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The Constitution On Life Support: Day 2

27 March 2012 @ 13:45

The second day of arguments before The Supreme Court on Obamacare have concluded.

The question before The Court is whether to take The Constitution Of The United States Of America off life support.

Over at Bench Memos, Carrie Severino has filed a report. A highlight:

Justice Kennedy was particularly concerned because, as he put it, the government bears a “heavy burden of justification” when a law “changes the relationship of the individual to government in a unique way.” From my reading, General Verrilli didn’t ultimately convince them, and Justice Kennedy returned to the issue several times. He asked whether the administration’s argument had any limits “at all,” and noted that the mandate “requires the individual to do an affirmative act,” a completely novel type of law.

The Chief Justice and Justice Scalia were most vocal on this issue, the Chief declaring that “all bets are off” if they accept the expansive interpretation advanced by the administration.

Perhaps Justice Kennedy was channeling his inner-Mark Steyn, who has been warning us for several years that the Individual Mandate does significantly alter the relationship between individuals and the government. If the government can force each and everyone of us to purchase health insurance and it is interpreted that The Constitution allows it, then there is nothing to stop the government from ordering us to do anything it wants. That would overturn and murder The Constitution because it would change our national government from one restricted to the powers enumerated in The Constitution to one of arbitrary powers [ie: subject to the whim of it's elected and appointed officials]. The government of The United States would become Frankenstein Unbound.

The transcript for today’s session may be found here [the audio is here], and for yesterday’s here [warning: they are in PDF format]. I’m sure C-SPAN will be broadcasting today’s session several times in the next twelve or so hours.

Over at the SCOTUS Blog, Lyle Denniston has up his analysis:

If Justice Anthony M. Kennedy can locate a limiting principle in the federal government’s defense of the new individual health insurance mandate, or can think of one on his own, the mandate may well survive. If he does, he may take Chief Justice John G. Roberts, Jr., and a majority along with him. But if he does not, the mandate is gone….

One other commentator speculated [I apologize for not remembering who it was] that Chief Justice Roberts might go along with the majority in order to be able to write the opinion more narrowly in an effort to save The Constitution [my words]. I’m very skeptical that even such a smart man as the CJ is could pull it off, especially well-enough to deter the Leftists in the Congress.

There was an excellent column by George Will [how often do I say that] in the Sunday New York Post on the amicus brief filed by Elizabeth Price Foley and Steve Simpson of the Institute For Justice. This is worth quoting from at length:

Hitherto, most attention has been given to whether Congress, under its constitutional power to regulate interstate commerce, may coerce individuals into engaging in commerce by buying health insurance. Now the Institute for Justice, a libertarian public-interest law firm, has focused on this fact: The individual mandate is incompatible with centuries of contract law. This is so because a compulsory contract is an oxymoron.

The brief, the primary authors of which are IJ’s Elizabeth Price Foley and Steve Simpson, says ObamaCare is the first time Congress has used its power to regulate commerce to produce a law “from which there is no escape.” And “coercing commercial transactions” — compelling individuals to sign contracts with insurance companies — “is antithetical to the foundational principle of mutual assent that permeated the common law of contracts at the time of the founding and continues to do so today.”

In 1799, South Carolina’s highest court held: “So cautiously does the law watch over all contracts, that it will not permit any to be binding but such as are made by persons perfectly free, and at full liberty to make or refuse such contracts. . . . Contracts to be binding must not be made under any restraint or fear of their persons, otherwise they are void.”

Throughout the life of this nation it has been understood that for a contract to be valid, the parties to it must mutually assent to its terms — without duress.

In addition to duress, contracts are voidable for reasons of fraud upon, or the mistake or incapacity of, a party to the contract. This underscores the centrality of the concept of meaningful consent in contract law. To be meaningful, consent must be informed and must not be coerced. Under ObamaCare, the government will compel individuals to enter into contractual relations with insurance companies under threat of penalty.

Also, the Supreme Court in Commerce Clause cases has repeatedly recognized, and Congress has never before ignored, the difference between the regulation and the coercion of commerce. And in its 10th Amendment cases (“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”) the court has specifically forbidden government to compel contracts.

…although the Constitution permits Congress to make laws “necessary and proper” for executing its enumerated powers, such as the power to regulate interstate commerce, it cannot, IJ argues, be proper to exercise that regulatory power in ways that eviscerate “the very essence of legally binding contracts.” Under ObamaCare, Congress asserted the improper power to compel commercial contracts. It did so on the spurious ground that this power is necessary to solve a problem Congress created when, by forbidding insurance companies to deny coverage to individuals because of pre-existing conditions, it produced the problem of “adverse selection” — people not buying insurance until they need medical care.IJ correctly says that if the court were to ratify Congress’ disregard for settled contract law, Congress’ “power to compel contractual relations would have no logical stopping point.” Which is why this case is the last exit ramp on the road to unlimited government.

There’s so much at stake here. As I wrote over in a post by Smitty [that I would recommend to you]:

If SCOTUS upholds the mandate then all bets are off because it will be the final nail in the coffin of The Constitution. Therefore, we, as the Sovereignty, will have the right and the duty at that point to invoke The Declaration Of Independence.

Let us pray that it does not come to this.

  1. theebl permalink
    27 March 2012 @ 15:10 15:10

    I would not be popping the champagne off yet…

    But if Toobin is right this will be a very big F’n deal!

    • 27 March 2012 @ 16:34 16:34

      Oh, believe me, I’m not. In fact, I’m expecting the worst.

      BTW: Toobin is a douche nozzle.

  2. 27 March 2012 @ 23:10 23:10

    While not actually “paying off” (it can’t) I’m becoming increasingly more convinced of the correctness of my short position on “civilization” in general and this “Republic” (?) in particular.

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