US Supreme Court Blinks — One Last Thought Today

Actually, two last thoughts on today's Obamacare decision by the Supreme Court.

First, this is "Steve's Blog," which I must point out, because my law partner (and real partner spouse) doesn't always share my opinions on matters legal or otherwise, and I think she disavows some of my analysis and opinion on this topic.

And of course, she may be right, because she usually is.

Second, as troublesome as the Court's "reach" for the tax justification to uphold the individual mandate — excuse me, not a mandate, a "tax" — seems to me to be, the absolutely key principle that won out today was the complete rejection and defeat of the argument of the President and Congress that the Interstate Commerce clause (or, in the alternative, the Necessary and Proper clause) was the sound constitutional basis for the ACA.

That is a very big deal.

It is a very big deal because, had the Court upheld that ridiculous claim, there would have been no restriction on what Congress could do and, truthfully, the foundational Constitutional principal of a limited government would have been gutted and thrown away.  That is exactly what President Obama (who did teach Constitutional Law at the University of Chicago, so now we have a good idea of the intellectual bona fides of that institution) repeated ad nauseum, and what Congresswoman Pelosi (who at least does not pretend to understand the law) said again, again, and again, and what Senator Reid vouched for also.  The court's majority said clearly and categorically that that was WRONG and completely rejected the notion that Congress could "create commerce" to invoke the clause or could expand the Necessary and Proper Clause to stand on its own feet instead of being only supportive of enumerated powers granted Congress.

Put another way, Congress cannot order Americans to buy and eat broccoli, or purchase GM cars, or buy American made products at higher prices than foreign products, on the ground that that would be good for the domestic economy (in other words, we do not live in Fascist Germany, or Communist USSR, or Totalitarian North Korea).

In fact, one astute legal professor I read today calls that part of the opinion, which led off the entire opinion by the Court today, a "time bomb" that could change the course of federal law development for years to come.

So, as I think about my two blogs of earlier today, I realize I didn't give another attention to the GOOD part of the Court's opinion.  Along with the Court's decision about the Medicare extension — which resoundingly underscored, as the Court has been doing lately, that we live in a federalist system, and that the states have rights and sovereignty — this was a GOOD decision by the majority.

And since the great fear for some, and great hope for others, was that the Court would strike down the abusively overreaching argument sounded by the other two branches of government, we should be happy the Court got that part right.

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