Monday, March 5, 2012

Constitution Question: What are the Federal Government's Powers in the Face of an Epidemic, or Insurrection by a Religious Cult?

SUNDAY, MARCH 04, 2012

Politico Pistachio

By Douglas V. Gibbs

The Constitution was written in a manner that it grants authorities to the federal government.  If an authority is not granted, then the federal government does not have the authority.  These powers were granted to the federal government by the States.  Before the Constitution, the States held all of the powers on all issues.  When forming the federal government they legally transferred to the new government only those powers necessary for protecting, preserving, and promoting the union.  To give the federal government authority over local issues would be to open the door for tyranny, so only the powers needed for the purpose of the union were granted.

Since that time, those who believe in a strong central government have done what they can to circumvent the U.S. Constitution, and give the federal government powers beyond what was originally intended.  After the last two hundred and twenty five years since the writing of the Constitution, the increasing powers of the federal government have far exceeded what was originally intended, and the principles of limited government seem to have been forgotten.

The Constitution is the solution.  The tide can be turned by us returning to the authorities granted by the Constitution.  This means that the federal government's hold on issues it is not authorized to have must be broken.  This is not something that can be done instantly, but the success of the mid-term election in 2010 is a sign that the tide can be turned.  Though not a quick, or easy, process, steering things in the right direction is possible.  As the old saying goes, "How do you eat an elephant? One bite at a time."

As an expert on the U.S. Constitution, I am constantly asked about the constitutionality of a variety of possible scenarios.  With a President of the United States of America like Barack Obama that has shown disdain for the founding principles of this nation, it is easy to conceive a number of nightmarish scenarios where the federal government goes even farther beyond its authorities than it already has. In fact, very few of his policies actually fall within the constitutional authorities granted to the federal government.

Barack Obama has complained that the Congress is not working like it should because the debate over issues is taking too long, and the gridlock is keeping his programs from going into effect.  The fact is, the American System of government was created with the intention of the government's wheels grinding slowly.  An executive does not have free reign, and as the strongest branch of the United States Government it is the duty of the legislative branch to carefully weigh all bills, and to debate them not only out to the fullest extent, but to ask themselves if the proposed law falls within the authorities granted to the federal government by the United States Constitution.

President Obama has indicated that when Congress fails to pass legislation he feels needs to be in place, or if they are taking too long with their debate over the issue, it is up to him to take matters into his own hands and to ensure the policies are enacted through his various regulatory agencies.  However, Article I, Section 1 of the U.S. Constitution grants "all legislative powers" to the Congress, and for Obama to implement policy through the executive branch's regulatory agencies is unconstitutional.

With all of this going on, and with the realization that the federal government is indeed overstepping its constitutional limitations, one begins to wonder where the limits are.  Where was the federal government supposed to stop in its expansion?

Over 85% of the money spent by the federal government is being spent in an unconstitutional manner.  If the federal government was to limit its spending to only those issues authorized by the Constitution, federal spending in total would be about 5% of the GDP.  In the 1880s federal spending was between three and four percent of GDP.  If we were to draw spending back to its constitutional limits we would be paying off the national debt, and the politicians would not be able to buy votes with gifts from the treasury.

So where is the line?  At what point did the federal government cross that line?

A student in one of my Constitution Classes recently asked me a question on her dad's behalf.  He asked, "If there is an outbreak of some kind of disease in a state, and they refused to do anything about it, can the federal government step in and make the state do something to keep it from spreading to other states? Or, if a religious cult decided to take over a state and raise havoc, can the Feds step in?"

A very good question.

Let's tackle the religious cult part first, since it is the easiest.

Article IV, Section 4 reads: The United States (federal government) 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.

Article I, Section 8, Clause 15 reads: [The Congress shall have power] to provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.

If the religious cult was elected into office to control a State, the federal government can't do anything. That is the business of the people of that State.  However, if, as I assume is meant here, the religious cult took over the State government through force, than that would be considered "domestic violence," and an "Insurrection," of which both sections from the Constitution above would come into play, and the federal government would have the authority to take matters into their own hands.

In the case of an out-of-control outbreak of an infectious disease, we have to go a little deeper to discover our answer, beginning with an oft misunderstood clause, the general Welfare clause.

Though not a clause in the strictest sense, the general Welfare clause still tasks the federal government to provide for the general Welfare of the republic.  In the Constitution the word "general" is lower case, and the word "Welfare" is capitalized.  This is because rather than useitalics to emphasize a word, set it apart, or signal the importance of a word, often the people of that era simply capitalized the word.  In this case, that tells us that the word "Welfare" holds more emphasis than the word "general."  In other words, you could read the clause as saying that the federal government will provide for the welfare of the republic.  What kind of welfare, you ask?  A general type of welfare, of course.  In other words, the Welfare of the nation is what is supposed to be achieved, and the kind they were looking for was not the welfare of any specific group, but a general welfare throughout the republic.  Therefore, the general Welfare clause is not a clause, per se, but a condition of the nation, should the federal government be doing its job.

When one considers that the words "general Welfare" are mentioned once in the Preamble, and once in Article I, Section 8, Clause 1, and that both times mentioned the words immediately follow the "common defence," it is plain that the primary way the founders saw for the federal government to provide for the condition of general Welfare was by protecting the States from foreign invaders. An invasion by any foreign source upsets the general Welfare of the republic, and the way to reestablish that general Welfare is to defeat, or repel, the invader.  Once the source of the problem is eliminated, then the republic should return to a condition of general Welfare.

An invader that can upset the general Welfare can come in many forms. I don't know if the Founding Fathers had infectious diseases in mind, but the invasion of this nation by a disease can be just as devastating as an invasion by a foreign military force, and it would definitely upset the general Welfare of the republic.

Under normal conditions the federal government cannot just go into a State and set up shop.  The federal government normally needs to wait until invited by the State.  Hurricane Katrina is a good example of this concept in action.  Despite the complaints by folks that the federal government didn't act fast enough, FEMA actually followed constitutional guidelines, which dictates that they could not insert themselves into the situation until requested to do so by the State.

That was what came to my mind when I was first asked this question about the federal government's authorities in the face of an epidemic.  Even if the State that was ground zero did not take action to secure or quarantine areas affected by the disease, surely the surrounding States would, for the sake of self-preservation, request federal assistance.  Once those States realized they did not have the resources to resolve the problem, it would stand to reason that they would call upon the federal government for assistance, especially considering the vast resources available to the federal government, as compared to the States.

Going back to the general Welfare argument, in the case of an epidemic upsetting the general Welfare of the nation, it would seem sensible that the federal government would have the authority to act prior to receiving requests from the States because of the potential of the disease to disrupt the general Welfare of the republic.

The "professional politicians" that think they are somehow members of a ruling elite know this, however.  That's why you hear statements by them about a good crisis.  As Rahm Emanuel said early on in the Obama administration, "You never want a serious crisis to go to waste."

They know they need a good crisis to fool us into relinquishing to them more power.  This administration, however, has even gone beyond that, showing disregard for the legislative powers of Congress, the local authorities of the States, and the will of the people.  The voices against this administration, and the limited authorities granted by the Constitution, are of no concern to the liberal democrats that currently wield power in the federal government.  They are willing to use the courts to overturn the vote of the people, such as in the case of the very constitutional Proposition 8 in California; they are willing to sue a State for acting in a manner against the administration's policies, such as in the case against Arizona's completely constitutional immigration law; and Obama ensured, for example, that Cap and Trade was still initiated through the EPA, even after Congress voted it down.

In the face of such tyrannical behavior by our federal government, I am asked often why I am such an optimist that we can get this turned around.  Why do I believe it is possible to head back in the direction the Founding Fathers envisioned?  How is it possible to get this country back on a course in line with the United States Constitution?

One word says it all, for me.  One word explains why I believe in America, I believe in the people, and I believe that United We Stand, but Combined We Kick Butt!  One word explains for me how it is that we will one day return to our motto, "In God We Trust."  One word relays the message that once again true freedom will ring, and all Americans will once again have the opportunity to pursue happiness in this great land.  One word, in its proper context, tells me that we can do this, and that we must do this, for ourselves and our posterity.


And I am not talking about the fake hopey-changey crap, but real hope that lights a fire under people to take action and regain control of their nation.  Real hope that makes people want to vote, share the message, and do anything they can to help the cause. Real hope that makes people search out and learn the Constitution.  After all, the Constitution is nothing more than ink and paper if we don't fight for it.

-- Political Pistachio Conservative News and Commentary