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April 9, 2012

Itís Up To The Supremes

Jill King

Last Monday, President Barack Obama, in his familiar “holier-than-thou” manner, advised the public that "ultimately, I am confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress."


Yes, Mr. President…and, as you will soon see, we have federalism for a reason, along with a “checks and balances” system.


If there is one thing that the president knows by now, it’s the power of persuasion. He has now reached out in hopes of appealing to the humanity of the justices of the Supreme Court of the United States.


The media from the right reported that he had a lack of knowledge, for judicial review. The liberal media defended him and made excuses; their claim was that he was short-handing a topic, which he fully understands. Maybe that explains why he was published in The Harvard Review, a very prestigious, yet limited reward.


The backlash from this has been monumental, causing Attorney General Eric Holder and the Justice Department to gather an opinion and submit it to the 5th Circuit Court of Appeals for review.


He was prompted to use the Marbury v. Madison case. This case held that “the Supreme Court has the ability to review acts of Congress, review its constitutionality, and declare the legislation void if need be.”


Attorney General Holder also threw in some cases for defense of the president, with the conclusion being that “the Court indicated that its inquiry was prompted by recent statements of the President ... The President's remarks were fully consistent with the principles described herein."


Of course, he defended the president. It is his inherent right and duty to find opposing views, by promoting both sides of the issue in his memorandum. This couldn’t have won him many judicial friends.


The only action that would be unprecedented is the repeal of the whole document versus the sections that were egregious. In 1933 the Supreme Court performed a judicial review, during Franklin D. Roosevelt’s “New Deal”; they found eight of the statutes illegal and nullified them.


The Supreme Court is the only power granted by the Constitution that can interpret the Constitution, through the power expressly provided by Article III Section I “judicial power of the United States, shall be vested in one supreme Court.” This power was not provided to the legislative, nor to the executive branch.


But, then again, who wants to read the entire document; Did Nancy Pelosi need to pass this just to see what is in it?


Justice Antonin Scalia cited The Eighth Amendment, during the hearing. He stated that requiring the justices to read “2,700 pages of regulations would be cruel and unusual punishment.”


What is at stake with this monstrosity of a bill and where does the executive and legislative branch of the federal government find their defense?


They blindly use the “commerce clause” and attempt, once again, to cross into sovereign individual state rights issues.


For decades, the commerce clause has given rise to whatever meets the fancy of Congress; with this bill, in particular, the question is whether it is a federal ‘interstate commerce’ issue or a state ‘intrastate commerce’ issue.


For all intent and purposes, they appear the same, but there is a huge difference.


The Commerce Clause or Article I Section VIII provides “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” The powers enumerated in the Constitution give the federal government powers; those that are provided to the states are defined by the Tenth Amendment.


This has always been an argument by the legislators in Washington. Commerce, to conservatives, the meaning is that it applies to free trade. Progressives take a much broader approach, finding that it applies to social issues as well as commercial applications.


With healthcare, we have always played host to a more local exchange and do not reach beyond state lines, making it intrastate.


The drug market, on the other hand, is nationally exchanged by the pharmaceutical manufacturers and not particular to one jurisdiction. The Food and Drug Administration, as well as other administrative bodies, already control the latter and it is properly an interstate issue.


Recent legislation in Maryland, gave Governor Martin O’Malley his chance to get recognized nationally for his willful desire to accept the Patient Protection and Affordable Care Act. If passed, we as Marylanders may be stuck with the legislation and its funding.


It is apparent though that the federal courts are not impressed by the president’s bullying tactics in an attempt to sway the Supreme Court’s decision. He needs to stop acting like an aristocrat and know his role as the executive.


If the ‘New Deal Era’ hadn’t given rise to the precedent of nullifying legislation or a wider acceptance of the definition of commerce, we would not be where we are today.


If the Attorney General had written a three-page memorandum about the 2,700 pages of the Patient Protection and Affordable Care Act, it may not have received the votes for passage in the House and Senate. They would have known the implications of the bill and discovered that certain line items needed more vetting.


Retraining my brain for the future, conferring with my past…


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