Tag Archives: Commerce Clause

Refresh My Memory; Is Justice Kennedy the Wobbly One?

Supreme Court Chief Justice John Roberts prefers to dress casually in his off hours.

Supreme Court Chief Justice John Roberts prefers to dress casually in his off hours.

Last Thursday dawned bright and clear. It was shaping up to be a great day for conservatives. More than one observer — waiting for the Obamacare decision outside the Supreme Court — noticed aircraft coming in low on the horizon. Everyone assumed it was ICE drones searching for illegal aliens deserving of amnesty and a college scholarship.

But as the aircraft passed overhead the full weight of our mistake hit home. That wasn’t the Army Air Corps insignia on the underside of the wing. That circular logo was the Obama meatball and it was Pearl Harbor all over again! Obamacare was legal and conservatives were caught completely unprepared as plans to roll back Big Government exploded in their face.

Make no mistake. Chief Justice John Robert’s decision is a total, crushing and potentially unrecoverable defeat. Roberts joins with Chief Justice Roger Taney of Dred Scott fame as another Maryland chief justice responsible for a Supreme Court decision that will live in infamy.

“I always say…that if my fellow citizens want to go to Hell I will help them. It’s my job.

Supreme Court Justice Oliver Wendell Holmes

“It is not our job to protect the people from the consequences of their political choices.”

Chief Justice John Roberts

Justice Holmes, a crusty veteran wounded three times during the Civil War, was being cheerfully cynical. Justice Roberts, who appears to be suffering from PTSD induced by State of the Union criticism following the Citizens United decision and potential criticism prior to the Obamacare decision, is merely being pathetic.

Berkeley law professor John Yoo contends Robert’s doesn’t agree with his own ruling but intended to “pull the court out of political fight.”

Unfortunately, Robert’s job is to uphold the Constitution regardless of Democrat political pressure. His failure to do so removes one of the few remaining limits on the growth and expansion of federal power.

This type of judicial temporizing in the face of political pressure is the same thing that happened during the 1930’s. A gutless Supreme Court stood idly by while FDR and the Democrats twisted the Constitution and began the long, legislative march toward intrusive, domineering Big Government.

If conservatives had not been lulled into a false sense of security, much like radar observers at Pearl Harbor, the Robert’s decision earlier in the week to overturn most of Arizona’s illegal alien law would have served to warn us of impending problems.

Deluded optimists claim the decision was a clever rope–a–dope and now Obama has to run for re–election with Obamacare and its hidden tax hung around his neck for all the voters to see.

I don’t know what election these optimists have been watching, but the failure of Obamacare was already part of his campaign. Now, thanks to Roberts, he can run on the success of Obamacare, which serves to solidify a base that was becoming increasingly disillusioned. Protecting the fruit of this Supreme Court decision becomes a strong motivator to get out the Obama vote.

If this is a victory for conservatives, God save us from defeat.

Senate Minority Leader Mitch McConnell (R–KY) is already whining that it’s going to be difficult to repeal the entire law because it’s so complicated. But it doesn’t require a 2,400–page bill to repeal a 2,400–page bill. You could do it with a bill no longer than a single page. What it does require is a certain strength of will and Sen. McConnell is telling us he and the majority of Republicans in the Senate lack that will.

They would rather file a lawsuit and let the Supreme Court do the heavy lifting, an option that after last Thursday no longer exists. This, in fact, will increasingly complicate life for Congressional Republicans as an imperial presidency continues to trample the Constitution. The legislative branch can no longer delegate Constitutional protection to the Judiciary.

The second rationalization for our famous victory is that Roberts ended the abuse and misuse of the Commerce clause. But that’s wrong, too. As Rick Richman notes in the Commentary blog: “Part III-A of the Roberts opinion – concluding the Obamacare mandate was not valid under the Commerce Clause – was not in the portion of his opinion that represents the opinion of the Court.” Which means the Commerce portion does not set or overturn precedent.

What a difference a week makes. Last Thursday a powerful conservative fleet was ready to weigh anchor. Eager to catch the high tide of the Obamacare decision and sail to victory in the fall. Today we’re tapping on the barnacle–encrusted hulls of capsized battleships trying to find survivors.

Some are using hammers. Me? I’m using my head.

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.