And So I Go: Yesterday, Today and Tomorrow

The Supreme Court and Obamacare

Posted on: May 17, 2010

National Review  has a very interesting article concerning the Supreme Court’s expected reversal of Obama care.  This author believes it is a slim chance.  He gives his reason and a good little history lesson as well.  Then suggests how citizens should properly resolve problems with the national government.  I found it well worth reading the whole article and hope you do too.  Below are just some highlights.  BB

Against Judicial Supremacy
We shouldn’t rely on the Supreme Court to enforce the Constitution.

President Obama had not even signed the health-care bill into law when ten state attorneys general announced that they would challenge its constitutionality in court. Their claim, in part, is that Congress has no power to force individuals to purchase health insurance, because such a requirement is not a regulation of interstate commerce.

Moreover, since the Court’s constitutional precedents are many and varied, placing one’s reliance on judicial power can almost always seem realistic. True, in the decades since Republican appointees took numerical control of the Court, many of its decisions have been surprisingly left-leaning. The Burger Court, for example, brought us forced school busing and the right to abortion, while the Rehnquist Court protected the rights to burn the American flag and to engage in sodomy. Nevertheless, recently the Roberts Court has protected the right to bear arms and the right of corporations to participate in political campaigns. And, more directly to the point, not so long ago the Court handed down two opinions that attempted to define limits to the federal government’s right to regulate commerce.

The chances that the new health-care law will be found to be beyond Congress’s power to regulate commerce are in fact slight. The Court’s general standard demands merely that the affected activity must, in the aggregate, have a substantial impact on interstate commerce. It is difficult to see how anyone could conclude that requiring millions of people to purchase medical insurance would not have such an impact.

There are larger reasons to think it strange to turn to the Court to protect us from Obamacare. The reason Congress is granted only limited powers by the Constitution — and why states retain those powers not enumerated — is to promote separation and competition between the two levels of government. It seems improbable in the extreme that the justices, who are (after all) important and proud components of the national government, would view with sympathy those presumptuous states’ claims to power.

The two instances since 1937 where the Court validated state regulatory authority by limiting the Congress’s commerce power both involved areas (regarding guns in schools and violence against women) where state policies presented no serious challenge to national policies. Perhaps the Court should perceive the proposed state statutes that seek to exempt citizens from Obama’s medical mandates as healthy resistance to federal overreaching. But the chances of this are zero.

The Tenth Amendment, for instance, reserves to the states only those regulatory powers not delegated to the national government. The Court, however, has been largely unable to define the limits of those delegated powers in part because so many activities eventually affect commerce among the states. As a consequence, the scope of the commerce power is, for the most part, worked out through political struggle. This means that federalism is manifested in disagreement and political conflict. Jurists like order and decorum. Accordingly, the usual role of the Supreme Court from the beginning of our history has been to approve expansion of national authority at the expense of the states.

A second reason that routine reliance on judicial power is destructive is that an authoritative resolution of an intense dispute about the meaning of our fundamental law requires strong justifications. But because these disputes involve a sense of certainty on both sides, the effort at justification and persuasion is largely futile and frustrating. Hence, judicial opinions in constitutional cases tend to use overheated language and make extravagant claims. To take just one of innumerable examples, the school officials who forbade students to wear armbands to protest the Vietnam War did not merely make a mistake; they were, according to the Court, creating an “enclave of totalitarianism.” The frequent use of this kind of rhetoric by a highly visible and highly respected institution increases the level of distrust, anger, and conflict in our political life.

A third reason is that when the Court resolves a constitutional issue, it does so in the professionalized language of lawyers. Over time this means that the official, authoritative answers to constitutional questions become foreign to those being governed. Therefore, rather than a warm identification with their basic charter (or, at least, a commonsensical appreciation for it), many people feel distanced from it. Indeed, they feel at the mercy of intellectual forces that they do not understand. Alienation of this kind is bad enough when it results from the edicts of Congress or the vast array of administrative agencies, but it is worse for the people to feel alienated from their country’s fundamental legal framework.

A fourth reason is that the authoritative resolution of constitutional issues by courts is naturally taken by the public to mean that some people (and some political institutions) have been deficient or even irresponsible in discharging their public obligations. This drumbeat of judicial disapproval saps popular confidence in political institutions. We seem constantly to need to be saved from serious blunders. Where politics does produce a morally attractive outcome, as with congressional action against racial segregation in public schools, the Supreme Court gets the credit. (While Brown v. Board instructed states to desegregate their schools, it gave no deadline for doing so, and significant desegregation did not occur until after the Civil Rights Act of 1964.) Where the stakes are very high but politics might proceed responsibly, as in the aborted impeachment investigation of Pres. Richard Nixon, the Court intervenes and thus saves us from ever knowing if our representatives can sometimes rise to the occasion.

In 2005, the Supreme Court determined that the government’s condemnation of a perfectly respectable private home for purposes of a sale to a private developer was for a “public use” and, therefore, constitutional. This decision was widely derided as an abdication of judicial responsibility. But in just the next two years, legislatures in 42 states reformed their laws to protect against such outrages. This kind of vigorous political action is a model for how conservatives should defend constitutional values.

— Robert F. Nagel teaches at the University of Colorado School of Law and is the author, most recently, of Unrestrained: Judicial Excess and the Mind of the American Lawyer (Transaction, 2008).

A few more articles from National Review you may want to check out.

I found this article interesting not really for it’s content but for the fact that China owns the pigs share of America’s worthless Treasury Notes.  Yes, we Americans have been living the highlife on the backs of the Chinese slave workers for decades now and pay off tie is coming.  The other reason is that if the United States does not manage to pull out of the Obama disaster and the only free country on Earth bites the dust, then  Communist China will be the next ruler of the world.  BB

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