Ok friends, I’ve been harping for a little while now on how unconstitutional much of our government action is. Last week I asked if Emergency Powers were constitutional. The answer?
No.
So, I’m going to start a series, hopefully lasting until the election, called “Is It Constitutional?”. I will publish these articles every Monday. We’ll take a look at current laws, executive action, judicial rulings and the like. I’ll analyze them through the lens of the Constitution.
I would really like your help with this. If you’d like to know if a certain state/federal action or law is Constitutional, but you just haven’t had time to figure it out for yourself, send me an email at christin@thelibertybellenc.com, DM me on FB or just comment here with your ideas and questions. I’ll start working through the requests and will use your questions as topics for my blog posts within the “Is It Constitutional?” series.
For today, we’ll be looking at a law that I’m asking about. Specifically, the Health and Economic Recovery Omnibus Emergency Solutions Act or the HEROES Act.
Most people know this as the second stimulus bill.
The Bill
I went to the website, congress.gov and found the description provided by Congress itself. I’ll include my commentary in italics under each provision.
It says, among other things, that the bill:
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provides FY2020 emergency supplemental appropriations to federal agencies;
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Fair. Congress has the Constitutional right to provide funding to federal agencies. In fact, only Congress can fund agencies.
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provides payments and other assistance to state, local, tribal, and territorial governments;
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Questionable. There’s really no provision in the Constitution that gives Congress the right to fund the states.
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provides additional direct payments of up to $1,200 per individual;
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Definitely no provision in Article 1, Section 8, that gives Congress the power to take tax-payer money and then redistribute tax payer money to all Americans based on income levels. Highly unconstitutional and arbitrary.
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expands paid sick days, family and medical leave, unemployment compensation, nutrition and food assistance programs, housing assistance, and payments to farmers;
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Extreme tampering in private business. How private businesses conduct their business is not a federal concern. The provision sounds noble but it is NOT the federal government’s job. This is a state, local and most importantly a church job. Highly unconstitutional with extreme arbitrary power.
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modifies and expands the Paycheck Protection Program, which provides loans and grants to small businesses and nonprofit organizations;
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I know this happens frequently but again, where in Article 1, Section 8 of the Constitution’s enumerated powers is Congress given the power to provide loans and grants to individual private businesses—nowhere, which mean the power is completely arbitrary and unlimited. Will the government start funding certain businesses over others because of political stances or religious stances? Violating the Constitution leaves the door wide open for abuse.
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establishes a fund to award grants for employers to provide pandemic premium pay for essential workers;
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Again, sounds incredibly noble, but we don’t create government to provide for us financially; that’s our job. Government simply protects us and our private property from each other—and follows the enumerated powers of the Constitution—of which, this is not one of them.
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expands several tax credits and deductions;
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This is Constitutional per the clause that says Congress must make all laws that are necessary and proper “To lay and collect taxes, duties, imposts, and excises”.
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provides funding and establishes requirements for COVID-19 testing and contact tracing;
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Nope. Sounds good but read Article 1, Section 8. Nowhere in there is Congress given the power to make law about healthcare. That’s a state, local or individual job.
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eliminates cost-sharing for COVID-19 treatments;
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So, who ends up paying for the portion of the medical bill that the insurance doesn’t cover? The government? By default, the people? No, this is unconstitutional.
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extends and expands the moratorium on certain evictions and foreclosures; and
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For government run housing? Ok…(although government-run housing is also unconstitutional). For housing in general, not within government’s realm of power, even if it does have to do with the Fed and the banks. The Fed is unconstitutional as well. Notice how far gone we are that there are layers upon layers of unconstitutional behavior?
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requires employers to develop and implement infectious disease exposure control plans.
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Wow, that first word alone should scare you. Requires private businesses owners? The rest of the sentence is almost irrelevant. Since when is government allowed to require private business owners to do anything? (well, since the Civil Right’s Era ) Highly unconstitutional. Nowhere listed in the enumerated powers.
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And the bill also modifies or expands a wide range of other programs and policies, including those regarding:
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Medicare and Medicaid,
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As I’ve said before, unconstitutional. Government was never ever given the power to provide money to individuals for whatever reason or to force individuals to save a part of their paychecks to pay for their or others’ healthcare. This is a noble and charitable idea but unconstitutional nonetheless. Emotions and feelings don’t matter. This is a state, city, local or church job.
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health insurance,
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Same argument as above.
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broadband service,
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Not within federal government’s jurisdiction, unless it crosses states lines and may be regulated under the commerce clause… maybe.
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medical product supplies,
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Not within federal government’s jurisdiction.
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immigration,
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Somewhat within their jurisdiction given the power “to establish rules for naturalization and bankruptcy” .
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student loans and financial aid,
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Not within federal government’s jurisdiction.
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the federal workforce,
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Constitutional. It’s their own employees. Many employees, of course, work for unconstitutionally created agencies, but nevertheless, this does fall within the realm of federal power.
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prisons,
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State job technically. However, there are some federal prisons and how those are handled is something that requires more study. Nowhere in Article 1, Section 8 is Congress given power over the prison system.
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veterans benefits,
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Given that Congress raises and supports the army and the navy, I’d see this as a primarily federal job.
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consumer protection requirements,
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I don’t know all that this implies but I do know that it’s a private issue and not listed in the list of enumerated powers.
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the U.S. Postal Service,
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Constitutional. This is federal government’s job. per the “to establish a post office and post roads” clause.
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federal elections,
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State job. The only power the government has over elections is that the Constitution has set a few guidelines, like the electoral college. Otherwise, details are left up to states.
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aviation and railroad workers, and
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Somewhat federal, if it falls under the commerce clause and crosses states lines.
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pension and retirement plans.
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Completely unconstitutional. The federal government should have nothing to do with how a private company handles pension and retirement plans unless it is a federal employee.
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Conclusion
As you can see from this one law, federal laws are such a tangled mess of unconstitutional laws and agencies stacked upon themselves, it’s almost impossible today to pass a constitutional law. Now, many legal scholars are likely to argue that the Court has found a way to justify many of these powers as constitutional, or that this world is more complex and my assessment here is far too simplistic. No matter the arguments, don’t be fooled…precedent and judicial rulings don’t justify the amount of unconstitutional power that our government now possesses.
It’s time for Americans to look at their representatives and ask them why they are even considering the passage of such an unconstitutional law. Why is it that the debate in Congress has nothing to do with this? It’s time for Americans to take a hard look at all the laws that Congress is passing, analyze them as I did above and begin to put the unconstitutionality of such laws in the faces of our representatives, demanding that they give an account for their actions.
As I like to do, I’ll end with these quotes by Madison and Jefferson.
“[T]he general government is not to be charged with the whole power of making and administering laws: its jurisdiction is limited to certain enumerated objects, which concern all the members of the republic, but which are not to be attained by the separate provisions of any.” – James Madison, Federalist 14, 1787
“It will not be denied that power is of an encroaching nature and that it ought to be effectually restrained from passing the limits assigned to it.” – James Madison, Federalist 48, 1788
“I consider the foundation of the Constitution as laid on this ground that ‘all powers not delegated to the United States, by the Constitution, nor prohibited by it to the states, are reserved to the states or to the people.’ To take a single step beyond the boundaries thus specially drawn around the powers of Congress, is to take possession of a boundless field of power, not longer susceptible of any definition.” – Thomas Jefferson, Opinion on the Constitutionality of a National Bank, 1791
Need I say more?
The Liberty Belle
For your reference: the enumerated powers delegated to Congress in Article 1, Section 8.
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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;
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To borrow money on the credit of the United States;
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To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;
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To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States;
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To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures;
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To provide for the punishment of counterfeiting the securities and current coin of the United States;
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To establish post offices and post roads;
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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;
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To constitute tribunals inferior to the Supreme Court;
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To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;
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To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;
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To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;
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To provide and maintain a navy;
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To make rules for the government and regulation of the land and naval forces;
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To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;
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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;
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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
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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.