Legal Argument: Use of Case Law or Refer to the Constitution as Supreme Law of Land in Analysis of ACA

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

Amicus Curiae – DEPT. OF HEALTH AND HUMAN SERVICES, ET AL., Petitioners, v. STATE OF FLORIDA ET AL., Respondents.

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?

Waiting on the Supreme Court Decision Regarding Obama Care

The wait on the Supreme Courts ruling of whether or not the Affordable Health Care Act (ACA) is constitutional is akin to waiting for the surgeon to come out of the operating room after having just performed surgery to remove a cancerous tumor from a loved one’s lungs.  Only the surgeon can say whether or not the patient is going to live.  The ACA is the tumor. The deathly ill patient is a country once known to be a Constitutional Republic that went by the name of the United States of America.

Defending Property Rights is in the News and is on My Mind

I was happy to see two media accounts this morning about the issue of property rights.  One an article about a home owner in Yorktown, VA battling his local government for his right to use his rural residential zoned home that has permitted use for agriculture so that he can operate an oyster business (aquaculture).  This battle has been underway for sometime now.  The update this morning is that a well known local civil rights activist is now putting his weight behind the property owner.

The other is national syndicated columnist George Will and his thoughts relating to rent control laws in NYC.

I hope both stories spark an interest on the part of property rights activists and supporters that can lead to all levels of government recognizing that a person’s right to use their property as they so choose is a fundamental component of being free.

Here are links to the stories.  Please, if you are so moved, please take a moment and think about writing a letter to the editor for your local newspaper or to your local government representative at the local, state, and/or federal level and tell them that in no uncertain terms, you favor laws that safeguard the rights of property owners from government theft and control.  A very fast and convenient method of writing your congress representatives and senators is to go to http://www.downsizedc.org and use their tools for doing so.  They also offer many tips on what you can put in your letters.

http://www.dailypress.com/news/york-county/dp-nws-york-garrett-rights-complaint-0216-20120215,0,6300317.story

http://www.washingtonpost.com/opinions/rent-control-laws-foolish-and-unconstitutional/2012/02/14/gIQAcZvbGR_story.html

President Obama Refuses to Take Heat – Making Health Mandate Plan Coverage Requirements a State Problem

President Obama is showing he does not have the intestinal fortitude to accept responsibility in setting requirements for his mandated health coverage. 

His passing the buck onto the states is akin to a drug kingpin forcing at gun point, the decision of whether or not to use heroine or crack onto an unwilling person all the while demanding payment for it and hoping you still like him and respect him when he is done assaulting and robbing you.

With any luck, this will reflect poorly on him and his statist dream as the Supreme Court is preparing to take the case of the constitutionality of the health mandate as brought forth by numerous states.

http://www.bloomberg.com/news/2011-12-19/obama-health-insurance-decision-passes-political-hot-potato-to-states.html