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To: Jim Robinson
Taxes on imports are known as "Duties" and the congress is explicitly empowered to collect them "to pay the Debts and provide for the common Defence and general Welfare of the United States," ie, to support the government.

The power to provide for the general Welfare is explicit in the taxing powers delegated to Congress, as you have just quoted. The Constitution provides no power to the federal courts to decide which tax policies advance the common good and which do not. It is the usurpation of legislative functions by the federal judiciary that is unsupported by the language of the Constitution.

"We have no power per se to review and annul acts of Congress on the ground that they are unconstitutional." -- Commonwealth of Massachusetts v. Mellon, 262 U.S. 447 (1923)
The basis for judicial activism is not found in the Constitution. That is the power that is not enumerated, while the power to provide for the general welfare as part of the taxing powers of Congress is explicitly istated.

Nowhere in the constitution will you find the power to mandate the people to purchase any kind of insurance

"The conception of the spending power advocated by Hamilton and strongly reinforced by Story has prevailed over that of Madison, which has not been lacking in adherents. Yet difficulties are left when the power is conceded. The line must still be drawn between one welfare and another, between particular and general. Where this shall be placed cannot be known through a formula in advance of the event. There is a middle ground, or certainly a penumbra, in which discretion is at large. The discretion, however, is not confided to the courts. The discretion belongs to Congress, unless the choice is clearly wrong, a display of arbitrary power, not an exercise of judgment. This is now familiar law." --Helvering v. Davis, 301 U.S. 619 (1937)
If Henry E. Hudson wants to make federal law he should step down from the bench and run for Congress.
55 posted on 12/13/2010 5:06:14 PM PST by Mojave (Ignorant and stoned - Obama's natural constituency.)
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To: Mojave

Are you a liberal troll or were you just born stupid?


57 posted on 12/13/2010 5:10:16 PM PST by Jim Robinson (Rebellion is brewing!! Nuke the corrupt commie bastards to HELL!!)
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To: Mojave; holdonnow
The discretion belongs to Congress, unless the choice is clearly wrong, a display of arbitrary power,

BZZZT...the choice is clearly wrong and is also a display of arbitrary power, in which case the discretion does not belong to Congress.

Congress may not enact unconstitutional laws. It is the argument of conservatives like Jim DeMint and Mark Levin that Obamacare is unconstitutional.

Thanks for playing, Johnny Screenname. LOL.

96 posted on 12/13/2010 9:48:39 PM PST by Chunga (Go, Sarah, GO!! - Jim Robinson)
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To: Mojave
"We have no power per se to review and annul acts of Congress on the ground that they are unconstitutional." -- Commonwealth of Massachusetts v. Mellon, 262 U.S. 447 (1923)

It would be nice if you would actually quote enough of the language of the opinion itself to put it into proper perspective, and to actually provide an indication - since it's not readily apparent from the quoted phrase - what the Court is actually talking about.

(to every one else, my apologies for the less than crystal clear flow of the diatribe below; I wrote and rewrote it in several chunks, so it may not all fit seamlessly together; the argument itself, however, is solid)

First, here is the language you quote with its surrounding context (I've underlined and bolded the language you keep taking out of context): "The functions of government under our system are apportioned. To the legislative department has been committed the duty of making laws; to the executive, the duty of executing them; and to the judiciary the duty of interpreting and applying them in cases properly brought before the courts. The general rule is that neither department may invade the province of the other, and neither may control, direct or restrain the action of the other. We are not now speaking of the merely ministerial duties of officials. Gaines v. Thompson, 7 Wall. 347. We have no power per se to review and annul acts of Congress on the ground that they are unconstitutional. That question may be considered only when the justification for some direct injury suffered or threatened, presenting a justiciable issue, is made to rest upon such an act. Then the power exercised is that of ascertaining and declaring the law applicable to the controversy. It amounts to little more than the negative power to disregard an unconstitutional enactment, which otherwise would stand in the way of the enforcement of a legal right. The party who invokes the power must be able to show not only that the statute is invalid, but that he has sustained or is immediately in danger of sustaining some direct injury as the result of its enforcement, and not merely that he suffers in some indefinite way in common with people generally. If a case for preventive relief be presented, the court enjoins, in effect, not the execution of the statute, but the acts of the official, the statute notwithstanding. Here, the parties plaintiff have no such case. Looking through forms of words to the substance of their complaint, it is merely that officials of the executive department of the government are executing and will execute an act of Congress asserted to be unconstitutional, and this we are asked to prevent."

The meat of what the Court was in fact discussing should be apparent when one quotes both the sentence you keep quoting and the sentence that follows it; to wit:
We have no power per se to review and annul acts of Congress on the ground that they are unconstitutional. That question may be considered only when the justification for some direct injury suffered or threatened, presenting a justiciable issue, is made to rest upon such an act.

In other words, the Supreme Court does, in fact, possess the power to hold an Act of Congress unconstitutional when it is presented with a "justiciable issue" that necessarily requires that the Court determine whether or not the Act in question has imposed a direct or threatened injury on a specific plaintiff or plaintiffs.

Thus, if an individual comes forward and proves to the Court that the execution of a particular Act of Congress caused a harm to that individual that Congress does not have the authority to impose under the Constitution, then the Supreme Court does, in fact, have the power to hold that Act unconstitutional.

The full language quoted above itself suggests that the Court is not simply stating that it has no authority to hold that an Act of Congress is unconstitutional - which is what you are claiming it says - but rather that the Court cannot do so in the abstract, without some concrete set of facts, and a concrete plaintiff to go along with those facts, with which to determine whether the application of an Act of Congress to the facts in front of the Court is, or is not, an act that surpasses the power granted to the Congress under the Constitution.

The broader context in which this opinion was given was, precisely, that of a plaintiff who, not having suffered a particularized harm from the statute in question, nonetheless sought what amounted to a declaratory judgment by the Supreme Court that the Maternity Act was, in the abstract, unconstitutional.

In other words, the Supreme Court in Commonwealth of Massachusetts v. Mellon is doing nothing more than reiterating what the Court had held back in Marbury v. Madison; namely, that the Court requires a "justiciable controversy" to be brought before the Court can ever address the issue of whether or not an Act of Congress is unconstitutional.

The necessary implication from that is, of course, that once you have a "justiciable controversy" the Supreme Court has the power, through necessary implication - as was well set-out in Marbury v. Madison, to hold an Act of Congress to be unconstitutional.

In other words, Commonwealth of Massachusetts v. Mellon most emphatically does not stand for the proposition that the Court has no power to hold an Act of Congress unconstitutional, it stands for the much more pedestrian - and uncontroversial - point that the Supreme Court is not in the practice of giving advisory opinions based on hypothetical facts.

You might try quoting the Court's opinion for what it held, not for what you think you can make it say if you just cite a single sentence out of context.
112 posted on 12/13/2010 10:37:18 PM PST by Oceander (The phrase "good enough for government work" is not meant as a compliment)
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