After three days of testimony before the Supreme Court on Obama’s health care law, the so-called “Affordable Health Care Act”, some things are becoming evident, although no one can predict how the Court will rule. In a “best case scenario”, it will rule the entire law unconstitutional, killing it completely. In a “worst case scenario”, they could rule the law constitutional as it stands, which would be catastrophic for the country. While either is possible, neither is probable. More than likely, the final ruling will fall somewhere in-between.
There seems to be a widespread belief that the individual mandate will be struck down by the court, although that is in no way certain. Even if it is, there is a strong possibility that parts of the law will be left intact. Based on the history of Supreme Court decisions, it is likely that if the Affordable Care Act is struck down, all or in part, the majority opinion of the Court will contain language that can be used by the left to further expand the meaning of the commerce clause of the Constitution.
At this point in the deliberations, it seems obvious that the final outcome and thus, the future of the Republic will hinge on the decision of a single Supreme Court Justice. It is certain that the four progressive/socialist Justices will come down on the side of government, while the four constitutionalists will elect to strike down, at least several parts of the law. The deciding vote on most of the major issues will certainly be Justice Anthony Kennedy. That means that the future of the Republic for generations to come depends on the decision made by one man. This cannot be allowed to stand. A free Republic must be governed by the rule of law. We cannot afford to continue to allow one individual to decide what that law shall be.
In order to maintain the independence of the Judiciary, federal judges, including Supreme Court Justices, are appointed for life, or “during good behavior”. This lifetime tenure was granted to the judiciary with the understanding that they could be turned out of office by impeachment, should they prove to be unworthy of the position. In the history of America, thirteen federal judges have been impeached. However, only one Supreme Court Justice. That was Associate Justice Samuel Chase in 1804. He was impeached by the House of Representatives, charged with allowing his partisanship to influence his Court decisions. He was acquitted in the Senate by one vote, however.
Congress, after the elections of 1800, was dominated by the Democratic-Republican Party. However, because of the slow turnover of the Senate due to the three-election-cycle term of Senators, the Federalist Party was still strong enough in the Senate four years later to prevent Chase’s conviction. Since that time, no Supreme Court Justice has ever been impeached by the House. Short of impeachment, there is no way Supreme Court Justices can be held accountable for violating their oath of office. This fact became a major subject of debate during the Constitution’s ratification process.
The anti-federalists feared that the Supreme Court would become too powerful, usurping the powers granted to the Legislature by the Constitution. Justices would hold their office for life and there were no provisions in the Constitution for correcting their errors. The Framers believed the threat of impeachment would by sufficient to prevent the Court from overstepping its authority. One of the Anti-federalists, writing under the pseudonym “Brutus”, succinctly stated the objection in an article dated March 20, 1788.
“1st. There is no power above them that can correct their errors or control their decisions — the adjudications of this court are final and irreversible, for there is no court above them to which appeals can lie, either in error or on the merits. — In this respect it differs from the courts in England, for there the house of lords is the highest court, to whom appeals, in error, are carried from the highest of the courts of law.
2d. They cannot be removed from office or suffer a diminution of their salaries, for any error in judgment or want of capacity.”
Alexander Hamilton attempted to answer the objections of the Anti-federalists in Federalist numbers 78 – 81. In Federalist 81, Hamilton summed up the objections of the Anti-federalists.
“The arguments, or rather suggestions, upon which this charge is founded, are to this effect: ‘The authority of the proposed Supreme Court of the United States, which is to be a separate and independent body, will be superior to that of the legislature. The power of construing the laws according to the spirit of the Constitution will enable that court to mould them into whatever shape it may think proper; especially as its decisions will not be in any manner subject to the revision or correction of the legislative body. This is as unprecedented as it is dangerous. In Britain, the judicial power, in the last resort, resides in the House of Lords, which is a branch of the legislature; and this part of the British government has been imitated in the State constitutions in general. The Parliament of Great Britain, and the legislatures of the several States, can at any time rectify, by law, the exceptionable decisions of their respective courts. But the errors and usurpations of the Supreme Court of the United States will be uncontrollable and remediless’.”
Later in the same paper, Hamilton attempts to put this objection to rest by pointing out the power of impeachment given to the two houses of Congress.
“It may in the last place be observed that the supposed danger of judiciary encroachments on the legislative authority, which has been upon many occasions reiterated, is in reality a phantom. Particular misconstructions and contraventions of the will of the legislature may now and then happen; but they can never be so extensive as to amount to an inconvenience, or in any sensible degree to affect the order of the political system. This may be inferred with certainty, from the general nature of the judicial power, from the objects to which it relates, from the manner in which it is exercised, from its comparative weakness, and from its total incapacity to support its usurpations by force. And the inference is greatly fortified by the consideration of the important constitutional check which the power of instituting impeachments in one part of the legislative body, and of determining upon them in the other, would give to that body upon the members of the judicial department. This is alone a complete security. There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body entrusted with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations. While this ought to remove all apprehensions on the subject, it affords, at the same time, a cogent argument for constituting the Senate a court for the trial of impeachments.” (Emphasis added)
Conviction in impeachment cases requires a two-thirds affirmative vote in the Senate. This makes conviction almost impossible with the highly partisan nature of the professional politicians who populate both houses of Congress, a majority of whom will always side with their party over the welfare of the nation as a whole. We saw this in the planned impeachment of Richard Nixon and in full display during the impeachment of President Bill Clinton. The Act of impeachment will always be a partisan issue so long as the two major political parties are allowed to hold the power over government they have exercised from the beginning of the Republic. This fact of political life prevails in all political parties. The prosecuting party will ignore facts and mitigating circumstances in order to gain a victory over its opponent, and the defending party will do the same in defense of the accused in its party.
The next four to twelve years will be an all-out battle between the forces of despotism and the forces of liberty. There have been only two periods in the past when the nation has been as divided as it is today; during and after the Revolutionary War and the period surrounding the Civil War and its aftermath. We cannot allow the outcome of the coming conflict to depend on the decisions of one Supreme Court Justice.
The Constitution is our only real defense against outright tyranny. By now, this should be apparent to anyone who honestly looks at the facts. Since the tenure of Chief Justice John Marshall in 1803, the Supreme Court has taken it upon itself to decide what the language penned by the Framers actually means. Our current Court is almost evenly divided between the enemies of the Constitution and its defenders. The four progressive/socialist Justices barley mount a pretense of honoring the Constitution they took an oath to defend. As difficult and distasteful as it is, impeachment seems to be the only means of changing the politically corrupted nature of the Supreme Court. We simply cannot wait for time and chance to do it for us, and the immediate future is likely to be the only time for generations when impeachment is possible.
Thanks to the heavy-handed and tyrannical way in which Obama wields the powers of his office, millions of Americans are waking up to the realization that our nation is on the verge of total economic, political and cultural collapse. Every day hundreds if not thousands of citizens are gaining more knowledge of how our system works and why. Humanly speaking, the system established by the Founders, has alone been responsible for the success and prosperity we have enjoyed in the past. Before the nation goes back to sleep, either from the stupor brought about by socialist despotism or the indolent slumber fostered by the blessings of liberty, we must begin to take the steps correct the problems in our court system, from the federal trial courts to the Supreme Court.
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Unfortunately, Congress has demonstrated by numerous compelling votes, or simply avoiding a vote altogether, a lack of courage to make the hard political decisions to deal effectively with pressing matters consistent with the United States Constitution. On the other hand, Congress has repeatedly sought to expand its powers in spite of our Constitution which basis was to ensure individual liberty by limiting the powers of the federal government.
Congress also has had a bad habit of naming legislation consistent with a lofty goal while the legislation propounded often times contradicts the title. This is exacerbated by a Congress comprised of a preponderance of members apparently more concerned with re-election than fulfilling their oath of office. Such circumstances clearly are not the foundation and engine of good law.
We the people should be embarrassed by our Congress, the first branch of the federal government, when it acted to adopt this 906 page act purveying extraordinary governmental intrusiveness into the private sector at the hands of one party virtually ignoring the other party. Certainly the seed of arrogance was planted in the absence of compromise. This act was signed into law by President Barack Hussein Obama II on March 23, 2010. He was the man who ran for the chief executive office of our constitutional republic, the second branch of the federal government, on a platform of bipartisanship. This law was none of that. As one might expect, such profound conflict can only result in an inevitable challenge, opined by the final arbiter, the third branch of the federal government, the Supreme Court of the United States.
The plain fact is that the “Patient Protection and Affordable Care Act” does not make health care more affordable at all. The real drivers of cost have been well known for decades. But, such are absent in this law. Examples of these potential cost saving approaches are: requiring more transparency by publishing reasonable and customary charges for services to create competition; allowing full free market based health insurance policies to expand the base of competition; stopping the massive and divisive cost shifting to the individual by group insurers, the federal government and state governments; tort reform; and many others.
The Supreme Court now has the responsibility to rule on the constitutionality of the “Patient Protection and Affordable Care Act.” While there are many issues being contested, the largest lens will be sharply focused on the enumerated powers of Congress in Article I, Section 8 of the Constitution, the “Commerce Clause.” It states: “[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.” The operative word is “regulate.” Our lexicon defines “regulate” as: “to govern or direct according to rule; to bring order, method, or uniformity to a process.”
Sustaining the constitutionality of the “Patient Protection and Affordable Care Act” will indeed rely on yet another redefinition of the Commerce Clause which is not a new idea. Such has been part of an incremental process to increase the powers of Congress substantially beginning in 1935, more or less. This insidious expansion of the definition of the word “regulate” over the years has been supported by all three branches of the federal government. This was done in large measure to sustain the appearance of Constitutional integrity, thereby avoiding the onerous Article V Constitutional amendment process and the chance that “we the people” may not approve of increasing the powers of the federal government.
Upon a careful reading of the “Patient Protection and Affordable Care Act”, it has the following characteristics: “to manage or supervise the execution, use, or conduct of; to furnish a benefit; to manage the affairs of.” Unfortunately, the latter definition appears to be best suited to the word “administer”, which word the framers would likely have chosen if that was actually the purpose of the Commerce Clause. Since much of the “Patient Protection and Affordable Care Act” is administrative in nature, rather than regulatory, one need look no further than the dictionary to see that the “Patient Protection and Affordable Care Act” is not Constitutional.
If the Court would choose to ignore the dictionary, the next bar to consider would be the constitutionality of conscripting those that have chosen not to purchase health care insurance in order to fund the “Patient Protection and Affordable Care Act” by requiring them to either enter the health care insurance market and purchase health care insurance, or pay a penalty. In other words, require citizens over their objections, and without appeal, to enter the heath care insurance market for the sole purpose of Congress then regulating them. Such convoluted logic cannot be considered constitutional.
Assuming the Supreme Court’s liberal jurists opine to support the constitutionality of the “Patient Protection and Affordable Care Act”, thus continue to inject their politics into the process regardless of what is written in the Constitution as necessary and proper, this would be a good time for the impeachment mechanism to emerge to remove those that would blatantly ignore their oath of office. Of course as stated in detail by Mr. McDaniel and herein, such would rely on Congress having the courage to do so. And so, my discussion may conclude where it began.