by John Dennis, from the John Dennis Report
EDITOR’S NOTE:John Dennis will be a featured speaker at Nullify Now! Los Angeles on May 28, 2011. Get tickets here – http://www.nullifynow.com/la – or by calling 888-71-TICKETS
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As many predicted, lower courts continue to find Obamacare unconstitutional.
The reason? Because it is unconstitutional. The Constitution limits the federal government’s powers. How can there be any limits on federal power if they can compel Americans to buy goods and services?
But just because the lower courts continue to find Obamacare unconstitutional, don’t get your hopes up. These cases are opening acts, theater, leading to the real show: the Supreme Court.
While I pretend to be neither a legal nor a Supreme Court expert, I do remember that the Court gave us the Kelo vs. New London decision. A supposedly right leaning Court, by the way.
Read the majority decision in that case and then ask how confident you feel. In Kelo, then Justice Stevens continued the expansion of “public purpose†for eminent domain. And not for any identifiable reason, only because other cases had continued to expand the definition.
Why couldn’t Stevens, and the rest of the majority for that matter, have said “we’ve reached the limits of the expansion of the “public purpose†definition� Especially when the net result was that government land confiscation would benefit some private citizens at the expense of other private citizens?
The principle with which the Court agreed was the growth trajectory of the expansion of state power. “For more than a century, our public use jurisprudence has wisely eschewed rigid formulas and intrusive scrutiny in favor of affording legislatures broad latitude in determining what public needs justify the use of the takings powerâ€
(Emphasis mine).
Obamacare’s legal destiny, far from being an overturn slam-dunk, could just as easily be upheld. Aside from its more egregious rulings, always remember the Supreme Court is comprised of nine lawyers appointed by and paid by the federal government. Over time, do you think they might have a bias toward expansion of their bosses’, i.e. the state’s, power?
Do you think a company might do well in a contract dispute with an employee if the arbiters were the company’s in-house lawyers? The analogy isn’t exactly the same, but you get the idea.
(Note: Wouldn’t it make more sense to have the Supreme Court justices elected by the people and paid with voluntary contributions into a transparent trust? And wouldn’t it be even better to return to the pre-civil war Supreme Court role of making Supreme Court opinions just that – opinions – that states could choose to adopt or not?)
What Nancy Pelosi, Harry Reid and Barack Obama have foisted on us is not the health care reform Americans desperately need, but a potential constitutional and national existential crisis. Never once recognizing that the federal government already controlled 50 cents of every health care dollar through Medicare and Medicaid, they rammed through this job killing, civil liberty destroying abomination.
On the other hand, perhaps there’s a silver lining in the storm cloud. Imagine this scenario: the Court expedites the Obamacare hearing to 2012. The global and American economies worsen. Unemployment rises. Health insurance rates climb. Public anger grows.
Then, the Supreme Court rules Obamacare is constitutional.
How will the people react? Will we see, hell, will we participate in, Egypt-type protests? And what about the states becoming more comfortable with the word “nullification� Will they defy the law?
We could see a combination of the people and the states not only strike down Obamacare, but role back the unacceptable expansion of the federal government. As the peaceful protests in Egypt show, the power of any government relies on the consent of the governed. When the consent of the people is withdrawn, the ultimate impotence of government is exposed.
Come to think of it, a Supreme Court decision in support of Obamacare might work out just fine.
Currently, the cost of health care is rising at a much higher rate than inflation. Even if we were to implement your beloved single payer, at a certain point we can not afford to pay for every new treatment and technology that comes along if we want to have any semblance of an economy. If you dont have insurance you should check out "Penny Health Insurance" for information on how to get one.
I'm pretty sure the Tenth Amendment Center is not in the "beloved single payer" crowd. Wrong audience here if that is your point.
Austin-The constitutionality of this legislation goes to our conversation on the other article.
In my opinion, the fact that the commerce clause is a delegated power is a secondary issue.
Unless heath care falls under the federal government's sphere of power as defined by Madison in Federalist 45, and it doesn't, no delegated power can be invoked to circumvent it. This is being ignored by the federal government to skirt this restriction. It treats the commerce clause as a general grant of power with no limits on how and where it can be applied as opposed to a qualified grant of power.
See also Essay No. 41 where Madison took the delegated powers of the federal government and grouped them into 6 categories of powers. His breakdown is a mirror image of the separation of powers he mentioned in Essay 45, i.e., the powers of the federal government pertain to foreign affairs and relations between the States. And as you stated, everything else to the States.