Congress Makes Law, Not the EPA

The Supreme Court has nixed a 'regulation' that the EPA sought to inflict.  The EPA argued that it was merely making regulations pursuant to the Clean Air Act.  In West Virginia v. EPA, the court decided that the agency did not have unlimited regulating powers.  The court held that such dramatic changes in regulation must be enacted by Congress.  Precisely!  As I recently noted, Article 1, Section 1 of the Constitution states that All legislative Powers herein granted shall be vested in a Congress.  For far too long, these alphabet agencies have had free rein to legislate by regulation without Congressional input.  Congress loves this state of affairs as it centralizes more power in the capitol without the Representatives and Senators besmirching their voting records with the onerous regulations.  Now, if the Congress wants to regulate coal mines out of existence, they have to legislate.  Even Democrats in safe districts don't want to give that kind of ammunition to a rival candidate.

If Congress didn't write the law and the President didn't sign it, it's invalid.  It's bureaucratic overreach.  Where Trump failed to defeat the administrative state (AKA Drain the Swamp), the Supreme Court may succeed by removing its regulatory authority.

The End of Roe

The Supreme Court is not an elective body.  It is not a legislature.  Occasionally, it fails to realize these points.  One reason that the Constitution places all legislative power in the Congress is that the people can unseat Congress every 2 to 6 years.  The people cannot unseat judges.  When Congress enacts a controversial law, the people can reply with an electoral stamp of approval or a house cleaning.  If the courts enact 'rulings' that have the force of law, the people have no recourse.  Yes, the legislature could enact specific laws that effectively overturn the court but that becomes exceedingly difficult if one party or the other likes the ruling.  It would take a supermajority (60) in the Senate and control of both the House and the Presidency to negate the Supreme Court.  Even that won't be enough if the court has found that the Constitution guarantees this or that.

Now that Roe has been overturned, the question of abortion returns to the state legislatures.  If state legislatures enact laws that the state's populace opposes, the house cleanings will commence.  Strange though it may seem, this ruling weakens the Supreme Court.  By negating one of its most obvious encroachments into legislating, it can resume its post of merely interpreting laws that the Congress writes. The court's transformation into a super-legislature is what has caused the hyper-partisan judicial nomination process.  For far too long, Congress has dodged its legislative responsibilities by offloading them to the bureaucracy and the courts, two branches of government that are not subject to the voters.

Next, it would be nice if the court would strike down all bureaucratic regulation-making authority.  All legislative authority is invested in Congress, not the EPA, EEOC, FDA, NIH, et al.  This outsourcing of law-making power is why the federal registry is incomprehensibly large.  Congress could never enact so many laws, which is the whole point of investing the exclusive legislative authority there.

Schumer says Roe v. Wade isn't Federal Law

"Today, I'm announcing that next week the U.S. Senate is going to vote on legislation to codify a woman's right to seek an abortion into federal law."

Senator Charles Schumer

By this very statement, Schumer explains why Roe v. Wade should be overturned.  It was never legislated and yet is it law.  That is an oxymoron.  The courts are meant to interpret and apply the laws.  Sometimes when they do this, they overreach.  Roe is such a case.  The Congress did not legislate and yet a 'law' came into existence in 1973 through a court ruling.  This 'law' was created through a hundred-year-old amendment, which had not been viewed as saying anything on the topic.  Much as the Constitution is silent on murder, theft, burglary, assault, speed limits, building codes, or medical licensing, it is also silent on abortion.  These are all issues for states to legislate, provided they don't run afoul of the specific limits listed in the Constitution.  If Roe is overturned, abortion will face severe restrictions in some states and open support in others.  This would be very like how states treat gun rights, something that is specifically protected in the Constitution.

Let the Congress legislate, and face election based on the laws they pass.  That is how the system is supposed to work.  Too often, unelected judges and bureaucrats are making laws for which the people have no recourse.

"All legislative Powers herein granted shall be vested in a Congress of the United States"

Article 1, Section 1, US Constitution

All.  Not most.  Not the majority.  All.  If a citizen is compelled to obey, then it better have been passed by Congress and signed by the President.  If not, it's invalid.  Congress didn't legislate Roe.  It should be overturned.

A Gotcha Question

Much is being made of Judge Ketanji Brown Jackson's inability to define 'woman' when asked by Senator Blackburn.  It has become a punchline across conservative media.  However, in the judge's defense, it is her job to interpret the laws that legislatures pass.  In Oregon, one man has been recognized by the state as 'genderless.'  The story of 'man gives birth' has been a staple for at least a decade, always a case of a trans-man.  Sadly, many laws have been passed that have allowed men to become women and women to become men.  That's legislation.  To quote Justice Scalia:

'This Court holds only the judicial power—the power to pronounce the law as Congress has enacted it. We lack the prerogative to repair laws that do not work out in practice, just as the people lack the ability to throw us out of office if they dislike the solutions we concoct. We must always remember, therefore, that ‘[o]ur task is to apply the text, not to improve upon it.’

Though we all know what a woman is when we consider biology, the question is much murkier when we are concerned with how the law defines a woman.  Unfortunately, the two definitions are not the same.  The fact that the two definitions have diverged is why terms such as birthing person, pregnant people, bleeder, chestfeeding, cervix-haver, and so forth are frequently used when trying to specify women in the older sense of the word.  The word woman is no longer exclusive to adult human females.  The blame for this lies with legislators and it is their job to fix it.

Learning from Ginsburg

In the last year of President Obama's tenure, there was much pressure on Justice Ruth Bader Ginsburg to retire.  She had had several bouts of cancer, starting in 1999.  There was concern that, if the worst happened and a Republican was elected in 2016, she would not survive to 2021.  Though she nearly made it, Trump was able to replace her in the days before the election.    Where Bill Clinton and Barack Obama had only seated two justices each in there two-term presidencies, Trump sat 3 in his single term.

With a Republican wave predicted in November, Justice Stephen Breyer has elected to retire from the Supreme Court.  Though President Biden will still be in office for another 3 years, his margin in the Senate is at stake.  Trump was able to get conservative justices by the barest of margins thanks to the change in filibuster rules for judicial nominees and having a majority in the Senate.  Gorsuch (54-45), Kavanaugh (50-48), and Coney Barrett (52-48) would not have been seated if the Republicans didn't hold the Senate.  Trump would have had to nominate more moderate justices.  By that same token, Biden has a shrinking window in which he can place a liberal justice.  Come next year, Biden's nominees will have to satisfy a Republican majority in the Senate, led by Mitch McConnell.  By leaving now, Breyer's replacement is more likely to share his views, rather than have a watered-down version of his views.

Supreme Court Emergency

With the passing of Ruth Bader Ginsburg, the Supreme Court is down to 8 members.  It went a whole year with only 8 members in 2016/7 so this should be no big deal.  No urgency.  Or is there?  Obviously, the Republicans have an incentive to move as quickly as possible lest they lose either the Presidency or the Senate - possibly both - in the election.  That's a politics question and politicians love to play politics.  However, there is another thing to consider.  The coming election may be contested.  Hillary Clinton has advised Joe Biden not to concede under any circumstances.  The push for unsolicited mail-in ballots - if enacted - is litigation waiting to happen.  Unless someone landslides - and maybe not even then - this election is already looking to replay the Bush v. Gore Fiasco of 2000.  Who decided that one?  The Supreme Court.  If we go to the court and it has only 8 members, a 4-4 decision could happen.  Then what?  The decision of a lower court stands?  Some regional court has final say on a national crisis?  I don't think that will be satisfying to the losers of that ruling.  Of course, the losers of a Supreme Court ruling won't be happy either.

2020 has been such a crazy year that a confirmation hearing during the election season is just what the country needs.  Trump can nominate a woman and let's see if the Democrats give her the Kavanaugh treatment.  Heck, Joe Biden should welcome the topic during the debates.  Although, there is some doubt about Joe doing debates.

Judging without Law

The Supreme Court has decided that President Obama's executive order that implemented DACA despite the Congress refusing to legislate an actual law cannot be invalided by a countering executive order by President Trump.  That presents some serious problems.  The purely executive action of one president has been enforced against a later president.  Ergo, DACA is being treated as law.  President Obama has successfully legislated his policy preference without the participation of the legislative branch!  If Biden is elected, will the Supreme Court uphold Trump's executive orders when Biden seeks to revoke them?  If yes, then presidents are legislators.  If no, the Supreme Court is picking sides rather than ruling on law.  Both of those options are disastrous for the Rule of Law.

This was not the only troubling ruling from the court.  Much as the authors of the 14th Amendment would be amazed that they had codified birthright citizenship for the children of illegal aliens, the authors of the 1964 Civil Rights law would be dumbfounded to learn they had provided legal protections for homosexuals and transgenders.  If the legislature can't get these policies implemented then it is up to the court to bypass the democratic process and just make it happen.  That's how we got gay marriage and now this.  Why do we have Congress?

In a democratic society, big issues must be decided through the elective bodies.  When courts mandate a solution, that is just a majority vote of 9 unelected judges rather than an extended debate that involves hundreds of legislators who must answer to voters.  Look at the abortion debate.  Rather than solve the problem, Roe v. Wade has created an irreconcilable division that has roiled the country for nearly 50 years.  It is why judicial fights are so brutal now because everyone knows that courts - not legislators - will have the final say.  That's not democratic.  That is not the rule of law, but the rule of judges.

The Judiciary's Class War

This Glenn Reynolds' pamphlet posits that the US is divided into two classes: Front Row Kids and Back Row Kids.  The Front Row kids are "mobile, global, and well educated."  Back Row kids are more religious, not as well educated, and usually live near where they were born.  Those who become judges are almost exclusively Front Row kids and are likely to rule with a Front Row kid bias.  He lists a variety of rulings over the decades that have favored Front Row attitudes over Back Row views.  He holds that this is a problem.

 

The Front Row kid bias is a fairly new phenomenon.  Justices were once drawn from a variety of sources but now are almost exclusively graduates of Harvard or Yale (Ruth Bader Ginsburg attended Harvard but graduated from Columbia).  Hmm, this reminds me of blogs I've written about the Presidency and the Senate.  There is entirely too much elitism in the government today.  To resolve this problem, Reynolds holds that a wider net should be cast for potential nominees, not just the Ivy Leaguers.  Also, the justices should be made to ride the circuit again.  At one time, justices would serve on circuit courts between sessions; this would give them a better sense of the rest of the country rather than just the echo chamber of the East Coast Corridor.  Another thought is to make the judges an elective office, which would require an amendment.  He offers a pair of rulings that would have resulted in a very effective attack ad in an election.

 

It is a short read and available on Amazon.  Recommended.

 

Cognitive Dissonance of George Will

Yet again, George Will has praised something that is only possible because Donald Trump is President.  In his latest article, he discusses how the Supreme Court has corrected an error it made 41 years ago when it ruled that non-union members could be coerced into paying agency fees since they benefit from the union's collective bargaining.  His tone indicates that this was a correction that was inevitable, much like Plessy vs. Ferguson (i.e. separate but equal).  However, the ruling was 5 to 4.  Huh.  Who were the five and who were the four?  Well, the 5 were justices appointed by Reagan (Kennedy), Bush I (Thomas), Bush II (Roberts and Alito), and Trump (Gorsuch).  The four were appointed by Clinton (Ginsburg and Breyer) and Obama (Sotomayor and Kagan).  What if, instead of Justice Gorsuch, we had an appointee from President Hillary Clinton?  How would this decision have gone in that case?  Almost certainly 5 - 4 in the other direction.

 

Trump is implementing policies more conservative than either George Bush or George W. Bush.  He is pushing issues that the Republican voters have requested for decades but the party has offered nothing but lip service.  Previous presidents have been very good at speaking but not very good at doing.  Trump has this reversed.  Of course, the old adage is to pay attention to what they do and not what they say.

Supreme Legislature Writes Tax Law

In South Dakota v. Wayfair, the Supreme Court - in its infinite wisdom - decided that ecommerce had reached such a level that it was unfair for brick and mortar stores to pay sales taxes while internet companies did not.  Though I agree that it is unfair, that is a legislative matter.  The court doesn't get to change policy because the economy has changed.  This new ruling is going to create far more trouble than it solves.  If anything, it might nix a lot of ecommerce as companies refuse to do business with a vast number of localities with differing tax structures.

It is one thing for Texas to require Texas-based companies to collect sales taxes for all sales within the state, but now Texas can require Alaska-based companies to collect Texas sales taxes for internet purchases and forward it to Austin.  Alaskans will be conscripted as tax collectors for a state where they are not represented.  Hmm, taxation without representation?

 

The way to do this would be to have citizens required to report out of state purchases and pay the tax.  Of course, there is no way the citizens would approve such a law.  It is easier for state governments to strong-arm thousands of businesses than millions of citizens, especially since many of those citizens have a negative view of business.

 

Such consequential changes in tax law should not be made by a 5 - 4 majority of lawyers.  The appropriate answer should have been to refer South Dakota to Congress to change the laws.

Right to Refuse Business

The Supreme Court has ruled (7 to 2) in favor of the baker who refused to bake a cake for a gay wedding.  Those who are pleased by the ruling proclaim a victory for religious liberty.  Those against the ruling liken it to blacks not being seated in restaurants.  Though I like the result, I don't much care for the religious liberty reasoning.  I'm more of an extremist.

 

All transactions between private people must be consensual.  If Nazi Nick doesn't want to service Jews in his business, the government should not force him to do so.  If Klansman Keith doesn't want African American patrons in his business, then he should have the right to refuse service.  Of course, this works both ways.  Jews and African American business owners can refuse service to Nazis and Klansmen.  Government is a different matter.  The State of Alabama or the City of New York must treat all people equally.  As such, the Civil War, the Civil Rights Movement, Votes for Women, and so forth were absolutely required.  Government is disallowed from being a racist or a bigot but it cannot criminalize that in its citizens.  The correct way to purge racism, bigotry, sexism, and other prejudices is through private ostracism.  That is a long and slow process.  It is so much quicker to pummel the racist and sexist bigots with the coercive government.  Barry Goldwater voted against the 1964 Civil Rights Act because it criminalized the right of private individuals to choose to do business or not do business with whomever they chose.  People should be free to be miserable human beings.  Forced virtue is no virtue at all.  That's a hard argument to sell and is partly why Goldwater was obliterated in the 1964 election.

 

As Ron Paul said in his farewell address to the House of Representatives, freedom is a hard sell:

 

I have thought a lot about why those of us who believe in liberty, as a solution, have done so poorly in convincing others of its benefits. If liberty is what we claim it is- the principle that protects all personal, social and economic decisions necessary for maximum prosperity and the best chance for peace- it should be an easy sell. Yet, history has shown that the masses have been quite receptive to the promises of authoritarians which are rarely if ever fulfilled.

 

As Jefferson may have said (it has often been attributed to him), "The price of liberty is eternal vigilance."  Vigilance is hard work.  The promises of politicians to do all the hard work for the citizens is enticing.  It is laborious and time consuming to debate the racists and the sexists and the bigots while it is comparatively easy to pass a law and sic the cops on them.  Sure, that punishes the bad think, but it doesn't reform them but rather hardens their prejudices.

 

With our current technology, such laws are mostly unneeded.  No law was required to cudgel Starbucks in the wake of apparent racism.  The company folded almost immediately.  Ditto for a bakery in Portland that refused to service a black women who arrived after the store was closed; employees were fired here.  Though I think the businesses were justified in both cases, private citizen outrage resulted in immediate action by those businesses.  In this atmosphere, just try to be a racist business owner.

 

The baker may have won the ruling but I highly doubt he will have great success in his future baking endeavors.  Everyone knows who he is and he will most likely lose more business from those who think he's a bigot than he will get from those who think he's a hero.  And that is how you change society.

Travel Ban Approved, Mostly

Surprising no one who read the law and the 'travel ban,' the Supreme Court largely brushed aside the decisions of the 4th and 9th Circuit courts, allowing some exceptions to stand until the court is able to hear arguments in its next term.  Of course, the 120 day ban will have expired by then so it is somewhat moot.  The interesting thing to me is that I, a humble blogger with no legal training, was able to render a Supreme Court-level decision whereas numerous federal and appeals judges, with many decades of legal education and experience among them, were not.  Why is that?  The law itself, as discussed here, is not difficult to understand.  The judges who ruled against it had abandoned the judiciary and joined the #Resistance.  They ruled not upon the letter of the law but upon what they inferred from Trump's campaign statements.  Lady Justice removed her blindfold and blanched when she saw Trump.  This is how a trusted institution ruins itself.  If the law can so readily be interpreted in two diametrically opposed ways, we cease to have a rule of law.

Questions for the #NeverTrump Crowd

1. President Obama has had a fawning press.  Despite an anemic economy, failing foreign affairs, and growing civil unrest, Obama has been given blame for none of it.  By contrast, George W. Bush had a hostile press that hammered him every time he played golf while troops were in danger.  Which candidate, Hillary Clinton or Donald Trump, is more likely to restore an adversarial relationship between presidency and media?

2. President Obama is the first black president.  His defenders have spent much of his presidency accusing his opponents of racism.  Opposition to a black president has been regularly presented as evidence of racism.  The Republican Party has largely accepted this argument and given him free rein.  If Hillary Clinton is elected as the first female president, how likely is it that opposition to her policies will be evidence of sexism and that the opposition party will accept this and give her free rein?

3. A Clinton presidency will - with absolute certainty - tip the Supreme Court into a solidly liberal stance for decades to come.  Hillary has announced her desire to limit the First Amendment (i.e. overturn Citizens United ruling) and openly expressed approval of Australia's gun confiscation.  Her nominee(s) will likely share those views.  By contrast, a Trump presidency may extend the conservative tilt of the court.  Is preserving the Supreme Court worth the bitter pill of a Trump presidency?

 

My predictions:

 

A Trump presidency will find itself attacked by a hostile media even before the inauguration.  A Benghazi, Fast and Furious, IRS bias, email deleting, or other similar scandal will cripple his presidency rather than be mostly brushed under the rug.  He will not be able to undermine criticism with baseless claims of racism or sexism.  His Supreme Court nominees are likely to be more Originalist if only because his administration will be composed of Republicans.

 

A Clinton presidency will inherit the lapdog media that Obama has enjoyed.  In fact, with the departure of Roger Ailes at Fox, she may even have fewer media critics than Obama has had.  By her election, both Benghazi and her email deleting scandal will have been absolved by the public.  A new, and hopefully more secure, private email server will be setup.  The Supreme Court will go full progressive, becoming a liberal legislature not subject to the voters.

 

The choices are bad but one does look worse from my analysis.

Consent

He shall have Power, by and with the Advice and Consent of the Senate... shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court,...

US Constitution, Article 2, Section 2

 

This details the president's authority to appoint justices to the Supreme Court.  Note that it is limited by the Advice and Consent of the Senate.  The Senate is not required to act expeditiously, schedule hearings, or play nice.  The Senate can refuse to confirm every single appointment from day one; their consent is not mandatory or it wouldn't be consent.  This is one of those checks we hear about in our checks & balances government.  The Senate is well within its authority.  As for the Democrats, they have no cause for complaint.  When the shoe was on the other foot, they imposed the nuclear option to bypass the minority party entirely on judicial nominations.  They rammed through, on a party line vote, the House version of the Affordable Care Act in the days before Scott Brown became the 41st Republican vote in the Senate, thus allowing zero input from the minority.  You reap what you sow.

 

There is currently an argument that Republicans want the people to decide the next Supreme Court Justice via their vote in November.  Democrats have countered that the people made that decision in 2012 when they reelected President Obama.  Of course, the people elected a Republican Senate in 2014.  Wouldn't that mean the people voted to obstruct the president more recently than they voted to support him?  In any case, the President is entirely within his rights to nominate a judge for the Supreme Court and the Senate is entirely within its rights to refuse consent.  Checks & Balances.

 

Of course, the Republicans are spineless and will likely collapse before the month is out.  That spinelessness, that lack of principals is why the Republican base is willing to roll the dice on Trump.  There will probably be hearings but will enough linguini-spined Republicans vote in favor of Obama's nominee to get 50 votes?  How many Jim Jeffords and Arlen Specters are still hiding in the Senate?  Considering the track record, I would give Obama even odds that his nominee is confirmed.

Gay Marriage Ratified in 1868!

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

14th Amendment of US Constitution

The men who wrote and ratified this amendment in 1868 would surely be surprised that they had codified abortion, anchor babies, and gay marriage.  Their intent was to raise the freed slaves to full citizenship - which had been denied by Dred Scott - and force Southern States to treat them as equal to other citizens.  Reading more into it than that is just judges stretching the law to allow them to rule whatever they want to rule.  They aren't making new rights, they are merely adjudicating rights that have existed since 1868.  Really?

 

There are two options: The amendment was intentionally written to achieve the modern ends or it was unwittingly written in a manner that allowed modern ends to be achieved.  What is more likely?  The answer is obvious.  The amendment has too much wiggle room for 'interpretation' and the judiciary has exploited it.  The judges on the Supreme Court all know the purpose of the amendment - they are lawyers who presumably made some study of the Constitution - but it provides endless power grab opportunities.

 

This is why original intent is so important.  If you cut the Constitution free of the context in which it was written, much of the language suddenly becomes malleable to a variety of interpretations.  Those who ratified the amendment in 1868 obviously didn't intend gay marriage to be validated.  It isn't even arguable.  But, having freed the amendment from its context, it is just a case of equal protection that allows a massive cultural shift that most states had voted against.

Contempt for Thee but Not for Me

Kim Davis, the County Clerk of Rowan County, Kentucky, was sent to jail for contempt.  She refused to issue marriage licenses to anyone in the wake of the Supreme Court decision that legalized gay marriage.  She refused for religious reasons, though that is beside the point.  It is also of note that she is a Democrat.

 

Meanwhile, throughout the rest of the country, various city officials have refused to report illegal immigrants to the Federal Government and openly declared themselves to be 'Sanctuary Cities' for these lawbreakers.  Why have none of these officials been jailed for failing to follow the law?  It is again of note that these officials are almost universally Democrats.

 

Of the two cases, Davis has better standing, at least from my perspective.  Those who have established sanctuary cities are ignoring laws that were passed by congress and signed by the president.  Ms. Davis is refusing to enforce a 'law' that congress did not pass.  The lawmaking power is solely granted to the legislature, not the judiciary.  Even if the congress had passed such a law and the president signed it, it would exceed the authority granted to the Federal Government by the Constitution.  The only Constitutionally legal way to accomplish gay marriage would be to convince each state legislature to pass a law to that effect; such did not happen in Kentucky.

 

The rule of law is almost dead.  President Obama has flouted the law repeatedly, as have many of his appointees (most obviously former Secretary of State Hillary Clinton).  Laws that were passed are not enforced while laws that weren't passed are.  Spineless Republicans have let it slide though they pretend they are doing something by having hearings that will result in no charges being filed.  The Supreme Court has expanded its unconstitutional legislative role with Obergefell v. Hodges and King v. Burwell; who needs Congress if the President and the Supreme Court can write and/or rewrite laws?

Supreme Dork

Yesterday, the Supreme Court again ruled in favor of Obamacare.  In his majority opinion, Chief Justice John Roberts ruled that 'Established by the State' does not necessarily mean 'Established by the State.'  You see, that could ruin the law as it is currently being executed.  Well, let's pause there.  If the law is badly or ambiguously written, shouldn't it be returned to the Legislature to correct it?  No, apparently not.  Instead, the majority of the Court ruled that the law as the Obama administration has chosen to implement it (which has been modified from the law that the Supreme Court upheld in 2012) is just fine.  Justice Scalia put it this way:

 

The Court’s decision reflects the philosophy that judges should endure whatever interpretive distortions it takes in order to correct a supposed flaw in the statutory machinery. That philosophy ignores the American people’s decision to give Congress ‘[a]ll legislative Powers’ enumerated in the Constitution. Art. I, §1. They made Congress, not this Court, responsible for both making laws and mending them. This Court holds only the judicial power—the power to pronounce the law as Congress has enacted it. We lack the prerogative to repair laws that do not work out in practice, just as the people lack the ability to throw us out of office if they dislike the solutions we concoct. We must always remember, therefore, that ‘[o]ur task is to apply the text, not to improve upon it.’

 

The majority assumed the role of legislature and made the law conform to how the Executive Branch implemented it, not how the Congress (badly) wrote it.

Today, the Supreme Court ruled that gay marriage is Constitutional and must be allowed in all states, the democratic decisions of those states be damned. Chief Justice John Roberts, who yesterday was in favor of judicial legislation, wrote a strong dissent:

  

If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.

Thus the Roberts’ Judicial Doctrine is that ‘legislating is acceptable when I am in the majority but a horrible breach when I am in the minority.’ You can’t have it both ways. Either you rule on the law as written or you don’t. You can’t pick and choose.

Death of the Initiative

The recent Supreme Court ruling on California's Prop 8 (that amended the state constitution to declare that marriage was between 1 man and 1 woman) has just emasculated the initiative process.  The initiative process is a way for the People to directly legislate.  This is often at odds with what the elected legislators want.  Certainly, the majority Democrat legislature of California didn't want Prop 8 to pass.  The current governor doesn't want to enforce it.  But the people, by a statewide vote, wanted it.  Democracy, don't you know.  But, as one would expect, those who lost the vote went to court.  And won.  This in and of itself is a problem.  Do the people have the right to rule themselves or not?  But that's another issue.  What happened after that first court case is at issue.  The state government refused to defend the constitution of the state before the Supreme Court.  Yes, it is a duly passed amendment and the state government is, in theory, required to adhere to it but refused to defend it in court.  Well, it's a court case and someone must speak up.  Someone did.  And the court ruled that they didn't have standing to defend Prop 8.  Therefore, the lower court ruling stands.

What does this mean in the long run?  What if the People of California pass an initiative to limit the terms of government service?  A few 'public servants' sue and the state refuses to defend the proposition.  Voila!  It is overturned.  The vote of the People can be dismissed and the People don't have standing to appeal.  This is going to be a lesson learned by those who oppose the initiative process.  Do a bit of judge shopping to get the right ruling and then count on the government - that is never thrilled by uppity citizens trying to limit its power - to not defend citizen initiatives.

Oh, but these legislators will be voted out, right?  Unlikely.  The legislators will blame the governor, the governor will blame the judge, and the judge is untouchable.  The People are no longer citizens, they are subjects.  Government is too big to control and it is now on a permanent spiral to more and more power.  This is just the latest sign that the People have far less say than they think.

End of Constitutional Government?

With both the Obamacare and the Arizona rulings, the Supreme Court has demonstrated its bias toward the central government against the states and the people.  The Tenth Amendment is meaningless to at least 5 members of the court.  The idea of limited government is likewise a forgotten aspect of the Constitution to a majority.

In the wake of the Declaration of Independence in 1776, the Continental Congress set to establishing a national government.  However, the Congress and the States had such fear of a powerful central government that they created a weak, virtually toothless one under the Articles of Confederation.  The Articles provided no power to tax so the central government could only request money from the several states.  Sadly, the Articles proved insufficient for the needs of the new country.  Shays’ Rebellion demonstrated a need for a somewhat stronger though still limited federal government.  A convention had already been called to do just that.  Though initially intended to merely amend the Articles, the convention drafted a new Constitution.   This proved to be controversial with the likes of Patrick “Give me Liberty or Give me Death” Henry, Samuel Adams, and future President James Monroe arguing against stronger central government.  The Anti-Federalists demanded assurances that the government would be limited and provided for the Bill of Rights.

This brief history lesson should more than demonstrate the Framers intent to have a limited and constrained Federal Government.  It had powers enumerated within the Constitution (Article 1, Section 8) and the Bill of Rights was added just to emphasize the limits of government.  The Constitution is a document that is distrustful of government.

So, how is it that Constitutional scholars with decades of law experience are utterly unaware of this?  It is not that they are unaware but they know where their bread is buttered.  The Supreme Court is at the Federal level.  If they hewed to the Constitution, the federal government would be forced to shrink dramatically and thus the Court’s purview would likewise shrink.  Few people voluntarily surrender power, which is why George Washington is so great.  John Roberts has tasted power and likes it.  He has been corrupted.

The Congress passed a law that was clearly unconstitutional.  It isn’t the first time and it won’t be the last.  The President signed that unconstitutional law.  Again, not the first time nor the last.  And, the Supreme Court has confirmed its constitutionality.  The final arbiter, We the People, will decide the issue through elections or let it slide.  If we let it slide, limited government is over, a government of laws not men becomes a memory.

There is NO Line

Two years ago, I asked where was the line that limited Congress in mandating we the people to do what they tell us to do.  If Congress can mandate that we buy healthcare, why not gym memberships?  Why not apples?  What is the logical argument for the limit.  The Supreme Court has declared that there is NO limit.

Though the individual mandate was invalidated from the Commerce Clause perspective, it was effectively upheld from the Power to Tax perspective.  Wonderful.  Therefore it follows that Congress cannot mandate that a citizen buy health insurance but it can assess a tax if he doesn't.  It is a distinction without a difference.

As I warned in yet another posting, this is a precedent.  Even if Mitt Romney wins and enough Senators are elected to overcome the inevitable Democrat filibuster to a repeal of Obamacare, that will not stop a future Congress levying a tax on citizen who don't eat broccoli.  Or, for those who like this ruling, it won't stop a tax imposed on non-gun owners.  Or perhaps a prohibitive tax on abortion?

John Marshall, the justice who brought about Judicial Review, said that the power to tax is the power to destroy.  The John Roberts court has just given permission for Congress to tax citizens into submission.  The power of the federal government just grew and freedom shrank.