The Constitutional Moment

Wall Street Journal ^ | WSJ Editors

[Servant of the Cross]

Judge Vinson's learned opinion has put down a Constitutional argument that will reverberate all the way to the Supreme Court.

[Huck]

Outer boundaries? lol. Did they read this part of the opinion?

That is not to say, of course, that Congress is without power to address the problems and inequities in our health care system. The health care market is more than one sixth of the national economy, and without doubt Congress has the power to reform and regulate this market. That has not been disputed in this case. The principal dispute has been about how Congress chose to exercise that power here.

Wow. How limiting! lol.

[Defend Liberty]

Judge Vinson's action to make a ruling is Unconstitutional. Article III Section II states SCOTUS is to have original jurisdiction for cases involving Ambassadors, other public Ministers, Consuls and those in which a state shall be a party. All other cases SCOTUS has only appellate jurisdiction. In other words this case should have gone immediately to SCOTUS. SCOTUS is the only court to have Constitutional authority for this case. A ruling on the appellate level is Unconstitutional.

More importantly states need not seek approval from one branch of the federal government regarding the other two branches of the federal government when it comes to an issue of enumerated powers in Article I Section VIII of the Constitution. Regulating health care is not an enumerated power in Article I Section VIII and therefore is clearly a power reserved to the states or the people per the 10th Amendment. These states have in effect relinquished their 10th Amendment rights to the Judicial branch under the pretense the judicial branch is the final authority on the Constitution.

If this were true then SCOTUS could change the Constitution at their whim, without being challenged. The states need simply reassert their 10th Amendment rights. They need not seek approval of or get permission from any branch of the federal government.

[21stCenturion]

Several questions come to mind ...

Why hasn’t SCOTUS already asserted Article III, Section II ‘original jurisdiction’ long before now, in the face of 2/3 of the States aggressively filing suit against Obamacare ?

Is this because SCOTUS views this conflict as more of a ‘political’ issue between factions within the Congress and the White House, rather than a fundamental ‘original intent’ issue ?

Contrarily, SCOTUS has a well-established tendency to NOT assert jurisdiction prematurely over a case winding it’s way up from a lower court, preferring to allow for an accumulation of thoughts and preliminary rulings as the issue ‘matures’. What say you ?

WRT Article I, Section VIII enumerated powers and the 10th Amendment reservation of powers to the States: what forum do you propose is appropriate for ‘the States’ to make an assertion pre-empting an Act of Congress ? Twitter ? The LSM ? CNN ?

It would appear that a successful ‘Federal case’, well developed and argued until finally upheld by the SCOTUS, is required to make such an assertion usefully binding on the Congress or some regulatory agency such as the EPA. What say you ?

One man’s opinion.

21stCenturion

[Boogieman]

Original jurisdiction doesn’t mean the SCOTUS has to hear the case first, it just means they have the ability to hear the case before it works its way through the rest of the courts. There’s nothing in the Constitution that says they have to exercise that ability.

[Jacquerie]

"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 a footnote, Vinson referred to constitutional scholar Randy Barnett, who has done extensive research on the commerce and necessary and proper clauses. Notice that Vinson repudiates the Leftist construct of "necessary and proper" as a stand alone clause removed from the enumerated powers.

[SoFloFreeper]

...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.

The Tea Party, with all due respect, was that moment. Judge Vinson, happily, is a judge who also treasures federalism and understands the limits of government.

[SoFloFreeper]

I thnk the judge is correct; the Congress CAN address problems. The Congress can repeal the intrusions implemented by previous judgements.

[Smber]

“That is not to say, of course, that Congress is without power to address the problems and inequities in our health care system.”
I noticed the same thing. While I agree with the judge’s opinion, I know not where he got this from. It’s scary.

[kevkrom]

Original jurisdiction is not exclusive jurisdiction. The subordinate courts, when created, were also allowed to share in original jurisdiction, with the superior courts having appellate jurisdiction over them.

[Defend Liberty]

Original jurisdiction is not exclusive jurisdiction. The subordinate courts, when created, were also allowed to share in original jurisdiction, with the superior courts having appellate jurisdiction over them.

Exclusive jurisdiction is not a term used in Article III. In fact Article III Section II states SCOTUS "shall" have original jurisdiction in any case involving a state. Shall is used in laws, regulations, or directives to express what is mandatory. SCOTUS doesn't have a choice per the Constitution. SCOTUS must be the first and only to rule over any case to which a state is a party, particularly one against the United States(Congress) as is the case with Unconstitutional Obamacare.

[kevkrom]

“with such Exceptions, and under such Regulations as the Congress shall make.”

It helps, you know, to read THE WHOLE THING, and not to cherry pick just that which supports your argument.

[Defend Liberty]

Why hasn’t SCOTUS already asserted Article III, Section II ‘original jurisdiction’ long before now, in the face of 2/3 of the States aggressively filing suit against Obamacare ?

Good question! We've seen in the past how the three branches of government have, over the decades, run rough shod over the Constitution. The fact remains the Constitution clearly states SCOTUS is to be the first court to hear certain types of cases.

Contrarily, SCOTUS has a well-established tendency to NOT assert jurisdiction prematurely over a case winding it’s way up from a lower court, preferring to allow for an accumulation of thoughts and preliminary rulings as the issue ‘matures’. What say you ?

SCOTUS does not have any choice for cases to start at the appellate division if those cases do not involve Ambassadors, other public Ministers, consuls or states per Article III Section II.

WRT Article I, Section VIII enumerated powers and the 10th Amendment reservation of powers to the States: what forum do you propose is appropriate for ‘the States’ to make an assertion pre-empting an Act of Congress ? Twitter ? The LSM ? CNN ?

States do not need permission from one branch of the federal government to reassert their 10th Amendment rights over the other two branches. A state need only reassert its 10th Amendment rights by passing a resolution in the state legislature telling the federal government that state is not required to comply with an Unconstitutional act of Congress as regulating health care is not an enumerated power granted to Congress in Article 1 Section 8.

It would appear that a successful ‘Federal case’, well developed and argued until finally upheld by the SCOTUS, is required to make such an assertion usefully binding on the Congress or some regulatory agency such as the EPA. What say you ?

What if SCOTUS were to rule Obamacare is Constitutional? Do the states abide by the ruling thereby permanently relinquishing their 10th Amendment rights to the judicial branch of government and consequently erroneously accepting SCOTUS is the final authority on the Constitution or do the states finally recognize they and the people are the final authority by reasserting their 10th Amendment rights despite the ruling? If the latter, then why not reassert their 10th Amendment rights now?

[Defend Liberty]

“with such Exceptions, and under such Regulations as the Congress shall make.”

It helps, you know, to read THE WHOLE THING, and not to cherry pick just that which supports your argument.

Are you suggestion Congress usurping Article 1 Section 8 of and the 10th Amendment by regulating health care is an exception requiring the judicial branch to rule in favor of Unconstitutional Obamacare?

[kevkrom]

Are you suggestion Congress usurping Article 1 Section 8 of and the 10th Amendment by regulating health care is an exception requiring the judicial branch to rule in favor of Unconstitutional Obamacare?

No, and you know I'm not, so stop with the gratuitous strawman. The jurisdiction of the court system is laid out in Article 3, but allows for Congress to modify it.

Which they did, when they created the subordinate courts.

Pinging OldDeckHand to this, as he knows far more about it than I could ever hope to learn.

[Defend Liberty]

“with such Exceptions, and under such Regulations as the Congress shall make.”

It helps, you know, to read THE WHOLE THING, and not to cherry pick just that which supports your argument

I'll rephrase my last post to you since I misunderstood your remark. Are you suggesting SCOTUS is not to rule initially on a case involving a state because Congress willfully violated the Constitution? It smacks of logic Congress would delegate a fundamental and profound violation of the Constitution to a lower court.

[OldDeckHand]

A couple thoughts. First, and as several have already pointed out, including kevkrom, original does not mean exclusive. Just because the Supreme Court can hear a case first, doesn't necessarily mean it has to. In fact, the legislature, for a variety of reasons, established concurrent jurisdiction for trial courts in cases just like this one - controversies arising between the states - in a piece of legislation called the (I think) Judiciary Act of 1789.

This was a prickly issue, even back then. Finally, after a number of cases, the Court eventually held that indeed trial courts do enjoy concurrent jurisdiction with the Supreme Court even though the Supremes enjoy original jurisdiction, which is why almost without exception, the Supreme Court is not the trial court - again, almost.

Perhaps you don't think that's how it should work. That's fine. Everyone is entitled to their opinion. But jurisprudentially, that is EXACTLY how things do work.

If you would like more information, much can be learned from a familiarization of 28 U.S.C. § 1251, Jurisdiction and Venue.

[21stCenturion]

Do you EVER argue in anything less than ‘absolutes’ ?

In your commentary here, you don’t seem to be responding to what others are saying as much as reiterating your own points.

F’rinstance, I asked WHY SCOTUS hasn’t asserted its ‘original jurisdiction’, NOT whether it had such jurisdiction. By its restraint here, SCOTUS appears to be satisfied to provide appellate jurisdiction if and when this case ‘arrives’.

In fact, SCOTUS has appellate jurisdiction over ALL judicial matters with original jurisdiction over SOME. I can’t find any information to suggest that SCOTUS MUST be the ONLY trier of fact in such a case, which appears to be the substance of your argument.

F’rinstance, you say “SCOTUS does not have any choice for cases to start at the appellate division if those cases do not involve Ambassadors, other public Ministers, consuls or states per Article III Section II.” What is your authority for this ?

As I understand it, SCOTUS has absolute authority to CHOOSE to accept or reject ANY case brought before it and need not explain why in either instance.

F’rinstance, you say “ ... A state need only reassert its 10th Amendment rights by passing a resolution in the state legislature ...”. You seem to expect the entire Federal ‘apparatus’ — Executive, Legislative and Judicial — to simply roll over limp and helpless in the face of such an assault.

Whatever possessed Mr. Lincoln to oppose the Confederate States when faced by a similar ‘power play’ ? Had he never read his Constitution and discovered how powerless he truly was in the face of such ‘a resolution’ ?

I tried to follow your final paragraph but must confess I became somewhat lost. Essentially, you seem to —

reject the power of the SCOTUS to define ‘constitutional’;

reject the power of the Congress to re-define its own Acts by future Acts;

and finish by asserting that ONLY the States define the scope, intent and application of the 10th Amendment and that such a determination is immune to review by ANY ‘lesser Authority’.

On that note, I will resort to quoting the immortal Jerry Lee — ‘Baby, you leave me Breathlessssssss !’

Unlike Imam Hussein, I am no ‘Constitutional Law’ scholar, but I DID stay in a Holiday Inn Express recently and I DO have a copy of the Constitution in residence in my computer which I review from time to time.

One man’s opinion.

21stCenturion

[Defend Liberty]

Do you EVER argue in anything less than ‘absolutes’ ?

Not when the Constitution clearly states the requirements of a branch of government.

F’rinstance, I asked WHY SCOTUS hasn’t asserted its ‘original jurisdiction’, NOT whether it had such jurisdiction. By its restraint here, SCOTUS appears to be satisfied to provide appellate jurisdiction if and when this case ‘arrives’.

Article III Section II does not give the judicial branch the option of deciding if cases involving Ambassadors, other public Ministers, consuls or the states should be delegated to the appellate division. SCOTUS must be the first court to hear these types of cases.

In fact, SCOTUS has appellate jurisdiction over ALL judicial matters with original jurisdiction over SOME. I can’t find any information to suggest that SCOTUS MUST be the ONLY trier of fact in such a case, which appears to be the substance of your argument.

It's in Article III Section II as I posted earlier. To quote: "In all cases affecting Ambassadors, other public Ministers and consuls, and those in which a state shall be party, the supreme court shall have original jurisdiction". Shall means must in legal circles. It doesn't get any clearer.

As I understand it, SCOTUS has absolute authority to CHOOSE to accept or reject ANY case brought before it and need not explain why in either instance.

SCOTUS can reject a case on its merits after being reviewed but it doesn't mean SCOTUS can reject a case involving those parties mentioned above on the basis of delegating them to the appellate division.

Whatever possessed Mr. Lincoln to oppose the Confederate States when faced by a similar ‘power play’ ? Had he never read his Constitution and discovered how powerless he truly was in the face of such ‘a resolution’ ?

Which lawsuit involving the states against Unconstitutional Obamacare discusses secession?

I tried to follow your final paragraph but must confess I became somewhat lost. Essentially, you seem to —

reject the power of the SCOTUS to define ‘constitutional’

reject the power of the Congress to re-define its own Acts by future Acts;

and finish by asserting that ONLY the States define the scope, intent and application of the 10th Amendment and that such a determination is immune to review by ANY ‘lesser Authority’.

SCOTUS is not the final authority on the Constitution. If that were true then they could arbitrarily change the Constitution at their discretion thereby negating not only the 10th Amendment but the Bill Of Rights altogether. Keep in mind Supreme Court Justices can be impeached. If they were the final authority on the Constitution then they would be above and beyond reproach.

Congress cannot change the Constitution by merely passing an act. If that were true then there would be no question Obamacare is Unconstitutional since it is an act passed by Congress. The Constitution can only be changed in accordance with the procedures to change(Amend) the Constitution in Article V.

The states or the people are the final authority on the Constitution. It was the states that gave the federal government their powers when they passed the Constitution. The Federal government did not create and give the states powers by writing and passing the Constitution. The states and the people assert and reassert their rights by invoking the 10th Amendment when violated by the federal government. Our founding fathers recognized the people are the final authority in the Declaration of Independence by stating the people have the right to later or abolish the government.

Unlike Imam Hussein, I am no ‘Constitutional Law’ scholar, but I DID stay in a Holiday Inn Express recently and I DO have a copy of the Constitution in residence in my computer which I review from time to time.

Good! More people should do as you. I have a pocket Constitution I keep with me. The founding fathers didn't write the Constitution exclusively for Constitutional scholars. It was written for we the people. They written in some form of legalese only for Attorneys to understand. They wrote the Constitution in layman's terms for all American citizens to understand.

[Defend Liberty]

First, and as several have already pointed out, including kevkrom, original does not mean exclusive.Just because the Supreme Court can hear a case first, doesn't necessarily mean it has to.

Please show me wherein Article III Section II the term exclusive is used because I don't see that passage.

In fact, the legislature, for a variety of reasons, established concurrent jurisdiction for trial courts in cases just like this one - controversies arising between the states - in a piece of legislation called the (I think) Judiciary Act of 1789.

In other words you are arguing the Constitution can changed simply by act of Congress instead of the procedures to change the Constitution detailed in Article V via the amendment process.

Perhaps you don't think that's how it should work. That's fine. Everyone is entitled to their opinion. But jurisprudentially, that is EXACTLY how things do work.

It's not me saying how it should work. It is what the Constitution states.