Constitutional ContemptIt comes down to this: Why do we have a Constitution? And how does it reconcile with ObamaCare? Justice Antonin Scalia put it best, in making reference to the "Necessary and Proper" clause in the Constitution:
By W. James Antle, III, American Spectator
The issue goes far beyond health care. For decades, members of the elected branch of the federal government have barely pretended to adhere to the document to which they swear an oath. They do not consult the Constitution when they seek to accomplish their policy goals. They do not recognize its clear limits on their power.
While liberals have been most comprehensive in their rejection of enumerated powers, preferring instead to use the Constitution as a battering ram against Christmas trees in the town square, this constitutional amnesia has been a bipartisan affliction. It manifested itself among the center-right policy wonks who toyed with the individual mandate since the 1990s. It was seen in the unchecked growth of government even when Republicans are in power.
Even advocates of relatively activist government in the context of the times believed that constitutional amendments were necessary to prohibit such obvious economic activities as slavery and the sale of alcoholic beverages. Defenders of the health care reform law did not even bother to cite evidence that the people who ratified the Constitution intended to delegate to the federal government the powers the Obama administration claimed.
The American republic was founded on the idea that the federal government possesses only the powers granted to it by a supermajority of the people and the states. Ratification of the Constitution and its amendments is the process by which that supermajority gives its consent. This once-basic notion of governance was relegated to the fringes. It is now returning to the mainstream.
Obama's solicitor general was caught flat-footed not because he lacks legal skills. He is part of a political culture that has never thought seriously about the Constitution, has never thought that our masters in Washington need to beg the people for any permission beyond their vote every two to six years, and has regarded the doctrine of enumerated powers as a pre-New Deal relic. The Washington conventional wisdom has long been rooted in constitutional contempt.
Chief Justice John Roberts may yet be reluctant to overturn a major act of Congress by a narrow 5 to 4 vote. Anthony Kennedy could get out of bed tomorrow and decide that the individual mandate is the greatest thing since Roe v. Wade.
But no matter how the Court rules, the bedrock assumptions of constitutionally limited government have returned to the mainstream of American political discourse. The Constitution is back. If we can keep it. [link]
“Wait. That it's both ‘Necessary and Proper.’ What you just said addresses what's necessary. Yes, has to be reasonably adapted. Necessary does not mean essential, just reasonably adapted. But in addition to being necessary, it has to be proper. And we've held in two cases that something that was reasonably adapted was not proper, because it violated the sovereignty of the States, which was implicit in the constitutional structure.It is the role of Congress to determine whether or not legislation before it is necessary. It's up to the Supreme Court to decide whether it is proper.
"The argument here is that this [ObamaCare] … may be necessary, but it's not proper, because it violates an equally evident principle in the Constitution, which is that the Federal Government is not supposed to be a government that has all powers; that it's supposed to be a government of limited powers. And that's what all this questioning has been about. What is left?
“If the government can do this, what else can it not do?
“An equally evident constitutional principle is the principle that the Federal Government is a government of enumerated powers and that the vast majority of powers remain in the States and do not belong to the Federal Government. Do you acknowledge that that's a principle?”
As it is now doing.