WASHINGTON D.C. —I’ve been preparing for a series of appearances as Benjamin Franklin at several different Tea Party events in Dayton, Ohio, from April 10 to 13. Despite his long and varied public career, Franklin had very little to do with partisan politics; most of his service was as a diplomat, first in England and later in France.
There is one quality that all successful diplomats share. They know how to hold their tongues. Enemies now may become friends later and vice versa. Therefore, effective diplomats make an absolute minimum of public, personal attacks on anyone in a position of power.
It was a proper choice for Franklin. It might just be a proper choice for this columnist in this time of crisis for the United States. With that said…
Last fall, a reporter asked Speaker of the House, Nancy Pelosi, whether the proposals for Health Care “Reform” were constitutional. She responded, “Are you serious?” To show how absurd she considered the question, she repeated her dismissive reply, “Are you serious?”
Now, the Health Care Act is passed and signed into law. We are only now discovering some of the requirements and taxes hidden in the nooks and crannies of its 2,700 pages. At the same time, just days after the signing of the revised bill into law, 13 sovereign states have already filed suit, claiming the Act is unconstitutional. According to press accounts, upwards of 24 other states may also file such suits.
Never in the history of the United States have 13 states (much less 30 or more states) claimed in court that any action of the federal government was unconstitutional. The only remotely similar event was when 11 of the then 33 states succeeded from the union, precipitating the Civil War in 1861. The issue then, as now, was overreaching by the federal government.
Some who read about the multiplicity of state suits against the federal government look at the history of Supreme Court litigation and say, correctly, that this is slow remedy. They think a final decision might not come for three years.
Not so. The federal courts can and do move very quickly when there is reason to do so. (My first win in the Supreme Court went from final decision in the trial court to emergency relief in the Supreme Court in just two months. McCarthy v. Briscoe, September, 1976.) Odds are, the Health Care cases will be consolidated. For sure, the first case will go up in a matter of months under the Supreme Court’s rules for Emergency Relief.
There are several issues in the various cases which I believe will lead the Court to declare the Act unconstitutional, but probably by a margin of only 5-4. The Court will not allow the Commerce Clause to stretch to authorize Congress to tell individual citizens to purchase a required product, or tell individual states how to organize their governments and raise and spend their state taxes.
The Court might even go as far as to revisit its most unfortunate Commerce Clause decisions, Hodel v. Virginia Surface Mining, 1981, and Wickard v. Filburn, 1942. That should happen, but I am not hopeful that it will. Still, even if those cases remain standing, they don’t reach far enough to justify the Health Care Act.
The Court should not strike this law down because it will bankrupt the United States. It will, and only a series of lies promulgated through the Congressional Budget Office and directly by the Administration have papered over that conclusion. The Court should not strike down this law because an obscure clause that protects the fees of liability lawyers.
Both those issues are a matter of political wisdom, and it is not the business of the courts to second-guess the politics of any legislative decision ”“ in Congress or the states. The Act should be struck down because both the Administration and Congress have acted in cavalier disregard of the provisions of the Constitution. Under the basic tenets of checks and balances, when two branches of the federal government have violated the Constitution, it is the duty of the remaining branch to uphold the Constitution.
It is a matter of whether at least five Justices of the Court will obey their oaths to protect and defend the Constitution. A majority of the House and of the Senate and the president have all violated similar oaths. But the subject remains open.