ObamaCare and the Constitutional Road Not Taken
The Eleventh Circuit majority opinion (nicely summarized by Dan Miller) is noteworthy not only as the most thorough judicial discussion to date — 207 pages — but as an opinion written jointly by Chief Judge Joel F. Dubina (appointed by the first President Bush) and Judge Frank M. Hull (appointed by President Clinton). As a single opinion, co-authored by two experienced judges, appointed by Republican and Democratic presidents, it has considerable persuasive force.
The federal district courts have divided on the constitutionality of ObamaCare under the Commerce Clause; the courts of appeal have now split 1-1 (we are awaiting the decision of the Fourth Circuit); and the Supreme Court will have to provide the definitive answer. But with respect to one argument — the attempt to uphold the ObamaCare mandate as a “tax” under the Tax and Spending Clause of the Constitution — the verdict is pretty clear: the Eleventh Circuit became the seventh straight court in which the government failed to convince a single judge.
A “tax” is intended to raise revenue, and a “tax penalty” is intended to enforce a tax provision. The ObamaCare penalty punishes a failure to purchase insurance, not a revenue-related provision of the Internal Revenue Code. Moreover, the sponsors of ObamaCare, from the president on down, repeatedly declared the penalty was not a tax. While we have yet to hear from the Fourth Circuit, one expert declares that “the tax argument has essentially no chance of actual success in the [Supreme] Court.”
It is nevertheless worth reviewing the relationship of ObamaCare to taxes — not because the government’s tax argument merits further consideration, but because it highlights the constitutional road not taken, and thus sheds light on the path that was taken to avoid it.
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ObamaCare essentially sought to extend Medicare to the entire nation, but Democrats found it impossible to do so with taxes. The necessary taxes would have been a political non-starter. Buried in the ObamaCare legislation was an increased “Medicare Contribution” by top bracket taxpayers — which was then diverted from the Medicare Trust Fund to help fund ObamaCare rather than Medicare — but Obamacare was otherwise structured as a reform of the insurance industry under the Commerce Clause, not as a use of the taxing authority of Congress.
Since 1944, when the Supreme Court held insurance is “commerce,” Congress has had the authority to regulate insurance companies. But it goes beyond regulation to design a new insurance product and mandate that everyone buy it. In 1994, the CBO noted that an individual mandate “would be an unprecedented form of federal action,” because the government “has never required people to buy any good or service as a condition of lawful residence in the United States.” The Eleventh Circuit concurred that the individual mandate is “unprecedented.”
The case commonly thought to mark the high water of Commerce Clause power is Wickard v. Filburn, 317 U.S. 111 (1942), in which the Supreme Court upheld wheat production quotas imposed even on a small farmer producing wheat for use on his own farm. Filburn argued his activities were “local” and any effects on interstate commerce were “indirect.” The Court held the indirect effects of local activities could, in the aggregate, have a substantial economic effect on interstate commerce and thus could be regulated under the Commerce Clause. In Gonzales v. Raich, 545 U.S. 1 (2005), the Court relied on Wickard in upholding federal regulation of homegrown medical marijuana, since it might in the aggregate affect the interstate market for it.
ObamaCare would be analogous if Congress had directed Filburn to grow wheat, and everyone to buy wheat products. But it is one thing to regulate the activities of a person engaged in farming (or marijuana production); it is another to make everyone start farming or buy farm products.
Last week President Obama told a town hall that the Eleventh Circuit had “taken sort of the conservative line that this restricts freedom and Congress doesn’t have the authority to do it,” but that if the Supreme Court “follows existing precedent, existing law, it should be upheld without a problem.” But a former professor of constitutional law should have known the constitutionality of ObamaCare cannot be resolved simply by citing Wickard v. Filburn and Gonzales v. Raich.
Congress could have enacted ObamaCare in a constitutional fashion by using its taxing power — raising employment or income taxes to extend Medicare to everyone. But that was an insuperable political problem, so Congress tried an end run — making everyone buy a government-designed product from private companies assured of government-mandated customers. It is precisely the unprecedented situation the CBO noted in 1994. ObamaCare is — as Vice President Biden might have put it — a “big constitutional deal.”
It is not grounds for recognizing a new federal power that Congress finds it politically difficult to use the power it has — particularly since, as the Eleventh Circuit noted, the individual mandate has no inherent limiting principle. It could be used not only for ObamaCare but Obamacars, or any other product or service the government decides to mandate. Nor is ObamaCare’s beneficent purpose a reason to endorse the power, but rather to be wary of it — as Louis D. Brandeis memorably warned in his dissent in Olmstead v. United States, 277 U.S. 479 (1928):
Experience should teach us to be most on our guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.
>>a former professor of constitutional law
Tongue in cheek, I trust.
If this holds, expect to see a mandate to require a waiver to buy a car not made by Government Motors.
The government today has an array of liberty stealing inititatives underway under various legal or constitutional theories. Obamacare however due to it’s scope and audacity will likely bury us. Keep in mind that even if the Individual Mandate is ruled unconstitutional these so called judges will not kill the entire bill. Then we need to go in and rip the guts of this legislation out piece by piece. Meanwhile like the beast in Alien, Obamacare is securing itself to every orifice of the body politic, hiring thousands of people, setting up boards, establishing exchanges, controlling and manipulating and otherwise screwing us to the wall. To hope that the new president will have the stomach to kill the remnants of this bill is perhaps asking too much of our government short of a revolution at this stage.
Wrong – this Bill was specifically written so you couldn’t pick it apart (they thought they were so clever!). If one part fails the whole thing fails.
Judges differ on interpretation of laws that compel, via the fist of enforcement agencies – citizens who abide by law.
But, as the Constitution is bedrock – isn’t it? – of all US Law, how is it that laws are enacted that are not constitutional. The Legislature presumably complies with the Constitution. We must assume – mustn’t we? – that Legislators do not, in good faith, enact laws contrary to constitutional restraints.
Are assumptions of good faith for the Legislature in the case of “Obamacare” justified? We have been informed that “Obamacare” is not only thousands of pages long – many times longer than the Declaration of Independence and Constitution with Bill of Rights with its protections in law against government encroachment on the Rights – on which the USA is founded. That it contains items that go far beyond health-care provisions and that despite their not having read it the legislators enacted it as law. Are we to assume – given the style of enactment – as a challenge/throwing down the gauntlet to Courts to declare on it – and ALL its provisions? OR a challenge to Congresss to repeal, taking valuable time and energy better spent on crucial issues presenting to the USA and in the purview of Congress and Court?
The progenitor and champion of this bill, BH Obama, reputed “Constitutional Scholar” has publicly stated his opinion that the Constitution of the USA is “defective”. Can we suppose he believes himself therefore to “rule” by fiat? As in “dieu et mon droit”?
How to interpret as good faith this bludgeoning “Obamacare” into law by Congressmen/women and Senators? Their interpretation of and respect for, or fidelity to the oath they take, man and woman,to Uphold and Defend the US Constitution. The oath as signature to their contract with the American People.
What are the usual impositions in USA for failing to honour terms of contract?
“Uphold and Defend the US Constitution…”
I would just like to say:
“Are you serious?! Are you serious?!”
Okay the Supreme Court shoots down Obamacare, then what?
By hook, crook, regulations, taxes or whatever Obama’s government has already severely damaged or taken over the American automotive industry, housing industry, our banking systems, student school loans, power and utilities production, the Justice Department, the Environmental Protection Agency, medical research and development, farming, the Defense Department, the institution of marriage, the National Aeronautics and Space Administration, immigration control, police departments, court systems, judges, Wall Street and manufacturing for starters.
Now concerning Obamacare, it is almost as if the nation’s future depends on a single decision about one crummy thing the Obama government has done; when there are literally tens of thousands of equally harmful or worse messes in progress.
God forbid whatever thinking out there that believes for one second that the Supreme Court’s Obamacare decision will be a “cure all” for what ails our country.
The point is that the destructive power brought about because of our national deterioration since the mid 1950s is accumulative. Sooner than later one little huff or puff (Obamacare / whatever) will bring the walls tumbling down.
As this article points out, “The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”
Put another way, the worst kind of help is most often well intentioned dumb help. At least 55+ million dummies wandered into the voting booths of America last General Election Day.
Rather than fretting about what the Supreme Court will do, my biggest concern is what is coming next from our citizenry?
No.
Voters didn’t vote for Obama because they were stupid or because they had morphed into liberals all of a sudden.
They voted for Obama because Bush screwed up and his approval ratings had tanked as a result.
In the last 140 years, not once has an unpopular POTUS been succeeded to the White House by a candidate from his own party. Every time the voters soured on the incumbent POTUS, they punished his party by voting against the next presidential candidate from that party.
Going into his first election Bush, like his father made no secret about the fact that he was open borders pro-business and sympathized with illegals Hispanics to the degree that that further the business agenda. In addition, George Bush clearly laid out his beliefs when it came to the human factors involved with the Hispanics.
That said, I like many others sort of abandoned or forgot who / what George Bush was as a result of his superb leadership immediately following the September 11th, 2001 terrorist attacks. With that as the example or pattern Bush’s approval rating began to plummet as a result of who, what the people had imagined him to be, not what he was and always will be. In short, he was faulted because of the shortcomings of our own expectations.
When it comes to Obama the known facts prior to his election could not be any clearer. By his own admittance and literally tons of available facts and information Obama is a man that was raised to hate America, Caucasians and Jews. All of his friends and mentors, even his wife openly shared the same beliefs and destructive intentions.
Other than these things Obama had zero accomplishments before his election. Unless an individual supported the same things that Obama stood for, what possible explanation can there be that explains his election?
Hence, I stand by what I said in that those who believed Obama’s rhetoric were the worst kind of help this nation needed because they were well intentioned dummies.
“Unless an individual supported the same things that Obama stood for, what possible explanation can there be that explains his election?”
A thoroughly corrupt media.
The media is also why, despite Obama’s performance and current poll numbers, he may be re-elected. They have proven they will lie, cover up, and spin for Obama, while actively participating in the “politics of personal destruction” of Obama’s political opponents.
Then we are right back to square one Henry, “The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”
It is why Algebra is so important to learn early in life. It teaches us to think, logic and reason.
Do they still teach Algebra in the schools? Last time I walked the halls of a school (Election Day) the walls were adorned with poster after poster about how to feel good about yourself, why people are different and it’s okay to have two dads, no moms and do weird things to your body. This was a middle school. They used to be called junior high schools – 7th grade Algebra – 8th grade Geometry – 9th grade Trigonometry.
The corruption and power of the media is common knowledge; especially television as it matured in the mid 1950s. Yet people choose to believe any and everything they put out. How much more harm, destruction, damage and in your face insults could any one person do to an entire race of people than Obama has inflicted upon his own race and (now) Hispanics? Plain old everyday common horse sense would tell something with the intelligence of a house plant that what Obama and the media are doing is bad.
Yet they plow on.
Maybe he won’t do such a bad job.
Maybe they are wrong about the man.
Maybe if I stick my finger in there it won’t burn.
Maybe I ain’t dumb..
To sum it up for another day, I have a dream.
I am convinced that there is a silver bullet out there with my name on it.
My dream come true is to make damn sure it doesn’t get me!
Bad Medicine: who learns Algebra in a single year? Yes, I learned Trigonometry in 9th grade, but that was because I started learning Algebra in 6th. Most of my Trigonometry classmates were in 10th or 11th grade, with a few seniors mixed in.
At the moment the individual mandate becomes invalidated, the private health insurance sector of the economy will pivot 180 degrees. They will now have to fight to stay in existence. As the individual will not have to purchase the mandated product, the individual product will come of age.
I thought that the individual product long ago came of age; that it’s existence is what Obamacare now threatens.
If the Supreme Court invalidates the Obamacare individual mandate the health insurance sector will be forced to continue doing business against the same oppressive forces it has for years.
Government interference. Government taxes. Government regulations. Government misinformation disseminated with massive media compliance. Government dependence that the “outcome based” educated citizens in our society don’t understand what’s going on or if they do they don’t give a damn.
In other words they are ________er than dirt!
If Obamacare is not defeated by the Supreme Court, then that will be the end of Federalism. The Federal Government not can do anything it wants to you, it can also force you to buy anything as well. If this law stands, the next thing will be that each of us will have to buy a Chevy Volt, whether we can afford it or not, each of us will have to agree to allow abortion on demand and have everybody pay for it, each of us will be forced to weigh a specific amount and eat only certain foods, or suffer the financial consequences for it through the IRS, and each of us will be allowed to live only as long as the Federal Government thinks its cost-effective enough for us to live. So as soon as we don’t carry our own weight financially, we are sent off somewhere to die.
Sounds like a really “good” world we are setting up for our kids, isn’t it?
Scary times we’re living in, Liberty.
WE ARE NOT SUBJECTS!
WE ARE NOT SUBJECTS!
WE ARE NOT SUBJECTS!
Do NOT surrender, America!
Do not SUBMIT!
Do not SUBMIT!
Never SUBMIT!
The whole foundation of our country and our constitution is predicated on KEEPING and UPHOLDING our individual freedom.
We lose that? We lose America.
Period.
We currently have an illegal president that conducts illegal acts at every turn, backed by a corrupt congress that lets him do it. They want power as kings and have appointed a judicial branch that will let them. The balance of power is gone so to expect anything other than a ratification of the healthcare mandate by the supremes is insanity.
I still find it appalling that the society has been placed in a position of splitting these weird hairs over tax v. not tax, commerce clause power v. not commerce clause power.
Appalled that Congressional process is so weak that the thing got jammed through through “reconciliation” (needing only a simple majority) and appalled at all the backroom deals that happened to get sufficient votes, including but not limited to special payments to certain states and Congressman Bart Stupak (D-MI) voting for the bill after assurances it wouldn’t fund abortion.
We now know that those assurances are worse than the toilet paper they were written on.
You don’t have to be a Supreme Court judge, an Appellate judge or even a District court judge to know that requiring the citizen to purchase a product or service is antithetical to the spirit and intent of the United States Constitution, to know that such a requirement amounts to a katie-bar-the-door level of power and control of the federal government over the citizen, the one anti-democratic idea that the framers of the Constitution were hellbent on preventing.
Finally….someone who gets it. Thanks tanstaafl. You are spot on.
Richman: “Congress could have enacted ObamaCare in a constitutional fashion by using its taxing power — raising employment or income taxes to extend Medicare to everyone.”
That’s a single-payer system. I hope Richman was not advocating this–though I agree that it’s no less constitutional than any other Federal social program.
Even under the Congress’ taxing power Obamacare would still be unconstitutional because the taxes collected are supposed to be used for constitutionally enumerated powers. The provision of medical insurance or medical care, the passage of Medicare and Medicaid notwithstanding, is not an enumerated power. Can we please stop bastardizing the Constitution.
The government’s lawyers initially argued in the Florida case (the one joined by 26 or 28 states and the major portion of which was just upheld by the 11th circuit) that Obamacare fell under federal taxing authority.
Judge Vinson pointed out that throughout the wheeling and dealing to get the bill passed, the government’s consistent argument had been that the purchase mandate was not a tax and that, therefore, they had to defend Obamacare under the Commerce Clause, that one single (and simple) line in the Constitution that gave Congress power to make commerce/trade “regular” between the states.
Congressional power under that simple sentence has been relentlessly expanded over the decades, speaking of bastardization.
We hear talk about various constitutional amendments – balanced budget, doma, etc – but what I’d really like to see is an amendment that clarifies and limits the commerce clause.
Nor is ObamaCare’s beneficent purpose a reason to endorse the power…
As we speak, HHS Sec’y Kathleen Sebelius has legions of underlings writing entire volumes setting out guidelines for each arcane and convoluted word in the 2000+ page bill.
One of Obama’s favorite eugenicists, Dr. Zeke Emanuel (Rahm’s brother) has gone to elaborate lengths to formulate his “Quality Adjusted Life Years” scheme, where your doctor will have to call up some Washington bureaucrat (one of Kathleen’s underlings, no doubt) to find out what kind of “care” he is allowed to give you as a function of your age and stage in life.
I can hardly wait for all this beneficence.
Experience should teach us to be most on our guard to protect liberty when the Government’s purposes are beneficent.
“The urge to save humanity is always a false front for the urge to rule it.”
~ Mencken
The legitimacy of the Federal government sources from our Constitution. Our Constitution defines its form, methods and parameters of it’s power. By claiming power beyond those parameters, end-running around those methods, and bloating itself to a form unrecognizable from the one set out in our Constitution, the Federal Government de-legitimizes itself.
As jojo at #4 points out, Our Constitution is a contract between citizen and state. If one party does not abide by the terms of that contract, the contract becomes void. The Federal Government has been steadily de-legitimizing itself for nearly 100 years now. When the point is reached that the Government has no legitimacy in the minds of the citizens, the only power the Government will have left is the power of the tyrant. Bullying and extorting will be it’s only means of commanding cooperation from the populace.
When that comes to pass, we will no longer be citizens, but subjects.
The individual mandate set out in Obamacare is a declaration that the Federal Government views us as subjects.
At what point is the citizen justified in refusing to become a subject and cease to participate in this contract? At what point will we be justified in ceasing to pay taxes and obeying government mandates?
Given the ample lessons of history, it is mind-boggling to me that Government officials would choose this dead-end road. The true wealth of this country springs from its citizenry and the liberty they enjoy. The Federal Governments actions since the dawn of the progressive movement amount to the dumbest, most pointless, wasteful squander in the history of the world.
When it comes to pass? Just ask Martha Stewart and Conrad Black about government intimidation. The process is the punishment.
There are many constitutional roads not taken of late.
That is the salient point.
These are paths to destruction, not by chance, or foolishness, or ignorance, or even ideology, but by design.
Pure and simple.
The acceleration of speeding down these roads of perdition at breakneck speed in order to fly by America before she has the opportunity to put out road spikes to stop this tyranny upon us is also part and parcel of the design to turn a Constitutional Republic into a dictatorship.
The courts ought to be very very careful, mindful in the foremost on ruling within the purview of the Rule of Law. The time of Judicial activism that acts as a proxy of the ruling elite is a time that is over, it is also another road that leads to the gates of revolution of armed redress. I do not say this lightly. For if the high courts are not a bulwark against tyrants and their tyranny, but are another instrument of that tyranny, there is nothing remaining then of the checks and balances against gross accumulation of power within a Republic. there is quite simply nothing standing in the way of this power and madness of the political ruling class. They can do anything they desire, which is almost the reality now. Not much stands in their way.
except Amendments number 1 and 2. Is it that we the people have to resort to the extreme to secure and retain our Liberty and Self determination?
Are there not any who have sworn an Oath to God and Country to protect and defend at all costs that which matters most?
It is time to stop this madness, this lust for power, the unmitigated hubris of disregard by our elected and unelected leaders for those they deem unworthy of their Liberty and freedom.
I ask with all my being: Just who the hell do you people think you are?
Gods?
The acceleration of speeding down these roads of perdition at breakneck speed in order to fly by America before she has the opportunity to put out road spikes to stop this tyranny upon us is also part and parcel of the design to turn a Constitutional Republic into a dictatorship.
Pretty much the goal.
Just who the hell do you people think you are? Gods?
Elitists. Individuals who have accomplished nothing practical or substantive in their own lives but have learned in the Academy of their own superiority to you and me.
And you’re right, the courts, in particular the SCOTUS, are the last bastion of defense against the assault.
(over and out)
The entire federal government has become an entity abhorrent to the rule of law as it applies to them. That is only for we the people.
Rule of men for the government
Rule of what ever law suits the ends for us little people
To be blunt the government, America, you and me, is ruled by a collection of crooks, felons, sociopaths, sycophants, con artists, demi-gods, and an illegal alien deceitful muslim pathological golfing liar in chief in the white house who all wipe their arses with the Constitution every day.
Hows that working out for us huh?
I was afraid when I posted at #12 that I would be viewed as an extremist, that what I had to say would be seen as radical. Before 2005 or so, I never would have dreamed of having such thoughts, much less writing and publicly posting them.
I am very sad to see that many others have the same thoughts and feelings.
If the supreme court (in 1944) stated that healthcare was commerce then why in the world was congress able to legislate away their (insureance companies) ability to engage in interstate commerce? If health insurance companies had been allowed to compete across stae lines (like their auto counterparts) then prices would probably not have skyrocketed the way they did. Some states only have the “choice” of one carrier. Seems like such a simple fix, doesn’t it?
I have yet had anyone explain to me how any of this is regulation of interstate commerce when I’m not allowed to buy health insurance across state lines. Somebody please splains that to me Lucy!
The Constitution _restricts_ government power; An administration
which tries to defend a law using the argument that there are no
restrictions on its lawmaking power invalidates both the law and
the administration.
As to the protections built into the Constitution; Beyond the Big Three
of separation of powers, and the Bill of Rights, reread the oath taken
by commissioned officers in the US military.
http://en.wikipedia.org/wiki/United_States_Uniformed_Services_Oath_of_Office
Government by nature isn’t evil, but it is certainly evil when it’s power is confiscated and distorted by politicians to forward their own ideology and ambitions.
To be perfectly blunt, in spite of all the brilliant and lucid points made by commenters her, I’m utterly stunned that this issue has even come this far. It should never have been created by our government nor should it ever be an issue to be processed through the circuit courts. I am both stunned and mortified that it’s become an issue over an individual being forced to purchase healthcare.
I am in an employer-based healthcare plan and, I can easily smell that my employer will use this as a bargaining chip in the next round of contract negotiations. They will not want to pay for healthcare and will cite this monstrosity of a law to their favor and if it will come to it, I will not be purchasing healthcare if my union elects to opt out. Therefore I will go to jail because I will not pay the fine, either.
Is this a “natural evolution” of it or is it something else? I think it is the latter. But once again I also cite the fact that the people matriculating through the population have not the skills to administrate. Those in the population bell curve just ten years ahead of me are inept. They like to think they are quite talented but they are not. They are incapable in spite of their list of degrees and “accomplishments”. For they are nothing but members of the “Mutual Admiration Society” and their abilities list in the voluminous caverns of “none” while their accomplishments are nothing but a long list of buzz words that may sound lofty and important but are no more significant than that of this president of the United States.
In short, we’re all fooked.
You will be in the cell next to me, if they manage to take me alive.
If SCOTUS votes to uphold the individual mandate on Obama-Care, they are effectively voting to bankrupt the economy. Would they shoot themselves or are they that insular?
Dear President:
Small business owner here. Hey, I’m still waiting for the bill that requires every American to either buy the products and services my company provides or pay a penalty.
Could you make that the first order of business (no pun intended) when you get back from Martha’s Vineyard?
Thanks. What’s that slogan you like? Oh, yeah, WTF!
Sincerely,
Hopen’ for Change
PS: After reading all 8 million words in the tax code, I’ve been able to roughly estimate what your cut of the profits will be. Just curious: What’s my cut of the penalties you collect?
PPS: With a little spin, you could call this a Jobs Plan. Hope that helps.
PPPS: Just thinking out loud here, but if you don’t believe this would pass Congress, you could do it by Executive Order.
WE ARE NOT SUBJECTS!
WE ARE NOT SUBJECTS!
WE ARE NOT SUBJECTS!
Do NOT surrender, America!
Do not SUBMIT!
Do not SUBMIT!
Never SUBMIT!
The whole foundation of our country and our constitution is predicated on KEEPING and UPHOLDING our individual freedom.
We lose that? We lose America.
Period.
Stay strong, PATRIOTS.
Thomas Jefferson had clarified the Founding States’ intentions for the Commerce Clause. Using terms like “does not extend” and “exclusively,” Jefferson had explained that Congress has no business sticking its big nose into intrastate commerce.
“For the power given to Congress by the Constitution does not extend to the internal regulation of the commerce of a State, (that is to say of the commerce between citizen and citizen,) which remain exclusively with its own legislature; but to its external commerce only, that is to say, its commerce with another State, or with foreign nations, or with the Indian tribes.” –Thomas Jefferson, Jefferson’s Opinion on the Constitutionality of a National Bank : 1791. http://avalon.law.yale.edu/18th_century/bank-tj.asp
Regarding the USSC’s “clarification” of the Commerce Clause in Wickard v. Filburn, please consider the following. Before Socialist FDR had a chance to nominate an activist justice majority to the USSC, Constitution-respecting justices had clarified the limits of Congress’s Commerce Clause powers with respect to agricultural production in United States v. Butler, noting in terms of the 10th Amendment that Congress has no constitutional authority to regulate agriculture.
“From the accepted doctrine that the United States is a government of delegated powers, it follows that those not expressly granted, or reasonably to be implied from such as are conferred, are reserved to the states, or to the people. To forestall any suggestion to the contrary, the Tenth Amendment was adopted. The same proposition, otherwise stated, is that powers not granted are prohibited. None to regulate agricultural production is given, and therefore legislation by Congress for that purpose is forbidden.” –United States v. Butler, 1936. http://supreme.justia.com/us/297/1/case.html
The problem with the USSC’s decision in Wickard v. Filburn is this. FDR’s puppet justices necessarily had to sweep both Jefferson’s clarification of the Commerce Clause and the case precedent concerning Congress and agriculture previously established in Butler under the carpet in order to justify arguing broad Commerce Clause powers for Congress. In other words, FDR’s justices had to twist the Founder’s intensions for the Commerce Clause as reflected by Jefferson’s words in order to allow corrupt Congress to overstep its Section 8 limits.
Whereas previous justices weren’t afraid to mention the 10th Amendment in Butler, contrast the Court’s clarificaton of the limits of Congress’s Commerce Clause powers with respect to the 10th Amendment in Butler with how FDR’s outcome-driven justices had watered down the 10th Amendment in Wickard.
“In discussion and decision, the point of reference, instead of being what was “necessary and proper” to the exercise by Congress of its granted power, was often some concept of sovereignty thought to be implicit in the status of statehood. Certain activities such as “production,” “manufacturing,” and “mining” were occasionally said to be within the province of state governments and beyond the power of Congress under the Commerce Clause.”–Wickard v. Filburn, 1942. http://supreme.justia.com/us/317/111/case.html
FDR’s pro-big federal government justices had essentially reduced 10th Amendment protected state powers to a wives’ tale in Wickard imo.
As a retired tax attorney I would encourage the Justice Department to continue to argue that the individual mandate is actually a tax. There is no such thing as a tax on inaction or inactivity. For instance the government can tax smokers by taxing tobacco. Smokers have to affirmatively purchase tobacco in order to be taxed.
The opposite is not true. The governement can not tax people who don’t buy tobacco. If the government tries to make such an arguement they will look even stupider. I say let them go for it.
will no one rid me of this meddlesome marxist?