Associated Press reports from Cheyenne, Wyoming, that Western pioneer descendant and former Wyoming U.S. Sen. Malcolm Wallop has died at age 78. The anti-Communist Republican, who served in the Senate for 18 years, is the first elected official to propose space-based missile defense, which became part of the Strategic Defense Initiative.
But I remember Sen. Wallop, an advocate for property rights, as one of only two U.S. senators during the historic Clinton health care plan debate of 1993-1994 to proclaim – correctly – that health care is not a right. During this crucial national debate, which preceded America’s current system, ObamaCare, Sen. Wallop named the flawed premise of government-dictated medicine by standing on the Senate floor and declaring that health care is not a right (Texas Sen. Phil Gramm was the only other senator to say it). Despite Republican attempts to compromise and pass the Clinton health care plan, socialized medicine was defeated; the Clinton administration’s widely unpopular scheme never became a piece of legislation.
According to his official bio, Wallop was also the first non-lawyer in U.S. Senate history to serve on the Judiciary Committee and, as ranking Republican member of the Energy and Natural Resources Committee from 1990 to 1994, Sen. Wallop was an outspoken advocate for development of domestic energy supplies of coal, oil and natural gas. Wallop pushed for an amendment to the 1980 Clean Water Act, barring federal usurpation of state control of water, authored the Sunset of the Carter Era Windfall Profits Tax, the first sunsetted tax in history, and he sponsored the 1977 Wallop Amendment to the Surface Mining Control Act, which directed the federal government to compensate, through purchase or exchange, owners of mineral rights whose right to mine had been denied by government regulation. In 1981, Congress enacted his legislation to cut inheritance and gift taxes. He later founded his own grass-roots organization, Frontiers of Freedom, whose agenda includes “preservation of property rights and reform of the Endangered Species Act, the privatization of Social Security, protection of civil liberties and the defeat of such big government initiatives as the antiterrorism bill and the national ID card legislation, and reform of the Food and Drug Administration.”
In 1996, Steve Forbes asked Wallop to be general chairman and executive director of his presidential bid, leading to changes which led to primary victories in both Delaware and Arizona. The Yale University graduate served in the U.S. Army as a First Lieutenant from 1955 to 1957 and was a member of the Wyoming Legislature from 1969 to 1976. His extensive business career includes management of the Wyoming ranch holdings he owned and the self-described rancher, businessman, real estate developer and investor jointly ventured oil and gas development projects in Nebraska, Montana and Wyoming. Mr. Wallop died Wednesday afternoon at his home near Big Horn, Wyoming.
When the Richmond, Virginia-based Fourth U.S. Circuit Court of Appeals issued its ruling against the state of Virginia’s case against ObamaCare this morning, I asked one of the nation’s most knowledgeable legal scholars, Georgetown law professor Randy Barnett, whom I interviewed earlier this year, for a statement. Dr. Barnett responded: “For a case that some said was a “no brainer” to uphold the Affordable Care Act [ObamaCare], three federal courts of appeals have adopted three different positions, each in 2 -1 decisions over a dissenting opinion. If any litigation ever cried out for resolution by the Supreme Court—and soon—it is this one. It is high time for the high court.”
“Children are a blessing, not a duty,” Betty Ford, who will be memorialized today in Palm Desert, California, famously said in one of many candid comments. In another comment for publication, she told a magazine that she had sex with her husband, the President, “as often as possible.” The late former First Lady’s plain, insistent talk is one reason to like the lifelong Republican, who is preceded by her late husband, former President Gerald Ford, and survived by her children, Michael, John (known as Jack), Steven, and Susan. As I posted on Facebook and Twitter when she died last week: “Betty Ford was a leader with grace, candor, and independence during difficult times; she personified the Serenity Prayer and she was one of my heroes.”
And she was, primarily for her commitment to addiction recovery. Having been affected by those who suffer from addictions, I know firsthand the value of her type of work, and I have gained enormous value from those whose lives have been recovered at the treatment center co-created by Mrs. Ford, an alcoholic whose own recovery toward sobriety began when her family, including her husband, boldly and bravely conducted an intervention. Among her center’s reported 90,000 patients: Stevie Nicks, who declared upon hearing about Mrs. Ford’s death that the Betty Ford Center had practically saved her life, Kelsey Grammer, NBC’s Frasier, Liza Minnelli, Mickey Mantle, Mary Tyler Moore, and the late actress Elizabeth Taylor (BUtterfield 8). Mrs. Ford co-founded the Center with industrialist Leonard Firestone.
As addiction recovery expert Dr. Drew Pinsky recently wrote, it is difficult today to conceive of a First Lady publicly acknowledging a condition that was at that point shrouded in shame and secrecy. “Betty understood that many refused to admit they had the condition or seek treatment because of the legacy of shame associated with alcoholism and addiction,” Dr. Drew observed. “An especially biting stigma had always been reserved for women with this disorder who could only dream of a day when a revered and prominent woman would come forward to advocate on their behalf. Betty’s deep appreciation of the pain of addiction sufferers motivated her to simply put aside her fear of personal harm and tell her story. With that one gesture of courage and honesty Betty Ford swept aside an eternity of discrimination. She knew that in doing so she would give millions of addicts and especially women with addiction, the opportunity for recovery and a flourishing life.” Dr. Drew added that he suspected that even she would not have foreseen that addiction would become the disorder of our time. As she had similarly done when she was diagnosed with cancer, Betty Ford demonstrated that taking that first step toward one’s self-improvement means acknowledging reality first. Mrs. Ford will be buried beside her husband in Grand Rapids, Michigan.
The Obama administration is initiating a secret government operation investigating doctors in private practice, according to the New York Times in its Sunday, June 26 edition.
The article reports that, according to government documents obtained from Obama administration officials, government agents posing as patients “will call medical practices and ask if doctors are accepting new patients and, if so, how long the wait would be. The government is eager to know whether doctors give different answers to callers depending on whether they have public insurance, like Medicaid, or private insurance, like Blue Cross and Blue Shield.”
The government’s subversive and deceptive campaign targeting America’s doctors is another part of the incremental assault on the rights of doctors, who are becoming enslaved by ObamaCare. I think this particular attack is designed to intimidate doctors into submission to ObamaCare, which effectively forbids doctors from autonomously practicing medicine, and will eventually prohibit doctors from quitting state-sponsored medicine. It’s a first strike against any doctor who dares to defy the government.
[source: New York Times, registration required: http://www.nytimes.com/2011/06/27/health/policy/27docs.html?_r=1&hp=&pagewanted=all ]
Law professor Randy Barnett, who has argued before the Supreme Court, is described by Forbes as the legal scholar “who laid the intellectual groundwork for the surprisingly effective legal attacks on ObamaCare by state attorneys general.” Barnett, the Carmack Waterhouse Professor of Legal Theory at the Georgetown University Law Center, where he teaches contracts and Constitutional law, has also taught torts, criminal law, evidence, agency and partnership, and jurisprudence. He graduated from Northwestern University and Harvard Law School, tried felony cases as a prosecutor in the Cook County States’ Attorney’s Office in Chicago and, in 2008, he was awarded a Guggenheim Fellowship in Constitutional Studies. Professor Barnett, who lectures internationally and has appeared on the CBS Evening News, The News Hour (PBS), and National Public Radio, offered his thoughts on America’s sweeping new nationalization of medicine—ObamaCare—during a recent interview.
Scott Holleran: In terms of American law, is health care a right?
Randy Barnett: Health care is not a Constitutional right. There are a lot of spending programs that create various entitlements, such as Medicare, but these are statutory rights not fundamental or Constitutional rights.
Scott Holleran: Is ObamaCare Constitutional?
Randy Barnett: ObamaCare, or the Patient Protection and Affordable Care Act, is unconstitutional for at least two reasons. One is that the individual mandate requires every American to purchase [health] insurance or face a penalty, which is an extension of Congressional power that goes beyond anything that has previously been authorized by the Supreme Court. From its inception, the substantial effects doctrine, though commonly conceived as a Commerce Clause doctrine, has been grounded in the Necessary and Proper Clause. The Supreme Court developed a judicially administrable test for whether it is “necessary” for Congress to reach intrastate activity that substantially affects interstate commerce: the distinction between economic and non-economic intrastate activity. Because [ObamaCare’s] individual mandate [forcing people to “buy” health insurance] fails to satisfy the requirements of this test, it exceeds the power granted to Congress by the Commerce and Necessary and Proper Clauses as currently construed by the Supreme Court. The Supreme Court has said that Congress could not reach non-economic activity and Congress, in this case, is trying to reach non-economic activity, mandating that people engage in economic activity. The other problem is that, as certain states are contesting, Congress is using its spending power coercively.
Scott Holleran: Is ObamaCare legally inevitable?
Randy Barnett: Absolutely not—it is not inevitable that legal challenges will fail or succeed. Neither side has an argument that can dictate or mandate or require the Supreme Court to decide this issue for or against their side.
Scott Holleran: Is the Constitutional case against ObamaCare an originalist perspective?
Randy Barnett: I am an originalist who advocates interpreting the Constitution according to its original meaning, but nothing in the legal challenge to ObamaCare is based on the original meaning of the Constitution—we’re just following the opinions on the Supreme Court, applying what they have previously said to this statute. I would describe our arguments as doctrinal, not originalist.
Scott Holleran: What are the legal options for opposing ObamaCare?
Randy Barnett: There are more lawsuits than I can keep track of, but, of the five district court judges who have ruled on the Constitutionality of the law, two struck it down and all five are on appeal, and we’ve so far had three appellate arguments, in Richmond, Cincinnati, and Atlanta, involving four of the lower court decisions. There may be other options that arise but I don’t want to express an opinion at this point and I don’t want to be overly optimistic. We expect decisions in the cases that have already been argued by the end of the summer, or possibly by September  and, if the Supreme Court takes a petition for appeal, there could be a decision by June 2012. That would be the earliest. I have a high opinion of the lawyers in the Virginia case, and the lawyering in the 11th Circuit Court of Appeals was excellent.
Scott Holleran: Have you read Virginia Attorney General Ken Cuccinelli’s address to Hillsdale College arguing against ObamaCare?
Randy Barnett: I have not seen that speech but I’ve testified to Congress with him. This guy is smart but what really amazed me was his press conference in Richmond. He was amazing—he got up there and gave one of the most knowledgeable, careful, legal analyses of his case [against ObamaCare] and he was crystal clear and completely on top of the case. I thought it was a masterful performance. I was really, really impressed.
Scott Holleran: What are the legislative options for opposing ObamaCare?
Randy Barnett: It would be helpful if the Republicans in Congress would pass a law that is Constitutional and market-based—I don’t think anybody wants to go back to [the mixed health care system of] 2008—and I have discussed this with several people and I get the sense that there is interest. If the GOP were to pass the [Rep. Paul] Ryan plan, it would be very beneficial [to killing ObamaCare] because it would show that there are alternatives [to ObamaCare]. It would offer something identifiable as an alternative—not just a think tank proposal—something worked out of a legislative body and that would be important. Ultimately, the people will have to elect a president who will sign a repeal bill and, if the court upholds the [ObamaCare] law, that will fuel the fires. I think any Republican who gets the nomination will have to pledge to repeal ObamaCare. I do think it’s going to be a challenge for people on the Hill to come up with something that’s not ObamaCare-lite because that’s the way they think. But the need for health care for poor people does not deprive other people of the right to choose their health care. A government takeover and distortion of the health care market is not the way to go.
Scott Holleran: Are there executive options for opposing ObamaCare, in case Congress buckles in favor of the law?
Randy Barnett: [Former Massachusetts] Governor [Mitt] Romney says he’ll give a waiver to everyone. But I’m a Constitutional lawyer and, when you’re talking about something so far down the road, a lot can happen.
Scott Holleran: Are there state law options for opposing ObamaCare?
Randy Barnett: Some states have enacted health care freedom [from ObamaCare] acts and the Constitutionality of those acts are at issue in the lawsuits. If we lose [and ObamaCare is upheld], those acts will be inoperative. States can try to resist the Medicaid part, if they can afford to—and they generally can’t—but the idea that 27 or 28 state attorneys general are suing is significant and it’s going to be noticed by the Supreme Court.
Scott Holleran: Are there opt-out provisions that a single individual can exercise in compliance with U.S. law to get out of ObamaCare?
For the first time in decades, every American can be proud of an act Congress: the House of Representatives voted today for an historic rejection of a major new organ for government control of our lives. The House voted 245 to 189 to undo what has been done to our nation’s medical and health insurance professions, with slavery and injustice for all: ObamaCare.
Three Democrats broke from the Democratic Party to vote for repeal — Reps. Dan Boren of Oklahoma, Mike Ross of Arkansas and Mike McIntyre of North Carolina — but, with no trace of irony, Democratic Rep. Steve Cohen of Tennessee compared Republican arguments against government-controlled health care to Nazi propaganda that fed hatred of Jews during World War 2. The idiot from the Volunteer state should know that the Nazis, too, had socialized medicine and Jews, like Americans, had no choice in the matter. Now the bill may go to the Senate, where Repubilcans will try to schedule the bill for a vote. Republican Congressman Lee Terry of Nebraska rightly called ObamaCare “a trillion-dollar tragedy.” Republican Congressman Kevin Duncan of Texas properly noted that “health care is too important to get it wrong, and ObamaCare got it wrong.”
Rep. Duncan got it right. So, Republicans would be wrong to make the same error and seek to replace ObamaCare with other, softer forms of government controlled medicine or other forms of tyranny such as a ban on abortion. They should commit to restoring capitalism and individual rights in medicine and in the nation. And those who remain silent on the issue of socialized medicine, while complaining about the latest comment, quip or half-thought from a lousy opportunist like Sarah Palin, are the worst types of Americans. They should either be ignored or, to varying degrees, opposed as accomplices to dictatorship and enemies of freedom: their passive acceptance of tyranny and submission to totalitarianism is a real threat to one’s freedom. But, for now, the effort to repeal ObamaCare moves ahead and with this bit of good news, too: six more states, Iowa, Kansas, Maine, Ohio, Wisconsin and Wyoming, have joined the lawsuit to stop ObamaCare. Now, that’s 26 united states of the union. Let’s roll.