Posted on 03/28/2010 11:59:23 AM PDT by Congressman Billybob
I’ve been preparing for a series of appearances as Benjamin Franklin at several different Tea Party events in Dayton, Ohio, from April 10 - 13. Despite his long and varied public career, Franklin had very little to do with partisan politics; Most of his service was as a diplomat, first in England and later in France.
There is one quality that all successful diplomats share. They know how to hold their tongues. Enemies now may become friends later, and vice versa. Therefore, effective diplomats make an absolute minimum of public, personal attacks on anyone in a position of power.
It was a proper choice for Franklin. It might just be a proper choice for this columnist in this time of crisis for the United States. With that said....
Last fall, a reporter asked Speaker of the House, Nancy Pelosi, whether the proposals for Health Care “Reform” were constitutional. She responded, “Are you serious?” To show how absurd she considered the question, she repeated her dismissive reply, “Are you serious?”
Now, the Health Care Act is passed and signed into law. We are only now discovering some of the requirements and taxes hidden in the nooks and crannies of its 2,700 pages, all told. At the same time, just days after the signing of the revised, revised bill into law, 13 sovereign states have already filed suit, claiming the Act is unconstitutional. According to press accounts, upwards of 24 other states may also file such suits.
Never in the history of the United States have 13 states (much less 30 or more states) claimed in court that any action of the federal government was unconstitutional. The only remotely similar event was when 11 of the then 33 states succeeded from the union, precipitating the Civil War in 1861. The issue then, as now, was overreaching by the federal government.
Some who read about the multiplicity of state suits against the federal government look at the history of Supreme Court litigation and say, correctly, that this is slow remedy. They think a final decision might not come for three years.
Not so. The federal courts can and do move very quickly when there is reason to do so. (My first win in the Supreme Court went from final decision in the trial court to emergency relief in the Supreme Court in just two months. McCarthy v. Briscoe, September, 1976.) Odds are, the Health Care cases will be consolidated. For sure, the first case will go up in a matter of months under the Supreme Court’s rules for Emergency Relief.
There are several issues in the various cases which I believe will lead the Court to declare the Act unconstitutional, but probably by a margin of only 5-4. The Court will not allow the Commerce Clause to stretch to authorize Congress to tell individual citizens to purchase a required product, or tell individual states how to organize their governments and raise and spend their state taxes.
The Court might even go as far as to revisit its unfortunate Commerce Clause decisions, Hodel v. Virginia Surface Mining, 1981, and Wickard v. Filburn, 1942. That should happen, but I am not hopeful that it will. Still, even if those cases remain standing, they don’t reach far enough to justify the Health Care Act.
The Court should not strike this law down because it will bankrupt the United States. It will, and only a series of lies promulgated through the Congressional Budget Office and directly by the Administration have papered over that conclusion. The Court should not strike down this law because an obscure clause that protects the fees of liability lawyers..
Both those issues are a matter of political wisdom, and it is not the business of the courts to second-guess the politics of any legislative decision – in Congress or the states. The Act should be struck down because both the Administration and Congress have acted in cavalier disregard of the provisions of the Constitution. Under the basic tenets of checks and balances, when two branches of the federal government have violated the Constitution, it is the duty of the remaining branch to uphold the Constitution.
It is a matter of whether at least five Justices of the Court will obey their oaths to protect and defend the Constitution. A majority of the House and of the Senate, and the President have all violated similar oaths. But the subject remains open.
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About the Author: Never mind who I am. All citizens need to read, understand, and respect the US Constitution. Last step, they need to reject all leaders and judges who have not done the same.
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John / Billybob
Good Point - - I hadn't thought of it that way.
Thanks John. Good comments...
VA AG who filed separately for VA said if no one joins his lawsuit he should be done in district and appeals court by end of summer and that if necessary see it at SCOTUS in a year after that. He also rferred to his lawsuit as bing on the ‘Rocket Docket’. Please add your comments. TY.
Going by the VA Ag’s timetable that means a probable decision in June or July of 2012...the ordinary persons perception of a rocket and the lawyers is not the same thing
Great essay CBB. I’ve been wondering about these very issues, and how long it might take SCOTUS to hear the case, and this is the first time I’ve read anything definitive about Emergency Relief.
Speaking of secession, did you see the piece that was floating around here yesterday, purported to be written by an active duty Marine, warning people who talk about revolution to remember he is one of the guys revolutionaries will deal with, and he will treat everyone like this was Falluja?? Biggest piece of flamebait I’ve seen in years, but I wanted your thoughts on it as well...
Rush Limbaugh discussed last week the defense of Social Security in court.
FDR was stating publicly and emphatically that Social Security was NOT A TAX, that it was a retirement savings plan with the revenue segregated from the general budget (now known as a big sham lie). While FDR was saying SS was not a tax, he was sending his justice department lawyers into court defending the constitutionality of SS as a tax.
Rush went on to say that Obama is planning to do the same with Obamacare, to publicly proclaim that it is not a tax but to defend it in court as a tax.
I agree with you that Obama will not likely see success with commerce clause arguments, but what do you think about tax arguments?
Thank you, John, for your ability to sort through the issues and come up with the principled reason for the Court to act.
More citizens need to take responsibility for studying the Founders' ideas as a means for developing such principled stands against the actions of those in power today.
"Issues-oriented" arguments miss the point. "Health Care Reform" never was about health care. It was about power, and so-called conservatives allowed the Pelosis and Reids to call it by another name.
Liberty is being assaulted by those, like Pelosi, who hold a certain contempt for the restraints placed by the Founders' Constitution on their power. Only an informed citizenry can recapture and restore power to "the People," as was intended. (See "The Responsibility of Citizens," posted today)
ping for later.
I found it disheartening but there is a chance (I think, I hope... oops) that McCollum’s lawsuit will be issued his requested preliminary injunction, and that event would calm fears while waiting for GOP to takeover and gut the whole thing.
It’s always great to hear from you, John.
Thanks.
Sobering.
But which way will the 5-4 decision go?
We know absolutely that the four socialists on the court will never (have never!) votes as the constitution holds.
“While FDR was saying SS was not a tax, he was sending his justice department lawyers into court defending the constitutionality of SS as a tax.”
Which just goes to show that presidents lying to achieve their progressive aims didn’t start with this president. Interestingly, in 1994, CBO scored Hillarycare’s employer mandate as a tax since premium payments had to be remitted to government-run “alliances” (which in Obamacare now are simply called “exchanges” but they serve the same purpose and have virtually the same function). This helped cement opposition to Hillarycare since it made the ‘on-budget’ size of the plan looked much larger (thus defeating the intent of the designers to used a “mandate” as an end-around way of bankrolling their plan without using “taxes”).
This time around, CBO for some reason didn’t call either the employer or individual mandates “taxes” when it scored the bill (hence a sizable fraction of the plan’s true costs remain hidden from the public: the so-called $1 trillion cost only counts costs borne by the federal government. All the other costs borne by businesses and citizens are “off the books.”)
I doubt this would be dispositive in terms of how the Court elects to view these requirements, but thought CBO’s flip-flopping on this question was interesting, to say the least.
I think as Franklin you should carry a poster, that simply says,
“A Republic if you can keep it.”
Thank you for posting this encouragement Congressman John Armor!
If only we had Congressmen and a POTUS that had common sense we wouldn't be in the predicament we are in.
CBO was ordered by a GOP Congress to use dynamic scoring but never followed through whilst the Party of Stupid never enforced (Bush’s fault, truely).
CBO’s numbers are farsical and only serve now to add political weight.
However, your comment about CBO flipping or flopping or flip-flopping flies in their face as non-partisan. Are you saying that Madam Caligula possibly made threats, or budgetary of political sacking variety?
I read only that CBO was working 24/7 and was facing physical exhaustion and collapse. Would make an interesting drama for a human interest story.
Thank you ....I have a neice who wants to study law....I’m sending her this
“There are several issues in the various cases which I believe will lead the Court to declare the Act unconstitutional, but probably by a margin of only 5-4.”
It sure would be easier for Obozo if he could count on the court seeing things his way in the very near future...hmmm...
The Act should be struck down because both the Administration and Congress have acted in cavalier disregard of the provisions of the Constitution. Under the basic tenets of checks and balances, when two branches of the federal government have violated the Constitution, it is the duty of the remaining branch to uphold the Constitution.
***Unfortunately for the us, this present Supreme Court has already thrown the constitution under the bus when it decided not to look at the Certifigate issue. Whatever they do next will just be the next step down the same self-deluded path.
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