Today, on June 28th, 2012 – a date that will live in infamy – the Supreme Court upheld President Obama’s socialized medicine scheme, including its individual mandate. The Supreme Court upheld it in a 5-4 ruling, authored partially by Chief Justice Roberts, who correctly says that the Interstate Commerce and Necessary and Proper Clause cannot justify the scheme and its mandate, but wrongly claim that the mandate and its associated fine are nonetheless constitutional because they constitute a tax that the federal government may levy, he says.
He’s wrong, but those who invested their hope and trust in the SCOTUS as a check on the other two branches of the federal government were also wrong. How to refute the ruling, and how to think about and act with regard to it?
1) John Roberts’s claim that the taxation clause of the Constitution authorizes the mandate and its associated fine is completely wrong.
The mandate is not a tax, and neither is the associated fine. A mandate is a legal compulsion to do something. A fine is a governmental punishment levied for violating a law. Thus, two questions arise: what can the federal government legislate on, and what issues can it make mandates and provide for punishment on?
The President may only sign or veto what the Congress sends him and manage employees of the Executive Branch. The Congress may only provide punishments for specific issues and groups of people:
a) on military bases, docks, and shipyards;
b) in the District of Columbia;
c) with regard to members of the military and other uniformed federal services (who must subject themselves to exceptional discipline) – vide the UCMJ; and
d) with regard to a few discreet issues, namely copyright and patent protection, counterfeiting US securities and currency, federal tax evasion, and immigration.
Buying (or refusing to buy) health insurance (or any insurance policies of any kind) is NOT an issue on which Congress may make criminal laws and provide for punishments.
Furthermore, Congress may not legislate on healthcare issues, or about insurance policies, at all! It may pass any laws ONLY on the few issues authorized to it by the Constitution. These are: defense, foreign policy, war and peace, a uniform national currency, a uniform standard of weights and measures, immigration, fighting pirates, punishing offenses against the Law of Nations, mail delivery, bankruptcy, copyright and patent protection, protecting US securities, and the District of Columbia. Post-Civil War Amendments have added to this short list the protection of civil rights and providing for the Presidential succession.
That’s it! Those are all the lawmaking powers of the Congress! The national legislature may NOT make ANY laws – with or without mandates and fines – pertaining to ANY other issues, including healthcare and insurance policy issues.
Healthcare, insurance, welfare programs, etc. are just a few of the myriad of issues reserved to the States and the People. Thus, as the four conservative judges, led by Antonin Scalia, have rightly written in a dissenting opinion, the ENTIRE Obamacare statute (the PPACA) is unconstitutional as it is beyond the Congress’ proper Constitutional remit.
2) This is NOT the end of the fight against Obama’s socialized medicine scheme!
The Supreme Court is NOT the ultimate authority on the genuine meaning of the US Constitution – the Federalist Papers are. The Federalist Papers, written by James Madison and Alexander Hamilton (the men who wrote most of the Constitution), reveal the Founding Fathers’ originally intended, and the only correct, meaning of the Supreme Law of the Land. They are most authoritative and have long been recognized as such, until the 1930s, when Charles Evans Hughes’ “The Constitution is what the judges say it is” paradigm became the ruling judicial philosophy in America.
Just think about it: who knows the Constitution’s true meaning better – the men who wrote it or 9 people sitting on the SCOTUS bench today?
The Supreme Court was intended by the Founders to be just one of the many checks and balances on the Federal Government. The intent was that if the Congress passed an unconstitutional law, the President would veto it; if the President colluded with the Congress, the SCOTUS would strike it down. But what if the SCOTUS upheld it? Did the Founders advocate accepting the SCOTUS ruling, no matter what is was, and accepting the Court as the final authority on the Constitution’s meaning?
No. They advocated that the states nullify (invalidate) such unconstitutional “laws” by passing resolutions or statutes to that effect, and that the people elect a Congress that will impeach usurping judges and remove them from office. The Founding Fathers were smart, and they had guts and balls, unlike today’s American politicians. They did not advocate running to federal judges crying and begging them to overturn an unconstitutional law. They advocated nullifying it by state resolutions, refusing to comply with it, and removing those who enacted it from office (peacefully).
And this is what they did when the Federalist-dominated Congress passed, and President Adams signed, the oppressive Alien and Sedition Acts which, if allowed to stand, would’ve created a police state in America. Virginia and Kentucky nullified them and refused to comply with them. James Madison wrote Virginia’s Nullification Resolution, and Thomas Jefferson wrote Kentucky’s version.
Think about it. Suppose that you’re President. Let’s say the Congress passes a law requiring every Jew to wear an armband with the Star of David and provides a heavy fine for those Jews who don’t comply. You veto the bill, but the Congress overrides your veto and the SCOTUS upholds the bill. What do you do? Do you comply with it and require US Attorneys to enforce it? Not if you treat your oath seriously. Your oath says nothing about obeying the Congress or the SCOTUS. It says you are to uphold the Constitution.
When Congress passes a constitutional, but lousy law, the right recourse is to elect better Reps and Senators and repeal the law. (The current tax code is an example.)
But when the Congress passes an unconstitutional bill (let alone that violates Americans’ freedoms as blatantly as the PPACA does) and the Supreme Court upholds it, electing better Reps and Senators is not enough! The proper remedy in such case is to NULLIFY the bill, refuse to comply with it, and impeach the judges who rubber-stamped it. (Judges are not appointed for life; they can, and are supposed to be, impeached and removed from office if they abuse it, as Roberts, Ginsburg, Breyer, Sotomayor, and Kagan have.)
So the fight against the PPACA is far from over. The right step now is to have the states nullify it and to impeach the forementioned SCOTUS judges.
3) Contrary to conventional wisdom, this ruling will not help Obama nor harm Romney. On the contrary, it will help Romney win, because by now, every Republican and indie should understand that electing Romney and a Republican congressional majority is the ONLY way to repeal this socialized medicine scheme before the federal healthcare Leviathan is born.
As Ann Coulter has rightly written, in order to make the PPACA look neutral, the Dems structured it so that the taxes to pay for it are levied immediately, but the goodies won’t be paid out until 2014. Once Americans are thrown off their employer-provided insurance policies and forced to depend on the federal government for healthcare, they will fight tooth and nail to keep their “free” healthcare. (See Britain, France, and Canada.) So, unless Republicans retake the White House and the Senate, and keep the House, the federal healthcare Leviathan will be born and America will become just another Western European style social democracy with a huge dependency class, ever-growing entitlements, and no money for defense; and starting in 2016, Republicans will be promising only to “modernize” Obamacare.
4) Hopefully, all conservatives have, by now, learned not to invest their hope and trust in the SCOTUS. It consists of the same fallen people who have said that there is a First Amendment right to desecrate the flag and disrupt the funerals of dead American heroes and a Fourth Amendment right to kill unborn children while students cannot have voluntary nondeminational prayer at school.
5) Today’s ruling proves that Newt Gingrich was right all along about the need to rein in federal judges, including those on the SCOTUS bench, and his critics were dead wrong. They look like fools now.
When he was running for President, Gingrich, recognizing that the federal judiciary had usurped powers not entrusted to it and had enforced on the country a completely wrong, leftist, socialist interpretation of the Constitution, recommended the following redress against usurping judges:
- Ensuring that the federal government does not obey wrongly decided rulings;
- Obligating SCOTUS judges to testify before the Congress on why they delivered such rulings; and
- Abolishing inferior courts when the judges who sit on them usurp powers and try to legislate from the bench.
He was right. Congress SHOULD question the Supremes on how could they conclude that the individual mandate is a tax and that the federal government’s power is essentially unlimited. The President has not only the right, but the DUTY to ignore wrongly decided SCOTUS rulings. And the Congress may, by statute, abolish courts inferior to the SCOTUS – not necessarily to abolish the seats of usurping judges, but e.g. to merge courts and thus save money.
Newt Gingrich was right, and his critics were wrong. The federal judiciary must be reined in.
Don’t worry, folks! This ruling is NOT the end of the fight against the Dems’ socialized medicine scheme. Now that the SCOTUS has refused to act as a check on the Legislative and Executive Branches, it’s time on the states – the final arbiters of the federal government’s powers – to rein in the federal government.
The author would like to acknowledge the blogger Publius Huldah for educating him on constitutional matters, including those raised herein.