A Different Take On The Constitutionality Of ObamaCare

The Daily Caller posted an article today about changes made to ObamaCare by Congress. The article reminds us that in 2017, the Republican-majority Congress did not have the votes to repeal the ACA, but did set the individual mandate penalty at zero. They didn’t repeal it, but they took the teeth out of it.

The article then reminds of the Supreme Court’s decision on ObamaCare:

In 2012, the five conservative justices on the United States Supreme Court (including Chief justice John Roberts) held that key portions of the Affordable Care Act (ACA) exceeded Congress’s constitutional authority under the Commerce Clause. But, Chief Justice Roberts then joined the four liberal justices on the Court in upholding the ACA as a tax under Congress’s taxing power because it generated revenue for the federal government.

The question then becomes, “If ObamaCare is no longer generating revenue, is it still a tax?’ If it is no longer a tax, does it still fall under the Commerce Clause?”

The article states:

A recent op-ed at The Federalist claims that striking down the ACA would be “judicial activism.” The article doesn’t defend the ACA as constitutional, but argues that conservatives shouldn’t ask “unelected judges to do what elected members of Congress took great pains to avoid.”

Such a broad view of “judicial activism” would render virtually any judicial review out of bounds. More importantly, it is contrary to the very system of checks and balances set up by the Founders in the Constitution. There is no Constitutional duty to persuade a majority of Congress to stop violating the Constitution—that’s what makes it a written constitution in the first place.

The article concludes:

And there is the rub. Judicial activism, rightly understood, is when a court tries to exercise the legislative function — i.e., when a court writes laws instead of saying what the law is. But asking courts to carve out the unconstitutional provisions from laws is exactly that. Advocating for severability asks the judicial branch to judge the law Congress should have written, not the one it did. A more restrained approach would be to strike down the whole law and let Congress decide whether it wants to pass the law again without the unconstitutional provisions included.

An old saying goes something like: “When you mix a cup of sewage in a barrel of wine, you end up with a barrel of sewage and have to throw the whole thing out.” To extend the metaphor, courts shouldn’t be in the business of sifting through a law to pick the sewage out of the wine, they should throw the whole thing out. Striking down unconstitutional laws is not judicial activism, and it is well within the role of the judiciary to strike the entire ACA as such.

It is definitely time to get rid of the barrel of sewage!

Do We Want The Federal Government Telling Us Where We Can Live?

Local governments have traditionally been in charge of local zoning. Local governments are obviously closest to zoning issues, and having zoning issues resolved at the local level allows the local citizens to have a voice in zoning decisions. There is nothing in the U.S. Constitution that gives the federal government any control of zoning. However, right now we have a President who does not seem to have read the U.S. Constitution. President Obama wants to tell all of us where we can live.

The National Review posted an article today about President Obama’s new rule:

Safely past the hurdles of re-election and the mid-terms, President Obama has plenty of time and scope left to continue his transformative ways. Obama’s sweeping new rule, “Affirmatively Furthering Fair Housing” (AFFH), is up next. AFFH would override local zoning authority and expand federal control over where and how Americans live. Because of its sweeping impact and the fact that potential Clinton Vice-Presidential running mate, HUD Secretary Julian Castro, will be in charge of implementation, this issue has the potential to shift the terrain of the presidential race as well.

…Contrary to its title, AFFH isn’t about blocking housing discrimination. That is already illegal, and former HUD Secretary Shaun Donovan acknowledged that AFFH is not about stopping housing discrimination, but instead about changing the way Americans live. AFFH will force every municipality that takes federal housing money to take a detailed survey of where its citizens live, by income, race, ethnicity, etc. If the mixture is not to the federal government’s liking, changes would have to be made at local expense. In effect, this would strip local governments of their zoning power.

The Republicans in Congress need to stop this power grab in its tracks. There have been a lot of talk about gerrymandering and the impact it has on elections. Gerrymandering will seem like a walk in the park when voters are told where they can live and where they can’t live.

There is an additional article from August 2013 on the government’s plan to take over local zoning at the National Review. This plan looks a lot like Agenda 21. For those of you not familiar with Agenda 21, it is a sustainable development plan developed by the United Nations at a meeting in Brazil in 1992. Basically it means the end of single-family homes and the concept of private property. It also has a very negative impact on American sovereignty.