Here is an amazingly thought provoking argument against the Affordable Healthcare Act that uses the Constitution and not established Commerce Clause case law as its underpinning. Several blog posts ago, I wrote that I wondered how much of my rights were left due to erosion from bad court decisions serving as precedent such as Wickard v. Filburn or Gonzales v. Raich before I actually became a full fledged ward of the state. In my amateur judicial mind, new case law appeared to just keep being based and built upon errant case law that was centered on politically expedient court decisions rather than constitutional interpretation. If every new or subsequent challenge of unconstitutional law was brought before the court and weighed by the court only against established case law that was – to be frank, a bad opinion, then I postulated that our freedoms are quite doomed. Supreme Court case law of the early to mid 20th century is not exactly a bulwark of pro-Constitutional rulings. Fortunately, true legal scholars and professionals who understand the Constitution thought the same thing and banded together to write this argument as to why the Affordable Healthcare Act is unconstitutional. These friends of the court include one of my favorite organizations that support Liberty, The Downsize DC Foundation and DownsSizeDC.org
The analysis in this amicus urges the Supreme Court Justices to discard the bad habit of relying on Commerce Clause case law since much of the key decisions were from a politically packed court during FDR’s administration. Instead, the respondents urge the court to look at the health mandate with a fresh new perspective, going back to the actual textual law that is the Constitution – The Supreme Law of the Land. It really is an argument to behold with awe and great appreciation. Hopefully a majority of the court will see the wisdom in this argument and overturn the low courts upholding of this constitutional abomination. The Congress does not have free rein to do what it wants under the Commerce Clause.
Former Ronald Reagan solicitor general Charles Fried, now a Harvard Law Professor, thinks the opposite and that the current Supreme Court led by Chief Justice John Roberts should follow the bad precedent set by previous Supreme Courts and not overturn the ACA law as unconstitutional. “It would be plainly at odds with precedent, and plainly in conflict with what several of the justices have said before.” Here is a link to this opinion of the former conservative lawyer who served under Ronald Reagan.
It would be my hope that a fresh check against the text of the Constitution take place. I don’t understand exactly what Fried is worried about if today’s court makes its own assessment of the Constitutionality of the law. What is exactly is wrong if this court abandons the poorly thought out decisions from its predecessors? Are not mistakes permitted to be corrected?
Living in America 