Pro Logica

February 28, 2012

The HHS Mandate and Religious Institutions

It is probably not an overstatement to say that the Obama administration has decided to enforce its peculiar interpretation of the religious freedom clause of the 1st Amendment of the U.S. Constitution and simultaneously wage war against religious institutions whose beliefs about conception and abortion differ with the current administration’s; I say ‘peculiar’ because it is at odds with an unwritten freedom of conscience and is unrelated to the attack orchestrated by atheists and secularists to remove any vestige of religious symbols from occurring on Federal and State land.  I dare say that these people would support the administration’s position but further discussion in this vein would be off-topic.

We need to start at the beginning which is the passage of the Affordable Health Care Act (AFCA) in 2009, a somewhat unconventional enactment of a law.  In order to get enough Congressional votes to pass the health resolution, the POTUS claimed that he would write a directive which seemingly banned the Federal Government from using this law as a loophole for an existing law which denies the Federal Government to spend taxpayer money for elective abortions.  I, myself, was somewhat unconvinced that this directive was written to properly enforce this aspect but it seemed to satisfy the recalcitrant Representatives.  Two years after the law’s passage HHS issues a mandate stating that employers must offer health insurance to its employees that provides free contraceptive procedures, some of which are abortions by chemical means.  Religious organizations  and employers with conscientious objections to contraception and abortion are forbidden to exercise their freedom of conscience in the health insurance they offer to their employees.  After a period of defiance, Mr. Obama announced a compromise, i.e., he called it a compromise, wherein the onus for covering elective contraceptive procedures, including abortifacients would apply to the health insurance provider but no details on how this separation would be handled; presumably the insurance company would have to calculate their costs for the extra coverage and charge the conscience objectors that much less than the non-objectors.  Currently, some organizations have filed lawsuits against this mandate with their emphasis being on freedom of conscience.

As of now, the situation has calmed in the major media, but quite alive within the pro-life community.  It seems that the noisiest of pro-Obama commentators have gone on to other topics and will be content to say very little more unless the rulings in these lawsuits turn out unfavorable. It looks like SCOTUS will have another aspect of the AFCA Act to mull over besides the individual mandate.

Above, I have said nothing more than anyone could have found by a short search for the relevant data, so why have I decided to write this post?  Because there are a couple of arguments that have not surfaced in the media which deserve to be considered.  First off is the matter of proper protocol for a presidential directive.  The Secretary of HHS is the person who has announced the mandate but the Secretary has no Constitutional authority to write a presidential directive unless the POTUS has written a presidential directive giving her the authority or Congress has given the Secretary the authority specifically through wording in the law itself.  Any person or organization impacted by the law has the right to see these authorizations.  I have been told that the AFCA has provisions wherein it is permissible for the HHS Secretary to make some decisions that will have the force of law, but I have not, myself, ever read the law so I cannot verify that.  I do assume that any religious organization planning on not obeying the mandate thoroughly investigates the law for this particular aspect.  Considering the hugeness of the law and its speed of passage it is quite possible that its actual wording may be less than satisfactory to establish the HHS mandate as law.  Certainly, it is clear that Mr. Obama has not written a directive, else he could not have come up with his so-called compromise; therefore, he must believe that the law, itself, authorizes the HHS to fill out the law with legal mandates.  However this compromise has not yet been written, since the POTUS believes the actual content of the mandate has yet to develop.  Who knows, he just might be a dictator and let the mandate stand as originally proposed; any sort of compromise might require an actual presidential directive to implement.

On the other hand, If the Democrat’s lawyers did allow for an HHS mandate to become law, a thorough investigation into the presidential directive which was promised at the time of the original passage should be performed.  That wording might be enough to void  or seriously impair the intent of this particular mandate.  At this time, I have to wonder if the POTUS has actually written a directive as he said he would at its impending passage; it would not surprise me in the least if no such directive exists.  In fact, if Mr. Obama did write a directive such as was promised, he would of, necessity, need to write a directive separating the use of abortifacients from mechanical abortions or insist that the mandate not cover abortifacients. This entire argument would be extraneous if the AFCA did not grant any tax money to those unable to afford the required health insurance; but it does and, hence, the argument applies.  Long before Mr. Obama became POTUS (I did not vote for the man) I wrote a letter to the editor of the Missoulian stating that he would, if elected, become the most hypocritical of any elected president of the U.S. and here I stand confirmed in that conviction.

Supposing that a health insurance company were to accept the government edict and not bother to give the conscientious objectors a lower rate.  We would have to go to the same argument as above–the conscientious objectors are paying for services they have a right not to.  What about the administration’s argument that the insurance company will save money since the cost of an abortion is less than that of the corresponding birth or possible births.  This is a very specious argument since the birth itself is a very natural process and should not be covered by insurance–then only complications leading to necessary medical procedures need to be covered.  This does not mean that check-ups for the prevention of adverse medical problems which may occur during and after birth should be denied, and they shouldn’t since the health of the mother is the prime consideration.  Consequently, a normal birth having no foreseeable complications should not be covered by any health insurance, but certainly, in the health interests of the mother, a qualified birth assistant should be on call at the time.  We might also add that under this view, elective contraception and abortions add nothing to the overall well-being of any nation.

Assuredly, there have been many studies showing that elective abortions and contraception are bad for women’s health but these studies are totally ignored by the pro-choice people primarily because their chief concern is sex without normal responsibility.  Why haven’t the health insurance companies claimed that covering elective contraceptive procedures and abortions do not enhance women’s health since it is linked to increasing cancer in those having these procedures. Also, why not avoid controversy and allow employers to opt out for conscience and let their employees get their own insurance through the State exchanges.  Of course, all the employers would eventually drop out, but what would be wrong with that?  Go, go ‘free market’.

Another thought: the administration or possibly, the AFCA  has mandated that at least one of the available insurance policies in each exchange must contain provisions for these procedures, but this cannot be enforced in any legal way.  Any private insurance company would have the option of not providing these services and if any single company were forced to provide the coverage, they could claim that that coverage places them at a disadvantage relative to the companies that do not provide that coverage, a very substantial equity argument.  However, this situation provides no obstacle to the mandate, for the government, itself, would be required to set up such a policy.

August 4, 2010

What’s wrong with the U. S. Constitution?

I.  Complaints.

Many news articles over recent years have bemoaned the low standing of the Federal Government in the eyes of its citizens and Congress fares the worst where only about 25 to 30 per cent of the people polled feel that Congress can be trusted to do its job effectively; this has dropped to 11 per cent recently.  Some have even proposed a constitutional convention.  Now, a constitutional convention is a serious undertaking and in my opinion should not be attempted for  petty reasons; it is warranted only for a change in the type of government–like going from a republic to a constitutional monarchy, a rearrangement of governmental functions–like going from a separation of powers system to a parliamentary system, or for simplifying its language after multiple amendments make some of the sections confusing or even contradictory.  I don’t believe that our American system is in need of any major overhaul yet; so the answer to this post’s topical question is  “nothing”.

Let’s examine the complaints a bit further.

The major complaint seems to center on Congress’s inability to operate effectively.  Consider  health reform.  Most everyone knows that our current system is inefficient, overly expensive and abused by many of its participants, i.e., highly in need of reform, and it has been this way for many years.  When the Democrats had control in 1992, health reform was attempted but was primarily blocked by the Republicans, and the same is happening this time; however, the Democrats persuaded all but a few of their cohorts to vote for a health bill and enacted the same–no Republican voted for the bill.  Personally, I believe this bill is currently unacceptable for many reasons even though some Republican ideas have been incorporated.   The real problem is not the form of government but the inability of the two parties to negotiate and compromise and come up with an effective bill for the good of the country.  I have often wondered why our two major parties never consider the fact that the American voters hardly ever let the President and Congress be controlled by the same party for any length of time–could it be that they don’t believe that either party has their country’s welfare at heart.  If Congress is not filling the expectations of its constituents, the people of the United States of America (voters) have only themselves to blame.  It is to be noted that the Constitution does not forbid recalls–Whomsoever the voters elect can be recalled by those voters.  If Congress is not filling the expectations of its constituents, the people of the United States of America (voters) have only themselves to blame.  It is to be noted that the Constitution does not forbid recalls–whomsoever the voters elect can be recalled by those voters.

The major complaint about the Judicial Branch is that it makes law–“Roe vs. Wade” is a good example (the ruling’s  conclusion might be stated as “No state of the United States of America shall prevent any female citizen from having an abortion).  I have outlined the general status of a Supreme Court (SC) ruling in an earlier blog on the basis of the separation of powers between the branches, but let’s  review what the U.S. Constitution says about the SC.  As explicitly stated therein the SC resolves disputes (Article III, Section 2 and Amendment XI–cases of law and equity arising under  the Constitution, its Laws and ratified treaties; since “equity” in this context cannot refer to its financial meaning, it must refer to fairness of treatment which poses the problem of the necessity of the ” equal protection of the laws” clause of the 14th Amendment).  Due to their equal status, a SC ruling can become a legitimate Congressional law in only one of two ways: Congress passes a law which, in effect, requires the Executive Branch to enforce the ruling or Congress does nothing and the Executive Branch does enforce the ruling.  In the situation where the SC ruling declares a law to be unconstitutional, if Congress does not rescind the law and the President of the United States of America (POTUS) continues to enforce the law, the SC ruling is essentially nullified until the POTUS (the same one or someone different) at some later time decides to enforce the ruling or Congress (the same one or a different set of law makers) decides to pass a law legitimizing the ruling.  POTUS Obama was thoroughly convinced that the SC’s McCain-Feingold ruling was wrong but he could have said, “As the President of the United States of America, I disagree with the ruling of the Supreme Court for these reasons…(states his reasons)…and until Congress changes or rescinds this law, I will continue to enforce it as it is written”, a statement that is fully constitutional.   The kingpin in this process is Congress since it has the power to impeach the  POTUS and keep impeaching successors until it gets one to do its bidding.  Incidentally, if Congress thought that the SC ruling was egregiously unconstitutional, it could impeach those justices who concurred in that ruling.  Unfortunately, our two-party system has a tendency to under use the threat of impeachment as a governing tool.  When the SC ruling involves a state law and the ruling declares that law to be unconstitutional the same mechanics can still happen but what if the State does not accept the SC ruling and Congress does not pass a law legitimizing that ruling and the POTUS cannot effectively enforce the ruling or even decides not to enforce the ruling.  Again a SC ruling can be effectively nullified, at least for the time being.   One might raise the question, “What about those Federal marshals who carry out the judges orders?”  Remember, the Judicial Branch has no enforcement powers, those Federal marshals are employed by the Executive Branch and under the orders of the POTUS.  He has the power to prevent them from carrying out any orders given by the judges.

The SC ruling in the case “Roe vs. Wade” is just one example of many cases where the SC has been accused of legislating.  The current Chief Justice has stated in his confirmation proceedings that “‘Roe vs.Wade’  is settled law” and he is correct since all States have acquiesced to that ruling, Congress appropriates money to support the abortion activities of Planned Parenthood  and similar organizations, and the POTUS has dispersed funds to Planned Parenthood.  Yes, “Roe vs. Wade” is settled law but it is not Congressional Law since there has been no bill passed by Congress espousing this particular ruling.  A puzzling aspect in this picture is the presence of the Hyde Amendment.  If it does say what it is purported to say, how can Congress and the POTUS justify their give-away of Federal funds to an organization like Planned Parenthood, which, in fact, do perform elective abortions?

The legitimacy of elective abortion is an example of a de facto law, in English, a law in fact but not explicitly written as a law.  Some States still retain their criminal abortion statues and it might be interesting to see what would happen if one of them actually challenged the Federal Government for I can envision many obstacles to Federal enforcement.  Back to the point, the SC cannot legislate but they can be the source of de facto laws.  Those who oppose particular de facto laws originating in the SC must either win the support of the other two branches or wait for a reversal ruling from the SC itself.

In summary and only on a procedural basis, a SC ruling can become a de facto law only with the cooperation of a second branch of government and without opposition from the third branch.  Of course, this process does not pronounce any judgment as to the worthiness or unworthiness of the law itself.  Historically, the world is and has been rife with bad laws   and will probably continue to have them far into the future.

There are two major complaints  concerning the executive branch but they are usually directed against the POTUS; not enough emergency powers and too much overall power.  It shouldn’t be difficult to see how the executive branch complaints can be resolved within the Constitutional dictate of the separation of powers.  The Executive Branch of the Federal Government is the only branch having the authority to enforce all the provisions of the U. S. Constitution, in fact, the POTUS is the only member of the Federal Government required by the Constitution to take an oath in defense of the Constitution and its Republic.

As to the POTUS not having any emergency powers. this clam is patently false, since the Executive Branch is fully independent from the other two.  The POTUS can write presidential directives with the full expectation that they will be carried out by his/her employees, even if they do not follow a strict reading of the U. S. Constitution.  Proper manners indicate that a declaration of some sort be presented to the other two branches stating the precise reasons for the POTUS’s action in order to facilitate a unified government response, but there is no constitutional requirement for it.

So, what happens next?  If the SC agrees with the POTUS, they can refuse to hear any case that questions the enforcement or the constitutionality of that directive, and if they disagree they can hear such a case and render their disagreement in a ruling.  Congress, being totally independent from the other two branches can also act independently.  If they agree with the POTUS they need to do nothing, thus nullifying a possible SC ruling to the contrary; however, if they disagree to the extent that something different must be done, they must do something positive, even if the SC has ruled against the POTUS.

And just what are the positive things that Congress can do?  First, they would probably try to discuss their differences with the POTUS in order to resolve their disagreement and have a common understanding of the needed action, probably involving the rewording or cancellation of the concerned directive or the passage of a law or some combination.  In this discussion, Congress can use the threat of impeachment as a tool for persuading a president to change or cancel his/her directive.  It was interesting to note the Republican Party Congressional members’ complaints about President Bush’s memos on how he planned to enforce some particular laws passed by Congress; many members stated that he was subverting Congress’s intent.  Did any of them suggest impeachment?

Similarly, if Congress thinks that the  POTUS is wielding too much power they can pass a bill limiting that power.  Since the POTUS  would probably not sign the bill, the bill will become law after ten days or if the POTUS veto the bill, Congress could then override the veto. In either case the bill limiting presidential power becomes law and then the POTUS could then be impeached for not enforcing the law.

II.  A short summary of the basic rules of operation of the Federal Government.

1) The U. S.  Constitution authorizes three independent branches of the government.  Congressional bills, presidential directives and SC rulings are limited only by the Preamble to the Constitution when there is no specific wording which directly applies.

2) The SC cannot initiate any rulings unconnected to a dispute brought before it and has no power of enforcement for any of its rulings.

3) While Congress is the only branch which is authorized to write laws, a presidential directive by itself or enforcing a SC ruling can become a de facto law when Congress does nothing to stop that enforcement.

4) Congress trumps the other two branches by having the authorization to remove a president and can keep removing them until they get a president who enforces their laws.  They also can impeach any member of the judicial branch–good behavior can certainly be defined by the legislative branch.

5) As the amended U. S. Constitution now states, the American people vote for the members of Congress and, therefore, control its make-up.

6) States, having limited sovereignty but, nevertheless, a sovereignty recognized by the U.S. Constitution, can challenge any Federal action that does not pertain to expressly written provisions in the Constitution.

III.  So, what’s wrong with the U.S. Constitution?

As stated at the beginning of this essay, there is nothing wrong with the U.S. Constitution as it is written but what is wrong is:                                                                                                    1) The U.S. citizen’s and politician’s understanding of how it is supposed to work and acting as if their wrongful interpretations are constitutionally correct.                                                 2) Political parties prioritizing power over the good of the country.                                             3) Political fanatics, both left and right, who know positively what’s good for the American people.  Unfortunately, these are the people who do the most preaching, and yes, it is almost a religion to them.                                                                                                                     4) Dare I say it but voter incompetence.  I must confess that when voting for a candidate who has very little background to judge any of his future congressional behavior, a voter may not know what to expect, but when voters keep electing the same incompetents election after election something is wrong.                                                                                      The only constitutional change that could possibly avoid these wrongs would be a one party dictatorship (of which a monarchy is an example) simply because they could rule without needing the support of its people.  Need I say more.

February 17, 2010

Presidential Prerogatives

Filed under: U. S. Government — Tags: , , — Ron Toczek @ 4:33 am

The February 17 on-line edition of the Washington Post had a guest blogger, Clement Fatovic, who expounded on the concept of presidential prerogatives, gave examples and delved into the thinking of the founders. As interesting as the info was, he did not explain how congressional laws are written so as to give the president leeway in interpreting them nor how the founders have incorporated this concept into the US Constitution for directives not permitted by any specific law or constitutional provision.

For the first case, consider the Reagan directive banning grants to organizations promoting abortions and operating in a foreign country. This directive was rescinded by Clinton, reinstated by Bush and then rescinded by Obama again. What exists are congressional laws giving the president authority to support organizations providing health services in foreign countries without any provision about abortion: hence, by not saying anything about abortion, Congress has given the president unstated authority to implement the law according to his belief about abortion being a health service or not.

Lincoln would be the best example of the second case since he suspended the writ of habeas corpus and instituted a special tax to pay for the war, neither of these acts were constitutionally permitted.  So how was he  able to enforce these directives?

To answer the question we must look at what the Constitution does not say and also at what is does say.  The Constitution does not give any executive authority or legislative authority to the judicial branch; it also does not give any executive authority or judicial authority to the legislative branch except in the sole process of impeachment.  Since the judicial branch never decided a dispute invalidating these directives and since Congress never passed a law denying the president the authority to enforce these directives nor did Congress impeach the president for enforcing these directives, both of these branches tacitly okayed the directives as legitimate.  Since they were rescinded in short order, there was no need for any action by the other two branches.

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