Supreme Court Justice Stephen Breyer really went out on a limb during the ObamaCare arguments to make the government’s case for it. On the question of whether Congress can compel Americans to buy computers, cell phones or burials, Breyer said “Of course they could” and went to on to explain how that would be proper, in his mind.
Breyer explained his point of view after becoming impatient with the convoluted answers Solicitor General Donald Verrilli had offered up in response to questions from Justices Sam Alito and Anthony Kennedy and Chief Justice John Roberts.
Alito had asked Verrilli if Congress could force young people to buy burial insurance because everyone is going to die someday. Roberts asked Verrilli if Congress could force people to buy cell phones because it would facilitate contacting emergency services in the event of an accident. And Kennedy asked Verrilli: “Can you create commerce in order to regulate it.”
“I’m somewhat uncertain about your answers to, for example, Justice Kennedy,” said Breyer. He “asked, can you, under the Commerce Clause, Congress create commerce where previously none existed.
“Well, yes,” said Breyer, “I thought the answer to that was, since McCulloch versus Maryland, when the Court said Congress could create the Bank of the United States which did not previously exist, which job was to create commerce that did not previously exist, since that time the answer has been, yes.
“I would have thought that your answer [to] can the government, in fact, require you to buy cell phones or buy burials that, if we propose comparable situations, if we have, for example, a uniform United States system of paying for every burial such as Medicare Burial, Medicaid Burial, Ship Burial, ERISA Burial and Emergency Burial beside the side of the road, and Congress wanted to rationalize that system, wouldn’t the answer be: Yes, of course, they could,” said Breyer. (Read More)
My head hurts after reading that. This is how the statists think and it’s really quite disturbing.
Breyer is scary. If he REALLY believes that, then he has NO business being a justice!
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Clement shot down Breyer’s citation of the McCullough case.
That case involved using the Commerce Clause to rationalize creating the Bank of the United States. But it did NOT mandate that American citizens had to deposit their money in that bank or else pay a penalty.
The truth is, there really is no precedent in case law for the Federal Government forcing individual American citizens to participate in a market against their will.
BTW, I believe that if the Supremes decide that forcing citizens to participate in a market against their will is unconstitutional, that would imply that cap-and-trade is unconstitutional. (Because under cap-and-trade, a new market is created in emissions permits–and then anyone who owns a business that produces emissions, like a power plant, is forced to participate in that market if they want to continue operating their business.)
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One more point.
The Commerce Clause has on occasion been used by Big Government Republican administrations too (cf. Raich vs. Gonzales for a real beauty).
And so I could actually envision a President McCain arguing that these are dangerous times with al-Qaeda and Iran and North Korea. And since it’s vitally important that in case of national emergency, American citizens must be able to communicate, the Federal Government will mandate that every American must purchase a smartphone or else pay a Federal penalty.
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Another totalitarian masquerading as a Constitutional Jurist. If it were possible, I’d like to see him argue this with the Founding Fathers. President Washington would bloody his nose, indeed.
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Actually he is dead on, congress has been doing it to us for years. The problem is it has been done illegally and they haven’t been reined in by the supreme court.
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If the Framers ever realized what the liberals had turned our Constitution into, they’d have torn it up in the beginning.
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No, they would have just more precisely worded it to ensure no legal loopholes could be used. They were working on the concept of a small country with a small manageably sized government with lots of checks and balances to keep our representatives and law makers honest. They did not foresee our country growing so huge and powerful. They would never have believed a concerted effort by the media and politicians to hoodwink the country into “transforming” America into the polar opposite of what they envisioned could ever happen.
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While our ideologies are somewhat different, we are usually in pretty close agreement. I lay no claim to the title conservative, but am much better classified as libertarian.
I believe you can benefit from this excerpt regardless of your political affiliation.
http://www.lewrockwell.com/napolitano/napolitano47.1.html
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