Archive for the 'congress' Category

Bennett-Burr “Bipartisanship” = Yet Another Federal Power Grab

Posted by on Jan 01 2014 | congress, Constitutional History, Constitutional Law, Economics, federalism, Growth of Government, Health Care, Natelson Rob', obamacare, Op-eds, Rob Natelson, supreme court, Tenth Amendment, U.S. Constitution

When politicians start talking about “bi-partisan cooperation,” smart citizens get nervous. It usually means another transfer of freedom and taxes to the federal government at the expense of individuals, families, localities, and states.

Case in point: a Denver Post op-ed by two U.S. Senators (or their staffs) on their latest “bipartisan” deal. The Senators are Michael Bennett (D.-Colo.) and Richard Burr (R.-N.C.). The op-ed is pure political blather, a haze of almost incomprehensible feel-good rhetoric. But the upshot is this: The two distinguished solons are very proud of themselves for managing yet another transfer of authority from the states to the federal government.

You can read the op-ed here. As you can see, it is filled with mind-deadening phrases refined by pollsters and focus group research: “we have worked with,” “bipartisan,” “ensure the safety,” “stakeholders,” “pragmatism and hard work,” etc., etc.

As for the law itself, it has the kind of title we have come to expect from Congress in recent years: The Drug Quality and Security Act. (Doesn’t that title make you feel good?) Of course, many of these labels have about as much correspondence to the real world as the “Patient Protection and Affordable Care Act.”

The text of the measure is almost impossible for anyone without legal training to understand. (You can see for yourself here.) Essentially, however, it transfers to the federal government areas of drug compounding and distribution traditionally controlled by the states. It imposes new obligations, licenses, and/or paperwork on manufacturers, repackagers, wholesalers, and your local pharmacy. It takes major steps toward federal control of our state pharmacy boards, and restricts state regulatory choices in the areas it covers.

The bill is also about revenue: It authorizes the federal government to collect various new “fees.” (I put the word in quotation marks because those “fees” are really taxes.)

Like the op-ed, the text of the law is filled with mind-numbing, and sometimes deceptive, language. Consider this provision:

Nothing in this section shall be construed to preempt State requirements related to the distribution of prescription drugs if such requirements are not related to product tracing as described in subsection (a) or wholesale distributor and third-party logistics provider licensure as described in subsection (b) applicable under section 503(e) (as amended by the Drug Supply Chain Security Act) or this subchapter (or regulations issued thereunder).

At first, you might think the bill leaves state regulations in effect. But look closer: The provision really is about where federal law does preempt: “requirements . . . related to product tracing . . .. [and] wholesale distributor and third-party logistics provider licensure.” Another passage makes it clear that much state flexibility is gone:

Beginning on the date of enactment of the Drug Supply Chain Security Act, no State or political subdivision of a State may establish or continue any standards, requirements, or regulations with respect to wholesale prescription drug distributor or third-party logistics provider licensure that are inconsistent with, less stringent than, directly related to, or covered by the standards and requirements applicable under section 503(e).

The measure does not set forth its constitutional justification. In other words, it does not cite any of Congress’s enumerated powers as the basis for the authority it claims. Occasional mentions of “commerce” suggest that it relies on the Constitution’s much-abused grant of power to “regulate Commerce . . . among the several States.” In fact, however, the bill sweeps deeply into in-state commerce and into activities that really are not “commerce” at all.

The op-ed touts the bill’s “strong [meaning "intrusive"], uniform” [meaning "centralized"] standards. But the Constitution limited congressional powers precisely to protect us from too many centralized standards. The federalism created by our Constitution is about local control, responsiveness to local preferences, better government, diversity, and the ability of each state to learn from the experience of others. Moreover, as the Supreme Court has pointed out repeatedly, federalism is also about fracturing power to preserve freedom.

Our Founders and generations of Americans have concluded that human freedom and the other benefits of federalism are worth the occasional inconvenience arising from lack of uniformity. This should be particularly true today, when technology has reduced both the benefits of uniformity and the costs of diversity.

“The Drug Quality and Security Act,” however, appears to have been the product of one of those classic deals among politicians and lobbyists. The two Senators assure us that all the “stakeholders” (i.e., groups with lobbyists) were consulted.

But were you?

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How To Deal With a Faithless State Lawmaker: The Hudak Recall

Posted by on Nov 27 2013 | Civil Rights, congress, Constitutional Law, Constitutional Theory, elections, guns, Politics, Second Amendment, TABOR

Advocates of freedom and constitutional rights won a victory today when Senator Evie Hudak resigned to avoid being recalled.

For years, people have asked me, “When a Member of Congress repeatedly violates his or her oath of office, what can we do?” Because Congressmen can’t be impeached (and their colleagues rarely expel them), my answer always has been, “You have no alternative but oppose him or her in the next election.”

But for Colorado elected officials, we do have an alternative: recall. And after long failure to use that tool, the voters finally have deployed it—three times this year.

Recall elections work because in recall elections, unlike general elections, issues aren’t “bundled” together in inseparable packages. You vote on one office, and on the record of one politician. Of course, the political class doesn’t like that: They like it when government is involved in so many matters and election campaigns are so muddled that you don’t really have a clear “yes” or “no” vote: So you just re-elect the person whose name you know—the incumbent.

But a recall, like a voter initiative, offers the electorate a much more focused choice. It’s democracy at its finest.

In some other states, the political class (sometimes through the courts) have gelded the recall process by requiring adequate “cause” for a recall. In those states, whether there is “cause” is decided by (guess who?) the politicians or judges. In light of what has happened this year, look for an effort to limit recall in Colorado, too. If they do try to limit recall, just remember: In a republic, lawmakers are the agents of the people, and the only judges of whether an agent has been faithful are those who hired him.

In the case of Evie Hudak, the signs were that a majority of her district believed she had been faithless: Contrary to her oath of office and contrary to her employers’ instructions (as set forth in the state and federal Constitutions), she had attacked our right to keep and bear arms. Because of this, she deserved to be gone, just as much as if she had attacked our right of free speech or our state constitutional right to vote on tax increases.

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Not raising the debt limit = balancing the budget

Posted by on Oct 16 2013 | congress, Constitutional Law, debt, federal shutdown, Government Largess, Government Largess, Growth of Government, Spending Clause

Not raising the debt limit is simply running a balanced budget.

Yes, that’s right: The President and Congress may have to balance the federal budget in the next few days! Horrors!

Let’s get some clarity here. When the federal government hits the debt limit it does NOT mean that it can’t borrow or that it can’t pay existing debts. It just means it cannot continue to run a deficit. Spending becomes limited by revenue, and existing debt may be replaced by new debt. The government just can’t add MORE debt.

That means the government has to prioritize. The obvious priorities are:

* First, pay principal and interest on existing debts to avoid default. (There is plenty of tax revenue for this.)

* Pay the military and spend what is necessary for defense. (There is plenty of tax revenue for this, also.)

* Pay for other programs authorized by the Constitution. (Ditto)

* If money is left over, pay debts previously incurred for programs not authorized by the Constitution. (There will not be enough for this, so they will have to be closed down and paid off over time.)

This is the basic situation that Washington, D.C., its hangers-on, and the mainstream media think is so terrible.

Granted, suddenly balancing the budget may not be pretty. The states will have to take up some of the services the feds have been running on borrowed money. But they can do it better and more efficiently, anyway. (Colorado already is responding by keeping Rocky Mountain National Park open during the partial federal shutdown.)

Even if it’s not pretty, the history of other indebted nations during the last few decades—including our neighbor Canada—shows that shock treatment may be the best way for a country to get its fiscal health in order.

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Adios, Weiner

Posted by on Sep 11 2013 | congress

This story, showing Anthony Weiner flipping the bird to a reporter after his concession speech in the New York City mayoral primary, adds the coda to the music: Weiner stands revealed for what he basically is: a spoiled brat.

The distressing thing is that someone of his character could have been elected to Congress at all, much less serve 12 years there. He was elected from New York City, but this is not just a New York issue: As a member of Congress Weiner inflicted on all Americans—including those of us in Colorado—his childish floor rants and his immature view of political policy. (Be assured: Weiner’s personal conduct and his “progressive” political drivel are connected.)

Part of the lesson here is that there is something wrong with our congressional election system: An institution designed to elect citizens of outstanding virtue now has more than its share of Weiners. It makes you wonder if we haven’t been a little too accommodating to the “low information” voter, and to voters who haven’t a stake in political questions other than how they can use government to steal stuff from other people.

The other part of the lesson is that Congress is made up of flawed individuals, and should have as little say over the lives of the rest of us as humanly possible.

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After the Election Hangover

Posted by on Nov 13 2012 | congress, Politics, PPC, Presidency

I’m sorry that it has taken me nearly a week to share a few of my thoughts about the election, but I have only been recently released from suicide watch. As a complete aside, the Hemlock Society sadly only assists the terminally ill, not those who desire end-of-life services due to politics. Apparently, you have go to the Republican Party for that.

Anyway, thanks to a fair amount of self-medication via scotch and Little Debbie’s Swiss Rolls, I am able to communicate today. Like you I am baffled over the course of human events in our nation conceived in Liberty.

I know there will be months of second guessing about what went wrong and what should have been done. So here’s my quick take, and keep in mind it might just be the scotch talking.

I believe the elections of 2012 sadly proves the very premise from which we work at the Independence Institute – the right loses because they are all-consumed with the “next election.” The left wins because they are consumed with the next decade. And they have been consumed for decades.

The left wins because they control the narrative. They control the narrative because they invest their resources, their years, and a ton of our money, to build systems, organizations and institutions that tell the stories they want voters in the middle to believe. Capitalism hurts the country. Hydraulic fracturing is an environmental danger. There is a war against women. Blah, blah, blah…

As all of us divorced men know, WE HAVE NEVER made any mistakes in our past decisions. So that of course gives me the authority to say what everyone else did wrong in this election. So here we go. The right’s donors invest too often in personality, not political infrastructure. They invest for the short term.

It is so disheartening to think of the billions of dollars and countless man-hours that were wasted in vien to elect Mitt Romney and take back the senate. Only two states switched away from Obama compared to four years ago, and we lost, not gained, in the senate. Imagine if only that amount were put towards building a permanent infrastructure to leap-frog the Left. Imagine if that amount were spent years ago instead of this year. Imagine what could have been.

I find this somewhat baffling. People on the right understand the importance of investing in and building institutions that will pay dividends in the long term future. As you know I lost my daughter and my son has Down Syndrome. He has needed ten surgeries in his eight years of life. If it weren’t for the long-term thinking donors who gave so much so many years ago to build the Children’s Hospital, I would have lost another child. These donors know the importance of building churches, universities, efforts to end sickness and so much more where the real pay-off might not be seen in their lifetimes.

But in the realm of politics, many on the right can’t see farther than about a year. The money goes to candidates or their support systems. By then it is usually too late. The left has built unions, think tanks, media operations, opposition research groups, voter registration machines, legal harassment firms and so much more.

The sex-appeal and excitement for elections years and personalities drives our side. Winning drives their side.

Until we can better convince investors and activists that the fight for liberty, the fight against the constant allure of socialism’s “guaranteed outcomes,” is a long term, never-ending battle. But it is one we most certainly can win.

We at Independence have worked for nearly three decades on that very premise. We know that ideas have the greatest consequences. Politicians come and go, but the principles of liberty are everlasting. It is our goal to market our ideals far better than the left sells their guaranteed outcomes.

We have created a great start. And this election only serves to tell us we are on the right track. Now we need to do so much more.

The path to fixing Washington is to first fix Colorado. We are more determined and committed to that goal than ever in our 27 years.

Let’s shake off this awful hangover and get to it. Be our partner in this fight.

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After the election: What now?

Posted by on Nov 09 2012 | Commerce Clause, congress, Constitutional Amendments, Constitutional History, Constitutional Law, Growth of Government, Health Care, health control law, obama, obamacare, Presidency, Tenth Amendment, U.S. Constitution, U.S. Constitution

The November 6 election outcome has many friends of the Constitution dispirited. As so often before, they hoped that by defeating federal candidates contemptuous of constitutional limits and replacing them with others, they could help restore our Constitution.

Obviously, that decades-long strategy has failed—spectacularly.

They also have long hoped that by appointing the right people to the U.S. Supreme Court, they could win case decisions restoring constitutional limits. But after 40 years, that campaign has produced only indifferent results. Actually, worse than indifferent: When, through the 2010 Obamacare law, federal politicians overreached further than they ever had before—by imposing a mandate ordering almost everyone in the country to buy a commercial product—the Court didn’t even hold the much-weakened line. Rather, the Court upheld the mandate.

The fundamental fallacy behind the federally-centered strategy lies in assuming federal politicians and federal judges will somehow restore limits on federal power. That is implausible as an abstract proposition. And practical experience over many decades also shows that strategy to be a failure.

There are several reasons for the failure of the federal election strategy. First, for this approach to work, you have to elect a majority—actually a super-majority (at least 60 in the Senate)—of constitutionalists to Congress. You also have to elect a person of similar views to the presidency. And you have to do this so they are all in office at the same time.

Second, constitutionalists face inherent handicaps running for federal office: Most are by nature non-political, and therefore don’t make good or persistent politicians. Their views prevent them from promising farmers more subsidies, seniors more health care, or students more loans. And those views also discourage campaign contributions.

Third, even when constitutionalists do achieve federal office, a critical proportion of them forget or weaken their commitments amid the enticements of Washington, D.C. and the fleshpots of power.

The Founders foresaw this sort of thing. That’s why they inserted in the Constitution’s Article V language allowing the states to respond to federal abuse by amending the document. At the behest of 2/3 of the states, all convene together to propose constitutional amendments, which 3/4 may ratify.

This provision was designed explicitly to enable the states to bypass federal politicians.

Incredibly, however, the convention method of proposing amendments has never been used. This largely explains why our governmental system is so unbalanced today.

Year after year, well-meaning people have rejected the convention approach in the vain hope that federal elections are the answer. In the light of Tuesday’s results, they need to re-assess. This reassessment is now more urgent than ever, because even more than the Constitution is at stake. So also is our national solvency.

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Next step: Repeal the individual mandate because it is unconstitutional

Posted by on Jun 29 2012 | congress, Constitutional History, Equal Protection, Health Care, Individual Mandate, Necessary and Proper, Politics, Popular Constitutionalism, Presidency, Separation of Powers, supreme court, Taxes, Taxing and Spending Clause, Uncategorized

McCulloch v. Maryland had a very good day at the Supreme Court yesterday, with NFIB relying on and applying McCulloch‘s rules for when an enactment violates the Necessary and Proper Clause. What happened after the McCulloch decision also shows the next steps in battle over the individual mandate, as I suggest in an essay this morning for National Review Online.

In refusing to hold the Second Bank of the United States unconstitutional, the McCulloch Court gave Congress broad latitude in Congress’s own evaluation of whether the Bank was “necessary” in a constitutional sense. Relying on and quoting McCulloch, President Andrew Jackson made his own judgment of constitutional necessity when he vetoed the recharter of the Bank in 1832. After a titanic political struggle, the Bank was gone, and a new term created by Jackson, “equal protection,” had become part of what the American People were coming to believe the Constitution was supposed to mean.

President Jackson dealt the Bank a fatal blow by withdrawing federal deposits from the Bank, and moving them to state banks. President Romney can follow Jackson’s lead on his first day in office, instructing the Acting Secretary of Health and Human Services to use the waiver powers in the ACA statute to issue waivers to everyone for the individual mandate. Because the individual mandate is (supposedly) a tax, it can then be repealed through the budget reconciliation process, which cannot be filibustered.

I predict that the individual mandate will never mandate anyone. Yet the mandate will be long remembered as one of the most consequential laws enacted by a Congress. The result of the “bank battle” was that even though a central bank was judicially permissible, central banking was politically toxic for the rest of the century. The “mandate battle” may have the same effect in deterring any future thoughts of congressionally-imposed mandates. (Putting aside the obvious exception for mandates that have a solid basis in the constitutional text, such as jury service.)

The enactment of the mandate has also significantly increased the probability that the next Supreme Court appointments will be made by a President and confirmed by a Senate which denounces the mandate as unconstitutional, and that the new Justices will be the kind who are inclined to vigorously enforce the many strong constitutional limits on congressional over-reaching which are articulated in NFIB v. Sebelius.

I would have preferred that the mandate had met its end yesterday morning, but the fact that the mandate will have to be finished off by the People in November and their elected officials in January may lead to even better long-term results for advocates of a constitutionally limited federal government.

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Is President Obama’s assertion of executive privilege valid?

Posted by on Jun 20 2012 | congress, Executive Privilege, guns, obama, Presidency

As noted by Jonathan Adler, below, President Obama today asserted Executive Privilege for Attorney General Eric Holder’s refusal to comply with a document subpoena from the U.S. House Oversight Committee. The letter is here. The Committee will vote later today on a resolution to hold Holder in contempt of Congress. The Committee Report in support of the contempt resolution is here. A fact sheet on the contempt resolution is here.

Fast & Furious was a program implemented by the Arizona office of the Bureau of Alcohol, Tobacco, Firearms & Explosives, in Sept. 2009 through January 2011. In F&F, BATFE lied to and coerced Arizona gun stores into selling firearms to obvious “straw purchasers”–persons who were illegally buying firearms on behalf of someone who cannot legally buy firearms in the U.S. The “someone else” was Mexican gun traffickers, with most of the guns going to the Sinaloa cartel. Over 2,000 firearms were thus put into criminal hands. In this article for the NRA magazine America’s 1st Freedom,  I provide a timeline of events through October 2011. F&F was a larger and even more destructive reprise of Operation Wide Receiver, which in 2007 put about 500 guns into criminal hands, before BATFE’s management in DC began asking questions that immediately led to Wide Receiver being shut down.

On Feb. 4, 2011, the Department of Justice sent a letter to the House Oversight Committee which falsely claimed that no “gunwalking” (allowing guns to pass into criminal hands, without the guns being kept under constant surveillance) ever took place in Fast & Furious. In December 2011, the Department of Justice admitted that the letter was false, and formally withdrew it. The author of the letter, Ronald Weich, has left DOJ to become Dean of the University of Baltimore Law School.

Whistleblowers from BATFE started coming forward in December 2010, after F&F guns were used in the murder of Border Patrol Agent Brian Terry. There has been extensive retaliation against the whistleblowers.

The particular issues in the contempt vote, and therefore in President Obama’s assertion of Executive Privilege involve:

1. Retaliation against the whistleblowers.

2. Post-Feb. 4 DOJ documents about the false Feb. 4 letter, communications with the White House about F&F after Feb. 4, and other DOJ documents involving the (alleged) continuing cover-up after Feb. 4.

While Fast & Furious was going on, personnel at the National Security Council in the White House received information about it, although the full extent of what they were told is not yet clear. The contempt resolution is based on a document subpoena which was issued in October 2011.

According to Attorney General Holder, the DOJ has 140,000 documents related to Fast & Furious. Fewer than 8,000 have been provided to Congress pursuant to subpoenas. The contempt vote has been narrowed to 1,300 documents. In refusing to comply with the House subpoenas, the DOJ has refused to create a privilege log–which would identify withheld documents, and the legal reason for their being withheld.

So here are my questions for the commenters: Is President’s assertion of executive privilege legally persuasive? Do the citations provided in the executive privilege letter provide an accurate description of current law on executive privilege? Todd Gaziano, of the Heritage Foundation, argues that Executive Privilege is not properly invoked here.

UPDATE: I will be discussing today’s developments on WDTK radio, Detroit, at 4 p.m. Mountain Time. You can listen live here.

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Colorado Senators Prefer Warantless Federal Raids

Posted by on May 27 2012 | congress, criminal justice, Criminal Law, Economic LIberties, overcriminalization, PPC, Thuggery

Reason magazine’s Mike Riggs reports that the U.S. Senate on Thursday voted 78-15 to table an amendment offered by Sen. Rand Paul (R-KY.) to basically demilitarize the Food and Drug Administration. As Riggs describes it Paul’s amendment would have, among other things, “prohibited FDA employees (as well as all other Health and Human Services employees) from carrying weapons and making arrests without warrants.” The amendment would have also added a mens rea, or “guilty mind” requirement for criminal prosecution of laws and regulations the FDA enforces.

Senator Paul’s wholly legitimate beef with overreach and abuse by the FDA comes from armed FDA bureaucrats raiding Amish dairy farms, seizing property and arresting dairy farmers without warrants for selling milk directly from the cow (raw milk).

Both of Colorado’s U.S Senators, Mark Udall and Michael Bennett voted in favor of tabling the amendment, and thus voted in favor of continuing warrantless raids by militarized FDA bureaucrats on farmers earning a living by engaging in peaceful commerce with willing customers.

Update: While the 15 Senators who voted in favor of due process, the Fourth Amendment and reigning in over-zealous, armed federal bureaucrats were all Republicans, a sharp eyed facebook commenter notes that 28 other Republican Senators from across the country joined with Democrats to create a supermajority in the Senate in favor of warrantless raids by the FDA. Putting Bennett and Udall in poor company indeed.

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President Obama versus the Constitution

Posted by on Apr 02 2012 | congress, Constitutional History, Constitutional Law, Constitutional Theory, Counter-Terrorism Policy, Executive Branch, federalism, Growth of Government, Habeas, Health Care, History, Individual Mandate, Jefferson, Judicial Power, obama, Presidency, Public Opinion, supreme court, Uncategorized, War on Terror

President Obama today fired his opening salvo in an unprecedented attack on the Constitution of the United States. Regarding the impending Supreme Court ruling on the health control law, the President said, “Ultimately, I’m 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.”

His factual claims are false. His principle is a direct assault on the Constitution’s creation of an independent judicial branch as a check on constitutional violations by the other two branches.

It is certainly not “unprecedented” for the Court to overturn a law passed by “a democratically elected Congress.” The Court has done so 165 times, as of 2010. (See p. 201 of this Congressional Research Service report.)

President Obama can call legislation enacted by a vote of 219 to 212 a “strong” majority if he wishes. But there is nothing in the Constitution suggesting that a bill which garners the votes of 50.3% of the House of Representatives has such a “strong” majority that it therefore becomes exempt from judicial review. To the contrary, almost all of the 165 federal statutes which the Court has ruled unconstitutional had much larger majorities, most of them attracted votes from both Democrats and Republicans, and some of them were enacted nearly unanimously.

That the Supreme Court would declare as unconstitutional congressional “laws” which illegally violated the Constitution was one of the benefits of the Constitution, which the Constitution’s advocates used to help convince the People to ratify the Constitution. In Federalist 78, Alexander Hamilton explained why unconstitutional actions of Congress are not real laws, and why the judiciary has a duty to say so:

There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid. . . .

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

Because Hamilton was the foremost “big government” advocate of his time, it is especially notable that he was a leading advocate for judicial review of whether any part of the federal government had exceeded its delegated powers.

Well before Marbury v. Madison, the Supreme Court recognized that the People had given the Court the inescapable duty of reviewing the constitutionality of statutes which came before the Court. The Court fulfilled this duty in cases such as Hylton v. U.S. (1796) (Is congressional tax on carriages a direct tax, and therefore illegal because it is not apportioned according to state population?); and Calder v. Bull (1798) (Is Connecticut change in inheritance laws an ex post facto law?). The Court found that the particular statutes in question did not violate the Constitution. (The ex post facto clause applies only to criminal laws; the carriage tax was an indirect tax, not a direct tax.) However, the Court’s authority to judge the statutes’ constitutionality was not disputed.

It would not be unfair to charge President Obama with hypocrisy given his strong complaints when the Court did not strike down the federal ban on partial birth abortions, and given his approval of the Supreme Court decision (Boumediene v. Bush) striking down a congressional statute restricting habeas corpus rights of Guantanamo detainees. (For the record, I think that the federal abortion ban should have been declared void as because it was not within Congress’s interstate commerce power, and that Boumediene was probably decided correctly, although I have not studied the issue sufficiently to have a solid opinion.) The federal ban on abortion, and the federal restriction on habeas corpus were each passed with more than a “strong” 50.3% majority of a democratically elected Congress.

As a politician complaining that a Supreme Court which should strike down laws he doesn’t like, while simultaneously asserting that a judicial decision against a law he does like is improperly “activist,” President Obama is no more hypocritical than many other Presidents. But in asserting that the actions of a “strong” majority of Congress are unreviewable, President Obama’s word are truly unprecedented. Certainly no President in the last 150 years has claimed asserted that a “strong” majority of Congress can exempt a statute from judicial review. President Lincoln’s First Inaugural criticized the Dred Scott majority for using a case between two private litigants for its over-reaching into a major national question, but Lincoln affirmed that the Court can, and should, provide a binding resolution to disputes between the parties before the Court. And in 2012, the government of the United States is one of the parties before the Court. (And the government is before the Court in part because the government filed a petition for a writ of certiorari to ask the Court to use its discretion to decide the case.)

Alone among the Presidents, Thomas Jefferson appears as a strong opponent of judicial review per se. Notably, he did not propose that Congress be the final judge of its own powers, especially when Congress intruded on matters which the Constitution had reserved to the States. Rather, Jefferson argued that in such a dispute the matter should be resolved by a Convention of the States, and the States would be make the final decision. Given that 28 States have already appeared as parties in court arguing that the individual mandate is unconstitutional, we can make a good guess about what a Convention would decide about the constitutionality of the health control law.

President Obama, however, wants Obamacare to be reviewable by no-one: not by the Supreme Court, not by the States.  You can find professors and partisans who have argued for such lawlessness, but for a President to do so is unprecedented.

The People gave Congress the enumerated power “To regulate Commerce . . . among the several States.” According to the Obama administration, this delegation of power also includes the power to compel commerce. Opponents contend that the power to regulate commerce does not include the far greater power to compel commerce, and that the individual mandate is therefore an ultra vires act by a deputy (Congress) in violation of the grant of power from the principal (the People). Seventy-two percent of the public, including a majority of Democrats, agrees that the mandate is unconstitutional. Few acts of Congress have ever had such sustained opposition of a supermajority of the American public.

President Obama today has considerably raised the stakes in Sebelius v. Florida. At issue now is not just the issue of whether Congress can commandeer the People and compel them to purchase the products of a particular oligopoly. At issue is whether the Court will bow to a President who denies they very legitimacy of judicial review of congressional statutes–or at least those that statutes which garnered the “strong” majority of 219 out of 435 Representatives.

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