Posted on 03/22/2010 10:13:43 AM PDT by Reagan Man
Now that the House Democrats have rammed ObamaCare down the throats of the nation by a vote of 219-212, the situation is indeed bleak. But Conservatives and Tea Partiers despondent over the fact that liberal Democrats just passed a massive encroachment on our liberties over their massive protests should take hope. James Madison saw this coming, and his forethought will give opponents of ObamaCare one last shot at killing it.
In Federalist #10, Madison wrote "Enlightened statesmen will not always be at the helm." (Boy, did he ever get THAT right.)
Knowing that the nation's future leaders would include usurpers and potential tyrants, Madison sought a way to preserve individual liberty despite their efforts. He thus devised the system of the separation of powers. "[E]ssential to the preservation of liberty..." he wrote in Federalist #51, "it is evident that each department should have a will of its own" and "members of each department should be as little dependent as possible" on the other branches.
Passage of legislation by Congress and the signature of the President are not enough. The next step is judicial review by the Supreme Court, an independent and co-equal branch of government. (Already the states of Idaho and Virginia have vowed to sue the Federal government over ObamaCare, and the passage of the legislation will doubtless spawn hundreds of other lawsuits as well).
Madison was a brilliant enough thinker to understand that the separation of powers relied on more than each branch having the "necessary constitutional means" to resist the others. The separation of powers provided each branch with the "personal motives" to "resist the encroachments of others."
"Ambition," wrote Madison, "must be made to counteract ambition. The interests of the man must be connected with the constitutional rights of the [branch]."
Thankfully, the Court has an axe to grind with Obama.
Remember the State of the Union Address? In January, Obama took a cheap shot at the Supreme Court's courageous decision in the Citizens United case, upholding free speech and overturning key provisions of the "McCain-Feingold" law. Congressional Democrats whooped and jeered at the Court like obnoxious schoolboys. The Court was humiliated. Justice Alito shook his head in disgust and muttered that the President's remarks were "not true." In March, Chief Justice Roberts told an audience at the University of Alabama that the behavior of the President and the Congressional Democrats was "very troubling," and questioned why the Supreme Court should even bother to attend a "political pep rally." Roberts' remarks caused the White House Press Secretary Robert Gibbs to issue a snarky rebuttal, again condemning the Court's decision.
It is quite likely that the "individual mandate" in ObamaCare requiring all Americans to purchase health insurance against their will is unconstitutional. But after the State of the Union dust-up, the Court has more than just technical legal motives to take up the case. Madison lamented that reliance on personal motives and ambitions "should be necessary to control the abuses of government" but understood that this was a "reflection on human nature."
I'm hoping that Madison's understanding of human nature was correct, and that Justices Alito and Roberts are chomping at the bit for the chance to get back at Obama and his Congressional goons for the humiliation they inflicted on the Court. A decision striking down ObamaCare, authored by Justice Alito, would be the ultimate smackdown.
Excellent piece, you posted 11 seconds before me. :-)
Yep, I hope the SCOTUS remembers that 0bama spin in their face at the SOTU speech.
Some people want to equate this mandate to the mandate of states to purchase auto insurance. That doesn’t work. If you choose to own and drive a car, you must carry insurance. You can choose not to drive a car. This is the first mandate required just because you exist.
I hope the SCOTUS sees it that way.
I fear for the lives of the Conservative Supreme Court Judges! Accidental death, by Obamacare, ala car accident, fire, or left wing nut!
The SCOTUS still wants to play by rules that the Dems have thrown out. It won’t work.
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I've been fearing exactly the same thing, factmart! One "unfortunate accident" and our problems would multiply dramatically!
I’m concerned that obama will appoint 2 additional justices to the Supreme Court, ending up with 11 rather than 9. Didn’t FDR pack the court also?
He threatened to, but the bill to expand the Court failed in Congress - only Congress has the power to determine the size of the Court. Part of the reason the bill failed, though, is that Justice Owen Roberts began voting in favor of the constitutionality of New Deal programs (the “switch in time that saved the nine”) and because vacancies began to open in the Court - Roosevelt ended up making 9 appointments between 1937 and his death.
I rather doubt Obama will ever have the votes in Congress to pack the Court.
Congress may not regulate that which, by legislation or by definition, is not interstate commerce.
Congress has prohibited interstate commerce in health insurance, therefore has neutralized its own power to regulate said commerce.
Individuals who do not purchase health insurance do not, by definition, participate in interstate commerce, therefore have no activity which may be regulated.
...the authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws governing intrastate activities that substantially affect interstate commerce. Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce.
Justice Scalia, concurring in Raich
Yeah, just like they struck down Social Security and Medicare. Right on!
.the authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws governing intrastate activities that substantially affect interstate commerce. Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce.”
Translation:
The govt. can do whatever it wants.
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