Did the Supreme Court Tip its Hand on obummerCare?
Saved from obummerCare by Anthony Kennedy on the basis of the Tenth Amendment! I won't be surprised. Kennedy has been fairly libertarian.
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
Ping
Did the Supreme Court Tip its Hand on obummerCare?
Saved from obummerCare by Anthony Kennedy on the basis of the Tenth Amendment! I won't be surprised. Kennedy has been fairly libertarian.
I am hoping that some small glimmer of confidence might be restored soon.
What this article fails to mention is that this was a 9-0 win for the 10th Amendment. That bodes very ill for 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."
Huh?
More importantly, this guts obastard’s attempt to back door gun control using the UN’s Small Arms Treaty...
I'm no lawyer, but IIRC, a two thirds vote of the Senate, if they have a quorum, then they can override the Bill of Rights.
(1) The general legal consensus is no, it can't with respect to "fundamental rights." Thanks to the last two big SCOTUS cases on the 2nd, the right to bear arms is a fundamental right.
(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.
I intimated this in another thread, but IMHO...
SCOTUS is hearing We the People over the past few years and is aware of the far-left’s agenda of the overthrow of the U.S. Constitution, even if they don’t admit it to themselves. Which kind of encroaches on their territory - the U.S. Constitution. Even if a SC Justice is liberal, they’re still personally very much in need of the preservation of the U.S. Constitution. In that respect, the SCOTUS is a sleeping bear that has no army and no police to enforce it’s rulings; it knows that it relies on Executive branches for enforcement.
Courts are very willing to allow and even force legislatures to over-regulate and over-spend in a “give the people what they want” mindset - until economic catastrophe looms and they envision the opposite sentiment having a powerful contingent amongst the citizenry.
I think the SCOTUS is going to be moving towards a Constitutionalist “revival” period. Of course, in the end, as some power is returned to States where it belongs, States are beginning to compete with each other for citizens and businesses like never before due to modern mobility. And it will be the stinging rod of failure that corrects State legislatures that over-regulate and over-spend, which requires them to over-tax their citizens and beg for Federal crumbs. Some States will choose to model their laws in the minimalist fashion of the U.S. Constitution, others will bury their citizens in legal spaghetti. In any case, hopefully the SCOTUS will start very vigorously ripping the teeth out of the Federal bureaucracy, thereby helping to preserve it, as the SCOTUS restores the U.S. Constitution to it’s purpose of binding together the States as a nation of free citizens rather than trying to implement a Federal bureaucracy that can be all things to all people.
Kennedy was also, however, one of the crucial swing votes in nullifying Texas’ law against sodomy, IIRC. He goes both ways, to use a bad pun.
I think the Bond decision is significant, however. I cannot recall any decision that hinges so much on the Tenth Amendment. We are so used to seeing SCOTUS decisions that are perversions of the Fourteenth.
The halfrican messiah will just reject whatever the SCOTUS rules, just like the non-enforcement of DOMA.
Time to wake up, America.
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.
Will Kennedy or any of the others want to vote the 10th Amendment is unconstitutional to satisfy Obama? Not likely.
That’s a very interesting analysis; thanks for posting it.
I truly hope the SCOTUS does not evolve their thought process to agree with The Won that the Constitution is a “charter of negative liberties”.
I don't think it will work out that way. The only way for the government to enforce Obama care is through fines and penalties, which must be enforced through the courts.
Let us hope so.
” 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.”
Inheres? Liberty infringed by criminal conviction? Anyone who can guess how Kennedy might rule on ObamaCare from such a gobbldeyquote is a better man than I.
Obviously I did not read it closely enough. Thanks.
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.