The Elephant in the Living Room

©2009 drkate

What elephant?

What elephant?

No, I’m not talking about the GOP.

It’s the Obama health care plan: is it even constitutional?

In the last several articles on this blog, we have discussed  Amendments Three and Four,  privacy, and forced vaccinations; the conflict between Obama’s czars and Article II appointment authority; and most recently, Article I, Section 8 regarding Congress’ enumerated powers.

In this series of articles, we have been asking whether any of the actions of Congress or the Executive have any authority in the Constitution. To be thorough  we must ask the threshold constitutional question about health care.

Health care, by its nature, involves the most personal decisions between doctor and patient, many involving life and death.  No ‘one size fits all’  program could ever exist because individuals’ past histories, body make-up and so many other factors are different.

Can the government interfere?  My assessment is that it cannot based on the principles of the Constitution, and specifically Articles I, II, IV and Amendments Three, Four, and Ten.


The privacy right as it has evolved from Amendments Three and Four of the Constitution has exempted from government interference with the right to decisions about a woman’s body and others’ right to be protected against forced government intrusion of their physical space or person.

Under even the broadest interpretation of Article I, Section 8, Clause 18 (the ‘necessary and proper’ clause), there is nothing in the express or implied powers of Congress that allow such basic intrusion into the rights of individual Americans, their finances, privacy, or health decisions.  It is the antithesis of the Constitution’s basic premise of unalienable individual liberties.

The line of reasoning for privacy started with the case of Griswold v. Connecticut, and later Supreme Court cases. As the David Rifkin and Lee Casey of the Wall Street Journal noted recently,

The court’s underlying rationale [in Griswold v. Connecticut and Roe v. Wade] was not abortion-specific. Rather, the justices posited a constitutionally mandated zone of personal privacy that must remain free of government regulation, except in the most exceptional circumstances. As the court explained in Planned Parenthood v. Casey (1992), “these matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and the mystery of human life.”

Rifkin and Casey’s article is well worth the read.

Commerce Clause

Article I, Section 8, Clause 3, commonly known as the Commerce Clause, can also be read to invalidate many portions of the proposed health care bill on the basis that

…the “individual mandate” is unconstitutional“, because the government cannot force Americans to buy something they don’t want under the Commerce Clause of the U.S. Constitution.

But if the health care bill was fashioned to enhance cross-state competition and allow Americans access to that insurance, this could be a proper use of the Commerce Clause.  Makes one wonder what the heck is at the center of ‘health care reform’ but socialized, single-payer health care?

Article II Appointments: Health Czars

Under Article II, Obama does not have the authority to appoint ‘health czars’ or boards.  Neither does Congress, under Article I,  have the authority to improperly delegate its responsibility to the President.  In short Congress has not demonstrated the need or authority on a threshold constitutional basis to establish such a health care program or health czar positions, and neither can it delegate that authority to the President.

Article IV, Section 4.

Article IV, Section 4 of the U.S. Constitution guarantees to every state a Republican form of government:

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence. [emphasis added]

The State of New York  successfully fended off a federal effort to take and care for federally-generated hazardous waste using this provision of Article IV and the Tenth Amendment.

In the case of health care, the government is mandating that the states implement a federal directive regarding the government’s effort to control individual health care choices of Americans.  This could be viewed as ‘domestic violence’ against the states.

American Voices

Americans are seeing the inter-generational theft of resources, decision-making, and liberties happening every day. American voices are reviving the Constitution as a document very much relevant for our times.

The point of highlighting these obvious violations of portions of the constitution is to illustrate ways in which every action of Obama and the Congress can be challenged on constitutional grounds, and through a court of law.  Actions upon actions can forestall the implementation of this bill before it has a chance to seize hold.  We still are a nation of laws and we can use every legal maneuver to stop this little wagon in its tracks.

Did Obama and Congress forget that the primary rule of health care  is “First, do no Harm” ?

First, do no harm

First, do no harm

Fear is the foundation of most governments; but it is so sordid and brutal a passion, and renders men in whose breasts it predominates so stupid and miserable, that Americans will not be likely to approve of any political institution which is founded on it. ~John Adams, Thoughts on Government, 1776

37 Responses to “The Elephant in the Living Room”

  1. 1 Fernley Girl August 29, 2009 at 10:16 am

    May I send a copy of your article to my members of Congress? If so, with or without attribution?

    • 2 drkate August 29, 2009 at 10:29 am

      Yes, please send this along. Attribution is ok, so they know it was written by a real person. Thank you.

      • 3 Dee August 29, 2009 at 1:06 pm

        Dr. Kate, I am also planning to send a copy of this to my representative. I will acknowledge you. Thank you for this insight. I have already told my reps that I will not give permission for my medical records or financial records to be shared with the government. I told them that I am willing to be arrested if that is the case. I am also waiting for them to “mandate” that we get a swine flu shot. I have only had a flu shot twice and both times I got the flu. I have not had a flu shot in years and I have not had the flu. So once again I will not go along with this if it occurs. Thanks.

        • 4 drkate August 29, 2009 at 1:17 pm

          Thanks Dee. I feel the same way about the flu shot. Absolutely NO WAY.

          • 5 susan h August 31, 2009 at 9:33 am

            I second and third that. NO WAY.

            There was an interesting interview on Fox news last night I caught briefly. It was Chris Wallace interviewing Tammy Duckworth who was appointed by Obama as being involved in Veterans Affairs. She was a congresswoman here in Illinois who served in Iraq and lost both legs. She is a good person and at one time I was hoping she would get Obama’s senate seat when it became vacant.

            Chris asked her about a pamphlet that was being given out to veterans talking about Life and Death questions, and this pamphlet wanted them to ask themselves questions about “whether or not you were a burden to your family”, “how much is your life worth since your illness” and several other hard-core questions, giving the veterans the idea that it is okay to believe your life did not matter since you were injured, you were now a burden to your family. I guess there was flack about this part of the pamphlet and it is being re-worded and the new version is scheduled to come out in 2010. Tammy was not forthcoming about what was in the pamphlet and skirted the question as to why the administration was pushing this kind of thing on veterans. Pretty sad state of affairs I would say.

  2. 6 jbjd August 29, 2009 at 12:47 pm

    What you are doing with these posts is honing in on the fact, any law coming out of Congress and signed by the POTUS must be grounded in authority found in the Constitution. I laud that accomplishment, even when I question some of your legal analysis and conclusions. Of course, the problem is, whether a law countermands a provision or principle within the Constitution can only be established by a court of law, after the fact, which means, someone with the knowledge, time, interest, and money must bring the case. Obviously, it would be better if we citizens more closely monitored our elected officials, to make sure they were acting within Constitutional bounds, before the fact. Better still, we could elect a better class of public servants.

    • 7 drkate August 29, 2009 at 12:59 pm

      Thank you, jbjd. And as you know I welcome any and all corrections on the legal analysis and conclusions, as I am not an attorney! But how I think seriously of going to law school….!

      For me, having an opportunity to write about these subjects as a non-attorney is a passion, as it is our responsibility as Americans to at least be familiar with the constitution so we can exercise our role in this system….it is a ‘translation’ if you will to the present day, which I should probably qualify a little more or be a little less conclusive in statements.

      Because if we citizens can’t get it, use it, and articulate it, then we are at a complete disadvantage in securing the survival of our Constitutional Republic!

      I thank you, personally and professionally, so much for your clarity and knowledge!

      • 8 drkate August 29, 2009 at 1:18 pm

        …..and contribution! 🙂

      • 9 krr August 29, 2009 at 3:10 pm

        Dr. Kate,

        You should definitely consider going to law school! With your interest and passion, I know that you would enjoy it tremendously and would make a great contribution to the legal community. I went to law school later in life and found that I appreciated a legal education much more than I might have had I decided to go earlier. Keep up the great work–I have enjoyed reading all of your articles!

    • 10 brityank August 29, 2009 at 3:13 pm

      jbjd and drkate

      While I fully agree that the laws and regulation made have to meet constitutional restrictions, there is another consideration that has taken our society out of the path laid by our Founders; those “Opinions” as promulgated by the illegal holdings of the US Supreme Court.

      As you are aware, there has been a continuous tension between the Federalist and Anti-Federalist factions since the ratification of our Constitution. All too often, both the Executive and the Congress have issued laws that they know will be determined for validity by the Court, and indeed have stated such during debates on the Floor of Congress or during signing by the President.

      One of the most pernicious, and unconstitutional and therefore illegal Opinions issued by the Court has given rise to the vast undermining of our Human Rights by Corporate Privileges in 1886. In a tax case from California, the Court Clerk used an Instruction from the bench given to the attorneys days before and prior to any presentation of evidence to wit: “”The defendant Corporations are persons within the intent of the clause in section 1 of the Fourteenth Amendment to the Constitution of the United States, which forbids a state to deny to any person within its jurisdiction the equal protection of the laws.”

      That synopsis became stare decisis for countless cases thereafter that have allowed the Corporations to infiltrate and undermine the restrictions our Founders placed in the Constitution and the Bill of Rights. Can it be fixed? I don’t believe so, in this government. Corporations are socialist by design and operation; they were never meant to have any influence within our constitutional governments.

      Here’s a link to an interesting treatise on MultiNational Corporations: MNC’s – Beyond the Profit Motive and a site I found that has more info on the usurpation of privileges that Corporations have engineered: Corporate Personhood.

      Thank you both for the interesting details you give, and cause me to discover!

      • 11 drkate August 30, 2009 at 10:18 am

        Brityank—thank you very much for this insight. This is a whole additional avenue we must discuss here, I think, the ‘corporation’ as persons, the government as corporation, and the 535 controllers of the government as a ‘political corporation’.

        Makes my mind spin…..but a necessary topic. It seems a lifetime of work to undo some of these decisions, taking a careful look at retooling our country to live by the Constitution!

        Would you care to write anything about this and post it here? You are more than welcome.

        • 12 brityank August 30, 2009 at 4:58 pm

          Thank you, Dr Kate. I haven’t really built up any details on the sources and information I’ve seen on this, and as you rightly surmise we would indeed be heading into one of LogisticsMonster’s favourite places — the Rabbit Hole! I’ve never been much of a word-smith, but I’ll pull some stuff together and send it along to you to use as you see fit.

          I also believe you’re correct – the FedGov is set up as a MNC, a conglomeration of the united States as assembled in Congress. And they have the temerity of talking about herding cats! 🙂

        • 13 brityank September 18, 2009 at 2:13 am

          Thought you might be interested in this story I found in the Wall Street Journal: Sotomayor Issues Challenge to a Century of Corporate Law. There’s also lots of interesting comments to go with it. Had to laugh at one comment; something about Corporations bearing arms – as in the Second Amendment. Hell, most of the larger ones I’ve seen have their own police forces, and a couple had standing armies!

          And I never thought I’d agree with anything that The Wise Latina would say!

  3. 14 Miri August 29, 2009 at 5:55 pm

    drkate: Greta Van Susteran has said many times on her show that these bills, as currently written, will begin a flood of lawsuits, should they become law. And Greta IS a lawyer. A very smart one, at that.

    Much of what Obama has done so far is unconstitutional (taking over GM, firing their board, e.g.). However, as jbjd points out, lawyers have to act and somebody has to file suit. So far as I know, nobody has. Yet.

    However, I saw Judge Napolitanos interview two lawyers recently on FNC. One said that his organization is already preparing a lawsuit to file, if necessary.

    I’m with Dee. No way are my personal medical records going into any humongous database in DC.

    I have to add, drkate, that it was a brilliant insight on your part to mention privacy rights and how they were applied to a woman’s right to absolute control over her own body, sans any government interference. This has already been decided by the Supreme Court. Its application to health “reform” is obvious (now that you mention it)! How are they going to find a way around that?

    • 15 drkate August 30, 2009 at 10:20 am

      Well, if Greta says there will be lawsuits, terrific. That’s the only thing I can think of right now to stop this odious legislation. TRO before its in place, then lets take years to run the lawsuit. Obambi gets nothing.

      As jbjd points out, we need the lawyers, the clients, and the money to pursue these things. Maybe we should set up a ‘constitutional legal defense fund’ to support all these cases!

      • 16 Renee September 18, 2009 at 4:54 am

        DrKate, I have an idea there. Will work it out a bit,and let you know. There alot of cool ways to raise money…….

    • 17 jbjd August 31, 2009 at 6:38 pm

      This is exactly what I pointed out upstairs. That is, the law passed by the Congress and signed by the POTUS, which has no basis in the Constitution, can only be ruled un-Constitutional by a court of law. But this means, an individual or group must bring that suit.

  4. 18 Guesswhat August 29, 2009 at 10:32 pm

    Awesome article, Drkate!! Just hope a lawsuit can be filed before Obama does away with the Constitution to cover himself.
    Keep up the good work, I enjoy reading your articles.

  5. 20 cowgirl4u August 29, 2009 at 11:39 pm

    Unfortunately Lawyers aren’t targeted yet…but they are next!
    Right now it’s auto industry, farmers who grow food, banks, health and let’s see …what am I missing? 🙂 Lawyers will be last cause Obambi needs them to fight his lawsuits….

  6. 21 curi0us0nefromthe60s August 30, 2009 at 1:52 am

    Dr. Kate,

    I’m logged in as Curi0us0nefromthe60s, but you also know me as AZ Conservative.

    On Tuesday evening, I attended the town hall meeting of Congressman Trent Franks (my Congressman), 2nd district of Arizona. I stood in line for over two hours to ask my question, and I had written down my question beforehand so that in my nervousness when placed in front of a microphone I would not miss anything I really wanted to say. Because of all the people asking questions and the length of the meeting when I finally reached the microphone, I spoke without my notes so that I could make my comments and my question as concise as possible so as not to take excessive time and to allow the many more people behind me who wanted their turn to ask questions. But I offer what I wrote in its entirety here because my question for Congressman Franks was on point with this article as to the Constitutionality of national healthcare. The following is what I wrote, and what I wish I could have said at that meeting had there been more time:

    It is in the best interest of everyone in this room to protect, defend and ensure that the United States Constitution is upheld and adhered to. For the course of human history has shown us that when a government wields excessive power it results in despots and dictators. Our United States Constitution is a contract between the people and the states limiting the powers of the federal government. An over-reaching federal government can only result in tyrannical rule subverting the liberties and freedoms guaranteed by the Constitution, and only guaranteed by that the Constitution, to the people present here today.

    Article I, Section 8 of the U.S. Constitution enumerates the legislative powers of the United States Congress, a body of representatives of which Congressman Franks is a member. There are those whom lay claim that the statement that the Congress is to provide for the “general welfare” of the United Stats gives the Congress carte blanche to enact legislation, but nothing could be further from the truth. For it was James Madison who explained to us in Ferderalist Paper No. 41 that if the introductory statement to Article 1, Section 8 in the U.S. Constitution placed no legislative restraints on Congress, then there would be no need for the founders to thereafter enumerate 17 additional specific powers. One of those powers was to provide post offices and post roads. No similar power was enumerated nor discussed as to the federal government providing healthcare.

    There are others whom argue that of those (in total 18 enumerated powers) that the Congress is expressly granted the power to regulate interstate commerce thereby authorizing the congress to legislate national healthcare. Those making this argument are ignorant of the events occurring at the time the Constitution was written. For when the Constitution was written, debated and adopted, the country was operating under the Articles of Confederation. At the time, as James Madison explained to us in Federalist Paper No. 42, some states were prohibiting fair trade practices amongst each other. James Madison explained to us that the enumerated power to regulate commerce between the states was just that? to make regular, let me repeat, make regular the commerce between the states promoting fair trade practices. It does not provide the Congress with the power to take over commerce from the private sector.

    Do we as a civil society have a moral obligation to provide healthcare to our citizenry? Of course we do, but we hold that moral obligation as individuals not via our federal government. Each of us has a moral obligation to help our fellow citizens obtain there own healthcare for themselves and that may sometime include altruistic measures. The federal government has no enumerated legislative power to provide national healthcare (a public option) for us. The federal government can only help promote the affordability of such care through the private sector.

    So I ask you, Congressman Franks, by what Constitutional authority does the United States Congress believe grants them the power to legislate a federal government controlled national healthcare system? I think the answer, Congressman Franks, is quite simple. The Congress possess no such Constitutional authority.

    • 22 drkate August 30, 2009 at 10:08 am

      AZ conservative, thank you for posting this very moving statement from the healthcare forum in your state. I am curious, what was the answer he gave, or did he indicate he knew what you were saying?

      This is a very good statement, and I hope others are following through.

      Thank you for your contributions here, I look forward to more!

      • 23 curi0us0nefromthe60s August 30, 2009 at 11:19 am

        His basic reply as were many of his replies during the town hall is they have little power to do anything/stop anything and that elections have consequences. He encouraged everyone to change the dynmamic back in the 2010 elections. I don’t think my Congressman gets it. We are no longer partisan. In my book, if you are not making a difference by supporting and defending the Constitution at all costs then you are not getting the job done. For me the conservative who pays lip service to the Constitution, but still votes for bills that are unconstitutional (perhaps like they did under the former Pres and will again under some future pres) is not getting my vote. I jumped back out of my seat when he said that they lacked the power to stop it, and explained to him that he was never powerless to stop unconstitutional authority exercised by the Congress. I know, I know I’m and idealist and the Congress goes against their Constitutional authority all of time, but a girl can still dream that her Congressman is going to stand up and do the right thing.

        • 24 drkate August 30, 2009 at 11:34 am

          Absolutely and I am glad you stood back up. Not only does it show Americans are informed, but it highlights the truly ‘cowardly’ stand of these so called representatives.

          Perhaps the ‘t’ word should be used, aka, treason. If you sit back and enable the government to ‘wage war on the states’ through intrusive legislation, it is technically treason!

          I’d rather go down defending our constitution than saying ‘i can’t do anything to stop it’. What a jerk!

          • 25 curi0us0nefromthe60s August 30, 2009 at 12:07 pm

            I’m not sure I would call him a jerk, but he is absolutely a coward. Now remember, my Congressman touts himself as a constitutionalist. So I also have requested a one on one meeting with him to discuss the NBC issue solely on the grounds that Barack Obama was a dual citizen at birth. I spoke to his office to ensure they understood my position and to convey to them that I am no conspiracy theorist. It took me 20 minutes alone to get the kid (intern) who answered the phone to simply understand that there is a difference between “citizen” and A2S1C5 “natural born citizen” requirement. I think I finally got through to the kid, so now we’ll see if the coward who calls himself my Congressman will see me to discuss NBC. It’s a good thing I’m not holding my breath because I would already be dead.

    • 26 Sonic Ninja Kitty August 30, 2009 at 8:10 pm

      WOW! This is outstanding!!!

  7. 27 Delle August 30, 2009 at 5:02 am

    Dr. Kate you are doing such wonderful and thorough work here on your blog. I do appreciate it very much.

    So, I hate to throw a wrench into this conversation, but I really believe that most of the congress people know that the health care bill is unconstitutional and simply don’t give a damn.

    They are determined to shove it through just as soon as they return from their August breaks.

    And now they have an added sentimentality to their cause by using the name of Ted Kennedy.

    I must add that the Mass and funeral service were disgusting to me. But the most insidious and cynical thing I witnessed was Kennedy’s letter to the Pope, read at the grave, praising himself for promoting health care. On his death bed, Kennedy used the Pope himself as a political prop to promote his socialist agenda! I am astonished that the Cardinal even read it! Shame on him.

    Can they get any lower?

    • 28 drkate August 30, 2009 at 10:14 am

      Wow, Delle. I admire your guts to watch the whole thing with ‘tedward’, as Lame Cherry calls him. And of course, he is a slimy politician until the end, using the Pope.

      I guess all funerals of the dems now will be managed by the chicago thug crowd, milking every emotion of guilt they can, yes, now ‘pass the bill in kennedy’s name’. I’m not buying it!!!

      What I think basically undermines his ‘greatness for the people’ is his last letter urging lawmakers to appoint someone in his place, instead of letting the people of Massachusetts choose someone other than a kennedy or kerry. Just like tedward, say you’re for the people and undermine them at every step.

      I read also an account of Vicki Kennedy, his wife, gladhanding everyone at the funeral, already running for office.

      Kennedy threw his mantle behind Obama, despite the wishes of his state. He will be haunted by that decision well beyond the grave, when he sees the damage he has done. There will be no rest for the wicked.

  8. 29 drkate August 30, 2009 at 12:31 pm

    MUST READ from ‘hesnotmypresident’: We are 5 days away from fundamentally transforming the United States of America…

    • 30 Papoose August 31, 2009 at 5:52 pm

      Drkate, this is fundamental. It is a ‘MUST READ’.

      I wish his “words” could be a topic on it’s own. His words will hopefully be his undoing. Now that he is proceeding, people will clearly understand: uhmm, so that is what you meant.

      He says in one breath, that we are living in the greatest nation in the history of the world and that he is counting on us to come out and help him change it… crazy talk.

  9. 31 SeniorBuzz August 30, 2009 at 2:30 pm

    Nice crowd drkate; great article. thanks

  10. 32 Papoose August 31, 2009 at 5:37 pm


    Function: noun
    Etymology: Russian politbyuro, from politicheskoe byuro political bureau
    Date: 1925
    : the principal policy-making and executive committee of a Communist party

    Date: 2009
    : the hijacking of the American Executive Cabinet to be nominated and subsequently deposed and approved by it’s sitting Congress

    _____________more roolz ignored______ ?

    As baptized and confirmed Catholics, we are all admonished before Communion that we shall not partake unless we are sure we are in a state of grace which is defined by Canon Law… it is an explicit dis-invitation.

    The late, great Senator Kennedy must not have been ex-communicated like my husband and I because we married one another outside the “law”. We are considered adulterers and are prohibited from receiving Communion even at the death of a loved one or the marriages of our daughters. Though they accept our mandated monthly envelopes, neither of us will be permitted a funeral Mass in our parish church. We will not even be blessed on our deathbeds as it is a Sacrament.

    What makes Edward Moore Kennedy more deserving than we?
    Maybe I am misinformed as respects his circumstances. Did the Catholic Church annul his marriage and erase the nuptial blessing bestowed upon him and the mother of his children?


  11. 33 euandus2 December 29, 2009 at 11:13 am

    Letting the state governments have a role in health-care legislation risks capture or veto by the industry, yet consolidation at the US level is inconsistent with a Union that stretches over a continent. There is a way out of this dilemma. See

  12. 34 FullMetalPatriot February 7, 2011 at 2:14 pm


    Thanks for the link! I’m still looking forward to seeing if the SCOTUS will rule whether the Commerce Clause can be used to regulate inactivity, which is the basis for the Obamacare mandate. If the feds can regulate the LACK of something, then there’s no limit to what they can force us to do.

  1. 1 Reflections « drkatesview Trackback on September 1, 2009 at 3:07 am
  2. 2 The ‘Political Question’ « drkatesview Trackback on September 24, 2009 at 3:11 am
  3. 3 Tyranny in America: Federalism on Steroids « drkatesview Trackback on October 4, 2009 at 1:28 am
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