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Tuesday, March 23, 2010

ObamaCare Goes To Court

By Douglas V. Gibbs

In a recent article I wrote that the Health Care legislation that Obama signed today was headed to the courts. In response, more than a dozen leftwing crazies screamed at me, "But you said about the courts. . . !"

The sentence I am figuring got the liberals bent all out of shape was: "In the meantime, many expect the courts to be called upon to determine if this legislation is Constitutional."

Apparently that is where they stopped reading, because in the very next paragraph I wrote: "Even if the Supreme Court determines the unconstitutionality of this legislation, it will stay on the books until it can be repealed legislatively."

In other words, the courts cannot make law, or repeal law. But, if the Health Care legislation, in the opinion of the United States Supreme Court, is found to be unconstitutional, will the Democrat Party-led Congress be willing to repeal the law?

The answer is a resounding "No."

The leftists are under the impression that once this monstrosity is around for a while, and the "benefits" kick into play (shhh, don't tell the Obama-lovers that the so-called benefits don't start for four years), the people are going to like it, drop all of the court cases against it, and march to the government doctors with grins on their faces singing Kumbaya. Never mind the fact that thousands of additional IRS agents are to be hired to enforce the mandates of the new law, or that 40% tax hikes on medications will occur, while the tax on “Cadillac” plans for union members was delayed in the reconciliation bill until 2018 (unions rule the minds of politicians most of the time).

Well, the people don't even need the tax hikes to kick in to tell them they don't like what the leftist radicals have passed. The citizens of America already hate the socialism that passed the House on Sunday, and was signed into law by Obama today.

According to two new polls, the American people are even more strongly against the health care plan than they were before. A CNN poll found that 59% of Americans oppose President Obama’s plan. A CBS News poll indicates that 48% of Americans oppose the plan (with 33% in strong opposition) compared to only 37% who support it (with only 13% in strong support). The CBS poll also says that 76% of Americans disapprove of how Congress is handling its job on health care, 46% think Congress has spent too much time on health care, and 49% believe the rules and procedures used in Congress to get the current health care bill passed have been mostly unfair.

Even not-so-conservative writers are questioning the legislation, finding the health care legislation "historically irresponsible." The American Thinker even goes so far as to say that the Health Care legislation is full of racial preferences, in addition to all of its other unconstitutional provisions.

The people do not like what has happened, and the states are taking action. Fourteen Attorneys General have filed suits against ObamaCare, and two states (out of 38 that have proposed similar legislation) have passed bills that reject the government mandates.

When it comes to the courts, however, understand that though they should find it unconstitutional (well, that is if Kennedy - the usual swing vote - proves to be a Constitutionalist, rather than a socialist), the battle is far from over, and a United States Supreme Court decision in our favor does not negate the horrendous Health Care Law signed by President Barack Obama today.

In the end, if this piece of legislation is to be stopped, it needs to be done through the states, and the proposals of bills in the states to reject the Health Care legislation's mandates is definitely a start.

Even if the states unite in their rejection of this unconstitutional law, or at least most of them do, the battle will have just begun because the federal government will do everything in its power to stop the state's attempt to assert their individual rights, and the feds will try to do so, probably, through the courts.

The Founding Fathers intended the judiciary to be the weakest branch of government, and Alexander Hamilton (who later betrayed what he wrote through his actions both during the Constitutional Convention, and afterward) assured Americans in the Federalist Papers that the judiciary "will always be the least dangerous to the political rights of the Constitution," and that a state's sovereignty would always be protected.

John Marshall, the fourth Chief Justice of the United States (serving from January 31, 1801 until his death on July 6, 1835), was not happy with justices not being supreme over the legislators, and in a series of cases asserted the Court's "supremacy" over the U.S. Congress, state legislatures, and state courts. Ultimately, Marshall's chief goals were to neuter the state's rights in the federal system, and to put the U.S. Congress on a judicial leash.

The notion that the federal government should have veto power over the states was rejected in the Constitutional Convention, as was the court's ability to negate laws on the grounds of their "interpretation" of the Constitution. In fact, during the convention for Virginia's ratification of the Constitution the State of Virginia had people labor over every detail of the document for weeks to make sure there were no infringements of state's rights.

John Taylor's New Views of the Constitution of the United States (1823) based on notes by Robert Yates of the Constitutional Convention states: "The proposals for a national government and its negative power over the state acts, were really made. . . they were opposed by the state deputies. . . they were rejected."

In the hopes of reversing this understanding of the Constitution, Marshall wrote in reference to an 1810 case, Fletcher v. Peck, that a contract, despite fraud, was valid. The idiocy of his position was not what mattered to Marshall, what mattered was establishing legal precedent. Nowhere in the Constitution is it mentioned that federal courts can review and veto state, as well as, federal legislation. But John Marshall was interested in creating a federal judicial dictatorship that would rule through the pronouncements of supreme judicial rulers.

When state courts began to challenge Marshall's political objective of the central government ruling over the states through a small number of men, Marshall attempted to stomp out the challenge to federal supremacy in an 1816 case known as Martin v. Hunter's Lessee, where Virginia had seized land owned by British loyalists during the Revolution. The act by Virginia occurred before the takings clause of the Fifth Amendment had been added to the Constitution, and the state courts ruled the land seizure to be legitimate. Marshall, and his allies in the Supreme Court believed otherwise, citing the Jay Treaty that ended the war and allowed British Citizens to own land in the new country. Joseph Story, a friend and ally of Marshall's, wrote the opinion, citing the Supremacy Clause in the Constitution, ignoring the fact that the federal government's authority is limited to the enumerated powers in Article I, Section 8.

Nothing in the Constitution gives the federal government the power to review state court decisions, nor for the judiciary to overturn law. Nonetheless, during Marshall's reign as Chief Justice, the Supreme Court seized the power to supervise state courts, review legislation, and overturn law - an entirely unconstitutional usurpation of power.

Therefore, even if the Supreme Court finds the Health Care legislation to be unconstitutional, the law stands until it is repealed legislatively. However, the states have the power to reject the Health Care law as they are doing with their own bills, which are intended to reject the unconstitutional mandates of the law. Where the real battles will begin is if the Supreme Court tries to negate the state's legislation, and state court decisions, that rejects the Health Care legislation passed by the House of Representatives on Sunday, and signed into law by Obama today.

In the end, it is up to the states, which is The People, to stop this madness, and send the socialistic Health Care Law to an early grave.

An overpowering win by the Republicans in November should serve as fuel for the fight, as well as give those that believe in the Constitution, more voices in Washington.

The Revolution continues. . .

-- Political Pistachio Conservative News and Commentary

Historic health reform signed - Yahoo News

Is ObamaCare Headed for a Supreme Court Smackdown? - American Thinker

Health Care Passage Plunges America Into Dark Ages - Political Pistachio

IRS looking to hire thousands of tax agents to enforce health care laws - The Daily Caller

14 Attorneys General Are Filing Suit on ObamaCare - Net Right Nation Blog

Health care reform bill 101: what the bill means to you - Christian Science Monitor

Health Care- Fix middle-class “medicine cabinet tax” in reconciliation - Open Market dot Org

Congress vs. The American People - The Heritage Foundation

Obama shows a president can be both strong and wrong - Washington Post, Michael Gerson

Racial Preferences in the Democrats' Health Care Bill - American Thinker

The Politically Incorrect Guide to the Constitution, Kevin R.C. Gutzman, p. 83, and p. 86

New Views of the Constitution of the United States, John Taylor, pages 35, 36

John Marshall and the Constitution, Edward S. Corwin, pages 151-154 and pages 177-182

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