The Good, Bad, and Ugly of the Obamacare Ruling

By Ilya Shapiro, CATO Institute

The Texas Review of Law and Politics has just published as a law review article an expanded, annotated version of the speech I’ve been giving all over the country regarding the Supreme Court’s ruling in NFIB v. Sebelius.  The title, which I hope will hold up with the passage of time, is “Like Eastwood Talking to a Chair: The Good, the Bad, and the Ugly of the Obamacare Ruling.”  Here’s the abstract:

The constitutional challenge to Obamacare was a case that comes along once every generation, if not less often. Not because it could affect a presidential election or was otherwise politically significant, but because it reconsidered so many aspects of our constitutional first principles: the fundamental relationships between citizens and the government and between the states and the federal government; the role of the judiciary in saying what the law is and checking the political branches; and the scope of and limits to all three branches’ powers. This case was not about the state of health care in America or how to fix this troubled area of public policy. It was instead about how to read our nation’s basic law and whether Congress was constitutionally authorized to use the tools it used in this particular instance.

Anyone reading this article will already know at least the basic outline of the Supreme Court’s ruling. As I wrote on the leading Supreme Court blog in the wake of the decision, those who challenged the law won everything but the case. That is, the Supreme Court adopted all of our legal theories regarding the scope of federal regulatory authority and yet Obamacare stands. This article explains and elaborates on those basic points, the good (Commerce Clause, Necessary & Proper Clause, Spending Clause), the bad (the taxing power), and the ugly (John Roberts’s reasoning and motivations).

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Colorado NDAA Nullification Introduced

House Representative Jared Wright has introduced House Bill 1045 which prohibits any assistance by the state of Colorado in enforcing Section 1021 provisions of the 2012 National Defense Authorization Act (NDAA). This bill has been assigned to the State, Veterans and Military Affairs House Committee.

Section 1021 of the NDAA which sets up a “legal” framework for the federal government to kidnap and detain anyone under the Authorization of the Use of Military Force. It expands the battlefield to the United States and to US citizens.

HB 1045 states, “This section…shall not provide aid to an agency of the armed forces of the United States in any investigation, prosecution, or detention of any person pursuant to section 1021 of the Federal “National Defense Authorization Act for Fiscal Year 2012″.. if such aid would place the entity in violation of any provision of the United States Constitution, The Colorado Constitution, or any law of this state.”

This bill prohibits aid to the federal government from any agency of the state, political subdivision, Colorado state employee, or any member of the Colorado National Guard.

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Texas Bill: 2nd Amendment is “Inviolate,” Criminal Charges for Feds who Violate it

Introduced in Texas today, House Bill 553 (HB553), is the Second Amendment Preservation Act.

The bill reaffirms the 2nd Amendment, as intended, and would nullify potentially anything from the federal government that contravenes in the State of Texas. It reads, in part:

all federal acts, laws, executive orders, agency orders, and rules or regulations of all kinds with the purpose, intent, or effect of confiscating any firearm, banning any firearm, limiting the size of a magazine for any firearm, imposing any limit on the ammunition that may be purchased for any firearm, taxing any firearm or ammunition therefore, or requiring the registration of any firearm or ammunition therefore, infringes upon Texans’ right to bear arms in direct violation of the Second Amendment to the Constitution of the United States, and therefore, any such law is not made in pursuance of the Constitution, is not authorized by the Constitution, and thus, is not the supreme law of the land, and consequently, is invalid in this State and shall be further considered null and void and of no effect in this State.

The bill goes further than just affirmation of the 2nd Amendment. It requires compliance by by state and federal agents.

A person who is a public servant commits an offense if the person, while acting under color of the person’s office or employment, intentionally enforces or attempts to enforce any acts, laws, executive orders, agency orders, rules or regulations of any kind whatsoever of the United States government relating to confiscating any firearm, banning any firearm, limiting the size of a magazine for any firearm, imposing any limit on the ammunition that may be purchased for any firearm, taxing any firearm or ammunition therefore, or requiring the registration of any firearm or ammunition therefore.

The legislation specifies that the new law would apply not just to state employees, but federal ones as well.

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Missouri Bill Proposes Jail Time for Feds Violating the 2nd Amendment

Introduced by Missouri State Representative Casey Guernsey, with 61 co-sponsors, is the Missouri 2nd Amendment Preservation Act. House Bill 170 (HB170) would nullify any and all federal acts, orders, laws, statutes, rules, or regulations of the federal government on personal firearms, firearm accessories, and ammunition.

The bill states, in part:

“Any official, agent, or employee of the federal government who enforces or attempts to enforce any act, order, law, statute, rule, or regulation of the federal government upon a personal firearm, a firearm accessory, or ammunition that is owned or manufactured commercially or privately in the state of Missouri and that remains exclusively within the borders of the state of Missouri shall be guilty of a class D felony.”

A class D felony in Missouri carries a prison sentence of up to 4 years.

While a number of states, including Wyoming, South Carolina, Indiana, and others – are looking to go head to head with the feds on specific issues under the 2nd amendment, the Missouri legislation is the strongest introduced anywhere in the country so far.

Tenth Amendment Center national communications director, Mike Maharrey summed up the sentiment:

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Judge Napolitano on Obama’s Extension of Warrantless Wiretapping: ‘Absolutely Unconstitutional’

Judge Andrew Napolitano stopped by Fox Business Network’s Varney & Co. to weigh in on President Obama signing a five-year extension of the government’s warrantless wiretapping program. In doing so, the judge said Obama is continuing with a practice that is “absolutely unconstitutional” and a violation of the Fourth Amendment’s protection against unreasonable search and seizure.

Napolitano explained that the government can listen to any phone call or read any email from a person in the United States to a person outside the country even without a search warrant.

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South Carolina Bill Would Nullify all Presidential Executive Orders Against the Right to Keep and Bear Arms

Senator Davis has filed SB 224 which is a Joint Resolution to Nullify Executive Orders infringing upon the second amendment, and the right to keep and bear arms. This Joint Resolution has been referred to the Senate Committee of Judiciary.

SB 224 states, “Any federal executive order restricting, abridging, or otherwise infringing upon the free exercise of a citizen’s second amendment right to keep and bear arms is unconstitutional and shall not be enforced by any federal, state, or local law enforcement agency within South Carolina.”

Senator Davis referenced District of Columbia v. Heller. This Supreme Court held that, “the Second Amendment protects an individual’s right to possess firearms and that the city’s total ban on handguns, as well as its requirement that firearms in the home be kept nonfunctional even when necessary for self-defense, violated that right.”

Also, Senator Davis hold that Executive Orders are not a way to skirt Congress and enact laws. The purpose of executive orders are “to direct and manage the operation of the executive branch of the federal government.”

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Obamacare: The Nullification Crisis in South Carolina

By: Joshua Cookobamacare

On January 8, 2013, S.C. legislators and citizens gathered on the state capitol steps to announce a bill that would nullify the The Patient Protection and Affordable Care Act (PPACA), commonly known as Obamacare.  During this historic event, Sen. Tom Davis gave a speech invoking John C. Calhoun, a famous politician from South Carolina, and praised him for defending states’ rights and being the pioneer of the nullification movement in 1828.

Calhoun cited the Tenth Amendment of the Constitution as justification for states to nullify (invalidate) federal laws that encroached on states’ rights.  Calhoun wrote, The Tariff of Abomination, which protested the Tariff of 1828 because it favored northern manufacturing over southern commerce and agriculture. Obamacare, the largest tax in US history, is just as controversial as the Tariff of 1828 because many Americans feel that it was pushed on them by the Democrats behind closed doors.

Many associate Calhoun with slavery, but few realize that northern abolitionists appealed to the South Carolina senator’s ideas to defend their resistance of the draconian Fugitive Slave Act of 1850, sometimes even evoking Calhoun by name.

Today, South Carolinians are fighting back against the federal government and have resurrected the “Calhoun Doctrine” of nullification. Many legislators are citing the Tenth Amendment to nullify Obamacare because it will burden S.C. with unfunded liabilities, increase taxes and unemployment, hinder economic growth,  forge conflicts between doctors and their patients, and encroach on religious freedom.

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Judge Napolitano: President Obama Absolutely Cannot Use the 14th Amendment to Raise the Debt Ceiling

Some Democrats, including House Minority Leader Nancy Pelosi, have called on President Obama to use the 14th Amendment to the Constitution in order to raise the debt ceiling without Congressional approval. The 14th Amendment reads: “validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and…

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Oklahoma Legislation Would Nullify Agenda 21

Senator Patrick Anderson has introduced a bill in the Oklahoma State Senate that combats the United Nations Agenda 21 and reaffirms the sovereignty of the American people against globalist and internationalist forces.

The bill as introduced, SB23, is for “prohibiting state and political subdivisions from implementing certain Agenda 21 policies supported by the United Nations.” The law, if passed, will ensure that the state of Oklahoma “shall not adopt or implement policy recommendations that deliberately or inadvertently infringe or restrict private property rights without due process.”

If this passes, it will be a big win for both Constitutionalists and supporters of liberty. Private property rights for Oklahomans would be strengthened while the process of representation for the American people will be protected from a pernicious outside influence.

The US federal government officially endorsed Agenda 21 in 1992 when President George H. W. Bush signed on to a treaty with 177 other countries that he personally described as ’mammoth’ at a U.N. meeting called the ’Earth Summit’ in Rio De Janeiro, Brazil. He triumphed this accomplishment as emblematic of a world coming together to maintain a safe, living environment for present and future generations. However, there is more to Agenda 21 than what these world leaders are willing to let on.

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Texas Legislator to File Firearms Protection Act

Austin, TX – State Representative Steve Toth (The Woodlands) has begun the process to file legislation assisting the protection of the Second Amendment of the United State Constitution. The “Firearms Protection Act” bill would make any federal law banning semi-automatic firearms or limiting the size of gun magazines unenforceable within the state’s boundaries. Anyone trying to enforce a federal gun ban could face felony charges under the proposal.

“We can no longer depend on the Federal Government and this Administration to uphold a Constitution that they no longer believe in. The liberties of the People of Texas and the sovereignty of our State are too important to just let the Federal Government take them away. The overreach of the federal administrations executive orders that are do not align with the Constitution, are not very popular here in Texas,” said Representative Toth.

Along with Wyoming, Texas will lead the country in continuing to stand for the sovereignty to run Texas as Texans see fit while exercising the Bill of Rights Amendments 2 & 10 to “prevent misconstruction or abuse of its powers… [to] extending the ground of public confidence in the Government.” Along with Texas Attorney General Greg Abbott, who has already filed over twenty-three suits against the Federal Government, Representative Toth will continue to stand with other Texans to encouraging the promotion of personal responsibility and liberties while actively guarding against outside parties attempting to erode the freedoms enjoyed by Texans so that the people of Texas may have more confidence in their government.

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