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View Full Version : Excellent legal discussion about the ACA, Corporations, and Hobby Lobby



Bob
01-25-2015, 08:03 PM
This is a first class explanation of why Justice Roberts was flat wrong.

And other matters of legal importance.

The ACA violates the Constitution.

http://www.c-span.org/video/?323328-1/book-discussion-religious-liberties-corporations

Cigar
01-25-2015, 08:05 PM
You Lost, Twice, GTFOI

Newpublius
01-25-2015, 09:46 PM
This is a first class explanation of why Justice Roberts was flat wrong.

And other matters of legal importance.

The ACA violates the Constitution.

http://www.c-span.org/video/?323328-1/book-discussion-religious-liberties-corporations

of course it isnt. Interstate commerce is, through the total incidence test, used to control the intrastate production of marijuana, notwithstanding an obvious need to pass an amendment on prohibition. That covers basically anything Congress wants to do and if it doesn't they have a general Welfare, never intended to be a substantive power, nothing is really beyond the scope of federal authority. And even here, even if neither of those are good enough, there's just a general power to tax.

how is this a limited government of enumerated powers? It isn't and it's obvious that it isn't.

Bob
01-25-2015, 10:33 PM
of course it isnt. Interstate commerce is, through the total incidence test, used to control the intrastate production of marijuana, notwithstanding an obvious need to pass an amendment on prohibition. That covers basically anything Congress wants to do and if it doesn't they have a general Welfare, never intended to be a substantive power, nothing is really beyond the scope of federal authority. And even here, even if neither of those are good enough, there's just a general power to tax.

how is this a limited government of enumerated powers? It isn't and it's obvious that it isn't.

If you actually watch the video, it certainly is a first class discussion. The ACA is not constitutional. Roberts got this one wrong.

Newpublius
01-26-2015, 12:27 AM
Interested at all in my article on the decision?

Bob
01-26-2015, 01:29 AM
Interested at all in my article on the decision?

Yes, would love to read it.

Did you watch the video? It was shown today on CSPAN 2 should you wish to peruse the site.

Newpublius
01-26-2015, 02:21 AM
Yes, it was good

n June 28th, 2012, the Supreme Court, in a 5-4 decision, upheld Obamacare. The 5-4 result was not surprising, the surprise is that the swing vote was Chief Justice Roberts. The constitutionality of the act hinged on whether the individual mandate constituted a tax or a penalty. The text of the act cited ‘penalty,’ but notwithstanding the ‘Plain Meaning Rule’ which provides that words must be given their plain, ordinary and literal meaning, Chief Justice Roberts did not feel constrained to refer to the mandate as the imposition of a penalty opining: “In this case, however, it is reasonable to construe what Congress has done as increasing taxes on those who have a certain amount of income, but choose to go without health insurance.” While the question may appear, superficially at least, to be merely semantic, the concept of the Federal government is that it is supposed to be a limited government of enumerated powers. In this particular instance, Congress attempted to assert authority to regulate healthcare based on its power to regulate interstate commerce. A power that has been construed to be so broad that it permits Congress to regulate what crops farmers can grow on their own property, whether those crops enter interstate commerce or not. Chief Justice Roberts went to great pains to opine that Obamacare could not be upheld on the basis of Congress’ power to regulate interstate commerce.: “Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority.” While this is facially appealing logic to conservatives seeking some restraint to Federal commercial authority, what difference does it make if any topic Congress cannot regulate as a function of its power to regulate interstate commerce, can still be regulated through its power to “Lay and Collect Taxes” or through “General Welfare?” Perhaps we should even ask, at this juncture, why the Supreme Court should even refer to the enumerated powers of Article 1, Section 8 of the United States Constitution at all? The prefatory clause of Article 1, Section 8 states: "The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;” And so the inquiry is whether this clause confers a distinct substantive power to Congress. In the ratification debates, the Anti-Federalists specifically noted this clause and feared that it would be used as a source of power conferring unlimited legislative authority. Responding to the Anti-Federalists, James Madison, the Father of the Constitution, specifically quelled these fears in Federalist 41, writing: “Some, who have not denied the necessity of the power of taxation, have grounded a very fierce attack against the Constitution, on the language in which it is defined. It has been urged and echoed, that the power "to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States," amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction. Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases.” – Federalist 41 Notwithstanding, in United States v. Butler
and then, more importantly, in Helvering v. Davis
, Justice Cardozo upheld Social Security under Congress’ authority to regulate for the ‘General Welfare.’ The result, particularly when coupled with a broadly interpreted Commerce Clause, has been a de facto
government of general and unlimited powers. Of course, over the years, liberals would often pay lip service to the concept of a limited government of enumerated powers, after all, that is unquestionably how the Founding Fathers designed the Federal government. Joseph Story, writing his famous Commentaries on the Constitution, notes how the prefatory clause would confer a general power to legislate: “Do the words, "to lay and collect taxes, duties, imposts, and excises," constitute a distinct, substantial power; and the words, "to pay debts and provide for the common defence, and general welfare of the United States," constitute another distinct and substantial power? Or are the latter words connected with the former, so as to constitute a qualification upon them? This has been a topic of political controversy; and has furnished abundant materials for popular declamation and alarm. If the former be the true interpretation, then it is obvious, that under colour of the generality of the words to "provide for the common defence and general welfare," the government of the United States is, in reality, a government of general and unlimited powers, notwithstanding the subsequent enumeration of specific powers; if the latter be the true construction, then the power of taxation only is given by the clause, and it is limited to objects of a national character, "for the common defence and the general welfare." Joseph Story, Commentaries on the Constitution
2:§§ 904 In describing the power to lay and collect taxes, Joseph Story notes the importance of connecting Congress’ taxing power to an affirmative congressional power stating : “The congress shall have power to lay and collect taxes, duties, imposts, and excises, in order
to pay the debts, and to provide for the common defence and general welfare of the United States;" that is, for the purpose of paying the public debts, and providing for the common defence and general welfare of the United States. In this sense, congress has not an unlimited power of taxation; but it is limited to specific objects,--the payment of the public debts, and providing for the common defence and general welfare. A tax, therefore, laid by congress for neither of these objects, would be unconstitutional, as an excess of its legislative authority.” Id. at § 904. Of course Story misses the point that citing the broad term “General Welfare” embraces every legislative topic, so there really is no tax that Congress cannot levy. While Roberts’ opinion goes out of its way to ensure that this “tax” is not an exercise of Congress’ power to regulate interstate commerce, to what avail is this if he cites to Congress power to “Lay and Collect taxes?” Where exactly is the limiting principle in the Federal government? The fact of the matter is that there isn’t any since regulating any activity can be said to be regulating for the General Welfare, or Commerce, clearly a subset of General Welfare; and now, even your inactivity is subject to taxation. The fact of the matter is that there is no legislative topic beyond the reach of Congress, the last vestiges of a limited government of enumerated powers have been completely discarded. Frankly we shouldn’t be surprised, as James Madison said: "In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself." – Federalist 51. Of course there are over $15 trillion in bonds outstanding to demonstrate that the Federal government has no intention of controlling or limiting its insatiable appetite to consume ever increasing portions of our national income. The Constitution unquestionably vests authority to make the determination of the powers of the Federal government in the Supreme Court and yet, should we be surprised when we make the Federal government the arbiter of its own powers that the Federal government should find everything to be within its legislative purview? I don’t think so and when Congress hangs our prosperity in this ever tightening debt noose, it’ll be self-evident why we went the way of Argentina, Iceland and Greece.

Newpublius
01-26-2015, 02:49 AM
Sorry for the formatting.

Bob
01-26-2015, 06:30 PM
Yes, it was good

n June 28th, 2012, the Supreme Court, in a 5-4 decision, upheld Obamacare. The 5-4 result was not surprising, the surprise is that the swing vote was Chief Justice Roberts. The constitutionality of the act hinged on whether the individual mandate constituted a tax or a penalty. The text of the act cited ‘penalty,’ but notwithstanding the ‘Plain Meaning Rule’ which provides that words must be given their plain, ordinary and literal meaning, Chief Justice Roberts did not feel constrained to refer to the mandate as the imposition of a penalty opining: “In this case, however, it is reasonable to construe what Congress has done as increasing taxes on those who have a certain amount of income, but choose to go without health insurance.” While the question may appear, superficially at least, to be merely semantic, the concept of the Federal government is that it is supposed to be a limited government of enumerated powers. In this particular instance, Congress attempted to assert authority to regulate healthcare based on its power to regulate interstate commerce. A power that has been construed to be so broad that it permits Congress to regulate what crops farmers can grow on their own property, whether those crops enter interstate commerce or not. Chief Justice Roberts went to great pains to opine that Obamacare could not be upheld on the basis of Congress’ power to regulate interstate commerce.: “Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority.” While this is facially appealing logic to conservatives seeking some restraint to Federal commercial authority, what difference does it make if any topic Congress cannot regulate as a function of its power to regulate interstate commerce, can still be regulated through its power to “Lay and Collect Taxes” or through “General Welfare?” Perhaps we should even ask, at this juncture, why the Supreme Court should even refer to the enumerated powers of Article 1, Section 8 of the United States Constitution at all? The prefatory clause of Article 1, Section 8 states: "The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;” And so the inquiry is whether this clause confers a distinct substantive power to Congress. In the ratification debates, the Anti-Federalists specifically noted this clause and feared that it would be used as a source of power conferring unlimited legislative authority. Responding to the Anti-Federalists, James Madison, the Father of the Constitution, specifically quelled these fears in Federalist 41, writing: “Some, who have not denied the necessity of the power of taxation, have grounded a very fierce attack against the Constitution, on the language in which it is defined. It has been urged and echoed, that the power "to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States," amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction. Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases.” – Federalist 41 Notwithstanding, in
United States v. Butler
and then, more importantly, in
Helvering v. Davis
, Justice Cardozo upheld Social Security under Congress’ authority to regulate for the ‘General Welfare.’ The result, particularly when coupled with a broadly interpreted Commerce Clause, has been a
de facto
government of general and unlimited powers. Of course, over the years, liberals would often pay lip service to the concept of a limited government of enumerated powers, after all, that is unquestionably how the Founding Fathers designed the Federal government. Joseph Story, writing his famous Commentaries on the Constitution, notes how the prefatory clause would confer a general power to legislate: “Do the words, "to lay and collect taxes, duties, imposts, and excises," constitute a distinct, substantial power; and the words, "to pay debts and provide for the common defence, and general welfare of the United States," constitute another distinct and substantial power? Or are the latter words connected with the former, so as to constitute a qualification upon them? This has been a topic of political controversy; and has furnished abundant materials for popular declamation and alarm. If the former be the true interpretation, then it is obvious, that under colour of the generality of the words to "provide for the common defence and general welfare," the government of the United States is, in reality, a government of general and unlimited powers, notwithstanding the subsequent enumeration of specific powers; if the latter be the true construction, then the power of taxation only is given by the clause, and it is limited to objects of a national character, "for the common defence and the general welfare." Joseph Story,
Commentaries on the Constitution
2:§§ 904 In describing the power to lay and collect taxes, Joseph Story notes the importance of connecting Congress’ taxing power to an affirmative congressional power stating : “The congress shall have power to lay and collect taxes, duties, imposts, and excises,
in order
to pay the debts, and to provide for the common defence and general welfare of the United States;" that is, for the purpose of paying the public debts, and providing for the common defence and general welfare of the United States. In this sense, congress has not an unlimited power of taxation; but it is limited to specific objects,--the payment of the public debts, and providing for the common defence and general welfare. A tax, therefore, laid by congress for neither of these objects, would be unconstitutional, as an excess of its legislative authority.” Id. at § 904. Of course Story misses the point that citing the broad term “General Welfare” embraces every legislative topic, so there really is no tax that Congress cannot levy. While Roberts’ opinion goes out of its way to ensure that this “tax” is not an exercise of Congress’ power to regulate interstate commerce, to what avail is this if he cites to Congress power to “Lay and Collect taxes?” Where exactly is the limiting principle in the Federal government? The fact of the matter is that there isn’t any since regulating any activity can be said to be regulating for the General Welfare, or Commerce, clearly a subset of General Welfare; and now, even your inactivity is subject to taxation. The fact of the matter is that there is no legislative topic beyond the reach of Congress, the last vestiges of a limited government of enumerated powers have been completely discarded. Frankly we shouldn’t be surprised, as James Madison said: "In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself." – Federalist 51. Of course there are over $15 trillion in bonds outstanding to demonstrate that the Federal government has no intention of controlling or limiting its insatiable appetite to consume ever increasing portions of our national income. The Constitution unquestionably vests authority to make the determination of the powers of the Federal government in the Supreme Court and yet, should we be surprised when we make the Federal government the arbiter of its own powers that the Federal government should find everything to be within its legislative purview? I don’t think so and when Congress hangs our prosperity in this ever tightening debt noose, it’ll be self-evident why we went the way of Argentina, Iceland and Greece.


I put it into Word and printed it out for close study. Thanks very much. Newpublius