Capitol Hill Blue Forums Political Issues Constitutional Issues The Supreme Court and ObamaCare's Demise?

The unanimous panel easily disposed of the constitutional arguments against the law. However, the concurring opinion by Judge Janice Rogers Brown, joined by Reagan nominee Judge David Sentelle, was anything but unexceptional. One of the most extreme of George W. Bush's ideological nominees to the federal bench, she issued a clarion call to reverse decades of settled law and cripple Congress's constitutional ability to tackle national problems.

In a concurrence loaded with red meat for the political right wing, Judge Brown defended the ideology of the discredited Lochner era, when vitally necessary economic legislation was regularly struck down by an ideological Supreme Court dedicated to limiting the federal and state governments' ability to address the horrific consequences of unbridled capitalism.

The [plaintiffs] Hettingas' sense of ill-usage is understandable. So is their consternation at being confronted with the gap between the rhetoric of free markets and the reality of ubiquitous regulation. The [case] reveals an ugly truth: America's cowboy capitalism was long ago disarmed by a democratic process increasingly dominated by powerful groups with economic interests antithetical to competitors and consumers. And the courts, from which the victims of burdensome regulation sought protection, have been negotiating the terms of surrender since the 1930s.

First the Supreme Court allowed state and local jurisdictions to regulate property, pursuant to their police powers, in the public interest, and to adopt whatever economic policy may reasonably be deemed to promote public welfare. Then the Court relegated economic liberty to a lower echelon of constitutional protection than personal or political liberty, according restrictions on property rights only minimal review. Finally, the Court abdicated its constitutional duty to protect economic rights completely, acknowledging that the only recourse for aggrieved property owners lies in the "democratic process."

This is the line of attack by the right on Congressional powers:
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These battles dominated the Court's work during the 1930's and the pack of 4 on the Court seem intent on returning us to the 1920's

Nullification of Obamacare

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In support of the movement to nullify Obamacare, here are two key ingredients that will help in understanding the necessity of nullification in this case.

The first is the difference between the roles of a national government and a federal government. A national government has direct governance over the people of a nation (as our government is currently doing with the so-called Patient Protection and Affordable Care Act). But a federal government only has governance over a federation of sovereign states. It's most basic duties are
To ensure that the states function well between themselves (e.g., commerce and public acts),
To provide for the common defense, and
To provide for proper foreign relations.

Simply put, the federal government is the glue that keeps the states together and the shield that protects them. Those are its duties. This limited governance over a federation of states is why the U.S. Constitution is relatively short. State constitutions are longer - each has a much wider scope because the vast majority of the laws of our country are to be handled on the state and local levels. And so, a federal healthcare law is completely out of place.

Second, we learn from the U.S. Supreme Court case of Marbury vs. Madison that "a law repugnant to the constitution is void." This is, of course, what nullification is all about.

Article VI of the Constitution says “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof, ... shall be the supreme Law of the Land; ...” Because the so-called Patient Protection and Affordable Care Act violates the 5th Amendment, the 14th Amendment, as well as Article 1, section 8, it clearly does not fall within the “supreme Law of the Land.” Well, that begs the question: though it's not supreme, is it still a valid law? No. As Marbury vs. Madison tells us, because it is repugnant to the Constitution, it is void. It is not a law at all. We would be fooling ourselves if we carried out this so-called healthcare law.

Be assured that truth, reason, propriety, and constitutional law are all on the side of nullification of this erroneous law. There is nothing contradictory with truth from any side. But this so-called healthcare law crumbles under each of those four tests.

Each state legislator should follow the U.S. Constitution in every particular, and thereby fulfill his or her sacred oath of office to support it.

The first is the difference between the roles of a national government and a federal government. A national government has direct governance over the people of a nation ...But a federal government only has governance over a federation of sovereign states.

The problem is one of over stepping the authority that Congress actually has. If this law is allowed to stand, there are no longer any limits on what Congress can force Americans to do.

Legaleze and legal blather cannot make up for the logic behind this argument. Congress was never supposed to have this level of power and the fact that it has been awarded them through the courts does not change that fact. What the courts give, the courts can take away.

The problem is one of over stepping the authority that Congress

In 1790, the very first Congress—which incidentally included 20 framers—passed a law that included a mandate: namely, a requirement that ship owners buy medical insurance for their seamen. This law was then signed by another framer: President George Washington. That’s right, the father of our country had no difficulty imposing a health insurance mandate.

That’s not all. In 1792, a Congress with 17 framers passed another statute that required all able-bodied men to buy firearms. Yes, we used to have not only a right to bear arms, but a federal duty to buy them. Four framers voted against this bill, but the others did not, and it was also signed by Washington. Some tried to repeal this gun purchase mandate on the grounds it was too onerous, but only one framer voted to repeal it.