We must, indeed, all hang together, or assuredly we shall all hang separately--Ben Franklin
Four Legal Arguments Why ObamaCare is Bad Law & Ought be Overturned
Comments | Print friendly | Subscribe | Email Us
When it became obvious on the day of ObamaCare’s premier that the Internet websites did not work, some were wildly disappointed, others angry, while another group heaved a sigh of relief. The fact that the legislation may not be fully available for months, or years, gives Americans a unique opportunity to review and potentially revoke this law. So we now have a chance at congress’ equivalent of a mulligan—a do over to right any obvious wrongs. So what would such bad elements be?
Following is a list of four possible arguments to fight the case at court, in the legislature or in the court of public opinion. The notion that the people must accept all laws no matter how they were passed, or how injurious to the populace, or damaging to the economy, no matter the morality— is a patent fiction. No bad law should be allowed to stand on the fact that it is the result of a technicality, accident or bad deed, which lead to its imposture, and therefore, we must just learn to live with it. In fact, our Common Law heritage always taught that an unjust law is no law at all. Further, it also taught that citizens had a duty to defy unjust laws in the name of upholding liberty.
This is America, the most generous, noble and free society in the history of the world. We have a right and a duty to demand the best government and laws. This will allow us freedom to be the leaders of the world, not slaves under the yoke of an all-powerful, rapacious and blind government.
1. Unpopular: It Violates Declaration’s Government by “Consent of the People”
The introduction to the Constitution is the Declaration of Independence. One of the chief innovations of the American government is called Popular Sovereignty, or that all power rests in The People. This idea, which had long percolated in religious circles of medieval Europe, claimed that the locus of power was found in The People, as provided by God. The People used the power vested in them to loan to the leaders, who were clothed in power as long as they fairly represented the will of The People. If they stopped representing The People, they lost their status as leaders and became despots.
The ancient Romans said, Vox Populi, Vox Dei—the Voice of the People is the Voice of God. Catholic Church scholarship by way of the ascension of Gregory I, and later the Protestant Reformation both helped formalize the idea that God favored the will of the ecclesia, the body of Believers. Further, the Presbyterian theory of one-man, one-vote gave a way for the will of The People to be measured when transferred into a secular setting. All this was set upon the covenant theory which took the covenant between man and God and added government, as occurred in America’s earliest colonies. The American Constitution is set upon the covenant model, which John Locke helped adapt from church to state. Here the Declaration reads,
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.—That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,—That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
The WA Post reported a fascinating story which reveals how much Obama leads by division. His Stimulus Bill and ObamaCare are the two most unpopular bills in US history, as measured by the difference between Democrat and Republican support, by a rate by party of over 90%. For example, zero Republicans voted for the healthcare law when it passed.
ObamaCare has never been favored by the will of the majority. About 70% of voters favor returning healthcare laws back to 2009 laws. Generally, over 60% of Americans have always opposed the draconian healthcare law. But new polling shows that nearly 60% of Democrat voters oppose the bill.
So according to the Founders and their Declaration and Constitution, since ObamaCare has never been the will of the People, it should be considered illegal and repealed immediately. Or, the government itself should be replaced if this is not followed, according to President Jefferson’s Declaration of Independence.
2. Sold by Lies: An Utterly Misleading Campaign for a Passed Law is Illegal
Law in a constitutional democratic republic must be made in the open, with clear and honest explanations describing what will be voted upon and what the effects of the law will be. If not, we have leadership and law by duplicity, which can produce neither true leadership nor genuine law.
Let us state the obvious—a law which is knowingly promoted by lies as to the contents or its effects, is not the law which was voted upon. It is a hoax. Therefore, one could argue that such a law was never passed since the advertised law never existed. Liability for this can be levied upon the politicians who pass off such false information. In fact, South Dakota has such a law on its books in South Dakota Codified Laws 12-13-16:
Publication of false or erroneous information on constitutional amendment or submitted question as misdemeanor. Any person knowingly printing, publishing, or delivering to any voter of this state a document containing any purported constitutional amendment, question, law, or measure to be submitted to the voters at any election, in which such constitutional amendment, question, law, or measure is misstated, erroneously printed, or by which false or misleading information is given to the voters, is guilty of a Class 2 misdemeanor.
Again, the law of Washington State makes illegal lying to public servants, which could be applied to Washington DC and Barack misleading our elected representatives. Here is Washington State’s RCW 9A.76.175: Making a false or misleading statement to a public servant:
A person who knowingly makes a false or misleading material statement to a public servant is guilty of a gross misdemeanor. “Material statement” means a written or oral statement reasonably likely to be relied upon by a public servant in the discharge of his or her official powers or duties.
We prohibit false advertising in sales: 15 USC ¬ß 78r - Liability for misleading statements. But is the selling of legislation on outright, known falsehoods supposed to be less of a danger to the Republic? We ought to prosecute the selling of laws by way of misleading statements or outright lies. Here are five lies, already outrageously uncovered, that Obama and his proxies offered up for support of ObamaCare, from Townhall:
- A. Healthcare Costs Will Decrease Under ObamaCare
- B. Under ObamaCare You Can Keep Your Physician
- C. You Can Keep Your Healthcare Plan Under ObamaCare
- D. ObamaCare Will Not Increase the Deficit
- E. Jobs Will be Created by ObamaCare
Common sense and the American way of doing government both insist that such laws, outrageously sold to citizens by patent lies, can be rejected because of this brazen dishonesty. To disagree with this position simply means the critic does not even have a basic understanding of the word “law.”
3. Doctrine of Impossibility: Agreements Impossible to Fulfill are Null & Void
Under Contract Law, an impossible to fulfill agreement is unenforceable, for eminently logical reasons. For example, the Uniform Commercial Code, the world’s greatest mercantile rule book, defines Impossibility here:
Where contracts for the sale of goods are concerned UCC 2-615 sets forth three conditions which must be satisfied before performance is excused: (1) a contingency has occurred; (2) the contingency has made performance impracticable; and (3) the nonoccurrence of that contingency was a basic assumption upon which the contract was made.
Likewise, a law which cannot be fulfilled ought to be repealed. The basic argument would be that the catastrophic failure of the ObamaCare websites represents an impossible to surmount technical problem. But even if we fix these sites, it would take so long, and without a stopgap for all the persons already booted off their insurance plans, that to leave nothing in its place would be to visit avoidable disaster upon millions of innocent Americans.
But the government should at least cancel three important aspects of this draconian law. First, all insurance plans should be made able to grandfather into ObamaCare. Second, ObamaCare should be made wholly voluntary. Third, the punishment phase should be made lex imperfecta, or without any penalty.
4. Public Policy Against Waste: ObamaCare Will Destroy Economy
Consider the public policy implications if we were to consider applying the Doctrine of Waste to ObamaCare. The Doctrine of Waste is meant to mitigate the foreseeable and pointless destruction of private property, especially when dealing with real property. The Legal Information Institute defines this:
In property law, refers to overt and willful acts of destruction that lead to the drop in value of a piece of property by harming the property or depleting natural resources available on the property. As a general rule, tenants of property are not allowed to commit voluntary or affirmative waste to the property on which they reside, meaning they cannot deplete the land of its natural resources.
Now, applying these principles to ObamaCare could yield some very fruitful results. First, the law which makes 30-hour a week employees “full time” is accidentally, but foreseeably, creating greater poverty across America. This rule ought to be cancelled because it is needlessly causing a larger poverty class.
Again, the overly broad policies of ObamaCare are causing sticker-shock at their typically supersized pricing. According to Forbes, ObamaCare will raise healthcare spending $621 billion a year, which adds $7,450 per family of 4.
The theory behind the Doctrine of Waste says that avoidable destruction of private property or money should be avoided. For this reason, American legislators should repeal ObamaCare so as not to destroy trillions of dollars of wealth of private property each year.
Conclusion: An Unjust Law is No Law at All
Thomas Aquinas once wrote that an unjust law is no law at all. John Locke agreed and the Founders included this as the foundation of the republic, called a Constitution. Any laws which are unjust, unfair, impossible, or ruinous to America as a whole do not have to be accepted. Let’s celebrate our Revolutionary heritage and repeal this disgusting and absurd law, and celebrate the event in the name of our wise Founders.