The Three Roads to Repeal

All is not lost.  However, the clock is ticking for our nation.  I have very recently doing some research on the repeal options.  So it looks like there are three options and one that should particularly frighten those congressmen in Washington.

State lawsuits challenging on the grounds of sovereignty and constitutionality of the law in question.

As I write this, there are 14 states that are considering or have filed lawsuits against the United States government.  These are likely to be on constitutionality problems that Obamacare causes with the 9th and 10th amendment.  The sovereignty issue could run into problems with the Supremecy Clause which says that federal law triumphs State Law.  Then there is the problems with the Commerce Clause that the individual mandate runs into.  If the individual mandate which requires Americans to purchase health insurance gets kicked out by the U.S. Supreme Court, Obamacare falls apart. I say the chances of this prevailing are 50/50.  However, Obama certainly didn’t help himself as he ridiculed the Supreme Court in his State of the Union address due to their striking down McCain-Finegold in Citizens United vs. FEC.  Obama and the Democrats were extremely upset about this because then they wouldn’t have to only worry about a GOP candidate running attack ads, but corporations running attack ads against them.

Repeal by a future Congress and President

This one is possible with the 2010 and 2012 elections.  However, it is made difficult by the small window this country has in reversing this legislation.  The GOP would need a House majority, a Senate supermajority of 60 seats, and a GOP president to overturn this thing.  In my previous post, I laid out all the targets that can be targeted and didn’t spare anyone.  Also, I laid out the donation priorities there as well.

Article V convention

No one has been really talking about this one.  This option is DEADLY to a lethal degree and has a beautiful check and balance in keeping a tyrannical legislature and executive branch in check.  It should terrify the party in power because if they go to far and start breaking Constitutional restraints, they can be humbled in a hurry.  Key parts from Wikipedia:

To guard against oppressive government of any kind, the authors of the United States Constitution sought to establish institutional checks and balances. In framing the Constitution as the fundamental embodiment of such safeguards, the Constitutional Convention assembled in Philadelphia in 1787.[1] One of the main reasons for the 1787 Convention was that the Articles of Confederation required the unanimous consent of all 13 states for the national government to take action. This system had proved unworkable, and the newly-written Constitution sought to address this problem.

The first proposal for a method of amending the Constitution offered in the Constitutional Convention, contained in the Virginia Plan, sought to circumvent the national legislature, stating that “the assent of the National Legislature ought not to be required.”[2] In response, Alexander Hamilton privately circulated a proposal that gave the power to propose amendments to the national legislature, and the power to ratify the amendments to the states.[3] The first reference in the Convention records to the idea of an amendment-proposing convention requested by the states comes from drafts of the Constitution kept by the Committee of Detail.[4] After some debate, James Madison removed reference to the convention amendment process, giving the national legislature sole authority to propose amendments whenever it thought necessary or when two-thirds of the states applied to the national legislature.[5] As the Convention reviewed the revision the Committee of Style had made, several delegates voiced opposition to the idea of the national legislature retaining sole power to propose constitutional amendments.[5] George Mason argued from the floor of the Convention that it “would be improper to require the consent of the Natl. Legislature, because they may abuse their power, and refuse their consent on that very account.” Mason added that, “no amendments of the proper kind would ever be obtained by the people, if the Government should become oppressive.”[6] In response to these concerns, the Convention unanimously voted to add the language allowing states to apply to Congress for a convention to propose amendments to the Constitution.[5] James Madison did not oppose reintroducing language permitting the convention amendment process, but in what proved to be prescient concerns about the lack of detail in Article V about how the convention amendment process would work, stated that “difficulties might arise as to the form” a convention would take.[7]

The text of Article V referring to the convention amendment process reads: “The Congress, . . . on the application of the Legislatures of two-thirds of the several States, shall call a convention for proposing Amendments. . . .” Every state, except for Hawaii, has made applications for an Article V convention. The majority of such applications were made in the 20th century. While there is no official count of the number of applications, one private count puts the total number of applications at over 700.[8][9]Even though the Article V convention process has never been used to amend the Constitution, the number of states applying for a convention has nearly reached the required threshold several times. Congress has proposed amendments to the Constitution on several occasions, at least in part, because of the threat of an Article V convention. Rather than risk such a convention taking control of the amendment process away from it, Congress acted pre-emptively to propose the amendments instead. At least four amendments (the Seventeenth, Twenty-First, Twenty-Second, and Twenty-Fifth Amendments) have been identified as being proposed by Congress at least partly in response to the threat of an Article V convention.[10]

There have been two nearly-successful attempts to amend the Constitution via an Article V convention since the late 1960s. The first try was an attempt to propose an amendment that would overturn two controversial Supreme Court decisions, Wesberry v. Sanders and Reynolds v. Sims, dealing with voting districts and apportionment of votes in state elections. The attempt fell only one state short of reaching the 34 needed to force Congress to call a convention in 1969, ended by the death of its main promoter senator Everett Dirksen. After this peak, several states rescinded their applications, and interest in the proposed amendment subsided.[11] The next nearly-successful attempt to call a convention was in the late 1970s and 1980s, in response to the ballooning federal deficit. States began applying to Congress for an Article V convention to propose a balanced-budget amendment. By 1983, the number of applications had reached 32, only two states short of the 34 needed to force such a convention.[12] Enthusiasm for the amendment subsided in response to concerns about whether an Article V convention could be limited to a single subject and because Congress passed the Gramm-Rudman-Hollings Act, which required that the budget be balanced by 1991 (but that Act was overturned by the Supreme Court in 1986).[13]

Possible scope

Because no Article V convention has ever been convened, there are many unanswered questions about how such a convention would function in practice. One major question is whether the scope of the convention’s subject matter could be limited. The consensus is that Congress probably does not have the power to limit a convention, because the language of Article V leaves no discretion to Congress, merely stating that Congress “shall” call a convention when the proper number of state applications have been received. Comments made at the time the Constitution was adopted indicate that it was understood when the Constitution was drafted that Congress would have no discretion. In The Federalist No. 85, Alexander Hamilton stated that when the proper number of applications had been received, Congress was “obliged” to call a convention and that “nothing is left to the discretion of Congress.”[14] James Madison also affirmed Hamilton’s contention that Congress was obligated to call a convention when the requisite number of states requested it.[15] In the North Carolina debates about ratifying the Constitution, James Iredell, who subsequently became one of the founding members of the Supreme Court, stated that when two-thirds of states have applied to Congress for a convention, Congress is “under the necessity of convening one” and that they have “no option.”[16]

By citing the Constitution’s Necessary and Proper Clause, Congress has tried to enact a statute to regulate how an Article V convention would function. Sponsored by the late Senator Sam Ervin, such a bill passed the U.S. Senate unanimously in 1971 and again in 1973, but the proposed legislation remained bottled up in the Committee on the Judiciary in the U.S. House of Representatives and died both times. Opponents to congressional regulation of an Article V convention’s operations argue that neither Article I nor Article V of the Constitution grants Congress this power, and that the Founders intended that Congress “have no option.” While the text and history of Article V clearly indicated that Congress has no authority to enact such legislation, there has been no opportunity for Federal courts to decide whether Congress has such authority because such legislation has never been adopted by Congress.

While Congress likely has no authority to limit the scope of an Article V convention, the scholarly consensus is that the states do have that power. Larry J. Sabato is one such scholar who advanced that view in his book A More Perfect Constitution. Congress’s duty to call a convention when requested by the states means that it must call the convention that the states requested. If the states, therefore, request a convention limited to a certain subject matter, then the convention that is called must be limited in the way the states requested.[17] The drafting history of the Constitution at the Constitutional Convention of 1787 provides evidence that it was the Framers’ intent that an Article V convention could be limited by the states according to subject matter (see the next section, “Subject Matter of Applications” for a further discussion).[18]

If states have the power to limit an Article V convention to a particular subject matter, and Congress only has power to call a convention but no further power to control or regulate it, then a potential concern becomes whether an Article V convention could become a “runaway convention” that attempts to exceed its scope. An Article V convention would merely be empowered to propose amendments. Until ratified, proposed amendments would have no constitutional effect. If a convention did attempt to exceed its scope, therefore, none of the amendments it proposed would become part of the constitution until three-fourths of the states ratified them. The states, therefore, are empowered through the ratification process to act as a check to prevent a “runaway” convention by not ratifying amendments that have been inappropriately adopted. If a convention did exceed its scope, and the states still chose to ratify the convention’s proposed amendments, the proposed amendments would have to enjoy widespread popularity, since the ratification process requires the assent of even more states (three-fourths) than are required to call a convention in the first place.[19] Fears that an Article V convention may exceed its scope are likely unfounded, in light of the United States’ experience with state constitutional conventions. Over 600 state constitutional conventions have been held to amend state constitutions, with little evidence that any of them have exceeded their scope.[20]

I LOVE this last option.  The power is solely with the people and the states.  This is the people’s and the states’ strongest weapon and will likely terrify Democrats as their folly in hoisting the freedom and liberty robbing legislation upon the American people becomes apparent to them.  I think it was a reporter from the Weekly Standard or National Review who said this health care victory would be Obama’s Borodino.  The Battle of Borodino was when Napoleon overextended his hand by suffering tremendous losses in this victory and then had to retreat his forces through the brutal Russian winter.  I heard Glenn Beck this morning expressing skepticism at what good would it do for the GOP to win the House back in November.  This is exactly the reason why.  Pelosi would be under tremendous pressure if 2/3 of the state legislatures submitted their applications to convene an Article V Convention.  If she didn’t yield, she would be violating her oath to uphold the Constitution and would have a tremendous blowback from the American people.  If Pelosi doesn’t yield, then guess what?  That’s right.  If a new GOP Speaker (Hello, Mr. Boehner) was sworn in, then it completely changes.  If the GOP won back the House in November, John Boehner as Speaker would call the convention if Pelosi didn’t.  I am not sure if the Senate would have a say in this.  I’ll have to do some more research but they would be well advised not to stand in the way of the will of the people.  On top of that, they would be violating their oaths to uphold the Constitution as mandated by our founding fathers.

The state legislatures could submit their amendments at the Article V Convention and would have to be ratified by 3/4 of the state legislatures, not federal legislatures.  The power is completely in the states’ control, not U.S government control.  This is why Congress would likely want to repeal the bill.  They wouldn’t want to lose their power and would spare them the embarrassment.  This would make a GOP House and Senate’s job that much easier to repeal Obamacare.  They would simply tell Obama that if he vetoed a repeal bill, they would call for the Article V convention. At last count, 38 states were considering or have taken some action against Obamacare because it will create an unsustainable financial burden on the states.

In summary, the downticket affect of passing Obamacare is going to have drastic consequences at both the state and federal levels.  Vote straight Republican on your ballot this coming election.  This could be killed within 2 years.  However, all roads to repeal must be utilized and exhausted to overturn this travesty.  The courts, the ballot box, the state legislatures.


The elections are of equal importance not only at the federal level, but at the state level as well.  If 37 states or more elect or keep in office GOP legislatures, then the states would have the power to amend the Constitution and there is NOTHING Obama or the crony Democratic politicians in Washington could do about it.

In closing, I am floored by the vision and intelligence the more that I read of our founding fathers.  It is on such a level that could only have been providentially given by God.  Just incredible.  We were so blessed by God to have men like that put on this earth and to create this nation.

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