{"id":33623,"date":"2018-06-11T10:55:55","date_gmt":"2018-06-11T14:55:55","guid":{"rendered":"http:\/\/www.rightwinggranny.com\/?p=33623"},"modified":"2018-06-11T10:55:55","modified_gmt":"2018-06-11T14:55:55","slug":"a-different-take-on-the-constitutionality-of-obamacare","status":"publish","type":"post","link":"https:\/\/www.rightwinggranny.com\/?p=33623","title":{"rendered":"A Different Take On The Constitutionality Of ObamaCare"},"content":{"rendered":"

The Daily Caller<\/a> 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.<\/p>\n

The article then reminds of the Supreme Court’s decision on ObamaCare:<\/p>\n

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\u2019s 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\u2019s taxing power because it generated revenue for the federal government.<\/strong><\/p>\n

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?”<\/p>\n

The article states:<\/p>\n

A recent\u00a0op-ed at The\u00a0Federalist<\/a>\u00a0<\/em>claims that striking down the ACA would be \u201cjudicial activism.\u201d The article doesn\u2019t defend the ACA as constitutional, but argues that conservatives shouldn\u2019t ask \u201cunelected judges to do what elected members of Congress took great pains to avoid.\u201d<\/strong><\/p>\n

Such a broad view of \u201cjudicial activism\u201d 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\u2014that\u2019s what makes it a written constitution in the first place.<\/strong><\/p>\n

The article concludes:<\/p>\n

And there is the rub. Judicial activism, rightly understood, is when a court tries to exercise the legislative function \u2014 i.e.,<\/em>\u00a0when 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.<\/strong><\/p>\n

An old saying goes something like: \u201cWhen 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.\u201d To extend the metaphor, courts shouldn\u2019t 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.<\/strong><\/p>\n

It is definitely time to get rid of the barrel of sewage!<\/p>\n","protected":false},"excerpt":{"rendered":"

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 … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[6777,378,8333,2412,9092,2568,1822,2629,2016,7015],"class_list":["post-33623","post","type-post","status-publish","format-standard","hentry","category-uncategorized","tag-aca","tag-affordable-care-act","tag-checks-and-balances","tag-commerce-clause","tag-constitutional-law","tag-individual-mandate","tag-john-roberts","tag-judicial-activism","tag-revenue","tag-the-daily-caller"],"_links":{"self":[{"href":"https:\/\/www.rightwinggranny.com\/index.php?rest_route=\/wp\/v2\/posts\/33623","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.rightwinggranny.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.rightwinggranny.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.rightwinggranny.com\/index.php?rest_route=\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/www.rightwinggranny.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=33623"}],"version-history":[{"count":1,"href":"https:\/\/www.rightwinggranny.com\/index.php?rest_route=\/wp\/v2\/posts\/33623\/revisions"}],"predecessor-version":[{"id":33624,"href":"https:\/\/www.rightwinggranny.com\/index.php?rest_route=\/wp\/v2\/posts\/33623\/revisions\/33624"}],"wp:attachment":[{"href":"https:\/\/www.rightwinggranny.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=33623"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.rightwinggranny.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=33623"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.rightwinggranny.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=33623"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}