Free Republic

Candidate for Senate Dan Liljenquist (left) pledged to The New American that should he be elected to the U.S. Senate he will offer legislation explicitly repealing the indefinite detention provisions of the National Defense Authorization Act (NDAA). In a press conference held on April 24 at 2:00 p.m. (MDT), the former Utah State Senator and current GOP challenger to six-term Senator Orrin Hatch described the indefinite detention provisions of the NDAA as “an overreach and a violation of the Bill of Rights.” He said that had he been in office when Congress voted to pass the NDAA he would have...

How dare President Obama brush back the Supreme Court like that? Has this former constitutional law instructor no respect for our venerable system of checks and balances? Nah. And why should he? This court, cosseted behind white marble pillars, out of reach of TV, accountable to no one once they give the last word, is well on its way to becoming one of the most divisive in modern American history. It has squandered even the semi-illusion that it is the unbiased, honest guardian of the Constitution. It is run by hacks dressed up in black robes ...

Checks And Balances: A president with no respect for the Constitution warns of judicial activism by a Supreme Court reviewing his landmark legislation's constitutionality. It would be unconstitutional to let it stand. Someone will have to remind President Obama the Supreme Court is a co-equal branch of government, part of a system of checks and balances designed to rein in precisely the kind of runaway government exhibited by his administration. Our community-organizer-in-chief has a different opinion. "Ultimately, I am confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was...

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...

The constitutional questions the Affordable Care Act poses are great, novel and grave, as much today as they were when they were first posed in an op-ed on these pages by the Washington lawyers David Rivkin and Lee Casey on September 18, 2009. The appellate circuits are split, as are legal experts of all interpretative persuasions. The Obama Administration and its allies are already planning to attack the Court's credibility and legitimacy if it overturns the Affordable Care Act. They will claim it is a purely political decision, but this should not sway the Justices any more than should the...

<p>I will be live-blogging the Supreme Court hearings on the Patient Protection and Affordable Care Act from March 26 to 28, beginning at 10 a.m. on Monday. I invite readers and NRO contributors to chip in with their observations. I will also incorporate Twitter feeds from various people from the health-care and legal worlds who are covering the case.</p>

The Obama administration repeatedly cites the conservative Supreme Court justice in defense of its health care overhaul. When the U.S. Supreme Court hears oral arguments later this month on whether the Patient Protection and Affordable Care Act’s individual mandate, which requires all Americans to buy or secure health insurance, oversteps Congress’ lawful authority to regulate interstate commerce, the Obama administration will be drawing heavily from the legal arguments of a surprising ally: conservative Justice Antonin Scalia. That’s because in 2005, when the Supreme Court last heard a major Commerce Clause challenge to a federal regulation, Scalia sided with the liberal...

In 1942, one of Franklin Roosevelt’s New Deal Supreme Courts ruled that an Ohio farmer named Filburn was NOT permitted to raise the amount of wheat he wished on his own farm, for the purpose of feeding his own family. And for 70 years this and a handful of similar, overreaching decisions by the Court have resulted in the wholesale abuse of a power granted Congress in Article 1, Section 8 of the Constitution, namely the “Commerce Clause.” (1) In the Wickard v Filburn case, the Court opened to Congress the nearly unlimited power to exercise legislative authority relating to...

President Obama's appointee to the Consumer protection bureau Richard Cordray is a staunch supporter of Obamacare. He has said the lawsuits against the legislation were "frivolous" because of the commerce clause.

Ninety-one-year-old retired Supreme Court Justice John Paul Stevens told Bloomberg News that he thinks President Obama's health care law will pass constitutional muster. He referenced a 2005 Supreme Court decision that held the federal government could outlaw state-sanctioned medical marijuana even if the substance didn't cross state lines, which was based on a broad interpretation of the commerce clause.

Why there is a good chance the individual mandate will be struck down by the Supreme Court. The Eleventh Circuit majority opinion (nicely summarized by Dan Miller) is noteworthy not only as the most thorough judicial discussion to date — 207 pages — but as an opinion written jointly by Chief Judge Joel F. Dubina (appointed by the first President Bush) and Judge Frank M. Hull (appointed by President Clinton). As a single opinion, co-authored by two experienced judges, appointed by Republican and Democratic presidents, it has considerable persuasive force.The federal district courts have divided on the constitutionality of ObamaCare...

The power to mandate health insurance is the power to mandate almost anything. (snip) Under our system of government....Congress has only those powers that are explicitly enumerated in the Constitution, with the rest "reserved to the states respectively, or to the people"....An all-encompassing Commerce Clause that authorizes any mandate, restriction, or prohibition aimed at behavior that might affect interstate commerce (subject to specific limits such as those imposed by the Bill of Rights) is plainly inconsistent with this federal system. he Obama administration therefore needs to explain why its constitutional rationale for the health insurance mandate—that the failure to obtain...

Tractors lumbering down country roads are as common as deer in rural Montana, but the federal government wants to place new driving regulations on farmers and ranchers. “It’s a huge deal for us,” said John Youngberg of the Montana Farm Bureau. After years of allowing state governments to waive commercial driver’s license requirements for farmers hauling crops or driving farm equipment on public roads, the Federal Motor Carrier Safety Administration is poised to do away with the exceptions. Regulators are suggesting that all wheat shipments be considered interstate, even when farmers making short hauls to local grain elevators aren’t crossing...

The interests of each constituent group in the Democrat Party coalition shows how distorted our federal government has become, all due to the errors of the Supreme Court. Swift v. United States, 196 U.S. 375 (1905) found that federal regulation of meat packing to prevent price fixing permissable because the regulated activity had an "affect" on commerce. And the trust busting Teddy Roosevelt smiled. A generation later, the New Deal took root in the the redefinition that consideration of an "impact" or "effect" on commerce permits. Justice Thomas filed a brilliant concurring opinion in U.S. v. Lopez 514 U.S. 549...

MISSOULA, Mont.—With a homemade .22-caliber rifle he calls the Montana Buckaroo, Gary Marbut dreams of taking down the federal regulatory state. He's not planning to fire his gun. Instead, he wants to sell it, free from federal laws requiring him to record transactions, pay license fees and open his business to government inspectors. For years, Mr. Marbut argued that a wide range of federal laws, not just gun regulations, should be invalid because they were based on an erroneous interpretation of Congress's constitutional power to regulate interstate commerce. In his corner were a handful of conservative lawyers and academics. Now,...

The signature crimes of the most violent drug cartel in Mexico are its beheading and dismemberment of rival gang members, military personnel, law enforcement officers and public officials, and the random kidnappings and killings of civilians who get caught in its butchery and bloodletting. But this disparate band of criminals known as Los Zetas is no longer just a concern in Mexico. It has expanded its deadly operations across the southwestern border, establishing footholds and alliances in states from New York to California. Just last year, federal agents tied a cocaine operation in Baltimore to the Zetas. “Those of us...

'I can take care of my enemies all right," Warren Harding once said. "But my friends, my damn friends, they're the ones that keep me walking the floor nights!" In the sense that so irked Harding, Judge Gladys Kessler is a great good friend of ObamaCare. The US district-court judge in Washington, DC, delivered a more telling blow against the law in the course of ruling it constitutional than critics have in assailing it as a travesty. At issue is the individual mandate. Two other district-court judges have struck it down on grounds that Congress doesn't have the power under...

A federal judge has upheld the national health care law, making it the fifth ruling on the merits of the legal challenges to the individual mandate. The ruling by the Clinton appointee, U.S. District Court Judge Gladys Kessler of the District of Columbia continues the pattern of Democratic-appointed judges siding with the Obama administration and Republican judges siding with the plaintiffs in ruling the mandate unconstitutional. Kessler's ruling comes in a case brought by individual plaintiffs, where as the two decisions striking down the mandate have come in cases brought by 27 states, based in Virginia and Florida. Like the...

As I promised in a previous post, I'm going to work my way through the Supreme Court justices and try and determine how likely each is to vote that Congress exceeded its authority under the Commerce Clause when it enacted the individual mandate. I'll start with Justice Thomas. This is the good news! I'll be researching these posts as I do them, but my initial somewhat educated impression is that Justice Thomas is probably the only Justice who is close to being a very high probability "unconstitutional vote" in a case decided on the merits. To start at the beginning,...

As the challenge to Obamacare’s constitutionality approaches the Supreme Court, the question on everyone’s mind is: How will Anthony Kennedy vote? But perhaps we should also ask: How will Antonin Scalia vote? Scalia is known as one of the Court’s most conservative justices, but a concurrence he wrote in a 2005 case should give opponents of the health-care law pause.

The thread title pretty much sums up the argument being put forward by Democrats. They believe that since commerce can be taxed, and the Constitution gives Congress the power to tax, that they can implement forced commerce and make people purchase health care coverage per the individual mandate. This argument is similar to "Murder is wrong, therefore capital punishment is wrong." Just as this is a false conclusion (capital punishment hasn't been proven to be murder) and begs the question, so too does the argument being put forward by center-left Democrats. Just because Congress can tax commerce does not mean...

On December 13, 2010, U.S. District Judge Henry Hudson ruled in Virginia v. Sebelius that the individual mandate included in the Patient Protection and Affordable Care Act (PPACA), popularly known as Obamacare, is unconstitutional.

Chamber of Commerce President Tom Donohue indicated on Wednesday that the business group was looking past Congress and focusing more on federal regulators now that the election’s over. Donohue, during an address to members this morning, cited the threat of a “regulatory tsunami” as “the biggest single threat to job creation.” He claimed that the EPA is advancing 29 proposed major rules and the Labor Department was pushing “at least 100 regulations and policy changes.” The new financial regulatory overhaul has 320 required rule makings, and ObamaCare creates 183 “agencies, commissions and panels.”

Full headline:In CA on Election Eve, Women Solidify Opposition to Prop 19; Even the Greater San Francisco Bay Area No Longer Supports Legal Marijuana SurveyUSA Breaking News - 8 hours ago [about 5pm edt] On Election Eve, California remains divided on Proposition 19, with women opposing the measure now more than at any point during the campaign and support in the greater San Francisco Bay Area no greater than opposition, according to SurveyUSA's 8th and final pre-election tracking poll , conducted for KABC-TV in Los Angeles, KPIX-TV in San Francisco, KGTV-TV in San Diego, and KFSN-TV in Fresno. "No" has 46%,...

In the latest news from my home state, aka La-La Land of the Loony Left, last week's polls showed that the initially high support for Prop 19, which would legalize recreational marijuana, have dropped below 50% .

A report from the Congressional Research Service (CRS) casts doubt on the two main arguments used by the Obama administration to defend the individual insurance mandate that is the central component of the controversial health “reform” law. Published on October 15, the CRS report examines the arguments both for and against the constitutionality of the individual mandate, which requires every American to purchase government-approved health insurance or else pay a fine. The mandate, to be enforced by the Internal Revenue Service, has been challenged as an unconstitutional overreach of federal authority in a lawsuit filed by Virginia Attorney General Ken...

LOS ANGELES — The Department of Justice says it intends to prosecute marijuana laws in California aggressively even if state voters approve an initiative on the Nov. 2 ballot to legalize the drug.

Alice in Wonderland notwithstanding, Congress must say what it means and mean what it says. In an order released on October 14 . . . Judge Vinson of the U.S. District Court for the Northern District of Florida, Pensacola Division, permitted an action by twenty states challenging the mandatory health insurance provisions of ObamaCare to go forward. . . . He noted, "Reviewing courts cannot cannot look beyond a statute and inquire whether meant something different than what it said. "I have no choice but to find that the penalty is not a tax." Judge Vinson continued, noting that by...

A Sacramento-based legal group has joined Virginia’s battle against the federal health care overhaul, filing an amicus brief in federal court in Richmond supporting the argument being advanced by Virginia Attorney general Ken Cuccinelli. The Pacific Legal Foundation “friend of the court” brief argues, like Cuccinelli, that the insurance mandate provision of the new health care law violates the Constitution’s Commerce Clause by ordering individual citizens to buy a good or service or face a fine.

Helena, Mont. (AP) - A federal magistrate is recommending dismissal of a lawsuit filed by eight states seeking freedom from federal gun laws. The recommendation now goes to the federal judge hearing the case. The states argue they should decide which rules would control the sale and purchase of guns and paraphernalia made inside their borders. The federal magistrate sided Wednesday with the U.S. Department of Justice and gun control advocates who say the courts have already decided that Congress can set standards on such items as guns through its power to regulate interstate commerce. The states in the lawsuit...

http://www.youtube.com/watch?v=7WjaddBoTgI

Americans have now learned about the extreme views of Solicitor General Elena Kagan, President Obama’s nominee to the Supreme Court. Kagan’s testimony before the Senate Judiciary Committee contained much clear evidence of her expansive view of federal power and her lack of respect for the 2nd Amendment. Kagan’s views on the Commerce Clause and Americans’ right to “keep and bear arms” make her unfit to serve on the Supreme Court. Senators should filibuster her nomination to stop her sitting on the highest court in the land. Much has been made of Kagan’s banning military recruiting from the campus of the...

Remember when the Commerce Clause challenge to the individual insurance mandate was dismissed by all serious and knowledgeable constitutional law professors and Nancy Pelosi as “frivolous”? Well, as Jonathan notes below, the administration is now apparently telling the New York Times that the individual insurance “requirement” and “penalty” is really an exercise of the Tax Power of Congress. "Administration officials say the tax argument is a linchpin of their legal case in defense of the health care overhaul and its individual mandate, now being challenged in court by more than 20 states and several private organizations." Let that sink in...

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Hatch calls Kagan filibuster 'dirty thing to do' By Eric Zimmermann - 07/01/10 12:19 PM ET A Republican filibuster of Elena Kagan would be "an unheard of, dirty thing to do," Sen. Orrin Hatch (R-Utah) said Thursday. Hatch, a member of the Senate Judiciary Committee, told ABC News's "Topline" today that his party won't prevent an up-or-down vote on Obama's SCOTUS nominee. "Republicans aren't going to filibuster her," he said.

(Congress shall have the power: ) "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;" — Article 1, Section 8, United States Constitution Take a good, long look at the above "commerce clause," my fellow Americans. As far as the American left is concerned, it is the vehicle by which tyranny can imposed on the citizenry of the United States. Too strong a contention? Not at all. Our Democratically- controlled Congress has made it clear that "commerce" is a term so flexible it can be "regulated" — even when it literally doesn't exist....

The central conceit of the Left is their regard for outcome above principle, results above rights. “Progressivism” repackages the age-old idea that society has a collective right superior to the individual’s. We saw this in the argument for universal health care, where the Left regarded the outcome of “universal coverage” above the principle of personal liberty. Unfortunately, this conceit is not limited to the Left. Social conservatives are willing to borrow à la carte from statist arguments when the results suit their taste. No issue evokes this phenomenon more than drug control policy. NewsRealBlog hosted much debate on the legalization...

In an effort to please union backers ahead of the 2010 midterm elections, Senate Majority Leader Harry Reid is quietly trying to nationalize rules governing every police, fire and first responder union in the nation. Through the benignly named Public Safety Employer-Employee Cooperation Act (H.R.413), Reid wants all first responders represented by collective bargaining rules emanating from Washington D.C. Naturally this legislation is being pushed as a matter of "national security." Democrats' union supporters will greatly benefit from nationalized rules for police and fire unions. This plan would replace with federal rules state laws on collective bargaining between state and...

Last week, with little fanfare, among the ever deteriorating oil spill crisis, the White House quietly noted the issuance of an executive order "Establishing the National Prevention, Health Promotion, and Public Health Council", in which the president, citing the “authority vested in me as President by the Constitution and the laws of the United States of America” is now actively engaging in "lifestyle behavior modification" for American citizens that do not exhibit "healthy behavior." At least initially, the 8 main verticals of focus will include: smoking cessation; proper nutrition; appropriate exercise

Seeing that George Soros and Sting are working together to “end the drug war” puts me in mind of a story an Army buddy who works in the DEA told me about busting in the door of a drug house only to find three occupants – the oldest four years old, having been left in charge while his “parents” went out to score meth. Yeah, drug use is a victimless crime – if you ignore the victims. Apparently not content to subsidize the whining of the nonentities at Media Matters, Soros is taking a break from his adventures in currency...

Voter dissatisfaction with Republicans and Democrats is at historic levels, and the tea-party movement is hoping to play kingmaker in the November elections. The country’s current breed of discontent is ideal for the tea parties, because economic concerns are foremost, allowing the movement to sidestep the divisions between its libertarian and conservative wings. As the elections near, however, voters will want to know where the party stands not just on the economy but on social issues. A perfect illustration is drug policy, where conservatives advocate continued prohibition but libertarians argue for legalization. Which way should the tea party lean when...

The newest legal brief in a court challenge to Obamacare, the president's nationalization of health care across the U.S., says the Constitution simply doesn't allow the federal government to demand a payment for not doing something. The case was brought by the Thomas More Law Center on behalf of several individuals. It challenges the government's plan to force individuals to buy health-care insurance and pay for abortions, among other issues, or be penalized. It was brought in the U.S. District Court for the Eastern District of Michigan and seeks an injunction to halt the plan. Named as defendants in the...

California voters favor the legalization of marijuana for personal use 49 percent to 41 percent, according to a LA Times/USC poll. The measure will appear on the November ballot. However, one-third of backers say they favor it only “somewhat.” A poll last month by the Public Policy Institute of California found the measure in a statistical dead heat, 49 percent to 48 percent.

Rand Paul has taken a principled — but politically incorrect — position, for which he’s being pilloried. the Supreme Court upheld the 1964 act, the law has a disputable constitutional pedigree. The Civil Rights Act addresses the conduct of private individuals, so it is not easily shoehorned into the 14th Amendment, which constrains only government conduct. And the act has nothing to do with reducing state-imposed obstacles to the free flow of interstate trade — so it should not have been legitimized under an original understanding of the commerce clause. The remedy in such cases is either to amend the...

RICHMOND, Va. – President Barack Obama's administration on Monday asked a federal judge in Virginia to dismiss the state's lawsuit alleging Congress overstepped its constitutional bounds with the new health care reform law. Health and Human Services Secretary Kathleen Sebelius argued in a motion filed hours before a midnight deadline that the law is well within the scope of the Constitution's Commerce Clause. Virginia's Republican attorney general, Ken Cuccinelli, filed suit in U.S. District Court in Richmond less than eight hours after Congress enacted the law. It argues that requiring people to buy health coverage or pay a fee exceeds...

The federal government is arguing in a gun-rights case pending in federal court in Montana that state plans to exempt in-state guns from various federal requirements themselves make the laws void, because the growing movement certainly would impact "interstate commerce." The government continues to argue to the court that the Commerce Clause in the U.S. Constitution should be the guiding rule for the coming decision. The argument plays down the significance of both the Second Amendment right to bear arms and the 10th Amendment provision that reserves to states all prerogatives not specifically granted the federal government in the Constitution....

Come November, Californians will have the chance to legalize marijuana for the specific purpose of raising revenues via taxes. We all knew that it would be just a matter of time before the same individuals would get enough signatures to put the legalization of marijuana up for a vote by the California citizens. It is a bit ironic when you consider how militant the same individuals wanting marijuana legalized have gone on a witch hunt against tobacco products. The attack on the tobacco industry began over 50 years ago when the Surgeon General forced the tobacco company's to label...

The Federal Fat Police:Bill Would Require Government to Track Body Mass of American Children Thursday, May 13, 2010 By Penny Starr, Senior Staff Writer (CNSNews.com) - A bill introduced this month in Congress would put the federal and state governments in the business of tracking how fat, or skinny, American children are. The will would require states that receive federal dollars for health programs to track the Body Mass Index of children ages 2 through 18 annually through records collected by their health care providers. The legislation also requires the states to pass that data on to the Department of...

WASHINGTON — Critics who allege that Congress overstepped the U.S. Constitution by requiring Americans to carry health insurance are "flatly wrong," the Obama administration said Wednesday in its first court defense of the landmark health care law. Congress acted well within its power to regulate interstate commerce and to provide for the general welfare, Justice Department lawyers argued in a 46-page brief filed in federal district court in Detroit. For the courts to overturn President Barack Obama's signature domestic legislation would amount to unwarranted interference with the policymaking authority of Congress, they added.

A small Protestant church in Leon Valley, an enclave within the city of San Antonio, is challenging a zoning code that prohibits the church from holding Sunday worship services. The city code excludes religious assemblies from some zoning areas because they decrease the city’s tax revenue and interfere with commercial activity. In 2007, revisions to the city code excluded churches from most of the city to maximize tax revenues, the Becket Fund for Religious Liberty reports. Auditoriums, convention centers, private clubs and schools are free to locate in the city’s retail zones, but churches are not. The Elijah Group, an...