Last week while most continued to enjoy Christmas with family and friends, the Michigan state legislature enacted significant legislation. It nullified part of an act of Congress.
Michigan targeted section 1021 of the National Defense Authorization Act which provided for indefinite detention of US citizens. Governor Rick Snyder, while signing the legislation, noted that even a warrant for detention could not be enforced in Michigan. Supporters say that the Michigan legislation reaffirms both 5th Amendment rights of due process and 10th Amendment protections of state sovereignty.
This follows on the heels of a South Carolina bill annulling Obamacare within that state. It passed major hurdles this month and is expected to land on Governor Nikki Haley's desk in January. There is no doubt that she will sign the legislation.
Nullification has returned from the history books into the undercurrent of state politics. The doctrine originated with arch slavery defender John C. Calhoun, but was applied to a destructive tariff in the 1830s. Northerners resurrected the ideal while searching for ways to strike down the notorious Fugitive Slave Act in the 1850s.
It was never stricken down by any court of law or force of arms. Congressional action repealing the Tariff of Abominations in the 1830s placated South Carolina, which suspended the nullification acts.
The main obstacle to nullification lies in the Supreme Court case of McCullough v. Maryland. This case placed broad limits on the authority of well-established state governments to curtail the actions of weak federal agencies. After 200 years of federal growth and state weakening, cases arising from nullification acts may be vital to defining down this landmark ruling and carving out a stronger state position.
Acts of nullification generally attack federal authority assumed under the commerce clause. This covers anti-drug actions, the Environmental Protection Agency, and almost any other regulatory part of the Executive Branch. The Constitution states that Congress has the power to regulate interstate commerce and has adopted the broadest possible interpretation of it. Defining down this interpretation is also essential.
The year 2014 will start off with debt crises, foreign crises, and presidential speculation. Coming up fast, however, is the showdown between federal and state power.
Showing posts with label Fifth Amendment. Show all posts
Showing posts with label Fifth Amendment. Show all posts
Monday, December 30, 2013
Thursday, March 29, 2012
Obamacare, Romneycare, Commerce Clause, Takings Clause
According to analysts and sources, it looks as if Obamacare's individual mandate will certainly fall. Tough questions from Justice Kennedy and even Sotomayor makes it clear that moderates and liberals have severe concerns with the government's case argued mainly by Donald Virrilli.
Virrilli claimed, in essence, that those without health insurance should be covered under the Commerce Clause that allows Congress to set regulations. Their non-action depresses the market and makes them part of it.
Astounded justices savaged that claim, rightfully fearing that it could apply to many different situations.
The main debate seems to be whether or not the loss of the mandate means that the Court should invalidate the entire act. Conservative justices posed the thought that Congress would never have passed the rest of the act without the mandate. It is not the Court's job to read the mind of the legislative. Much as it pains me to say this, from a strict Constitutional standpoint, they probably should not invalidate the whole act. That would infringe upon the legislative prerogative.
I won't cry too many tears if they do, but I fear judicial creeping into the legislative arena as much as I fear overuse of the Commerce Clause.
The Court should spend some time looking at the Commerce Clause. Since the Civil Rights Acts of the 1960s, it has been very liberally interpreted. According to Vanderbilt University law professor James W. Ely in The Guardian of Every Other Right, the commerce clause was meant to help Congress maintain free trade among the states, not restrict it. While some cases, such as National League of Cities v. Usery (1976) have nibbled away at it, no Court has taken the opportunity to establish a perimeter fence around the clause.
Currently, the clause is used to justify a wide scope of federal action. Should the Court decide to restrict it to its interpretation prior to the 1960s, meaning that Congress cannot regulate everything that moves, this could bring huge changes to American law.
It will impact the Environmental Protection Agency's legal basis for action in many cases. The EPA relies heavily on legislation that uses the Commerce Clause as part of its foundation. Restricting its legal scope of action can head off many of the anti-industry interpretations that it has lately made.
The war on drugs would change. While intoxicants that require production might continue to fall under federal jurisdiction, those that simply spring from the ground would no longer be a federal matter unless they crossed state lines. States that wish to legalize medical marijuana, for instance, could do so without federal harassment as long as the product was wholly contained and sold within the state. California already interprets the law in this fashion, but sellers still are regularly harassed by the feds.
In fact, a state could completely legalize marijuana and the federal government would be powerless within state jurisdiction.
No one should fear repeal of the Civil Rights Acts. That being said, it would be wise to revisit the issue and update them, using a foundation that does not require the Commerce Clause as support.
****************************************************************
Now what about the future of Romney's plan in Massachusetts? If the justices limit themselves to the Commerce Clause, it is safe because it is a state action. But it is very possible that they could also apply the Fifth Amendment's takings clause as well. No life, liberty, or property can be forfeited or taken for public use without just compensation. While one can argue that the insurance one gets is the "just compensation," the justices could find that this is a deprivation of liberty.
And that kills Romneycare.
*****************************************************************
That leads me to a point of speculation. Donald Virrilli, by all accounts, is a pretty smart guy. This Supreme Court case was not his first go-round.
So why the mind-numbingly bad argument? Why did Justice Kagan actually have to step in to help him to answer some of the tougher questions?
I'll just flat out speculate that Virrilli did not come up with the argument himself. It was a bad case that he did not present well at some points. An argument that runs so counter to American tradition, yet also looks so bumbling, probably came from Barack Obama himself.
If it did, and I was Virrilli, I would resign and let the public know.
***********************************************************************
Virrilli claimed, in essence, that those without health insurance should be covered under the Commerce Clause that allows Congress to set regulations. Their non-action depresses the market and makes them part of it.
Astounded justices savaged that claim, rightfully fearing that it could apply to many different situations.
The main debate seems to be whether or not the loss of the mandate means that the Court should invalidate the entire act. Conservative justices posed the thought that Congress would never have passed the rest of the act without the mandate. It is not the Court's job to read the mind of the legislative. Much as it pains me to say this, from a strict Constitutional standpoint, they probably should not invalidate the whole act. That would infringe upon the legislative prerogative.
I won't cry too many tears if they do, but I fear judicial creeping into the legislative arena as much as I fear overuse of the Commerce Clause.
The Court should spend some time looking at the Commerce Clause. Since the Civil Rights Acts of the 1960s, it has been very liberally interpreted. According to Vanderbilt University law professor James W. Ely in The Guardian of Every Other Right, the commerce clause was meant to help Congress maintain free trade among the states, not restrict it. While some cases, such as National League of Cities v. Usery (1976) have nibbled away at it, no Court has taken the opportunity to establish a perimeter fence around the clause.
Currently, the clause is used to justify a wide scope of federal action. Should the Court decide to restrict it to its interpretation prior to the 1960s, meaning that Congress cannot regulate everything that moves, this could bring huge changes to American law.
It will impact the Environmental Protection Agency's legal basis for action in many cases. The EPA relies heavily on legislation that uses the Commerce Clause as part of its foundation. Restricting its legal scope of action can head off many of the anti-industry interpretations that it has lately made.
The war on drugs would change. While intoxicants that require production might continue to fall under federal jurisdiction, those that simply spring from the ground would no longer be a federal matter unless they crossed state lines. States that wish to legalize medical marijuana, for instance, could do so without federal harassment as long as the product was wholly contained and sold within the state. California already interprets the law in this fashion, but sellers still are regularly harassed by the feds.
In fact, a state could completely legalize marijuana and the federal government would be powerless within state jurisdiction.
No one should fear repeal of the Civil Rights Acts. That being said, it would be wise to revisit the issue and update them, using a foundation that does not require the Commerce Clause as support.
****************************************************************
Now what about the future of Romney's plan in Massachusetts? If the justices limit themselves to the Commerce Clause, it is safe because it is a state action. But it is very possible that they could also apply the Fifth Amendment's takings clause as well. No life, liberty, or property can be forfeited or taken for public use without just compensation. While one can argue that the insurance one gets is the "just compensation," the justices could find that this is a deprivation of liberty.
And that kills Romneycare.
*****************************************************************
That leads me to a point of speculation. Donald Virrilli, by all accounts, is a pretty smart guy. This Supreme Court case was not his first go-round.
So why the mind-numbingly bad argument? Why did Justice Kagan actually have to step in to help him to answer some of the tougher questions?
I'll just flat out speculate that Virrilli did not come up with the argument himself. It was a bad case that he did not present well at some points. An argument that runs so counter to American tradition, yet also looks so bumbling, probably came from Barack Obama himself.
If it did, and I was Virrilli, I would resign and let the public know.
***********************************************************************
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