Thursday, June 28, 2012

King Robert's Court

Instead of issuing a ruling on Obamacare, the Robert's Supreme Court has rewritten the law. The Supreme Court, which is often referred by the name of the main justice, struck down the invocation of the Commerce Clause to justify Obamacare. During the oral arguments the five conservative justice correctly pointed out that such a broad interpretation of the Commerce Clause, intended to regulate interstate and foreign commerce only, would allow the government to mandate anything. It could promote healthy living by requiring people to buy broccoli, as Justice Scalia pointed out repeatedly.

The four dissenting justices: Scalia, Alito, Kennedy and Thomas were ready to strike down the entire law. The four liberal justices were willing to use the Commerce Clause, but settled for a radical re-interpretation of the law with justice Roberts in order to salvage Obamacare. There should be little doubt that these ideologues would have used any excuse to justify this expansion of government into private decisions, such as those involving healthcare choices.

The great irony is that in striking down the expansion of the Commerce Clause the court has itself greatly over-reached its authority. Roberts claimed he was showing deference to Congress. Congress, Obama, and all cases prior to this decision by the Supreme Court have been explicit that this law, as written, is not based on Congresses taxing power. For one justice, John Roberts, to "interpret" the law as based on tax, in contradiction to the intent of Congress is a travesty. It is stark judicial activism. It also begs the question whether there are any limits on the limits to judicial "interpretation".

So, while the Court has struck down government over-reach, it has legislated from the bench. Furthermore, the issue of taxes is strongly restricted by the Constitution -- any tax law is supposed to originate in the House of Representatives, and to be approved in exact form by the Senate. Democrats couldn't manage the votes, so they settle for the illegal application of "reconciliation" to average two different bills passed by the House and Senate. What Roberts has done is a kind of "reconciliation" by the Supreme Court to "fix" Obamacare.

This ruling is not a politically nuanced move by Justice Roberts as some would like to see it. It is mere replacement of Obama's hubris with Roberts' own. This shameful decision by Supreme justices is the kind of lawless action of a Kingly Court, which does as it pleases, not a branch of government with a narrow prerogative of interpreting the constitutionality of laws passed by Congress.

Supreme contempt for the US Constitution

Everybody who guess at the outcome of the impending decision of the US Supreme Court on ObamaCare today -- it's last day in session was wrong. The supreme's didn't rule on Obamacare. Instead justice Roberts joined the four liberal stalwarts on the court to rewrite the law.


Obama has flaunted the Constitution on many occasions -- on the Defense of Marriage act (Congress passed the law Obama ignored it), on the illegal immigration (Congress failed to pass the law Obama wanted so he implemented it by executive fiat), among many other cases, so it is expected for his to ignore the Constitution. Democrats in Congress have also chosen to ignore the Constitution. Today the last bastion of the defense of the Constitution among the three branches of government fell.

It doesn't take long to grasp the enormity of what happened -- it was a blatant violation of Supreme Court's role. The Court's prerogative is to decide the constitutionality of the laws passed by Congress. It's a basic tenet of the balance of powers between the three branches of government.

Obama and democrats who pushed Obamacare using all kind of tricks, such as buying congressional votes, such as the Luisiana purchase, and the Nebraska kick-back, have always insisted that the individual mandate for purchasing health insurance is not a tax. That's ironic, because Congress has a constitutional right to tax, however, that would never have passed Congress -- it barely passed with all the trickery while both houses of Congress were controlled by the Democrats. Imagine the response of the public and Congress if Obama leveled with the American people by saying: "I want to tax everybody, in order to insure 30-45 million uninsured. It's the right thing to do, and it's good for the economy." That's why the administration went the other way and defended it's actions through the Commerce clause.

Administration lawyers argued before the court the constitutionality of the mandate. They invoked the Commerce clause, and never spoke about the tax. They couldn't answer the key question asked by the justices, including Kennedy, who often casts the deciding vote about the limitations of this interpretation of the law. Commerce clause gives the Federal government the right to regulate interstate commerce, as well as trade with other nations. If going to the doctor affects interstate commerce, so does everything else. If the government in its wisdom can pick products of services and deem them necessary for everyone, where is the limitation? Scalia mentioned several times that using the government's logic people could be compelled into any "healthy" or otherwise "beneficial" activity, such as purchasing and eating broccoli.

So, Obama and the Democrats in Congress made a run around the constitution to get their way. The court should have ruled on the blatant unconstitutionality of the resulting law. Using tortured logic it could have attempted to justify this unlimited application of the Commerce clause. That's not what the Court did, however. Today's ruling tops any prior blatant case of legislation from the bench. The court fixed the law in order to deem it constitutional, but invoking Congresses power to tax.

Scalia, Kennedy, Thomas, and Alito wrote a scathing dissent: 'We cannot rewrite the statute to be what it is not".

What makes this ruling particularly egregious is that Congresses power to tax is highly regulated. The constitution requires that any tax originate in the House of Representatives, because that chamber is the most responsible towards the public. (Any law must be approved in exactly the same form by the Senate, which didn't happen with Obamacare either - the Democrats illegitimately used the so-called reconciliation process to find middle ground between two separate bills approved by the House and the Senate. There were not enough votes in both chambers of the house to agree on a single law -- another illegal move on the way to passing Obamacare). For the Supreme Court, which is least responsible to the public, to essentially create a new law, and especially a tax, is particularly illegitimate.

What does this mean for the Republic? To explain my view, I'm going to invoke the other significant event that happened today in the US government. For the first time in history the House of Representatives voted to hold Attorney General (AG) Eric Holder in contempt.

Today's contempt citation is a result of Holder's failure to provide documents regarding the cover-up of "Fast and Furious" operation. In February of 2010 the AG's office submitted a letter to the congressional oversight committee led by Darrel Issa, which claimed  ignorance of this operation, which resulted in gun walking and deaths of US border agents. That letter was retracted 10 months later as erroneous. If a citizen made this mistake, he would be in prison for lying to Congress, but AG managed to stonewall the oversight committee. When cornered, Holder received a life-line from Obama, who invoked executive privilege -- a very dubious call in itself that I believe will backfire. There are some who characterize this congressional investigation as a Republican "witch hunt" -- an attempt to take down Holder. It takes a willful suspension of disbelief to accept that a matter as serious as this was handled lightly by the Justice Department. So, are we to believe it made a simple mistake in a matter as serious as Congressional oversight? In essence Holder, as well as the entire Obama administration hold our Constitution in contempt.

Today's decision by the US Supreme Court says that it also holds the US constitution in contempt. Rather than playing its legitimate judicial role, it rewrote the law.

US can recover from contempt of the constitution by an AG, and to some extent even the subversion of our founding principles by a president. But how can US recover from the blow to its constitutional foundation by the Supreme Court? If we throw out the limits to our democracy, we're no better than the moribund European states.

I hope I'm wrong, but I don't think it's possible to reverse this trend in the long run. The US has been on a long slide towards European statism, where a popularity contest between politicians have lead them to over-promise and over-spend. Now they face fiscal bankruptcy, although it's the intellectual and philosophical bankruptcy that is more troubling for the Western Europe. The US under Obama has increased our external debt from 60% to over 100% of GDP, while tearing up the Constitution. Even election of a Republican president is likely to merely hold the line against further government encroachment on individual rights, but not to reverse it. We had the president and Democrat-controlled Congress ignore the constitution for several years, and now the Supreme Court has shown it has no regard for it either. The public is growing used or at least anesthetized to its leaders ignoring the Constitution. Meanwhile, almost half of the USA population is dependent on welfare, a number that has greatly increased under Obama administration. If that number tops 50% our unconstitutional democracy will surely slide towards the same abyss that Europe is looking into.

The trajectory USA is on is likely to be an irreversible slide into statism, bankruptcy and general lawlessness. The great experiment of a nation based on human liberty and empowerment of the individual began with a tax -- the Stamp tax of 1765 imposed by a distant king, and it might end with another tax imposed by equally distant and arrogant five people in black robes. The resolution of the impasse these frauds placed USA in may lie outside of the system. It would be much preferable to keep be able to resolve this problem without our current system, but it may no longer be possible. I mean that there were many people in the USA who considered themselves to be loyal subjects of the British crown, until the could no longer work within the system which did not represent them, and opted for revolution.

The historical parallel may appear extreme, but is fitting, even the main slogan: "taxation without representation" applies very well to the justices of the supreme court. After all, Supreme Court justices are not elected by the people and serve for life. It's ironic that President Obama, fearing the overturning of his signature legislative achievement by the court, has cautioned that "un-elected" officials should not overturn laws passed by Congress. It's alright to overturning the Constitution though. Nancy Pelosi said told her liberal cohorts they should take "yes for an answer" from the Supreme Court", apparently ignoring the blatant unconstitutionality of the Court's move. Obama was also pleased, declaring arrogance tearing up the Constitution by the Supremes a "victory".

The US was a Constitutional Republic, but is rapidly becoming a banana republic.