ObamaCare takes this overly broad interpretation of the Commerce Clause to an absurd extreme.
If the government can coerce individualsâby threat of finesâto buy health insurance, what is stopping it from forcing Americans to buy other products? For example, energy supplies regularly cross state lines. What's to stop the federal government, in the interests of “national energy security,” from requiring every homeowner to purchase some percentage of his electricity from the kind of expensive renewable sources whose cultivation is a top priority of the Obama administration and congressional Democrats? Or consider General Motors. Having become deeply involved in GM's operation, the federal government has a vested interest in the company's success. So what is stopping it from requiring all Americansâunder threat of penaltyâto buy a GM car?
The specter of unrestrained federal power embodied in ObamaCare has provoked a sustained, nationwide backlash. Millions of Americans showed their disapproval during the 2010 elections, expelling the Democrats from their House majority, reducing their Senate majority, and increasing Republican representation in state legislatures by a record 680 seats (with the GOP gaining an additional twenty-five seats due to postelection party switching by former Democrats).
Additionally, dozens of state attorneys general have filed suit against ObamaCare, charging that the individual mandate is unconstitutional. Judges have offered divergent opinions so far, but ObamaCare opponents scored a big victory in January 2011 in
State of Florida v. United States Department of Health and Human Services
, in which Florida Federal District Court judge Roger Vinson ruled that “Congress exceeded the bounds of its authority” by approving ObamaCare's individual mandate.
Vinson held that Congress's interpretation of the Commerce Clause is a “radical departure” from historical precedent. By penalizing Americans who do not buy health insurance, he argued, the government is taking the unprecedented step of regulating “inactivity.” His decision contained a stark warning: if the legislature is granted this authority, “it is not hyperbolizing to suggest that Congress could do almost anything it wanted.” As a result, Vinson held that the entire ObamaCare law is unconstitutional. This case followed the same reasoning as
Commonwealth of Virginia v. Kathleen Sebelius
, in which Judge Henry Hudson found ObamaCare's individual mandate to be unconstitutional.
Aside from this mammoth expansion of federal power, ObamaCare also violates the rule of law in its granting of vast discretion to administrative agencies. The bill contains 1,968 specific grants of power to the Washington bureaucracy,
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including numerous expensive requirements on employers (which are especially damaging to small businesses) and on the states. Earlier in our history, as these regulations took effect, their unpopularity would have forced Congress to scrap the bill and start over. But the administrative state offered Congress an easier fix. Instead of changing the bill, Congress simply empowered the secretary of health and human services, who administers ObamaCare, to issue waivers that exempt recipient companies and organizations from some of the bill's onerous requirements. To date, HHS has issued over
a thousand
waivers, including one waiver to the entire state of Maine.
Instead of writing a law that applies to all, Congress has written a law that applies to some but not to others. Waivers are generously distributed to those with political connections and clout or those who can afford expensive lawyers and lobbyists. Powerful supporters of the Democratic
Party like Big Labor are also major recipients of ObamaCare waivers. This is all profoundly unfair to the millions of small businesses who lack the money and resources to influence Washington. As legal scholar Richard Epstein wrote in
Forbes
magazine,
Waivers are by definition an exercise of administrative discretion that benefits the party who receives its special dispensation. Yet nothing in Obamacare explains who should receive these waivers or why.
The dangers from this uncertainty are enormous. Make no mistake about it, a waiver gives the favored organization a competitive advantage over its rivals. But it is not only one applicant that pulls out all the stops. Its competitors often follow suit while simultaneously trying to block the waiver for the original applicant. Administrative expertise quickly takes a back seat to old-fashioned political muscle and intrigue.
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This arbitrary “rule by waiver” is a fundamental violation of the rule of law. In fact, it negates the rule of law and replaces it with the rule of Secretary Sebelius, President Obama, and the Democratic Party.
THE RADICAL USURPATIONS OF JUDICIAL SUPREMACY
Ever since its 1958 decision in
Cooper v. Aaron
, the Supreme Court has held that the federal judiciary is supreme among the three branches of government in deciding the meaning of the Constitution. As Stanford Law School dean Larry Kramer explains, the decision was an historic power grab:
In 1958 ⦠all nine Justices signed an extraordinary opinion in
Cooper v. Aaron
insisting that
Marbury
[
v. Madison
] had “declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution” and that this idea “has ever since been respected by this
Court and the Country as a permanent and indispensable feature of our constitutional system.” This was, of course, just bluster and puff. As we have seen,
Marbury
said no such thing, and judicial supremacy was not cheerfully embraced in the years after
Marbury
was decided. The Justices in
Cooper
were not reporting a fact so much as trying to manufacture one.â¦The declaration of judicial interpretive supremacy evoked considerable skepticism at the time. But here is the striking thing: after
Cooper v. Aaron
, the idea of judicial supremacy seemed gradually, at long last, to find wide public acceptance.
Having declared itself superior to the legislative and executive branches, the Supreme Court has largely removed the constitutional checks and balances on its powers. This is a radical departure from the vision of our Founders, none of whom believed in judicial supremacy. To the contrary, in Federalist no. 78 Alexander Hamilton characterized the judiciary as the weakest of the three branches. Likewise, in a letter to William Jarvis in 1820, Thomas Jefferson expressed his
fear
of judicial supremacy:
[T]o consider the judges the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges ⦠and their power [are] the more dangerous as they are in office for life, and are not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves. â¦When the legislative or executive functionaries act unconstitutionally, they are responsible to the people in their elective capacity. The exemption of the judges from that is quite dangerous enough. I know of no safe depository of the ultimate powers of the society, but the people themselves.
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Jefferson reiterated his concerns in a letter he wrote a year later: “The great object of my fear is the federal judiciary. That body, like gravity, ever acting, with noiseless foot, and unalarming advance, gaining ground step by step, and holding what it gains, is engulfing insidiously the special governments into the jaws of that which feeds them.”
Judicial supremacy was also decried by Abraham Lincolnâa man who, we should remember, reentered politics largely as an outraged response to the Supreme Court's pro-slavery decision in the
Dred Scott
case. In his inaugural address, Lincoln declared, “[T]he candid citizen must confess that if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.” For Lincoln, judicial supremacy necessarily entailed a surrender of self-government.
Today, a decisive battle is being waged that will determine the future of American self-government. The flash point is whether the U.S. Constitution allows the federal government and state governments to pass laws defining marriage as between one man and one woman. The federal government passed such a law in 1996, the Defense of Marriage Act (DOMA), and many state governments have passed similar laws or constitutional amendments.
The stakes for self-government could not be higher. If the Supreme Court usurps the power to define marriage, then the American people will have truly lost the right to rule themselves. The Constitution gives the judiciary no authority to adjudicate this issue, and it defies belief that the “weakest” branch of government has the power to overturn an institution so vital to the Foundersâmarriageâthat none even entertained the idea of someone challenging it.
More than thirty states have held referenda on gay marriage, and voters in every one of those states have chosen to defend traditional marriage. But to those who would replace the rule of law with the rule of menâor specifically, the rule of a clique of judgesâthe consent of the governed is less a cherished principle than an obstacle to be overcome.
RADICAL SECULARISM: THE OFFICIAL RELIGION OF THE UNITED STATES
Radical secularists posit that religion and morality have no role to play in lawmaking. For them, the only legitimate source of legislation is the tenets of radical secularism itself. Ironically, the dogmatic intolerance they display toward any ideas outside their own ideology shows they are, in fact, members of the exact type of religious sect the Constitution deems ineligible of government sponsorship. Worse still, in flagrant violation of the anti-establishment clause, today the judiciary is effectively establishing this radical secularist religion as the official religion of the federal government.
The Founders banned the establishment of an official federal religion out of fear that, as was the case in Europe, such a privileged institution would infringe on the people's liberties. And this has indeed been the result of the government's embrace of radical secularism. Supreme Court justice Potter Stewart warned of this danger in his lone dissent to the Court's 1963 decision in
School District of Abington Township, Pennsylvania v. Schempp
, which held that it was unconstitutional to read the Bible in school or recite the Lord's Prayer:
It might also be argued that parents who want their children exposed to religious influences can adequately fulfill that wish off school property and outside school time. With all its surface persuasiveness, however, this argument seriously misconceives the basic constitutional justification for permitting the exercises at issue in these cases. For a compulsory state educational system so structures a child's life that, if religious exercises are held to be an impermissible activity in schools, religion is placed at an artificial and state-created disadvantage. Viewed in this light, permission of such exercises for those who want them is necessary if the schools are truly to be neutral in the matter of religion. And a refusal to permit religious exercises thus is seen not as the realization of state neutrality,
but rather as the establishment of a religion of secularism
, or, at the least, as government support of the
beliefs of those who think that religious exercises should be conducted only in private. (Emphasis added)
The judiciary has been the key instrument in enshrining radical secularism as an official, privileged religion. Here's how it does it. In analyzing whether laws violate constitutional rights such as equal protection or free speech, the Supreme Court has long held that courts should consider whether the challenged law furthers a legitimate state interest. For over a century the courts recognized a standard list of these state interests (also called police powers): “the health, safety, morals, and general welfare of the public.”
As this list shows, the public's moral judgments were viewed as a legitimate basis for legislation. Relying on this principle, courts have upheld the constitutionality of laws prohibiting conduct widely recognized as immoral, such as public indecency, prostitution, polygamy, child pornography, and animal cruelty. For example, in 1991 the Supreme Court upheld a state law prohibiting public nudity, explaining that the law was justified by “a substantial government interest in protecting order and morality.”
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However, in a series of cases starting with
Roe v. Wade
, the Supreme Court and lower federal courts have steadily undermined this principle. Surveying the nation's long history of prohibiting abortion based on moral views, the Court acknowledged in
Roe
that “the moral standards one establishes and seeks to observe, are ⦠likely to influence and to color one's thinking and conclusions about abortion.” Nevertheless, it held that states do not have a sufficiently compelling moral interest to justify outlawing abortion.
In recent years, as the gay rights movement has taken its cause to the courts, the Supreme Court has again waffled on whether the Constitution permits the American people to enact laws reflecting their moral judgments. In 1992âthe year after the Court upheld state bans on public nudityâthe people of Colorado approved a statewide referendum to amend the state's constitution to invalidate local laws and ordinances establishing special protections for homosexuals. In
Romer v. Evans
the Supreme Court struck down the amendment. Studiously avoiding the
question of whether the moral judgments of the people of Colorado are a legitimate basis for legislation, the Court simply concluded that the amendment did not “further a proper legislative end.”
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