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Obamacare, the Constitution, and the Founders – What SCOTUS should be debating

As we’re on the last day of arguments before the Supreme Court on the constitutionality of Obamacare, there are pundits from all sides offering their thoughts on every look, twitch, word, and tone coming from the Justices during the sessions. The vast majority are focused on the elasticity of the Commerce Clause and today in particular, on the lack of a Severability Clause in the current law. While the former is a favorite among left-wing legal analysts and Constitutionalists alike, the latter is the most-likely candidate to become the linchpin that either holds the law in place, or ends its existence.

Choose your painkillers

Choose your painkillers - Eric Norris (CC)


But neither of these even mentions one thing that theoretically should have been the center of the debate from the beginning. Obamacare overextends into the realm of State powers. Over-stretching the Commerce Clause to make it fit was wishful thinking, and hopefully the Justices will point that out. The only Constitutional way the Federal Government really had to enact this reform was through its power of taxation, not the regulation of commerce. For a relatively plain language explanation of this, one needs to look no further than The Federalist Papers, No. 45 to be exact.

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. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.

It is not the Constitution. It is arguably, the definitive lobbyist’s playbook on the side of the States adopting the Constitution. Any time anyone suggests that SCOTUS needs to stop legislating from the bench, and stay true to the intentions of the Founders, this collection of documents should be included in the statement.

And in this case, Obamacare is a case of the Federal government overstepping into the realm of State jurisdiction. This is also why comparing this law to the one adopted in Massachusetts is a fallacy. The government of Massachusetts had the right to create that program for the benefit of their residents, as does every other State in the Union if it so chooses. You want healthcare reform, stop crying to Washington for it. It is a State issue, not Federal. Unless, of course, you are willing to take a massive Federal tax hike to pay for it. And yes, this is a little note to the Romney campaign – please feel free to point out what I’ve said here. Romneycare does not equal Obamacare, period.

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  1. WillofLa says:

    I just would like to know why the Justices wouldn’t require Kagen to recuse herself? Of course she only spoke once and that was enough to show she had no idea what the bill was about, what was in it, and that it did not say anywhere in the bill what she thought was in it. I don’t know what part of it she was supposed to have helped Obama on, but by the time it got to the vote it didn’t say anything about the bill being a “big gift” from the government.

    Then why didn’t they recuse her? And yes, I wish to God the government understood what they were supposed to do. They do not understand that they are supposed to follow the Constitution because for too many years now they have had free rein to do as they saw fit since the 70′s. That’s when they started enacting bills into law that violated the Constitution. Jimmy Carter was where it started with the creation of the Dept. of Education, the EPA, the Dept. of Energy, the Dept. of Transportation where we got all the CARB, and CAFE standards that have killed more people and caused us to pay more for gas than we did when we had real Hemi’s in Charger RT’s.

    Carter was the one who started it all, but also to a complicite Republican Congressmen and women for the first time were voting “their hearts” on bills that had no reason to exist, let alone the Democrats who were rapidly becoming the main branch of the Socialist Party USA, and the Communist Party USA that was running our Legislative Branch of our government. Our Constitution can’t be just brought back like some people think it can. No, first all the unConstitutional lawmaking needs to be exposed, why it’s unConstitutional to make law that way, then replace it with Constitutional lawmaking until all the rules of the Congress have been changed, and all the rules of the Senate have been changed so that our representatives know what they are supposed to do and what they are not supposed to do.

    The only reason why Obama gets away with what he does is people like Nancy Pelosi thinks America is a “Democratic” nation. She doesn’t know anymore that it is not. America is a Constitutional Representative Republic. Ever heard that before Nancy?