The recent Supreme Court ruling holding the Patient Protection and Affordable Care Act constitutional left many in an apparent state of shock. It seems most Americans expected the Court would at least strike down the insurance mandate.

Anybody who really pays attention to the SCOTUS shouldn’t be surprised. The Court almost never rules in a way that limits federal power. In fact, between the founding and 2002, the Court has ruled only 158 federal acts unconstitutional in whole or in part. Considering the amount of legislation passed by Congress through the history of the Republic- not too impressive!

The Court looks out for its own.

If you stop and think about it, this makes perfect sense. We ask a branch of the federal government to limit the power of the federal government.


It’s a little like asking a Boston player to umpire a baseball game between the Red Sox and the Yankees. Probably wouldn’t bode well for the Bronx Bombers.

Calling the Supreme Court the final arbiter of federal power sounds a little nonsensical when you put it like that, eh?

Simple logic informs us that the Supremes will generally work to preserve federal power. They are, after all, creatures of the federal system, indoctrinated into and immersed in its ideals. And the majority opinion in the health care case proves that the justices actively seek to preserve and advance federal authority.

So, how should we interpret constitutional powers? St. George Tucker wrote the first extended, systematic commentary on the U.S. Constitution in 1803, just a few years after ratification. View of the Constitution of the United States served as the principle handbook for lawyers, jurists and law students in the first half of the nineteenth century. In his commentary, Tucker advanced one of the most basic rules of construction for interpreting the constitution.

“The powers delegated to the federal government, are, in all cases, to receive the most strict construction that the instrument will bear, where the rights of a state or of the people, either collectively or individually, may be drawn into question.” (Emphasis added)

In other words, in any question pitting federal authority against state power, courts should always endeavor to decide in a manner favorable to protecting the rights of the states and the people.

The people created the federal government through their states. All powers not delegated to the general government remain with the states and the people. Since the federal government operates as an agent, it logically follows that protecting those who granted the power from any possible overreach or usurpation should count as the first priority. The reserved powers should receive protection, even at the expense of delegated powers.

Modern Supreme Court jurisprudence flips this rule of construction on its head, striving to protect federal power at the expense of the states and the people. The health care ruling proves this. In fact, Justice John Roberts admits this fact in his opinion.

At issue was a mandate requiring every American buy health insurance or pay a penalty. The PPACA calls it a penalty, by the way –  18 times according to the dissenting opinion. Roberts first argues requiring an American to purchase health insurance stretches an already elastic commerce clause past the breaking point. Can’t do that. He then argues that  the “necessary and proper clause” provides no wiggle room allowing the feds to force Americans to buy health insurance. Can’t do that. But behold, Roberts finds one last refuge where he can safely place this oh-so-important federal power: the taxing authority.

With some verbal doublespeak that would make George Orwell proud, Roberts turns a penalty into a tax and then declares the whole thing a perfectly valid exercise of federal power. In essence, the federal government can’t force you to buy health insurance, but it can twist your arm to “encourage” you to buy health insurance. The Court completely ignores the fact that the authority to tax does not include the authority to spend. The enumerated powers of Congress do not include spending money to manage a national health care program.

Notice we end up with the same result no matter how Roberts slices it. The Court handed the feds the “authority” to impose a single, one-size-fits-all health care system onto 300,000,000 Americans, despite clear evidence that health care belongs among those objects that “concern the lives, liberties and properties of the people, and the internal order, improvement and prosperity of the State,” objects Madison asserted would remain under the control of the states in Federalist 45.

One thing quickly becomes clear reading through the Roberts opinion; he went to great lengths to preserve federal powers claimed under the PPACA. He demonstrates some incredibly flexible logic in an amazing display of verbal gymnastics, all to uphold the federal law. In fact, Roberts admits he made every effort to advance and protect the federal “power” to run the entire health care system in the U.S.

The statute reads more naturally as a command to buy insurance than as a tax, and I would uphold it as a command if the Constitution allowed it. It is only because the Commerce Clause does not authorize such a command that it is necessary to reach the taxing power question. And it is only because we have a duty to construe a statute to save it, if fairly possible, that Sec. 5000A can be interpreted as a tax. (Emphasis added)

So much for “the most strict construction that the instrument will bear, where the rights of a state or of the people…may be drawn into question.”

Perhaps this opinion will wake Americans up to something we’ve preached here at the Tenth Amendment Center for the last six years. Washington D.C. will never control Washington D.C. Unchecked power always grows. Tucker observed this in the very first years of the Republic.

All governments have a natural tendency towards increase, and assumption of power; and the administration of the federal government, has too frequently demonstrated, that the people of America are not exempt from this vice in their Constitution. We have seen that parchment chains are not sufficient to correct this unhappy propensity.

The framers intended for the states to serve as a vertical check on federal power. As Jefferson wrote:

The several States composing, the United States of America, are not united on the principle of unlimited submission to their general government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes — delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force: that to this compact each State acceded as a State, and is an integral part, its co-States forming, as to itself, the other party: that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.

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The time has come for the people to insist that their state legislators and governors stand up and interpose against this usurpation of their rightful power. States should follow Jefferson and Madison’s prescription and nullify these unconstitutional acts. For despite the opinion of Roberts and his four robed politically connected counterparts, the federal government was never intended to administer health care for every American.

And where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy.

Mike Maharrey

The 10th Amendment

“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.”



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