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President Obama, having donned his most "Constitutional law professor" -esque apparel, Harvard law degree in hand, pompously chided the Supreme Court over their handling of the Patient Protection and Affordable Care Act last week, which looks to be on track to be struck down this June. Obama warned the Court that striking down the law would be unprecedented and "activist":
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.
A strong majority? The Patient Protection and Affordable Care Act of 2010 passed the Senate on December 24, 2009 on a vote of 60-39, with no Republicans voting in favor, achieving the bare minimum necessary to pass. The same law passed the House on March 21, 2010 on a vote of 219-212, again with no Republicans voting in favor and with 34 Democrats voting against . This same “strong majority” was so close to the bill not passing that the leadership considered “deeming” the bill passed without needing to take a formal vote in order to avoid the political fallout of an unpopular law . If the President believes that a margin of zero in the Senate and a margin of 0.8% in the House with 34 members of your own party defecting is a “strong majority,” perhaps we should notify Webster's.
[W]hat we’ve heard is the biggest problem on the bench was judicial activism or a lack of judicial restraint, that an unelected group of people could somehow overturn a duly constituted and passed law. Well, this is a good example and I’m pretty confident this court will recognize that and not take that step .
For all of the credentials the President holds (nobody has seen his college transcripts, strangely), it appears as if he lacks even a basic understanding of both law and judicial activism. The Court ruling that a law passed by the Congress violates the authority vested by the Constitution is not judicial activism – it’s upholding the Constitution. On the other hand, if the Court expands the authority of Congress beyond the constrains of the Constitution, that is judicial activism, which is exactly what the President is advocating. It should come as no surprise at this point that the President is, as usual, lying his face off, but the media has largely glossed over the issue, which is why you’re reading this interpretation on The Bulletproof Patriot and not on ABC News.
In essence, the legacy President Obama is hoping for is an unprecedented expansion of government never before seen by cementing into judicial precedent an unlawful extension of the Congress’ authority to “regulate” inactivity as if it were “interstate commerce,” which it clearly is not. You’d think that a man who has taught law at the University of Chicago might have more than a juvenile understanding of the meaning behind the Constitution’s text, but you may need to think again.
Rather than acknowledging that the intention of the Interstate Commerce Clause was to standardize the flow and exchange of goods between states, who at the time of the Constitution’s writing were taxing goods which passed through their individual territories, President Obama is pressing for an explicitly activist interpretation of the clause to confer by judicial fiat powers to the Congress which are not present in the Constitution.
Unfortunately for the President, the authors of the Constitution left their intentions regarding the Interstate Commerce Clause on paper for all to read. In Federalist 22, Hamilton articulates :
The interfering and unneighborly regulations of some States, contrary to the true spirit of the Union, have, in different instances, given just cause of umbrage and complaint to others, and it is to be feared that examples of this nature, if not restrained by a national control, would be multiplied and extended till they became not less serious sources of animosity and discord than injurious impediments to the intercourse between the different parts of the Confederacy.
Madison also comments on the language of the Interstate Commerce Clause in Federalist 42 :
The powers included in the THIRD class [“regulate commerce... among the several states”] are those which provide for the harmony and proper intercourse among the States [emphasis mine].
The defect of power in the existing Confederacy to regulate the commerce between its several members, is in the number of those which have been clearly pointed out by experience… A very material object of this power was the relief of the States which import and export through other States, from the improper contributions levied on them by the latter. Were these at liberty to regulate the trade between State and State, it must be foreseen that ways would be found out to load the articles of import and export, during the passage through their jurisdiction, with duties which would fall on the makers of the latter and the consumers of the former…
You'll notice that nowhere in these writings is the power to reach into every aspect of life on the grounds that any activity whatsoever, even inactivity, constitutes "interstate commerce" found. It's almost as if the Founders intended for matters which occurred within a single state to be handled not by a gigantic, all powerful federal government, but by the local governments which are more closely accountable to the People.
According to Professor Obama, however, they were wrong:
I was a constitutional law professor, which means unlike the current president [Bush] I actually respect the Constitution .
If this is the best that Harvard can produce, perhaps they should have their accreditation revoked.
In his infinite wisdom, Professor Obama also explained to the People why the Individual Mandate was necessary:
There's nothing wrong with saying to people who can afford to get health insurance, you need to buy health insurance just like car insurance.
This occurred, of course, after the President previously opposed the individual mandate in 2008 :
If things were that easy, I could mandate that everybody buy a house, and that would solve the problem of homelessness. It doesn’t.
Apparently in 2012, however, it does.
As numerous other outlets have pointed out , the car insurance requirement is one levied by the states and not by the federal government. This is the reason that there have been no Constitutional challenges brought against Romneycare in federal court - the states can act however they please within the confines of their own constitutions. The federal government, however, is limited to act within the prescribed enumerated powers. Requiring you to purchase private health insurance is not one of them.
President Obama summed up his remarks:
I think the justices should understand that in the absence of an individual mandate, you cannot have a mechanism to ensure that people with preexisting conditions can actually get health care. So there's not only an economic element to this, and a legal element to this, but there's a human element to this. And I hope that's not forgotten in this political debate.
Once again, the words of the James Madison shine through , and Professor Obama is put in his place:
I cannot undertake to lay my finger on that article of the Constitution which granted a right to Congress of expending, on objects of benevolence, the money of their constituents.
The government of the United States is a definite government, confined to specified objects. It is not like the state governments, whose powers are more general. Charity is no part of the legislative duty of the government (1794).
Unfortunately, it is far too simple to assume that the President, who taught Constitutional law, has no idea where the purpose and scope of the Interstate Commerce Clause lie. The truth is that the President knows that the individual mandate is clearly unconstitutional and represents a possibly groundbreaking judicial precedent which could be used for a massive expansion of federal powers (which explains why both his and the Solicitor General's defense of the law have been delivered in broken, stuttering speeches filled with periods of silence, blank stares, and obvious mental confusion  .)
The reason that the President has stuttered through these defenses and argued a case which he knows to be unconstitutional is that the people who are set to vote for him not only have no idea about the law's constitutionality, but simply don't care. That is the beauty of Progressivism. It doesn't matter what the Constitution says - any law can be passed by simply "reading in" or "discovering" a new, unwritten power between the lines of the charter. In this case, the power to require the establishment of a private contract between an individual and a corporation (or the total lack of the same) is simply deemed to be "interstate commerce."
In love of liberty,
The Bulletproof Patriot