Holder and DOJ hoping Justice Scalia will find ObamaCare Constitutional

by Doug Book,  staff writer

On Monday oral arguments will begin for the Patient Protection and Affordable Care Act, a case which will demand arguably the most important ruling the Supreme Court will make in a century. And the Court’s decision on the Constitutionality of ObamaCare’s individual mandate will indeed be that important, for a finding that it is Constitutional and may therefore be implemented would provide the federal government unlimited, dictatorial power over the lives and actions of the American people.

The 11th Circuit Court of Appeals found the individual mandate unconstitutional, ruling quite correctly that the Article I, Section 8 Commerce Clause powers of Congress upon which Obama’s handlers had depended for the authority to force certain Americans to purchase unwanted healthcare did NOT provide such authority after all.  (1)

And as the argument made by the 11th Circuit in its 305 page decision was brilliant and almost certain to influence the thinking of the 5 members of the Court who still believe the United States Constitution rather than the Little Red Book to represent the law of the land, Obama’s Department of Justice lawyers were forced to invent a new method for allocating Congress the power necessary to impose the mandate. The non-existent “penumbras” magically created by the Burger Court to justify Roe v Wade  were not likely to work this time.

So DOJ attorneys have decided to apply the “necessary and proper” clause which provides congress the authority to make all laws   “necessary and proper for carrying into execution the enumerated powers of congress,” such as the power to regulate commerce! (2)

The DOJ took this tack because in 2005, Justices Scalia and Kennedy sided with the Court’s Marxist left in deciding the California case Gonzales v Raich. In his concurring opinion, Scalia re-affirmed the vast authority of congress under the necessary and proper clause, writing that it “empowers congress to enact laws in effectuation of its enumerated powers that are not within its authority to enact in isolation.” (3)

Clearly this is a striking statement and one which might well excite the imagination of DOJ attorneys. For it appears to provide congress the right to enact even questionable laws in order to support the exercise of an enumerated power.

But prior rulings notwithstanding, the issue of ObamaCare is a simple one: will the Supreme Court award Congress unlimited power over the lives of the American public? There could be no greater act of violence against the Constitution, the republic and the people than one which would afford congress such dictatorial authority.

As National Federation of Independent Business attorney Karen Harned says of DOJ representatives in the various ObamaCare lawsuits, “what we have seen in all the cases, the one question they cannot answer is ‘Where does it end?’ ” (4)

“When appeals court Justice Laurence Silberman asked Deputy Attorney General Beth Brinkman if requiring Americans to buy broccoli would be unconstitutional, she answered—‘No. It depends.’ ” (4)

Disgraceful. And frightening. If ObamaCare and its individual mandate become law, the right of Americans to engage in civil disobedience will become absolute. For no act could be considered too severe and none ruled illegal as the right of the nation’s highest court to interpret the law or dispense justice would be forfeit.  

Use this site to contact your Congressional Representative:

https://writerep.house.gov/writerep/welcome.shtml

 To read more use these links:

 (1) http://www.uscourts.gov/uscourts/courts/ca11/201111021.pdf

(2) http://www.answers.com/topic/necessary-and-proper-clause-1

(3) http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=03-1454

(4) http://hotair.com/archives/2012/03/04/obamacare-and-the-broccoli-defense/

 

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7 thoughts on “Holder and DOJ hoping Justice Scalia will find ObamaCare Constitutional”

  1. If the "necessary and proper" clause is the deciding factor in the PPACA decision, the Constitution will fall then and there. There will be NOTHING the Progressives won't be able to get away with. And we will be stuck with the law that will destroy this country. Dominoes anyone?

    1. Caroll,

      You're right on the money. And as the piece says, none of the DOJ legal mind-trust could answer where the power of congress stops when asked if Americans could be forced to buy broccoli!

      The decisions of the 4 court Marxists can be phoned in. Will any of the 5 actual justices decide the wrong way? Has Obama "gotten to one of them" in some way? After all, Georgia judge Malihi made a silly, completely indefensible ruling on Obama's eligibility. The errors and illegal moves he made were blatant.

      ObamaCare is THE BIG opportunity of the radical left to exercise COMPLETE, dictatorial power over Americans. And they are NOT about to let it go by the boards without doing everything in their power to get it passed. EVERYTHING.

  2. I was shocked when judge Malihi decided in Obama's favor and he wasn't cited for not appearing in court and/or having a representative there. I later found out the first permit for a go-ahead on a new nuclear power plant in 30 YEARS was awarded to Georgia immediately after the decision. If it stinks that bad it must be a skunk.

    I listened to the audio of the Supreme Court hearing arguments today. IMHO, the court is corrupted at least in this case, because Kagan is sitting. She should have been forcefully advised to recuse and if that didn't work, Congress should have stepped in.

    I think the states may still be able to opt out. However if that happens, it will probably be the conservative states and I can guarantee you that they will pay dearly for their decision. Federal funding could very well be withdrawn for Medicare and Medicaid and state taxes would necessarily SOAR. Obama and this administration are very good at coercive tactics, and no good decision by individual states will go unpunished.

    The one issue that has not been mentioned very often at least publicly is that there is no SEVERANCE CLAUSE in the law. That means if ANY part of the law is found unconstitutional, the entire law must be found unconstitutional!! NO PART CAN BE SEVERED OUT!

    1. Caroll,

      Actually, the 11th Circuit found the mandate unconstitutional yet permitted the rest of the law to stand. Courts have begun to almost ignore the presence/absence of severability, deciding to permit parts of laws to stand even when no severability clause exists. Don't ask me why!

      The Malihi decision surprised the heck out of me too. There was a judge who started out very thorough, honorable, doing things in a businesslike way and all of a sudden….BANG! One of the attorneys who tried one of the eligibility cases before Malihi said the change in the judge's personality was night and day, from returning info requested in faxes almost immediately to ignoring everything almost the next day! Malihi refused to assign burden of proof at Mark Hatfield's written request–a VITAL issue in the Obama case. He also refused to forward Van Irion's contempt filing against Obama to the Superior Court. Somebody/something got to him. That's obvious. But WHAT? Nuclear plants or threats from Obama?

      The transcripts of the orals are available same-day on line. Tues and Wed orals should be very interesting. Looking forward to reading them.

      Thanks much for your comments and interest Caroll.

      Doug

      1. Doug, I forgot to include the title of the book by Skousen. It is the titled, "The Naked Capitalist." Hope you can find it.

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