Channelling George Washington: Obamacare -- The Monster Law

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Thomas Fleming Fleming is a former president of the Society of American Historians and a member of HNN's board of directors. This is the latest in a series of occasional articles, "Channelling George Washington."

It’s the law. The monster law!  Why doesn’t someone make this the main issue about Obamacare?”

By now I had become expert at detecting when President Washington was upset. It so happened that I was upset about the same thing. I answered him, perhaps too enthusiastically. “I’ve been having similar thoughts. What can we do about it?”

“More to the point, why haven’t you done something about it already?”

“It’s the usual historian’s excuse, Mr. President. I’m trying to finish a book. I sense you’ve  gotten some ideas about confronting the problem?”

“First of all the problem should be identified. It’s time somebody made more Americans aware of the excesses of the Imperial Congress. Since President Nixon was driven from office -- deservedly, I should add -- Congress has seized vastly more power than the Constitution ever intended it to have. This is a prime example!”

“You think it’s unconstitutional?”

“That’s almost beside the point. It’s extra-Constitutional. Why haven’t more so-called reporters in our supposedly great newspapers pointed out that any group of men who vote for a 2,700-page law are practicing a form of tyranny! One of the Supreme Court justices -- what’s his name?”

“Justice Scalia?”

“Justice Scalia -- he mockingly asked if anyone expected the Supreme Court to read the whole law! What does this tell us? Is the average voter supposed to read it? Or even the average congressman? If he’s anything like the average congressman I had to deal with, it will be a miracle if he can get through the daily paper! He votes his prejudices and goes home to tell his wife she’s married to a statesman!”

“If Congress has the power, I don’t know how we can stop them.”

“Congress doesn’t have the power! Even though there may not be any specific clause in the Constitution forbidding them to write laws of unconscionable length, custom and tradition have something to say. The way Congress and the president functioned for two hundred years surely demonstrates the founder’s original intention for the federal government.”

“You mean Congress didn’t write lengthy laws in the past?”

“The average length of a law, until the Imperial Congress seized power after Abe Lincoln’s murder, was one page. The law was supposed to state the basic principle that Congress approved or wished to see enforced. It was up to the executive department to administer the law and in the process create decisions, exceptions, etc., that further developed the law’s meaning and breadth.”

“You’re saying the 2,700-page law is an invasion of the presidency’s powers?”

“A blatant invasion! In some ways a more reckless violation of the Constitution’s intent than its impact on the rights of the voters!”

“Why did President Obama sign it?”

“I fear President Obama -- and most of the members of his party -- have succumbed almost totally to an inclination which was visible from the earliest days of the federal government. It goes back to a fundamental fact. Thomas Jefferson did not like the Constitution. He thought it smacked of potential dictatorship. He especially disliked the idea of a strong president. He was almost as hostile to the idea of a Supreme Court with the power to review laws passed by Congress -- and decide against them.”

“Do we have an example of that?”

“In 1804, President Jefferson had a plan to fix the Supreme Court, permanently. He was in the process of impeaching one justice, Samuel Chase of Maryland, for making speeches against his administration. That was a serious indiscretion, I admit, but hardly an impeachable one. Once Congress voted Chase off the bench, the president had a law ready to submit to Congress, which would declare that henceforth, any justice of the Supreme Court, including the chief justice, could be dismissed by a majority vote of Congress.”

“That’s serious --- and rather amazing! Why don’t more people know about this?”

“A combination of things. One is the Louisiana Purchase. That acquisition of 864,000 square miles of the continent in 1803 made Tom so popular with the average voter, he could do no wrong. A second reason is the man who torpedoed his plan -- Vice President Aaron Burr. To this day he is surrounded by the odium of his 1806 attempt to persuade the western states to secede from the Union. Justly surrounded, I regret to say. People find it hard to realize that an historical figure can do some very bad things -- and some good ones. Vice President Burr’s rulings during the Chase impeachment trial tilted Congress toward acquittal. It was a masterful performance, and a sincere one, I suspect. At any rate it wrecked Tom’s follow-up bill, which would have revolutionized the Supreme Court.“

“Was President Obama thinking of President Jefferson’s bill when he warned the Supreme Court against finding Obamacare unconstitutional?”

“I don’t know. He is supposed to be a Constitutional scholar with a Harvard law degree. My point -- a point that is being ignored -- is the 2,700-page Monster Law itself. Making it even more monstrous is the way President Obama let -- in fact asked -- Congress to write it. This was a tragic surrender of his presidential powers. He should have written the law and sent it Congress. This is an important part of powers that Congress gave the president. It is the way all the great presidents have operated.”

“Was this true of your administration?

“I should say so. Congress didn’t create the Bank of the United States or the plan to pay off our crushing debt from the American Revolution. My secretary of the treasury, Alexander Hamilton wrote those vital laws. Franklin D. Roosevelt didn’t ask Congress to write the laws that created the New Deal. Harry Truman didn’t ask Congress to write the law that became the Marshall Plan, rescuing Europe from communism. All of us ex-presidents would laugh out loud at the idea. Congress’s job was to approve -- and perhaps improve -- such laws with amendments. We wouldn’t have dreamt of asking them to write them.”

“Aside from all this public illumination, what can we do about the 2,700-page Monster Law?”

“I have a very simple but potentially effective proposal. Every voter in the United States should write to their congressman or congresswoman and ask: ‘DID YOU READ ALL 2,700 PAGES OF THIS LAW BEFORE YOU VOTED FOR IT OR AGAINST IT? If they don’t answer the first letter or email, send another one and another one and another one. Repeat the question on Facebook and Twitter.”           

“I’ll get to work in my congressman within the hour.”

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