Category Archives: Constitution

Growing Testy With the Twit

Barack Obama, Constitution, Federalism, Glenn Beck, Healthcare, Law

The 5th Circuit Court of Appeals is growing testy with Obama, giving the Department of Justice “until Thursday to explain whether the Obama administration believes the courts have the right to strike down a federal law.” Via Glenn Beck’s The Blaze:

A federal appeals court has ordered the Justice Department to clarify comments made by the president when he said yesterday that it would be “unprecedented” for the Supreme Court to overturn his signature health care law (“Obamacare”).
“I am confident that this will be upheld because it should be upheld,” President Obama said.
“Ultimately I am confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”
He continued:
And I‘d just remind conservative commentators that for years what we’ve heard is the biggest problem on the bench was judicial activism or a lack of judicial restraint, that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I’m pretty confident that this court will recognize that and not take that step.

It is a good day when activist legislation is struck down. The less legislation on the obese books, the better—unless it is legislation to strike down other overreaching, unconstitutional laws of which we have tens of thousands.

Federalism is forever being “discovered” belatedly and opportunistically by the Demopublicans. Since federalism is a chimera—it no longer exists in any meaningful way—the level of decision-making is immaterial to me. In this context, what matters is the decision to strike down ObamaCare. Who cares which branch of the hydra-headed monster makes it, so long as it is made, and, once made, it holds.

The Powers Of Obama’s ‘Politburo of Proctologists’

Barack Obama, Constitution, Founding Fathers, Healthcare, Individual Rights, Regulation, Socialism

Not even the US Solicitor General Donald Verrilli can muster a spirited defense of ObamaCare. Said Verrilli, almost apologetically, on Tuesday before the Supreme Court: “Maybe they were right, maybe they weren’t, but this is something about which the people of the United States can deliberate and they can vote, and if they think it needs to be changed, they can change it.” [Oh really?]

Our state’s Attorney General Rob McKenna sees this as the most important case of our lifetime on Federal power under the Commerce clause. The Supreme Court was treating it very seriously, as have all the courts so far, in ruling on the individual mandate. The power to order individuals into private contract, says McKenna, is made up. It’s not as if it had been lying around undiscovered.

It’s a shame that McKenna seems to both support and anticipate ‘severability”—an outcome whereby the individual mandate is severed from the rest of the law, which is upheld.

To the fatuous point of the health-care market being unique, and thus requiring special treatment by the state, McKenna counters that uniqueness is not a constitutional principle.

The issue here is not healthcare policy but Federal power, he says, intimating that Obama’s “politburo of proctologists” cannot “create commerce in order to regulate it.” This is a first, claims McKenna.

As was pointed out in “Destroying Healthcare For The Few Uninsured,” the number of uninsured, by choice or not by choice, is grossly exaggerated.

“The key legal thinker in developing the case against the Affordable Care Act’s individual mandate” is Facebook Friend Randy Barnett. Randy is “the originator of the activity/inactivity distinction” being used in the arguments against Obamacare.

Here is Randy’s interview on Ezra Klein’s WaPo’s blog.

Especially pertinent, in the Klein interview, is Randy’s distinction between “the government’s power to tax in order to pay for Medicare, which is a single-payer insurance program that [you’ll] get when over 65,” and the same entity’s constitutional authority to compel the individual to “self-insure on the private market before [he’s] 65.”

RB: “There are several answers, but I’ll limit myself to two. First, there’s the text of the Constitution itself. The text of the Constitution itself gives Congress the power to levy taxes on people and on income. We can’t dispute that. It does not give Congress the power under its commerce power, at least not expressly, to make them do business with private companies.
The second point I would make is that the duty to pay taxes is part of your duty to support the government in return for the protections the government gives you. What the government is claiming here is this power — and this ought to disturb people on the left — to make people do business with private companies when Congress thinks it’s convenient.”

It’s safe to say that even libertarians like Randy who might uphold the elaborate public works sprung from the General Welfare and Interstate Commerce Clauses as constitutional, have to agree that Thomas Jefferson would probably be appalled with it all.

Whither HellCare?

Barack Obama, Constitution, Healthcare, Law, Political Philosophy, Regulation, Socialism

As freedom lovers know, the case pitting the DEPARTMENT OF HEALTH AND HUMAN SERVICES against FLORIDA, ET AL is simply one more stage on the road to socializing the means of health-care production. Americans already labor under, as one wag put it, “a seeming patchwork of indemnity insurance arrangements, managed care, private payment, and charity.”

Increasing interventionism is always accompanied by the use of brute force, the legitimacy of which the nation’s Supreme Politburo Of Proctologists (the SCOTUS) is currently debating.

Not surprisingly, “the four jurists appointed by Democratic presidents — Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan — seemed sympathetic to the government’s defense of the [ObamaCare], at times offering Solicitor General Donald Verrilli helpful answers to their colleagues’ questions,” reports the National Journal’s Margot Sanger-Katz. “Justices Samuel Alito and Antonin Scalia — who had been considered by some Court watchers to be in play — seemed to stand firmly with the challengers.”

Equally predictable: “Chief Justice John Roberts, whose questions suggested a discomfort with the health care law, … also defended the government’s argument at times.”

Both Kennedy and Roberts will probably find a way to make ObamaCare palatable by papering over arguments against it. While they “seemed particularly concerned about the question of whether upholding this law would mean that Congress’s authority to pass regulation would be virtually unbounded, [t]hey repeatedly asked Verrilli to identify a limiting principle that would allow this mandate to go forward without opening the door to requirements to purchase other products.” [NJ]

The gist of the case being argued:

The 26 states challenging the mandate say it is an unprecedented demand, one that regulates economic “inactivity” and forces people into purchasing a product they do not want. If the government can compel the purchase of health insurance, they argue, then nearly any sort of purchase mandate could also be permitted. The administration counters that there’s basically no avoiding the health care market: Everyone needs health care at some time, often with little warning or financial preparation. Health insurance is not a standalone product, but merely a means of regulating the financing of that activity, it says

[NJ]

The elaborate public works sprung from the General Welfare and Interstate Commerce Clauses are unconstitutional. However, despite the fact that there is no warrant in the Constitution for most of what the Federal Frankenstein does, the Proctologists will find a way around what is already a dead-letter document.

Rid Us of Regulation

Constitution, Economy, Labor, Regulation

When BHO or any other politician utters trite promises about creating jobs for the little people, we, their Lilliputian subjects, should be able to pipe-up about the regulatory barriers to entering the workforce erected by the very same people.

• A license to speak to tourists without which you go to jail for 90 days
• A test to “practice” flower-arranging
• $30,000 mandatory outlay for an embalming room, if you want to open a funeral parlor

“How are these laws able to get enacted?” asks RT? “Lobbyists and special interest groups infiltrate politics on the federal and local level. They urge lawmakers to pass regulations that benefit them, and keep the competition out. The result: an America growing increasingly regulated. According to the Institute of Justice, in the 1950’s 1 in 20 occupations required a government permit. Today it’s one in three. And all this red tape is costing taxpayers billions.”

Lewd licensure is not a function of BHO’s administration alone, although he has increased the number of billions transferred from the private economy to the blood-sucking bureaucracy.

I would, however, counter that the culprits here are not the lobbyists, who have not taken an oath to uphold the Constitution and work to benefit not factions, but all folks. Politicians have the power to refuse to enact these laws. However, as always, it seems that, psychologically, it is easier for news agencies and the people to blame corporations, Wall Street and K Street, instead of the bums who capitulate to these special interests.