Political Pistachio

Blog Home of the Writer and AM and FM Radio Host, Douglas V. Gibbs.
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Monday, March 19, 2012

Supreme Court and Obamacare Ready To Clash

By Douglas V. Gibbs

As we march toward the day that the United States Supreme Court takes on the Obamacare case, it has become pretty clear that the whole decision is going to come down to Justice Anthony Kennedy.  Clarence Thomas, Samuel Alito, John Roberts, and Antonin Scalia are commonly referred to as the conservative judges, and all of them, including Kennedy, were appointed by Republican Presidents.  Ruth Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan are considered to be liberal judges, and were appointed by Democrats.  Kennedy's decision to rule with the conservatives, or the liberals, changes from ruling to ruling.

The very fact that these judges are classified as liberal or conservative goes against the very purpose behind establishing a federal judicial system.  The justices are supposed to be apolitical, or beyond political influence.  Their job is to apply the law to the cases they hear.

The Obamacare case has become all about politics, and nothing about the law.  The liberal judges will support the Health Care Law, and the conservative judges won't, regardless of what the Law of the Land says.

The fate of Obama's health-care-destruction rests with Kennedy, who's decisions seem to be determined by which side of the bed he wakes up on in the morning. . . the right, or the left.

The question of constitutionality regarding Obamacare comes down to whether or not the federal government has the sweeping authority over the health care industry the Health Care Law grants.  In other words, is the law legal when compared to the authorities granted by the U.S. Constitution.  That is what we are being told is the reason for the U.S. Supreme Court taking the case.

If one takes an originalist view of the Constitution, the obvious answer is that the federal government does not have the authorities the Health Care Law claims to have.  In other words, there is no authority granted by the U.S. Constitution giving to the federal government the ability to have anything to do with health care.  So, one would think the next thing I will write is that the Supreme Court, if they are going to follow the Constitution, must strike down Obamacare, and end the madness once and for all.

The problem is, contrary to popular opinion, the courts don't have that kind of authority.

The power being wielded by the U.S. Supreme Court is called Judicial Review.  The concept is one that goes back to Marbury v. Madison in 1803, and was presented by Chief Justice John Marshall in his opinion of that case, which basically states that the federal court system has the right to determine if laws are constitutional or not.  In the case of Obamacare, then, the court will be determining if the federal government has the authority to impose their ever-expanding will on the health care industry.  Does the federal government have the constitutional authority to intrude upon the health care industry in such a way?

The purpose of the U.S. Constitution was to create the federal government, and enable it to protect, preserve and promote the union by granting to it only express powers for those purposes.  The federal government is only supposed to possess the authorities granted to it by the Constitution, and no more.  This is where the concept of "limited government" comes from.  A limited government is one that acts only within the authorities granted to it.  In this case, a limited federal government is one that acts only within the authorities granted to it by the Constitution, or more specifically, by the States.

If the idea is to limit the powers of the federal government, then Judicial Review is in complete opposition to the original intent of the Constitution, and the Founding Fathers.  The Supreme Court is a part of the federal government, and by determining if a law is constitutional, they are determining whether or not the federal government has the authority to do whatever the law grants.  In other words, the federal government, through the courts, is determining for itself what its own authorities are.  How, one may then want to ask, is that compliant with the idea of limited government?  As for the idea of striking down Obamacare with a ruling, that also conflicts with the Constitution.  After all, Article I, Section 1 of the Constitution grants all legislative powers to the Congress.  Legislative powers include making law, modifying law, repealing law, and striking down law.  The question then arises, how can the courts strike down a law when all legislative powers are granted to Congress by the Constitution?

So, that leads us to the ultimate question: If the Supreme Court is not the final arbiter of the Constitution, then who is?

What has brought this Obamacare case before the Supreme Court is the fact that 26 States and a number of private parties are challenging the constitutionality of the health care law by stating that the powers granted to the Congress does not include the health care industry, or any mandate forcing the public to purchase a product, such as insurance.

In other words, does Congress have the authority to regulate health care?

The 26 States involved say, "No."

Some have pulled into the argument the powers granted by the Commerce Clause, but if one reads Madison's Notes on the Constitutional Convention, one realizes that the Commerce Clause was intended to limit the federal government's regulatory powers regarding interstate commerce to a role of mediator between the States whenever a conflict between the States arose regarding commerce.  In other words, "regulate" follows the definition in the 1828 Webster's Dictionary that defines the word to mean "to put in good order."

In other words, in the case of the Commerce Clause, "regulate" means "to make regular."

Going back to who the final arbiters of the Constitution are, a partial clue to that answer can be found in the fact that the U.S. Senate, prior to 1913's 17th Amendment, was the voice of the States for the sake of the States keeping the federal government on a leash.  The Constitution, after all, is a contract between the States and the federal government.  The States granted to the federal government a limited number of express powers, and reserved all other authorities to themselves.  Not all federal laws trump State laws.  Unconstitutional federal laws conflict with the authorities granted, and therefore are illegal laws.  If the federal law is unconstitutional, the States do not have to follow that federal law, or implement it.  This is because the States, and We The People through our States, are the final arbiters of the Constitution.

The 26 States that have a problem with Obamacare are using the legal system to voice their disapproval of the federal Health Care Law, but in reality, all they have to do is nullify the law.  Nullification is accomplished by simply ignoring it.  The States do not have to follow unconstitutional law, and therefore have the authority to ignore Obamacare, and basically tell the federal government, and the federal courts, to stick it.

The problem is, like most Americans, the State leaders don't fully understand the Constitution, or the rights of the States.  They barely grasp the Tenth Amendment, which states that if an authority like health care is not expressly granted to the federal government, and isn't prohibited to the States by the Constitution, the power is reserved to the States.

If the Supreme Court rules against Obamacare, the opinion of the high court will make it easier for the States to act in a manner consistent with their authorities.  However, if the Supreme Court of the United States rules for Obama, it could get ugly.  I just wonder if the States realize that even in the case the court goes against them, then can still nullify.

-- Political Pistachio Conservative News and Commentary

4 Republican justices control fate of health law - Associated Press/Yahoo News


Kentucky Resolutions : Jefferson's Draft - October 1798 (to help understand nullification) - Avalon Project, Yale University

Definition of Regulate - 1828 Webster's Dictionary

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