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June 19, 2013
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 Activist Judges Strike AgainPosted on Feb 15, 2011
Wisconsin Attorney General J.B. Van Hollen may have created a new gold standard for constitutional ignorance. The recent decision by a Florida federal judge to strike down the whole of the new federal health care law, a decision at odds with two other rulings, prompted Van Hollen to declare that “effectively, Wisconsin was relieved of any obligations or duties that were created” under terms of the law. Even the judge stayed his ruling pending appeal. Van Hollen’s statement takes one’s breath away, and puts him in the ashcan with South Carolina and other states that have ventured various forms of interposition. That civil war ended nearly 150 years ago—or so we thought. Van Hollen quickly retreated, saying he had not advised the governor to halt implementation in Wisconsin. (After recently assuming office, the governor rejected millions of federal dollars for a proposed Midwest high-speed rail system. He wanted the money instead for road builders, who lavishly supported him. The Obama administration rejected his demand, wisely, as he had good reason to know it would.) The expansive, nationalist interpretation of the U.S. Constitution’s commerce clause is not a New Deal phenomenon; instead, it originated at the very dawn of constitutional interpretation in the early 19th century. Yet the Florida decision boldly rejected nearly two centuries of Supreme Court rulings upholding a broad sweep of congressional power under the national legislature’s authority to regulate commerce among the states. Judge Roger Vinson’s ruling might best be remembered as a new benchmark for judicial activism. Such are the times—not too different from the past, but just more heated—that constitutional clashes are inevitable. The framers of the Constitution themselves did not foreclose future debates. Their words sometimes were vague, laying a foundation for a later variety of views, but after all, it is not a statute but a constitution we expound, as the first great Chief Justice John Marshall eloquently stated, and one intended “to endure for ages to come.” Vague? Of course. The Constitution provides that Congress may pass all laws “necessary and proper” to carry out its powers; it may “tax and spend for the general welfare”; and it may “regulate commerce among the several states.” What does it all mean? When? In 1787? 1887? 1954? Only Robert Bork and his Ouija board can divine certainty in the framers’ intentions. (To see an outline of “originalism” and of Bork’s view on the matter, click here.) James Madison, who later became the nation’s fourth president, undoubtedly would stagger with wonderment at the 21st century’s (and 19th and 20th, too) construction of Article 2 and presidential powers. Advertisement Historically, conservative, nationalistic judges have carved out a tradition of broad construction of the commerce clause. Those who would retreat from or reject that tradition must abandon any pretense to their “conservatism.” The commerce clause is intimately linked with the organization of political forces driving for a new constitution, and the framers accordingly recognized the chaotic interruptions of commerce by states eager to protect their own products and provide further means for raising revenue. Marshall’s landmark ruling in Ogden v. Saunders in 1824 offered the first extended discussion of the commerce clause since its inception. The chief justice predictably framed the scope of the commerce clause and congressional power in his typically latitudinarian fashion. “Commerce,” he said, “undoubtedly, is traffic,” but he added: “it is something more; it is intercourse.” Strict construction, he insisted, “would cripple the government, and render it unequal to the objects for which it is declared to be instituted.” And surely today’s self-proclaimed conservatives must love Marshall’s deference to Congress, whose power is “plenary,” limited only by legislative “wisdom and discretion.” Marshall, ever anxious to steer the court away from political questions, effectively denied a judicial role in restraining Congress. A later Supreme Court attempted to limit congressional power and establish another direction in the Knight case in 1895 when it ruled manufacturing was not commerce and the federal government lacked authority to regulate the great emerging monopolies of the time. The court held that the sugar refining industry—94 percent controlled by one conglomerate—was engaged in manufacturing, not commerce, and thus free from antitrust regulation. The decision proved exceptional and limited. But the conservative majority of the court in the 1930s, overtly hostile to and contemptuous of the New Deal, vigorously revived it, thwarting early attempts to bring economic order and reform. Yet the post-Knight history of Supreme Court commerce decisions marked a steady limitation, if not retreat, from the arbitrary distinction between manufacturing and commerce. William Howard Taft, an eminent conservative yet one who endorsed most of the progressive goals of his time (pay attention, Glenn Beck!), had an unhappy presidency, but ended his career just where he always wanted to be: chief justice of the United States (1921-30). As a lower court judge, Taft found the Knight precedent perplexing and he neatly skirted it. Then and later, Taft’s rulings on commerce consistently advanced a broad construction of national power. At one point, he wrote that the commerce clause “is exactly what it would be in a government without states, and … include[s] all that a legislature … could do in regulating commerce” except to take property without due process of law. Taft had one quirky exception to his expansive views on commerce, with his rejection of federal attempts to regulate child labor. Taft’s commerce clause opinions became the foundation for the court’s rulings in the 1930s upholding broad federal power over commerce to bring order in the economic system. Endorsing the government’s program of labor relations, for example, the court embraced the views of Taft and rejected the artificial production/commerce distinction. In his opinions, Taft’s successor, Chief Justice Charles Evans Hughes, returned the court to its longstanding tradition, and he shrewdly embraced the opinions of his impeccable, conservative, constitutionalist predecessor. What will the Supreme Court decide on the new health care law? First, Justice Clarence Thomas’ position should offer no mystery. Some quarters have demanded he recuse himself given his wife’s outspoken challenge to the health law. Virginia Thomas has been forthright: “I want to repeal Obamacare.” Never mind—her influence is beside the point, for Thomas has consistently supported a narrow construction of the commerce clause and limitation on federal power, approvingly citing the decisions of the “Four Horsemen,” as the rejectionist, conservative judges of the 1930s were called. Thomas sometimes seems more comfortable with the Articles of Confederation, the failed authorization for a national government that had preceded the adoption of the Constitution in 1787. If conservatives are said to look backward, then Thomas clearly owns the longest view. Predictions and hopes for the rest of the court’s stand on the health legislation abound. The justices decide law, not their own personal, political preferences—as conservative commentators so correctly remind us. They are not members of Congress, pursuing partisan, ideological goals; rather, they are members of the nation’s highest court, one deeply steeped in respect for a Constitution encased in precedent and history—a district judge in Florida and a partisan, puny attorney general in Wisconsin notwithstanding. Stanley Kutler is the author of “The Wars of Watergate” and other writings.  TAGS:
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By Henry Stanton, February 19, 2011 at 2:48 pm Link to this comment
Dear Stanley Kutler:
Gibbons v Ogden is your case.
Whoever quotes Madison must realize that he changed his mind during 1788 to add the Bill of Rights. He changed his mind to become a Democratic Republican in the 1790s, he opposed the Bank of the US in 1791 and SIGNED THE BANK BILL IN 1816. There is no one original interpretation of the Constitution. Would Hamilton have objected to the Healthcare law???
Yours for actually learning American History.
Report thisBy TAO Walker, February 17, 2011 at 8:39 pm Link to this comment
So….no takers, apparently, on this Indian’s suggestion below, to bitchers-and-moaners here who’re feeling oppressed by the IRS’s state-sponsored-terrorism regime, that they voluntarily reduce their participation (in the U.S. prison-industrial division of the “global” false-eCONomy privateering pyramid scheme) to non-taxable levels. Just goes to show how really cheap “talk” is.
Oh well….in for a penny, in for a pounding.
HokaHey!
Report thisBy dihey, February 16, 2011 at 5:38 pm Link to this comment
(Unregistered commenter)
The notion that our nation is a collection of semi-independent states actually died with the civil war. Today it is a sad fiction maintained by a sclerotic constitution.
Report thisBy willymack, February 16, 2011 at 3:36 pm Link to this comment
(Unregistered commenter)
Who would even listen to the rantings of a deranged nitwit like Michelle Bachmann?
Report thisUnfortunately, LOTS of us.
They not only listen to her and others like her, but actually BELIEVE their fraudulent flatulence.
By tedmurphy41, February 16, 2011 at 11:07 am Link to this comment
These judges are living in an ‘Alice in Wonderland’ existence, where what they say and do is to be interpreted as to what they want it to mean, no more and no less.
Report thisBy peterjkraus, February 16, 2011 at 1:26 am Link to this comment
This whole debate is patently ridiculous.
People get sick, people get medial care that is
paid for by themselves, by their insurer or by
the taxpayer. Cutting out the profit motive is
what other, more caring societies have done,
with the result they live longer, more
rewarding lives.
I´m retired, and I have given thousands of
hours in the past to helping my compatriots
attain a better life. Turns out, these are
today´s tea party voters, the numbnuts who
think giving the rich more will trickle down to
them. The kooks who fight tooth and nail to
avoid having medical insurance coverage.
So I´m at the point where I say screw you, I´ve
Report thisgot mine. And pretty much stopped caring.
By Big B, February 15, 2011 at 6:27 pm Link to this comment
Hopefully these loony tune, activist judges will get their wish and this awful version of healthcare legislation will die on the vine.
Prez Barry needs to wake up to the opportunity that these wack-a-mole judges and their neo-con benefactors have thrust upon him. Just think of the wonderfully bad publicity he can conjure up for the GOP in the coming election cycle of 2012. “Repugs want grandma to go broke and die!” can be the battle cry. But will Barry grow a truly handsome set of testicles and then take the bold step of signing an executive order dropping the medicare age to zero, then proposing to raise the medicare tax on all corporations(making them realize that they are still getting off cheap after they realize that they are now saving a shitload of money they used to spend on private plans) Lob the ball back in the repug house just as 2012 starts, and let them take a stand against the people of the US just before an election.
If he and the dimmos still lose after that, well, do you really want to be in charge of a nation that doesn’t see medical care as a right and not just another commodity?
Report thisBy Northpal, February 15, 2011 at 5:24 pm Link to this comment
(Unregistered commenter)
@prisnersdilema we know who you are booby, when satans children ever produce one exhumed body then maybe we will consider your myth. But even your myth does not come close to those used by the Marxist assault upon a nation of sovereigns who established a government, not the other way around. When the red shield corporations of Britain assaulted this nation with a civil war, the result was a corporate entity known as UNITED STATES CORP. With that it grew legs and power via its 14th amendment “corporate citizens”. That afforded under the law to natural persons should also be afforded to corporations as legal persons. You having contracted with this beast via Social Security Card and a receiver of its benefits, therefor a sub corporation under it’s control. That’s why you need a license (permission to break the law) or permit to do things. A free citizen doesn’t require a license or a permit. You have declared yourself an incompetent person under their commercial laws and jurisdictions, therefore you have to know who you stand under, God or an artificial person (corporation). If you have elected the coporate identity, well then bend over grin and bare it. You have no recourse, no argument, you are under the federal, state and local corporations, what they say goes constitution or no constitution.
Report thisBy TAO Walker, February 15, 2011 at 4:56 pm Link to this comment
“Mike789” laments being “....compelled to buy” what he dislikes or even abhors in the way of gov’t policy and practice. He must be aware that the “income tax” is entirely “voluntary.”
If those who so vehemently profess to oppose so much of what gov’t does in their name had the courage of what they claim are their convictions, they would refuse to submit to the extortion regime which wrings their “share” of its cost out of their “earnings.” Even if they would voluntary limit their “money” “income” to something below the “legal” minimum “taxable” amount, thereby obviating any risk whatsoever of harassment from the private CONtractor “agents” who do that dirty-work, they would be depriving the behemoth of both their consent and any fruits of their labors.
Of course it’s much easier for genuine living Human Communities to behave in that ORGANically responsive and responsible Way than it is for any easily terrorized “individual” to do so.
ALL TOGETHER….NOW!?!?
HokaHey!
Report thisBy Jimnp72, February 15, 2011 at 2:06 pm Link to this comment
SCOTUS making decisions based on the law instead of ideaology or
Report thispolitics? were we born yesterday?
By prisnersdilema, February 15, 2011 at 12:23 pm Link to this comment
The so called health care companies in this country make billions of dollars every year
by condeming people to misery and death. Each dollar of profit represents a refusal by
those companies to allow surfering people, including children and infants the care the
need to get well. This often results in death. Each year theses companies pay record
bonuses to the CEO’s who ordered those deaths.
No matter how you dress it up with pretty ads of healthy smiling people dancing in the
sunshine it’s equivalent to paying the comanding officer of Auschwitz a cash reward for
gassing a record number of undesirables.
With their henchmen in the pharmaceutical companies they sell dangerous drugs that
kill, turn housewives into junkies, and block cancer cures.
Murder is highly profitable, when made legal by the government.
How inconvienient for them that there are still some freedom loving Americans who
Report thisresist the idea of going quiety into the oven.
By David J. Cyr, February 15, 2011 at 11:41 am Link to this comment
QUOTE (Stanley Kutler):
“Predictions and hopes for the rest of the court’s stand on the health legislation abound. The justices decide law, not their own personal, political preferences”
____________
If the Constitution required legislation to honestly provide what it advertises, then the Supremes would need to decide that ObamaCare is unconstitutional… because its purpose is not We The People’s health. Its purpose is care for corporate profits from the denial of care.
Obama discarded healthcare in his “Yes We Can” garbage can.
http://www.pnhp.org/facts/what-is-single-payer
Obamamania was a failure of imagination, leaving its maniacs with nothing but their imaginings.
Report thisBy Mike789, February 15, 2011 at 10:05 am Link to this comment
We are compelled to “purchase” all manner of products by the government and furthermore, we are compelled to subsidize products we may never come into contact with in our daily lives. Whether the costs are exacted through a general funding tax or out of pocket, is moot.
To make an assertion that the if sustained, the healthcare legislation is tantamount to “slavery” is at best obtuse, but if that logic is followed, I’m compelled and “mandateed” to fund non-participants by the insurance companies. This is not small change. It averages a G-note per yearly premium and your “master” is the fat cat sitting in a board room.
The unique nature of the way healthcare is structured through insurers via payroll incentives has created insurance behemoths who, quite frankly, dictate that you buy their health insurance or be subject to financial insolvency. Since there is no credible alternative, they hold a whip. Moreover, they have dominion over an essential “product” and having a responsibility to look good to Wall Street, they pass profitering on to consumers with no requirement to improve that products efficiency excepting that of one aligned with denial of service.
Now, if the insurers would agree to restucture as utility companies, (that’s a laugh) or base premium hikes on “results” and voluntarily insure every American, regardless of his or her condition, two resulting scenarios emerge. Insurers profits diminish via efficiencies (ironic in itself) or premiums increase astronomically. Both are non-starters.
So here were are with an elephant in the room with no one on either aisle willing to introduce another competitive creature, namely, single payer. Is there any case for a “right” to be free of the profit motive beast whose 30% inefficiency dominates? The answer was “no”. Our Congress, We the People, opted to tweek the system with mandates and controls improvising a right/center bill not dissimilar to the bill offered by the Right during the Clintion’s at bat. And because of it’s source, the Left (ahem? what Left), it is excoriated.
I hate the bill, not simply because it greens the grass of insurers, but primarily because it’s complexity precludes it’s effect administration. I care less about the mandate to have to buy a minimum insurance policy than I care for that fact that I am compelled to buy a strike fighter to challenge China, or a mega-embassy in Iraq to sustain the MIC or a sanction to superceed the Clean Water Act, devised sub rosa and secretly, allowing fragging for natural gas. I care more about the fact that a clear majority made it clear that a single payer option be at least debated and was swept away because a healthcare lobby leverage a special interest. At least the facts are on the table in the latter.
Notwithstanding, as healthcare insurance is a product subject to the profit motive of Wall Street, (not to mention anti-trust implicatons) it seems clear that it is Constitutional that Congress may regulate it accordingly as per historic presidence.
Report thisBy Dennis, February 15, 2011 at 10:03 am Link to this comment
(Unregistered commenter)
BarbieQue,
Report thisHow does Federal flood insurance fit in with your view?
Why is car insurance to health insurance a false equivalency?
It would have been much cleaner to have medicare for all. That bill could have been 1 page, and read by all who voted on it.
By jamezbelly, February 15, 2011 at 7:38 am Link to this comment
(Unregistered commenter)
People should never forget that real health depends how
Report thiswell you take care of yourself and not what health
insurance you carry but I agree health insurance is
important for every one. Search “Wise Health Insurance”
online for dollar a day insurance plans.
By BarbieQue, February 15, 2011 at 5:51 am Link to this comment
Essentially, Kutler is arguing that the Commerce Clause, for the first time in history, enables the Feds to require a citizen to *engage* in commerce (purchase insurance from a for profit company—NOT a tax).
If this is upheld, we Citizens will be nothing more than slaves. One could argue that every *single* thing could be “regulated” under the commerce clause. Are you prepared to give that power to (R)epublicans? REALLY?
Here it is:
“[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes;”
http://en.wikipedia.org/wiki/Commerce_clause
Why is this the first time in the history of the US that the Feds have argued that they can *require* purchase of anything? And shame on Obama himself because if he was a real “constitutional scholar” he would never advance the argument that the Federal Requirement to purchase health insurance is like auto insurance. State/Fed. It’s a deliberate false equivalence.
Kutler continues on citing ” The Constitution provides that Congress may pass all laws “necessary and proper” to carry out its powers; it may “tax and spend for the general welfare”
However, if one reads Madison, for example, the “necessary and proper” clause is limited, not empowering.
“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. ... The powers reserved to the several States will extend to all the objects which in the ordinary course of affairs, concern the lives and liberties, and properties of the people, and the internal order, improvement and prosperity of the State.”
— James Madison
http://www.goodreads.com/author/quotes/63859.James_Madison
This is how Republics are transformed into Empires. If you are required to contribute to a corporations bottom line (your $500 per month payment will cover the CEO salary for a few minutes or so) you are not a free person.
This is outrageous. This is a fascist assault.
Never forget how Pelosi responds to a legitimate question RE: Authority:
When Asked Where the Constitution Authorizes Congress to Order Americans To Buy Health Insurance, Pelosi Says: ‘Are You Serious?
http://www.cnsnews.com/news/article/55971
If the Kutlers of the world want to enable the Federal Government to require Citizens to purchase anything, get an amendment that permits it.
Report this