Today on Blogcritics
Home » Culture and Society » How the Supreme Court Should Have Ruled

How the Supreme Court Should Have Ruled

Please Share...Tweet about this on Twitter0Share on Facebook0Share on Google+0Share on LinkedIn0Pin on Pinterest0Share on TumblrShare on StumbleUpon0Share on Reddit0Email this to someone

The following is how a unanimous Supreme Court should have ruled with regard to the Affordable Care Act (Obamacare).

The issue before this court is whether the Affordable Care Act passed by Congress in 2010 is constitutional. Specifically, does the Congress have the power to legislate medical care or medical care insurance coverage? This Court finds that it does not.

Congress’ enumerated powers are found in Article 1 Section 8 of the U.S. Constitution. No less than James Madison confirmed in Federalist Paper #45 that:

The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected.

And in fact, nothing in Article 1 Section 8 of the Constitution can be construed to mean that Congress has any power to legislate medicine, medical care, or the insurance coverage thereof.

Now, some will claim that Congress retains powers not enumerated in the Constitution. In the first place, why then did the authors enumerate any powers at all in the Constitution? Secondly, how can the meaning of the Tenth Amendment be ignored? There is no ambiguity as to the meaning of, “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.” James Madison in Federalist Paper 45 again, “The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.” Thus, the power to legislate health care, like marriage, education, driving licenses, and other “objects of the ordinary course of affairs” resides with state governments, not the federal government, in our system of governance.

But, even that explanation of enumerated powers does not satisfy those who are voracious in their hunger to do good and enact measures at the federal level of government that will take care of us from cradle to grave. It is not the job of this Court or really any court to determine the social worthiness of legislation. The job of the courts is to determine the law, decide constitutionality, and dispense justice by protecting rights.

So, it is wrong for political forces to use vague terms from the Constitution to further their ends. The most often used term is the so-called Interstate Commerce Clause. The 16 words in the clause have historically been used to allow Congress to regulate everything from speed limits on the nation’s roads to handicap ramps on sidewalks to regulating lawn mower emissions. But the original intent of, “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes” was not to give Congress the power to regulate all things commercial. It was to make “normal” or “regular” commerce between the states. Under the Articles of Confederation the states had a habit of enacting impediments to free trade between them. Alexander Hamilton alluded to this in Federalist Paper #22 and indicated his belief that a “national control” (Interstate Commerce Clause) to restrain this impulse was necessary. Thus, in the case of Gibbons v. Ogden (1824), this Court used the Interstate Commerce Clause to strike down an anti-free trade act of the legislature of New York.

Therefore, it is found by this Court that the Affordable Care Act of 2010 is hereby deemed unconstitutional. No justification whatsoever can be found for Congress to have assumed the power under the U.S. Constitution to pass this act. It is hereby declared null and void.

About Kenn Jacobine

  • Glenn Contrarian

    Kenn –

    I’ve heard equally cogent arguments showing how Article 1, Section 8 of the Constitution actually does prove the constitutionality of yesterday’s Supreme Court decision…but since 2000, I’ve come to understand something about the Supreme Court. It’s now obvious to me that our legal system is so labyrinthine and so conflicted within itself that in most cases, a judge who wants to make a certain ruling can easily find precedent to do so. It is increasingly easy to legislate from the bench. We can all make arguments of the constitutionality of this or that issue, but a highly-trained and capable judge can justify either side of the matter and thus issue a ruling that seems best to his or her personal/political feelings on the matter without regard to what the Founding Fathers may have intended when they wrote the Constitution.

    That’s how we got Bush v. Gore despite the fact that after all votes in Florida were counted, Gore won Florida, and that’s how in yesterday’s decision, four justices could issue a dissent so radically different from the majority opinion. What we now have is essentially tribunal (or would it be “nonubal”?) consulship-for-life for each of the justices, and we’re just lucky that most issues in government don’t find their way to the Supreme Court.

  • DK

    Kenn, while I agree with your argument regarding Article 1, Section 8, I submit to you that as the SCOTUS has found this to be a law for the raising of revenue, Article 1, Section 7 is more relevant. This law originated in the Senate, which stands in direct contradiction to the aforementioned section which requires that all bills for the raising of revenue originate in the House of Representatives. The first person who is hit with the “tax” for failing to procure insurance will have standing to bring this case forward, and should do so.

  • Igor

    Any dream that anyone had that the Constitution is internally consistent must be abandoned. Thus, we find that our laws are derived ad hoc from the political winds.

    Whether it’s SCOTUS legislating from the bench or a powerful president pushing legislation over nit-picking legalisms (ala LBJs Civil Rights), the Constitution has only weak influence over what we decide.

    Glenn is right. DK is right. But it all may be immaterial when powerful political influences collide.

  • http://www.squidoo.com/lensmasters/IanMayfield Dr Dreadful

    Political winds, troll? I dunno. This case has demonstrated nothing if not the unpredictability of the Supremes, which is why the Court is such a splendid component of the checks-and-balances system.

    Up until yesterday, everyone was swearing up and down that the swing vote would be the vaguely liberal Kennedy’s. Yet Kennedy not only dissented but wrote the dissenting opinion.

    Who would have predicted that the case would be decided by Chief Justice Roberts, GWB’s blue-eyed boy?

    As far as Kenn’s imaginary SCOTUS opinion goes, it’s laughable. He seems to think that American courts ceased ruling on any constitutional matters in the early part of the 19th century and are only starting again now.

  • Kenn Jacobine

    Doc,

    I said this is how they should have ruled if following the Constitution. I also said I wasn’t surprised, although Roberts being the swing vote stunned me to the core, with the Court’s ruling.

  • http://pajamasmedia.com/blog/author/danmiller/ Dan(Miller)

    I think ObamaCare was poorly crafted, but the Court’s decision appears to have been more so. By ruling that, regardless of Commerce Clause limitations, the Federal Government can constitutionally increase the purchase of what it deems more socially desirable goods and services by taxing the failure to purchase them, the Court opened up a potential ocean of such efforts in fields far remote from health care.

  • Igor

    Oh Dan, give it up! The “Constitution” contains so many contradictions and uncertainties that you can support or confound almost any conclusion. After all, isn’t that what high-paid Constitutional Lawyers do every day?

    It’s not a search for truth, it’s an attempt to forge a plausible fiction.

  • Igor

    What interested me was all the false TV announcements that SCOTUS rejected the ACA. What happened? Did our rightist TV news move ahead too fast on the prepared script? The only one who seemed to get it right was Amy Goodman on “Democracy Now”.

  • Kenn Jacobine

    Something else to think about: As Peter Schiff has pointed out, Roberts ruled the penalty for not buying insurance is a tax. Since the Constitution allows Congress to impose direct taxes on income or indirect taxes on purchases (tariffs and excises) which one is this tax? It is neither because it is a tax on inaction and that is not allowed constitutionally. Thus Roberts’ ruling in itself is unconstitutional!

  • Kenn Jacobine

    Igor,

    Can you give just one contradition in the Constitution?

  • troll

    …anyone who thought the the Supremes were going to deny the insurers their bonanza and open the door to single payer was just dizzy from the shell game

  • Clav

    As is so often the case, troll, you nailed it (#11).

  • Igor

    @10-clav:

    I guess you’re still using that old-fashioned google search if you couldn’t get hits on “constitutional contradictions”. You better switch to duckduckgo, as us elitists have.

    Here’s a sample:

    Thirty Questions for Alito; A Constitution Of Contradictions


    1. In 1944, the Supreme Court affirmed the constitutionality of the internment of American citizens of Japanese descent. Justice Felix Frankfurter wrote in a concurring opinion that an action taken in wartime ”is not to be stigmatized as lawless because like action in times of peace would be lawless.” He and others in the majority believed that in times of war, security interests outweigh rights that would otherwise be controlling. Do you agree or disagree, and do you think that the issues raised by this event (for which the United States later apologized) are like or unlike the issues raised by the current detention of enemy combatants?

    2. In 1995, the Supreme Court ruled in Rosenberger v. Rector that the University of Virginia could not refuse to finance an avowedly Christian student publication. The court reasoned that since other student publications favoring contested viewpoints were already getting university money, denying support to this one would constitute viewpoint discrimination, a violation of the Free Expression clause of the First Amendment. Critics of this decision pointed out that its logic implicitly declared the Establishment Clause, which singles out religion for special and negative attention, to be unconstitutional. Do you agree with this criticism, and if not, why not? To what extent (if any) are the Free Exercise and Establishment Clauses in tension with one another?

    3. In a famous debate half a century ago, the legal theorists H. L. A. Hart and Lon Fuller differed on the question of whether Nazi law in Germany was, in fact, law. Hart argued that morally iniquitous laws that have a valid form — laws that have emerged as the result of following legitimate procedures — are still laws, even though we might want to say that they are bad laws. Fuller contended that a legal system devoted to evil aims could not be called law because there is ”a necessary relationship between substantive justice and procedural justice.” With which of these theorists are you in agreement? Are law and morality finally one or can they be distinguished? Were the laws denying the vote to women in America real laws or spurious laws?

    4. The right of judicial review — the right of courts to declare duly enacted laws unconstitutional — is not explicitly granted in the Constitution, but was proclaimed (some would say fabricated) by John Marshall in Marbury v. Madison. One objection to judicial review has been that it is undemocratic because the decisions of democratically elected officials are overturned by jurists who have been appointed for life and who are, therefore, unaccountable to the judgments and desires of their fellow citizens. Do you think that judicial review can be defended and justified in the face of this objection? Is the practice of judicial review a violation of the separation of powers? Are judicial review and judicial restraint reconcilable or are they antithetical?

    5. Sex offenders who have served their sentences are now required to register with the state, and in some jurisdictions there is talk of incarcerating such offenders beyond the term of their sentence if it is judged that they are likely to rape and molest again. Is the judicial system moving in the direction of creating a category of second-class citizens — citizens with fewer rights than the rest of us — on the basis of a perceived ”tendency” to criminal activity? Is the fictional world of Philip K. Dick’s story ”Minority Report”– in which people are arrested for crimes they have not yet committed — becoming a reality in the United States? What constitutional concerns are raised by these developments?


    and so on.

    And we all should know, by now, that the whole ‘corporate personhood’ scam was invented out of whole cloth by a clerk adding a footnote (of his own devising) after the 1886 Santa Clara v. Southern Pacific Railroad case. Here’s a pretty good synopsis:

    Waites perfidy


    How “Corporate Personhood” Was Smuggled Into the Constitution

    By 1886 the railroads and their flunkeys had been contemplating for many years the prospect of getting “corporate personhood” enshrined as a perverted interpretation* of the 14th Amendment. Yet even though they apparently had enough votes on the SCOTUS to enshrine this false doctrine, they still felt the need to engage in subterfuge and sleight of hand. Evidently, it was considered too politically risky to openly litigate and decide the issue. The result was a cowardly collaboration between the railroad lawyers, Chief Justice Morrison Waite, and subsequently the entire court, to smuggle in this anti-constitutional doctrine by the back door. I’ll delve into “corporate personhood” as an ideology in a subsequent post. Here I’m just going to describe the steps by which it was snuck into Constitutional jurisprudence.

    the way it actually was done is appropriate to the wickedness of the whole corporate coup against democracy. That it was smuggled in instead of being openly argued and decided is the Original Sin of pro-corporate SCOTUS jurisprudence. This original crime and betrayal casts its shadow over all subsequent SCOTUS action. This illegitimates all of it.

    It’s exemplary of the pro-corporate, anti-democratic role the SCOTUS has played through much of postbellum history. The main role of the court has been to bestow non-existent, unconstitutional “rights” upon corporations. The corporations prefer to use direct political force and might-makes-right to get what they want. But arguing their “rights” in court is a supplement and backstop where brute force fails.

    So it seems appropriate that the way this fraudulent, subversive, back-door way of fighting was enshrined in the first place was not through formal argument in open court and an official decision, but through unacknowledged transmissions of lies, forged conspiracies, muttered remarks, furtive passing of notes, and a magically appearing “precedent”.

  • Doug Hunter

    “Can you give just one contradi(c)tion in the Constitution?”

    Isn’t that the purpose of your article… to demonstrate the perceived contradiction between your intepretation and the SCOTUS? Seems you two would be in agreement. Anyone being honest with themselves reading the constitution knows it layed the framework for a much more limited and smaller federal government. As complexities of the modern world arose, loopholes were found and words were parsed to align with whatever the current political scheme required….

    Glenn nailed it in #1. It’s elementary really. The power over taxation and economics gives the government all it needs for almost unlimited social engineering. Even if the constitution expressly forbids something it’s not much of a hitch… you want war without congressional approval… don’t call it a war. If an agreement forbids ‘torture’ don’t call what you’re doing torture. If you can’t penalize someone for not purchasing something, have it approved as a tax, then deny it’s a tax in public… playing that game you can use the constitution to justify virtually any policy.

    And Glenn, I thought you were results oriented… Bush won Florida in 2000. Won the original count, was on track to win the Gore requested recount. He only ‘lost’ in some, not all, after the fact recounts by the media using their own standards without even having access to all the ballots and even then by at most 40-100 votes out of 6 million***. Woulda been different if democrat welfare bloc was smart enough to correctly fill out a ballot, would have been different if military mail containing overseas ballots had been postmarked and delivered on time, might have been different if the media wouldn’t have called the state for Gore early. With such a tiny margin of victory either way no one can say for certain who would have won… I’m surprised you fell for it.

    *** As an interesting side note, the Post study had 3 reviewers, if the standard was that all three be in unanimous agreement on their most liberal recount method Bush would have won their full recount by 200, if you count the 2-1 splits Gore would have won by 60… again they were missing thousands of ballots so any results were just speculation.

  • Clav

    Igor, #10 isn’t mine…

  • Clav

    Igor, just for fun, I read several online articles about duckduckgo vis-a-vis Google. The consensus thus far is that DDG has a way to go before it really will rival, much less surpass, Google.

    However, all did laud DDG’s privacy policy over Google’s openly admitted lack of user privacy.

  • http://danmillerinpanama.wordpress.com Dan(Miller)

    Igor, Re # 7: Yes, it is confusing but there is a reason.

  • Kenn Jacobine

    #13 Igor,

    These are not contradictions in the document; they are contradictions conjured up by the Court. For instance, in #2 I would agree with the Court. UVA is a public institution and should fund the Christian paper if they make it a habit of funding others. To me this falls under equal protection of the law though.

    #1 is a horrendous ruling. There is no basis in the Constitution for it, let alone the practice of executive orders. Jst another example of judcial activism.

    The point is that the Constitution does not say one thing and then say another in a different place. It does not contain so many “contradictions” as you asserted.

  • Alexander J Smith III

    Interesting post Ken, just a point of concern:

    The SCOTUS essentially ruled that Congress does not have the ability under the Commerce Clause to coerce individuals into a market that they are not previously involved in for the sake of creating commerce. It does however, have the ability to levy a tax on something as it sees fit under the Taxing Clause. So to your point about the ACA being wholly unconstitutional, at best the Individual Mandate and Medicare Expansion provisions might be, but I think that under the Taxing Clause they can stand.

  • Clav

    Igor, just for fun, I read several online articles about duckduckgo vis-a-vis Google. The consensus thus far is that DDG has a way to go before it really will rival, much less surpass, Google.

    However, all did laud DDG’s privacy policy over Google’s openly admitted lack of user privacy.

  • Igor

    Kurt Goedel, when he immigrated from Austria to Princeton, was faced with taking a USA citizenship test before a judge, so, blessed with an abundance of Aspberger Syndrome (as so many of us great logicians are) he studied the Constitution with great zeal and discovered that the constitution could permit the ascendance of a dictator in America!

    On the day of his exam he rode to the test with his two friends Einstein and Morgenstern (co-author with Von Neumann of “Theory Of Games And Economic Behaviour”) and explained his discovery. Einstein and Morenstern were totally shocked and warned Goedel to say nothing about his discovery, but to only answer questions about details. But Goedel, blessed with the Heroism so typical of all blessed with Aspberger syndrome, heedless of danger, offered his explanation to the judge!

    The judge, of course, took exception, but nevertheless passed Goedel, probably in deference to his two credible witnesses.

  • Cannonshop

    How could anyone who followed Kelo or Citizens’ United be surprised at Roberts’ decision? Seriously. The Court as it sits now, and the Chief Justice especially, favours the rights of Organizations, Demographics and Groups, over those of Individuals, the Roberts ruling fits with that mindset.