The Liberty Amendments: Restoring the American Republic (21 page)

More than two centuries after Jefferson’s caution, on March 22, 2010, the House of Representatives barely passed the nearly three-thousand-page-long Obamacare law, by a margin of 219–212 (without a single Republican vote). As with the initial adoption of Social Security and Medicare, there was no great clamor for Obamacare. Moreover, the final version had not been made available to the public until shortly before it was voted on in the House. Consequently, its concealment prevented public scrutiny of its particulars. As then-Speaker Nancy Pelosi, just a few weeks prior to the vote, told the Legislative Conference for the National Association of Counties, “We have to pass the bill so that you can find out what is in it. . . . ”
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Since its passage more than three years ago, the people still do not know the full extent of Obamacare’s effects. Meanwhile, thousands of pages of implementing regulations have been issued by the Department of Health and Human Services, the Internal Revenue Service, and other federal entities, imposing an untold number of mandates, controls, and costs on citizens.

So unpopular was the general proposition of Obamacare—namely, the unprecedented role the federal government would claim over individual health-care decisions—that even before the vote on the law, the House leadership was searching for ways to claim members had voted for it without members actually having done so—a stunning violation of the Constitution. In early March 2010, the House Rules Committee proposed a rule to the
full House, aka the “Slaughter Rule,” providing that, upon adoption of the House on a vote of yeas and nays of one bill (the “Reconciliation Bill”), an entirely different bill, H.R. 3590 (the “Senate Bill”), Obamacare would be “deemed approved” by the House. However, Article I, Section 7, Clause 2 of the Constitution states, “Every Bill which shall have passed the House of Representatives and the Senate, shall, before it becomes a Law, be presented to the President of the United States. . . . ”
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Thus, a law is enacted only if a bill containing its exact text is approved by a majority of the Members of the House; the Senate approves precisely the same text; and that text is signed into law by the president. Only after Landmark Legal Foundation threatened to sue the House for its planned subversion of the legislative process did the House leadership relent. Nonetheless, it is chilling that such a wholesale and blatant violation of the Constitution’s lawmaking requirements came so close to execution.
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But the congressional goal was clear. As former president Bill Clinton insisted, “It’s not important to be perfect here. It’s important to act, to move, to start the ball rolling. There will be amendments to this effort, whatever they pass, next year and the year after and the year after, and there should be. It’s a big, complicated, organic thing. But the worst thing to do is nothing.”
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In other words, it was important to install a massive health-care scheme as quickly as possible before the public could know what it was all about and there was a possible changeover in the congressional majority in the next election.

On July 21, 2010, a few months after adopting Obamacare, Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank). It was more than 2,300 pages long. During Congress’s final negotiations, provisions were
added to the bill with little debate and in many cases no hearings. Dodd-Frank requires four hundred separate rulemakings by eleven separate federal agencies.
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It establishes the Consumer Financial Protection Bureau, which has unparalleled powers. It regulates credit and debit cards, mortgages, student loans, savings and checking accounts, and virtually every other consumer financial product and service. And the law actually attempts to immunize the bureau from oversight by future Congresses.
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Two years after its passage, more than eight thousand pages of regulations had been issued, and regulators were only about 30 percent finished. Complying with the law is estimated to take about 24 million labor hours a year and require businesses to hire more than twenty-six thousand personnel just to comply with those already-finalized regulations.
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As of this writing, Congress is pursuing the same irresponsible and reckless course respecting so-called comprehensive immigration reform.

Moreover, when Congress is not violating its own budgetary law by passing continuing resolutions as emergency appropriation measures without public committee hearings, it is doing the opposite—that is, adopting massive spending bills that neither its members nor the public have had an opportunity to read. For example, in 2005, Congress passed the Deficit Reduction Omnibus Reconciliation Act, which was a combination of House and Senate bills that actually contained different and separate language. Its constitutionality was challenged in court, but the lawsuits were dismissed under the Enrollment Bill Rule, a practice whereby the courts concluded that the signed authentications by the president, Speaker of the House, and president of the Senate, and the formal printing of the bill, are incontrovertible proof that the law
was passed validly.
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Of course, this is a complete fiction. Each house of Congress is required to approve exactly the same legislation. Furthermore, omnibus bills are so extensive—thousands of pages in length involving scores of issues—that few know what is contained in them.

Recently, Congress passed the Violence Against Women Reauthorization Act of 2013 (VAWA).
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Congress is in the habit of titling bills in such a way as to make difficult legitimate opposition to their adoption. The VAWA is such a bill. This law was passed in the Republican-controlled House with virtually no debate, and without the ability of a member to offer an amendment. Despite its title, the law is deeply flawed, as numerous commentators have noted, and raises serious doubts about its constitutionality in several respects, including the fundamental right to free speech and due process.
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It also expands the definition of domestic violence to include “emotional distress” or the use of “unpleasant speech.” It also grants more visas to illegal aliens who claim to be victims of domestic abuse.
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In addition, this is a subject that both historically and constitutionally has been addressed at the state level. Even a cursory review of publicly available databases discloses that the states have passed numerous criminal statutes and instituted social service programs to help protect and care for abused individuals, and have done so for some time. This is not to say that a federal role, in certain circumstances, is illegitimate or unnecessary. But with the VAWA, Congress attempts to preempt and federalize most of the field and policy in this area. Back in 2000, in
United States v. Morrison
, the Supreme Court concluded that parts of the first Violence Against Women Act were unconstitutional, holding that the act exceeded congressional authority under the Commerce Clause and Fourteenth Amendment.
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Opposition to the law is not opposition to protecting victims of violence, but opposition to Congress’s heavy hand in violating the Constitution.

These examples barely scratch the surface yet suffice in demonstrating the debacle of federal domineering, social engineering, and “expert” planning. When Congress passes immense and complex bills that virtually no one can comprehend, and often without constitutional power, and further delegates independent authority to the executive branch in violation of the separation-of-powers doctrine to pile regulations on top of laws—resulting in thousands of additional pages of rules—is this not the “Despotism, or unlimited Sovereignty, or absolute Power . . . [of] a Majority of a popular Assembly” of which John Adams warned?
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For all the talk by the governing masterminds about the commitment of more federal resources for education and the import of a well-informed people, the fact is that in their own legislative and regulatory quests and actions, opacity and obscurity are vital. The more distant from and less informed the public is about lawmaking and policy determinations, and their likely consequences on the individual and society generally, the less resistance and outright opposition can build against them. Enlightened public debate is to be avoided. Moreover, the will of the people can be said, albeit disingenuously, to be reflected in the actions of those for whom they voted—“the people get the government they deserve”—although the truth is otherwise, for the people know little of the actions taken by their members of Congress and still less of the regulatory maze engineered by the administrative state.

The colonists in pre–Revolutionary War America, having been taxed by the British without representation in the Parliament,
used the slogan “No taxation without representation” to protest their lot. Today the rallying cry could be “No representation with representation.” The point is that even though citizens vote for their members of Congress, members legislate in a manner that denies the people access to a transparent, orderly, and predictable lawmaking system, thereby avoiding true public scrutiny and input. Therefore, government decision-making becomes more centralized and power more concentrated. An insular ruling class intervenes arrogantly and boundlessly in the daily life of the individual, calibrating all nature of behavior. By no measure is such a contrivance representative republicanism. Edmund Burke explained it this way: “To them, the will, the wish, the want, the liberty, the toil, the blood of individuals is nothing. Individuality is left out of their scheme of government. The state is all in all. Everything is referred to the production of force; afterwards, everything is trusted to the use of it. It is military in its principle, in its maxims, in its spirit, and in all its movements. The state has dominion and conquest for its sole objects; dominion over minds by proselytism, over body by arms.”
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This is a long way from the limits imposed on Congress by the Constitution, and its grant of specific and enumerated powers. The objective of the proposed amendment is, as I explained, to restore our founding prerogatives and discourage arbitrary and perplexing legislation and regulations, instituted by a growing, centralized decision-making regime hostile to constitutional constraints. It will encourage the expansion of actual republicanism and reverse federalism’s steady dissolution. It will institute a truly deliberative and rational process within the federal government, between the federal government and the states, and among the states. And at all levels of deliberation, the citizen will have a
genuine opportunity to participate in the governmental process, and hold his federal and state representatives politically accountable for their actions.

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The proposed amendment requires a minimum of thirty days between the engrossing of a bill or resolution, including amendments, and its final passage by both houses of Congress. The purpose is to ensure that members of Congress, state officials, and the citizenry are aware of legislative actions before they become law. It also provides for speedier legislative action if agreed to by two-thirds of the members of each house of Congress.

In addition, the proposed amendment empowers the states, by a three-fifths supermajority vote, to override a federal statute or regulation (which regulation imposes an economic burden of $100 million or more), within a two-year period from the date of its legal implementation. The states cannot substitute their own alternative legislation for federal laws and regulations. Nor can they modify federal laws or regulations. The sole power of the states is to collectively override a law or regulation by three-fifths vote. Moreover, although the three-fifths vote is obviously a lesser threshold than the two-thirds requirement for amending the Constitution proposed in the previous amendment, it is still a challenging supermajority hurdle. For example, as demonstrated in the Obamacare litigation, at no time did the states suing to overturn the law reach thirty in number.

Clearly there is much political, social, and economic diversity among the states. Some states respect the individual more than others. Some are downright oppressive in their imposition of regulatory and tax schemes. But people can move from state to state,
and often do, to escape one state’s burdens for another state’s opportunities. Federalism is not about any single state or small faction of states imposing their will on the nation. It is about states serving, in the aggregate, as an essential buffer between the central government and the people, safeguarding the citizen from authoritarianism’s consolidated rule, thereby preserving and promoting self-government. After all, self-government is the fundamental feature of a constitutional republic. As Thomas Jefferson wrote, “It was by the sober sense of our citizens that we were safely and steadily conducted from monarchy to republicanism, and it is by the same agency alone we can be kept from falling back.”
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SECTION 1: Citizens in every state, territory, and the District of Columbia shall produce valid photographic identification documents demonstrating evidence of their citizenship, issued by the state government for the state in which the voter resides, as a requirement for registering to vote and voting in any primary or general election for President, Vice President, and members of Congress.

SECTION 2: Provisions shall be made by the state legislatures to provide such citizenship-designated photographic identification documents at no cost to individuals unable to afford fees associated with acquiring such documents.

SECTION 3: Early voting in any general election for President, Vice President, and members of Congress shall not be held more
than thirty calendar days prior to the national day of election except for active-duty military personnel, for whom early voting shall not commence more than forty-five calendar days prior to the national day of election.