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RUSH: Let’s go to Lawrence, Kansas. Dale, you’re next, great to have you on the EIB Network, sir. Hello.

CALLER: Hi, Rush, it’s an honor to talk to you.

RUSH: Thank you.

CALLER: I can tell you that my son, who is here with me, he was not a Rush Baby initially, and over time you won him over and he even purchased me a 24/7 membership.

RUSH: Wow. How old is he now?

CALLER: He’s 23.

RUSH: Wow. I love hearing that.

CALLER: When he’s not in classes, he’s actually spending time sitting down with me listening to you, and we’re doing everything that we can to be as educated on what’s going on in the world —

RUSH: God bless you.

CALLER: — and you’re a big part of it.

RUSH: God bless you, sir. Calls like that that make everybody listening here have hope that we can reverse all of this. That’s fabulous. Thank you.

CALLER: Well, the question that I had for you, Rush, how do you deal with the Commerce Clause?

RUSH: Oh, well —

CALLER: The reason I have a question about it is because to move forward and to deal with what this administration is doing and when I say this administration, I’m a black man myself, and I say black, not African-American, that’s up to anybody to call themselves what they want. My stance has nothing to do with race, and I hate to see race being abused and used as leverage for every hyphenated weirdo group to link themselves to the, quote, unquote, civil rights movement and then step over the civil rights movement and step over the Constitution and go into all this extra-constitutional stuff. And it seems that that’s what the Commerce Clause is being used for today. It looks like this is being interpreted to the exclusion of all of the rest of the Constitution. And I would like to see our leaders speak up on that. Which rights can be negated because of the Commerce Clause? They say it’s for the common good, we have court precedent. I mean, where does it end?

RUSH: Well, let me give you a little history on this. The courts are going to be a pretty big obstacle here with this. I heard David Axelrod say the other day that, oh, yeah, there were all kinds of lawsuits after Social Security, and we won those and we’ll win this one. I didn’t know that there were lawsuits after Social Security. I looked it up and there were quite a few of them, and one of them even got to the Supreme Court and they were all shot down, they were all shot down, not so much to do with the Commerce Clause, although it is relevant in a way that I’ll try to explain in a minute. I’m going to have trouble explaining this with specifics right now but what I’m going to say to you is factual and I’ll find what I want to support it here in my stack in just a second. But the courts have codified socialism with several rulings. They have also codified that they will not look at how a bill becomes law based on separation of powers. Now, the Commerce Clause has I think already been corrupted a bit by previous courts, so it’s tough to overcome it, and this is why the left is feeling so smug here in thinking these lawsuits aren’t gonna work. Now, legal people I’ve talked to admit the tough slog but they think it can be overcome with the right approach.

CALLER: Hm-hm.

RUSH: But I hear what you’re saying about corrupting everything with the civil rights movement. Like Clyburn said, this is the Civil Rights Act of the twenty-first century. I think it’s an absolute debasement of the Civil Rights Act to compare the purpose of that legislation with the purpose of this.

CALLER: Well, now, the Supreme Court had a decision some time ago that said that the government cannot tax, penalize and control a citizen’s conduct. I mean there are some things — the way they talked, Rush, they say, oh, well smart people think this way, and these issues are so complex, you know. I even heard one talking head on television saying, ‘Well, we don’t want the people in the military and the police, you know, out there interpreting the Constitution.’ I happen to know a little bit about the police and the military which I can’t go into, but they interpret the Constitution every day —

RUSH: They have to!

CALLER: — in order to get their job done.

RUSH: We all have to!

CALLER: Exactly. The thing that’s complex is we’re hiding something, we’re contorting something. And they’re trying to be ubiquitous, you know, in what they’re doing —

RUSH: They’re not hiding anything. It’s right out in the open if you know how to translate the lingo. When they say that they don’t want the cops and the military interpreting the Constitution or understanding — because they want to be in control over what is and what isn’t constitutional.

CALLER: Exactly.

RUSH: Exactly right. They don’t want citizen freedom here. It’s a tough thing for people to get their arms around, when I say this, that this group of leftist radicals is anti-freedom. People don’t think this kind of thing can happen in America. It happens in Cuba, happens in Venezuela, happened in the old Soviet Union, not here. You know the old story about the frog, put a frog in a pot on a stove in cool water and turn it on and it takes a long time to boil.


RUSH: And before the frog realizes it he’s dead.


RUSH: Well, that’s the stage here. We’re just percolating along, the effervescence of statism is now bubbling over the edge of the pot. It’s a little warm here but nobody is really in a state of panic except people who are informed and educated and understand history and understand what will happen if we don’t put the brakes on at this point, which I think is what you are doing. Now, there’s a story, you mentioned the Commerce Clause. The House Judiciary Committee chairman is John Conyers and he cited a nonexistent clause in the Constitution in order to substantiate Congress’s authorizing and forcing Americans to buy health insurance, he called it the ‘good and welfare clause.’ There’s no such thing. This is the guy heading the Judiciary Committee, John Conyers. I will give you details when we return.


RUSH: All right. John Conyers ‘said the ‘good and welfare clause’ gives Congress the authority to require individuals to buy health insurance as mandated in the health care bill. However, there is no ‘good and welfare clause’ in the US Constitution. During an interview Capitol Hill Friday, CNSNews.com asked Rep. Conyers, ‘The individual mandate in the bill requires individuals to purchase health insurance. The Congressional Budget Office (CBO) has said that never before in the history of the United States has the federal government required any one to purchase any good or service. What part of the Constitution do you think gives Congress the authority to mandate individuals to purchase health insurance?’ Conyers said: ‘Under several clauses, the good and welfare clause and a couple others. All the scholars, the constitutional scholars that I know — I’m chairman of the Judiciary committee…” (busting up laughing)

Pardon me, folks! That’s like I used to always in conversation with people when I would utter a legal opinion, I’d say, ‘And trust me, my dad was a lawyer. I know this.’ So here’s Conyers making up a clause! (laughing) ‘Conyers said: ‘Under several clauses, the good and welfare clause and a couple others. All the scholars, the constitutional scholars that I know — I’m chairman of the Judiciary committee — they all say that there’s nothing unconstitutional in this bill and if there were, I would have tried to correct it if I thought there were.’ The word ‘good’ only appears once in the Constitution, in Article 3, Section 1, which deals with the Judicial Branch, not the powers of Congress. Article 3, Section 1 says in part: ‘The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times…’

Like Alcee Hastings. Do you know what Alcee Hastings did? Alcee Hastings is a congressman representing part of the district we’re in here. He used to be a federal judge. He was taking bribes from guilty people. He was a federal judge taking bribes from the guilty to let ’em off. He was gotten rid of by the US Senate. It’s hard to get rid of a judge appointed for life, and Alcee Hastings is now a member of Congress, and he’s the guy that said, ‘Rules? What rules? We make up the rules as we go along,’ meaning the rules committee in the House of Representatives. ‘According to the Congressional Budget Office (CBO), however, the federal government has never before mandated that Americans buy any good or service. In 1994, when Congress was considering a universal health care plan formulated by then-First Lady Hillary Clinton, the CBO studied the plan’s provision that would have forced individuals to buy health insurance and determined it was an unprecedented act,’ and they stated so in a statement.

Now, our previous caller was right on the money, and he’s speaking for a lot of people. You know it, folks, in your heart and in your gut: Forcing somebody to buy a service that they choose not to is going against everything about freedom and being an American, and the complex legal interpretation allowing this is mind-boggling — and has gotten to the ridiculous point that Conyers is making up a clause! ‘The good and the welfare clause.’ There’s a column written about this today by David Harsanyi in the Denver Post: ‘The Mugging of Personal Freedom — What does it say about your cause that nearly every policy idea you cook up is based in some form or another on coercing the American people?’ and, if I might add, hiring 16,000 new IRS agents to enforce the coercion. ‘When House Judiciary Committee Chairman John Conyers, D-Mich., was recently asked to identify where the Constitution granted Congress the authority to force all Americans to buy health insurance, he replied, ‘Under several clauses; the good and welfare clause and a couple others.’

‘For those of you who aren’t familiar with the ‘good and welfare’ clause, it states that ‘The Congress shall have Power to make Citizens of each State compelled to partake of the Privileges of Health Care Insurance, & those who refuse will be fined, charged with a misdemeanor crime or lashed (or receive Medicaid).’ Now, I’m not a lawyer, but I was somewhat surprised to discover that the Constitution featured a ‘good and welfare’ clause — though, obviously, Washington has done a laudable job fulfilling the latter part of this imaginary passage.’ He was making a joke, here. If Conyers says there’s a ‘good and welfare clause,’ then David Harsanyi here was writing one. It doesn’t exist. There’s no such thing.

He says, ‘(We’d be better off mandating that elected officials own a copy of the Constitution.) It has, actually, been widely speculated that Conyers, a lawyer, was referring to the ‘general welfare’ clause that gives Congress the authority to tax and spend to promote the general welfare. The other ‘clauses’ he mentions are likely the long-abused ‘Commerce Clause,’ which gives Congress the power ‘to regulate commerce … among the several states,” and that’s where this whole lawsuit stuff starts because the 14 states’ attorneys general said: You can’t make us do this. You can’t make us do this. Now, I’m not going to have time before the end of the program today to find (maybe I can during a commercial break) the detail here that is going to make this a tough slog. Common sense says we can’t be forced to buy something. All I’m doing here is trying to prepare you here for the fact that it’s not a slam dunk, and it’s a great effort and it ought to be applauded, but there are some obstacles in the way because of previous and prior rulings.

Richard in Shreveport, Louisiana, welcome to the program. Hello, sir.

CALLER: (silence)

RUSH: Richard!


RUSH: You’re next. Are you Richard from Shreveport?

CALLER: No, I’m not.

RUSH: Well, then Richard from Shreveport hung up. We’ll find out who you are in just a second. Dave in Blaine, Washington, welcome to the program, sir. Hi.

CALLER: Morning, sir, and mega dittos.

RUSH: Thank you.

CALLER: Rush, I have a question for you. I know you’re an avid golfer, and so am I — and, you know, you’re welcome to come up here to the Pacific Northwest any time and I’ll treat to you golf — but being an avid golfer, would you pay today for a brand-new driver which you wouldn’t get for four years, which is exactly what Obama is trying to make us do?

RUSH: No, I wouldn’t.

CALLER: So why would you buy anything from any retailer or eBay or anything else, pay the money up now, and not get the benefits of what you purchased for four years?

RUSH: Because you may not have any choice.

CALLER: But that’s where the destruction of personal freedom comes in.

RUSH: Of course. Well, yes, exactly. This whole health care bill is an assault and it’s being applauded today by people in the New York Times. It’s being applauded by people throughout the media. John Dingell, on WJR radio yesterday morning, when asked, ‘Why is it going to take so long to implement all this?’

DINGELL: Paul W. (Smith), we’re not ready to be doing it, but let me remind you, this has been going on for years. We are bringing it to a halt. The harsh fact of the matter is when you’re going to pass legislation that will cover 300 American people in different ways it takes a long time to do the necessary administrative steps that have to be taken to put the legislation together to control the people.

RUSH: ‘To control the people.’ Controlling the people does not fit in the equation that includes the word ‘freedom.’


RUSH: Now, folks, here’s what I was looking for to explain how the Commerce Clause has been already been used in this way. The best way to find it is in Levin’s book, Liberty and Tyranny, page 101. ‘How the federal government legally forces employers and employees to ‘contribute’ to an ‘insurance’ program?’ In other words, how could they make you buy insurance? ‘The program’s constitutionality was challenged and in 1937 the Supreme Court ruled that the proceeds of both taxes –‘ unemployment program and Social Security pension ‘– are to be paid into the Treasury like internal revenue taxes generally, and are not earmarked in any way. Therefore, while FDR was insisting to the public that Social Security was an insurance –‘ remember, there were lawsuits against Social Security, my point here. So while ‘Roosevelt was insisting to the public that Social Security was an insurance program based on segregated funds and earned benefits, his lawyers were in court insisting there was no such thing, and the Supreme Court played along and betrayed the Constitution.’

The point of this is the government could not force people to buy insurance. Well, what the court said in their ruling is, okay, we’re going to treat it as a tax. And that’s the precedent that has been set. You’re paying taxes just as if you were being taxed for other programs. So the difficulty today is that the government will be mandating that we buy insurance not as part of a pension program or unemployment program but for our own direct use. So the Supreme Court today could make the distinction or it could go one more step toward statism and extend the Roosevelt ruling from 1937 to certify the mandate that Obama seeks to impose on us. So all they basically have to do is call this a tax, basically, and get around it. Now, the purpose — this is what everybody knows, and this is why this is such a gut wrench.

The purpose of the Commerce Clause was to promote commerce and not to empower the federal government to obstruct it. And it was put in the Constitution because no such clause existed in the Articles of Confederation and the states were discriminating against each other with all kinds of parochial taxes aimed at preventing interstate commerce, they were trying to keep all the commerce within the states, like the insurance company has commerce within the states today, state mandated. So the Framers were trying in the Constitution to codify capitalism for the entire country. So there’s no way any of this is truly constitutional from an originalist perspective, but the court has already said that it is. They’ve already destroyed the Constitution on the Commerce Clause. Now, it’s not unbeatable. I keep talking about how difficult the road is. I don’t want anybody to get their hopes way up simply because there’s already precedent here. It depends on a whole lot of things we don’t know, who’s going to argue these cases, how well and persuasive their cases are going to be argued, and what the predisposition is of the court in the first place.

There are really not a whole lot of people who have studied the Supreme Court cases to this degree, and a lot of people are out there saying things about this that they’re really not totally informed on. Name of the case is Helvering v. Davis, that’s the 1937 Supreme Court case if you want to look it up, is where the supposed precedent exists. Now, I’m not saying this to be a downer on anybody. The court went along with FDR’s lawyers and ignored what FDR was saying to the public. The lawyers were arguing something totally differently to the court. Remember, you know, FDR was trying to pack the court at the same time. We got a court now, I mean you never know how these things go, these are human beings, too, we got a court now where a majority feels disrespected and insulted by Obama, so there are a lot of variables here, and these people doing this need to be applauded, they need to be supported, but you need to understand that it’s not a slam dunk even though common sense says that it should be.


RUSH: Okay, now, let me give you a little upper here and tell you the difference between what this case is and what Helvering, the ’37 Supreme Court case, is. The problem that the government’s going to have in opposing the state lawsuits in this situation is that it is hard to call a mandate which compels individuals to buy health insurance for themselves a tax. They’re not buying health insurance for the government, they’re buying it for themselves. It’s going to be hard to call that a tax, which they’re going to have to be able to do ostensibly because that’s the precedent from the 1937 case. In this case, being forced to buy insurance, the individual is not sending money to the government as some kind of tax. He is being told to buy it for himself.

So that’s the narrow opening that our guys have. And some people aren’t gonna send any money, some people are going to pay a fine, which is a tax, by the way, and the fine is much less than the policy will be. So the hope is, I think, for the people that wrote the legislation, is that people opt for the fine, and here’s the IRS coming in to supervise it. Here’s a self-paying tax for not having insurance. But then of course when this thing fully implements, you’ll be able to go get insurance at any time: the day you have the accident, the day you get sick, and they have to cover you, but not for long because they won’t be in business to cover you. Okay, that’s that. Where else are you going to get anything like this in the media? Nowhere, folks.

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