December 14, 2010

ObamaCare and the unconstitutional mandate

Judge Henry Hudson:

“The unchecked expansion of congressional power to the limits suggested by the Minimum Essential Coverage Provision would invite unbridled exercise of federal police powers.”

Reading conservative responses to yesterday’s ruling out of the VA court left me very sad, frankly. And that’s because many of us actually found ourselves giddy that a federal judge looked at the plain language of the Commerce Clause and ruled that no, the government cannot force an American citizen to buy a particular product (of indeterminate value), because doing so would effectively mean the government can mandate anything it wanted going forward, and tyranny would essentially be ruled constitutionally permissible.

But isn’t it a problem that we had to hold our breath and hope that a federal judge stuck to the framer’s intent with respect to the Commerce Clause, and saw through administration attempts to use Wickard and Comstock as precedent that obviates plain language? Shouldn’t we be concerned that the administration can argue in supposed good faith that what they explicitly said wasn’t a tax is, in fact, for purposes of their case, a tax, and not a penalty — and the judge considered if the “tax” (nee “penalty”) met the conditions of a tax, even though it the administration assured us, leading up to the passage, that the penalty was not a tax?

That is to say, why are we so giddy over this? Me, I find it rather frightening that the entirety of our constitutional republic ultimately hinges on whether or not Anthony Kennedy has the balls to say that a straightforward reading of the Commerce Clause, as it was intended to be applied, renders the individual mandate clearly and emphatically unconstitutional.

That we can likely count on at least 4 SCOTUS justices to rule that of course the Constitution of the United States gives the federal government the power to force Americans to buy a particular product — and to do so with straight faces, citing legal precedent — is proof enough for me that we no longer live under the rule of law. We live under the whims of a supra-majority in the courts, who argue backwards from a preferred outcome in order to give their legislative impulses the veneer of carefully considered legal rulings.

So sue me if I don’t feel all that excited today.

(h/t netrightdaily, which has more)

Posted by Jeff G. @ 8:42am
24 comments | Trackback

Comments (24)

  1. Quoting Pablo quoting Mark Levin at Landmark Legal Foundation:

    Judge Hudson’s ruling against the Obama Administration and for the Commonwealth of Virginia gives hope that the rule of law and the Constitution itself still have meaning.

    Were we to analogize this nominal social problem — rising health care costs — for which a solution is sought in lawmaking to a minor fault in a car sent to a repair shop for fixing (say a bad electric window motor in need of replacement), we’d find that, in this instance, not only had the repair to the window system not been fixed but the entire car had been dismantled and reassembled into a non-functioning thing not resembling the car that arrived at the repair shop. The engine doesn’t fire, the body sits on blocks and the wheels are bolted together in a stack piled in the trunk. Who would — having towed their car from this place — use them as an auto-repair shop again?

  2. That is to say, why are we so giddy over this? Me, I find it rather frightening that the entirety of our constitutional republic ultimately hinges on whether or not Anthony Kennedy has the balls to say that a straightforward reading of the Commerce Clause, as it was intended to be applied, renders the individual mandate clearly and emphatically unconstitutional.

    Frightening though that may be, it is where we are. I’m giddy because this represents an opportunity for us to return to that straightforward reading of the Commerce Clause and ultimately upend the the damage that perverting it has caused. Where we are is untenable, but I’m optimistic as to where we’re going.

  3. Indeed, that the fate of our constitutional republic rests upon the whims of an unelected federal judiciary is frightening, and proof that said constitutional republic has nearly ceased to exist.

  4. It’s worse than that Mike. At the present time there’s only one man whose whim ultimately matters. Instead of a Republic of Men under the Law, we’ve become a Republic of Laws under a Man (Anthony Kennedy, to be precise).

  5. An aside about that Commerce clause thinger: the Annapolis Convention of 1786, called under the Articles of Confederation and which failed to undertake its charter for want of sufficient delegates appearing on time, called for the Philadelphia Convention of 1787, which then produced the Constitution to repair the defects of the Articles. That charter, the object of the Annapolis Convention?

    “. . . to take into consideration the trade and commerce of the United States, to consider how far a uniform system in their commercial intercourse and regulations might be necessary to their common interest and permanent harmony, and to report to the several States such an Act, relative to this great object, as when unanimously by them would enable the United States in Congress assembled effectually to proved for the same.”

    In a sense, they were working out a free trade agreement.

  6. Citizens United recognized the First Amendment. Heller and McDonald recognized the Second. With this, we may soon see the Commerce Clause checked. Coming on the heels of Kelo and Raich, this seems like a positive development.

    Further, I don’t think the survival of our Republic depends on Anthony Kennedy. It depends on ordinary citizens deciding that they want to live free of a meddling bureaucracy. It depends on ordinary voters deciding that they don’t want their children growing up in thrall to Chinese creditors. It depends on Texas saying “Fuck You” to California when bailout time comes.

    It may not make any difference in the long run, but if we’re going to despair, let’s do it for the right reasons. Besides, it makes me sick to think of any more Kennedys ruining our country.

  7. Sorry: “to proved” is a typo in the source, repeated often on the net. I believe, based on a subsequent clause in the document, the word should be to “provide”.

  8. Citizens United recognized the First Amendment. Heller and McDonald recognized the Second. With this, we may soon see the Commerce Clause checked. Coming on the heels of Kelo and Raich, this seems like a positive development.

    I wouldn’t put too much faith in the SC – remember, there are plenty of Breyers around.

  9. That we can likely count on at least 4 SCOTUS justices to rule that of course the Constitution of the United States gives the federal government the power to force Americans to buy a particular product — and to do so with straight faces, citing legal precedent — is proof enough for me that we no longer live under the rule of law.

    Has meya created a new WP login? Because, like, that’s constitutional and we should damn well hear about it.

  10. SW, it’s that kind of naked partisan jackassery that sets the ghost of Chief Justice Roger B. Tawney to wander the world unseen for a certain spell.

  11. Going back a little further…

    Why are we giddy that it took a rare Judge with the ability to read to overturn something that was passed by a majority of people sworn to uphold the Constitution that was clearly unconstitutional?

    In a better world, it would never have gotten to this point.

  12. I like the analogy, Ernst. Stephen Breyer = Zombie Taney.

  13. …remember, there are plenty of Breyers around.

    Man, you ain’t kiddin’!

  14. Oh no, Squid, I counted 11 nutty ones. That’s more than enough for SCOTUS.

  15. On Dec. 12, the consequences of the election of Mr. Obama were illuminated in stark relief on Fox News Sunday during Chris Wallace’s interview of Supreme Court Justice Stephen Breyer, currently hawking his book “Making Our Democracy Work.” Wallace wisely questioned Justice Breyer on the Second Amendment. His answers and evasions were illuminating — and frightening.

    Justice Breyer suggested that the primary job of a Supreme Court Justice is to determine the values of the Founding Fathers. Breyer suggested that his second concern was to examine history, with the majority opinion of historians, perhaps, considered to rule. He did ultimately allow that judges should consider such matters as the the actual text of the Constitution and precedent, but Breyer’s answers to Wallace’s questions revealed his belief that the text and its clear meaning should be ignored in favor of the approach of judges like himself — who should “regard the Constitution as containing unwavering values that must be applied flexibly to ever-changing circumstances.” Justice Breyer suggested that this was a “pragmatic” approach.

    meya is Breyer. Has to be.

  16. Breyers make good ice cream and frozen fruit stuff. Don’t they have a peach sorbet that’s just divine?

    Maybe they should stick to that instead of ruling that Congress can mandate that we all buy a new GM vehicle in 2011 or that we “buy local.”

    To help the economy, of course. And who can argue with that.

  17. I’ve seen this coming from a long ways away. Democratic Congresses routinely stymied Republican appointees, while Republicans usually approved of Democratic appointees without real concern. Now the lower courts are filled with left-leaning judges and we have to pray that the USSC exercises correct jurisprudence with regards to constitutionality of lower court fiats.

    Democrats knew that the big challenge to Socialism was the courts. Control the courts with liberal dogmatists (Sonia Sotomayor and Elena Kagan, for example) and you end up with a Supreme Court willing to “live and breathe” the Constitution that would be unrecognizable to the Founders.

  18. Jen Rubin pointed out that Justice Kagan will have some problem not recusing herself from participation in any consideration of Judge Hudson’s decision should it rise to the USSC on account of her prior work in the Obama administration. The suggestion follows that the best the law’s proponents may hope for from that USSC bench might be a 4 – 4 split (assuming Justice Kennedy sides with the liberals), in which event the decision of the lower court stands.

  19. Say we’re right, and the individual mandate is held to be unconstitutional. What then? If it’s separated from the rest of the program, then we have a nation in which insurers are compelled to provide coverage to all comers, while individuals need not carry insurance unless or until they’re seriously ill.

    It doesn’t take a crystal ball to see that insurers will either raise their rates to extortionate levels, or exit the market entirely. Then Papa Gubmint happily swoops in to provide coverage, claiming that “the private sector has failed.”

    This thing is a monster, and all we’ve done is shot an arm off. We can’t rest until the whole thing is dead, dead, dead.

  20. That is a delightful thought, sdferr. Great SCOTUS pick, Mr. Constitutional Scholar Man.

  21. During Justice Kagan’s confirmation hearings, didn’t she state that she had no formal discussions with Dear Leader about the health care bill? I’m sure at the time she was preparing the ground so that on this one issue, above all others, she would not recuse herself. I would be astounded if she let Dear Leader’s legacy go down the pan by walking away. No, all I see is another Zombie Taney.

  22. It’s worse than that Mike. At the present time there’s only one man whose whim ultimately matters. Instead of a Republic of Men under the Law, we’ve become a Republic of Laws under a Man (Anthony Kennedy, to be precise).

    That’s true. We effectively have a dementia-addled fool holing our nation in the balance. We’ve truly become A Confederacy of Dunces.

  23. There was a democracy here.

    It’s gone now.

  24. No, Pellegri, there was a Republic here. Turning it into a warm-body democracy is what led inevitably to the mess we call our country. And until we bring back the pauper’s oath preventing those living on government handouts from voting, there’s no hope of cleaning it up.

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