Free Republic
Browse · Search
News/Activism
Topics · Post Article

Skip to comments.

Why ObamaCare's Individual Mandate is Unconstitutional (Jones v. United States, 529 U.S. 848)
3/27/2010 | Brices Crossroads

Posted on 03/27/2010 1:26:04 PM PDT by Brices Crossroads

I. BACKGROUND--COMMERCE CLAUSE JURISPRUDENCE

There seems to be a wide diversity of opinions as to whether the individual Mandate in the recently enacted health care legislation is constitutional or not. I have seen the usual Commerce Clause precedents principally the 1995 Lopez case(which invalidated a portion of the Gun Free Schools Zone Act) and Morrison, in 2000 (which struck down portions of the Violence Against Women Act) cited for the proposition that it is not constitutional. On the other hand, I have seen Commerce clause precedents such as the 2005 case of Gonzales v. Raich (which held that the global, nationwide ban on marijuana was constitutional even as to marijuana grown for personal, medical use) and the 1942 case of Wickard v. Filburn (which sustained on Commerce Clause grounds a New Deal statute limiting the amount of wheat a farmer could grow even for his own personal use).

The Commerce Clause is very short. It grants Congress the power:

"To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes"

II. MY VIEW OF THE COMMERCE CLAUSE AND THE RELEVANT CASES

Let me start with my own view, which is that the Commerce Clause has never been, and can never licitly be, construed to permit Congress to REQUIRE activity, economic or otherwise. It may regulate Interstate commerce which is already underway. That is plain from the text of the the interstate commerce clause. The jurisprudence cited above has not, however, been a model of clarity, and none of the cases cited above is closely analogous to the individual mandate in ObamaCare. Morrison and Lopez, which struck down (portions of) the Violence Against Women Act and the Gun Free School Zone Act are qualitatively different factually than the health care mandate. Gonzales and Wickard involved the ACTIVE cultivation of fungible crops (which, despite the plaintiff's protests that they were for personal consumption) could easily have been introduced into interstate commerce, and virtually everyone would concede that interstate agricultural commerce is within the reach of Congress' Commerce power. Again, however, although Gonzales and Wickard appear more analogous at first blush, unlike the Health care mandate, Congress was regulating ACTIVITY in an area (AGRICULTURE) that has traditionally been treated since the time of the framers as subject to Congressional regulation, it being impossible in these two contexts to distinguish between private and public crops.

III. JONES v. UNITED STATES--REGULATION OF COMMERCIAL ENTITIES VERSUS PURELY PRIVATE ONES

This brings me to a much more analogous, and at least from a factual standpoint, persuasive case, which has not(to my knowledge) been cited and which supports the unconstitutionality of the individual mandate here. Moreover, unlike the recent decisions (Lopez, Morrison and Gonzales), which were all 5-4 decisions, this case was a 9-0 decision, authored by Justice Ginsburg in 2000. It is Jones v. United States, 529 U.S. 848 (2000), linked in the first comment below this post.

[Let me begin with one important qualifier. The Court in Jones found that the statute as written did not invoke the full scope of Congress' commerce clause power, which Obamamcare clearly attempts to do, so it was decided on statutory rather than constitutional grounds. I think an analysis of the facts makes this distinction much less significant.]

The facts and summary of the case are as follows:

Facts of the Case:

In 1998, Dewey Jones, of Detroit, tossed a Molotov cocktail into the home of his cousin, James Walker, Jr., in Fort Wayne, Indiana. Walker's home was severely damaged. Subsequently, Jones was convicted in U.S. District Court of violating 18 U.S.C. section 844(i), which makes it a federal crime to "maliciously damage or destroy, ...by means of fire or an explosive, any building... used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce." The Court of Appeals affirmed Jones's conviction. Before both courts, Jones unsuccessfully argued that section 844(i), when applied to the arson of a private residence, exceeds the authority vested in Congress under the Commerce Clause of the Constitution.

Question:

Does the federal arson statute apply to the arson of a private residence?

Conclusion:

No. In a unanimous opinion, delivered by Justice Ruth Bader Ginsburg, the Court held that an owner-occupied residence not used for any commercial purpose does not qualify as property "used in" commerce or commerce-affecting activity, such that arson of such a dwelling is not subject to federal prosecution under section 844(i). Justice Ruth Bader Ginsburg wrote for the Court that "[w]ere we to adopt the Government's expansive interpretation of section 844(i), hardly a building in the land would fall outside the federal statute's domain."

The Court reversed the conviction, focusing on the phrase in 844(i) "used in", and did not squarely reach the issue whether, had Congress not used the qualifying phrase "used in" but had merely criminalized the destruction of "any building...affecting interstate commerce" words that, when unqualified, signal Congress’ intent to invoke its full authority under the Commerce Clause, the same result would have obtained.

The interesting part of the opinion from the standpoint of the individual mandate is twofold: a) the parts of the opinion that focuses repeatedly on "activity"(as opposed to inactivity) affecting interstate commerce; and b)the broad sweep that such a mandate would have if it applied to every person (as the Government in Jones sought to apply it to every private residence) in the United States. The Court observed:

"Were we to adopt the Government’s expansive interpretation of §844(i), hardly a building in the land would fall outside the federal statute’s domain. Practically every building in our cities, towns, and rural areas is constructed with supplies that have moved in interstate commerce, served by utilities that have an interstate connection, financed or insured by enterprises that do business across state lines, or bears some other trace of interstate commerce."

The Court continued to use the term "used in" throughout the opinion to avoid, as it said, a full blown Lopez-style constitutional analysis. But it is very difficult to see how the absence of the phrase "used in" would have altered the result in Jones. Its presence merely enabled the Court to decide the case on statutory, rather than constitutional, grounds.

IV. OBAMACARE'S MANDATE--REDEFINING COMMERCE AND ACTIVITY

Congress in the PPACA(ObamaCare) makes the following findings, with regard to the individual mandate:

The individual responsibility requirement provided for in this section (in this subsection referred to as the ‘‘requirement’’) is commercial and economic in nature, and substantially affects interstate commerce, as a result of the effects described in paragraph

(2) EFFECTS ON THE NATIONAL ECONOMY AND INTERSTATE COMMERCE.—The effects described in this paragraph are the following: (A) The requirement regulates activity that is commercial and economic in nature: economic and financial decisions about how and when health care is paid for, and when health insurance is purchased.

The Mandate itself provides:

"An applicable individual shall for each month beginning after 2013 ensure that the individual,

and any dependent of the individual who is an applicable individual, is covered under minimum essential coverage for such month."

Congress is authorized to regulate commerce. Commerce is an activity, defined as "the buying and selling of goods, especially on a large scale, as between cities or nations." In ObamaCare, Congress makes a finding that the mandate to purchase private insurance "regulates activity that is commercial and economic in nature: economic and financial decisions about how and when health care is paid for, and when health insurance is purchased." In other words, Congress redefines commerce and activity in such a way that the behavior regulated (or rather required) is neither commerce nor activity. It is difficult to see how the Court can credibly permit Congress to engage in such a stark redefinition of terms which are universally understood to mean something entirely different. It is even more difficult to believe that they would permit such a redefinition of terms in the Constitution as a vehicle for Congress to do what it has never done before, that is: to require individuals to engage in private commercial transactions, of Congress' choosing, with other individuals.

V. THE PRIVATE/COMMERCIAL DICHOTOMY AND THE MANDATE

The important lesson in Jones is the distinction that the Court drew between commercial buildings and private residences. Private residences simply lack the connection to interstate commerce that would trigger Congress' power to regulate activity with regard to them, and this is clear from the Court's ruling, even though the holding is on narrower grounds.

Finally, it is impossible to escape the analogy between a private residence and a private individual. Like private residences, private individuals per se lack the connection to interstate commerce that would trigger Congress' power to regulate them. If the Court was so troubled by the extension of Congress' Commerce Clause reach to ACTIVITY as egregious as a bombing involving a private residence, it should be a fortiori even more troubled by the extension of that same regulatory authority to the INACTIVITY (i.e.-the desire to be left alone) of private individuals. Unlike private residences, with regard to which the court labored so hard in Jones, private individuals (and the states) are clothed with all rights under the Ninth Amendment (and Tenth) Amendments not specifically granted to the federal government. Only a complete redefinition of the terms "commerce" and "activity", a redefinition to which the unanimous court in Jones would seem hostile, would save the individual mandate from the ash heap of constitutional history.

{The link to the full Jones opinion is in the first comment below}


TOPICS: Constitution/Conservatism; Miscellaneous; News/Current Events
KEYWORDS: 10thamendment; 111th; bhohealthcare; bloggersandpersonal; consitution; obamacare; statesrights; vanity
Navigation: use the links below to view more comments.
first 1-5051-70 next last
Link to Jones:

http://www.law.cornell.edu/supct/html/99-5739.ZO.html

Link to Patient Protection Affordable Care Act(PPACA):

http://democrats.senate.gov/reform/patient-protection-affordable-care-act.pdf

Congressional Findings are at pages 320-24. The Mandate itself is at pages 324-5.

1 posted on 03/27/2010 1:26:05 PM PDT by Brices Crossroads
[ Post Reply | Private Reply | View Replies]

To: Brices Crossroads

It would be interesting to hear what Robert Bork has to say on this issue. Has he made any statements?
How long will this take to get to the Supreme Court?


2 posted on 03/27/2010 1:31:57 PM PDT by Oldexpat
[ Post Reply | Private Reply | To 1 | View Replies]

To: Oldexpat

I would love to hear Bork’s take on it.


3 posted on 03/27/2010 1:33:40 PM PDT by Brices Crossroads (Politico and)
[ Post Reply | Private Reply | To 2 | View Replies]

To: Oldexpat
Would letters to the Supreme Court help or hurt our cause.

Would a VERY peaceful, silent prayer vigil around the S.P. while they are hearing our case help? VERY SILENT AND VERY PEACEFUL, with candles maybe. Not one person speak or utter one word, no signs,no buttons or clothing that spoke to a cause or organization. Complete silence.

Do not even talk with the MEDIA, no matter what source they are. Silence and prayer.

Now if Billy Graham wants to come and speak to us and hold this prayer vigil, he may speak and talk with the media if he wishes. fine with me.

4 posted on 03/27/2010 1:47:33 PM PDT by annieokie
[ Post Reply | Private Reply | To 2 | View Replies]

To: Brices Crossroads

bookmark


5 posted on 03/27/2010 1:48:07 PM PDT by PMAS
[ Post Reply | Private Reply | To 1 | View Replies]

To: Brices Crossroads

I believe that the commerce clause cannot be invoked here to justify 0bamacare. All the commerce clause cases involved a commodity and a health insurance policy is not a commodity it is a contract that only has value between the parties to the agreement.
Bur what about the tax argument? The mandate is not an income tax but, I have seen it described as a capitation tax-a tax on the whole person. Apparently, a capitation tax is to be apportioned among the states on the basis of census population.
I wonder if anyone has any further specific knowledge on this subject.


6 posted on 03/27/2010 1:56:04 PM PDT by grumpygresh (Democrats delenda est)
[ Post Reply | Private Reply | To 1 | View Replies]

To: grumpygresh

The Constitution (ARTICLE I) forbids a capitation inless it applies equally to everyone in the Census. Obamacare’s mandate is a penalty, which only applies to those who do not comply with the mandate and even exempts some of those who are incarcerated or who cannot afford it. It is not a constitutionally permissible capitation. See below:

“No Capitation, [or other direct,] Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.”

COMMENTARY:
A capitation is a tax collected equally from everyone. It is also called a head tax or poll tax. The Supreme Court held that this section prohibits an income tax, but the 16th Amendment set aside the effect of the court’s decision.


7 posted on 03/27/2010 2:08:31 PM PDT by Brices Crossroads (Politico and)
[ Post Reply | Private Reply | To 6 | View Replies]

To: grumpygresh

The Amish and Muslims are exempted from the mandates. Is that a violation of separation of church and state. The state is picking two religions over the beliefs of the others. It looks like to me an establishment of a religion. Their conscious clause is intake but not for pro-life believers.


8 posted on 03/27/2010 2:14:18 PM PDT by wmap
[ Post Reply | Private Reply | To 6 | View Replies]

To: wmap

I would think that the 14 amendment would allow all Americans equal standing in claiming a religious exemption. Next week, I’m going to request that my congressman (Sensenbrenner-R) provide me with information specifically on obtaining an exemption and the most effective strategies to follow. Perhaps several conservatives sitting in congress can pool resources and make this information available to the public. At least a flood of requests would slow down the IRS or government agency charged in processing these requests.


9 posted on 03/27/2010 2:39:43 PM PDT by grumpygresh (Democrats delenda est)
[ Post Reply | Private Reply | To 8 | View Replies]

To: wmap

Huh?? What happened to equal treatment under the law? I thought that was the foundational principle of this country.


10 posted on 03/27/2010 3:02:38 PM PDT by mtrott
[ Post Reply | Private Reply | To 8 | View Replies]

To: Brices Crossroads

It’s real simple. This bill asserts federal government OWNERSHIP over the individual citizen.

On what basis did slave owners assert the power to force slaves to work, against their will? Answer: OWNERSHIP. They had to assert legal ownership over the slave, in order to compel them.

Likewise, as a free man, no one can compel me to purchase a product or participate in any particular commerce, absent a claim of some form of ownership over me. Otherwise, I am free to sit in the park and do nothing.

The government says, you must purchase health care. I say, no I don’t, because I am a free citizen in a free country. They say, but you have to, we passed a law. I say, no, I am free, have committed no crime, and nobody can force me to do things against my will. Eventually, they have to say, well, no, you are not free. We have taken that freedom and you must comply. At that point, how am I not in a position of involuntary servitude?


11 posted on 03/27/2010 3:17:21 PM PDT by mtrott
[ Post Reply | Private Reply | To 1 | View Replies]

To: Brices Crossroads

It’s real simple. This bill asserts federal government OWNERSHIP over the individual citizen.

On what basis did slave owners assert the power to force slaves to work, against their will? Answer: OWNERSHIP. They had to assert legal ownership over the slave, in order to compel them.

Likewise, as a free man, no one can compel me to purchase a product or participate in any particular commerce, absent a claim of some form of ownership over me. Otherwise, I am free to sit in the park and do nothing.

The government says, you must purchase health care. I say, no I don’t, because I am a free citizen in a free country. They say, but you have to, we passed a law. I say, no, I am free, have committed no crime, and nobody can force me to do things against my will. Eventually, they have to say, well, no, you are not free. We have taken that freedom and you must comply. At that point, how am I not in a position of involuntary servitude?


12 posted on 03/27/2010 3:17:28 PM PDT by mtrott
[ Post Reply | Private Reply | To 1 | View Replies]

To: Brices Crossroads

ping


13 posted on 03/27/2010 4:04:38 PM PDT by phockthis
[ Post Reply | Private Reply | To 1 | View Replies]

To: LucyT

ping...

“Moreover, unlike the recent decisions (Lopez, Morrison and Gonzales), which were all 5-4 decisions, this case was a 9-0 decision, authored by Justice Ginsburg in 2000. It is Jones v. United States, 529 U.S. 848 (2000), linked in the first comment below this post.”


14 posted on 03/27/2010 4:37:00 PM PDT by Seizethecarp
[ Post Reply | Private Reply | To 1 | View Replies]

To: Brices Crossroads

Bookmark ping.


15 posted on 03/27/2010 4:41:05 PM PDT by ducdriver (judica me, Deus, et discerne causam meam de gente non sancta. (Ps. 42))
[ Post Reply | Private Reply | To 1 | View Replies]

To: Brices Crossroads

Here’s my take: These suits put the Democrats at a big political disadvantage because they are left with two choices as their response to them. They can either watch as these suits make their way through the courts and make drive the news cycle ( whether or not the Democrat controlled media likes it) and in doing so serve as daily reminders of what a threat to liberty the bill is OR they can roll the dice and try to push this straight up to the Supreme Court and risk losing everything just before Election Day.
Either way we win. This will NOT be easy but we have fine minds on our side and a faith in God’s favorable view of a free America.


16 posted on 03/27/2010 5:28:17 PM PDT by jmaroneps37 (Conservatism is truth. Liberalism is lies.)
[ Post Reply | Private Reply | To 1 | View Replies]

To: Brices Crossroads
Let me state that as an born and bred American citizen, I do not want their Health insurance product. I do not want to purchase it or use it. For one, it is primarily against my principals to accept anything I did not earn. And I never ever take any gift that was acquired under coercion. Now if the gift was acquired through voluntary means, I may accept it. If I get a cut or broken bone, I will pay for it out of pocket. Recently fell off a ladder and got messed up pretty bad. Did not seek medical attention and everything healed fine. No broken bones however. So if they are gonna exempt Muslims because it is against their religion to gamble, why can they not exempt me because my morals prevent me from taking coerced assets ? And if I get a major disease that is fatal, please let me die. At any rate, feel I will be better off by investigating the condition myself and seeking help outside of US government control. As that age old saying states, nothing is free in this world.
17 posted on 03/27/2010 5:30:10 PM PDT by justa-hairyape
[ Post Reply | Private Reply | To 1 | View Replies]

To: jmaroneps37

“they can roll the dice and try to push this straight up to the Supreme Court and risk losing everything just before Election Day.”

I really think there are five solid votes on the Court to invalidate this (Kennedy and the four conservatives). Stevens is pretty reliable on Commerce Clause cases, so he would be the sixth if he is still there. I had thought Breyer might be solid on this, but I just saw him in a debate with Scalia and he kept talking about the Judge’s role in determining the purpose of the constitution, based on the values of the time, which made me less sanguine about him. I also remembered he was a staffer for Teddy Kennedy on the Senate Judiciary Committee prior to going on the Appeals court. And Kennedy’s pet issue was nationalized health care. This case will be a real test of Breyer’s intellectual integrity. Ginsburg and Sotomayor are wild cards, but I would tend to see it as 6-3 or 5-3. And if they are intellectually honest, it could be 9-0.

Finally, we are going to be hearing from the MSM that to strike the mandate down would be a stunning example of judicial activism. Not true. Striking it down would be protecting the rights of the people from an abuse of power by Congress through their attempted transmogrification of the Commerce Clause. Striking it down would vindicate the 9th Amendment of the Bill of Rights as well.

Failing to strike it down would be the STUNNING ACT OF JUDICIAL INACTIVISM, a dereliction of the Court’s duty to protect the people from a Congress which exceeds the powers granted it by the Constitution. It would represent judicial activism by inaction.

Since the Court was willing to strike down the lion’s share of McCain Feingold, which only LIMITED (but by no means eliminated) political speech in violation of the First Amendment, I believe the Court would be inclined to strike down the Mandate in ObamaCare, which not only limits but ELIMINATES the freedom not only to engage in commerce (which has existed since the founding of the Republic and before) but NOT TO ENGAGE IN COMMERCE. Congress does so by misconstruing its authority under the commerce clause, believing that the power to “regulate”, which always presupposes an activity to regulate, extends to inactivity and that one who is doing nothing is nevertheless engaging in commerce. I do not believe that the Court can possibly be intellectually dishonest enough to do otherwise. In fact, I think the Justices who, on policy grounds, favor National Health Care will have to admit that it should have been enacted via a public option and financed via the income tax. And people should always have been free to opt our of it.

Had they done it this way, it would have been constitutional, and the Government could have made the public option so attractive that they would have eventually driven the private insurance companies out of the field, achieving their goal of a single payer system. Instead, they were forced to choose this bastardized version, an unprecedented individual government mandate married to private insurance, which is going to run afoul of the Commerce Clause.


18 posted on 03/27/2010 6:58:27 PM PDT by Brices Crossroads (Politico and)
[ Post Reply | Private Reply | To 16 | View Replies]

To: nathanbedford

This is pretty arcane stuff, but I thought I would ping you in case you know anyone who is interested in some of the Constitutional issues surrounding Obamacare. Post 18 is a little easier to get through than the main article.


19 posted on 03/27/2010 7:02:09 PM PDT by Brices Crossroads (Politico and)
[ Post Reply | Private Reply | To 18 | View Replies]

To: Brices Crossroads

Very nicely summarized. As it is Obmacare is an economic time bomb. Even worse with the individual mandate stricken. Will the remedy be the whole bill tossed?


20 posted on 03/27/2010 7:33:57 PM PDT by ironman
[ Post Reply | Private Reply | To 18 | View Replies]

To: ironman

Without the individual mandate, it can neither raise the money, nor control the market. It can be defunded, in favor of restoring the cuts to medicare, and left to die on the vine.

When Palin becomes President, real health care reform (tort reform, portability and market based solutions) can begin, and a phase out of medicare can be launched in which people under 40 can opt out of it in favor of buying their own health insurance for 65+. This mess Obama created can be fixed, but the Court must do its part and teh electorate must do so as well. Seniors have got to wake up and sweep out these creeps.


21 posted on 03/27/2010 8:00:50 PM PDT by Brices Crossroads (Politico and)
[ Post Reply | Private Reply | To 20 | View Replies]

To: Brices Crossroads
From a layman's point of view a clearer definition of "interstate commerce" would seem in order. For example, if I go to the hardware store and buy a widget that has been "imported" from another state or another country, am I engaging in interstate commerce? If not, is it because I'm a private citizen, or the end user?

What if I choose to build my own widgets for personal use? Would it make any difference if the materials I used were obtained locally or out of state? Now let's say I make such wonderful widgets that some of my neighbors have asked me to build widgets for them, and are willing to compensate me for my efforts. Do I come under interstate commerce yet? If I just happen to live near a state line and some of my neighbors actually live in an adjacent state. What then?

I suppose this actually points to the larger question, what exactly did the Founders have in mind when they spoke of interstate commerce. Because it seems to me the expansive interpretation by latter day courts is that sometimes virtually any commerce could be construed as interstate commerce. Something I haven't researched, but somebody no doubt has.

22 posted on 03/27/2010 9:44:03 PM PDT by ForGod'sSake (You have just two choices: SUBMIT or RESIST with everything you've got!)
[ Post Reply | Private Reply | To 1 | View Replies]

To: Brices Crossroads

I might add, that shyster dimocrats(but I repeat myself), by choosing sympathetic jurists have for decades been laying down a trail of precedent crumbs they presume to be followed by later courts. Bad business, but that’s their stock in trade.


23 posted on 03/27/2010 9:53:19 PM PDT by ForGod'sSake (You have just two choices: SUBMIT or RESIST with everything you've got!)
[ Post Reply | Private Reply | To 1 | View Replies]

To: mtrott
At that point, how am I not in a position of involuntary servitude?

I agree. The United States government alleges that it now owns our asses.

24 posted on 03/27/2010 10:01:06 PM PDT by Stentor
[ Post Reply | Private Reply | To 12 | View Replies]

To: ForGod'sSake

“if I go to the hardware store and buy a widget that has been “imported” from another state or another country, am I engaging in interstate commerce? If not, is it because I’m a private citizen, or the end user?”

The short answer is yes. The transit of widgets from state to state can be regulated. Ditto the other hypos.

“What if I choose to build my own widgets for personal use?”

The answer is maybe. Wickard v. Filburn allowed a regulation prohibiting a farmer from growing wheat although he claimed it was for personal use, becasue there was no way to guarantee or verify that wheat, a fungible commodity, would not find its way into interstate commerce. This is basically the rationale of Gonzales which dealt with the “private” cultivation of marijuana for medicinal use.

The bottom line: The commerce clause is broad, which is why the health care legislation is not constitutionally DOA. But no Congress has sought, and no Court has yet approved, as a condition of citizenship, the power to REQUIRE an unwilling individual to engage in commercial activity. No court has ever held, and the definition of commerce does not contemplate, that inaction by an individual amounts to commerce, nor does it affect commerce. Commerce is voluntary activity, not voluntary inactivity. It is really as simple as that, and it is why I believe the Mandate is toast.


25 posted on 03/27/2010 10:11:07 PM PDT by Brices Crossroads (Politico and)
[ Post Reply | Private Reply | To 22 | View Replies]

To: wmap

That’s another winner with this farce of a bill. Equal protection and no official state religion. By exempting two religions, he’s ‘endorsing’ them.


26 posted on 03/27/2010 10:13:58 PM PDT by rintense (Only dead fish go with the flow, which explains why Congress stinks.)
[ Post Reply | Private Reply | To 8 | View Replies]

To: ForGod'sSake

“I might add, that shyster dimocrats(but I repeat myself), by choosing sympathetic jurists have for decades been laying down a trail of precedent crumbs they presume to be followed by later courts.”

Which is why Obama’s Supreme Court nominees must be opposed. If they are radicals (and they will be), they should be filibustered, delayed and blocked by all means. When the GOP retakes the Senate in January, the Majority Leader can and should refuse to bring them to the floor. If Stevens retires, the GOP should give Obama a list of GOP nominees from which he can choose (since Stevens was a GOP appointee) taken from the most conservative Circuit (the 5th). If he chooses one of them, then the nominee will be confirmed. If not, no vote. Don’t give him an inch. Total war.


27 posted on 03/27/2010 10:17:16 PM PDT by Brices Crossroads (Politico and)
[ Post Reply | Private Reply | To 23 | View Replies]

To: Brices Crossroads
Thank you for inviting me to participate on a thread initiated with such a thoughtful essay.

After watching the March of Folly in constitutional law for nearly half a century I confess that I have come to a place of cynicism and despair. I fear that we can analyze a thread of Supreme Court cases on the commerce clause and we are but to be pitied like a neurotic housewife for trying to predict the future from the stars. To grope for another analogy, I fear conservatives on entering the Supreme Court are taking a knife to a gunfight.

My cynicism comes from a commonsense overview of the language of the Constitution. The founders, fearful of tyrannical government on the one hand (and equally fearful of its radical mob on the other hand) determined to establish a federal government with limited and divided powers and separated in power from powers which would belong to the states. So when the framers, aware of the self-defeating internecine commercial warfare between the former colonies of the government under the Articles of Confederation, wrote down those powers which would go to the federal government, they assigned commerce as they understood it to the federal government to manage.

Clearly, they never understood a farmer to be in interstate commerce and subject to congressional regulation who grew wheat purely for consumption on his own farm. That the Supreme Court could come to such a conclusion so obviously at variance with the idea of enumerated powers sets the whole Constitution at naught by the simple contrivance of inflating the notion of "commerce" among the states beyond all historical understanding and rational definition. Tack onto that the Necessary and Proper clause and you have intellectually come full circle to the place we are today where there is now virtually no limit to federal power.

One might well point to Justice Ginsburg, the archetypal statist whose brooding presence renders the idea of an impartial Supreme Court a mockery, and her opinion in which she seems to rein in the power of the federal government to control commerce. But consider that what she might well have done was to convert a probable 7 to 2 or 8 to 2 decision rendered on constitutional grounds undermining her leftist strategy to advance federal power through the commerce clause into a harmless 9 to 0 holding on statutory interpretation without constitutional significance. If that was what she accomplished, she acted in the best traditions of Abe Fortis who was sent to the court by Lyndon Johnson as an outrider to protect that flank.

My point is that the likes of Justice Ginsburg takes a gun to a gunfight. She is not open to honest intellectual debate about the true meaning of the commerce clause. She works backwards from a preconceived result and uses her immense intellectual capacity to rationalize that holding. There are at least five Justices who go into that courtroom willing to be persuaded to either side. But they are human, they might be persuaded against our vision and it only takes one of them be so persuaded. Justice Kennedy, as history shows, is only too susceptible to that sort of persuasion. My point is that litigating in the Supreme Court is a little bit like waging a war against terrorists, we must get it right 100% of the time. We go in with an honest and open intellectual mindset which the other side sees only as naïve.

Thank you for inviting me to participate on a thread initiated with such a thoughtful essay.

After watching the March of Folly in constitutional law for nearly half a century I confess that I have come to a place of cynicism and despair. I fear that we can analyze a thread of Supreme Court cases on the commerce clause and we are but to be pitied like a neurotic housewife for trying to predict the future from the stars. To grope for another analogy, I fear conservatives on entering the Supreme Court are taking a knife to a gunfight.

My cynicism comes from a commonsense overview of the language of the Constitution. The founders, fearful of tyrannical government on the one hand (and equally fearful of its radical mob on the other hand) determined to establish a federal government with limited and divided powers and separated in power from powers which would belong to the states. So when the framers, aware of the self-defeating internecine commercial warfare between the former colonies of the government under the Articles of Confederation, wrote down those powers which would go to the federal government, they assigned commerce as they understood it to the federal government to manage.

Clearly, they never understood a farmer to be in interstate commerce and subject to congressional regulation who grew wheat purely for consumption on his own farm. That the Supreme Court could come to such a conclusion so obviously at variance with the idea of enumerated powers sets the whole Constitution at naught by the simple contrivance of inflating the notion of "commerce" among the states beyond all historical understanding and rational definition. Tack onto that the Necessary and Proper clause and you have intellectually come full circle to the place we are today where there is now virtually no limit to federal power.

One might well point to Justice Ginsburg, the archetypal statist whose brooding presence renders the idea of an impartial Supreme Court a mockery, and her opinion in which she seems to rein in the power of the federal government to control commerce. But consider that what she might well have done was to convert a probable 7 to 2 or 8 to 2 decision rendered on constitutional grounds undermining her leftist strategy to advance federal power through the commerce clause into a harmless 9 to 0 holding on statutory interpretation without constitutional significance. If that was what she accomplished, she acted in the best traditions of Abe Fortis who was sent to the court by Lyndon Johnson as an outrider to protect that flank.

My point is that the likes of Justice Ginsburg takes a gun to a legal debate. She is not open to honest intellectual debate about the true meaning of the commerce clause. She works backwards from a preconceived result and uses her immense intellectual capacity to rationalize that holding. There are at least five Justices who go into that courtroom willing to be persuaded to either side. But they are human, they might be persuaded against our vision and it only takes one of them to be so persuaded. Justice Kennedy, as history shows, is only too susceptible to that sort of persuasion. My point is that litigating in the Supreme Court is a little bit like waging a war against terrorists, we must get it right 100% of the time. We go in with an honest and open intellectual mindset which the other side sees only as naïve.

Of course we must fight the good fight and litigate the very best case we can but I am rapidly coming to the conclusion that the case is not won or lost on the briefs, or the facts, or the law, or even on the Constitution but on the nominating process. This is how we have come to the place where the Constitution means precisely the opposite of what the words say.A rational layperson would well look at this and say, if the federal government can control human behavior on this level why did the framers go to the trouble of enumerating powers and reserving the rest to the states and to the people? That ultimately is the question the Supreme Court should set itself to answer.


28 posted on 03/27/2010 10:26:42 PM PDT by nathanbedford ("Attack, repeat, attack!" Bull Halsey)
[ Post Reply | Private Reply | To 19 | View Replies]

To: Brices Crossroads
Spot on. If conservatives are able to keep flame burning re the takeover of our market based ecomomy, and all that entails, even odds on taking over the senate.

Any thoughts on my questions in the previous post. Some legal eagles might fill a large gap in Freepers', or at least my understanding of the intent of the Founders concerning interstate commerce. Just a hunch but I doubt their intentions were as far reaching as some latter day "experts" have offered.

29 posted on 03/27/2010 10:27:44 PM PDT by ForGod'sSake (You have just two choices: SUBMIT or RESIST with everything you've got!)
[ Post Reply | Private Reply | To 27 | View Replies]

To: nathanbedford
That is one concise post that points directly to the 10th amendment.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

30 posted on 03/27/2010 10:32:29 PM PDT by eyedigress ((Old storm chaser from the west)?)
[ Post Reply | Private Reply | To 28 | View Replies]

To: nathanbedford
A rational layperson would well look at this and say, if the federal government can control human behavior on this level why did the framers go to the trouble of enumerating powers and reserving the rest to the states and to the people?

Indeed, count me in that number! To this layman, it begs the larger question, why bother with a Constitution at all if the feds can make it up as they go along?

31 posted on 03/27/2010 10:37:01 PM PDT by ForGod'sSake (You have just two choices: SUBMIT or RESIST with everything you've got!)
[ Post Reply | Private Reply | To 28 | View Replies]

To: ForGod'sSake

I was ready to post something harsh. I will wait until everyone is ready to go.


32 posted on 03/27/2010 10:44:55 PM PDT by eyedigress ((Old storm chaser from the west)?)
[ Post Reply | Private Reply | To 31 | View Replies]

To: eyedigress

I suppose I’m as ready as I’ll ever be. I ain’t gettin any younger.


33 posted on 03/27/2010 10:49:47 PM PDT by ForGod'sSake (You have just two choices: SUBMIT or RESIST with everything you've got!)
[ Post Reply | Private Reply | To 32 | View Replies]

To: ForGod'sSake

:>) It’s all about friends. Mine get new 2-ways this year.


34 posted on 03/27/2010 10:53:13 PM PDT by eyedigress ((Old storm chaser from the west)?)
[ Post Reply | Private Reply | To 33 | View Replies]

To: eyedigress

2-ways? Mirrors, whut???


35 posted on 03/27/2010 11:00:05 PM PDT by ForGod'sSake (You have just two choices: SUBMIT or RESIST with everything you've got!)
[ Post Reply | Private Reply | To 34 | View Replies]

To: ForGod'sSake

Radios HR!


36 posted on 03/27/2010 11:07:00 PM PDT by eyedigress ((Old storm chaser from the west)?)
[ Post Reply | Private Reply | To 35 | View Replies]

To: eyedigress

DUH! ;^)


37 posted on 03/27/2010 11:11:05 PM PDT by ForGod'sSake (You have just two choices: SUBMIT or RESIST with everything you've got!)
[ Post Reply | Private Reply | To 36 | View Replies]

To: ForGod'sSake

I’m an old tower climber as well. The IF can be disrupted like no-bodys tomorrow.


38 posted on 03/27/2010 11:13:21 PM PDT by eyedigress ((Old storm chaser from the west)?)
[ Post Reply | Private Reply | To 35 | View Replies]

To: eyedigress

Cool! Never cared much for heights myself. Seems like I get something akin vertigo when I get very more than about 15 - 20 feet off the ground. BTW, I’m sure you’ve seen the pic of the guys working on the antenna on top of the Empire State Building — camera aimed DOWN on them! I get the willies just looking at the pic!


39 posted on 03/27/2010 11:22:45 PM PDT by ForGod'sSake (You have just two choices: SUBMIT or RESIST with everything you've got!)
[ Post Reply | Private Reply | To 38 | View Replies]

To: ForGod'sSake

I do too and need to have that framed large on my new wall. I had to tell the Army from time to time they were screwing my passages. They would switch gears and allow my work to continue. (BTW, You get credit for figuring out what goes on one of my blank walls, Thank You!)


40 posted on 03/27/2010 11:35:16 PM PDT by eyedigress ((Old storm chaser from the west)?)
[ Post Reply | Private Reply | To 39 | View Replies]

To: ForGod'sSake

41 posted on 03/27/2010 11:41:41 PM PDT by eyedigress ((Old storm chaser from the west)?)
[ Post Reply | Private Reply | To 39 | View Replies]

To: eyedigress

;^)


42 posted on 03/27/2010 11:47:44 PM PDT by ForGod'sSake (You have just two choices: SUBMIT or RESIST with everything you've got!)
[ Post Reply | Private Reply | To 40 | View Replies]

To: ForGod'sSake
The real one.......


43 posted on 03/27/2010 11:50:50 PM PDT by eyedigress ((Old storm chaser from the west)?)
[ Post Reply | Private Reply | To 39 | View Replies]

To: eyedigress
This one...

There ain't enough gold in Fort Knox to get me up there! Gotta hit the sack.

44 posted on 03/27/2010 11:57:18 PM PDT by ForGod'sSake (You have just two choices: SUBMIT or RESIST with everything you've got!)
[ Post Reply | Private Reply | To 43 | View Replies]

To: ForGod'sSake

God Bless. Thanks for the pic. :^)


45 posted on 03/27/2010 11:59:47 PM PDT by eyedigress ((Old storm chaser from the west)?)
[ Post Reply | Private Reply | To 44 | View Replies]

To: grumpygresh; ForGod'sSake

The definition of “commodity” notwithstanding, Congress had previously stipulated that the scope of any health insurance product is wholly intrastate. The present bill is an attempt by Congress to regulate something that doesn’t exist; all intrastate commerce must be uniform in an interstate manner.

How is that any different than Congress regulating State highway and private bridge tolls? Or that all cable vendors must offer specified programming and fees? Quite frankly, where, when and for what purpose you go from place A to B would also fall into said purvue.


46 posted on 03/28/2010 12:10:25 AM PDT by raygun
[ Post Reply | Private Reply | To 6 | View Replies]

To: ForGod'sSake

47 posted on 03/28/2010 12:11:08 AM PDT by eyedigress ((Old storm chaser from the west)?)
[ Post Reply | Private Reply | To 44 | View Replies]

To: Brices Crossroads

Couldn’t a person like Buffet, or Gates or Limbaugh etc. be allowed to be ‘’self insured’’ and risk his wealth on not getting some very expensive disease that mite wipe him out financeualy? At one time you could post a bond and be self-insured as to car insurance, in some States.


48 posted on 03/28/2010 1:16:29 AM PDT by Waco (Kalifonia don't need no stenkin oil and no stenkin revenue.)
[ Post Reply | Private Reply | To 1 | View Replies]

To: nathanbedford; PGalt
Your well reasoned reply is much appreciated. The only thing that I can outright rebut with respect to your response pertains to what you said about "common sense". The only thing I know about common sense is that it is commonly "uncommon".

That being said, I've come to conclusions akin to yours after review of Frederick Bastiat's writings. I've alluded to this fact several times on this board. My lament is borne out by the arguments made on the Michigan forum against the health care bill on the basis of just HOW MUCH Medicare and / or Medicaide will be cut.

If you've ever read Bastiat's The Law, you'll realize just how far PASSED the point of no return this country is.

My advice to Freepers of ALL stripes, DO NOT READ BASTIAT. Do not read what is will make you sad, and dejected and instill a sense of despair and hopelessness. It is far better to read all the anti-McCainite and Palinite threads; you'll feel much MUCH better after reading those threads.

Quite frankly: I believe its hopeless; this country will NEVER get out of the clutch the Devil holds it in. Who knows, maybe I'm wrong and Free Republic won't spill a large amount of blood debating the suitability of John McCain as a candidate for Senator or Sarah Palin concerning anything whatsoever.

Its alright, Florida got what it deserved after refusing to acquiesce to a candidate of such numbskullery as Kathleen Harris. As nearest I can tell Florida is still there, and Sen. Nelson is doing well for them. In my sorry state, Michigan, there was an election for governor some time ago. The man who ran the "Dick DeVoss - go to my website to see what I'm all about" againt the incumbant Jenny the Grandstander - Two Penny Jenny - lost.

FWIW, even so I have a great deal of respect for your namesake, I got one word for you in that regard (nicely that is): George H. Thomas (Major General U.S.A.).

49 posted on 03/28/2010 1:29:09 AM PDT by raygun
[ Post Reply | Private Reply | To 28 | View Replies]

To: Brices Crossroads; Oldexpat; raygun

“I would love to hear Bork’s take on it.”

I recall Mark Scott (RIP Detroit radio talker extraordinaire) commenting once (many years ago) that Bork “pooh poohed” the 10th amendment. I found this...

http://www.cato.org/pub_display.php?pub_id=9777

Thanks much for the ping, raygun. Replying to comments 2 & 3. (continuing on now).

OUTSTANDING post, Brices Crossroads! Historical/educational. Thanks.


50 posted on 03/28/2010 5:24:07 AM PDT by PGalt
[ Post Reply | Private Reply | To 3 | View Replies]


Navigation: use the links below to view more comments.
first 1-5051-70 next last

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.

Free Republic
Browse · Search
News/Activism
Topics · Post Article

FreeRepublic, LLC, PO BOX 9771, FRESNO, CA 93794
FreeRepublic.com is powered by software copyright 2000-2008 John Robinson