John McCain and Congressional Republicans Notified Obama Ineligible

. . . but they did nothing.

Here is a real lawsuit. Sue John McCain and the Republican National Committee.

Prior to the election, and prior to the Congressional Certification of Electoral Votes, McCain and 76 congressmen were faxed and e-mailed, and therefore informed that Barack Obama was not a Natural Born Citizen, and what to do about it.

John McCain was nominated to win the election, not play ‘nicety-nice’ . . . especially when a question of constitutional eligibility was involved.

Following is the second notice I faxed and e-mailed over seventy congressmen, including John McCain.

LEGAL MEMORANDUM

• Confusion over ‘Native-Born’ versus ‘Natural-Born’
• Congressional Certification of Electoral Votes – 3 U.S.C. § 15

The Definition of ‘Natural Born’

The chief framer of the 14th Amendment of the Constitution, John A. Bingham, stated, “[E]very human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen.” Cf. Sec. 1992 of U.S. Revised Statutes (1866), and U.S. Const. XIVth Amend.

However, the only fact on Obama’s Certification of Live Birth pertinent to Obama’s ‘natural-born’ status is Obama’s father’s race being listed as ‘African.’ It is common knowledge that Obama, Sr. was a Kenyan national.

If born in a Hawaiian hospital, Obama is ‘native‘ born. But a ‘natural born’ citizen must have two U.S. citizen parents.

Barack Obama Birth Certificate ‘created’ under Hawaiian Rev. Stat. § 338-5?

With Honolulu as the place of birth on Obama’s Certification of Live Birth, the average American assumes that President-elect Obama is a ‘natural born’ citizen. He is not.

For all we know, the birth certificate attested to by Hawaiian official Dr. Fukino is from a Hawaiian hospital. But, there is also a certificate that can be issued solely on the testimony of ‘one parent’:

Hawaiian Rev. Stat. §338-5 Compulsory registration of births. Within the time prescribed by the department of health, a certificate of every birth shall be substantially completed and filed with the local agent of the department in the district in which the birth occurred, by the administrator or designated representative of the birthing facility, or physician, or midwife, or other legally authorized person in attendance at the birth; or if not so attended, by one of the parents.

The ‘Certificate’ of Live Birth that the ‘Certification’ of Live Birth references is the only proof whether Obama was born on the Hawaiian mainland, or just to a resident of Hawaii. This is key to determining whether Obama is a ‘native’ born American, or foreign born.

To date, we have been blocked by the Obama organization from seeing the original document.

On January 8, 2009, Congress has the Obligatory and Unenviable task of distinguishing Obama’s prima facie ‘native born’ status from that of Constitutionally required ‘natural born.’

In the 2000 Presidential election, the Democrats used every legal tactic to hold the executive office. Al Gore went to the Florida Supreme Court to delay certification of the vote in order to scrutinize and interpret rejected ballots. G.W. Bush appealed the delay in Bush vs. Gore.

When Ohio went to George W. Bush, the Democrats tried to block the Ohio Electoral votes during the congressional certification process.

New York Times

WASHINGTON, Jan. 6 [2000] – “Congress officially ratified President Bush’s election victory on Thursday, but not before Democrats lodged a formal challenge to the electoral votes from Ohio, forcing an extraordinary two-hour debate that began the 109th Congress on a sharp note of partisan acrimony . . . a single senator – Barbara Boxer, a California Democrat who was sworn in Tuesday for a third term – joined Representative Stephanie Tubbs Jones, Democrat of Ohio, in objecting to Ohio’s 20 electoral votes for Mr. Bush, citing voting irregularities in the state.”

Here is the law the Democrats relied on to block the Ohio votes.

Congress shall be in session on the sixth day of January succeeding every meeting of the electors . . . and the President of the Senate shall be their presiding officer . . . Upon such reading of [the electoral votes], the President of the Senate shall call for objections, if any. Every objection shall be made in writing, and shall state clearly and concisely, and without argument, the ground thereof, and shall be signed by at least one Senator and one Member of the House of Representatives before the same shall be received . . . No votes or papers from any other State shall be acted upon until the objections previously made to the votes or papers from any State shall have been finally disposed of. 3 U.S.C. § 15 Counting electoral votes in Congress

It is an unimpeachable fact that Barack Hussein Obama is not a ‘natural born’ citizen.

As a British Colonial, Obama, Sr. created a dual nationality at his son’s birth. While Obama derived U.S. citizenship under 8 U.S.C. § 1409(c)’s out of wedlock provision (the Obama-Dunham marriage was void ad initio due to bigamy) or the 14th Amendment, the 1948 British Nationality Act claimed jurisdiction through the father.

To make matters more complicated, at age 6, Obama became a naturalized Indonesian. However, he maintained his right of election from birth establishing his U.S. citizenship through the Immigration and Nationality Act of 1952, § 301(a)(7) and 301(b)’s five-year continuous residency requirement to become a U.S. citizen.

Compounding Obama’s multi-national heritage even further, his own mother renounced her U.S. citizenship permanently when Obama was six years old. Finally, Obama carried an Indonesian passport up to age 21 years old, traveling to Pakistan to visit his mother until her death in 1992.

James Madison, John Jay and others promoted the Article II ‘natural born’ eligibility clause to prevent the installation of a President with dual allegiances.

In one month, we risk swearing into office a constitutionaly ineligible candidate of questionable allegiances. In 2007 and 2008, Obama spent a good deal of his senatorial career and treasury supporting Raila Odinga, the Luo candidate for President of Kenya. The Luo’s are the tribe of Obama’s father, and are Marxists and Muslim sympathizers. Obama’s interference fomented Luo rioters who killed over a thousand people and burned dozens of churches . . . one reported full of Christians hiding from the massacre outside. Condaleeza Rice reprimanded Barack Obama, telling him support of Odinga was contrary to U.S. policy and interests.

Obama’s radical alliances substantiate the wisdom of our founding fathers’ constitutional requirement that the president be a ‘natural born’ citizen of only one allegiance.

Conclusion:

In 2000, the Democrats exerecised 3 U.S.C. § 15 under questionable circumstances. Now, in the election of 2009, the Republicans have a mandatory responsibility to address this issue, or be forever diminished in the eyes of their party and history. The U.S. Supreme Court held that Congress has the power to police its own legislation. The Democrats investigated the McCain candidacy, and now must do the same for Barack Obama’s.

We can not anticipate the potential damage to treaties, legislation, budgets, executive orders, and war powers when the president is constitutionally ineligible to hold office.

Jr. High School Science Fair Stunned with Greenhouse Gas Experiment

A student built two plexiglas boxes containing plants. To Box A he added a cup of water, and to Box B a cup of water and . . . a lit oil lamp.

They were sealed and put outside.

Within a month one box of plants withered and turned into a miniature desert. The other box was luxuriant and the plants thrived.

 Can you guess which? Answer in the Post Script.

 P.S.  I made this up, but wouldn’t it be a great local newspaper story?

       You see, Box B’s oil lamp produced a steady supply of water vapor and CO2 . . . Box A’s plants eventually starved without the  fuel of human energy and productivity . . . combustion of Hydro-Carbons.

      The student was expelled for the heresy of ridiculing Global Warming  ’science.’

Diagramming the Grammatical Structure of Article II, § 1, Cl. 4

“No person except a natural born citizen, or a citizen of the United States, at the time of adoption of this Constitution, shall be eligible to the office of President . . . “ U.S. Const. Art. II, Sec. 1, Cl. 4

Remember diagramming sentences? We all studied this in the 4^th grade, and hopefully again when you fulfilled your English requirements in college.

In legal writing, the best teachers are lawyers who know sentence structure like an ASE certified mechanic does your car. They know the parts, their names, and how they function properly in relation to each other. It is essential to know your grammar in order to write good briefs and interpret statutes and case law.

I studied grammar several times, including the more complex constructions of Latin and German. But, I do not claim to be an expert. In fact, the research and refresher courses I attempted for this article reminded me why grammar is such a discipline. So, I backed off and kept it to the basics.

Breaking Down Article II into its Grammatical Parts

The subject is ‘office’ of the President. That is what the modifiers are describing.

‘No person except’ sets up the primary and subordinate adjective clauses describing who is ‘eligible’ to the ‘office,’ 1) ‘a natural born citizen,’ and; 2) ‘or a citizen of the United States.’

Note: ‘Natural Born Citizen’ and ‘Citizen’ are not appositives, but a primary and subordinate clause separated by the conjunction ‘or.’ Conjunctions set up alternatives to the main clause or subject. If ‘natural born’ and ‘citizen of the United States’ were synonyms in appostive construction, then the word ‘or’ would not be required.

‘At the time of adoption of this Constitution’ is a prepositional phrase further describing the adjective clauses . . . as are the later 35-year old and 14-year residency requirements.

‘Of the President’ describes, of course, ‘office.’

Liberal Interpretation

Liberals are true to the legal definition of their name, they interpret the law beyond its original scope and boundaries. In the case of Article II, they try to blur the distinctions between ‘natural born citizen’ and ‘citizen.’

If this was true, the sentence would set up the two adjective clauses as appositives, basically synonymous terms. A ‘citizen’ would then be equal to a ‘natural born citizen’ with no distinctions . . . in which case John Madison would have just relied on his sentence structure in Article I, Sec. 3, Cl. 3, simply describing the qualifications of a Senator as being a ‘Citizen.’

Natural Born Citizen, versus Citizen

At the time of adoption of the Constitution (remember that prepositional phrase?) there were two possible types of citizens.

1)      Natural Born Citizens – These were those children of U.S. Citizens, which is necessarily after the time of adoption, not prior.

2)      Citizens – Who were the first citizens of the United States AT the time of adoption? It is safe to say that anyone, and their children, native to or lawfully residing in the United States, who accepted the legal authority of the Constitution and who rejected foreign allegiances.

Every one of our first presidents were native born in the various states of the original thirteen colonies. But, as the colonies were under the jurisdiction of England, they were by law Natural Born British subjects, born of British fathers on British controlled lands.

The Constitution, by power of its adoption, ‘naturalized’ these British subjects and they became the first U.S. citizens and were eligible for the office of president until the first children born into that fortunate condition reached the age of 35. John Tyler, born about six months after the adoption of the Constitution, was the first natural born citizen to become president.

Barack Hussein Obama, a Natural Born British Subject

President Obama was born either in the United States, or Kenya. A court order for him to produce certified copies of his original birth certificate will determine which country.

But for now, we can apply both British and U.S. nationality law and safely say that if born in Kenya, Obama was a natural born subject of Britain. He was a U.S. citizen ONLY if you consider Stanley Ann Dunham’s marriage to an already married Obama, Sr. bigamy, and therefore void, and Obama, Jr. born out of wedlock. This complicated and fraudulent marriage allowed Dunham to avoid U.S. residency requirements through 8 U.S.C. 1409.

If the much publicized Hawaiian C.O.L.B. is validated a genuine native birth with production of Obama’s birth certificate from a certified birthing facility, hiding somewhere in Hawaii’s Department of Vital Records, then Obama is a ‘native born’ U.S. citizen under the 14^th Amendment and 8 U.S.C. 1401.

British law was in effect, however, but required filling proper papers to record the birth with the British secretary of state. Obama, Sr. did not do this in the year required, and Obama was de-alienaged of British nationality by statute. He was, therefore, a U.S. citizen by statute, not by natural birth.

Why isn’t Obama’s birth to a U.S. citizen mother on U.S. soil not ‘natural born citizenship?’ . . . because, natural born citizenship devolves primarily from the father.

Generally speaking, the mother is the same nationality of the father. Prior to the 1920’s, marriage automatically naturalized the wife to that of the husband. In Dunham’s situation, statute was required to ‘de-alienage’ the natural nationality from the father to that of the mother. At best, Obama was a dual-national, which doesn’t qualify under the ‘no person except’ clause.

If born on U.S. soil, the 14^th Amendment described the types of parentage allowed to qualify for citizenship. But, while U.S. citizen father and mother are qualified to pass citizenship on to a U.S. born child, no amendment or statute is required. Without the 14^th Amendment, or the mirroring statute of 8 U.S.C. 1401, the child would be a natural born citizen. In other words, there would be no possible foreign nationality requiring statute to remove or accept as secondary.

An Allegation of Violation of Constitutional Law MUST be heard

J. Carter determined jurisdiction over constitutional law, or statutory law. He chose no jurisdiction, however . . .

 . . . In the matter of eligibility and standing, both are rooted in constitutional law.

Article II requires a Natural Born Citizen, or Citizen, at the time of Adoption of this Constitution. The birth certificate, or incidents of case law mentioning ‘natural born citizen,’ do not determine who a natural born citizen is; the distinction made in Art. II, Sec. 1, Cl. 4 (not ‘Cl 5,’ which Carter mis-cites) is clear what a natural born citizen is, and is not. It is a citizen born to U.S. citizens, the latter ‘Citizen’ being sons of British subjects naturalized by the Adoption itself.

A son of a British subject after the Adoption, regardless of citizenship gained by statute and permanent residency, is not a natural born citizen.

Standing is also constitutional, not the manipulations, stretches of logic, and parsings of Lujan. If a Constitutional Law is Violated, We the People are deprived of our ‘legally protected interests.’

Therefore, Carter MUST determine if a violation has occurred.

Even more egregious is Carter’s mocking of co-defendant Alan Keyes’ four one-hundredths of one percent, compared to Obama’s 57% of the popular vote.

Since when, Judge Carter (or clerk hired from defendant counsel) does the popular vote supercede Constitutional law? Why then, at all, the protection of the Republic by Constitutional Law? We should rely solely upon the mob.

Recall this previously posted citation, used judiciously by Attorney Mario Apuzzo—

It is most true that this Court will not take jurisdiction if it should not: but it is equally true, that it must take jurisdiction if it should. The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the Constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it, if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constitution.  

 U.S. Supreme Court Chief Justice John Marshall, Cohens v. Virginia 19 US 264 (1821)(emphasis added)

 Note: When used in law, ‘must’ is an imperative; an unavoidable order that ‘must’ be followed.

 This dismissal, and that of J. Surrick in the Berg case, is a travesty of jurisprudence.

The Fetus as an Individual, Invalidating Roe vs. Wade

Roe v. Wade Unconstitutional

We are under a Constitution, but the Constitution is what the judges say it is.

Charles Evans Hughes, 1907

Justice Rehnquist dissented in Roe v. Wade that the court had overstepped its jurisdiction and essentially legislated from the bench.[1] But the holding was far more unconstitutional than merely an abuse of its appellate jurisdiction under fact and law.[2] The law the Supreme Court created in Roe is an unconstitutional and unlawful Bill of Attainder.[3]   

A Bill of Attainder is a legislative act sentencing a person to death. Some might argue a judicial holding is an interpretation of existing law, not a legislative act. But, the court essentially repealed a state statute and replaced it with its own; thus, Rehnquist’s legislation from the bench. The unlawful Bill of Attainder fits.[4]

The Fetus is an Individual under State Protection

There is a conflict of law created by Roe. As of this time, a fetus is not considered a person with full rights under the constitution. The Texas law Roe struck down specifically protected the life and welfare of the fetus, but the States curiously continue to have a compelling interest in the health, safety and welfare of the fetus.[5] Does the State have a compelling interest, or not?

It is common knowledge that a pregnant woman who abuses drugs and alcohol can be arrested. The death of both a mother and her fetus counts as two manslaughters, or manslaughter and a feticide. Therefore, the fetus is considered by the law to be a living entity, and it is a double standard for the State to protect the fetus from a mother’s abuse, yet not the mother’s intentional murdering of it.

In addition, under probate law, ‘after-born- heirs are defined as being in gestation at the time of the will, but “treated as living . . . if the individual lives one-hundred and twnty hours or more after birth.”[6]

This further conforms to the legal definition of a person being a human entity, a living individual. In direct conflict with Roe, a fetus is, under a preponderance of law, a person, albeit unborn, but nevertheless, conceived and impliedly under parentis of the mother.

Roe v. Wade denies this, reasoning that:

[U]nborn children have been recognized as acquiring rights or interests by way of inheritance or other devolution of property, and have been represented by guardians ad litem. Perfection of the interest involved, again, has generally been contingent upon live birth. In short, the unborn have never been recognized in the law as persons in the whole  sense. (Emphasis added.)

In reality, the previously quoted probate law impeaches J. Blackmun’s assertion that the law requires birth. The recognition of a fetus, or unborn person, is predetermined as living at the time of the will. That is the law. If it dies within 120 hours of birth, its interest in the inheritance lose standing under intestate succession. Roe, however, allows a mother to terminate the unborn person well within the 120 hour window, which violates the will of the testator and lawful succession.

Therefore the life of the fetus is to be protected by the guardian ad litem, or executor, as a portion of the will protected under probate law regarding consanguine distribution is being subverted by an overt and immoral act.

Roe is a double standard narrowly protecting a mother’s social and financial self-interest and freedom to engage in unprotected sex,[7] but not expecting her to accept the potential responsibilities. If the Griswoldian[8] freedom to use birth control is not sufficient family planning, then let the mother choose a good husband and prepare a home before risking pregnancy, The right of feticide as abhorrent to any reasonable person, and worthy of George Washington’s Thanksgiving Prayer, asking forgiveness for ‘national transgressions.’[9]

The most common constitutional argument is that a fetus is not a “person born.” This is biased and a tunnel-vision interpretation of the 14th Amendment ‘person born’ clause; that only a ‘person born’ is under U.S. jurisdiction and a citizen of the United States.[10] By that selective reasoning, human beings who are unborn have no rights. However, that caveat was specific to children born of alien residents. It cannot reasonably be interpreted as an all-encompassing definition of ‘person.’ There are too many other aspects of law that say otherwise.

Roe was a class action represented by only one person who, as Justice Rehnquist dissented, did not factually or adequately represent the class. Instead, Justice Blackmun applied liberal judicial discretion to fabricate a new law in the face of twenty-one states that claim a legal compelling interest in the health and welfare of a living human being. In contrast, even one fetus faces with the undeserved and inhumane termination does represent the entire class for purposes of protection.

All that is needed is a beneficiary that desires an ‘after-born’ legacy in his will and testament to challenge a mother’s planned abortion. O, any citizen, organization, or offer of the court can challenge the inhumane, unjust, and unconstitutional sentence of death on a fetus. Once the definitions are clear, the ‘bill’ of attainder written and issued by the judiciary act of legislation . . . the space on this bill blank,’ only to be filled in by the mother as a private act with a doctor willing to violate his Hippocratic Oaths is, on its face, unconstitutional.

---

[1] “The decision here to break pregnancy into three distinct terms and to outline the permissible restrictions the State may impose in each one . . . partakes more of a judicial legislation than it does of a determination of the intent of the drafters of the Fourteenth Amendment.” Rehnquist dissenting in Roe V. Wade, 410 U.S. 113 (1973)

[2] U.S. Const. Art. III, § 3, Cl. 2

[3] U.S. Const. Art. I, §§  9, Cl. 3, and 10, Cl.1

[4] A bill of attainder is “a law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial.” Selective Service System v. Minnesota Public Interest Research Group, 468 U.S. 841, 846-847 (1984); citing from Nixon v. Administrator of general Services, 433 U.S. 425, 468 (1977)

[5] See the ‘compelling interest test,’ Weber v. Aetna Casualty & Surety Co. 406 U.S. 164, 179 (1972)

[6] Uniform Probate Code, § 45-2-108

[7] Cf. Pierce v. Society of Sisters, 268 U.S. 510 (1925)

[8] Griswold v. Connecticut, 381 U.S. 479 (1965) A case involving birth control for married couples.

[9] George Washington’s Thanksgiving Proclamation, 1 Annals of Congress 914 (1789)

[10] Albeit persona gratis and, arguably, not illegal aliens. However, this is another constitutional question.

My Reponse to the Kerchner Dismissal

re: the Political Questions Doctrine

In Laboratory Corporation of America Holdings v. Metabolite Laboratories, Inc. and Competitive Technologies, Inc.  (04-607) the court admitted it had no jurisdiction over Natural Law.

Through requests for amicus briefs, it determined the patent in question was invalid as it tried to license a natural chemical reaction. However, the holding limited itself to the court recognizing natural law and its lack of jurisdiction over it.

In the same light, the courts have no jurisdiction over the definition of natural born citizen, only its interpretation from the law itself.  The interpretation comes not from Vattel or numerous SCOTUS cases, but from the law’s succinct context. Relying on case law not on point, and their discussions of Law of Nations and Common Law is instructive, but Article II stands on its own and requires no legal argument per se. One might recall the doctrine of Repsicity, from the Latin maxim Res Ipsa Loquitur, The Thing Speaks for Itself . . . or, as the founders phrased it, ‘Self-Evident.’

Article II is the only law naming ‘Natural Born Citizen’ as a legal requirement, and it is the supreme law of the land. The language is plain and free from vague legal terms and jargon. It requires an, “[a] natural born citizen, or [b]citizen, at the time of adoption of this constitution.”

Popular interpretation supporting Pres. Obama favors ‘native’ born, especially from a U.S. mother. However, if that is true, Article II would not require a distinction between ‘natural born citizen’ and merely ‘citizen,’ the latter allowing 35 years of native born sons of British subjects who became U.S. citizens ‘at the time of adoption.’

It would only require a ‘native born citizen.’ No distinction would be necessary.

John Tyler, our 10th president, was the first ‘natural born citizen’ to be elected, as he was born six months after the adoption. As he approached the 35-year age requirement, native born sons of British subjects were eligible. They, of course, eventually died off and only the natural born citizen requirement remained applicable.

The Political Questions Doctrine is not a defense if the court is not overturning an election. It is, after all, up to Congress to act . . . and they may decide to do nothing.

The Clinton impeachment is a good example. Clinton was found guilty of perjury, etc., but the election was not overturned with his removal from office.

Bush vs. Gore (2000) is also on point. SCOTUS determined that the Civil Rights action delaying federal and state constitution requirements to certify the vote count was taking too long, and the Florida court had to decide when to hold ‘em, or fold ‘em. The Florida court realized it had taken the recounts too far and ordered the required certification.

Medicine Dispensed by Doctor? or Federal Advisory Board

Fee-for-Service . . . an Anathema to Single-Payer Global Health Insurance

 

The 1100+ page healthcare bill, HR 3200, creates a new ‘contract’ between citizens and access to their doctors. On one side of the politician’s mouth is the message of “affordable healthcare for all.” But, if the other side would speak, you’d hear details of a massive plan that takes your medical care from the intimate privacy of your doctor’s office to back room analysis from “accountable care organizations.”[1] (ACO’s)

 

An ACO is “composed of hospitals, physicians and/or other clinician and non-clinician providers working as a team” and would “accept responsibility for all or most of the care that enrollees need.”[2] This group, not your doctor, would oversee your healthcare.

 

Healthcare rationing, conflicting care philosophies and priorities, or concerns over costs contribute to the unpredictable outcomes of ACO oversight. The trend is an end to ‘fee-for-service’ medical care in favor of ‘capitation’ within ‘global payment.’ If you don’t know what these terms mean, good luck in understanding the agenda of healthcare reform.

 

Let’s say your HMO is hospital-based with doctors as employees or a doctor-owned professional association. When your doctor orders tests for HIS diagnosis, his HMO covers those costs. The advantage is excellent healthcare determined by the skill and care of your doctor. The only disadvantage is that when you move to another region, you must seek similar services.

 

Then, there is the Blue Cross and Blue Shield model. BCBS has entities chartered in every state, but no hospitals. If your doctor decides to order those same tests, BCBS’s board may decline payment, and then the hospital will bill you for the balance. Maybe the tests were essential to diagnosis, but the BCBS board flagged the tests as ‘repetitive,’ ‘duplicative,’ or other code words for defensive medicine.

 

So, you pay the bill or challenge it. But, the advantage to BCBS is it is portable from one state to another.

 

 

 

 

Loss of Coverage and Pre-Existing Conditions

 

If you lose your insurance and have a pre-existing condition, it can be costly if not impossible to find a new insurance policy. The first suggestion is not to lose your original policy that you’ve been paying into faithfully for years. That is the definition of insurance in the first place. State oversight through their Public Corporation Commission is supposed to prevent such loss of coverage.

 

However, if you do lose coverage and can not find a new insurer, you may be eligible, for a limited time, under your state’s ‘high risk medical pool.’

 

Nevertheless, some ‘fall through the cracks’ and end up with no insurance. They are the small percentage who must rely on ER indigent care. These are whom government is basing changing the entire health insurance industry for . . . illegal aliens, indigents, or persons who messed up on paperwork due to lack of personal initiative or ability.

 

The Federal Solution is Potentially Unconstitutional

 

The problem is that the Federal solution to this small percentage insists on global coverage and the eventual extinction of fee-for-service patient:doctor relationships.

 

Here is the danger of the extinction of fee-for-service. If the Federal plan denies fee-for-service for those who can pay to extend or save their lives, the legislative act that eliminates private care unconstitutional.

 

There is a law in Article I, Sec. 9, Cl. 3 of our constitution that bars the legislation of ex post facto law, and a little archaic thing called a Bill of Attainder. What is a Bill of Attainder? Attainder, or to attaint, was a common law practice of stripping a man, and his successors, of his title . . . his estate . . . and all civil rights. Our founding fathers, while recognizing the contributions of English common law to subjects and civilization, decided the Bill of Attainder was in conflict with a citizen’s inalienable rights, and banned it.

 

Similarly, a legislated Federal healthcare system denying direct access of a citizen to a doctor in a fee-for-service transaction is disturbingly analogous to Attainder. The irony is that Federal law mandates that a private hospital treat, at a potential cost of multiple millions of dollars, an indigent illegal alien; but that same law will deny private service to a paying citizen.

 

There is the ‘rub.’ You may feel you are reasonable promoting a tax-based healthcare system, but if you take from the rich to service the poor, there won’t be “no rich no more.” (I’d Love to Change the World, Alvin Lee, ‘A Space in Time’ by Ten Years After) That, in effect, will create a ‘global’ Bill of Attainder. The rich, even the middle class, won’t be able to afford doctors’ services driving the market forces that gave us the most advanced medical system in the world in the first place.

 

For a more immediate and ‘fair market’ solution to reducing health insurance costs, making it affordable to just about everyone at any age, see http://paralegalnm.wordpress.com/2009/03/05/personal-injury-attorneys-and-liability-insurers-stealing-from-hmos-and-injured-parties/

 

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[1] Commonwealth of Massachusetts. Recommendations of the Special Commission on the Health Care Payment System. July 16, 2009. (Accessed July 27, 2009, at http://www.mass.gov/dhcfp/paymentcommission.), as cited by; ‘The End of Fee-for-Service Medicine?, Dr. Robert Steinbrook, M.D., New England Journal of Medicine, July 29, 2009 at http://healthcarereform.nejm.org/?p=1247?query=TOC

[2] Ibid

Volokh Conspiracy — ‘Is Obamacare Unconstitutional’

Obama, not the Bush administration, has trampled the constitution. Justice Ginsberg’s support of Obama vitiating the Indiana pension fund bond investment in Chrysler/Cerberus in favor of the UAW was abhorant, as well as his interference with bankruptcy law in general.

The unconstitutionality of the Federal government nationalizing health insurance to the detriment of private enterprise is in direct conflict with the Commerce Clause and the enumerated powers of the 10th Amendment.

Current State Control of Insurance

The states have control over the insurance business in their respective states . . . how much they charge, who they must insure, and how they settle claims. Pundits, ill-informed ones, say, “Why not let someone in New York buy a cheaper policy in Pennsylvania?” The answer is the PA company can operate in NY, but has to become chartered first. Of course, it is state corporation commission policy that creates disparity . . . and the corporation commissions are highly political offices.

Obama ‘Rationed’ Care an Unlawful Bill of Attainder

If the Obama plan denies a patient who needs lifesaving treatment and, in addition, denies that patient from using his own resources to hire a doctor to provide that treatment, that legislative healthcare is an Unlawful Bill of Attainder. To essentially sentence a critically ill patient to an early(ier) death, is unconstitutional. (See U.S. Const. Sec 9, Cl 3)

That is a given . . . but here is an excellent post from the Volokh Conspiracy legal web-blog.

 
> Date: Sat, 22 Aug 2009 18:50:53 -0400
> To: volokh@lists.powerblogs.com
> From: notify@powerblogs.com
> Subject: [Volokh] Jonathan Adler: Is ObamaCare Unconstitutional?
>
> Posted by Jonathan Adler:
> Is ObamaCare Unconstitutional?
> http://volokh.com/archives/archive_2009_08_16-2009_08_22.shtml#1250981450
>
>
> [1]David Rivkin and Lee Casey argue that a federal mandate requiring
> all individuals to obtain health insurance would lie beyond the scope
> of Congress’ enumerated powers. Specifically, they argue that neither
> the power to “regulate commerce among the several states” nor the
> taxing and spending power could support such an all-encompassing
> mandate. Here is a taste of their argument:
>
> Although the Supreme Court has interpreted Congress’s commerce
> power expansively, this type of mandate would not pass muster even
> under the most aggressive commerce clause cases. In [2]Wickard v.
> Filburn (1942), the court upheld a federal law regulating the
> national wheat markets. The law was drawn so broadly that wheat
> grown for consumption on individual farms also was regulated. Even
> though this rule reached purely local (rather than interstate)
> activity, the court reasoned that the consumption of homegrown
> wheat by individual farms would, in the aggregate, have a
> substantial economic effect on interstate commerce, and so was
> within Congress’s reach.
>
> The court reaffirmed this rationale in 2005 in [3]Gonzales v.
> Raich, when it validated Congress’s authority to regulate the home
> cultivation of marijuana for personal use. In doing so, however,
> the justices emphasized that — as in the wheat case — “the
> activities regulated by the [Controlled Substances Act] are
> quintessentially economic.” That simply would not be true with
> regard to an individual health insurance mandate.
>
> The otherwise uninsured would be required to buy coverage, not
> because they were even tangentially engaged in the “production,
> distribution or consumption of commodities,” but for no other
> reason than that people without health insurance exist. The federal
> government does not have the power to regulate Americans simply
> because they are there. Significantly, in two key cases, [4]United
> States v. Lopez (1995) and [5]United States v. Morrison (2000), the
> Supreme Court specifically rejected the proposition that the
> commerce clause allowed Congress to regulate noneconomic activities
> merely because, through a chain of causal effects, they might have
> an economic impact. These decisions reflect judicial recognition
> that the commerce clause is not infinitely elastic and that, by
> enumerating its powers, the framers denied Congress the type of
> general police power that is freely exercised by the states.
>
> As much as I oppose the various health care reforms promoted by the
> Obama Administration and current Congressional leadership (and as much
> as I would like to see a more restrictive commerce clause
> jurisprudence), I do not find this argument particularly convincing.
> While I agree that the recent commerce clause cases hold that Congress
> may not regulate noneconomic activity, as such, they also state that
> Congress may reach otherwise unregulable conduct as part of an
> overarching regulatory scheme, where the regulation of such conduct is
> necessary and proper to the success of such scheme. In this case, the
> overall scheme would involve the regulation of “commerce” as the
> Supreme Court has defined it for several decades, as it would involve
> the regulation of health care markets. And the success of such a
> regulatory scheme would depend upon requiring all to participate.
> (Among other things, if health care reform requires insurers to issue
> insurance to all comers, and prohibits refusals for pre-existing
> conditions, then a mandate is necessary to prevent opportunistic
> behavior by individuals who simply wait to purchase insurance until
> they get sick.)
>
> [6]Jack Balkin is similarly unconvinced. I generally agree with his
> bottom line, but would question some of his argument as well. First,
> he chides Rivkin and Casey for making an argument that would
> effectively invalidate the New Deal. I am not sure this is true. While
> some post-1937 programs might be at risk, one might also distinguish
> Wickard on the grounds that it involved a commodity sold in interstate
> commerce (wheat), whereas health insurance is a service. One might
> also argue that there is a difference between seeking to control the
> conditions of any commodity sale (its price, quantity, etc.) and
> mandating that a sale take place. This line would be similar to that
> embraced in some New Deal commerce clause cases that upheld federal
> regulations setting conditions on the manufacture of goods sold in
> interstate commerce while ostensibly leaving the manufacture of goods
> not sold in interstate markets untouched. If I recall correctly, this
> line was maintained until [7]Maryland v. Wirtz in 1968. So while The
> Rivkin-Casey argument is aggressive, I don’t think it would completely
> overturn the New Deal.
>
> Balkin also chides Rivkin and Casey for citing [8]Bailey v. Drexel
> Furniture, “a case from the Lochner Era,” to make their case. Well,
> like it or not, Bailey has never been expressly overturned, and I
> think there’s a good reason for that. In Bailey, the Court held that
> Congress could not use the taxing power to regulate behavior that
> would otherwise lie beyond the scope of the federal government’s other
> enumerated powers. This may well be true. The problem with Bailey,
> then, is not its view of the taxing power, but rather the Bailey
> court’s restrained view of the federal commerce power. What makes
> Bailey and other cases largely irrelevant today is that there is so
> little that the federal government seeks to tax that it cannot
> otherwise regulate. I’d also note that it is not as if the Court is
> averse to relying upon other cases with Lochner-era pedigrees. Indeed,
> [9]Meyer v. Nebraska and [10]Pierce v. Society of Sisters are still
> good law, and each is closer kin to Lochner than Bailey, as they
> relied upon Lochner’s substantive due process rationale.
>
> Speaking of substantive due process, there may be other constitutional
> problems arising from national health care reform — but not of the
> enumerated powers variety. While the federal government may be able to
> require national health insurance coverage, could it require all
> individuals to purchase plans that cover certain procedures? What if
> the guidelines for acceptable plans include contraception, abortion,
> and certain types of end-of-life care? Could the federal government
> require devout Catholics to purchase such plans for themselves?
> Insofar as a new federal entitlement and regulatory scheme severely
> limits the ability of individuals to make fundamental health-related
> choices for themselves without undue federal interference, might it
> also run up against Griswold, Cruzan, etc.? So long as individuals
> retain a choice of health care providers such concerns may be quite
> marginal, but were a “public plan” to become a de facto single-payer
> plan, the constitutional issue could grow. If limitations on abortion
> procedures must contain a health exception in order to be
> constitutional under Casey, would this complicate efforts to control
> costs by excluding some potentially life-saving treatments under s
> single-payer system? Of course, these sorts of arguments are more
> likely to come from libertarians than conservatives, as the latter may
> be uncomfortable with expanding the scope of the Court’s fundamental
> rights jurisprudence.
>
> References
>
> 1. http://www.washingtonpost.com/wp-dyn/content/article/2009/08/21/AR2009082103033.html?sub=AR
> 2. http://www.oyez.org/cases/1940-1949/1942/1942_59/
> 3. http://www.oyez.org/cases/2000-2009/2004/2004_03_1454/
> 4. http://www.oyez.org/cases/1990-1999/1994/1994_93_1260/
> 5. http://www.oyez.org/cases/1990-1999/1999/1999_99_5/
> 6. http://balkin.blogspot.com/2009/08/inevitable-conservative-argument-that.html
> 7. http://www.law.cornell.edu/supct/html/historics/USSC_CR_0392_0183_ZS.html
> 8. http://www.law.cornell.edu/supct/html/historics/USSC_CR_0259_0020_ZS.html
> 9. http://www.law.cornell.edu/supct/html/historics/USSC_CR_0262_0390_ZO.html
> 10. http://www.law.cornell.edu/supct/html/historics/USSC_CR_0268_0510_ZS.html

David Iglesias and ACORN . . . Why he was justly fired.

Representative Conyers ridiculed the need to read 1000-plus pages of the Healthcare Reform Bill,[1] but has presented thousands of pages of congressional investigations indicting the Bush Administration for the firing of nine U.S. Attorneys.[2]

Conyers, invoking the neo-con bugaboo Karl Rove, claimed political intrigue from the highest levels of government conspired to remove the attorneys who weren’t loyal to the Republican administration.

“Rove’s lawyer, Robert Luskin, said there is no proof his client was involved in putting together a list of federal prosecutors to be fired. Luskin said it is old news that Rove passed on complaints about Iglesias to the Justice Department.”[3]

It is a fact that U.S. Attorneys are employees in a principle:agency relationship. Respondeat superior applies, and when agents fail to represent the principle they are summarily dismissed . . . fired.

President Clinton wanted loyal attorneys, so he fired all of them and hired his own. Some say he wanted to hide the fact he was targeting a few specific U.S. Attorneys. There were no years of congressional investigation and midnight hearings.

Why is the David Iglesias case different?

One; the heat put on the Bush administration was to attack Karl Rove and Alberto Gonzalez. The constant barrage may have contributed to Gonzalez and Rove resigning to take political and legal heat off the Bush administration.

Two; constant media coverage put Republican Senator Pete Domenici and Congresswoman Heather Wilson on the defensive. They both were replaced by Democrats, and New Mexico is now represented in congress only by Democrats.

But, is David Iglesias the innocent angel he claims to be?

Was his firing without cause and merely political?

When 3000 (10% of Bernalillo County registrations) invalid ‘third-party’ voter registrations were brought to public attention by Republicans (can you say ACORN?), an argument over disenfranchisement of legal voters by a flood of unverified registrations and the requirement to show ID before voting resulted in a ruling favoring the indigent voter with no valid ID.[4]

Losing to a liberalized interpretation of lawful voter registration was a serious concern, considering a possible 10% swing of voter base to the Democrats based on questionable or outright fraudulent first time voter registrations.

The Republicans demanded an investigation, and David Iglesias was the U.S. Attorney assigned to the task. After spending $100,000, Iglesias claimed that no indictable cases were prosecutable and closed the office. Republicans were furious.

“Iglesias established an election fraud task force in September 2004 and spent more than two months probing claims of widespread voter fraud in his state. He said he fully expected to uncover instances of voter fraud based on numerous stories that appeared in New Mexico media that said minors received voter registration forms and that “a large number” of voter registration forms turned up during the course of a drug raid.”

“Due to the high volume of suspected criminal activity, I believed there to be a strong likelihood of uncovering prosecutable cases,” Iglesias said. “I also reviewed the hard copy file from the last voter fraud case my office had prosecuted which dated back to 1992.

 

My intention was to file prosecutions in order to send a message that voter fraud or election fraud would not be tolerated in the District of New Mexico.”

 

“After examining the evidence, and in conjunction with the Justice Department Election Crimes Unit and the FBI, I could not find any cases I could prosecute beyond a reasonable doubt,” Iglesias said in an interview. “Accordingly, I did not authorize any voter fraud related prosecutions.”[5]

 

In an attempt to verify registrations, the Republicans (lacking the foot soldiers of ACORN) sent registered mail to check for valid delivery. Democrats accused Republicans of the illegal practice of ‘caging’ in order to eliminate ‘poor’ voters. The Republicans pulled back and ceased the mailing campaign.

 

Iglesias took the side of the Democrats and failed to produce any indictments in the face of thousands of questionable first time voter registrations. The Republicans were furious and complaints went up the line all the way to President Bush and Roberto Gonzales.

David Iglesias was fired.

I had some dealings with ACORN at this time. They had many operatives, poor, almost street-people with no local home address. They were housed communally in a two-story house off Montgomery Blvd. NE. The neighborhood was upper middle-class. It was a large house and the yard horribly unkempt. Weeds had taken over.

The workers reminded me more of itinerate magazine subscription salespeople, knocking on doors throughout neighborhoods and apartment complexes. They solicited at grocery stores with their clipboards. One almost got into a fight with me . . . words were exchanged. He knew I wouldn’t respond to his crude retorts, being stationed right in front of the Metropolitan Courthouse.

The Republicans have nothing like this, but the attempt to rush through nationalization of healthcare has normal working folk up in arms, so to speak. 

David Iglesias had the opportunity to expose and indict ACORN, and didn’t. For this reason, he was fired, period.

 

---

[1] http://cnsnews.com/public/content/article.aspx?RsrcID=51610&print=on

[2] http://www.upi.com/Top_News/2009/08/11/Conyers-Rove-involved-in-political-firing/UPI-99391250024365/

[3] Ibid.

[4] http://findarticles.com/p/articles/mi_m1058/is_8_124/ai_n19328383/?tag=content;col1

[5] http://onlinejournal.com/artman/publish/article_3826.shtml

REPARATIONS REVISITED

A Sideways Comment on Sotomayor’s Pride in her Affirmative Action Judgeship

“Your Interference is Doing Him Positive Injury.” Frederick Douglass

There are two landmark reverse discrimination cases that are pertinent to the reparations discussion. Regents of Univ. of California v. Bakke, 438 U.S. 265 (1978 and Grutter v. Bollinger, 123 S.Ct. 2325 (2003).

 competitive consideration of race and ethnic origin

 In Bakke, the opinion was that the state had a legitimate interest in cultivating diversity and overcoming racial discrimination. The “competitive consideration of race and ethnic origin” was a complete nonsequitur, which is highly likely of Justice Blackmun’s creation, given the creative logic of his Roe v. Wade decision.

 Even though the state’s court ordered an injunction against any use of race in the medical school’s admission policies, the Supreme Court overturned it.

does the very existence of a racially-based admissions program taint the reputation of all minority professionals in that field?

 One may ask, does the state truly have a substantial, legitimate interest in setting aside limited medical school admissions for lower scoring minorities? If one minority student turns in an exceptional score, does that cancel out one of the ‘set asides?’ In challenging disciplines such as the medical profession, where life and death decisions are made, does the very existence of a racially-based lowering of admission standards taint the perceived reputation of all minority professionals in the field?

 In Grutter, Sandra Day O’Connor approved, in part, of the Michigan Law School admissions set-asides, admitting though that the stigma and injury of slavery and one-hundred years of ‘Jim Crow’ and civil rights violation that followed will eventually be a thing of the past, and suggested that racial distribution of law school seats should be illegal in twenty-five years (2028).  

 [They] bear no responsibility for whatever harm the beneficiaries of the special admissions program are thought to have suffered – Powell, J.

 Justice Powell was cited from the Bakke case. He concluded that the state had no legitimate interest in correcting society’s history of discrimination because that burden would be born by third-parties “who bear no responsibility for whatever harm the beneficiaries of the special admissions program are thought to have suffered.”

 Clarence Thomas condemned racially engineered admissions. He cited Frederick Douglass speaking almost 150 years ago.

 “What I as for the negro is not benevolence, not pity, not sympathy, but simply justice . . .                  If the Negro cannot stand on his own legs, let him fall . . . All I ask is, give him a chance to               stand on his own legs! Let him alone! . . . Your interference is doing him positive injury.”

Update June 22, 2009 http://news.yahoo.com/s/ap/20090622/ap_on_go_su_co/us_supreme_court_voting_rights

The U.S. Supreme Court rules on civil rights law concerning the black vote. While Sec. 5 of the law was considered unconstitutional, the issue was not addressed in the court’s holding.

Clarence Thomas made it clear, as Sandra Day O’Connor intimated in the Grutter case, that the days of discrimination and Jim Crow were over. He wrote in dissent, “

Justice Clarence Thomas, alone among his colleagues, said he would have resolved the case and held that the provision, known as Section 5, is unconstitutional.

“The violence, intimidation and subterfuge that led Congress to pass Section 5 and this court to uphold it no longer remains,” Thomas said.

An informative article by Roger Hedgecock on WorldNetDaily http://www.wnd.com/index.php?fa=PAGE.view&pageId=101760