Sen. Brown (D-OH): “I’m certainly not a Constitutional expert”

The other night I listened to Senator Sherrod Brown’s “E-Town Hall on Health Insurance Reform”.

Sen. Brown didn’t answer any of the 7 questions I submitted he took a question from “Mike” who asked “Where in the Constitution does it give the Federal government permission to be involved in healthcare, please cite article and section.

I – I could do that. I’m not a lawyer – and I’m certainly not a Constitutional expert – but I’ve talked to people about this. Uh, the same part of the Constitution that allowed us to do social security and Medicare.

After a tap-dancing detour about how awesome it was that the government gave his family 640 acres through “land reform” (in other words, stealing it from Indians). He continues.

Article 1 Section 8 says ‘Yes you can do Social Security’, Article 1 Section 8 says ‘Yes you can pass Medicare’, and Article 1 Section 8 says ‘You can pass – um -  this healthcare bill’, so that’s the Constitutional cite that Mike asked for.

Actually Sen. Brown, Article 1 Section 8 (Powers of Congress) doesn’t say any of those things.  Here it is for future reference:

Section 8. The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;

To borrow money on the credit of the United States;

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

To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States;

To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures;

To provide for the punishment of counterfeiting the securities and current coin of the United States;

To establish post offices and post roads;

To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

To constitute tribunals inferior to the Supreme Court;

To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;

To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

To provide and maintain a navy;

To make rules for the government and regulation of the land and naval forces;

To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;

To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings;–And

To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

As you can see, Article 1 Section 8 talks about all of the powers of Congress, so it’s hard to say which specific section Sen. Brown had in mind.  But let’s take a moment for a history lesson from the Social Security Administration website. Here’s an excerpt from the section entitled “A President Tries to Pack a Court”:

In the spring of 1935 Justice Roberts joined with the conservatives to invalidate the Railroad Retirement Act. In May, the Court threw out a centerpiece of the New Deal, the National Industrial Recovery Act. In January 1936 a passionately split Court ruled the Agricultural Adjustment Act unconstitutional. In another case from 1936 the Court ruled New York state’s minimum wage law unconstitutional. The upshot was that major social and political reforms, including social insurance programs, appeared headed for defeat.

It wasn’t looking good for Social Security, so President Roosevelt (FDR) decided to dilute the supreme court with his own appointments:

President Roosevelt’s response to all of this was stunning and unexpected. On February 5, 1937 he sent a special message to Congress proposing legislation granting the President new powers to add additional judges to all federal courts whenever there were sitting judges age 70 or older who refused to retire.

Fdrcart2[1]The average age of Supreme Court Justices at the time was over 71. This would have allowed him to appoint 6 new supreme court justices to tip the political balance of the court in his favor.

the Court, it seemed, got the message and suddenly shifted its course. Beginning with a set of decisions in March, April and May 1937 (including the Social Security Act cases) the Court would sustain a series of New Deal legislation, producing a "constitutional revolution in the age of Roosevelt."

Sen. Brown seems to be citing court rulings that were only made because of presidential threats to completely undermine the separation of powers and the Constitution itself – and that’s according to the Social Security Administration. Is this really his best Constitutional argument for the present healthcare proposals – that because the system has been abused in the past, and nobody has had the courage to fix it – it’s ok to keep abusing the system?!?

I suppose when you’re Democratic senator from Ohio, Constitutional and historical ignorance is bliss.

UPDATE: I added direct YouTube links to the quotes.

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