On Monday, oral arguments will begin for the Patient Protection and Affordable Care Act, a case which will demand arguably the most important ruling the Supreme Court will make in a century. And the Court’s decision on the constitutionality of ObamaCare’s individual mandate will indeed be that important; for a finding that it is constitutional and may therefore be implemented would provide the federal government unlimited, dictatorial power over the lives and actions of the American people.
The 11th Circuit Court of Appeals found the individual mandate unconstitutional, ruling quite correctly that the Article I, Section 8 Commerce Clause powers of Congress upon which Obama’s handlers had depended for the authority to force certain Americans to purchase unwanted healthcare did NOT provide such authority after all.
And as the argument made by the 11th Circuit in its 305 page decision was brilliant and almost certain to influence the thinking of the 5 members of the Court who still believe the United States Constitution rather than the Little Red Book to represent the law of the land, Obama’s Department of Justice lawyers were forced to invent a new method for allocating Congress the power necessary to impose the mandate. The non-existent “penumbras” magically created by the Burger Court to justify Roe v Wade were not likely to work this time.
So DOJ attorneys have decided to apply the “necessary and proper” clause, which provides Congress the authority to make all laws “necessary and proper for carrying into execution the enumerated powers of Congress,” such as the power to regulate commerce!
The DOJ took this tack because in 2005, Justices Scalia and Kennedy sided with the Court’s Marxist left in deciding the California case Gonzales v Raich. In his concurring opinion, Scalia re-affirmed the vast authority of Congress under the necessary and proper clause, writing that it “empowers Congress to enact laws in effectuation of its enumerated powers that are not within its authority to enact in isolation.”
Clearly, this is a striking statement and one which might well excite the imagination of DOJ attorneys. For it appears to provide Congress the right to enact even questionable laws in order to support the exercise of an enumerated power.
But prior rulings notwithstanding, the issue of Obamacare is a simple one: will the Supreme Court award Congress unlimited power over the lives of the American public? There could be no greater act of violence against the Constitution, the republic, and the people than one which would afford Congress such dictatorial authority.
As National Federation of Independent Business attorney Karen Harned says of DOJ representatives in the various Obamacare lawsuits, “what we have seen in all the cases, the one question they cannot answer is ‘Where does it end?’”
“When appeals court Justice Laurence Silberman asked Deputy Attorney General Beth Brinkman if requiring Americans to buy broccoli would be unconstitutional, she answered—‘No. It depends.’ ”
Disgraceful. And frightening. If Obamacare and its individual mandate become law, the right of Americans to engage in civil disobedience will become absolute. For no act could be considered too severe and none ruled illegal as the right of the nation’s highest court to interpret the law or dispense justice would be forfeit.
The views expressed in this opinion article are solely those of their author and are not necessarily either shared or endorsed by WesternJournalism.com.