Posts Tagged ‘Commerce Clause’
This week the eyes of everyone concerned with the continuance of limited government were riveted on the Supreme Court. For three days the nine Justices heard arguments by the Solicitor General in favor of ruling the individual mandate which is the keystone of Obamacare constitutional. They also heard the representatives of twenty-six States argue that it is unconstitutional. This is the first time that a majority of the States have combined to protest an act of Congress. Now We the People must wait while the fate of our Republic is decided in secret by our Black Robed rulers from whom there is no appeal.
How did we get here?
We elect our representatives and they enact laws which are supposed to be within the framework of the Constitution. It should be the expectation of Americans that those we entrust with our delegated sovereignty would craft laws in accordance with our wishes as expressed in the founding document of our government. These laws should reflect our desire for limited government, personal liberty, and economic freedom.
And the unicorns danced with the elves until the cow jumped over the moon.
The perpetually re-elected who control the two houses of our legislature make law with no regard for the limits, the spirit, or the letter of our Constitution. In this case they have decreed not participating in Commerce is commerce, and that a penalty is not a tax, that is a tax, and then isn’t again. After years of stepping so far over the line they have forgotten there was a line. The Party of Power has finally legislated us to the point of no return. If the court of last resort gives this power grab the green light what limits are left?
Since the law was passed over the overwhelming rejection of the voters its validation would cement the dictatorship of the Party in the transformation ofAmericafrom what we have known into what we would never choose. The Court appears to be our last line of defense. But where does the Supreme Court get its power?
The Supreme Court is principally occupied in a task that has no basis in the Constitution. The nine justices spend their time judging what is constitutional and what isn’t through a process known as judicial review. However, when the delegates of the thirteen original States drafted the Constitution they decided after much debate not to delegate such a power to the judicial branch or any other branch of the new Federal Government.
If the Constitution doesn’t give this power to the Court how did they get it? The surprising answer is that they assumed it unto themselves, and since no one stopped them they just kept doing it. The process began in 1794 when for the First time they declared an act of Congress unconstitutional. Then in 1803 they used a minor case Marbury v Madison to outline their justification for the process. Since that time the belief that the Supreme Court is the ultimate judge of the constitutionality of anything and everything has become such a cornerstone of the American System that the average person erroneously believes the power was granted in the Constitution. Thus the first power grab has become our last defense against what could be the final power grab.
In other words we who want to see the rebirth of limited government are hoping the Supreme Court will use an unconstitutional power to save the Constitution. We stand hat in hand waiting patiently to find out if the Commerce Clause can be stretched to give the central government unlimited power or will we step back from the precipice and wait for the Party of Power to try again.
Across the country we have watched as everything from abortion to gay marriage has been imposed upon us by the black robed tyrants of the Federal Bench. We have watched as popularly passed referendums were overturned, and common sense laws such asArizona’s immigration statutes cast aside by activist jurists determined to force our nation into their mold. Unelected and almost unaccountable these imperious lawyers on steroids hand down pronouncements from Olympus on the Potomac as the sons of pioneers meekly accept the rule of tradition and the arbitrary decrees of men instead of the rule of law our ancestors fought and died to establish and preserve.
Now the arguments are over. The talking heads endlessly dissect what was said telling us what it means. For months we will hear rumors and hints as we wait until June for the word from on high. Is not purchasing insurance commerce? Does the government have the power to compel a citizen to enter into a contract? Is a contract made under duress valid? Does Congress have the power to make the purchasing of a product necessary to maintain the status of a law abiding citizen? If the answer to what should be rhetorical questions is not a resounding “NO!” we have strayed beyond the pale of liberty and are adrift in the seas of arbitrary power.
As we look to an unconstitutional process to save the Constitution perhaps we should reflect on the state of our Republic. I would also recommend a deep study of the works of our Anti-Federalist fathers. Since we are living in the world they predicted maybe we should take a second look at what they recommended as an alternative to what we have become?
Dr. Owens teaches History, Political Science, and Religion for Southside Virginia Community College. He is the Historian of the Future and the author of the History of the Future @ http://drrobertowens.com © 2012 Robert R. Owens email@example.com Follow Dr. Robert Owens on Facebook or Twitter @ Drrobertowens
Don’t Not Do That!
For the first time the Federal Government has mandated that all citizens must purchase a product: health insurance. If citizens fail to purchase the product they become law breakers subject to fines and penalties enforced by the IRS although we’ve been repeatedly assured this is not a tax. According to the Federal attorneys arguing that this ground-breaking regulation is constitutional the Commerce Clause provides the authorization. In other words, not taking an action is now considered commerce by the Federal Government. In effect the Federal Government maintains for the first time in American History and perhaps in the History of the world that not doing something is doing something. It is this type of newspeak, circular logic, and sophistry which destroys the credibility of those who tell us less is more.
Officially known as America’s Affordable Health Choices Act of 2009, this was the first entitlement passed without bipartisan support. The only bipartisan part about it was that thirty nine Democrats voted with the Republicans against it. Thus it passed with a slim majority and no Republican votes. It was also passed over the objections of a majority of the population. The new entitlement popularly known as Obamacare purports to insure tens of millions of previously uninsured people maintain the benefit levels of everyone else and lower the costs. But will it stand the tests to which it is being subjected? Will it ever be implemented?
With the date for full implementation placed years in the future step-by-step the new regulations, fees, and mandates are trickling into our lives. However, although the President and his party managed to push this through Congress it won’t stand without a fight. The debate has moved from the legislature and is wending its way through the courts. So far two judges have ruled it constitutional and two have ruled it unconstitutional. These rulings also followed party lines. Judges appointed by Democrats ruled it constitutional and judges appointed by Republicans ruled it unconstitutional. This will eventually be decided by the Supreme Court.
If this is decided in favor of the Federal Government it paves the way for a classic 10th Amendment confrontation. Several states such as Virginia, have passed laws saying that no law can require their citizens to purchase health insurance. Since nowhere in the document does the Constitution give the Federal Government the power to mandate that citizens purchase anything this would clearly lie with the confines of the 10th Amendment which states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
In contravention to the States appeal to the 10th Amendment the Federal Government will point to the Supremacy Clause which states, “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Using this as their rational as they did in the Arizona Immigration case the Federal Government using the Federal Courts will force states to legally step aside. Then buying health insurance will no longer be an option because failing to do so will be illegal. In other words, “Don’t not do that!” or face the full force of the law and miraculously not doing something becomes doing something.
Another issue which might surface along the way is the question of waivers. It seems many of the organizations, unions, and businesses who supported the law and helped lobby for its passage don’t want to live under its benevolent care. Consequently the Obama Administration has issued hundreds of waivers exempting the President’s supporters from compliance. This raises the question of the government passing laws that apply to some people but not to others. Traditionally legislatures have always had the power to suspend the enforcement of laws in special cases. However this has never been a power wielded by the executive in any except authoritarian states. This flood of waivers raises another potential constitutional question with reference to the Equal Protection Clause of the 14th Amendment which states that everyone is guaranteed, “the equal protection of the laws” meaning that the state must apply laws equally and cannot give preference to one person or class of persons over another.
In reference to all these matters whatever the courts may say President Obama has already signaled that he will enforce the strictures of the law even if they are found unconstitutional.
Considering not taking an action to be commerce opens the door to many interesting possibilities. I didn’t buy Apple stock when it was $10 a share can I have my profits now?
Dr. Owens teaches History, Political Science, and Religion for Southside Virginia Community College. He is the author of the History of the Future @ http://drrobertowens.com View the trailer for Dr. Owens’ latest book @ http://www.youtube.com/watch?v=_ypkoS0gGn8 © 2011 Robert R. Owens firstname.lastname@example.org Follow Dr. Robert Owens on Facebook.
The Wall street Journal
FEBRUARY 1, 2011
Judge Vinson introduces ObamaCare to Madison and Marshall.
‘If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”
Federal Judge Roger Vinson opens his decision declaring ObamaCare unconstitutional with that citation from Federalist No. 51, written by James Madison in 1788. His exhaustive and erudite opinion is an important moment for American liberty, and yesterday may well stand as the moment the political branches were obliged to return to the government of limited and enumerated powers that the framers envisioned.
As Judge Vinson took pains to emphasize, the case is not really about health care at all, or the wisdom—we would argue the destructiveness—of the newest entitlement. Rather, the Florida case goes to the core of the architecture of the American system, and whether there are any remaining limits on federal control. Judge Vinson’s 78-page ruling in favor of 26 states and the National Federation of Independent Business, among others, is by far the best legal vindication to date of Constitutional principles that form the outer boundaries of federal power.
At the heart of the states’ lawsuit is the individual mandate, which requires everyone to purchase health insurance or be penalized for not doing so. “Never before has Congress required that everyone buy a product from a private company (essentially for life) just for being alive and residing in the United States,” Judge Vinson writes.
Congressional Democrats and the Obama Administration justified this coercion under the Commerce Clause, so it is fitting that Judge Vinson conducts a deep investigation into its history and intent, including Madison’s notes at the Constitutional Convention and the jurisprudence of the first Chief Justice, John Marshall. The original purpose of the Commerce Clause was to eliminate the interstate trade barriers that prevailed under the Articles of Confederation—among the major national problems that gave rise to the Constitution.
The courts affirmed this limited and narrow understanding until the New Deal, when Congress began to regulate harum-scarum and the Supreme Court inflated the clause into a general license for anything a majority happened to favor.
In a major 1942 case, Wickard v. Filburn, the Court held that even growing wheat for personal use was an activity with a substantial economic effect on interstate commerce, thus justifying federal restrictions on the use of agricultural land meant to prop up commodity prices. It wasn’t until the William Rehnquist Court, a half-century later, that the Justices began to recover some of the original limits, notably in the Lopez (1995) and Morrison (2000) cases.
Yet even in its most elastic interpretations, the Commerce Clause applied only to “clear and inarguable activity,” Judge Vinson writes, the emphasis his. It never applied to inactivity like not buying health insurance, which has “no impact whatsoever” on interstate commerce. He argues that breaching this frontier converts the clause into a general police power of the kind that the Constitution reserves to the states. As the High Court put it in Lopez, obliterating this distinction would “create a completely centralized government.”
The Administration contends that not purchasing insurance—inactivity—is really activity, because everyone will eventually need medical care and their costs will be transferred to the insured. But Judge Vinson dissects that as a “radical departure” from the Constitution and U.S. case law. It is “not hyperbolizing to suggest that Congress could do almost anything it wanted,” he writes. “Surely this is not what the Founding Fathers could have intended.”
He notes that no one can opt out of eating any more than they can from the medical system, so return to the Wickard example of wheat: “Congress could more directly raise too-low wheat prices merely by increasing demand through mandating that every adult purchase and consume wheat bread daily, rationalized on the grounds that because everyone must participate in the market for food, non-consumers of wheat bread adversely affect prices in the wheat market.”
Unlike Judge Henry Hudson in Virginia, who also found ObamaCare to be unconstitutional, Judge Vinson addresses the Administration’s fallback argument that the Constitution’s Necessary and Proper Clause justifies the law even if the Commerce Clause doesn’t. He writes that this clause “is not an independent source of federal power” and “would vitiate the enumerated powers principle.” In other words, the clause can’t justify inherently unconstitutional actions.
Judge Vinson also went beyond the Virginia case in striking down the entire ObamaCare statute—paradoxically, an act of judicial modesty. Democrats intentionally left out a “severability” clause if one part of the bill was struck down, and the Administration repeatedly argued that the individual mandate was “essential” to the bill’s goals and mechanisms and compared it to “a finely crafted watch.” Judge Vinson writes that picking and choosing among thousands of sections would be “tantamount to rewriting a statute in an attempt to salvage it.”
We take a measure of vindication in the decision—David Rivkin and Lee Casey, the lawyers who argued the Florida case, first suggested in these pages that the individual mandate was unconstitutional. Judge Vinson’s learned opinion has put down a Constitutional argument that will reverberate all the way to the Supreme Court.