri, it simply put the state on the side of individuals in the conflict over Obamacare.

States’ Rights and Nullification

Do I need to repeat myself?! People that use these terms either do not understand the concepts or are deliberately trying to spin Prop C, and similar actions in other states, as a negative.  This conjures up images of the Civil War, and fuels the accusations of racism and armed insurrection made by the media.  These are not concepts that will drive independents to vote out the progressive-statists.  Stop using these terms!

Nullification describes an action by which a state invalidates a federal law.  Prop C did no such thing.  In fact, under Prop C individuals that still want to opt into a federal plan can do so.

Do not get me wrong, I fully support the 10th Amendment, but it speaks to powers, not rights, and nullification runs contrary to the Supremacy Clause.  However, as noted before, powers run contrary to rights, and I am much more concerned with individual freedom and the 9th Amendment than the powers of states.

States have filed lawsuits, but my legal background makes me wary of relying on the judicial branch to make the ultimate decisions on policy.  Marbury v. Madison established the Supreme Court’s role as the ultimate arbiter in conflicts involving the Constitution, but that does not guarantee that correct decisions will result.  So first we will examine the legislative solutions.

Many states across the country are either introducing laws or revising constitutions to protect Americans from the tyranny of Obamacare.  The progress of these Health Care Freedom Acts or Amendments are being tracked by various groups.  Most of this legislation is fairly simple to read and understand.  Basically, states are refusing to enforce or enact Obamacare, which is perfectly reasonable under the present legal understanding of federalism.  The national government cannot force states to enforce unfunded federal law.  A perfect example of this is the increasing decriminalization of marijuana in communities across America.  Local police are handing out tickets (much better for revenue than throwing people in jail).

Health Care Freedom passed in a few states, including the Commonwealth of Virginia (in addition to its lawsuit), and is working its way through the legislatures of many others.  The first state to allow its citizens to vote in a referendum is Missouri.  The Missouri Health Care Freedom Act (MHCFA) appears on the ballot on August 3.  This vote may prove crucial in the repeal of Obamacare.  If it succeeds by large margins it will signify the beginning of the end of the progressive agenda.  Anyone who is serious about defeating the progressives should support Missouri in its endeavor.  You can be assured that OFA, MORE (the new Missouri ACORN), and other progressive organizations will be pulling all sorts of shenanigans.

Now let us discuss some of the legal reasoning in the quest to repeal Obamacare:

1) The 10th Amendment:

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.

First off, there is no such thing as “states’ rights.”  The Tenth addresses “powers,” and we dilute the meaning of “rights” by suggesting that states have them.  While no formal definition of “reserved powers” exists for the states, some are readily identifiable.  National legislative powers are limited to the enumerated powers “herein granted,” according to Article I § 1 of the Constitution.  That is, if a legislative power is not mentioned within the confines of Article I, it is reserved to the states.  And while the national powers of both the executive and judicial branches include implied powers, the implied powers do not exist in a vacuum, or rather those powers relate to the aforementioned legislative powers.  Traditionally, “reserved powers” includes public health, safety and welfare.  Many more exist, though.  State common law drives contract, family, property and tort jurisprudence.

The legal argument pertains to the enumerated powers.  Essentially, neither health care nor insurance can be found within Congress’ enumerated powers.  Progressives love to misconstrue Article I § 8 cl 1:

The Congress shall have 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; but all duties, imposts and excises shall be uniform throughout the United States.

Apparently, “general” means “everything under the sun,” rather than “non-specific,” and one cannot get any more specific than an unprecedented 2400 page bill that addresses 1/5 of our economy.  Presumably, the states are tasked with providing for the “specific welfare.”  James Madison went further in delineating the powers of the national and state governments in Federalist 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; with which last the power of taxation will, for the most part, be connected. 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.

2) The Commerce Clause:

Article I § 8 cl. 3 reads:

To regulate commerce with foreign nations, and among the several states, and with the Indian tribes.

Progressives argue that even if the Constitution did not specifically grant the power to control health care, the Commerce Clause does, in conjunction with the Necessary and Proper Clause (Article I § 8 cl. 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.

Commerce clause jurisprudence cannot be discussed within the confines of this article.  Suffice it to say that a government mandate to buy health insurance or suffer a penalty stretches the legislative power “to regulate commerce.”  One could argue that if the government could force citizens to buy health insurance then the government could also force citizens to buy firearms.  See how that sits with progressives!

3) Roe v. Wade

Let me preface this by saying that Mississippi is one of my favorite states in the Union.  The people there are some of the most hospitable in the country.  And now they are fighting progressive policy with progressive logic.

Most legal minds, whether they support or oppose the result of Roe, agree that the legal reasoning was flawed.  Roe established the “right to privacy” in American jurisprudence out of thin air.

The Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution.

The problem is that the court did not go into great detail on the history of that right.  Another problem is that the court also recognized that this right was not absolute.  How a “fundamental right” cannot be absolute is perplexing, to say the least.  A later case, Planned Parenthood v. Casey, reaffirmed the rule in Roe, and furthermore, addresses government power in the realm of health care:

Roe, however, may be seen not only as an exemplar of Griswold liberty but as a rule (whether or not mistaken) of personal autonomy and bodily integrity, with doctrinal affinity to cases recognizing limits on governmental power to mandate medical treatment or to bar its rejection.

Further discussion of the lawsuit in Mississippi can be found here.

4) The 9th Amendment

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

Put simply, the government cannot ever be the guarantor of rights because those rights belong to the people, in opposition to government power.

The 9th Amendment would be more appropriately asserted by individuals, but this would not preclude state support.  I am not aware of any state asserting this argument directly, but it may not be applicable until the national government actually tries to enforce the individual mandate.  I have asserted the importance of this amendment in a discussion of “fundamental rights,” and in opposition to the progressive agenda. More importantly, this line of argument could prove persuasive to Justice Anthony Kennedy, a crucial vote on the Supreme Court.  Justice Kennedy likes to blaze a trail, and is acutely aware of his role in decision-making and precedence on the court.

In conclusion to this entire discussion, I leave you with these prophetic words of James Madison in Federalist 46:

But ambitious encroachments of the federal government, on the authority of the State governments, would not excite the opposition of a single State, or of a few States only. They would be signals of general alarm. Every government would espouse the common cause. A correspondence would be opened. Plans of resistance would be concerted. One spirit would animate and conduct the whole. The same combinations, in short, would result from an apprehension of the federal, as was produced by the dread of a foreign, yoke; and unless the projected innovations should be voluntarily renounced, the same appeal to a trial of force would be made in the one case as was made in the other. But what degree of madness could ever drive the federal government to such an extremity. In the contest with Great Britain, one part of the empire was employed against the other. The more numerous part invaded the rights of the less numerous part. The attempt was unjust and unwise; but it was not in speculation absolutely chimerical. But what would be the contest in the case we are supposing? Who would be the parties? A few representatives of the people would be opposed to the people themselves; or rather one set of representatives would be contending against thirteen sets of representatives, with the whole body of their common constituents on the side of the latter.

Source: CATO Institute

Here is what I actually said:

“This day, the day that that bill was passed, will be remembered just as 9/11 was remembered from history. It was an attempt by these people in Washington to defy the Constitution it is clearly in conflict with all of the basic precepts of the constitution.”

Within minutes liberals were insisting that  this madman from Buffalo had compared the passage of Obamacare with the tradgedy of 9/11. Why would reporters willfully misrepresent what I said and political hatchetmen like Congressman Jerrold Nadler attack me when I made no such comparison? Why would they smear me?

Any fair-minded person could see that I merely said both days would be widely remembered like JFK’s murder or the Space Shuttle Crash or the1929 stockmarket crash. Why would the pundits and commentators twist my words and seek to make me out an insensitive rube from upstate?

The political class in Albany and New York City know the taxpayers are finally fed up and a reform revolution that returns power to the people is rising. They want to discredit me before voters get a chance to learn my  common sense platform or my record of always doing what I say I’m going to do in business and civic life.

Congressman Nadler dismissed my criticism of the constitutionality of the Health Care Bill passed by Congress noting that he is the chairman of the House Judiciary Committee. That does not make him the final authority on this flawed law.

I too, am an attorney. There are several critical unconstitutional provisions in this bill, including:

• For the first time ever, the federal government is forcing people to buy a good or service in the marketplace. In my view, this exceeds Congress’s power under the commerce clause and brings into play the Tenth Amendment of the US Constitution which reserves such decisions to the states and the people.

• Some versions of the bill stretch the general welfare and equal protection clauses of the US Constitution past the breaking point by exempting some states from certain provisions and giving special privileges to others; and

• By forcing the states to create “benefit exchanges,” the bill violates federalism and threatens to make states into mere administrative branches of the federal government.

In short, this bill simultaneously establishes a precedent for total elimination of both federalism and individual economic freedom.

Obamacare must be stopped – for New Yorkers especially, who pay more for insurance than most Americans. Our Medicaid program is the nation’s most expensive, and we pay exorbitant local and state taxes to support it.

I have called on new york Attorney general Andrew Cuomo to  join other attorneys general in
filing suit to halt this destructive and unconstitutional legislation before it does irreparable harm to our already depressed economy.

To date I have not heard back from the Attorney General.

If I were Governor, on Monday I would ask the Attorney General to join in unison with dozens of states that will file suit against the federal government to stop Obamacare.

The fight over Health Care and the totally incompetent and dysfunctional system in Albany have energized me to get in the fight for reform and return New York to the greatness and land of opportunity it once was. I have met with over 2000 individual Tea Party Activists as well as dozens of Conservative and Republican Party Leaders.

I’m mad as hell about what is happening to New York.I have been encouraged to lead a grass roots rebellion for reform in the Empire State, to turn Albany upside down and take out the trash.

On April 5th I will announce my intentions regarding the New York Governor’s race.

According to the American Legislative Exchange Council, lawmakers in 24 states have at least pledged to introduce legislation modeled after their Freedom of Choice in Health Care Act, which nullifies an individual mandate to purchase federally approved health insurance. This amounts to a bold reassertion of the 10th Amendment, that long ignored protection of state sovereignty against federal infringement. Thirteen of these states have already filed or pre-filed constitutional amendments to protect the rights of individuals to make their own healthcare decisions.

One of these states is Arizona, where voters will decide the issue by statewide ballot in 2010. When voting on the Arizona Health Insurance Reform Amendment, citizens of the Grand Canyon State will have an important opportunity to take the lead in fighting federal overreach. A similar measure was only narrowly defeated — by 8,000 votes out of over 1.8 million cast — in 2008. Given the extreme likelihood that the 2010 electorate as a whole will be in a more anti-Obama mood than the one that swept him into office in 2008, there is reason for optimism that the measure will pass.

So what happens if Arizona, or any other state, passes such an amendment? Unfortunately, that is unlikely to be the end of it. ObamaCare supporters will quickly challenge the amendment in court, lest other states be tempted to follow suit and protect their citizens and healthcare markets from federal control.

The Constitution is fairly clear on this question. The federal government has a limited set of enumerated powers, while everything  else is reserved to the states and the people. None of these powers includes the ability to force people to purchase health insurance, or anything else for that matter. Sadly, modern Constitutional jurisprudence is far removed from the document it is purportedly based on. By consistently misinterpreting the commerce and general welfare clauses, the courts have allowed significant extra-constitutional growth of the federal government over the course of the nation’s history.

Despite this state of affairs, there is some hope that even a court system based on the flawed constitutional understanding of modern jurisprudence will balk at the audacity of ObamaCare. A recent report by the Congressional Research Service acknowledged that, “it is a novel issue whether Congress may use [the commerce] clause to require an individual to purchase a good or service.” And when this same issue arose in 1993 during the HillaryCare battle, the Congressional Budget Office found the mandate to be “unprecedented,” noting that, “the government has never required people to buy any good or service as a condition of lawful residence in the United States.” Still, lacking any Supreme Court precedent, a potential legal battle could go either way.

There can only be a legal battle, however, if the states and the people first reassert their sovereignty.

In order to insure that happens, activists should fight not just in Washington D.C., but also in the legislatures of their home states. Don’t just call Nancy Pelosi — who doesn’t care — or some moderate Senator who can be bought off by a few hundred million dollars in pork, but also call your state representative and tell him or her that you want an amendment to protect the rights of citizens to decide what, if any, insurance they want to purchase.

Many lawmakers across the U.S. are already sticking out their necks by standing up against a federal takeover of the healthcare industry. Legislators from 15 states held a press conference on Dec. 4th to unveil a letter, signed by over 100 lawmakers from 45 states, opposing ObamaCare. We must now put pressure on their colleagues to join them. If elected officials in Washington D.C. cannot be counted on to fulfill their duty to pass only those laws within their constitutional authority, then we have no choice but to look elsewhere to recapture our rights.

He’s right about that. But Hoyer made this statement as part of an effort to justify the health-care mandate on constitutional grounds. Here he indicates that he doesn’t understand the Constitution that he took an oath to support.

When asked what power the Constitution gives to Congress to enact this legislation, Hoyer claimed that it came from the Constitution’s “general welfare” clause.

Article One, section eight says that Congress can “lay and collect taxes… to pay the debts and provide for the common defense and general welfare of the United States.”

But what defines the “general welfare”?

As James Madison explained, the general welfare is defined by the list of enumerated powers in the seventeen clauses that follow. These include the power to borrow money, to establish post offices, to define and punish piracy, to raise and support armies.

The fundamental point was that the federal government did not possess a general grant of power, but was limited to enumerated or delegated powers. The rest of the general reservoir of governmental power (known as the “police power”) was left to the states. The Tenth Amendment reiterated the point.

The language of the Constitution was quite explicit about this—precise to the point of punctuation. A draft of the document at the Constitutional Convention contained a semicolon between the taxing phrase and the general welfare phrase. As an independent clause, the taxing power could have been used for any purpose under the sun. Instead, the sharp-eyed founders substituted a comma for the semicolon, thus tethering the taxing power to the general welfare clause and the enumerated powers.

It is notable that the enumerated powers all involve subjects that are of genuinely national significance—many concern foreign affairs, the territories, and the federal district. Hardly anyone would deny that the army and navy could be left to states or individuals. The enumerated powers are also notably specific. Why write that Congress has the power to “provide for the punishment of counterfeiting the securities and current coin of the United States” if Congress could punish all sorts of other crimes?

Of course, the list includes the power “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers.” But this simply meant that Congress enjoyed a choice of means by which it could achieve the foregoing ends.

It is true that, contra Madison, Alexander Hamilton regarded the general welfare clause as a grant of power beyond those enumerated. But even Hamilton agreed that the end had to be general. Congressman Hoyer says that “the end that we’re trying to effect is to make health care affordable.” Besides the fact that federal intervention has only made health care (like education) less affordable, accelerating costs far beyond that of inflation, this is hardly a “general” purpose (like national defense) that could not be accomplished by states, voluntary associations, and individuals.

Madison’s view of the general welfare clause predominated for the first century and a half of the republic. But Congressman Hoyer’s Constitution begins where Madison’s ended, with the New Deal. And this makes Hoyer’s claim that we need not worry about Congress overstepping its general welfare limits because “I’m sure the Supreme Court will find a limit” rather humorous.

The first case in which the Supreme Court interpreted the general welfare clause as going beyond the enumerated powers was United States v. Butler (1936), when it struck down the first Agricultural Adjustment Act. An act that taxed agricultural processors to pay subsidies to farmers could hardly be called “general.” But the following year, after President Roosevelt threatened to “pack” the Court, the justices accepted the Social Security Act, which taxes employers and employees to pay for old-age pensions and other social insurance.

Social Security, the mother of all entitlements, was born when the Supreme Court abandoned the proper understanding of the general welfare clause. And she now begets constitutionally illegitimate children like health-care reform.

Congressman Hoyer is either ignorant of or averts his eyes from this history. One must give credit to President Obama for this much—he recognizes that the Constitution stands in the way of modern liberalism. In a 2001 interview on Chicago public radio, Obama lamented that we have still not broken “free from the essential constraints that were placed by the Founding Fathers in the Constitution… that generally the Constitution is a charter of negative liberty.” But it is doubtful that former Professor Obama will help in the education of Congressman Hoyer.