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Wicker Post Date: 2015-04-25 12:11:49 by tpaine Keywords: None Views: 18592 Comments: 72 http://townhall.com Restoring the 10th Arrangement Editor's note: This column was co-authored by Congressman John Culberson (R- Texas). One of the basic responsibilities of the executive branch is to execute the law faithfully. The Obama Administration, however, has no problem ignoring this duty to create its own rules. Instead of working with Congress on substantive, collaborative legislation, the president has routinely opted to govern by decree, empowering bureaucrats at the expense of the democratic process. His misguided approach puts partisan politics – not the will of the people – at the forefront of decision-making in Washington. Our reasons for introducing the “Restoring the 10th Amendment Act” stem from serious concerns about the administration’s power grabs. One of the Constitution’s most comprehensive protections is the 10th Amendment, which puts a clear limit on the federal government’s reach. Ratified on December 15, 1791, it states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Despite these constitutional protections, our personal lives and state authority continue to be affected by federal oversteps. Like many individuals and businesses, we are frustrated by Washington’s red tape and sweeping bureaucratic authority. The president’s big-government agenda lacks transparency and accountability, intruding into our households, businesses, schools, and churches in alarming ways. The 2,700-page health-care law is a prime example of costly government interference, prompting the rise of health-care premiums and cancellations of insurance coverage. The same is true for onerous carbon dioxide rules that hurt U.S. energy independence and ultimately Americans’ wallets. Many of the president’s executive actions have ended up in the courts because of their overwhelming scope. Earlier this year, a federal judge issued a temporary injunction to block the president’s immigration plan until it can be settled in court. More than two-dozen states, including our home states of Mississippi and Texas, have joined the lawsuit against the administration, claiming that the immigration overhaul is a costly and burdensome violation of states’ rights. Our Founding Fathers foresaw the danger of unchecked federal power. In the Constitution, they set forth guiding principles to protect limited government in the new republic. The Bill of Rights, which includes the 10th Amendment, was added to allay fears that individual freedoms could be curtailed by federal encroachment. One wonders what our Founding Fathers would think of Washington today. The onslaught of regulations and executive orders from the Obama administration has chipped away at the 10th Amendment’s division of power, putting more control in bureaucratic hands than that of the people or the states. This executive overreach hardly reflects James Madison’s writings in The Federalist, which noted that the Constitution granted “few and defined” powers to the federal government and left “numerous and indefinite” power to the states. As elected officials, members of Congress have a responsibility to challenge excessive executive action, upholding the Constitution’s time-tested system of checks and balances. We believe the 10th Amendment is integral to this responsibility and the preservation of limited power. Our “Restoring the 10th Amendment Act” would give state government officials special standing in court to dispute regulations and executive orders proposed by a federal agency or the President. In other words, states would have the tools to push back against violations of the 10th Amendment, helping to restore individual liberty and limit the size, power, and cost of the federal government. For the past six years, the Obama administration has used executive measures to score partisan wins on controversial issues. This tactic denies Americans the right to open and transparent debate, one of the core elements of a functioning democracy. The “Restoring the 10th Amendment Act” would be an important step toward restoring accountability, protecting the spirit and letter of the Constitution, and reining in the federal government. Notice anything wrong? Send Silk feedback Post Comment   Private Reply   Ignore Thread   Top • Page Up • Full Thread • Page Down • Bottom/Latest #1. To: tpaine (#0) “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” What does the phrase "or to the people" mean? потому что Бог хочет это тот путь SOSO  posted on  2015-04-25   13:59:27 ET  Reply   Trace   Private Reply   #2. To: SOSO (#1) What does the phrase "or to the people" mean? Leave the people alone - unmolested by government - if they leave their neighbors alone. So what does "Leave their neighbors alone" mean? THAT is something to be debated by the Supreme Court until the sun burns out, or goes supernova. Whichever comes first. IMO. Chuck_Wagon  posted on  2015-04-25   15:03:35 ET  Reply   Trace   Private Reply   #3. To: SOSO (#1) What does the phrase "or to the people" mean? Whatever the Supreme Court says it means. Vicomte13  posted on  2015-04-25   15:17:06 ET  Reply   Trace   Private Reply   #4. To: SOSO (#1) "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” What does the phrase "or to the people" mean? The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people" [of the States]. In my opinion, the writers of our constitution deliberately made it as short as possible, in order to keep it simple. -- Thus, they would have seen ' of the States', -- as redundant. Obviously, to them, the people of the States held ALL the power within the State. The state itself has NO power except that which is delegated, constitutionally, by the people. tpaine  posted on  2015-04-25   15:23:21 ET  Reply   Trace   Private Reply   #5. To: Vicomte13 (#3) : SOSO (#1) --- What does the phrase "or to the people" mean? Whatever the Supreme Court says it means. --- Vicomte13 The SCOTUS only has the delegated power to issue opinions about the constitution, - as it applies to the case before it. ---- The court cannot change the meaning of the constitution, only amendments can do that. tpaine  posted on  2015-04-25   15:32:13 ET  Reply   Trace   Private Reply   #6. To: tpaine (#4) Obviously, to them, the people of the States held ALL the power within the State. Hardly obvious at all. It could just as easily mean the people of the U.S.. You are certainly entitled to you opinion but that does not mean that it is correct. потому что Бог хочет это тот путь SOSO  posted on  2015-04-25   17:05:56 ET  Reply   Trace   Private Reply   #7. To: tpaine, Vicomte13 (#5) SOSO (#1) --- What does the phrase "or to the people" mean? Whatever the Supreme Court says it means. --- Vicomte13 The SCOTUS only has the delegated power to issue opinions about the constitution, - as it applies to the case before it. ---- The court cannot change the meaning of the constitution, only amendments can do that. Vicomte13 is correct. Like it or not SCOTUS has the last word on what the Constitution means, and this applies to Amendments as well. потому что Бог хочет это тот путь SOSO  posted on  2015-04-25   17:07:58 ET  Reply   Trace   Private Reply   #8. To: SOSO (#6) What does the phrase "or to the people" mean? The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people" [of the States]. In my opinion, the writers of our constitution deliberately made it as short as possible, in order to keep it simple. -- Thus, they would have seen ' of the States', -- as redundant. Obviously, to them, the people of the States held ALL the power within the State. The state itself has NO power except that which is delegated, constitutionally, by the people. Hardly obvious at all. It could just as easily mean the people of the U.S.. The people of the United States are also (obviously) the same 'people of the States'. --- So, in that sense, you are right. You are certainly entitled to you opinion but that does not mean that it is correct. Obviously, you're right again! -- Thanks for playing gotcha... tpaine  posted on  2015-04-25   17:28:21 ET  Reply   Trace   Private Reply   #9. To: SOSO (#7) SOSO (#1) --- What does the phrase "or to the people" mean? ------- Whatever the Supreme Court says it means. --- Vicomte13 The SCOTUS only has the delegated power to issue opinions about the constitution, - as it applies to the case before it. ---- ---- The court cannot change the meaning of the constitution, only amendments can do that. Vicomte13 is correct. Like it or not SCOTUS has the last word on what the Constitution means, and this applies to Amendments as well. The constitution itself, in Art III, tells us the powers delegated to the SCOTUS.- - You should try reading it... tpaine  posted on  2015-04-25   17:37:48 ET  Reply   Trace   Private Reply   #10. To: tpaine (#9) The constitution itself, in Art III, tells us the powers delegated to the SCOTUS.- - You should try reading it... We all read it. We all think it means different things and we say so. Words are wind. But when the Supreme Court says so, the government of the USA and the States and cities and towns, and private corporations all do what the Supreme Court says. Therefore, the Supreme Court in fact has the final word on what the Constitution means, whether it "should" or not. Vicomte13  posted on  2015-04-25   18:48:27 ET  Reply   Trace   Private Reply   #11. To: Vicomte13 (#10) The constitution itself, in Art III, tells us the powers delegated to the SCOTUS.- - You should try reading it... We all read it. We all think it means different things and we say so. Words are wind. So try reading it for what it DOESN'T say. Nowhere in the document does it give the SCOTUS the power to specify what the constitution means. -- They can only issue opinions. But when the Supreme Court says so, the government of the USA and the States and cities and towns, and private corporations all do what the Supreme Court says. Simply not true. The Courts opinions are ignored and contested quite often, as per 'Dred Scott'... Therefore, the Supreme Court in fact has the final word on what the Constitution means, whether it "should" or not. I know that's the way you would like it to be, -- but I'm mystified why. tpaine  posted on  2015-04-25   19:43:02 ET  Reply   Trace   Private Reply   #12. To: tpaine (#9) The constitution itself, in Art III, tells us the powers delegated to the SCOTUS.- - You should try reading it... You demonstrate a paucity of knowlegde about our country's beginnings. The meaning of the Constitution started to be tested the first day of Washington's presidency, and started to be violated almost that same day. You should try reading about it. потому что Бог хочет это тот путь SOSO  posted on  2015-04-25   23:05:57 ET  Reply   Trace   Private Reply   #13. To: SOSO (#12) The meaning of the Constitution started to be tested the first day of Washington's presidency, and started to be violated almost that same day. You should try reading about it. Post your article, story, or a link. And I'll read it.. tpaine  posted on  2015-04-25   23:37:37 ET  Reply   Trace   Private Reply   #14. To: SOSO, tpaine (#6) Hardly obvious at all. It could just as easily mean the people of the U.S.. You are certainly entitled to you opinion but that does not mean that it is correct. Obvious enough when it was said and written. The consolidated people of the United States have never acted to do anything, not even to pass a referendum. The Republic of Republics, 4th Ed., Benjamin Janin Sage as P.C. Centz, Barrister, 1881, pages 373-381 https://archive.org/details/republicrepubli00sagegoog - - - - - 373 PART V. CITIZENSHIP, ALLEGIANCE, AND TREASON IN THE UNITED STATES. CHAPTER I. “THE PEOPLE” ARE SOVEREIGN STATES. TREATING the matter in the main historically, or rather by quoting the statements and opinions of the fathers, I shall maintain the following Fundamental Principles. — I. The people are the states, and, as such, they compose whatever nation there is; and the general government is the agency of the states, by and through which they exercise federal self-government. II. The fathers contemplated, and tried to forefend, the danger of the federal delegative authority increasing, to the control and final destruction of the states. III. Federal acts, outside of delegated powers, were to be treated as nullities, and, if attempted to be enforced, resisted as usurpations. IV. The federal government is not only without authority, but is actually prohibited, to coerce the state with arms, by legislation, or even judicially. V. The states in the union have the unlimited right of self-defence, even, if need be, against the federal agency. VI. To defend the state with arms, in obedience to her will, is the duty of the member or citizen, and is not treason in any sense, but is true loyalty. The reader will find the corollaries or considerations, involved iu this last and most important point, stated at the beginning of Chapter VI., infra; and he should by all means read them now, for thereby he can see, and measurably appreciate, the scope, if not the pith, of the whole great argument. The last point (VI.) is the citadel of American institutional liberty! - - - - - 374 CITIZENSHIP, ALLEGIANCE, AND TREASON. The States are the People and Polity. Point I. — The people are the states and, as such, they compose whatever nation there is; and the general government is the agency of the states, by and through which they exercise federal self-government. The people are states, and are sovereign, for they are republics, or self-governing bodies of people. They were never organized otherwise. Nor have they any capacity for political action, except as states; and it is they (and not their government, local or general), that hold, inherently and ab origine, the sovereign, exclusive, and unqualified right and power to govern all the people and territory within them. Just as they pre-existed, they were named and provided for in the federal constitution, as well as recognized as the sole parties to and actors under it; and the identical, original states now exist, unchanged in any particular. And the general government is their agency, for it is made up personally of their subjects, and it only possesses and acts by derivative and delegative power. All the foregoing parts of this work are devoted to the proof of the above proposition, so that I shall content myself here with two or three decisive quotations, fully covering the ground, simply to indicate this link of the chain, while emphasizing and reimpressing the vital truth it involves. Said Daniel Webster, in his speech of 1833: “The sovereignty of government is an idea belonging to the other side of the Atlantic. No such thing is known in North America, . . . But with us, all power is with the people. They alone are sovereign, and they erect what governments they please, and confer on them such power as they please.” George Ticknor Curtis states it as “the American doctrine” that all supreme power resides originally in the people, and that all governments are constituted by them as the agents and depositaries of that power.1 To the same effect, I quote from among numerous authorities before me, James Wilson’s statement in the Pennsylvania ratifying convention : “The supreme, absolute, and uncontrollable power is in the people, before they make a constitution, and remains in them 1 “Agents” do not act, or “depositaries” hold, for themselves. Hence, Mr. Curtis is solecistic in saying, as he does or seems to do, that they are the depositaries of sovereign authority, instead of “powers” delegated by the said authority. I accept his truth as an admission, and reject his mistake. - - - - - 375 “THE PEOPLE” ARE SOVEREIGN STATES. after it is made. . . . The sovereignty resides in the people, and it never leaves them.” [II. Ell. Deb. 432, et seq.] He meant the people as organized in societies or commonwealths, and not as a nation, for he spoke of “ thirteen independent sovereignties “ as the parties then deliberating and acting. [Mass. Centinel, Oct. 24, 1787; Am. Mus., Vol. I.] I conclude this point by referring to the numerous quotations made heretofore from Hamilton, Madison, Washington, Franklin, Adams, and the rest of the fathers, especially in Chapter VII. of Part I., and by repeating that the people are the states, and, as such, they compose whatever nation there is; and the “general government” is the ageney of the states, by and through whioh they exercise federal self-government. Q. E. D. - - - - - 376 CHAPTER II FEDERAL USURPATION TO BE FEARED AND OPPOSED. POINT II — The fathers contemplated, and tried to forefend, the danger of the federal delegative authority increasing, to the control and final destruction of the states. The use of undelegated power by the federal government, or the individuals thereof, involves their perjury and treason, for they are all sworn to support and obey the constitution, — such oath being, in effect, to use granted, and not use ungranted, powers, — the latter being “retained,” or “reserved,” by the sovereigns as their most precious treasures. And it was never dreamed of that federal officers — the elect of the people, and “the excellent of the earth” — could ever become such villains as to perjure themselves, and thus deprive the people of the great security against usurpation referred to by Webster when he said : ”The constitution, to preserve itself, lays hold of individual conscience and individual duty.” The tendency and end of such federal increment is necessarily to degrade, and finally to overthrow and destroy, the sovereigns of the country. Unfortunately, encroachments on reserved powers in a republic are insidious and unappreciated, until their sum amounts to revolution and the loss of liberty! When the federalizing of the states was under discussion, the great fear was that the general government might transcend its granted powers, to nationalize or consolidate them. The vehement attacks of Henry, Mason, Martin, Lowndes, Yates, and others, were nearly fatal. Every advocate of the new plan insisted on federalizing the states, and disavowed and denounced the idea of consolidating or nationalizing them. For example, the great Fisher Ames said, in the Massachusetts ratifying convention: “No argument against the new plan has made a deeper impression than this, that it will produce a consolidation of the states. This is an effect which all good men deprecate. . . . The state governments are essential parts of the system. . . . The senators represent the sovereignty of the states ... in the quality of ambassadors of states. . . . A consolidation of the states - - - - - 377 FEDERAL USURPATION TO BE FEARED AND OPPOSED. would subvert the new constitution, against which this very article [that providing for senators to serve six years] is our best security. Too much provision cannot be made against consolidation.” Said Chancellor Pendleton, in the convention of Virginia, in reference to this very objection: “If this be such a government, I will confess with my worthy friend [Patrick Henry] that it is inadmissible.” Similarly spoke others, in all the principal ratifying and delegating states; and no friend of the constitution ever dissented. The advocates of the plan, admitting that the federal functionaries were to be (not angels — but) men of average weakness and wickedness, showed the danger to be much overrated, and strove to ascertain it precisely, and forefend it. They argued, as will be hereafter seen, that there was no power whatever to coerce states in any manner; that the states had the right of self-defence, even against the federal government; that they only delegated power, or bound themselves in union, voluntarily, and could withdraw, or retract delegations at will; and, in short, that state integrity and sovereignty were secure. Carefully Guarding against Consolidation. — Nay, more, out of abundance of caution, the advocates, to prevent possible dangers, or, at all events, to remove doubts, proposed amendments. This over-caution was started in the Massachusetts convention, where, after long and animated debate, it was found that the opposition was likely to prevail. Thereupon a “conciliatory proposition “ was made by the federalizers, through John Hancock, the president, to the effect that the convention should ratify, with the understanding that the states should speedily make amendments. Chief among those proposed was the following: That “all powers not expressly delegated, are reserved to the several states, to be by them exercised.” But even then, though Samuel Adams, the great leader of the opposition, joined Hancock, and both expressed “full confidence” in the amendments being adopted, such were the fear and prejudice, that ratification was only carried by a majority of 19 in 355 votes. [II. Ell. Deb. 181.] And, indeed, so deep and widespread were the apprehension and doubt on this subject, that in several of the states the constitution was barely carried. And Hildreth, the Massachusetts historian, thinks, on a retrospect, that if a vote of the general people had been taken, the decision would have been adverse. This amendment was a mere truism, and was to give emphasis to what already existed in the nature of things; for actual delegations only were put in the plan; and the powers not put in were kept out, and, of course, retained by the commonwealths of people. Hence the amendment was needed only to enable the said people “clearly to see the distinction,” remove their fears, and give confidence and hope. - - - - - 378 CITIZENSHIP, ALLEGIANCE, AND TREASON. This is evident from the debate and the ordinance of ratification [see II. Ell. Deb. 122-177, et seq.]; and Samuel Adams wrote Elbridge Gerry and R. H. Lee, in congress, in 1789, pressing on the latter, “the importance of the amendments, that the good people may clearly see the distinction between the federal powers vested in congress, and the sovereign authority belonging to the several states, which is the palladium of the private and personal rights of the citizens;” and urging to the former, that “without such distinction, there will be danger of the constitution issuing imperceptibly and gradually into a consolidated government, over all the states, which, though it may be wished for by some, was reprobated in the idea by the highest advocates of the constitution as it stood without amendment” [See III. Life of Samuel Adams.] Numerous evidences of this view could be given. One will suffice. Said General C. C. Pinckney, in the debate on ratification in South Carolina: No powers can be “in the general government but what are expressly granted to it. By delegating express powers, we certainly reserve to ourselves every power and right not mentioned in the constitution.” Successively, South Carolina, New Hampshire, Virginia, and New York joined Massachusetts in her demand for this great amendment. And it is more than probable that the general approval of it, and the “full confidence” in its being adopted, caused the acquiescence in, and the adoption of, the new system. In the congress of 1789, resolutions proposing the amendments for the action of the states were passed, — the preamble setting forth that some of the states expressed, when they adopted the constitution, “a desire, in order to prevent misconstruction, or abuse of its powers, that further declaratory and restrictive clauses should be added;” and that “such clauses would tend to increase public confidence, and thereby help to the beneficent ends in view.” The Grand Result of the Movement may be stated thus: The charge that consolidation, or subordinating the states, was in the original instrument, was disproved. To make assurance doubly sure, that the government was to be always an agency of, and subordinate to, the states; to complete the harnessing and utilizing of the individual and collective personnel of the government; to emphasize their subjection to the law, and their inability to act without express and written warrant; and finally, to make coercion of the states, by their own subjects and agency, forever impossible, they — the said states — amended the constitution within the first few years of its history, as follows — thus putting the people’s seal of reprobation on, and forever preventing, all legislative, military, and judicial forms of coercion of commonwealths: — Amendment IX. provides, that the enumeration in 379 FEDERAL USURPATION TO BE FEARED AND OPPOSED. the constitution of certain rights, shall not be construed to deny or disparage others retained by the people; Amendment X., that the powers not delegated to the united states, or prohibited therein to the states, are reserved to the states or people;1 and Amendment XI, that there shall be no federal judicial coercion of a state at the suit of a citizen of any other state. [Please refer to Amendments IX., X., and XI] It is obvious that Amendment X, alone, in declaring that “all powers not delegated to the united states, are reserved,” etc., shows that the several states that delegated must be now absolutely sovereign; that they collectively are the sole recipients and trustees of the powers delegated by the individual states; and finally, that the whole grand federal polity rests solely on sacred international faith — the highest political sanction that is earthly and human; as well as the most likely to endure — if men have the right and capacity for self-organization and self-government. In closing this point, then, I beg leave to repeat, that the fathers contemplated, and tried to forefend, the danger of the federal delegative authority increasing, to the control and final destruction of the states. Q. E. D. 1 An important part of the perverting interpretation I am exposing, is that which tikes hold of the constitution with its profane hands, right at this point, and says that the powers not delegated are reserved to the nation — as if the thirteen organizations of people could severally ratify and delegate (as all the sacred records unequivocally say they did) and then and there, a nation of people, comprising the said “thirteen,” could ”retain” and ”reserve” those powers of the said states which they, the said states, did not delegate. Of course this is intended as a deception, or it is a gross mistake. Referring to Appendix E for the original forms of the 10th Amendment, to show what the meaning and intent of the people was; what they supposed they were declaring; and what common sense teaches they did declare; I will state, as the result of my investigation and thought, that the conclusion of the said amendment, means as if it read — reserved to the state governments respectively, or to the people of the states, who delegate the powers which are not reserved. See the proposition of Massachusetts, on which all the subsequently ratifying states acted, a few paragraphs above. - - - - - 380 CHAPTER III. USURPATIONS TO BE TREATED AS NULLITIES. POINT III.—Federal acts, outside of delegated powers, were to be treated as nullities, and — if attempted to be enforced — resisted as usurpations. Said Hamilton : “The laws of congress are restricted to a certain sphere, and when they depart from this sphere, they are no longer supreme or binding.” [II. Ell. Deb. 362.] Said Judge Parsons, “the celebrated chief justice,” as Judge Story calls him: “An increase of power by usurpation is clearly a violation of the federal constitution.” Again he said: “ An act of usurpation is not obligatory; it is not law.” And furthermore he said: the oath to support the constitution “obliges the officers of the several states” to oppose all such acts. And this great jurist and statesman contemplated opposition by arms, if necessary. [Ibid. 94.] Said Judge Iredell, afterwards supreme judge of the united states: “If congress, under pretence of executing one power, usurp another, they will violate the constitution;” and he further asserted that “a law of congress, not consistent with the constitution,” would “not be binding on the people.” [IV. Ibid. 179.] Massachusetts, as usual, caps the climax — she and Connecticut and Rhode Island having, in 1814 — as sovereigns — declared that “acts of congress, in violation of the constitution, are absolutely void.” From this doctrine there was no dissent among the fathers and the states, so that further quotations are not needed, though many pages might be given. Like any other agent, the moment it gets outside of its procuration on reserved ground, the federal government becomes a wrong-doer and trespasser. And, furthermore, it — being under oath — becomes perjured and deeply criminal. Hence, if there be no law for its restraint, it must be repelled vi et armis. And, indeed, Judge Parsons spoke of the resistance to be offered by the states as war! [II. Ell. Deb. 94.] It is well to observe that in self-government, every citizen, official or private, has legal and political, as well as moral, duties, which he - - - - - 381 USURPATIONS TO BE TREATED AS NULLITIES. must personally perform. His judgment and his conscience must decide each and every case presented for his action. His responsibility is individual here, just as much as it is in the hereafter. President Jefferson was right in his letter to the district attorney of New York, dated November 1, 1801, where he said: “I shall treat the sedition law as a nullity, wherever it comes in the way of my functions;” and President Jackson was right in saying, he had sworn to obey the constitution as he understood it, and that where a sworn or other duty was to be done, his judgment and conscience were to be his guide — precedents only influencing his mind according to their character, weight, and applicability. And this was President Johnson’s position, as discussed in his impeachment, that every official, and every citizen, has the right to refuse to obey any and every law, subject only to the danger of judgment and costs being given against him. And when a constitutional question is involved, it sometimes becomes a sacred duty to resist with lawful means, and — in extreme cases — by violence, especially in these times, when fraud and force are vitally attacking our most cherished institutions. With peculiar cogency, Webster’s words close the argument: “the constitution, to preserve itself,” “lays its hand on individual conscience and individual duty.” And the lofty phrase of the hero Jackson sounds in unison : “I swore to obey and protect the constitution as I [and not as others] understand it!” The responsibility for the God-given right of self-government being used correctly, is in individuals, and they must resist, either personally or collectively, as need may be. In government, they only act in the latter capacity; but they have all power, and theirs is the ultima ratio. This same conscience, and the same instinct of self-preservation, must be the prompters and guides, in either personal or social action. I conclude, then, that federal acts outside of delegated powers were to be treated as nullities, and —if attempted to be enforced — resisted as usurpations. Q. E. D. - - - - - nolu chan  posted on  2015-04-26   0:14:43 ET  Reply   Trace   Private Reply   #15. To: nolu chan, tpaine (#14) Obvious enough when it was said and written. Hardly. ....are reserved to the States respectively, or to the people.” Fundamental Principles. — I. The people are the states,....." I trust you note that the language of the Consitution clearly makes a distinction bewteen the State and the people. It clearly holds the two entitites as being separate and distinct from each other. To assertain what the authors meant by this language is a matter of construction based on assumptions that cannot be verified as absolute fact. For example, can you tell me what the Consitution means by the word person? I certainly can tell you what the Consitution means by the word citizen. I cghallenge you to do the same for person. потому что Бог хочет это тот путь SOSO  posted on  2015-04-26   16:08:44 ET  Reply   Trace   Private Reply   #16. To: tpaine (#13) Post your article, story, or a link. And I'll read it.. I an't believe you haven't already read about this. Pick up any reputable history book about the early days of the Republic and the first few presidents. потому что Бог хочет это тот путь SOSO  posted on  2015-04-26   16:10:50 ET  Reply   Trace   Private Reply   #17. To: SOSO (#16) The meaning of the Constitution started to be tested the first day of Washington's presidency, and started to be violated almost that same day. You should try reading about it. So you claim. -- Post your article, story, or a link. And I'll read it.. I an't believe you haven't already read about this. Pick up any reputable history book about the early days of the Republic and the first few presidents. Translation: -- 'I can't cite anything specific, so I'll fake a reply'. tpaine  posted on  2015-04-26   16:23:47 ET  Reply   Trace   Private Reply   #18. To: tpaine (#17) Translation: -- 'I can't cite anything specific, so I'll fake a reply'. Are you really that ignorant? Or perhaps just unintelligent? If so you won't understand anything that is referenced to you. I guess you never heard of things like the Whiskey Rebellion, Alien Sedition Act, Lousiana Purchase, etc., etc., etc. Out of pity of your ignorance I will just refer you to Madison vs. Marbury. Knock youself put, Sparky. потому что Бог хочет это тот путь SOSO  posted on  2015-04-26   16:31:47 ET  Reply   Trace   Private Reply   #19. To: nolu chan, tpaine (#14) "How far can the definition of Congress' enumerated powers be stretched? As Justice Scalia asked during oral arguments:" How far can the definition of Congress' enumerated powers be stretched? As Justice Scalia asked during oral arguments:................................... "the law shows that George Washington, who signed the law, thought that purchase-mandates were not intrinsically improper. If Congress can regulate a 'well-regulated' militia with a mandate, why can’t Congress regulate interstate commerce the same way?" Incidentally, that's not the only time an early congress mandated that Americans purchase privately sold products: In 1790, the very first Congress—which incidentally included 20 framers—passed a law that included a mandate: namely, a requirement that ship owners buy medical insurance for their seamen. This law was then signed by another framer: President George Washington. That’s right, the father of our country had no difficulty imposing a health insurance mandate.[...] Six years later, in 1798, Congress addressed the problem that the employer mandate to buy medical insurance for seamen covered drugs and physician services but not hospital stays. And you know what this Congress, with five framers serving in it, did? It enacted a federal law requiring the seamen to buy hospital insurance for themselves. That’s right, Congress enacted an individual mandate requiring the purchase of health insurance. And this act was signed by another founder, President John Adams." So what is your argument again? потому что Бог хочет это тот путь SOSO  posted on  2015-04-26   16:40:37 ET  Reply   Trace   Private Reply   #20. To: SOSO (#15) For example, can you tell me what the Consitution means by the word person? I certainly can tell you what the Consitution means by the word citizen. I cghallenge you to do the same for person. When they refer to the States, they refer to the political communities of people. If you can tell me what the Constitution means by the word citizen, go ahead and do so. The Fathers and Framers used the term the people in more than one context, and their intended meaning was clear to them. The People. — When the term the people is made use of in constitutional law or discussions, it is often the case that those only are intended who have a share in the government through being clothed with the elective franchise. Thus, the people elect delegates to a constitutional con­vention, and determine by their votes whether the com­pleted work of the convention shall or shall not be adopted; the people choose the officers under the constitution, and so on. For these and similar purposes the electors, though constituting but a small minority of the whole body of the community, nevertheless act for all, and, as being for the time the representatives of sover­eignty, they are considered and spoken of as the sovereign people. But in all the enumerations and guaranties of rights the whole people are intended, because the rights of all are equal, and are meant to be equally protected. In this case, therefore, the right to assemble is preserved to all the people, and not merely to the electors, or to any other class or classes of the people. [Italics in original, boldface added.] Thomas M Cooley, LL.D.; The General Principles of Constitutional Law in the United States of America; Boston; Little Brown, and Company; 1880; pages 267-268. nolu chan  posted on  2015-04-26   16:43:24 ET  Reply   Trace   Private Reply   #21. To: nolu chan (#20) If you can tell me what the Constitution means by the word citizen, go ahead and do so. Easy Amendment XIV SECTION. 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. Now please tell me what the Consitution means by the word person. потому что Бог хочет это тот путь SOSO  posted on  2015-04-26   17:01:22 ET  Reply   Trace   Private Reply   #22. To: nolu chan (#20) ....and their intended meaning was clear to them. I guess it sure was. The first words of the U.S. Consitution are "We the People of the United States.... Tell me again about how the collective people of the U.S. never did anything. потому что Бог хочет это тот путь SOSO  posted on  2015-04-26   17:04:37 ET  Reply   Trace   Private Reply   #23. To: SOSO (#18) (Edited) The constitution itself, in Art III, tells us the powers delegated to the SCOTUS.- - You should try reading it The meaning of the Constitution started to be tested the first day of Washington's presidency, and started to be violated almost that same day. You should try reading about it. So you claim. -- Post your article, story, or a link, make a point, and I'll read it and reply I an't believe you haven't already read about this. Pick up any reputable history book about the early days of the Republic and the first few presidents. Translation: -- 'I can't cite anything specific, so I'll fake a reply'. Are you really that ignorant? Or perhaps just unintelligent? If so you won't understand anything that is referenced to you. I guess you never heard of things like the Whiskey Rebellion, Alien Sedition Act, Lousiana Purchase, etc., etc., etc. Out of pity of your ignorance I will just refer you to Madison vs. Marbury. Fine, you're being specific, -- Madison vs Marbury, - correct? You claim that ; -- "The meaning of the Constitution started to be tested the first day of Washington's presidency, and started to be violated almost that same day. You should try reading about it." What exactly should I read about Marbury, or of the other specific topics you listed, that proves some specific point? Do you even have a specific point? Knock youself out, Sparky. -- But make a specific point that's debatable, or post more obvious generalities. tpaine  posted on  2015-04-26   17:26:44 ET  Reply   Trace   Private Reply   #24. To: SOSO, tpaine (#19) So what is your argument again? My first argument is that you used a prohibited large quote from the Washington Post. My second argument is that nobody was arguing the Obama individual mandate. My third argument is that the article you cribbed from Ezra Klein was dated June 26, 2012. What you overlook in quoting his socialist agenda is that on June 28, 2012, the United States Supreme Court ruled the Obamacare individual mandate unconstitutional as a penalty and upheld only under the plenary power to tax. http://www.supremecourt.gov/opinions/11pdf/11-393c3a2.pdf SUPREME COURT OF THE UNITED STATES Syllabus NATIONAL FEDERATION OF INDEPENDENT BUSINESS ET AL. v. SEBELIUS, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT No. 11–393. Argued March 26, 27, 28, 2012—Decided June 28, 2012* [At 2:] Held: The judgment is affirmed in part and reversed in part. 648 F. 3d 1235, affirmed in part and reversed in part. 1. CHIEF JUSTICE ROBERTS delivered the opinion of the Court with respect to Part II, concluding that the Anti-Injunction Act does not bar this suit. The Anti-Injunction Act provides that “no suit for the purpose of restraining the assessment or collection of any tax shall be main­tained in any court by any person,” 26 U. S. C. §7421(a), so that thosesubject to a tax must first pay it and then sue for a refund. The pre­sent challenge seeks to restrain the collection of the shared responsi­bility payment from those who do not comply with the individualmandate. But Congress did not intend the payment to be treated as a “tax” for purposes of the Anti-Injunction Act. The Affordable Care Act describes the payment as a “penalty,” not a “tax.” That label cannot control whether the payment is a tax for purposes of the Con­stitution, but it does determine the application of the Anti-Injunction Act. The Anti-Injunction Act therefore does not bar this suit. Pp. 11–15. 2. CHIEF JUSTICE ROBERTS concluded in Part III–A that the indi­vidual mandate is not a valid exercise of Congress’s power under the Commerce Clause and the Necessary and Proper Clause. Pp. 16–30. (a) The Constitution grants Congress the power to “regulate Commerce.” Art. I, §8, cl. 3 (emphasis added). The power to regulate commerce presupposes the existence of commercial activity to be reg­ulated. This Court’s precedent reflects this understanding: As ex­pansive as this Court’s cases construing the scope of the commerce 3 Cite as: 567 U. S. ____ (2012) Syllabus power have been, they uniformly describe the power as reaching “ac­tivity.” E.g., United States v. Lopez, 514 U. S. 549, 560. The individ­ual mandate, however, does not regulate existing commercial activi­ty. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce. Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. Con­gress already possesses expansive power to regulate what people do. Upholding the Affordable Care Act under the Commerce Clause would give Congress the same license to regulate what people do not do. The Framers knew the difference between doing something and doing nothing. They gave Congress the power to regulate commerce, not to compel it. Ignoring that distinction would undermine the prin­ciple that the Federal Government is a government of limited and enumerated powers. The individual mandate thus cannot be sus­tained under Congress’s power to “regulate Commerce.” Pp. 16–27. nolu chan  posted on  2015-04-26   20:33:26 ET  Reply   Trace   Private Reply   #25. To: SOSO (#21) Easy Amendment XIV SECTION. 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. The 14th Amendment is not exclusive and is only a partial declaration of who are citizens. Try again. nolu chan  posted on  2015-04-26   20:41:10 ET  Reply   Trace   Private Reply   #26. To: SOSO, tpaine (#19) If Congress can regulate a 'well-regulated' militia with a mandate, why can’t Congress regulate interstate commerce the same way? Because interstate commerce is not national defense. The grant of authority is different. And the Obamacare individual mandate only purported to regulate interstate commerce, a meritless legal argument that was rejected by the U.S. Supreme Court. In 1790, the very first Congress—which incidentally included 20 framers—passed a law that included a mandate: namely, a requirement that ship owners buy medical insurance for their seamen. Ezra Klein's assertion is quoted from Einer Elhauge. The Elhauge comment appeared in The New Republic here, If Health Insurance Mandates Are Unconstitutional, Why Did the Founding Fathers Back Them? of April 13, 2012. Below is an extract of An Act for the government and regulation of Seamen in the merchants service, of July 20, 1790, consisting of Section 8 regarding Seamen in the merchants service and medical provisions aboard ship. Sec. 8. And be it [further] enacted, That every ship or vessel belonging to a citizen or citizens of the United States, of the burthen of one hundred and fifty tons or upwards, navigated by ten or more persons in the whole, and bound on a voyage without the limits of the United States, shall be provided with a chest of medicines, put up by some apothecary of known reputation, and accompanied by directions for administering the same; and the said medicines shall be examined by the same or some other apothecary, once at least in every year, and supplied with fresh medicines in the place of such as shall have been used or spoiled; and in default of having such medicine chest so provided, and kept fit for use, the master or commander of such ship or vessel shall provide and pay for all such advice, medicine, or attendance of physicians, as any of the crew shall stand in need of in case of sickness, at every port or place where the ship or vessel may touch or trade at during the voyage, without any deduction from the wages of such sick seaman or mariner.(a) (a) The act of Congress of July 20, 1790, for the government and regulation of seamen in the merchant service, has not changed the maritime law, except, perhaps, so far as respects medicines and medical advice, when there is a proper medicine chest, and medical directions on board the vessel. The charges for nursing and lodging are not affected by the act. Harden v. Gordon et al., 2 Mason, 541. The expense of curing a sick seaman, in the course of a voyage, is a charge on the ship by the maritime law. Ibid. The onus probandi in respect to the sufficiency of the medicine chest, lies on the owner, in an action by the seamen for wages. Ibid. A stipulation that the seamen shall pay for medical advice and medicine, without any condition that there shall be a suitable medicine chest, &c, is void as contrary to the act of Congress. Ibid. When a seaman at a foreign port, contracts an ordinary disease, without any fault of his own, and remains on board a vessel which is properly provided with a medicine chest, the expense of a physician, if necessary for the safety of his life is to be deducted from his wages. Holmes v. Hutchinson, Gilpin’s Rep. 448. Ezra Klein quoted Einer Elhauge Six years later, in 1798, Congress addressed the problem that the employer mandate to buy medical insurance for seamen covered drugs and physician services but not hospital stays. Here is the alleged law with the alleged employer mandate to buy medical insurance for seaman covered drugs and physician services but not hospital stays. 605 FIFTH CONGRESS. Sess. II. Ch. 77. 1798. Statute II. Chap. LXXVII.—An Act for the relief of sick and disabled Seamen.(a) Section I. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That from and after the first day of September next, the master or owner of every ship or vessel of the United States, arriving from a foreign port into any port of the United States, shall, before such ship or vessel shall be admitted to an entry, render to the collector a true account of the number of seamen, that shall have been employed on board such vessel since she was last entered at any port in the United States,—and shall pay to the said collector, at the rate of twenty cents per month for every __________ (a) The acts passed by Congress, for the relief of sick and disabled seamen, have been ; An act for the relief of sick and disabled seamen, July 16, 1798, chap. 77; an act in addition to an act for the relief and protection of American seamen, March 2, 1799, chap. 36; an act for the relief and protection of American seamen, May 28, 1796, chap. 36; an act supplementary to the "act concerning consuls and vice consuls," and for the further protection of American seamen, February 28, 1803, chap. 9. 606 FIFTH CONGRESS. Sess. II. Ch. 77. 1798. seaman so employed; which sum he is hereby authorized to retain out of the wages of such seamen. Sec. 2. And be it further enacted, That from and after the first day of September next, no collector shall grant to any ship or vessel whose enrolment or license for carrying on the coasting trade has expired, a new enrolment or license before the master of such ship or vessel shall first render a true account to the collector, of the number of seamen, and the time they have severally been employed on board such ship or vessel, during the continuance of the license which has so expired, and pay to such collector twenty cents per month for every month such seamen have been severally employed, as aforesaid; which sum the said master is hereby authorized to retain out of the wages of such seamen. And if any such master shall render a false account of the number of men, and the length of time they have severally been employed, as is herein required, he shall forfeit and pay one hundred dollars. Sec. 3. And be it further enacted, That it shall be the duty of the several collectors to make a quarterly return of the sums collected by them, respectively, by virtue of this act, to the Secretary of the Treasury; and the President of the United States is hereby authorized, out of the same, to provide for the temporary relief and maintenance of sick or disabled seamen, in the hospitals or other proper institutions now estab-lished in the several ports of the United States, or, in ports where no such institutions exist, then in such other manner as he shall direct: Provided, that the monies collected in any one district, shall be expended within the same. Sec. 4. And be it further enacted, That if any surplus shall remain of the monies to be collected by virtue of this act, after defraying the expense of such temporary relief and support, that the same, together with such private donations as may be made for that purpose (which the President is hereby authorized to receive) shall be invested in the stock of the United States, under the direction of the President; and when, in his opinion, a sufficient fund shall be accumulated, he is hereby authorized to purchase or receive cessions or donations of ground or buildings, in the name of the United States, and to cause buildings, when necessary, to be erected as hospitals for the accommodation of sick and disabled seamen. Sec. 5. And be it further enacted, That the President of the United States be, and he is hereby authorized to nominate and appoint, in such ports of the United States, as he may think proper, one or more persons, to be called directors of the marine hospital of the United States, whose duty it shall be to direct the expenditure of the fund assigned for their respective ports, according to the third section of this act; to provide for the accommodation of sick and disabled seamen, under such general instructions as shall be given by the President of the United States, for that purpose, and also subject to the like general instructions, to direct and govern such hospitals as the President may direct to be built in the respective ports: and that the said directors shall hold their offices during the pleasure of the President, who is authorized to fill up all vacancies that may be occasioned by the death or removal of any of the persons so to be appointed. And the said directors shall render an account of the monies received and expended by them, once in every quarter of a year, to the Secretary of the Treasury, or such other person as the President shall direct; but no other allowance or compensation shall be made to the said directors, except the payment of such expenses as they may incur in the actual discharge of the duties required by this act. Approved, July 16, 1798. nolu chan  posted on  2015-04-26   21:00:17 ET  Reply   Trace   Private Reply   #27. To: SOSO (#22) I guess it sure was. The first words of the U.S. Consitution are "We the People of the United States.... Tell me again about how the collective people of the U.S. never did anything. Tell me how the consolidated, collective people of the United States ever did anything. The collective people of the United States did not draft or ratify the Constitution. The Union under the Articles of Confederation contained 13 states. After Washington was inaugurated, the new constitutional union was a union of 11 ratifying states. nolu chan  posted on  2015-04-26   21:05:13 ET  Reply   Trace   Private Reply   #28. To: nolu chan (#25) The 14th Amendment is not exclusive and is only a partial declaration of who are citizens. Try again. As soon as you give me the Consitution's meaning of the word person. You can keep dancing all night and I will keep challenging to you to answer my question which you now ducked how many times? потому что Бог хочет это тот путь SOSO  posted on  2015-04-26   21:38:42 ET  Reply   Trace   Private Reply   #29. To: nolu chan (#27) The collective people of the United States did not draft or ratify the Constitution. Then how do contemporary US politicians truthfully remark that they are performing: "the will of the People?" buckeroo  posted on  2015-04-26   21:42:11 ET  Reply   Trace   Private Reply   #30. To: nolu chan, tpaine (#27) Tell me how the consolidated, collective people of the United States ever did anything. First, as soon as you tell me the meaning of person in the Constitution. Second, I just proved the contention that people meant the States as you claimed more than once is inaccurate. Do you not understand what We The People of The United States means, the very first words of the U.S. Constitution? To who were the Founding Fathers referring? Themselves? The States? Explain to me to who the Rights enumerated in the Bill of Rights accure. The individual States? The people of the respective States? Or to the People of the U.S. collectively, whether a citizen or not? Third, it must be very tiring going that far you your asses to pull out the nonesense you are trying to peddle. Fourth, the plain simple truth is none of the framers, signatories or ratifiers of the U.S. Constitution had a clear and accurate understanding of what the Consitution meant, much less was there total agreement on what the intention was other than to deliberately make the language less than definitive, to make the language flexible and subject to interpretation. Fifth, at least one of you is a total disingenous idiot in pretending not to know that Executive and Legislative Branches, partically the Executive, starting pushing the limits of their respective authorities under the Constitution virtually from day one of Washington's presidency. It's incredible that all that dolt can do is continue to babble horse crap of not making a point when I have made it crystal clear and will do again below. Perhaps both of you don't understand that the de facto meaning of the Consitution was, and continues to be, defined by testing it with actions. Historically it has been the Executive Office that has pushed the boundardies, but not exclusively. And guess what, when there was no push back voila the power that was claimed de facto became constitutional. That is an indisputable fact of how we got to where we are today, i.e. an ever more poweful and unchecked Imperial Presidency, an ever more powerful and unchecked Federal government, the ever diminishing power of the States, and, ever changing, redefinition of individual rights. потому что Бог хочет это тот путь SOSO  posted on  2015-04-26   22:10:37 ET  Reply   Trace   Private Reply   #31. To: SOSO, tpaine (#19) "How far can the definition of Congress' enumerated powers be stretched? As Justice Scalia asked during oral arguments:" How far can the definition of Congress' enumerated powers be stretched? As Justice Scalia asked during oral arguments:................................... "the law shows that George Washington, who signed the law, thought that purchase-mandates were not intrinsically improper. If Congress can regulate a 'well-regulated' militia with a mandate, why can’t Congress regulate interstate commerce the same way?" People not familiar with these statements might just be led to believe that Justice Antonin Scalia said such a thing. "the law shows that George Washington, who signed the law, thought that purchase-mandates were not intrinsically improper. If Congress can regulate a 'well-regulated' militia with a mandate, why can’t Congress regulate interstate commerce the same way?" That part is a quote from Akhil Reed Amar. Scalia and other conservative justices eviscerated the meritless argument of Solicitor General Donald Verrilli. JUSTICE KENNEDY: I'm not sure which way it cuts. If the Congress has alternate means, let's assume it can use the tax power to raise revenue and to just have a national health service, single payer. How does that factor into our analysis? In the one sense, it can be argued that this is what the government is doing; it ought to be honest about the power that it's using and use the correct power. On the other hand, it means that since the Court can do it anyway — Congress can do it anyway, we give a certain amount of latitude. I'm not sure which the way the argument goes. GENERAL VERRILLI: Let me try to answer that question, Justice Kennedy, and get back to the question you asked me earlier. The, the — I do think one striking feature of the argument here that this is a novel exercise of power is that what Congress chose to do was to rely on market mechanisms and efficiency and a method that has more choice than would the traditional Medicare/Medicaid type model; and so it seems a little ironic to suggest that that counts against it. But beyond that, in the sense that it's novel, this provision is novel in the same way, or unprecedented in the same way, that the Sherman Act was unprecedented when the Court upheld it in the Northern Securities case; or the Packers and Stockyards Act was unprecedented when the Court upheld it, or the National Labor Relations Act was unprecedented when the Court upheld it in Jones and Laughlin; or the — the dairy price supports in Wrightwood Dairy and Rock Royal - JUSTICE SCALIA: Oh, no, it's not. They all involved commerce. There was no doubt that was what regulated was commerce. And here you're regulating somebody who isn't covered. By the way, I don't agree with you that the relevant market here is health care. You're not regulating health care. You're regulating insurance. It's the insurance market that you're addressing and you're saying that some people who are not in it must be in it and that's — that's difference from regulating in any manner commerce that already exists out there. GENERAL VERRILLI: Well, to the extent that we are looking at the comprehensive scheme, Justice Scalia, it is regulating commerce that already exists out there. And the means in which that regulation is made effective here, the minimum coverage provision, is a regulation of the way in which people participate, the method of their payment in the health care market. That is what it is. And I do think, Justice Kennedy, getting back to the question you asked before, what — what matters here is whether Congress is choosing a tool that's reasonably adapted to the problem that Congress is confronting. And that may mean that the tool is different from a tool that Congress has chosen to use in the past. That's not something that counts against the provision in a Commerce Clause analysis. JUSTICE SCALIA: Wait. That's — that's --it's both "Necessary and Proper." What you just said addresses what's necessary. Yes, has to be reasonably adapted. Necessary does not mean essential, just reasonably adapted. But in addition to being necessary, it has to be proper. And we've held in two cases that something that was reasonably adapted was not proper because it violated the sovereignty of the States, which was implicit in the constitutional structure. The argument here is that this also is — may be necessary, but it's not proper because it violates an equally evident principle in the Constitution, which is that the Federal Government is not supposed to be a government that has all powers; that it's supposed to be a government of limited powers. And that's what all this questioning has been about. What — what is left? If the government can do this, what, what else can it not do? GENERAL VERRILLI: This does not violate the norm of proper as this Court articulated it in Printz or in New York because it does not interfere with the States as sovereigns. This is a regulation that — this is a regulation - JUSTICE SCALIA: No, that wasn't my point. That is not the only constitutional principle that exists. GENERAL VERRILLI: But it - JUSTICE SCALIA: An equally evident constitutional principle is the principle that the Federal Government is a government of enumerated powers and that the vast majority of powers remain in the States and do not belong to the Federal Government. Do you acknowledge that that's a principle? GENERAL VERRILLI: Of course we do, Your Honor. JUSTICE SCALIA: Okay. That's what we are talking about here. GENERAL VERRILLI: And the way in which this Court in its cases has policed the boundary that — of what's in the national sphere and what's in the local sphere is to ask whether Congress is regulating economic activity with a substantial effect on interstate commerce. And here I think it's really impossible, in view of our history, to say that Congress is invading the State sphere. This is a — this is a market in which 50 percent of the people in this country get their health care through their employer. There is a massive Federal tax subsidy of $250 billion a year that makes that much more affordable. ERISA and HIPAA regulate that to ensure that the kinds of bans on pre-existing condition discrimination and pricing practices that occur in the individual market don't occur. JUSTICE SCALIA: I don't understand your - GENERAL VERRILLI: This is in - JUSTICE SCALIA: Whatever the States have chosen not to do, the Federal Government can do? GENERAL VERRILLI: No, not at all. JUSTICE SCALIA: I mean, the Tenth Amendment says the powers not given to the Federal Government are reserved, not just to the States, but to the States and the people. And the argument here is that the people were left to decide whether they want to buy insurance or not. GENERAL VERRILLI: But this — but, Your Honor, this is — what the Court has said, and I think it would be a very substantial departure from what the Court has said, is that when Congress is regulating economic activity with a substantial effect on interstate commerce that will be upheld. And that is what is going on here, and to embark on — I would submit with all due respect, to embark on the kind of analysis that my friends on the other side suggest the Court ought to embark on is to import Lochner-style substantive due process - CHIEF JUSTICE ROBERTS: The key in Lochner is that we were talking about regulation of the States, right, and the States are not limited to enumerated powers. The Federal Government is. And it seems to me it's an entirely different question when you ask yourself whether or not there are going to be limits in the Federal power, as opposed to limits on the States, which was the issue in Lochner. - - - - - JUSTICE SCALIA: Why do you — why do you define the market that broadly? Health care. It may well be that everybody needs health care sooner or later, but not everybody needs a heart transplant, not everybody needs a liver transplant. Why - GENERAL VERRILLI: That's correct, Justice Scalia, but you never know whether you're going to be that person. JUSTICE SCALIA: Could you define the market — everybody has to buy food sooner or later, so you define the market as food, therefore, everybody is in the market; therefore, you can make people buy broccoli. GENERAL VERRILLI: No, that's quite different. That's quite different. The food market, while it shares that trait that everybody's in it, it is not a market in which your participation is often unpredictable and often involuntary. It is not a market in which you often don't know before you go in what you need, and it is not a market in which, if you go in and — and seek to obtain a product or service, you will get it even if you can't pay for it. It doesn't - JUSTICE SCALIA: Is that a principal basis for distinguishing this from other situations? I mean, you know, you can also say, well, the person subject to this has blue eyes. That would indeed distinguish it from other situations. Is it a principle basis? I mean, it's — it's a basis that explains why the government is doing this, but is it — is it a basis which shows that this is not going beyond what — what the — the system of enumerated powers allows the government to do. GENERAL VERRILLI: Yes, for two reasons. First, this — the test, as this Court has articulated it, is: Is Congress regulating economic activity with a substantial effect on interstate commerce? - - - - - GENERAL VERRILLI: That — that absolutely is a justification for Congress's action here. That is existing economic activity that Congress is regulating by means of this rule. JUSTICE SCALIA: General Verrilli, you --you could say that about buying a car. If — if people don't buy cars, the price that those who do buy cars pay will have to be higher. So you could say in order to bring the price down, you are hurting these other people by not buying a car. GENERAL VERRILLI: That is not what we are saying, Justice Scalia. JUSTICE SCALIA: That's not — that's not what you're saying. GENERAL VERRILLI: That's not — not - JUSTICE SCALIA: I thought it was. I thought you were saying other people are going to have to pay more for insurance because you're not buying it. GENERAL VERRILLI: No. It's because you're going — in the health care market, you're going into the market without the ability to pay for what you get, getting the health care service anyway as a result of the social norms that allow — that — to which we've obligated ourselves so that people get health care. JUSTICE SCALIA: Well, don't obligate yourself to that. Why — you know? GENERAL VERRILLI: Well, I can't imagine that that — that the Commerce Clause would —would forbid Congress from taking into account this deeply embedded social norm. JUSTICE SCALIA: You — you could do it. But — but does that expand your ability to, to issue mandates to — to the people? GENERAL VERRILLI: I — I — this is not a purchase mandate. This is a — this is a law that regulates the method of paying for a service that the class of people to whom it applies are either consuming -- - - - - - JUSTICE KENNEDY: Can you create commerce in order to regulate it? GENERAL VERRILLI: That's not what's going on here, Justice Kennedy, and we are not seeking to defend the law on that basis. In this case, the — what is being regulated is the method of financing health, the purchase of health care. That itself is economic activity with substantial effects on interstate commerce. And -- JUSTICE SCALIA: Any self purchasing? Anything I — you know if I'm in any market at all, my failure to purchase something in that market subjects me to regulation. GENERAL VERRILLI: No. That's not our position at all, Justice Scalia. In the health care market, the health care market is characterized by the fact that aside from the few groups that Congress chose to exempt from the minimum coverage requirement — those who for religious reasons don't participate, those who are incarcerated, Indian tribes — virtually everybody else is either in that market or will be in that market, and the distinguishing feature of that is that they cannot, people cannot generally control when they enter that market or what they need when they enter that market. CHIEF JUSTICE ROBERTS: Well, the same, it seems to me, would be true say for the market in emergency services: police, fire, ambulance, roadside assistance, whatever. You don't know when you're going to need it; you're not sure that you will. But the same is true for health care. You don't know if you're going to need a heart transplant or if you ever will. So there is a market there. To — in some extent, we all participate in it. So can the government require you to buy a cell phone because that would facilitate responding when you need emergency services? You can just dial 911 no matter where you are? GENERAL VERRILLI: No, Mr. Chief Justice. think that's different. It's — We — I don't think we think of that as a market. This is a market. This is market regulation. And in addition, you have a situation in this market not only where people enter involuntarily as to when they enter and won't be able to control what they need when they enter but when they - CHIEF JUSTICE ROBERTS: It seems to me that's the same as in my hypothetical. You don't know when you're going to need police assistance. You can't predict the extent to emergency response that you'll need. But when you do, and the government provides it. I thought that was an important part of your argument, that when you need health care, the government will make sure you get it. Well, when you need police assistance or fire assistance or ambulance assistance, the government is going to make sure to the best extent it can that you get it — get it. GENERAL VERRILLI: I think the fundamental difference, Mr. Chief Justice, is that that's not an issue of market regulation. This is an issue of market regulation, and that's how Congress, that's how Congress looked at this problem. There is a market. Insurance is provided through the market system - JUSTICE ALITO: Do you think there is a, a market for burial services? GENERAL VERRILLI: For burial services? JUSTICE ALITO: Yes. GENERAL VERRILLI: Yes, Justice Alito, I think there is. JUSTICE ALITO: All right, suppose that you and I walked around downtown Washington at lunch hour and we found a couple of healthy young people and we stopped them and we said, "You know what you're doing? You are financing your burial services right now because eventually you're going to die, and somebody is going to have to pay for it, and if you don't have burial insurance and you haven't saved money for it, you're going to shift the cost to somebody else." Isn't that a very artificial way of talking about what somebody is doing? GENERAL VERRILLI: No, that - JUSTICE ALITO: And if that's true, why isn't it equally artificial to say that somebody who is doing absolutely nothing about health care is financing health care services? GENERAL VERRILLI: It's, I think it's completely different. The — and the reason is that the, the burial example is not — the difference is here we are regulating the method by which you are paying for something else — health care — and the insurance requirement — I think the key thing here is my friends on the other side acknowledge that it is within the authority of Congress under Article I under the commerce power to impose guaranteed-issue and community rating forms, to end — to impose a minimum coverage provision. Their argument is just that it has to occur at the point of sale, and -- JUSTICE ALITO: I don't see the difference. You can get burial insurance. You can get health insurance. Most people are going to need health care. Almost everybody. Everybody is going to be buried or cremated at some point. What's the difference? GENERAL VERRILLI: Well, one big difference, one big difference, Justice Alito, is the — you don't have the cost shifting to other market participants. Here -- JUSTICE ALITO: Sure you do, because if you don't have money then the State is going to pay for it. Or some -- GENERAL VERRILLI: That's different. JUSTICE ALITO: Or a family member is going to pay. GENERAL VERRILLI: That's a difference and it's a significant difference. In this situation one of the economic effects Congress is addressing is that the — there — the many billions of dollars of uncompensated costs are transferred directly to other market participants. It's transferred directly to other market participants because health care providers charge higher rates in order to cover the cost of uncompensated care, and insurance companies reflect those higher rates in higher premiums, which Congress found translates to a thousand dollars per family in additional health insurance costs. JUSTICE ALITO: But isn't that a very small part of what the mandate is doing? You can correct me if these figures are wrong, but it appears to me that the CBO has estimated that the average premium for a single insurance policy in the non-group market would be roughly $5,800 in — in 2016. Respondents — the economists have supported — the Respondents estimate that a young, healthy individual targeted by the mandate on average consumes about $854 in health services each year. So the mandate is forcing these people to provide a huge subsidy to the insurance companies for other purposes that the act wishes to serve, but isn't — if those figures are right, isn't it the case that what this mandate is really doing is not requiring the people who are subject to it to pay for the services that they are going to consume? It is requiring them to subsidize services that will be received by somebody else. GENERAL VERRILLI: No, I think that — I do think that's what the Respondents argue. It's just not right. I think it — it really gets to a fundamental problem with their argument. nolu chan  posted on  2015-04-26   23:16:44 ET  Reply   Trace   Private Reply   #32. To: SOSO (#28) [SOSO #28] As soon as you give me the Consitution's meaning of the word person. You can keep dancing all night and I will keep challenging to you to answer my question which you now ducked how many times? A human being from birth to death. Courts consider corporations and similar entities as fictional persons for legal purposes. You are invited to share your insight into the Court's opinion in Santa Clara County v. Southern Pacific R. Co., 118 U.S. 394 (1886). [SOSO #15] For example, can you tell me what the Consitution means by the word person? I certainly can tell you what the Consitution means by the word citizen. I cghallenge you to do the same for person. [SOSO #21] Easy Amendment XIV SECTION. 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. If that is the definition of citizen, there were no defined citizens before 1868. Moreover, persons born overseas to U.S. parents become natural born U.S. citizens at birth. They are not born in the United States nor are they naturalized. You volunteered to share your knowledge about citizenship. nolu chan  posted on  2015-04-26   23:37:58 ET  Reply   Trace   Private Reply   #33. To: SOSO (#30) First, --- you tell me the meaning of person in the Constitution. No, not untill you explain what would be the point of doing so. Second, I just proved the contention that people meant the States as you claimed more than once is inaccurate. You may think you proved something, but I doubt it. Do you not understand what We The People of The United States means, the very first words of the U.S. Constitution? To who were the Founding Fathers referring? Themselves? The States? Explain to me to who the Rights enumerated in the Bill of Rights accure. The individual States? The people of the respective States? Or to the People of the U.S. collectively, whether a citizen or not? Sorry, but your multi question demand will not be answered tonite.. Give me a day or so to write the multi-thousand word book length reply. Third, it must be very tiring going that far you your asses to pull out the nonesense you are trying to peddle. The only nonsense here is the pointless generalities you've posted so far. Fourth, the plain simple truth is none of the framers, signatories or ratifiers of the U.S. Constitution had a clear and accurate understanding of what the Consitution meant, much less was there total agreement on what the intention was other than to deliberately make the language less than definitive, to make the language flexible and subject to interpretation. Finally! - A specific opinion about what you think of our constitution and its framers.. Where did you come up with such a bizarre interpretation? Fifth, at least one of you is a total disingenous idiot in pretending not to know that Executive and Legislative Branches, partically the Executive, starting pushing the limits of their respective authorities under the Constitution virtually from day one of Washington's presidency. It's incredible that all that dolt can do is continue to babble horse crap of not making a point when I have made it crystal clear and will do again below. I'm holding my breath for 'the point'... Perhaps both of you don't understand that the de facto meaning of the Consitution was, and continues to be, defined by testing it with actions. That's your point? That the real meaning of our constitution is defined by how it's tested? -- Weird reasoning, and you're right, I can't understand it.. Historically it has been the Executive Office that has pushed the boundardies, but not exclusively. And guess what, when there was no push back voila the power that was claimed de facto became constitutional. That is an indisputable fact of how we got to where we are today, i.e. an ever more poweful and unchecked Imperial Presidency, an ever more powerful and unchecked Federal government, the ever diminishing power of the States, and, ever changing, redefinition of individual rights. Well, I asked for specifics, and you finally gave them. Now I just have to figure out how to formulate a reasonable response to an unreasonable theory. --- Maybe tomorrow.. tpaine  posted on  2015-04-27   0:04:59 ET  Reply   Trace   Private Reply   #34. To: nolu chan (#32) [SOSO #28] As soon as you give me the Consitution's meaning of the word person. You can keep dancing all night and I will keep challenging to you to answer my question which you now ducked how many times? A human being from birth to death. Please give the specific citint/language in the Constitution that says a person is a human being from birth to death. потому что Бог хочет это тот путь SOSO  posted on  2015-04-27   0:35:38 ET  Reply   Trace   Private Reply   #35. To: tpaine (#33) Perhaps both of you don't understand that the de facto meaning of the Consitution was, and continues to be, defined by testing it with actions. That's your point? That the real meaning of our constitution is defined by how it's tested? Not how its tested but what is tested. Man are you dense. потому что Бог хочет это тот путь SOSO  posted on  2015-04-27   0:37:27 ET  Reply   Trace   Private Reply   #36. To: buckeroo (#29) The collective people of the United States did not draft or ratify the Constitution. Then how do contemporary US politicians truthfully remark that they are performing: "the will of the People?" Contemporary US politicians do not truthfully remark much at all. If you like your doctor, you can keep your doctor. Period. If you like your plan, you can keep your plan. Period. They lie. Shocker! There has never been a national referendum to decide anything. Whether to elect a president or to amend the Constitution, the people act, and can only act, as States. Only 12 states even participated in the Constitutional Convention. Only 11 states ratified before Washington was inaugurated. Only 10 states participated in the electoral college. There was no popular vote. There were a few more presidential elections with no popular vote. There is no individual right to vote for president. It is up to the State legislatures to designate how the election is done. The State can change its laws and go back to having the State legislature select the delegates for the Electoral College. The people of the United States have no power to do anything as one big consolidated political community. nolu chan  posted on  2015-04-27   0:38:14 ET  Reply   Trace   Private Reply   #37. To: tpaine (#33) Sorry, but your multi question demand will not be answered tonite.. Give me a day or so to write the multi-thousand word book length reply. LMAO. That's very Linconesque of you. потому что Бог хочет это тот путь SOSO  posted on  2015-04-27   0:38:38 ET  Reply   Trace   Private Reply   #38. To: SOSO (#34) Please give the specific citint/language in the Constitution that says a person is a human being from birth to death. No. It is long past time for you to answer questions. nolu chan  posted on  2015-04-27   0:39:09 ET  Reply   Trace   Private Reply   #39. To: SOSO (#35) -- you don't understand that the de facto meaning of the Consitution was, and continues to be, defined by testing it with actions. That's your point? That the real meaning of our constitution is defined by how it's tested? Not how its tested but what is tested. That's your point? That the real meaning of our constitution is defined by how it's tested? -- Or by what is tested? Man are you dense. Man, are you pedantic. tpaine  posted on  2015-04-27   0:49:40 ET  Reply   Trace   Private Reply   #40. To: SOSO (#37) Sorry, but your multi question demand will not be answered tonite.. Give me a day or so to write the multi-thousand word book length reply. LMAO. That's very Linconesque of you. Your gullibility aside, thanks for the compliment.. tpaine  posted on  2015-04-27   0:52:16 ET  Reply   Trace   Private Reply   #41. To: nolu chan (#38) Please give the specific citint/language in the Constitution that says a person is a human being from birth to death. No. It is long past time for you to answer questions. Stop playing games. You know quite well that you can't defend your answer as the Constitution does not define person at all. The best we can do is to infer what the FF meant by the term in the context of specific usage, which opens the door wide to interpretation and assumptions. Confounding the issue us that sometimes person is spelled with an upper case p and sometimes a lower case p. It is long past time for you to answer questions. Ask away. потому что Бог хочет это тот путь SOSO  posted on  2015-04-27   0:56:29 ET  Reply   Trace   Private Reply         .       .       . Comments (42 - 72) not displayed. Top • Page Up • Full Thread • Page Down • Bottom/Latest

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