What happens to a Republic under a written Constitution if a majority of the Supreme Court, which is empowered to interpret that Constitution, goes rogue? What if the court’s majority simply ignores the wording of the founding document and makes up the law to serve some partisan end? Does that, in effect, turn the country into a lawless state where raw power can muscle aside the democratic process?
Chief Justice John Roberts
Something very much like that could be happening if the Supreme Court’s five Republicans continue on their apparent path to strike down the individual mandate at the heart of the Affordable Care Act. In doing so, they will be rewriting the Constitution’s key Commerce Clause and thus reshaping America’s system of government by fiat, rather than by the prescribed method of making such changes through the amendment process.
And the word “regulate” means today what it meant then, as was noted in a Nov. 8, 2011, ruling written by Judge Laurence Silberman, a senior judge on the U.S. Court of Appeals for the District of Columbia Circuit, a conservative appointee of President Ronald Reagan.The plain text of the Commerce Clause – Article 1, Section 8, Clause 3 – is so straightforward that a middle-school child should be able to understand it. Here it is: “Congress shall have Power… to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”
In upholding the individual mandate as constitutional, Silberman wrote: “At the time the Constitution was fashioned, to ‘regulate’ meant, as it does now, ‘[t]o adjust by rule or method,’ as well as ‘[t]o direct.’ To ‘direct,’ in turn, included ‘[t]o prescribe certain measure[s]; to mark out a certain course,’ and ‘[t]o order; to command.’ In other words, to ‘regulate’ can mean to require action.”
So, for the individual mandate to clear the Commerce Clause hurdle it must be a regulation of commerce among the states. Everyone agrees that health care and health insurance are interstate markets. Check. Everyone also agrees that health care and health insurance are commerce. Check. There’s also no dispute that the individual mandate is a form of regulation. Check.
Judge Silberman went through the same check list and concluded that there was “no textual support” in the Constitution for striking down the individual mandate because the word “regulate” has always included the power to compel people to act.
But the law’s opponents insist that the individual mandate is a unique and improper form of regulation because it forces an American to do something that the person might not want to do it, i.e. go into the private market and buy health insurance.
Yet, in other enumerated powers, this idea of Congress having the power to compel people to act is widely accepted. Take, for example, the draft. While there is not currently a draft, there has been at many points in U.S. history and even now every male citizen, when he turns 18, is required to register for selective service. And, should the draft come back and should you get drafted, you would be legally compelled to serve.
If compelling individuals to risk their lives in war is an accepted use of congressional authority, it is hard to see the logic in striking down the power of Congress to compel individuals to get health insurance.
Washington and Madison
And, despite what the Affordable Care Act’s critics have said repeatedly, this is not the first time the federal government has ordered Americans to buy a private product.
Indeed, just four years after the Constitution’s ratification, the second U.S. Congress passed the Militia Acts of 1792, which were signed into law by President George Washington. The militia law ordered white men of fighting age to arm themselves with a musket, bayonet and belt, two spare flints, a cartridge box with 24 bullets and a knapsack so they could participate in militias.
If one wants to gauge whether a mandate to buy a private product violates the original intent of the Framers, one probably can’t do better than applying the thinking of George Washington, who presided at the Constitutional Convention in 1787, and James Madison, the Constitution’s architect who served in the Second Congress and argued for the militia law. [For more, see Consortiumnews.com’s “Madison: Father of the Commerce Clause.”]
So, it would seem to be a rather clear-cut constitutional case. Whether one likes the Affordable Care Act or not, it appears to fall well within the Constitution and historical precedents. By the way, that’s also the view of Ronald Reagan’s Solicitor General Charles Fried who said this in a March 28 interview:
“Now, is it within the power of Congress? Well, the power of Congress is to regulate interstate commerce. Is health care commerce among the states? Nobody except maybe Clarence Thomas doubts that. So health care is interstate commerce. Is this a regulation of it? Yes. End of story.”
However, if Chief Justice John Roberts and the Court’s four other Republicans go in the direction they signaled during oral arguments and strike down the individual mandate, they will not merely be making minor clarifications to the noun “commerce” and the adjective “interstate” — as the Court has done previously — but they will be revising the definition of the verb “regulate” and thus substantially editing the Constitution.
Amendment Process
When it comes to editing the Constitution, there is a detailed process spelled out for how you do that. It’s in Article 5 of the Constitution and it’s called the amendment process – something in which the Judicial Branch plays absolutely no role. The process for revising the founding document requires votes by two-thirds of both the House and the Senate and the approval of three-quarters of the states.
Besides representing an affront to the nation’s constitutional system, an end-run by a narrow majority of the Supreme Court taking upon itself to rewrite an important section of the Constitution would drastically alter the balance among the three branches of government.
Such an action would fly in the face of the longstanding principle in constitutional cases that the Supreme Court should give deference to legislation passed by the government’s Legislative Branch and signed into law by the President as chief of the Executive Branch. Under that tradition, the Judicial Branch starts with the assumption that the other two branches have acted constitutionally.
The burden of proof, therefore, should not be on the government to prove that the Constitution permits a law – but rather on the plaintiffs to demonstrate how a law is unconstitutional.
Yet, during oral arguments this week, Republican justices pressed the government to prove that the Affordable Care Act was constitutional and even demanded that Solicitor General Donald B. Verrilli Jr. put forward a limiting principle to the Commerce Clause – to speculate about what couldn’t be done under that power.
Justice Anthony Kennedy several times raised the point that the individual mandate changes the relationship between citizens and the federal government in, as he put it, “fundamental ways” and thus the government needed to offer a powerful justification. In his questions, however, it was not entirely clear why Kennedy thought this, given the fact that Congress has previously enacted many mandates, including requirements to contribute money to Social Security and Medicare.
In the March 28 interview, former Solicitor General Fried took issue with Kennedy’s question about this “fundamental” change, calling the line “an appalling piece of phony rhetoric” and dismissing it as “Kennedy’s Tea Party-like argument.”
Fried noted that Social Security in the 1930s and Medicare in the 1960s indeed were major changes in the relationship between the government and the citizenry, “but this? This is simply a rounding out in a particular area of a relation between the citizen and the government that’s been around for 70 years.”
On policy substance as well as on constitutional principle, Fried was baffled by the Republican justices’ opposition to the law, saying: “I’ve never understood why regulating by making people go buy something is somehow more intrusive than regulating by making them pay taxes and then giving it to them. I don’t get it.”
A Noble Rationale
But Kennedy seemed to be fishing for some noble-sounding rationale for striking down the individual mandate. He was backed up by Justice Antonin Scalia who proffered the peculiar argument that if Congress could mandate the purchase of health care, why couldn’t it require people to buy broccoli – as if any outlandish hypothetical regarding congressional use of the Commerce Clause disqualifies all uses of the Commerce Clause.
This line of reasoning by the Republican justices also ignored the point that the Court’s role is not to conjure up reasons to strike down a law, but rather to make a straightforward assessment of whether the individual mandate represents a regulation of interstate commerce and is thus constitutional.
In searching for a rationale to strike down the law, the Court’s Republicans also ignored the true limiting principle of any act of Congress – the ballot box. If any congressional majority were crazy enough to mandate the purchase of broccoli, the voters could throw that bunch out and vote in representatives who could then reverse the law.
In the case of the Affordable Care Act, Democrats won Election 2008, in part, because they promised the voters to tackle the crisis in U.S. health care. If the voters don’t like what was done, they can vote the Democrats out of office in November. The pendulum of democracy can always undo or modify any law through legislative action.
However, what the Republican majority on the Supreme Court seems to be angling toward is a radical change in the longstanding principles behind the Constitution’s checks and balances. The five justices would bestow upon themselves the power to not only undo legislation, which has been lawfully enacted by Congress and signed by the President, but to rewrite the founding document itself.
© 2012 Consortium News
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Sam Parry is co-author of Neck Deep: The Disastrous Presidency of George W. Bush. He has worked in the environmental movement, including as a grassroots organizer, communications associate, and on the Sierra Club’s and Amnesty International’s joint Human Rights and the Environment campaign. He currently works for Environmental Defense Fund.
roger hollander 
DACA Joins the Mad Rush to War January 31, 2018
Posted by rogerhollander in armaments, democrats, Imperialism, Republicans, Uncategorized, War.Tags: arms, daca, democrats, imperialism, military budget, pelosi, republicans, roger hollander, schumer, war, war spending
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Roger’s note: I had to chuckle when I read about some worthy progressives who, in response to Schumer’s treasonous betrayal of the Dreamers, were threatening to leave the Democratic Party. As if there was anything that progressive about the Congressional Democrats in recent memory. I myself left the Democratic Party in 1965 after “peace candidate” Lyndon Baines Johnson demonstrated his bona fides by proceeding to bomb the hell out of Vietnam, with Democratic Congressmen dragging their tails behind.
In the November 2006 midterm elections, the Democrats took control of Congress, which created high expectations for the rapid end to George W. Bush’s military adventures in the Middle East. That Congress and eight years of Obama’s escalations in the Middle East (seven countries, that we’re aware of) later, we’re still waiting.
With well over a hundred military bases spread around the globe, over 600 billion dollars in military expenditures (over half of the country’s discretionary spending), and enough nuclear weapons to destroy the world a dozen times over, the United States imperial adventure is mind boggling to say the least.
One war party in this proud nation: Democratic/Republican.
“Measured in military dollars, the Democratic leadership is more warlike than the Trump administration.”
The top Democrats in Congress have transformed DACA, the effort to protect 800,000 childhood immigrants from deportation, into a gargantuan funding measure for the Pentagon. This past weekend, Senate Democratic leader Charles Schumer offered to fully fund Donald Trump’s border wall and boost defense spending “far above ” what the White House requested, in a deal to end the government shutdown. The military budget signed into law in December was already $30 billion higher than the White House asked for, and $80 billion bigger than the previous year’s war spending — an increase as large as Russia’s entire defense budget.
It is Democratic congressional leadership — not Donald Trump and his mad generals — that has been the driving force in this year’s military spending insanity. Back in July, House Democratic leader Nancy Pelosi pressured her party to back a defense authorization $57.4 billion bigger than the Pentagon requested. Only a minority of Democratic House members supported the measure, but a majority of the Congressional Black Caucus (CBC) followed Pelosi’s lead — including all five of the newest members of the Black Caucus, elected in 2016. By inflating the war budget even beyond the Pentagon’s demands, these Pelosi-Schumer-CBC Democrats ensured that what remains of the social safety net will be slashed into oblivion by bipartisan forces of austerity in future Congresses.
“House Democratic leader Nancy Pelosi pressured her party to back a defense authorization $57.4 billion bigger than the Pentagon requested.”
The Bernie Sanders faction of the Party is just as guilty, through its shameful silence on war. This group includes Our Revolution, whose purportedly “progressive” agenda suggests only that they would “take a hard look at the Pentagon’s budget and the priorities it has established.”
The imperial fist is inexorably crushing the domestic welfare agencies of government. The Democrats’ task in this infernal process is to coax their constituents to swallow the “Satan’s Sandwiches” that emerge from Congress — as suggested by Black Kansas City Rep. Emanuel Cleaver back in 2011, when Barack Obama was presenting his “Grand Bargain” to the Republicans. Having put “all entitlements” on the table for cutting at the start of his presidency, Obama proceeded to wage expensive wars against seven countries. His Grand Bargain offered even larger social cuts than the Republicans demanded, before finally unraveling in the morass of Capitol Hill. Democratic leadership is still seeking that “bargain” with the GOP, knowing full well that it will be paid for by more austerity for people’s programs.
“DACA becomes the excuse to funnel additional tens of billions to the Pentagon.”
The result is both predictable and intended: the military budget expands to consume ever greater proportions of federal “discretionary” spending — that is, moneys not locked into mandated programs like Social Security. Finally, the public is told there is “no choice” but to tap into Social Security, Medicaid and Medicare — as Obama signaled at very the beginning of his presidency, and attempted to pull off in his first term in office.
Schumer and Pelosi have been throwing money at the Pentagon with abandon this year because both wings of the War Party (Democrat and Republican) are anxious to maintain the momentum of Obama’s global military offensive, after the unexpected defeat of the reliable warmonger, Hillary Clinton. That’s why, measured in military dollars, the Democratic leadership is more warlike than the Trump administration. Not trusting Trump to keep the pressure on Moscow, Beijing and any other “threat” to U.S. hegemony, the bipartisan political servants of empire flood the Pentagon with money and poison the political discourse with Russiagate. Although there are clear conflicts within the U.S. ruling class, in general the Lords of Capital appear at this juncture to be more concerned with terrorizing the world than maintaining domestic peace. Schumer and Pelosi were instructed, accordingly.
“Both wings of the War Party are anxious to maintain the momentum of Obama’s global military offensive.”
The Democrats’ cynicism is boundless. DACA, which has great political value to a key constituency but no monetary price tag, becomes the excuse to funnel additional tens of billions to the Pentagon — on top of previous increases — while enhancing Democratic election prospects in 2018 and 2020.
The Democrats can be expected to repeat the formula. If not DACA, any symbolic program will suffice as a political battle flag to rally the various Party constituencies while simultaneously boosting the flow of cash to the war machine.
And they’ll call it “resistance.” But it’s the kind of resistance that is useless when, as Dr. Martin Luther King observed, the “demonic destructive suction tube” of war spending comes to claim its ever-larger share of the budget.
BAR executive editor Glen Ford can be contacted at Glen.Ford@BlackAgendaReport.com .