Posted on 06/22/2011 11:51:08 PM PDT by neverdem
On June 16 the U.S. Supreme Court sent a case (U.S. v. Bond) back to a lower court on Tenth Amendment grounds. The ruling, written by Justice Anthony Kennedy (the Court's "swing vote"), hints that ObamaCare just might be ruled unconstitutional. How? Justice Kennedy's opinion in U.S. v. Bond showed he still believes the federal government is restricted by the enumerated powers as listed in the U.S. Constitution. His viewpoint was expressed in a case the Lifetime network is probably making a movie about right now.
In this case, Carol Anne Bond learned that her best friend, Myrlinda Haynes, was pregnant. Bond thought that was great until she found out that the baby was fathered by her husband of 14 years, Clifford. Naturally, Bond, a microbiologist residing in suburban Philadelphia, wanted revenge. She began in the usual way by threatening Haynes over the telephone: "I [am] going to make your life a living hell." Subsequently, Bond's attempts to make Haynes life a "living hell" got her convicted for harassment in 2005.
Bond, however, was still out for revenge. Bond next smeared poisonous chemicals, such as an arsenic-based chemical (remember she is a microbiologist) on Haynes' car door handle, mailbox, and other places. Haynes got a burn from the chemicals and reported it to the police. The police, however, didn't know what to make of Haynes' claims. But then the U.S. Postal Inspection Service got involved because the mailbox had been tampered with. After its investigation, Bond was charged with a violating U.S. Code, Section 229, a statute that then prompted federal prosecutors to also throw the 1993 Chemical Weapons Convention at Bond. Bond subsequently pleaded guilty in federal court and got a six-year sentence and nearly $12,000 in fines and restitution.
The use of this federal treaty on chemical weapons, however, was a bit much, so Bond's lawyers appealed by arguing that using the federal government's Chemical Weapons Convention against Bond is unconstitutional under the Tenth 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.")
On appeal, the 3rd Circuit then ruled that Bond lacked standing to challenge her conviction, finding that only states, not individuals, can bring challenges under the Tenth Amendment.
With this constitutional question in the balance, the U.S. Supreme Court agreed to take the case and heard it last January. Former Solicitor General Paul Clement represented Bond at the Supreme Court hearing. Clement argued that "the structural provisions of the Constitution are there to protect the liberty of citizens." He articulated that states have the authority to resolve their own criminal justice cases -- some international treaty on chemical weapons shouldn't preclude this state right.
Which gets us back to Justice Kennedy and his tell on how he might rule on ObamaCare. Justice Kennedy said at the hearing: "The whole point of separation of powers, the whole point of federalism, is that it inheres to the individual and his or her right to liberty; and if that is infringed by a criminal conviction or in any other way that causes specific injury, why can't it be raised?" This made court watchers wonder if this might forecast how Justice Kennedy might vote on ObamaCare.
Then, on June 16, the Court ruled 9-0 in favor of Bond that the U.S. Congress overstepped its authority by infringing on powers reserved to the states under the Tenth Amendment. (Bond, however, will have to make and win the Tenth Amendment argument in a lower court, as the Supreme Court only sent the case back down to the lower court while saying that Bond can fight her conviction on Tenth Amendment grounds.)
So here's where it gets interesting for those wondering how the Court will vote on ObamaCare. The Obama Administration's argument is that it can mandate that people buy government-approved health insurance under the power the Constitution's Commerce Clause (The U.S. Congress shall have the power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes....") gives the federal government. The Commerce Clause has been viewed to be an expansive power by the Supreme Court; for example, the Court found in Wickard v. Filburn (1942) that the federal government can even regulate whether a farmer can grow wheat for his chickens. But the Court has never found that the government can mandate that citizens actively do something, such as purchase a product. This is why Justice Kennedy's opinion expressed in U.S. v. Bond is interesting, as it indicates his preference for state rights under the Tenth Amendment.
For example, in his opinion on U.S. v. Bond, Kennedy quoted the Supreme Court case New York v. U.S. (1992): "Federalism secures to citizens the liberties that derive from the diffusion of sovereign power." And then Justice Kennedy said, "[Federalism] protects the liberty of all persons within a state by ensuring that laws enacted in excess of delegated governmental power cannot direct or control their actions.... By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake. The limitations that federalism entails are not therefore a matter of rights belonging only to the states."
So in U.S. v. Bond Justice Kennedy found that Congress exceeded its constitutional authority. Let's hope he'll do the same when Obamacare makes it to the U.S. Supreme Court.
Frank Miniter is the author of Saving the Bill of Rights
I’m betting on a 5-4 decision that its unconstitutional. The final nail in Barry’s coffin.
Yes, and the AG has already shown that “his people” and other protected groups will get preferential treatment.
There is no equal protection under the law here anymore. It goes form the top down, and bottom up.
Nothing will fix this except revolution, civil war, or peaceful secession.
Property rights are fundamental. The Endangered Species Act supposedly derives its authority to curtail private property rights without compensation by treaty.
(2) This case ruled that the 10th protected an American from a law passed under the auspices of the "1993 Chemical Weapons Convention," a Senate ratified treaty. So no again.
Same problem. I wouldn't take away too much on this ruling, as this looks to me like a Court that can't keep its story straight, treating issues of Federalism in a manner similar to "selective incorporation." That the author treats Wickard v. Filburn as anything less than an abomination shows how dangerously far we've slid as regards the latitude of the court.
What, then, is your opinion on the UN Rights of the Child treaty?
Could it override the constitutions of states and take away parental rights?
Michael Farris strongly believes so.
As if the Supremes will do anything other than "evade" yet another issue with Hussein. We're stuck with the usurper and every decree he passes down.
Property rights are fundamental. Unfortunately, they have been so eroded by the left over the past few decades that they are no longer treated that way.
This ruling might be a wedge that can be used to start to reclaim them.
Because of the recent 2nd Amendment cases, those rights are now on firmer ground with the SCOTUS.
The only way I see that happening is for Sotomayor and Kagan to be dismissed from the SCOTUS and the only way that will happen is to prove that Obama was not eligible to nominate them.
Correct. Our system of law has degenerated into situational reality. There is no longer anything consistent about it.
This ruling might be a wedge that can be used to start to reclaim them.
One can only hope so. If the Bamster gets another appointment however, that may be all she wrote.
It shouldn’t, but parental rights have been eroded as much as property rights to the point that neither are treated as fundamental rights anymore, so it might. Sigh.
The SCOTUS can return to Constitutionalism any time it wants to; it is not obligated Constitutionally to maintain stare decisis on any particular case that it decides.
My point in post #10 was that Bond v. United States appears to be, to this humble poster, a trial balloon of sorts, where SCOTUS has ruled - unanimously - the following:
“Held: Bond has standing to challenge the federal statute on grounds that the measure interferes with the powers reserved to States”
Now of course the obamacare situation is not identical, but this ruling in it’s unanimity signals a willingness to entertain the standing of citizens in cases hinging upon the Constitutionality of laws, as opposed to the wont of lower courts to deny such standing exists. While SCOTUS may not want to hear a case yet on eligibility, my theory is that the economic disaster that is unfolding is cause for concern amongst all of our SC Justices, liberal and conservative alike - and it may well be that Bond signals that all current SC Justices are anxious to do what they can to cause the wholesale cancellation of the financial Hindenburg that is obamacare. Given the state of the finances of the Federal government, only partisans seeking to destroy free enterprise in America and the truly idiotic fail to admit that obamacare, if implemented on top of the mess America is in, would cause a financial catastrophe, the likes of which could threaten the stability and viability of the government.
Methinks the iceberg of disaster is closer now than when Kagan first arrived.
I think DC power insiders like SCOTUS are starting to put two and two together. Think about what their personal investment advisors are telling them - basically America is toast.
They also are aware of the quiet uproar of conservative Constitutionalists - millions of people.
If obamacare comes before them for a ruling on Constitutionality and they beat the dead horse of the commerce clause - what if the economy completely collapses in the next few years and there is a complete breakdown ? Do they want to be the ones who forced trillions in additional government deficits by forcing obamacare on citizens - in complete disregard of the Constitution ? I think perhaps they will come up with some flowery language to perhaps cause obamacare to be stopped, which would simply put healthcare back where it was - and remove SCOTUS as being blameworthy for destroying the nation.
The bernank is like a deer in the headlights, the Fed will probably go bye-byes. Not everyone, but some in DC I think are finally starting to think that the train wreck is real.
I don’t know, it’s IMHO...
I agree that the wheat case ruling was absurd, but at least it was prohibiting the farmer from growing wheat, not necessarily forcing him to buy the wheat. Could the farmer, instead have grown corn to feed his chickens, which would be more reasonable anyway?
I’ve never really heard of feeding wheat to chickens, but then I’ve never raised any chickens, either.
He wrote the opinion of the Court in Lawrence vs. Texas (2003). He didn't worry too much about the Tenth Amendment or stare decisis then. <snort!>
Just another chuckle-headed, swing-like-a-gate DC party-hound, AFAIC. He also let Laurence Tribe lobby him for three and a half hours in a Vienna cafe on the eve of the Court's vote on Planned Parenthood vs. Casey, and voted with the liberals then. He could have helped strike down Roe vs. Wade, and in Lawrence he had Byron White's opinion and Chief Justice Burger's concurring opinion before him, scarcely 17 years old, upholding an identical Georgia law, but wrote his lawbreaking squib de novo, as if Bowers vs. Hardwick had never existed, to please the deviant conspirators and power-gays in Washington.
Slanted/perverted article on Bowers vs. Hardwick in Wiki, here:
http://en.wikipedia.org/wiki/Bowers_v._Hardwick#Aftermath.
Lastly, we have this comment of Laurence Tribe's, offered at the time of the Sotomayor nomination, handicapping Kennedy's future votes (he should know, having been a major traducer himself of Kennedy's votes in the past), documenting Kennedy as having been influenced by closet-case Associate Justice Souter:
... issues on which Kennedy will probably vote with Roberts despite Souter’s influence but on which I don’t regard Kennedy as a lost cause for the decade or so that he is likely to remain on the Court. (Emphasis added.)
Link:
http://en.wikipedia.org/wiki/Laurence_Tribe.
(Further note on Tribe: He argued for the sodomites before SCOTUS in the Bowers vs. Hardwick case, in relief of Hardwick's original ACLU lawyer -- the case was an instance of barratry by the ACLU, which was scouting for cases to bring against states' sodomy laws -- and wrote an amicus brief for the ACLU in Lawrence, in which the appellant was represented by Lambda Legal, which had done the same in Texas, bringing Baker vs. Wade to a forum-shopped Carter appointee in 1981 before soliciting Lawrence's test [and offense, imho -- the whole offense, arrest, and court case was a setup charade: the person who called police was arrested, charged, and sentenced in a sidebar proceeding later, basically for temporizing with justice] 20 years later. Tribe continues to serve as a Harvard professor despite being reprimanded by the university for plagiarism in a campus scandal in 2004.)
("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.")I guess the brilliant jurists on the 3rd Circus court STOPPED READING the 10th Amendment at the comma after the phrase "states respectively" and never saw the words "OR TO THE PEOPLE."On appeal, the 3rd Circuit then ruled that Bond lacked standing to challenge her conviction, finding that only states, not individuals, can bring challenges under the Tenth Amendment.
“Actually Kennedy was going libertarian in his opinion on the Texas sodomy law. That would bode well since Obamacare has touches both states rights and individual rights.”
True. But he wasn’t interpreting the constitution. He was joining the “make stuff up because I think it’s a good idea” crowd on the left.
That’s what makes him so unreliable. His judicial philosophy is the same as breyer, ginsberg, and the wise latina—smart, elite judges ought to be able to impose their morality on average people by pretending their morality is in the constitution. He differs with breyer et al on what the imposed result should be in some cases.
That’s why he is better than breyer in result but no different in judicial philosophy.
Justice Kennedy's opinion in U.S. v. Bond showed he still believes the federal government is restricted by the enumerated powers as listed in the U.S. Constitution.Or, maybe he just thought a total nutjob should be set free so she can continue her harassment of her victim.
I sent out a ping to an earlier THREAD alerting the 10th Amendment Division of this development. Tagged and bagged this thread however.
JMHO but I think Jug Ears had better fasten his seat belt; he's in for a rough ride.
Many good articles re the Constitution vs treaties. A snip from THIS ARTICLE states it pretty clearly:
Clarification of a clause in the Constitution of the United States is in order here. Article VI, clause 2 declares that “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme law of the Land; and the judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” It is the last clause that is misunderstood, even by attorneys. “... Constitution or Laws of any State ...” refers to the Constitutions of the several states, NOT the Constitution of the United States. The Founding Fathers were much too well informed to allow the state Constitutions to alter the United States Constitution. That would have been self defeating. The truth of the matter is that neither treaties nor state laws can supersede or alter the Constitution of the United States. Our national document is etched in stone. It is unfortunate that most Congress Persons do not read stone.The complete article, which is worth a read, cites SCOTUS decisions essentially saying as much.
Consider: any human activity at all could effect one's needs. For example, if I jog I might have more need of a water bottle. Of coarse water bottle transactions within the store I might purchase it are part of a network of interconnected transactions which are a commerce that cross state lines.
Thus, if we accept such expansion of the interstate commerce clause that regulates a farmer growing crops for his own animals, then all human activity is covered by this clause...since no human activity is completely independent of interstate commerce. Mandating that I jog would encourage interstate commerce and help the economy...or conversely mandating I not jog might help lower the cost of water bottles. Either way an excuse can be dreamed up for the federal government to make any mandate of my behavior it wishes.
Obviously this is not just an unorthodox opinion the court let stand. It was in fact a blatant violation of any kind of valid reasoning. Thus, I simply can not respect the US Supreme Court unless and until it reforms itself, overturns such absurd rulings, and repudiates and rejects any that presided over them as being unfit to any profession that requires critical thought.
In the meantime, although clearly forcing somebody to buy something is crossing another line that ought never be crossed...based on past behavior, I do not have confidence that they will not bulldoze right over that line as well.
I really wish they were worthy of the respect that the office should have. But they are not. The US Supreme court has become a disgrace, and giving them respect at this point is an affront to the institution as it ought to have been, and I pray might one day be.
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