The Obama administration, in a move that surprised many political observers and legal professionals, has announced that it will forgo a review by the full 11th Circuit Court of Appeals of a three-judge panel’s decision striking down key parts of the Affordable Care Act, the law that created Obamacare.
The administration’s quick decision to skip a hearing by the 11th Circuit means that the Supreme Court will most likely soon agree to hear one or more cases involving challenges to Obamacare. If they do, that means arguments before the Supreme Court would take place by the spring, with a decision likely by June — right in the middle of the 2012 presidential campaign.
Why risk losing your signature legislative accomplishment right in the middle of your re-election campaign?
Maybe the Obama administration read the decision of the majority of the three-judge panel written by Chief Judge Joel F. Dubina and Judge Hull that said, “We have not found any generally applicable, judicially enforceable limiting principle that would permit us to uphold the mandate without obliterating the boundaries inherent in the system of enumerated congressional powers.”
Then they looked at last Monday’s Gallup poll
which said 49 percent of Americans believe the federal government has become so large and powerful that it poses an immediate threat to the rights and freedoms of ordinary citizens.
After which they concluded their only prayer of keeping the unconstitutional individual mandate was to take their chances and get to the Supreme Court as fast as they could.
But don’t dismiss that analysis as merely a good one-liner; based on the comments of Obama’s lawyers, there may be a lot more to it than you think.
According to The New York Times, United States solicitor general, Donald B. Verrilli Jr., claims that the Affordable Care Act merely requires most people to buy insurance “rather than rely on a combination of attempted self-insurance and the back-stop of care paid for by other market participants.”
The individual mandate, he went on, “like the act as a whole, thus regulates economic conduct that substantially affects interstate commerce.”
As I noted in “The Law That Governs Government
” a pamphlet I co-authored with lawyer Mark Fitzgibbons, for a hundred years liberals have been using the Commerce Clause of the Constitution (Article 1, Section 8, Clause 3) to expand federal power and to justify the use of federal laws in matters that do not, on their face, implicate interstate trade or exchange.
Liberals have had a leg up on conservatives in this war of the law. Their goal is to extend power through coercion, and they have become adept at manipulating and misusing the law and the legal system for political ends.
Here's how they have done it; as activist judges began legislating from the bench rather than just adjudicating disputes, the judge-created doctrine stare decisis (following precedent), which is not an inherently progressive doctrine, has been misused to supplant the textual Constitution as our paramount law.
Judicial expert Ed Whelan noted it is “the exaggerated view of stare decisis that some on the left invoke in an effort to preserve the ill-gotten gains from decades of liberal judicial activism.”
By demanding that judges slavishly adhere to precedent rather than apply the plain language of the Constitution, liberals have rigged the game to subvert the underlying, basic law of the Constitution.
And there’s plenty of precedent using the Commerce Clause to expand federal power starting in 1824 with Gibbons v. Ogden, to the vast expansion of government under President Franklin D. Roosevelt, to the enactment of a law requiring Americans to buy health insurance which is the logical conclusion of such thinking.
It remains to be seen whether Obama gains some legal advantage in going straight to the Supreme Court, but one thing is certain — no matter what the Supreme Court does, the 49 percent of Americans who believe the federal government has become so large and powerful that it poses an immediate threat to the rights and freedoms of ordinary citizens will have their say in November 2012.
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