May 25, 2013
Three Supreme Court Cases That Should Worry You
Posted on Dec 18, 2011
By Bill Blum
The immediate legal issue before the court is vitally important and by now well known: whether Congress has the constitutional power to require virtually all adult U.S. citizens and legal residents to buy health insurance or pay a penalty. But as critical as health insurance is in the everyday lives of all people, there is an underlying legal issue the case raises that is even more critical: whether Congress and the president in enacting national health care legislation have overstepped their authority under Article 1, Section 8, Clause 3 of the U.S. Constitution, otherwise known as “the Commerce Clause,” which grants Congress the power to regulate “Commerce with foreign Nations, and among the several States. …”
Although it lacks the fanfare of the First Amendment and concepts like due process and equal protection, the Commerce Clause has been the basis for a vast panoply of progressive federal legislation, ranging from the National Labor Relations and Fair Labor Standards acts of the 1930s to the Civil Rights Act of 1964 as well as Occupational Health and Safety, Equal Pay and Clean Air and Water acts of more recent vintage.
Since the federal circuit courts are split on the constitutionality of Obamacare, it’s understandable that the Supreme Court would step in to provide clarity. But here, as elsewhere, the trend is ominous. The challenge to Obamacare affords the Roberts court the opportunity to finish the job of New Federalism, and the implications for the country’s future could not be more profound. Would the demise of Obamacare have a legal domino effect, leading piece by piece, case by case, to future efforts to eviscerate Medicare, environmental protection and even Social Security? Oral arguments are set for March 26-28.
In Federalist Paper No. 78, Alexander Hamilton supported the creation of an independent court system, terming the judiciary the “least dangerous” branch of government because it lacked the capacity to “annoy or injure” what he called “the political rights of the Constitution.” But as the three cases topping its 2012 docket suggest, the Roberts court is moving to consolidate nothing less than a judicial counterrevolution.
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