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ObamaCare and the Constitution

Lance McMillian's picture

The Framers of the Constitution created a federal government of limited, enumerated powers. In the words of James Madison, “The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite.”

Throughout the country, federal courts are presently considering whether this original design has any remaining viability. The question before these courts asks: Is Obamacare constitutional?

Regulation of economic transactions, of course, is unremarkable, and Article I of the Constitution gives Congress the power “to regulate Commerce ... among the several States.”

Obamacare, however, goes far beyond garden-variety regulation. The law’s centerpiece, the much-maligned individual mandate, compels every American – at the risk of criminal penalties – to purchase health insurance from an insurance company. And therein lies the rub.

It is one thing to regulate all those who choose to engage in an economic activity; it is another thing entirely to force an individual to engage in a particular economic activity in the first place against that person’s will.

Such a shift dramatically alters the nature of congressional power under Article I. The power to regulate something already in existence becomes the power to compel something into existence.

Even the laws we typically conceptualize as mandatory are different than the individual mandate in critical respects. Yes, everyone must pay taxes, but only if they choose to earn an income. Yes, everyone must buy auto insurance, but only if they choose to drive. Yes, criminal law details a whole host of things we cannot do, but it does not say that there are things we have to do.

Obamacare, on the other hand, directs this: Simply by being alive, each of us must do business with an insurance company. This total deprivation of choice is unprecedented in American law and constitutes a form of coercion that poses a significant threat to individual liberty.

Allowing the federal government to exercise this type of unconstrained power removes any pretense that the Constitution limits the reach of Congress in any real way. Words have meaning, and danger looms for all Americans when politicians and judges cast aside the plain meaning of words for short-term, partisan ends.

If the text of the Constitution can blithely be ignored in this way, then it follows that placing faith in that document to safeguard our civil liberties is a grave miscalculation. Our rights devolve to only those that the Supreme Court allows us to have. When this happens, the rule of law gives way to the shifting rule of five-justice majorities on the Court.

And that brings us back to Obamacare. The highly politicized manner that accompanied its passage likely dooms any effort to reach consensus on its constitutionality as the merits of the law have long ceased to matter.

Still, there is hope. Despite the many differences between liberals and conservatives, the two sides do share a distrust of government overreach that sometimes – albeit all too infrequently – overlaps. Perhaps the vast tentacles of Obamacare can awaken this common fear to produce an unexpected unity.

The chief discomforts with the new healthcare law need not – and indeed, will not – be the same. For the conservative, allowing Obamacare to stand would remove any constitutional constraint on centralized regulation as well as obliterating any pretense of state autonomy.

For the liberal, permitting government the power to mandate that every person enter into a contractual relationship with insurance companies gives enormous power to big business at the expense of individuals, especially those presently without insurance on the lower end of the economic ladder.

While the sources of uneasiness in these respective critiques differ and reflect the competing ideological concerns in the liberal and conservative worldviews, both analyses reach the same conclusion: this law goes too far.

The Constitution ultimately protects all of us from the strong hand of government. While we may disagree over the exact contours of these constitutional safeguards, Americans of all political stripes agree that (a) there should be meaningful limits on government and (b) the Constitution should supply these limits.

The individual mandate, however, mocks both of these baseline premises. A federal government that can force its citizens to engage in particular activities is a government unrestrained by the words of the Constitution. Power and politics – not the rule of law – become the order of the day.

Lance McMillian is a Fayette County resident and law professor at Atlanta’s John Marshall Law School.]


PTC Observer's picture

it is a sweet deal. Now if you can simply raise your salary each time they raise your income tax you have it made.

You see, it's a myth that corporations pay tax (any tax). Corporations get a return on their invested capital, and if that return is high enough then they attract investors. So, to get a good return on their capital, they simply raise prices. Now if a corporation can avoid paying taxes, like moving offshore, then they can get a higher rate of return. If one company has a tax advantage over another, it is a competitive advantage in raising capital in the equity market, and generally in the debt market. So, corporations have every incentive to move offshore, unless.

Unless they can buy off politicians to get "exemptions" to the tax code. So, you can see where this is going right Gort? Corporation A gets an exemption in the form of a subsidy, the politician get support for his next campaign and everyone wins, except of course the taxpayer. That's why the big oil companies get billions in the way of "oil depletion allowances", you think they pass this off to the consumers in lower prices? I don't think so.

Gort's picture

PTC_0, I’m glad you liked my tax policy!

Don’t get the idea that I don’t like corporations. The ones I’ve worked for have been very good to me. What I don’t like is crony capitalism. I’d rather work for a company that valued good products and/or services above having good lobbyist.

Be careful about how you talk about ‘big oil’ companies on the forum. You’ll have the Teaparty crowd after you! 8 - )

Remember: If you think Social Security and Medicare are worth saving, vote for the Democrat.

PTC Observer's picture

Crony capitalism, aka neo-capitalism, would not exist if outlawed government involvement in the market. The lesson learned by the capitalists following the Civil War was that it was much easier to use the government to protect markets than compete. Ever since they have been using the government to write laws to protect their interests at the expense of the consumer. Every tariff, subsidy, and grand program the politicians come up with is an effort to protect neo-capitalists from the power of the market.

I really don't understand why people complain about "big oil" and the like but at the same time support a system that is designed to tax them with higher prices.

How is it that the Tea Party supports "big oil" Gort?

Gort's picture

PTC_0, people have their own reasons for complaining about big oil. Some folks don’t like being addicted to oil, others don’t like the influence these companies have on the political system. Some don’t like the grip they have on the markets, some don’t like the pollution, on and on it goes take your choice.

Since I’ve been on this forum, any criticism of big oil, or anyone attempting to reasonably discuss energy policy for that matter, is usually met with repeated chants of “Drill Baby Drill” followed by you’re a tree hugging commie puke that wants everyone in America to sit in a dark cave with a candle made out of toe jam or some other nonsense! 8 - )

Remember: If you think Social Security and Medicare are worth saving, vote for the Democrat.

PTC Observer's picture

The oil companies are like any other company, they have a produce that the market demands. My beef with Oil is that they get "gifts" from the government. Why? Specifically they get "allowances" for when they hit dry holes, tax allowances. We all pay for these in the price of the products we buy. The impact of regulations on oil is significant. We keep complaining about how expensive gasoline is but we refuse to allow cracking plants to build here because it's "bad" for the environment. We haven't built a refinery plant in the nearly 30 years because the cost of construction here is just too high. It does no good to "drill baby drill" if we have no way to refine the oil we find. We would have to ship it offshore for refining.

I for one don't mind that they drill, refine, and distribute in this country as long as they don't violate property rights. I do mine that they get special "deals" and "protection" from the government. This has to stop and we need to look hard at our environmental laws to make them consistent with the rest of the world. The countries we compete against think we are a bunch of yahoos in this regard.

They happen to be right about this, we are yahoos and we are paying out the nose for it.

One would have to say YES if logic is used to determine the facts.

First, why did they make the decision to downgrade the USA? It was because congress didn't cut welfare programs enough and some wanted to raise taxes on capitalists.
It was not due to the debt. We can and will pay that as needed.

Second, why didn't Standard and Poor's downgrade further AIG, BoA, WF, Countrywide, plus many others, and then all those Wall Street money grubbers?

Think seriously about that for a moment and you will know. This current mess could have been avoided then---five years ago!

Third, according to conserves President Obama is responsible for most of our troubles of today!
Let us look at just the very immediate problems and you explain how those things were caused in the last two years:
1. No child left behind--has created the Atlanta problem to get money.
2. Syria is wiping out much of their opposition population.
3. Iraq and Afghanistan can not self govern and won't be able to do so.
4. Yemen and Somalia are slaughtering their people.
5. Muslim Terrorists are killing off all of their children in Africa.

Then, just today we have:
Eight killed in an Ohio rampage; 160 arrested in London for insurrection;
Our Special Ops war is failing---we don't have enough of them due to attrition to succeed. (Petraeus plan).

You tell me what President Obama is faulted for in the above!

His mistakes so far in the time served is not recognizing that the TEAS would be able to influence the House to not agree to any compromise.
And, not telling the Pentagon a year ago to get the hell out---NOW! Heads to roll.

Observerofu's picture

all life to be extinguished.

Minorities and Children hit hardest.

Is Obama President of the World roundone?

Oh yeah right he is....."Barack Obama is 'President of the world'" CNN 2008

So yep it's his fault.

"Neither the wisest constitution nor the wisest laws will secure the liberty and happiness of a people whose manners are universally corrupt"
-Samuel Adams
Illegitimi non carborundum

[quote]uncertainty of tax policy[/quote]

No PTCO - business is making money because of current tax breaks for large business. They are making record breaking profits during this period. No need to create jobs for Americans. Right?

[quote]Tax policy in the USA I predict will cause a number of global "American Institutions" in the next few years, to move their headquarters offshore, including offices, so they can avoid the highest corporate tax rates in the world. We do not have a business friendly environment in the USA compared to say, Singapore.[/quote]

Cheney's Halleburton is already headquartered in Dui Bai(sp?). Why? Profit! The bottom line. They're comfortable with the tax structure. They answer to shareholders, not Joe the plumber.

PTC Observer's picture

What we saw in the market today will continue it is saying plenty about the forward look at the world economy. We can expect this uncertainty to continue until there is stability within the government. This includes a stable tax policy.

IMHO this will not happen until after the 2012 election. The worse case for the economy will be when President Obama is re-elected.

Now about US corporations, they are not in business to create jobs for America. They are in business to make a return on investment for their investors. I hope this clears up any confusion on your part about the role of corporations.

It is NOT FUNNY that the average 401-k retirement savings of workers have lost about 35-40,000 dollars so far in this total fiasco!

Especially those who had to retrieve the rest of what they had left to live on due to the recession and no job! It is all gone forever.

Isn't it time we had several grand juries all over the country and find out who is the most to blame for these loses and impouind any money that they HAVE TO DISTRIBUTE?

Even Bush, jr., Cheney, etc., and Obama if they can find any fault there.

Gort's picture

Round, I take no pleasure in watching the stock market drop 500+ points in a day. My 401K is taking the same hit as everyone else’s.

OofU is the only one acting delighted by the tragic event. He’s been bragging, “I told you so,” since the decline started. He’s thinks he is some sort of local Nostradamus.

Remember: If you think Social Security and Medicare are worth saving, vote for the Democrat.

Observerofu's picture

upset that you are so wrong. Don't shoot the messenger just because the messenger happens to have brought bad news.

A simpleton or a non-ideologue could have predicted the results and prepared for them.

"Neither the wisest constitution nor the wisest laws will secure the liberty and happiness of a people whose manners are universally corrupt"
-Samuel Adams
Illegitimi non carborundum

Gort's picture

OofU, I don't want to shoot the messenger or anyone else. 8 - )

I just pointed out you were gloating.

Remember: If you think Social Security and Medicare are worth saving, vote for the Democrat.

BHH's picture

they are taking action and getting noticed.

They are doing something even if it's wrong.

They have found an avenue of waking up the politicians and creating a stir of activity.

That's what this government needs.

The Teas are average citizens who have become a force to be reckoned with.

And that's a good thing for all of us.


Gort's picture

BHH, the same thing could be said about Bonnie and Clyde. They too were drunk with power and on a rampage.

Remember: If you think Social Security and Medicare are worth saving, vote for the Democrat.

BHH's picture

Probably for trying to make a difference in hard times.

And very successful right up until the end.


Gort's picture

BHH, oh yeah, I see what you mean.

[quote]Bonnie and Clyde robbed banks and shot policeman, the Teaparty wants to rob the middle class and fire civil servants. [/quote]

8 - )

Remember: If you think Social Security and Medicare are worth saving, vote for the Democrat.

BHH's picture

But I believe in the Tea Party.

It is a new avenue for every citizen to take advantage of.

We need more individual participation of this type.

It's the true voice of the people coming back into government and bypassing the mouths of the politicians.

It's a law of nature that everything takes the path of least resistance.

They are providing resistance where they think it will do the most good and take the path of least resistance to accomplish it.

When government builds road blocks someone will always find the best path around it and our political system has become a road block to progress so they have opened a new path.


Gort's picture

BHH, you can't find that quote anywhere because I just wrote it myself and used the quote feature to highlite what I wrote.

You're free to believe whatever you want. I believe the Teaparty is the roadblock to progress.

Remember: If you think Social Security and Medicare are worth saving, vote for the Democrat.

BHH's picture

And this nation's credit rating dropped because of people like you who would not heed their warnings and hold the line on the national debt limit.

Just like when an individual is over extended on their credit and the purse strings begin to tighten.

It will take a few years but if you start listening to the Tea party now and follow their advice we can get our credit rating back.

Don't continue to be so naive.


Gort's picture

BHH, thank you for pointing out I was the cause of the S&P downgrade of the US credit rating. I didn’t realize I had that kind of power. I thought I was just a shinny headed working guy living on a cul-de-sac in Sharpsburg.

At your request, I took a long and heart wrenching analysis of my political position and came to the following conclusion:

I would rather drown myself in a five gallon bucket of snot before I would affiliate myself with the Teaparty. ! - )

Just my opinion, like I told you before, you’re free to believe whatever you want to.

BTW, are you an active member of the Teaparty or an armchair sympathizer?

Remember: If you think Social Security and Medicare are worth saving, vote for the Democrat.

BHH's picture

"I would rather drown myself in a five gallon bucket of snot before I would affiliate myself with the Teaparty."

That's very interesting the way you refer to our countries smothering debt figures.

"BTW, are you an active member of the Teaparty or an armchair sympathizer?"

I'm not as active as I would like to be but I respect those who are and take progressive and productive action rather than smothering themselves in snot which is your activity of choice.


Gort's picture

BHH, actually I don’t think I have to worry about drowning myself.

If you’re earnest about becoming more active in the Teaparty then you’re in luck. The US Congress is on August break and they will be doing town hall meeting throughout the state.

The Teaparty summer program is to show up at these town hall meetings and snarl at worried pensioners that ask questions and voice concerns about Social Security and Medicaid that they depend on.

Check your soul at the door and let me know how it goes for you.

Remember: If you think Social Security and Medicare are worth saving, vote for the Democrat.

BHH's picture

I'm certainly not for eliminating anyone's pension.

But this fool of a President has thrust our country deeper into this recession by trying to activate his "forced insurance for all" plan at a time when we are struggling just to buy groceries.

You can't eat insurance and it has no benefit if you are not in need of medical attention.

Many people never see a doctor by choice and others never need a doctor.

These are the people you would have drown in snot while trying to pay for a service they do not want instead of having groceries.

For many of these people a pension is a luxury too.

Eliminating federal agencies like the EPA and a host of others would reduce the budget significantly with no immediate negative effects to anyone other than those employed by this struggling government.

They recently stopped funding the FAA and most people didn't even notice.

They could close all government offices on Fridays and the employees would love the extra time off and people would barely be affected.

That is almost a net savings of 20% to the budget.

Certainly in this slow economy the need for government services has slowed also, but there has not been enough cut back in these areas.

Gradually raising the qualifying age and other requirements for social services is the smart thing to do at this time.

That doesn't mean taking food out of anyone's mouth to replace it with snot.

It only means they work a little longer to get services.


Gort's picture

BHH, I can tell right off the bat with your opening statement, you’re just not Teaparty material.

[quote] BHH wrote:

I'm certainly not for eliminating anyone's pension.[/quote]

You just don’t have that killer instinct it takes to be in the Teaparty.

It’s not the end of the world though, maybe they’ll let you perform as a ‘meat puppet’ the next time they have a rally. You can hold up a sign and growl on command can’t you? Well sure you can.

Remember: If you think Social Security and Medicare are worth saving, vote for the Democrat.

Observerofu's picture

<strong>"Ryan's proposal "leaves Medicare totally untouched for three years."</strong>

Ryan's budget does indeed leave Medicare alone for the near-term. On this point, Stockman is on firm ground, and we rate this point True.

<strong>"Ryan's proposal "leaves Social Security totally untouched for 10 years."</strong>

The CBO report plainly states, "The proposal does not involve changes to Social Security."

Stockman is accurate here as well, and we rate his statement True.

This from Politifact. If you are on it you stay on it.

So Gort who is not telling the truth here?

"Neither the wisest constitution nor the wisest laws will secure the liberty and happiness of a people whose manners are universally corrupt"
-Samuel Adams
Illegitimi non carborundum

JeffC's picture

The country's credit rating dropped because the TEA Party convinced the world that they didn't give a damn about America's prestige in the world and they were willing to trash the country's reputation and credit standing, which they did.


BHH's picture

The credit rating dropped as the logical progression of events regardless of what the Tea party was doing.

If the Tea party did not even exist, the credit rating would have dropped anyway.

It was just for maneuvering and power that this was done in conjunction with the budget discussions. The rating agencies want to control things just like everyone else does. They are much happier when the Democrats are running rampantly out of control with their borrowing. Their biggest fear is that we will get control of our spending and not need their services.


All the credit agencies have said without revenue the ability to reduce debt is impossible. The teas didn't want the bush tax breaks to expire. Plain and simple. We all see it no matter how you want to paint the picture. 2 trillion in cuts is a long way from the 4 trillion which is the number the agency said is required to keep our AAA rating. The Teas high jacked the system.

Mike King's picture

It is my belief that ample revenue continues to flow into federal coffers, but could they use more if it were specifically targeted toward our debt, sure. The mindset of entrenched politicians continues to be spend each and every dime it gets while playing word games to appease the nation. I was and still am a proponent of a balanced budget amendment which would have served this country well, it may well have (if passed) prevented the S&P downgrade by simply demonstrating a willingness on the part of Congress to address the issue seriously.

The TEAs only have proven themselves so far to be a speed bump to an out of control federal government, my opinion. Time will tell if those elected as TEA Party stalwarts succumb to the corruption that is our nation's capitol.

Agreed. A balanced budget is what was needed to prevent the downgrade. Congress just wanted to make a stand for the TEAS, What's that about?

What good would a "balanced budget" do?

Bush fought two wars, "Off the books," and wasn't included in the "balanced budget," only showed up in the 14 trillion deficit. (between 1 and 2 trillion dollars so far--not including taking care of the vets and aid to the two countries in the future.)

Are wars (and such) OK whether the budget is balanced or not?

No other country of significance has such a thing to deal with!

We could never agree whether to tax the rich or the poor to balance it.
This would be true particularly in a recession or a depression of the future.

I am a little fed up with the proposals by such as the TEAS and right wingers, and even many of the liberals.

We have to pay our debts but not at the expense of the poor nor the rich.
Don't say something stupid like, "don't make the debts," it is NOT going to happen.

We have sufficient resources to get the money from those who have it, domestically and internationally!

Mike King's picture

I would ask an octogenarian who happens to be a veteran to answer your first question.
I would guess you haven't spoken with a Greek, Irishman, or a Spaniard about their debt.
Why not tax us all at the same rate?
I suppose you approved of Mr Obama's first budget proposal, the one defeated in the Senate 97-0.
OK, so pay up!
Then you agree with Trump about confiscating $2T worth of crude as a war debt.

Is there something wrong with an Octogenarian? Will you never get there? I doubt it.

All of Europe and the Greeks are losers.

I'll go along with the "same rate" providing there are no deductions!

Didn't Obama propose nearly 3 trillion in cuts over 10 years, and all it took to get it resolved was to eliminate loop holes and raise upper taxes 3-4%?

Trunp is a very loose cannon just because he is flambuoyant and Hollywoodish!
However we are fools if we don't rake a cut of the Iraqi oil for our trouble. Bush said it would pay for the war! Or was that Cheney?

There are other places and ways also to get more income===tariffs on the Chinese, etc.

Long range-----start up manufacturing again with a new middle class as labor and corporations who will invest their cash into the start up.

carbonunit52's picture

I know that we need a balanced budget, but I believe that the cure should not be worse than the disease. With a constitutional amendment to assure that there would be enough income to equal the spending, the congress would be relieved of the responsibility of justifying taxes. It does not take long to formulate a nightmarish scenario out of that raw material.

Power to the people.

Mike King's picture

Congress will never abdicate the responsibility of levying taxes, but they owe the nation an understanding of what the 'bottom line' is that is required to fund our obligations and operating costs.

We as a nation do not have a revenue problem, especially since a total revamp of the tax code would generate substantially more revenue. For example, should corporate taxes be reduced wouldn't the number of American businesses headquartered overseas begin to return? Eliminate capital gains taxes on matured accounts and, imagine how much revenue could be freed up for possible investment.

Currently, with the worst economic calamity of the last century, looming can anyone explain why our Congress on vacation and our President likely playing golf?

And the TEA Party is being blamed for the downgrade, give me a break!

carbonunit52's picture

[quote]Congress will never abdicate the responsibility of levying taxes[/quote]

Agreed. My point is that with a balanced budget amendment, both parties could then say: "The amendment made me do it".

Mike King's picture

Congress pretty much does that 'double speech' now which is why I see the need to reign in their control.

Observerofu's picture

John Chambers manager of S&P just stated it was the debt not any actions by a party that caused them to downgrade our rating.
He stated that they wanted to see at least a $4 Trillion dollar cut in spending NOT a $2.4 Trillion dollar raise in debt.

<strong>He said our DEBT is the cause of the downgrade that enough was not done to control that debt. Our Debt to GDP is over 75% which caused them to lower our rating.</strong>

So Jeff <strong>who was trying to bring spending under control and who was trying to raise the debt?</strong>

You are right congratulations is in order, because this is exactly what I think the Progressives want.

Cloward and Piven strategy working to perfection in the Progressive Socialist agenda.

"Neither the wisest constitution nor the wisest laws will secure the liberty and happiness of a people whose manners are universally corrupt"
-Samuel Adams
Illegitimi non carborundum


One hears what one wants to hear!

Observerofu's picture

You are right one hears what one wants.

You just made my point.

S&P wanted cuts not a raise in the debt. SO who was trying to cut and who was trying to increase debt?

The Tea-party wanted cuts and the Democrats wanted NONE.

"Neither the wisest constitution nor the wisest laws will secure the liberty and happiness of a people whose manners are universally corrupt"
-Samuel Adams
Illegitimi non carborundum

The S & P guy said the DISAGREEMENT was the problem, not the wants!

S & P doesn't now trust the makeup of the congress to resolve our problems!

What is different about the makeup? A bunch of TEA electees, who want re-
elected in 2012. To hell with the ratings!

Observerofu's picture

You are an Progressive ideologue. You have a scipt to hell with the truth.

"Neither the wisest constitution nor the wisest laws will secure the liberty and happiness of a people whose manners are universally corrupt"
-Samuel Adams
Illegitimi non carborundum

JeffC's picture

S&P analysts David Beers and John Chambers said that the “extremely difficult” political discussions over how to reduce the more than $1 trillion budget deficit carried more weight in their decision than the nation’s debt. The “debate this year has highlighted a degree of uncertainty over the political policy making process which we think is incompatible with the AAA rating,” Beers said on an Aug. 6 conference call with reporters.

<a href=" S&P Seen Surrendering to Tea Party</a>

Your TEA Party instigated this. They manufactured the crisis. Then your candidate Bachmann and the TEAs continued to say there would be no consequences because they are fools. Mitch McConnell says that they are going to do it again. Your Party deliberately sabotaged the United States for no reason except as a political ploy.

You can spin it however you want but if the TEA Party had not caused this crisis it would not have happened. If they wanted to reduce the debt, they could have done it in the budget they will produce.

They are traitors who deliberately harmed America.

Robert W. Morgan's picture

to Washington in 2010 with those 65 Congressional wins and that the purpose of cutting spending was to preserve the AAA credit rating. Using your "logic" next year's 100+ Congressional Tea Party wins (people who want to cut spending) will give the Teas free run of the place and they will really cut spending and then our credit rating will drop again. Huh?
Don't you stupid liberals even try to test your talking points out on real people before spouting off?
I do think the timing of market crash is perfect because it will galvanize a lot of candidates and voters who can simply run and/or vote against "more of the same old hope and change"

Live free or die!

Dream on!

mudcat's picture

Dude's got a point.
What say you?


What do you expect from the spawn of Jimmy Carter? Jimmy Carter - who drove the U.S. economy right into a ditch. Thank the Lord Carter lost in a landslide and we were able to get a real man in office who brought our great country back to prosperity.

drive the economy in the ditch, he just took over the driver's seat as the wreck was coming! The money supply swelled because of loose money policy under Nixon and Ford, maybe starting with Johnson and war spending and all that. Remember Guns AND Butter! Carter appointed Volker, who took down inflation like Hulk Hogan--Carter got the blame. Every good and true lover of Austrian Economics and the 1970s Braves featuring Mike Lum knows this!

Deflation is Not the Illness But the Cure!

Braves sill up 3-0 in the 7th. A Little League game would be over by now!

[quote]They are doing something even if it's wrong[/quote]

This is a sad truth.


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