I believe that Senator Hatch was “citing” from the Randy Barnett, Nathaniel Stewart and Todd F. Gaziano Legal Memorandum #49 at the Heritage Foundation website. You can read the entire legal analysis at

http://www.heritage.org/Research/LegalIssues/lm0049.cfm

Randy Barnett is the Carmack Waterhouse Professor of Legal Theory at the Georgetown University Law Center. Nathaniel Stewart is a lawyer at the firm of White & Case, LLP. Todd Gaziano is the Director of the Center for Legal and Judicial Studies at The Heritage Foundation.

The title of the article (legal analysis/review) is “Why the Personal Mandate to Buy Health Insurance Is Unprecedented and Unconstitutional”….

See Linder v. United States, 268 U.S. 5, 18, 45 S.Ct. 446 (1925) (“Obviously, direct control of medical practice in the states is beyond the power of the federal government”);

Lambert v. Yellowly, 272 U.S. 581, 589, 47 S.Ct. 210 (1926) (“It is important also to bear in mind that ‘direct control of medical practice in the States is beyond the power of the Federal Government.’ Linder v. United States 268 U.S. 5, 18. Congress, therefore, cannot directly restrict the professional judgment of the physician or interfere with its free exercise in the treatment of disease. Whatever power exists in that respect belongs to the states exclusively.”)

Oregon v. Ashcroff, 368 F.3d 1118, 1124 (9th Cir. 2004) (“The principle that state governments bear the primary responsibility for evaluating physician assisted suicide follows from our concept of federalism, which requires that state lawmakers, not the federal government, are ‘the primary regulators of professional [medical] conduct.’ Conant v. Walters, 309 F.3d 629, 639 (9th Cir. 2002);

Barsky v. Bd. of Regents, 347 U.S. 442, 449, 74 S.Ct 650, 98 L.ED. 829 (1954) (‘It is elemental that a state has broad power to establish and enforce standards of conduct within its broders relative to the health of everyone there. It is a vital part of a state’s police power.’) The Attorney General ‘may not…regulate [the doctor-patient] relationship to advance federal policy.’ Conant, 309 F3d at 647 (Kozinski, J., concurring).”)

And certain features of this proposed law will certainly be unconstitutional; see:

United States v. Constantine, 296, U.S. 287, 56 S.Ct. 223 (1935) “We think the suggestion has never been made — certainly never entertained by this Court — that the United States may impose cumulativepenalties above and beyond those specified by state law for infractions of the state’s criminal code by its own citizens. The affirmative of such a proposition would obliterate the distinction between the delegated powers of the federal government and those reserved to the states and to their citizens. The implications from a decision sustaining such an imposition would be startling. The concession of such a power would open the door to unlimited regulation of matters of state concern by federal authority. The regulation of the conduct of its own citizens belongs to the state, not to the United States. The right to impose sanctions for violations of the state’s laws inheres in the body of its citizens speaking through their representatives. So far as the reservations of the Tenth Amendment were qualified by the adoption of the Eighteenth, the qualification has been abolished.

We got them on tape and Senator Bennett is up for re-election this year and I have fought with every ounce of my being to sue Obama and believe TAKING A STAND for our Constitution is not something to carry lightly with the President who is swathing the U.S. treasury, and the standard of our Republic.

Cody Robert Judy
http://www.codyjudy.us
U.S. Senate Candidate 2010

“What is a natural born citizen? Clearly, someone born in the United States or one of its territories is a natural born citizen.”

Statement of
The Honorable Orrin Hatch
United States Senator
Utah
October 5, 2004

http://nativeborncitizen.wordpress.com/2009/08/07/orrin-hatch-statement-“maximizing-voter-choice-opening-the-presidency-to-naturalized-americans”/

Your perspective is one of the finer things I like about your blog, site, column. You do, indeed, provide your readers with the most salient points to be found in the articles you approve, allowing these readers to be completely informed. Very refreshing these days.

It was not my intention to debase Mr. Kaufman’s lengthy observation with regards to Orin Hatch. I’m certain Hatch was at his objective best in the reference article. The point of my criticism of Hatch is much broader than that.

Consider these facts:

1. I would like to ask Hatch if he, or his cohorts recall the selection of Sen. Hillary Clinton for the position of Secretary of State in Dec. 2008?.Sen.. Hatch, is she qualified?

Read this:

Article 1 Section 6:
“No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States shall be a Member of either house during his Continuance in Office” . . . This ploy was used by Richard Nixon during his administration, and is commonly known as the “Saxbe Fix”. Unconstitutional, at best.

Also, consider this:

2. It is in complete contravention of the Constitution for the “usurper” to assume the Chairmanship of the United Nations, as he did this year, in September. The Constitutional Article in question again is Article 1, Section 9: “No title of nobility shall be granted by the United States: and no Person holding any Office of Profit or Trust under them, shall, without the Consent of Congress, accept any present, Emolument, Office or Title, of any kind whatever, from any King, Prince, or foreign state”.

Or, in this:

With the Article 1, Section 9 clause in mind, the “usurper” was awarded, and unashamedly accepted the Nobel Prize Medal in October 2009. Once more, unconstitutional.

Senator Hatch? Where are you? Where are all the rest of your spineless colleagues, supposedly responsible for the enforcement of their “Oath of Office” each and every one of them took? Remember?
“I do solemnly swear (or affirm) that I will support and defend the
Constitution of the United States against all enemies, foreign and
domestic; that I will bear true faith and allegiance to the same;
that I take this obligation freely, without any mental reservation
or purpose of evasion; and that I will well and faithfully discharge
the duties of the office on which I am about to enter: So help me God.”
Congressional oath of office

Granted, I’m sure Hatch meant well, his intentions in raising the unconstitutionality of the impending “Death Care Plan” but all I ask simply is “where was he when the Constitution was being walked upon, spat upon and generally ignored??? Due to his failure to “do the right thing” in January of 2009, we now have a situation which is far more serious than the “Death Care Plan”… a “usurper” who is unconstitutionally eligible to hold the Office of President, if for no other reason than his self-admitted British citizenship conferred upon him by his father. Ref. Article 2, Section 1.

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Mr. Charlton replies: May it not come to this, but if it does, we all should join you.

ref @joe The Blogger,

Joe, you hit the nail right on the head……… it’s too bad the Post & Email wasn’t a reality back about a week before the usurper was officially sworn in, when the none, repeat, none of the 535 gutless and cowardly members of Congress, including Orin Hatch, would stand up for the Constitution then. Please don’t tell me about Hatch’s loyalty and the long- winded treatise by K.J. Kaufman above regarding the Constitution………
I just wonder out loud if the Post & Email was a reality back then, would Mr. Charlton’s attitude regarding K.J. Kaufman’s have been the same as it is today?

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Mr. Charlton replies: I approved Kaufman’s piece because it documents very well what was said, and what was said was very well said and right and true.

Mr. Bauer, I understand your anger, and yes, I am aware that Hatch ducked the eligibility issue. The purpose of Kaufman’s piece is another topic, the health care bill.

Just becaue Hatch was disloyal on the eligibility issue does not mean he is faking on the health care bill, when he cites the Constitution.

You must understand that politics is not religion. You can be a constitutionalist and a true one, some of the time, or all of the time. Whether it is some or all, regards not whether you are a constitutionalist, but whether you are a man of intellectual and moral integrity. And that is another question.

In law, however, any good argument is good in of itself, even if made by a scoundrel.

You may think Hatch is a scoundrel, but the purpose of the article was to show how good his argument on the unconstitutionality of the health care bill was.

The Post & Email covers the news, and highlights any arguments and events in defense of the Constitution, even from scoundrels; the purpose being first and foremost to uphold the Constitution, and only second to out scoundrels.