Skip to comments.George Will: Is there no limit to Congressís power?
Posted on 11/19/2011 11:23:25 PM PST by 2ndDivisionVet
Shortly before the Supreme Court agreed to rule on the constitutionality of Obamacares individual mandate, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit affirmed its constitutionality. Writing for the majority, Judge Laurence H. Silberman, a Reagan appointee, brusquely acknowledged that upholding the mandate means there is no limit to Congresss powers under the Commerce Clause. Fortunately, Silbermans stark assertion may strengthen the counterargument. Silberman forces the Supreme Courts five conservatives to face the sobering implications of affirming the power asserted with the mandate.
Does Congresss enumerated power to regulate interstate commerce empower it to compel individuals, as a condition of living in the United States, to engage in a commercial activity? If any activity, or inactivity, can be said to have economic consequences, can it be regulated or required by Congress? Can Congress forbid the inactivity of not purchasing a product (health insurance) from a private provider? Silberman says yes:
We acknowledge some discomfort with the governments failure to advance any clear doctrinal principles limiting congressional mandates that any American purchase any product or service in interstate commerce. But to tell the truth, those limits are not apparent to us, either because the power to require the entry into commerce is symmetrical with the power to prohibit or condition commercial behavior, or because we have not yet perceived a qualitative limitation. That difficulty is troubling, but not fatal, not least because we are interpreting the scope of a long-established constitutional power, not recognizing a new constitutional right.(continued)
(Excerpt) Read more at washingtonpost.com ...
Is there any cause that would NOT be permitted to tap into this loophole’s power? Previous attempts to do mandates characterized them as taxes. Now we’re presuming to mandate sales. Would economic impossibility of sustaining such a system be a sufficient excuse for failure to do that?
Maybe it’s time for a con-con, or to schedule it the next time there is a Republican majority in Washington. Before the chicken littles screech, it’s well to note that a con-con couldn’t get anything added to the constitution without the nod of 38 states, no matter what garbage gets proposed and put on the table. No liberal wet dream will get by all of 38 states however chosen. Some conservative restrictions of Federal government power might.
This would mean that Congress has the power to compel you to buy a computer, a car, a house or anything else and fine or jail you if you fail to do so.
If this is upheld then there should be open revolt.
A Con-Con can give us the Communist Manifesto.
A simple amendment would be better.
Congress shall make no law governing the private economic actions of individuals.
or something like that.
38 states could not be found which would all pass a Communist Manifesto, Ms. Little.
That "may" be how the court rules. If so, the "limit" to Congress's power will be reached in November of 2012.....scorched earth....
Right. It could never happen here.
Is it possible in best case to turn the Senate completely GOP, even past the known wafflers?
Adding more justices to the Court would be a way a conservative Congress with a conservative President (somebody like Cain, not like Newt) could cement an advantage. Hey if FDR can pack it, why not Cain?
Your sarcasm fails. The hazard is in the administration of it, which is why it should happen under a conservative Congress.
lol. The delegates to the Con-Con are not decided by Congress.
The left controls the media, schools, colleges, bureaucracies, unions etc etc and they will all demand a seat at the table.
38 won’t be found to pass a good new Constitution either
That’s what I said, all manner of garbage can go on the table; no 38 states will be found to give the nod to any of the garbage.
I doubt we will ever see a Conservative Senate, its full of RINO’s.
It goes to state LEGISLATURES. That can’t be pranked.
In the 1st article, 8th section, it is declared, “that Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts, and provide for the common defence, and general welfare of the United States.” In the preamble, the intent of the constitution, among other things, is declared to be to provide for the common defence, and promote the general welfare, and in this clause the power is in express words given to Congress “to provide for the common defence, and general welfare.” And in the last paragraph of the same section there is an express authority to make all laws which shall be necessary and proper for carrying into execution this power. It is therefore evident, that the legislature under this constitution may pass any law which they may think proper. It is true the 9th section restrains their power with respect to certain objects. But these restrictions are very limited, some of them improper, some unimportant, and others not easily understood, as I shall hereafter shew. It has been urged that the meaning I give to this part of the constitution is not the true one, that the intent of it is to confer on the legislature the power to lay and collect taxes, etc. in order to provide for the common defence and general welfare. To this I would reply, that the meaning and intent of the constitution is to be collected from the words of it, and I submit to the public, whether the construction I have given it is not the most natural and easy. But admitting the contrary opinion to prevail, I shall nevertheless, be able to shew, that the same powers are substantially vested in the general government, by several other articles in the constitution. It invests the legislature with authority to lay and collect taxes, duties, imposts and excises, in order to provide for the common defence, and promote the general welfare, and to pass all laws which shall be necessary and proper for carrying this power into effect. To comprehend the extent of this authority, it will be requisite to examine 1st. what is included in this power to lay and collect taxes, duties, imposts and excises.
2d. What is implied in the authority, to pass all laws which shall be necessary and proper for carrying this power into execution.
3d. What limitation, if any, is set to the exercise of this power by the constitution.
1st. To detail the particulars comprehended in the general terms, taxes, duties, imposts and excises, would require a volume, instead of a single piece in a news-paper. Indeed it would be a task far beyond my ability, and to which no one can be competent, unless possessed of a mind capable of comprehending every possible source of revenue; for they extend to every possible way of raising money, whether by direct or indirect taxation. Under this clause may be imposed a poll-tax, a land-tax, a tax on houses and buildings, on windows and fire places, on cattle and on all kinds of personal property: It extends to duties on all kinds of goods to any amount, to tonnage and poundage on vessels, to duties on written instruments, newspapers, almanacks, and books: It comprehends an excise on all kinds of liquors, spirits, wines, cyder, beer, etc. and indeed takes in duty or excise on every necessary or conveniency of life; whether of foreign or home growth or manufactory. In short, we can have no conception of any way in which a government can raise money from the people, but what is included in one or other of three general terms. We may say then that this clause commits to the hands of the general legislature every conceivable source of revenue within the United States. Not only are these terms very comprehensive, and extend to a vast number of objects, but the power to lay and collect has great latitude; it will lead to the passing a vast number of laws, which may affect the personal rights of the citizens of the states, expose their property to fines and confiscation, and put their lives in jeopardy: it opens a door to the appointment of a swarm of revenue and excise officers to pray [sic] upon the honest and industrious part of the community, eat up their substance, and riot on the spoils of the country.
2d. We will next enquire into what is implied in the authority to pass all laws which shall be necessary and proper to carry this power into execution.
It is, perhaps, utterly impossible fully to define this power. The authority granted in the first clause can only be understood in its full extent, by descending to all the particular cases in which a revenue can be raised; the number and variety of these cases are so endless, and as it were infinite, that no man living has, as yet, been able to reckon them up. The greatest geniuses in the world have been for ages employed in the research, and when mankind had supposed that the subject was exhausted they have been astonished with the refined improvements that have been made in modem times, and especially in the English nation on the subject If then the objects of this power cannot be comprehended, how is it possible to understand the extent of that power which can pass all laws which shall be necessary and proper for carrying it into execution? It is truly incomprehensible. A case cannot be conceived of, which is not included in this power. It is well known that the subject of revenue is the most difficult and extensive in the science of government. It requires the greatest talents of a statesman, and the most numerous and exact provisions of the legislature. The command of the revenues of a state gives the command of every thing in it. He that has the purse will have the sword, and they that have both, have every thing; so that the legislature having every source from which money can be drawn under their direction, with a right to make all laws necessary and proper for drawing forth all the resource of the country, would have, in fact, all power.
Were I to enter into the detail, it would be easy to shew how this power in its operation, would totally destroy all the powers of the individual states. But this is not necessary for those who will think for themselves, and it will be useless to such as take things upon trust, nothing will awaken them to reflection, until the iron hand of oppression compel them to it.
What it comes down to is this. Congress cannot mandate that you purchase insurance. Congress *can* see that the service is provided and tax you for it.
They don’t have to nationalize the medical profession. It would be done by nationalizing the Insurance industry.
Though I believe I am a strong conservative/libertarian, I do believe that this is the way it should be done.
I also believe I’m practical and that *this* government, in its current form and method of dysfunction brought on by ever increasing liberal-facism tendencies couldn’t possibly do this in a successful manner.
“I doubt we will ever see a Conservative Senate, its full of RINOs.”
So true. In fact, there’s probably one under your bed.
“Open revolt” means, at the very least:
1. You, personally, will be cuffed, booked, jailed, charged, tried, and, if found guilty, imprisoned;
2. You will lose your job and/or business, and with it your income;
3. You family will suffer both economic hardship and the emotional trauma of having a criminal for a father;
4. Your plans for the future will be drastically curtailed, delayed, or eliminated;
5. Upon release, you will be ostracized by your friends and loved ones;
6. You will never again be able to own a firearm;
7. Your right of movement may be severely restricted;
8. You will be watched by law enforcement for the rest of your life;
9. Everything you own will be taken away from you;
10. Your life as you have known it will end.
Are you ready to suffer these things? Picture your wife and children watching federal agents haul you away at gunpoint. Picture them talking to you through glass in a prison visiting room. Picture living in poverty for the rest of your life. That is what your life will be like if you openly revolt.
I’m not saying “open revolt” is a bad thing. I’m saying that anyone contemplating it had better be damned sure they know what they are signing on for. I’m saying that anyone who has any illusions of leading a mass movement against tyranny, or even of becoming a martyr for the cause, is fooling themselves. Once Fedgov comes for you, your fellow All-American, Don’t-Tread-On-Me Minutemen will suddenly discover 1,776 reasons to be somewhere else. They will disappear, then you will disappear, and no one will care or even notice. Mel Gibson will not run to your aid with a flag in his hand. Jim Robinson will not pay for your legal defense. Rush Limbaugh will not give you a job when you get out of Leavenworth. You will be left alone to face the power of the entire Machine.
They shot Randy Weaver’s wife through the head in her own front door. Nobody did anything to help them. Nobody will do anything to help you if you openly revolt.
The federal government may seem like a splay-feathered, broken-winged old eagle, but I assure you that it only seems that way. Anyone that openly defies it had better be ready to feel the beak and talons — the kind that draw blood.
Because the commerce clause of the Constitution has been so distorted as to permit Congress to regulate virtually any activity without concern for whether it constitutes interstate commerce, we have come to the point, as George Will correctly points out, that the courts have quit any pretext to the defense of economic liberties. The Supreme Court no longer inquires into the nature of the commerce, it no longer inquires into the constitutional legitimacy of Congressional control and seeks to determine whether actual interstate commerce is involved. (I know there is a body of law, small, that has to do with Bill of Rights liberties such as the right to bear arms, which have fallen-but the momentum of the law is clearly the other way.)
So we conservatives strive to draw a new Siegfried line of defense, this one drawn at the distinction between controlling and eliminating the personal liberties of those who are not engaged in commerce because the court has largely conceded the power of Congress to control the liberties of those who do engage in commerce-whether interstate or otherwise.
There is nothing in the Constitution to support this principle so we are dredging one up in desperation having lost the main battle. This is why I have forecast for years now that Obama care is not unlikely to be approved by the Supreme Court. Although I applaud this effort to find a new rationalization which the court can use this year to defend the Constitution, the opinion of conservative Judge Silverman should warn us that the dike has broken, new levies no matter how clever are unlikely to stay the flood, at least for long.
But the constitutional wreck which this outrageous expansion of congressional encroachment on our liberties presents is much worse than it appears on the surface.
The problem is that it is only in the name of Congress that our liberties are being encroached the actual dirty work is being done by a bureaucratic machine. In essence, Congress has stolen our liberty, the decision whether or not to buy insurance, and fenced to the bureaucrats. Once this law becomes constitutionally sanctioned by the Supreme Court, the actual administration of the law is given over with virtually no guidelines, or at most vague and unchallengeable limits, to bureaucrats' arbitrariness. But the reality is more than the mere administration of the law, the power to make policy, and the most important policy at that, is also left to the bureaucrats with no real check or oversight.
Once the bureaucrat makes a decision defining the kind of insurance you must have, or the kind of treatment you can get because your condition or disease does or does not qualify, it in effect becomes law. Yes, that policy is subject to review by Congress but that means, apart from the illusion of judicial oversight, only a super majority of Congress plus the acquiescence in the reform by the president can get that law changed.
There is no effective control in a government constitutionally splintered by checks and balances. This stands the Constitution on its head. Here in a very real and important sense we have a unelected bureaucrat making laws which can only be overturned by a supermajority. If the real power is actually wielded by a "Czar" who is not even subject to confirmation, we have not a representative democracy but a tyranny.
This is clearly an unconstitutional and improper delegation of the responsibility of the article One Congress to do its duty under the Constitution and subject that legislation to the vote of the people. I have a chance to vote against my representative who would impose health care I do not want upon me and my family, but what chance do I have to influence a bureaucrat if I need a super majority in Congress?
Finally, it is small comfort in our effort to draw these lines arbitrarily without reference to the Constitution as we are now forced to ask the Supreme Court to do, because we are asking the Supreme Court to rule against human nature-their own.
As long as the court gets to draw the lines where it fancies them, they retain power. We are asking them to give that up and make themselves irrelevant. Once they rule that the statute is unconstitutional because we cannot compel people not engaged in commerce, the Supreme Court loses a whole potential field in which to exercise its power to draw new lines. It is not in human nature, unless one is named George Washington, to voluntarily relinquish power.
The old adage, "the power to tax is not the power to destroy so long as this court sits" is mocked by history. The power to tax is pernicious enough but the power to regulate can be equally mortal. We simply cannot rely on the courts to draw new lines as much as they might relish the role and it is folly to expect a super majority to be our salvation.
I have never wanted courts to become lawmakers.
Depending on SCOTUS for conservative decisions is stupid.
So when the government decides to order you to spend money you don’t have on services/products you don’t need/want/can’t afford....
we should do what? sit and wait for it to collapse?
Or donate funds ONLY to liberal demoncrats!
” Im saying that anyone who has any illusions of leading a mass movement against tyranny, or even of becoming a martyr for the cause, is fooling themselves. “
It seems, to this untrained eye, that we’ve reached that awkward point in history, where we are starting to feel the need for modern-day incarnations of Adams, Madison, Hamilton, Paine, Jefferson, Franklin, et.al., - but not yet reached the ‘critical mass’ which will be necessary to bring such leaders forward...
I think (hope!) they’re out there - it’s just not quite their time, yet....
The judge, Silberman, assumed there is no difference between regulating commerce (ongoing activity) and forcing behavior. This is idiotic, but it is even more idiotic not to read the section of the Constitution in which this regulation of commerce appears. Note that "foreign nations" appears in the list PRIOR TO "the several states". In other words, any definition of "commerce" that applies to the second cannot also apply to the first, foreign nations.
Who among us is willing to read the Constitution to say that "Congress can 'force' foreign nations to buy things against their own will?" That is why this is an idiotic conversation. There is no way to get there short of conquering those nations. Does this mean the "commerce clause" enjoins the U.S. to conquer the world?
Besides, back to the ignorant of the Constitution discussion at hand, if I want to regulate football, then I have to have football in order to regulate it.
The notion that I can force people to go play football is NOT assumed in the authority to regulate the football that does exist.
Silbermann doesn't understand the implication of existence that is assumed in the words "commerce" and "regulate." He doesn't speak as if he's even read the line in which "commerce" and "foreign nations" is mentioned.
Furthermore, if this passage means as suggested, then Congress' power of "regulation of the land and naval forces" means that we all can be called an army and be regulated in a military fashion by the Congress.
It may take a sea-change that begins with rejecting the mantra “conservative enough to win general elections, but not too conservative”. I think many things are going to be broken down to the foundations and remade, not through violence from the Right, but from reactionary violence from the Left (the ones threatening to throw Molotov cocktails through store windows and raping women in their protest camps).
In this country, at the moment, The Right wants the power to defend itself and provide for itself; the Left wants the power to take, intimidate, and injure a few so as to intimidate others and take from others. The party that embraces the power to create wealth and argues successfully that the ability to prosper comes through, not in spite of, our inalienable rights, will win, but it will be grueling.
Wish I could be more optimistic.
Step back and think about this:
When Democrats had absolute control of Congress, they enacted legislation that pushes the constitutional limits.
Now that Democrats do not have absolute control of Congress, President Obama is using Executive Orders to enact policies that push the constitutional limits.
It reveals the liberal belief that they are superior to all laws and norms.
Quote: They shot Randy Weavers wife through the head in her own front door. Nobody did anything to help them. Nobody will do anything to help you if you openly revolt.
The powerful understand, perhaps rely on this point to preserve their power. And that has served them well.
Until we have nothing left to lose.....
GeronL wrote: “A simple amendment would be better. Congress shall make no law governing the private economic actions of individuals.”
The Constitution already does this with the 10th Amendment. The problem is the federal government did a power grab by making the commerce clause extend to regulating the people.
Read the Commerce clause closely: note the Capital “S” on the term States. Then read up the long discussion on the difference between “the State” and “the people” in Heller vs DC.
A strict interpretation of the commerce clause reads the feds can only regulate state entities interacting with other state entities. Nowhere does the language of the commerce clause give the fed power to declare its own prohibition without an amendment, nor does its authorize the federal government to regulate the people.
So an amendment like you suggested would be ignored, since they already ignore most of them anyway.
Silberman and his fellow travellers should be impeached.
Will is correct, except in his assessment that there are five conservatives on the court.
not since Lincoln.
Lincoln killed the Old Republic 1787-1861.
The odd thing is that secession is still not codified in the Constitution. The USC is still silent on the issue, even after the "Reconstruction" amendments were passed.
Silberman is wrong.
Another lawless time, that left my family burned out of AL.
That is how some of my ancestors arrived in TX. During Reconstruction. (some of my ancestors were born here in TX during the Republic)
Yes, those family scars are still talked about.
Corrupt Federal Government is very hated here, even today.
What a succinct way of explaining the complex relationship between the government and the governed.
The day of his coronation (inauguration) I made this statement here on FR.
“Welcome to New Kenya (Africa USA) Where the law of the jungle has replaced the Law of the Land.”
Like a Sidney Poitier/Tony Curtis flick. Yes! I'll bring the popcorn.
What do you think the T-Party is about? What do you think the Oath Keepers are about? Do you have any clue what cemented the culture in some states (TX included) toward hating abusive government. To resist tyranny does not require breaking the law at this point. Speaking of breaking the law. What do you think the useful idiots that Obozo's OWS crowd is paying to live in parks is doing? Seems some of those vile creatures have been arrested.
"Rebellion to Tyrants is obedience to God"
Reverse side of the First Committee U.S. seal proposal.
The first committee consisted of Benjamin Franklin, Thomas Jefferson, and John Adams.
Franklin chose an allegorical scene from Exodus, described in his notes as "Moses standing on the Shore, and extending his Hand over the Sea, thereby causing the same to overwhelm Pharaoh who is sitting in an open Chariot, a Crown on his Head and a Sword in his Hand. Rays from a Pillar of Fire in the Clouds reaching to Moses, to express that he acts by Command of the Deity." Motto, "Rebellion to Tyrants is Obedience to God."
Are the "private" insurance companies allowed to have profits? Shareholders? How about we try something radical, like making people pay for their own health care with their own dollars? Price shop for the best care at the best price?
The motives for nationalization are political as well as economic. It is a central theme of certain fascist, economic nationalist, populist and/or national liberation policies that industry should be owned by the state on behalf of the citizenry to allow for consolidation of resources and central planning or control for the purposes of economic development.
Nationalization was one of the major strategies advocated by socialists for transitioning to socialism. Socialist perspectives that favor nationalization are typically called state socialism. The goals of nationalization in this context were to dispossess large capitalists and redirect the profits from them to the public purse, as a precursor to the long-term goals of the establishment of worker-management and reorganizing production toward use.
Sponsoring FReepers are contributing
$10 Each time a New Monthly Donor signs up!
Get more bang for your FR buck!
Click Here To Sign Up Now!
From the MATCH Game. That is funny as all heck! :)