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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...