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Justice Breyer's unhinged Commerce Clause ramblings
Washington Examiner ^ | 03/29/2012 | by Conn Carroll

Posted on 03/29/2012 10:12:12 AM PDT by SeekAndFind

I was listening to the tape-delayed Obamacare oral arguments in the car Tuesday when I first heard Justice Breyer's Commerce Clause diatribe, and I meant to post something when I got home. But after making dinner and putting the kids to bed, I forgot.

Until today, that is, when I read Jeffrey Anderson's account of "Breyer's Missteps." I think Jeffrey is far too generous to Breyer. Here is a fuller transcript of Breyer's outburst:

I look back into history, and I think if we look back into history we see sometimes Congress can create commerce out of nothing. That's the national bank, which was created out of nothing to create other commerce out of nothing. I look back into history, and I see it seems pretty clear that if there are substantial effects on interstate commerce, Congress can act.

And I look at the person who's growing marijuana in her house, or I look at the farmer who is growing the wheat for home consumption. This seems to have more substantial effects.

Is this commerce? Well, it seems to me more commerce than marijuana. I mean, is it, in fact, a regulation? Well, why not? If creating a bank is, why isn't this?

And then you say, ah, but one thing here out of all those things is different, and that is you're making somebody do something.

I say, hey, can't Congress make people drive faster than 45 -- 40 miles an hour on a road? Didn't they make that man growing his own wheat go into the market and buy other wheat for his -- for his cows? Didn't they make Mrs. -- if she married somebody who had marijuana in her basement, wouldn't she have to go and get rid of it? Affirmative action?

Breyer alludes to four Supreme Court cases. And he manages to botch the key facts of the case in every single one of them. Let's start at the top:

That's the national bank, which was created out of nothing to create other commerce out of nothing.

This is a reference to McCulloch v. Maryland, in which the Court upheld Congress' ability to create the Second Bank of the United States. But, as Paul Clement pointed out in oral argument, Chief Justice John Marshall found that Congress' power to create the bank came from the Necessary and Proper Clause, not the Commerce Clause as Breyer suggests. Furthermore, Congress did not compel individuals to deposit money in the bank, only that Congress could create it in order to better manage its financial affairs.

Next Breyer says:

I say, hey, can't Congress make people drive faster than 45 -- 40 miles an hour on a road?

No, actually they can't. Or at least no Court precedent says they can. The closest case is South Dakota v. Dole where the Court held that Congress could force states to raise their drinking age to 21. But again, that wasn't even a Commerce Clause case, it was a Spending Clause case (just like Wednesday's argument over the Medicaid expansion). And while Congress has, in the past, forced states to adopt a national speed limit in exchange for highway funds, it has never forced anyone to drive at a minimum speed.

Didn't they make that man growing his own wheat go into the market and buy other wheat for his -- for his cows?

No, they didn't. Breyer is pretty clearly referring to the landmark New Deal case Wickard v Filburn here, a case where the Department of Agriculture fined a farmer for growing more wheat than the government set quota allowed. Again, no one forced the farmer to do anything. He could have chosen not to grow wheat, or not to be a farmer at all. The individual mandate is completely different because Congress is forcing all Americans to buy a specific product as a condition of their existence within the U.S.

Didn't they make Mrs. -- if she married somebody who had marijuana in her basement, wouldn't she have to go and get rid of it?

Again, no. The plaintiff in the Court's recent medical marijuana case, Gonzalez v. Raich, was suing the federal government to stop them from destroying her pot. No one was forcing her to grow pot or go around throwing away other people's pot. Where Breyer came up with this fact pattern is a complete mystery.

Breyer mischaracterized the facts and holdings of every case he alluded to. If this is the quality of argument the liberals on the court are making to Justice Kennedy, the individual mandate is a goner.



TOPICS: Constitution/Conservatism; Culture/Society; Government; News/Current Events
KEYWORDS: breyer; commerceclause; nancyboy; obamacare; scotus; scotusocareday3

1 posted on 03/29/2012 10:12:21 AM PDT by SeekAndFind
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To: SeekAndFind

Wow. Sounds like the rantings of a lunatic.


2 posted on 03/29/2012 10:19:22 AM PDT by Londo Molari
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To: Londo Molari

He needs to be purged from the court for being an idiot.


3 posted on 03/29/2012 10:24:55 AM PDT by boomop1 (term limits is the only way to save this country.)
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To: SeekAndFind
he's a liberal. "facts" don't matter. look at this video in it's entirety and you'll see why he and the other liberal CAN'T be persuaded by facts. Even if they are placed in front of their very faces. These people would somehow blame Bush if a muslim tied them up, put them on their knees, cut their heads off and videotaped it for later broadcast.

For the quick view go to about 2:50 into the video...but the entire 9 part series lays it all out. This isn't a Russian or KGB thing.. It's a COMMUNIST/UTOPIAN/SOCIALIST war against freedom and the United States has been at war since the late 40's. It is a great world wide anti freedom war.

Click here

4 posted on 03/29/2012 10:27:58 AM PDT by Dick Vomer (democrats are like flies, whatever they don't eat they sh#t on.)
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To: Dick Vomer

later. at lunch now


5 posted on 03/29/2012 10:31:32 AM PDT by mel (There are only 2 races decent and undecent people)
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To: SeekAndFind

Senile dementia. Say, where’s that drawing of Ginsberg asleep on the bench? The Liberal Wing of the Court would be a laughing-stock but for the damage its done.


6 posted on 03/29/2012 10:32:23 AM PDT by pabianice (")
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To: SeekAndFind

EXCELLENT analysis and explanation!

Thanks!


7 posted on 03/29/2012 10:34:30 AM PDT by Bigun ("The most fearsome words in the English language are I'm from the government and I'm here to help!")
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To: SeekAndFind

This one needs to retire.


8 posted on 03/29/2012 10:34:46 AM PDT by SandyInSeattle (Smith & Wesson: The original point and click interface)
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To: SeekAndFind

What I want to know is, did his outburst wake up Ruth Buzzie Ginsberg? Or did she continue to sleep through it?


9 posted on 03/29/2012 10:40:16 AM PDT by crosshairs (Civil rights are for civil people.)
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To: Londo Molari
Wow. Sounds like the rantings of a lunatic.

Indeed. I'd like to think that someone on the USSC could construct extemporaneously a grammatically correct sentence, never mind a coherent paragraph. This is the kind of stuff you hear from derelict winos. If this is a window to his disordered thinking I'm surprised he could find his way to work. It sounds like Harry Reid or Nancy Pelosi, briefed with all the talking points, but not able to assemble them into actual English.

10 posted on 03/29/2012 10:41:49 AM PDT by Paine in the Neck (Romney's judicial appointments were more radical than Obama's)
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To: SeekAndFind
And still, after all the dust, obamacare is not at all about regulating the interstate commerce of "health care." It is about regulating the health insurance industry, which is by design not interstate.
11 posted on 03/29/2012 10:42:22 AM PDT by Sgt_Schultze (A half-truth is a complete lie)
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To: SeekAndFind
;D

12 posted on 03/29/2012 10:51:23 AM PDT by skinkinthegrass ( Kill all the terrorists, Protect all the borders, ridicule all the (surviving) Liberals :^)
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To: SeekAndFind; All
This comment on Justice Breyer's nonsensical musings, when combined with those of Justice Kagan, should alarm every citizen who cherishes the Constitution's underlying principles, as articulated and explained by America's Founders and Framers of that Constitution's protections for liberty.

My post from another thread related to Kagan:

"Kagan: "'The exact same argument so, so that really reduces to the question of: why is a big gift from the federal government a matter of coercion?
"'In other words, the federal government is here saying: we’re giving you a boatload of money. There are no, is no matching funds requirement. There are no extraneous conditions attached to it.
"'It’s just a boatload of federal money for you to take and spend on poor people’s healthcare. It doesn’t sound coercive to me, I have to tell you.'"

This statement tells us everything we need to know about Justice Kagan's concept of "coercive power" versus "individual liberty" and the Constitution's protections for the latter.

America's Founders viewed "government" as "coercive" by nature.

America's Founders understood that "government" creates no money, has no money, and cannot "gift" money without first "taking" it from someone--a "coercive" act in itself.

Besides, this "boatload of money" is not "federal money." It is "the People's" money, and who is naive or uninformed enough to believe that "taking" it from the people, sending it to Washington, and then doling it out to the States is an efficient way to provide "poor people's health care"????

Oh, how far we have come from the genius and wisdom which gave birth to America's Constitution, America's liberty for all, and America's prosperity and greatness!!!

I hope that these members of the Supreme Court will understand that future generations of Americans and individuals all over the world, given the new technologies which enable them to study the Founders' ideas, will judge them by the Framers' standards, not by the standards of the so-called "progressive" politicians in this Administration.

"Ideas have Consequences" (Weaver). America's Founders' ideas produced freedom, opportunity, prosperity and plenty for hundreds of millions of oppressed people.

The "progressives'" ideas of redistribution (socialism) have produced approaching tyranny and oppression, mediocrity, and want, in every society where they have been tried.

13 posted on 03/29/2012 11:02:23 AM PDT by loveliberty2
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To: crosshairs
What I want to know is, did his outburst wake up Ruth Buzzie Ginsberg.

.

.

.

14 posted on 03/29/2012 11:06:37 AM PDT by Jeff Chandler (I tried to buy a hoodie today but the store manager said they had all been shoplifted.)
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To: Dick Vomer

:: he’s a liberal. “facts” don’t matter. ::

The only thing that matters is how the liberal interprets the “facts” at that very time and moment if it furthers the neo-communist cause.


15 posted on 03/29/2012 11:09:13 AM PDT by Cletus.D.Yokel (Catastrophic Anthropogenic Climate Alterations - The acronym explains the science.)
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To: jurroppi1

BTTT.


16 posted on 03/29/2012 11:18:53 AM PDT by jurroppi1
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To: loveliberty2
Excellent post!

BRAVO!!!

17 posted on 03/29/2012 11:32:18 AM PDT by Bigun ("The most fearsome words in the English language are I'm from the government and I'm here to help!")
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To: Bigun

So, Kagan and Sotomayor are idiot plants, Breyer and Ginsberg are withering, potted, idiot plants.

And the Senate put them there, making the Senate nothing but weeds masquerading as ‘plants.’


18 posted on 03/29/2012 11:37:57 AM PDT by combat_boots (The Lion of Judah cometh. Hallelujah. Gloria Patri, Filio et Spiritui Sancto.)
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To: Dick Vomer; boomop1

We need to win enough seats in the house and senate (60%?) to impeach and remove at least one justice just to get the courts attention.

Kagan would be the easiest after not recusing herself, but I would be happy with one or more of the liberal “make laws up as we go” justices.


19 posted on 03/29/2012 12:09:06 PM PDT by FreeAtlanta (Liberty and Justice for ALL)
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To: SeekAndFind
While I agree with most of this article, I must point out that there is a minimum speed, 40 mph is the norm, on the interstate. You will be fined for driving below that speed.

That said, Bryer is definitely a Liberal, who will vote to retain Obamacare, regardless of logical arguments against it.

20 posted on 03/29/2012 12:10:13 PM PDT by Mister Da (The mark of a wise man is not what he knows, but what he knows he doesn't know!)
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To: Bigun; All
Thank you!

These hearings and the Supreme Court's opinions, both majority and minority, provide a great "teaching moment" for every individual who truly wishes to preserve (conserve) the Founders' ideas of what their Constitution meant.

Any of us who know a high school or college student who may be being propagandized by so-called "progressive" educators might do well to provide them with the Founders' own words on the nature of liberty and the nature of political and government tyranny. Else, how will they distinguish between the competing ideas?

We may be certain that, if they are in the so-called "public" schools, they likely are being propagandized by ideas which are foreign to America's Constitutional foundations.

A copy of Mark Levin's "Liberty and Tyranny," or a Bicentennial (1987, now reprinted) volume entitled "Our Ageless Constitution," might help them to sort the wheat from the chaff of redistributionism.

Levin's work speaks for itself.

The older volume, which celebrated 200 years under the Constitution, is an easy-to-read, beautifully-illustrated 292-page hard-cover book utilizing the Founders' own words to describe the essential principles underlying the Declaration of Independence and Constitution's protections. In Part V, constitutional scholars in 1987 traced the methods by which America had been led away from those principles over the 200 years. It is available here. A click on the "endorsements" tab will show 1987 reaction to the volume, including words from President Reagan.

November 2012 provides young people an opportunity to participate in a decision which is critical to liberty. To be informed is to retain a possibility for their children's children to be free.

21 posted on 03/29/2012 12:41:12 PM PDT by loveliberty2
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