‘Repeal and Replace’ Is Not Enough

The silver lining in the Supreme Court’s decision on ObamaCare is that it ratcheted back Congress’s power and authority under the Commerce Clause. That’s a victory for Freedom, for on page 43 of the Court’s opinion, Chief Justice John Roberts writes (italics added):

“Once we recognize that Congress may regulate a particular decision under the Commerce Clause, the Federal Government can bring its full weight to bear. Congress may simply command individuals to do as it directs. An individual who disobeys may be subjected to criminal sanctions. Those sanctions can include not only fines and imprisonment, but all the attendant consequences of being branded a criminal: deprivation of otherwise protected civil rights, such as the right to bear arms or vote in elections; loss of employment opportunities; social stigma; and severe disabilities in other controversies, such as custody or immigration disputes.”

To repeat, under the Commerce Clause, “Congress may simply command individuals to do as it directs.” So the Chief Justice has done us a favor, as few Americans relish the thought of being bossed around by the likes of the Pelosi-Reid Congress, the worst Congress in history.

What was on trial in National Federation of Independent Business v. Sebelius was the expansion of federal power. The big question in NFIB v. Sebelius was: Does the Commerce Clause grant Congress the power to command individuals to buy a product?

In oral arguments, justices repeatedly asked the Solicitor General for some “limiting principle” so that Congress couldn’t just command Americans to do anything. No such principle was presented, so the Court struck down the individual mandate to buy health insurance.

America is a nation of dual sovereignty, where the States (and the People) retain power except for those powers the Constitution vests in the federal government, which the States created. The federal government is therefore a limited government of enumerated powers. America’s dual sovereignty is unequivocally confirmed by the Tenth Amendment


Do we need a “Repeal Amendment?”

The growth of the federal government, and the consolidation of power that goes with it, has gained the attention of most people in our country.  Rapid increases in spending levels and additional layers of rules, regulations, an mandates has most of us concerned for our future, and our individual liberty.  Unpopular laws, like Obamacare, have sharpened the differences between the ruling class and the rest of us.

What’s the solution?  Ryan Young & David Deerson writing for RealClearPolicy, propose a new Constitutional amendment that would allow a vote by 2/3 of the states to repeal any law they determine to be unlawful.  In the article, they describe a federalist system, that not only separates powers among the three branches, but also between the states and the central government.

They give a brief history of the balance of power between the feds and the states, noting that the 14th, 16th, and 17th amendments all shifted the balance toward the feds.  True enough. They seem to lament the shifting balance of power from the states, to Washington, DC, over the past century, or so, and suggest that a new “Repeal Amendment” might solve the problem.  In the same paragraph, however, they admit that getting 2/3 of any group to agree on anything would be difficult, but that we have to do something. They tout the support of several Congressmen, and point to efforts by a few states to make similar state laws.