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Apr 19

Legal Thoughts on Obamacare and Other Ramifications

The following article elucidates the cited issues challenging the constitutionality of the Obamacare legislation and provides supportive legal history/cases bolstering this position. His argument is quite cogent and may serve as an appetizer for the argued positions when the States’ case is ultimately heard by the Supreme Court.

Importantly, this case can be considered to be a watershed one that can serve to vanquish and turn back the tide of ever expanding federal government insinuation and encroachment into our daily activities. Thus, if it is struck down by the Supreme Court, this defeat may very well be the Waterloo of the Progressive agenda.

ObamaCare: The 28th Amendment?
Roger D. Luchs    April 17, 2011

ObamaCare is under assault, and properly so, because it tramples on enumerated constitutional rights of individuals and the states.  Given President Obama's predilection, it must also be viewed as his most aggressive effort to date to recast the Constitution to empower the Federal government to inject itself into areas of everyday life from which it has been fenced off since its inception.

In a 2001 interview, Obama expressed frustration that the Constitution was framed as a "limiting" document rather than an "empowering" document.  He understands that there is simply no prospect of amending it to bestow on Congress and him substantially broader authority to regulate broad sectors of the private economy.  His sole option, then, is to convince the public that 225 years of constitutional jurisprudence is wrong or outdated.

ObamaCare is his opening salvo for making his case.  No doubt there are more than a few liberal judges who will back him up.  Some have already ruled in Obama's favor.  If Obama succeeds even in only small part in recasting the Constitution as transferring powers to the central government beyond those expressly identified therein, then, to Obama and his liberal allies, it will be seen, to borrow a phrase, as "the  end of the beginning" rather than "the beginning of the end."

Obama knows better, of course, which is why he said what he did in his 2001 interview.  He can't change history, as much as he'd like to try, so he hopes to erase it from people's memories so over time, it is replaced with "progressive" reading of the Constitution.  Facts, however, are stubborn things.

The colonies ceded to the newly-established Federal government only those powers they agreed among themselves would benefit the separate states, collectively.  The Tenth Amendment reserved to the states those many powers not expressly ceded.  The Bill of Rights was adopted to ensure that the Federal government could not infringe on the liberties the Revolution was fought to restore and preserve.  Citizens of the colonies, and later of the territories, agreed to this arrangement with the understanding that the states and the Federal government would honor what was a set of covenants among them, which all agreed to honor so the nation would succeed.  The Civil War was fought, in part, because to the Southern states, the North, when it elected Lincoln, signaled its willingness to violate that compact, by changing one of the key terms to which it had agreed to obtain Southern participation in the union.  The Civil War, once concluded, was followed by several amendments which extended the reach of the Bill of Rights to state governments.

Though the Civil War brought forth a "new nation," by destroying the institution of slavery, and causing the amendment of the Constitution to protect freedoms of newly-liberated citizens, in all other respects, it reverted to what it was originally intended to be, i.e., a compact that ceded to the Federal government only those powers that would enable the nation to take on the character of a unified assemblage of willing actors.  Although in the New Deal, its powers were broadened, neither Roosevelt nor succeeding presidents sought to recast the fundamental nature of the Constitution.

Those states which have already challenged ObamaCare have focused, in part, on the Tenth Amendment's preservation of state power over those realms of governance and regulation not expressly ceded to the Federal government. Historically, each state has exercised sovereign authority over the conduct of the insurance business within its borders.  Although the Supreme Court ruled in 1944 that certain aspects of the insurance business were subject to the Commerce Clause and, therefore, the sovereignty of the states to regulate insurance within their respected borders could be preempted by Congress, in its regulation of interstate commerce, Congress rebelled.  It overrode the Court's ruling, by enacting legislation reaffirming the sovereignty of the states over the insurance business, except as specified in the statute.[1]  Absent a change in that law, then, the President's ability to infringe upon and override state sovereignty over insurance business conducted within the states' respective borders is minimal.  ObamaCare, nevertheless, includes several mandates to insurers which arguably exceed the Federal government's powers to regulate insurance.  However, those pale in comparison to the individual mandate.

It is that mandate that most clearly signals Obama's intent to "rewrite" the Constitution to dispense with its fundamental character.  The mandate implicates the Bill of Rights' guarantee that persons may not be deprived of life, liberty or property without due process of law.  Obama, in this regard, must be creative, because his mandate infringes upon the same right of privacy liberals fought for years to establish, in order to afford women a constitutional right to abortion.  It seems self-evident that if that right inhibits the Federal and state governments from intruding upon a woman's choice, then it also protects women, and men, from government interference in their choices affecting their personal physical and mental well-being.

ObamaCare's guiding principle, however, is not paternalism.  It is about the government's power to identify "public uses," as contemplated by the Fifth Amendment, and then compel unwilling individuals to engage in conduct that would, in the government's view, advance such uses.  Requiring someone to buy health insurance from a private insurer is no different, in kind, from forcing New London, Connecticut property owners to sell their land to a private development authority established by the city, so that it could devote that property to more "productive" uses.[2]  In the case of ObamaCare, the "public use" contemplated is a Federally- controlled, all encompassing healthcare system that would compel the citizenry to purchase insurance, to facilitate the government's exercise of control over how they make use of the healthcare system, which comprises about 16% of the private economy.  It is a means to achieving a Federally-prescribed end.

However unjust the circumstances in Ms. Kelo's case, at least the Fifth Amendment ensured that she would receive "just compensation". The Constitution expressly recognizes the doctrine of eminent domain, though that is an ancient doctrine founded on the principle that real property belongs to its owners, and they may not be compelled by government to part with it, except under limited circumstances, and for a fair price.

Anyone forced to buy health insurance will also be compelled to part with private property, i.e., private wealth, but unlike in Kelo, what he receives in return is what the government instructs him to receive, i.e. insurance from a private insurer, the content of which will be regulated, to some extent, by the Federal government. It is fair to ask, if the Constitution required amendment to authorize a Federal income tax which taxpayers must pay to avoid punishment, why should an amendment not also be a prerequisite to the implementation of ObamaCare?

If there is any doubt about government's power to compel ordinary citizens to engage in conduct mandated by the Federal government, one need only look at Supreme Court precedent on the constitutionality of Federal rent control statutes to allay such doubt.  Rent control, and its intersection with Constitutional rights, was taken up in challenges to rent control statutes enacted in World War I and World War II.  In two precedential decisions, the Supreme Court ruled that the laws were constitutional, because they were adopted as temporary measures, enacted by Congress in the exercise of its police power, to meet the exigencies of  the pending wars.

In its decisions,  the Court, both implicitly and explicitly, focused on provisions in each statute that carved out an exception for property owners who wanted to remove their properties from the rental market.  Each statute reserved to this right to landlords, even if they did so solely to avoid being subjected to Federal regulation.  In the decision upholding the World War I statute,  Justice Holmes, writing for the majority, commented that "there comes a point at which the police power ceases and leaves only that of eminent domain."[3]  Applying this same reasoning to ObamaCare, anyone forced to purchase health insurance will find himself entangled in the Federal regulatory scheme that will accompany that law's implementation, but, unlike government-imposed rent control, without any viable way to escape participation.

It is no answer that ObamaCare offers the  uninsured  a choice, i.e. the option to  pay a fine in lieu of mandated  health insurance.  Under the doctrine of eminent domain, there is no "option" to pay a fine in lieu of selling one's property to the government, but the government must pay the property owner the value of his property and the property owner may use that payment as he wishes.   Under ObamaCare, the government will pay the involuntary purchaser nothing in exchange for forcing him to buy health insurance.  The uninsured's choice, then, falls somewhere  between Scylla and Charybdis.

Beyond this, the Eighth Amendment, which bars "cruel and unusual punishments," contains a separate provision which raises an additional doubts about ObamaCare's constitutionality.  That provision prohibits government from imposing "excessive fines."  This language was included to prevent the arbitrary use of what in feudal times were known as amercements, employed by the crown to punish those who offended the king, or violated the king's law.  Amercements had sometimes been used to ruin people financially.  Because ObamaCare's fines are intended as punishment for those who refuse to buy health insurance, they too, may be excessive, at least in some instances.  Absent a binding court ruling in which it is held that the statutory fines may be imposed uniformly, they are ostensibly subject to review on a case by case basis.  It is doubtful that the blanket imposition of more than a token fine without regard to each person's circumstances can withstand judicial scrutiny, except, of course, by liberal judges who are indifferent to the merits of challenges to ObamaCare's constitutionality.

To Obama and his fellow "progressives", it is too much to ask that the compact upon which the nation was founded should stand in their way.  The Administration and the political movement it represents are intent on changing the rules of the game for all times, and not just to legitimize ObamaCare.  If they succeed, over two centuries of jurisprudence consistent with the Founders' intent will be replaced by a new jurisprudence that leaves the Constitution, as drafted and originally adopted, just dust in the wind.  Over generations, any understanding of the framers' original intent will gradually fade into the background.

But properly and aggressively challenged, ObamaCare could become this century's Hindenburg.  If it does crash and burn, there is little doubt that whatever takes its place will have to heed the limits on government's power set by the Constitution.  If fully informed, the public will expect, and demand, no less.
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[1]   United States Dept. of Treasury v. Fabe, 508 U.S. 491 (1993)

[2]   Kelo v. City of New London, 545 U.S. 469 (2005)

[3]   Block v. Hirsh, 256 U.S. 135, 154(1921).  The World War II law is addressed in Bowles v. Willingham, 321 U.S. 503, 517 (1944).  ("There is no requirement that the apartments in question be used for purposes which bring them under the Act.")

http://www.americanthinker.com/2011/04/obamacare_the_28th_amendment.html

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Mar 4

Supreme Court Justice Clarence Thomas Speaks Out in the Defense of Our Liberties

Supreme Court Justice Clarence Thomas recently spoke to a conservative group regarding the crucial importance of Americans becoming well educated about the workings of our country so that we can well defend our liberties and any threats to them. This was essentially directed at the present radical transformation of this country orchestrated by Obama and his fellow Progressive henchmen.

If we don't fight back, we lose our country.

‘Defending Liberty’: Defiant Clarence Thomas Slams Critics for ‘Undermining’ High Court
Scott Baker   February 27, 2011

Supreme Court Justice Clarence Thomas – his impartiality under attack from liberals because of his attendance at a meeting of conservative donors sponsored by the Koch brothers and his wife’s tea party activism – struck a defiant tone in a Saturday night speech in Charlottesville, Va., telling a friendly audience that he and his wife “believe in the same things” and “are focused on defending liberty.”

Delivering the keynote speech at an annual symposium for conservative law students, Thomas spoke in vague, but ominous, terms about the direction of the country and urged his listeners to “redouble your efforts to learn about our country so that you’re in a position to defend it.”

He also lashed out at his critics, without naming them, asserting they “seem bent on undermining” the High Court as an institution. Such criticism, Thomas warned, could erode the ability of American citizens to fend off threats to their way of life.

“You all are going to be, unfortunately, the recipients of the fallout from that – that there’s going to be a day when you need these institutions to be credible and to be fully functioning to protect your liberties,” he said, according to a partial recording of the speech provided to POLITICO by someone who was at the meeting.

http://www.theblaze.com/stories/defending-liberty-defiant-clarence-thomas-slams-critics-for-undermining-high-court/

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Feb 3

The Future and Legal Prospects for Obamacare

In the following article, Peter Ferrara lucidly and thoroughly dissects Judge Vinson’s ruling on Obamacare which was deemed to be unconstitutional and then conjectures on its future prospects and potential political actions that may need to take place. He reviews the painstaking research including historical precedents and considerations and the flawless logic in arriving at what appears to be a conclusion and ruling that will be extremely difficult to be overturned by the Supreme Court justices if intellectual integrity is employed.

Judge Vinson proclaimed in his verdict that:

It would be a radical departure from existing case law to hold that Congress can regulate inactivity under the Commerce Clause. If it has the power to compel an otherwise passive individual into a commercial transaction with a third party merely by asserting…that compelling the actual transaction is itself commercial and economic in nature, and substantially affects interstate commerce…it is not hyperbolizing to suggest that Congress could do almost anything it wanted.

The real coup de grace for Obamacare in Judge Vinson’s ruling which ironically touches upon the original Tea Party was his prescient statement:

It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place.

This is an outstanding assessment of the ruling and dim future prospect for Obamacare is a must read.

The Legal Future of Obamacare
Peter Ferrara   2/2/2011

As of this moment Obamacare is officially not the law of the land. As Federal Judge Roger Vinson ruled on Monday in Florida, "[T]here is a long standing presumption that officials of the Executive Branch will adhere to the law as declared by the court. As a result, the declaratory judgment is the functional equivalent of an injunction." That law as declared by the Federal District Court in Florida is now that Obamacare is unconstitutional.

This, of course, is the second federal court ruling that Obamacare is unconstitutional, following the ruling of Judge Henry Hudson in the Northern District of Virginia on December 13. I predicted in this space at the time that Judge Vinson would rule the same. Now he has. I filed amicus curiae briefs in both cases on behalf of the American Civil Rights Union arguing for these results. Those briefs drew on my work in The Obamacare Disaster: An Appraisal of the Patient Protection and Affordable Care Act, published by the Heartland Institute.

Recall former House Speaker Nancy Pelosi laughing off Tea Party objections that Obamacare was unconstitutional with the reply, "Are you serious? Are you serious?" Now she knows just how serious we were.

Limits to Federal Power

Judge Vinson's ruling, as Judge Hudson's before him, represents a return to the original Constitution of limited enumerated powers delegated by the people to the federal government. Vinson opens his decision quoting James Madison in the Federalist Papers explaining, "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," noting further that "the Tenth Amendment reaffirmed that relationship."

Vinson goes on to explain that the reason for that is to "ensure protection of our fundamental liberties" and "reduce the risk of tyranny and abuse." He goes on to quote the ultimate explanation again from James Madison in The Federalist Papers:

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.

The enumerated power claimed by Congress for Obamacare was the Commerce Clause, which grants Congress the power "To regulate Commerce with foreign nations, and among the several states, and with the Indian Tribes." Trade among the states was mentioned so Congress would have the power to eliminate the protectionist trade restrictions and barriers that had been erected among the states against trade with each other. Eliminating those protectionist trade barriers is a fundamental reason for the long term, world leading prosperity of America. This is the original reason for the Commerce Clause, not to allow abominations like Obamacare.

But this was dramatically changed during the New Deal to allow Congress to affirmatively regulate interstate commerce based on the language of the Commerce Clause, and neither Judge Vinson nor Judge Hudson challenged that change. But more recent Supreme Court decisions have reaffirmed that there are still limits to Congress's power to regulate under the Commerce Clause. Both Judge Vinson and Judge Hudson have now ruled that the individual mandate in Obamacare exceeds those limits.

Obamacare's individual mandate requires all individuals without employer-provided health insurance to buy insurance with all the politically correct and expensive coverage the government dictates they must buy. But as Judge Vinson noted, " (essentially for life) just for being alive and residing in the United States." Every prior regulation upheld as constitutional under the Commerce Clause involved some activity that could be construed as participation in interstate commerce. But failure to buy health insurance involves no such activity, and no participation in interstate commerce at all.

As a result, Judge Vinson concluded:

It would be a radical departure from existing case law to hold that Congress can regulate inactivity under the Commerce Clause. If it has the power to compel an otherwise passive individual into a commercial transaction with a third party merely by asserting…that compelling the actual transaction is itself commercial and economic in nature, and substantially affects interstate commerce…it is not hyperbolizing to suggest that Congress could do almost anything it wanted.

Then in words that will be memorialized on future Tea Party walls, Vinson wrote:

It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place.

Judge Vinson consequently ruled, "If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain for it would be difficult to perceive any limitation on federal power."

They Can't Believe He Ate the Whole Thing

Once the individual mandate was declared unconstitutional, it was inevitable that the whole Obamacare law would be struck down, as Judge Vinson also ruled. The legislation included no severability clause as in most every bill, which provides if one provision is struck down, the rest survives. That was not an oversight.

Without the individual mandate, the rest of Obamacare is transparently unworkable, as President Obama and the Democrats themselves said during the jihad for its enactment. That is because the bill also includes what is known as "guaranteed issue" and "community rating." Under those provisions, an insurance company must insure whoever applies, and charge them no more than anyone else, no matter how sick or costly they are when they first apply.

This is like fire insurance regulation requiring the insurer to accept whoever calls for coverage, and to charge them no more than anyone else, even if their house is already on fire when they first call! In health insurance as in fire insurance, this would naturally cause premiums to skyrocket. But it's worse than that.

The skyrocketing premiums cause younger and healthier individuals to drop their coverage. That forces insurers to raise premiums even more because the remaining pool is even sicker and costlier on average. The younger and healthier than flee even more,knowing they can automatically get coverage later if they become sick! In fire insurance terms, this leaves the insurer with a "risk pool" of all burnt down houses, which is quite costly to cover. The result is a financial death spiral both for the insurers and anyone still trying to pay premiums.

The individual mandate was intended to be the antidote to this death spiral. If everyone must buy the insurance in any event, premiums would still rise, but no one could drop out in response. The system could then still function, albeit at higher insurance rates, exactly contrary to what was promised. But without the individual mandate, the whole system inevitably collapses as described above.

This is why, as Judge Vinson wrote, "the defendants concede that the individual mandate is absolutely necessary for the Act's insurance market reforms to work as intended. In fact, they refer to it as an essential part of the Act at least fourteen times in their motion to dismiss." Where there is no severability clause, the legal standard that determines whether the whole law must be struck down is whether what is left can still function independently of the part that was struck down, and whether Congress would have intended for the law to continue in that manner. The remaining dysfunctional Obamacare without the individual mandate does not fit this legal standard.

As a result, Judge Vinson rightly concluded:

[T]he record seems to strongly indicate that Congress would not have passed the Act in its present form if it had not included the individual mandate. This is because the individual mandate was indisputably essential to what Congress was ultimately seeking to accomplish….The Act, like a defectively designed watch, needs to be redesigned and reconstructed by the watchmaker.

The Supremes in the Final Act

Just as I predicted that Vinson would follow Hudson in making this ruling, I predict as well that Justices Roberts, Scalia, Thomas, and Alito will now follow Vinson and Hudson in also finding the individual mandate unconstitutional, and in throwing the whole Obamacare Act out on the same grounds as above.

The swing fifth vote is as usual up to Justice Anthony Kennedy. I believe what will be decisive in winning his vote as well is to demonstrate there are other alternative means to achieving the goals of Obamacare that would be constitutional, so we would not be asking Kennedy to rule that universal health care for all must be unconstitutional.

Just two basic reforms would provide a universal health care safety net that would ensure that no one need ever suffer without essential health care. First would be to block-grant Medicaid back to the states, with each state then to replace it with Medicaid vouchers for the purchase of private health insurance. Each state would decide how much to provide at each income level in their state to ensure that no one would lack basic health insurance because they were too poor.

This would benefit the poor enormously because the current Medicaid program so badly underpays doctors and hospitals that the poor often cannot find doctors and hospitals that will treat them under Medicare. With these Medicaid vouchers, the poor would enjoy the same health care as the middle class, because they would enjoy the same health insurance as the middle class.

The second reform is state uninsurable risk pools for those who nevertheless still do not buy health insurance, and then become too sick and costly to buy it, like the homeowner who fails to buy fire insurance before his house catches on fire. These uninsurables would get coverage from the risk pool, paying premiums based on their ability to pay. The state would subsidize the pool for the remaining costs. A majority of the states already operate such uninsurable risk pools, and they have proved quite workable.

Everyone would then have the means of obtaining essential coverage and care, without any individual or employer mandate. Indeed, unlike Obamacare, this safety net covers everyone, and so achieves the valid social goal far better.

These reforms would not be costly because less than one fourth of the uninsured fail to get health coverage because they are too poor to do so, and only a relatively small number of people find themselves without insurance and then too sick to get it. If we do this in the context of block-granting Medicaid back to the states, the net result could well be less overall government spending rather than more. The only reason President Obama and the Democrats would not even consider this approach is that it does not involve the government takeover of health care, which was the real goal all along, so the wise government could run health care in the interests of progressive "social justice" (which sometimes means denying people health care).

The only option left for President Obama is to decide when he gets the final death notice for Obamacare, before the 2012 election or after. If he agrees to an expedited appeal to the Supreme Court, he will likely have to run for reelection having wasted his first term putting the entire country through a meaningless exercise, which only served to discredit the Democrat party. If he decides to slog through the Circuit Courts, he will likely suffer further adverse rulings before Election Day, with legal momentum building against him, reinforcing the likelihood that the Reagan-appointed Kennedy would go with the conservatives.

We can see the impact of that legal momentum in Vinson's ruling. Hudson declined to strike down the entire statute, even though that inevitable result was obvious then, undoubtedly because he felt it was brave enough to find the individual mandate unconstitutional. But Vinson was emboldened by his ruling as a bolstering precedent to go the whole nine yards.

But it would be wise to deny Obama even this choice, because which way Kennedy would go can never be certain. That is why Senate Republicans should still force a vote on the House repeal, which is even more likely to win assent now. Obamacare will decline even further in the polls as the public increasingly recognizes its unconstitutionality, and even fewer Senate Democrats will be willing to fall on their political swords for an increasingly doomed cause.

President Obama would then have the choice of killing his own Obamacare baby himself, and then running on taking the credit for it.

Peter Ferrara is director of entitlement and budget policy at the Institute for Policy Innovation, a policy advisor to the Heartland Institute, a senior fellow at the Social Security Institute, and general counsel of the American Civil Rights Union. He served in the White House Office of Policy Development under President Reagan, and as Associate Deputy Attorney General of the United States under the first President Bush. He is a graduate of Harvard College and Harvard Law School. He is author of The Obamacare Disaster, from the Heartland Institute, and President Obama's Tax Piracy.

http://spectator.org/archives/2011/02/02/the-legal-future-of-obamacare/

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Dec 14

Obamacare Mandate Requiring All Americans to Purchase Health Insurance Ruled Unconstitutional by District Judge

For the tens of millions of Americans who are vehemently opposed to Obamacare, its mandates and federal government intrusion in their health care, there is great news. U.S. District Court Judge Henry Hudson issued a ruling on intrinsic issues of Obamacare yesterday. His verdict was that the requirement that a person purchase health insurance "exceeds the constitutional boundaries of congressional power" meaning that it is unconstitutional.

On the question as to whether this issue could abrogate that entire legislation, he did not commit except to state that though there was not a severability clause in it, he did not have enough information to adjudicate this.

It is now on to the Supreme Court for this particular challenge of Obamacare. There are many other lawsuits waiting in the wings.

Federal Judge Declares ObamaCare's Mandate Unconstitutional
Philip Klein on 12.13.10

Dealing a blow to the Obama administration, a federal Judge on Monday ruled that the requirement that individuals purchase health insurance -- a central component of the national health care law -- "exceeds the constitutional boundaries of congressional power."

In a 42-page ruling (PDF), U.S. District Court Judge Henry Hudson, an appointee of George W. Bush, said that the Commerce Clause of the constitution did not give the federal government the authority to force an individual to purchase something. He also rejected the Obama administration's argument that the mandate to purchase "minimum essential coverage" was justified by Congressional taxing power. At the same time, Hudson declined to overturn the entire law, severing the mandate from the rest of the legislation.

The decision arose from a lawsuit brought by Virginia Attorney General Ken Cuccinelli, one of the two main legal challenges to ObamaCare. The other one is led by Florida and involves 19 additional states.

"Neither the Supreme Court nor any federal circuit court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market," Hudson wrote. "In doing so, enactment of the Minimum Essential Coverage Provision exceeds the Commerce Clause powers vested in Congress under Article I."

The judge went on to say that, "Because an individual's personal decision to purchase -- or decline to purchase -- health insurance from a private provider is beyond the historical reach of the Commerce Clause, the Necessary and Proper Clause does not provide a safe sanctuary...The Minimum Essential Coverage Provision is neither within the letter nor the spirit of the Constitution. Therefore, the Necessary and Proper Clause may not be employed to implement this affirmative duty to engage in private commerce."

The Obama administration had also advanced a secondary argument that the mandate could be justified under the Congress's power to levy and collect taxes. Yet Hudson said this argument didn't hold up, because the revenue collection element is incidental to the mandate -- it's a penalty and its primary purpose is as a regulatory enforcement mechanism. Also, the legislation itself cited the Commerce Clause as its constitutional justification.

Hudson did rule against Virginia on two other counts, though. As enacted, the law did not include what's known as a "severability clause," which specifies that if one part of the law is struck down, the rest of the law stands. Virginia had argued that it should be struck down entirely if the mandate is considered unconstitutional, but Hudson declined to do so, saying the Court didn't have sufficient information to determine "what, if any, portion of the bill would not be able to survive independently."

Hudson also declined to grant Virginia's request for an injunction against the mandate, because it has not yet gone into effect.
The judge acknowledged that "the final word will undoubtedly reside with a higher court."

It should be noted that in two other lower profile cases, liberal judges have upheld the health care law. So ultimately, it's likely that this will end up having to be decided by the Supreme Court, with Anthony Kennedy, as always, casting the deciding vote.

http://spectator.org/blog/2010/12/13/federal-judge-declares-obamaca

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Aug 19

Major Consequences of Incompetent Vetting of Supreme Court Justices

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May 22

“Real” Potential Diversity On The Supreme Court

According to liberals, these women could be empathetic to the causes and rights of all the women across America.
Wrong!
And what about the men of this country?


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Apr 21

The Only Branch Of Government Not Under Obama’s Control … Yet

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Mar 11

In Defense of The Second Amendment of the Constitution

The Second Amendment to the Constitution, the right to bear arms, should not require much interpretation yet it has been challenged on numerous occasions. It is shocking that circuit court judges and even Supreme Court Justices provide variant interpretations. The fact that the Supreme Court decision in the Heller v. District of Columbia case in 2008 regarding Washington’s strict gun prohibition was overturned by only a 5 – 4 margin, should give pause to freedom loving Americans.

Our freedoms can be ephemeral – they can be taken away in a flash. The “progressives” and the far-left in our country are relentlessly attacking our innate rights and freedoms, often in incremental and stealth ways. The Second Amendment not only allows us to protect ourselves from others who aim to harm us but as Thomas Jefferson noted, it also is what can protect us from a tyrannical, overreaching government.

We must be ever vigilant in protecting and defending these rights and freedoms.

'Right To Bear Arms' Means Just That
Investors Business Daily   03/03/2010

Gun Rights: Otis McDonald, 76, an Army vet who lives in a high-crime area of Chicago, thinks the Constitution gives him the right to bear arms to protect himself and his wife as he protected his country. We think so too.

On Tuesday, the Supreme Court heard arguments on behalf of four Chicago residents led by homeowner McDonald, the Second Amendment Foundation and the Illinois State Rifle Association to overturn Chicago's three-decade-old ban on owning handguns.

In a 5-4 decision in 2008, Heller v. District of Columbia, written by Justice Antonin Scalia, the Supreme Court overturned the District of Columbia's draconian, 32-year-old ban on the private ownership of handguns. Scalia wrote that an individual right to bear arms is supported by "the historical narrative" before and after the Second Amendment was adopted.

The joy of Second Amendment defenders was short-lived. A three-judge panel of the 7th Circuit Court of Appeals, led by Judge Frank Easterbrook, rejected subsequent suits brought by the National Rifle Association against the city of Chicago and its suburb of Oak Park, Ill.

According to Easterbrook, the Revolution was fought and independence won so that the Founding Fathers could write a Constitution with a Bill of Rights that applied only to the District of Columbia.

"Heller dealt with a law enacted under the authority of the national government," he wrote, "while Chicago and Oak Park are subordinate bodies of a state."

We're all for federalism, but the U.S. Constitution is the U.S. Constitution. Surely he can't be serious.

Alan Gura, the Alexandria, Va., lawyer who won the Heller case, has expanded the argument to include the 14th Amendment, adopted in 1868 to prevent infringement on constitutional rights by states and others concerned about newly freed slaves owning firearms.

Introducing the 14th Amendment to Congress, Sen. Jacob Howard of Michigan referred to "personal rights" such as "the right to keep and bear arms, " explaining that his amendment would compel the states "to respect these great fundamental guarantees."

In 2008, Texas Attorney General Greg Abbott filed an amicus brief on behalf of 32 states that also challenged the constitutionality of the D.C. ban. Now he represents a group of 38 states fighting the Chicago ban. "The Second Amendment right to keep and bear arms is a critical liberty interest, essential to preserving individual security and the right to self-defense," Abbott explained.

Chicago Tribune columnist John Kass wrote in 2008 that in Chicago only two classes of people can possess firearms: "The criminals and the politicians."

City politicians, he noted, used their influence to "become deputized peace officers so they can carry" or "often go around surrounded by armed bodyguards on the city payroll."

Otis McDonald wants the same right to defend himself and his family. To deny him that right, city officials argue that repealing the ban will bring carnage in the streets. Yet in the forthcoming third edition of "More Guns, Less Crime," John Lott points out that the Windy City's murder rate fell relative to America's other 50 largest cities before the ban and rose afterward.

In an essay Monday for FoxNews.com, Lott noted that after the D.C. gun ban was ruled unconstitutional, murders in Washington plummeted 25% from 2008 to 2009. D.C.'s murder rate, he reports, is down to 23.5 per 100,000 people, its lowest since 1967.

More guns do seem to mean less crime. And as Mr. McDonald insists, those who gave us liberty gave us the means and the right to defend it.

http://www.investors.com/NewsAndAnalysis/Article.aspx?id=522844

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Feb 5

Obama’s Priorities Are Disordered

Obama is clearly bothered by the Supreme Court’s abrogation of the McCain-Feingold Campaign Finance Reform Legislation. He has attacked the decision with vehemence numerous times including during this State of the Union address with the Supreme Court Justices sitting right in front of him. Is he that afraid of allowing unfettered free speech in our democracy? Absolutely!

Too bad he has not displayed such vigor and attention to the real important issues facing the American people like jobs, the economy, and terrorism.

Is Freedom Of Speech Really An Emergency?
By Thomas McArdle       Investors Business Daily   01/26/2010

A full year into his presidency we suddenly discover what it takes to get Barack Obama all worked up.

Not terrorism.

In the president's estimation, a near repeat of the Lockerbie bombing Christmas Day wasn't worth remarking on until three days later.

Not the risk of a fiscal doomsday.

Only after 12 months of joint one-party rule to secure his place as the biggest-spending president in history does he call for a bipartisan spending-restraint commission and a spending freeze. Both the commission and the freeze don't come along until the fall at the earliest, if they materialize at all.

But when the Supreme Court nullifies congressional incumbents' legislative attempts to suppress the threat of political speech via modern means of communication, he runs to the microphone as if it were a national emergency.
"With its ruling today, the Supreme Court has given a green light to a new stampede of special-interest money in our politics," he declared, promising swift action. "We are going to talk with bipartisan congressional leaders to develop a forceful response to this decision."

Millions of Americans are suffering from double-digit unemployment. And now the nation has been assessed by the congressionally mandated Commission on the Prevention of Weapons of Mass Destruction Proliferation as being unprepared for a biological terrorist attack. The panel slapped the Obama administration with a failing grade on its readiness and response plans to combat the use of deadly viruses or bacteria by an enemy.

Yet what does the president devote his radio address to last Saturday? Accusing the high court of the land of issuing a ruling that "strikes at our democracy itself."

Most Americans may be under the misapprehension that terrorists such as underwear bomber Umar Farouk Abdulmutallab are the people to keep from striking at our democracy. Uh-uh. According to the president's priorities, the real threat to our democracy comes from Justice Anthony Kennedy and his warped view that American citizens should be able to use "their financial clout to directly interfere with elections by running advertisements for or against candidates in the crucial closing weeks."

The president says, "I can't think of anything more devastating to the public interest" — not $12 trillion in federal debt; not an abysmal 26% of teens working (a record low since statistics began being kept in 1948, according to a report by Northeastern University); not the terrorist state of Iran on track to building nuclear bombs.
Let's look at that Supreme Court's Citizens United decision, which our chief executive considers a calamity of such historic proportions that "When this ruling came down, I instructed my administration to get to work immediately with members of Congress willing to fight for the American people to develop a forceful, bipartisan response to this decision."

Kennedy is viewed by liberal Democrats as the most reasonable of the five conservative justices; he was co-author with former Justices Sandra Day O'Connor and David Souter in their joint Casey opinion reaffirming the Roe v. Wade decision legalizing abortion.

Kennedy's 5-4 decision abrogating McCain-Feingold pointed out that under that law, "skits on YouTube.com" satirizing politicians too close to Election Day are a felony "solely because a corporation, other than an exempt media corporation, has made the 'purchase, payment, distribution, loan, advance, deposit, or gift of money or anything of value' in order to engage in political speech."

Before posting that YouTube video with corporate funding, of course, McCain-Feingold lets you ask Uncle Sam's (specifically the Federal Election Commission) permission.

As Justice Kennedy's ruling notes: "If parties want to avoid litigation and the possibility of civil and criminal penalties, they must either refrain from speaking or ask the FEC to issue an advisory opinion approving of the political speech in question."

Then, "government officials pore over each word of a text to see if, in their judgment, it accords with the 11-factor test they have promulgated."

As he and the four justices joining him recognize, "This is an unprecedented governmental intervention into the realm of speech."

Yet it is this victory for free speech last week that requires, according to Obama, "a forceful, bipartisan response" — not the whole myriad of more pressing challenges facing our country, ranging from the fiscal time bomb of out-of-control entitlement programs to our dangerously porous borders.

Blasting the Citizens United ruling may set the stage for another successful Supreme Court nomination for the Obama administration. But it won't restore the public confidence a president needs at a time of serious economic troubles and a continuing global war on terror.

http://www.investors.com/NewsAndAnalysis/Article.aspx?id=519165

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Jan 26

The Supreme Court’s Overturning Of the McCain-Feingold Campaign Finance Law Is A Victory For Free Speech

The Supreme Court on January 21st ruled that the McCain-Feingold campaign finance law was unconstitutional and overturned it. Though intentions were ostensibly good in its passage, what it ended up doing was restricting the rights of free speech and created asymmetries in political information delivery. To wit: most of the liberal news media foisting their political biases unfettered on the public both by commission and omission yet they were not regulated by this legislation.

The ruling is a victory for free speech and the First Amendment and freedom from government intrusion and restraint on our rights.

The Gag Is Removed
Investors Business Daily    01/21/2010

Campaign Finance: Five justices ruled Thursday that corporations and labor unions can donate directly to political activities. At least someone in Washington is trying to protect free speech.

Lawmakers have been strangling constitutionally secured political speech for years. In 1990, the Supreme Court upheld a Michigan law that barred corporate political contributions. Twelve years later, Congress passed the McCain-Feingold campaign finance law.

Among other restrictions, it banned for 30 days before a presidential primary and 60 days before the general election any "electioneering communications" that would be broadcast over television airways or transmitted via cable or satellite.

The encroachments were too much for the Roberts Supreme Court, which on Thursday invalidated 5-4 the McCain-Feingold blackout period and overturned the 1990 high court ruling in its Citizens United v. the Federal Elections Commission decision.

In 2008, Citizens United produced "Hillary: The Movie." The documentary, aimed at derailing Hillary Clinton's presidential bid, was political in nature. The FEC shut down pay-per-view broadcasts of "Hillary," saying that it was a political ad and therefore violated federal election law.

Citizens United, an advocacy group, rightly responded by asking the courts to protect its right to free speech. The Supreme Court rightly replied by ruling for Citizens United — and for everyone else in the country as well.
Free speech cannot survive in a society when it's for me but not for thee. If the government can take away one person's free speech, it can bar free speech for all. Yet that's the society some want.

Take note of campaign finance law supporters, who suspend belief that money donated to political activity is speech protected by the Constitution. They ignore both the 1976 Buckley v. Valeo Supreme Court ruling, which confirmed that political donations are speech, and their own instincts that tell them financial contributions are indeed expression.

Today they condemn the pro-liberty Citizens United ruling and lament that the Roberts Court is moving hard to the right.
The First Amendment is neither right nor left. It protects all sides of every argument — yes, even the more unsavory speech that hurts feelings and offends our sense of decency. Constitutional expression promotes a vibrant, enlightened and open society. The more information we have, the better off we are.

The Citizens United ruling is an important decision that moves the country closer to the principles of its founding and the vision of its founders.

URL   http://www.investors.com/NewsAndAnalysis/Article.aspx?id=518759

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