Can ObamaCare Survive the Constitutional Challenge

Last week a severe blow was dealt to the long-term prospects of ObamaCare. U.S. District Court Judge Henry E. Hudson ruled that the Minimum Essential Coverage Provision (commonly referred to as the “individual mandate”) is unconstitutional. ObamaCare required weeks of arm-twisting and bribes, along with a labyrinthine process of obscure parliamentary procedures, to get the bill passed without a final vote. Even then it required Nancy Pelosi keeping her caucus in Washington (and away from the growing number of voters back home vehemently and vocally opposed to the bill) until nearly midnight on Christmas Eve in order to get the bill to pass by a hair.

There are a number of constitutional issues with the health care “reform” legislation, but none may be more important to implementing it than maintaining the individual mandate. There is no doubt that this is not the end of the issue. The Obama administration will appeal the ruling and eventually it will end up in the Supreme Court. However, that may not be a hospitable venue for the arguments that Obama will make before the court to protect this provision.

The Judiciary: Not Despotic, But A Bullwark Of Liberty

In a post yesterday, Louis DeBroux points to the election results in Iowa which resulted in the rejection of three members of the Iowa Supreme Court primarily due to a campaign that decried their votes in favor of a ruling that legalized same-sex marriage in the state, as “one of the most important outcomes of the November 2010 elections.” While I agree with Louis that the rejection of three judges for doing their jobs is important, I have to strongly disagree that this is a positive development, or that it is ever a good idea to subject the  judiciary so directly to the popular will of an often fickle majority.

Like the social conservative groups that led the fight to defeat the Iowa Justices, DeBroux seems most concerned with the fact that the Iowa Supreme Court’s gay marriage ruling is out of sync with public will. However, that attitude completely misses the fact that one of the most important roles of the Judiciary is to stand as a bulwark agaisnt the whims of a majority seeking to impose its will on the minority in violation of their rights. The fact that a slim majority of Iowans might not support same-sex marriage is not, and should not, be relevant to the legal question of whether or not gay and lesbian couples have the right to be treated equally by the state when it comes to the benefits and privileges of the civil institution called “marriage.” In fact, it’s precisely because the majority doesn’t support it, that the right must be projected by the judiciary. That’s not “judicial activism,” it’s the judiciary doing its  job.

A Despotic Branch

One of the most important outcomes of the November 2010 elections was one that was virtually ignored by the media. In Iowa, all three state Supreme Court justices facing a retention vote were defeated and removed from the bench, the first time that ANY judge in Iowa have been removed since the retention vote was implemented in 1962. And what animus compelled the voters of Iowa to make such a drastic and historic change? Last year the state Supreme Court ruled unanimously, in Varnum v. Brien, to overturn as unconstitutional the vote of the citizens of Iowa making the legal definition of marriage as being between one man and one woman.

And what was the justification for overthrowing the will of the people? On page 15 of the unanimous decision, the court explains that “Our responsibility, however, is to protect constitutional rights of individuals from legislative enactments that have denied those rights, even when the rights have not yet been broadly accepted, were at one time unimagined, or challenge a deeply ingrained practice or law viewed to be impervious to the passage of time.”

Not yet broadly accepted? At one time unimagined? In essence, the court is blatantly admitting their belief in a “living” Constitution, one where “rights” can be created out of thin air by the will of the judicial oligarchy and imposed upon the lesser, unwashed masses who are simply too ignorant to grasp the brilliance of the judges. Such hubris is stunning, yet it is all too common today. Yet due to a media that is often hostile to the Constitution (TEA Party members have been described repeatedly by the media as “extremists” and “fringe elements” for their demands that politicians adhere to the text and intent of the Constitution”), very few people realize just how abusive the judiciary has become.

The Post Where I Actually Agree With Mike Huckabee

It was bound to happen at some point, but I agree completely with Mike Huckabee’s take on the “birthright citizenship” debate:

(CNN) – Mike Huckabee says he’s against changing portions of the Constitution that automatically grant citizenship to children of immigrants born in the United States – a position that puts the potential 2012 Republican presidential candidate at odds some of his party’s most prominent figures.

In an interview that aired on NPR Wednesday, the former Arkansas governor and 2008 White House hopeful said the section of the 14th Amendment currently in question has long been held valid.

“The Supreme Court has decided that, I think, in three different centuries, said Huckabeee. “In every single instance, they have affirmed that if you are born in this country, you are considered to be a citizen. The only option there is to change the constitution.”

Asked specifically if he would favor such an effort to change the constitution, Huckabee said flatly, “No.”

“Let me tell you what I would favor. I would favor having controlled borders,” he said. “But that’s where the federal government has miserably and hopelessly failed us.”

I suspect my agreement with Huckabee will begin and end here.

Podcast: Elena Kagan, Greece, War on Drugs, REAL ID, Line-Item VetoGuests: Marty Connors, Brooklyn Roberts

This week, Jason and Brett speak with former Alabama GOP chair, Marty Connors, and Alabama Eagle forum Executive Director, Brooklyn Roberts.

The discussion covers:

On Every Question of Construction

A couple of items in the news lately have brought the judiciary back into the consciousness of the American public; the announced retirement of Supreme Court Justice John Paul Stevens, and the recent decision by federal judge Barbara Crabb in Wisconsin in which she ruled that the National Day of Prayer is a violation of the Establishment Clause of the U.S. Constitution. In the rulings of both justices we find an egregious disrespect for the plain meaning of the Constitution, and it is a failure of the American people to learn the Constitution that has allowed us to stray so far.

As a nation, we have reached a point where we bestow upon the courts an unjustified level of deference to their perceived wisdom. In fact, the Founding Fathers created the judiciary to be the weakest of the three branches, vested as they are with lifetime appointments.

Thomas Jefferson wrote (in a letter to William C. Jarvis, 1820) that “To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so.” Yet today we have allowed the courts to be elevated to the level of an oligarchy, where we accept rulings that are clearly unaligned with the Constitution without so much as a whimper.

Podcast: Post-HCR Threats, “Control the People,” ObamaCare Impact, Nullification, Hank Skinner case, Guest: Jeff Scott

This week, Brett was re-joined by Jason and UL contributor, Jeff Scott, also from the Jeff Scott Show.

This week’s topics include:

Podcast: Jim Bunning, 2nd Amendment, Health Care Reform, Reconciliation, Extremism, Puppycide,Guests: Doug Deal & Mike Hassinger

This week, Jason and Brett talk with United Liberty contributors Doug Deal and Mike Hassinger.

Their discussion covered:

Supreme Court defaults to liberty and federalism on marriage


In the 15 months since the Supreme Court’s landmark decision in United States v. Windsor in June 2013, which invalidated the strict federal definition of marriage from the 1996 Defense of Marriage Act, seven other cases were appealed to the Court, all of which last ruled at the Circuit-level that the state same-sex marriage bans in question were unconstitutional.

In a stunning decision Monday, the Court denied the appeals of all seven cases, meaning the Circuit decisions unanimously striking down those bans are upheld and same-sex couples will soon have equal marriage rights in all states under those Circuits’ jurisdiction.

Nearly everyone expected the Roberts court to grant certiori to the cases and bundle them together to issue a final sweeping ruling on the issue at the end of its next term in mid-2015, so the blanket denial shocked the legal and political communities. It only takes four of the nine justices to grant certiori, so in effect, this was at minimum a 6-3 default ruling in favor of marriage equality.

SCOTUS decision on GPS tracking may force a new debate about the surveillance state… and that’s a good thing.

Surveillance State

With the renewed interest in the intersection between technology (specifically, the kind that enables surveillance) and traditional Constitutional notions about freedom and privacy, a two-year-old Supreme Court case has left the door open for clarification on just what technologies law enforcement can use to monitor and enforce the law. Or, depending on your perspective, has made the situation more confusing:

Judges around the country are grappling with the ripple effects of a 2-year-old Supreme Court ruling on GPS tracking, reaching conflicting conclusions on the case’s broader meaning and tackling unresolved questions that flare in a world where privacy and technology increasingly collide.

The January 2012 opinion in United States v. Jones set constitutional boundaries for law enforcement’s use of GPS devices to track the whereabouts of criminal suspects. But the different legal rationales offered by the justices have left a muddled legal landscape for police and lower-court judges, who have struggled in the last two years with how and when to apply the decision — especially at a time when new technologies are developed at a faster rate than judicial opinions are issued.


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