Wednesday, June 29

Activist judges: "Congress can do anything it wishes"

Unless you're a political junkie (um..."enthusiast") you probably haven't read the Constitution since high school--and then I'm betting the teacher just skimmed the surface of the document. Not a lot of in-depth analysis

So how much do you remember about the Constitution?

If you said "Any powers not specifically granted by this Constitution to the federal government are reserved to the states, or to the people," congratulations on a great memory.

If on the other hand you said "All powers are reserved to the federal government; the States and the people will do what we say, period" you said what a majority of "justices" on the 11th Circuit Court said in their just-released decision upholding the part of Obamacare that will compel everyone to either buy health insurance or pay a fine.

"Wait," you may be saying, "did they change the Constitution while I was asleep or something?"

No, activist judges simply interpreted it as meaning something just...a bit different than what you thought the very plain, clear words meant. And it's absolutely crucial that you understand how they arrived at this, and how utterly they inverted the original meaning of the Constitution.

The entire thrust of the Constitution is to limit the power of the central government to only a set of specifically-listed powers. The tenth amendment seals this clear purpose with the famous sentence:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Seems quite clear. But there's another clause, in the portion that grants powers to congress:
[The Congress shall have the power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes;
It is this clause that the morons--sorry, justices--of the 11th Circuit have interpreted as negating the clear language of the tenth amendment, and giving total power to congress to demand that citizens comply with any law it chooses to pass.

And with the benefit of the improved reading skills of this 21st century it's easy to see how they arrived at this. In fact, it's hard to believe almost all legal scholars missed this huge, tidal shift in the proper interpretation, since it's been there all along.

What? You say you don't see the big negating phrase that overturns the tenth amendment's protections?

Geez, how could you miss it? It's so obvious: "Congress shall have the power...to regulate Commerce...among the several States."

What now? You still don't see it? Okay, clearly you don't speak Activist Judge, so let me explain: Everyone agrees that this phrase gives congress the power to regulate "commerce" among the states. But in using this phrase the Founders meant that a state couldn't decide to levy an import duty on goods from a neighboring state, or decree that all wheat sold in their state had to be shipped in a special, costly bag.

(No, I won't quote sources for you. Do your own work.)

But of course, this was 1789. A century later, some congressjerk sat up and said "Hey, we want to control the sale of, um...electricity across state lines. That's obviously interstate commerce, so that clearly falls within our power."

No one objected--and thus did the camel's nose slip under the edge of the tent.

Later congress wanted to pass a law regulating wheat production. Since wheat was obviously sold across state lines on many occasions, no one objected.

Then congress found a farmer who grew wheat not for sale, but to feed his own farm animals. The farmer hadn't gotten government permission to grow what he was growing, so the government ordered it seized and burned. The government's argued that...here's where it starts to go south...by growing his own, the farmer was able to avoid buying wheat from another grower. And this, said the gummint attorneys, affected interstate commerce.

At this point conservatives saw where all this was leading, and made the logical point that if the government was allowed to regulate an activity via such a tenuous (legaleze for "bullshit") connection, what would stop it from regulating anything it wished?

After all, virtually every activity can be said to "affect" interstate commerce if one stretches far enough.

Liberals said--can you guess?--"Don't be silly, congress would never stretch the law to an extreme like that."

Comes now the 11th Circuit. Obama and the Dem congress stretched in arrogating to the gummint the power to command you to buy something--from a private seller--or pay a fine. They did this knowing that the commerce clause could be used to claim the power. And predictably, a majority of the judges on the 11th bought it.

Check the "reasoning" from the decision itself:
Congress had a rational basis for concluding that [requiring everyone to buy insurance for] health care substantially affects interstate commerce. Furthermore, Congress had a rational basis for concluding that [this requirement] is essential to the Affordable Care Act.... Finally, the Constitution imposes no categorical bar on regulating inactivity. Thus, the minimum coverage provision is a valid exercise of Congress’s authority under the Commerce Clause....
Note that there's no careful historical analysis of whether the commerce clause in fact gives congress the power to regulate everything--thus to pass any law it wishes, in defiance of the tenth amendment and the general principle of limited powers. Rather, the decision says, in essence, "Health care affects interstate commerce, and is *essential* to Obamacare, so...done deal."

So you can see, I hope, why I've used the term "morons" to describe the authors of this POS decision.

An attorney representing the states suing to overturn Obamacare made the following point--allegedly in the oral arguments (though I'm skeptical):
Obama--and many courts--claim that although the Constitution speaks of limited powers, with all other powers reserved to the people or the states -- that the Commerce Clause is a "take-back" clause that essentially calls bullshit on everything else in the Constitution.

That is, everything else in the Constitution is about establishing limited powers of the federal government, and expressly reserving those not specifically granted (or "necessary and proper" to undertake a named power) to the states.

But under this new theory there is really only one clause that matters in the Constitution, and that is the Commerce Clause, and that this one clause renders all 4400 other words in the Constitution null and void; because the Commerce Clause says, according to this theory, that the federal government may do anything so long as it ultimately "affects interstate commerce"--which, as is often pointed out, applies to everything.

That's spot-on.

(h/t Ace of Spades)

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