- Friday, 06 July 2012 17:09
- Written by Mark Kreslins
It's been nine days now since the Supreme Court "handed down" their decision from on high, reaffirming the continued misuse of the Commerce and Necessary and Proper clauses. But it did not stop there. No, Justice Roberts writing for the Majority declared that while the Affordable Care Act could not survive under even the most expansive reading of the two typical clauses used to expand national government power...wait, wait, wait...here it comes...Roberts and the Majority decided that the Act could survive under Congress's new and improved "Tax and Spend" power linked with the General Welfare Clause!
Now, everyone is either shouting or crying... "how can they do that?" It's really quite easy, similar to what a used car salesman does when he wants to make a sale; make up a reason for you to buy it. And boy, thanks to the wonderful phrase "stare decisis," we know it as the legal term "precedent" the nine politically connected lawyers in black dresses can do just about anything...no, make that anything they want. And this is the tool Jurists intent on building out a national government use to condone their actions.
From the Roberts opinion regarding the survival of the Affordable Care Act under Congress's tax and spend authority:
“The text of a statute can sometimes have more than one possible meaning. To take a familiar example, a law that reads “no vehicles in the park” might, or might not, ban bicycles in the park. And it is well established that if a statute has two possible meanings, one of which violates the Constitution, courts should adopt the meaning that does not do so. Justice Story said that 180 years ago: “No court ought, unless the terms of an act rendered it unavoidable, to give a construction to it which should involve a violation, however unintentional, of the constitution.” Parsons v. Bedford, 3 Pet. 433, 448–449 (1830).” Page 31
"Justice Holmes made the same point a century later: "[T]he rule is settled that as between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the Act." Blodgett v. Holden, 275 U. S. 142, 148 (1927) (concurring opinion)." Page 31
"The most straightforward reading of the mandate is that it commands individuals to purchase insurance.
After all, it states that individuals "shall" maintain health insurance. 26 U. S. C. §5000A(a). Congress thought it could enact such a command under the Commerce Clause, and the Government primarily defended the law on that basis. But, for the reasons explained above, the Commerce Clause does not give Congress that power. Under our precedent, it is therefore necessary to ask whether the Government's alternative reading of the statute—that it only imposes a tax on those without insurance—is a reasonable one.
Under the mandate, if an individual does not maintain health insurance, the only consequence is that he must make an additional payment to the IRS when he pays his taxes. See §5000A(b). That, according to the Government, means the mandate can be regarded as establishing a condition—not owning health insurance—that triggers a tax—the required payment to the IRS. Under that theory, the mandate is not a legal command to buy insurance. Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income. And if the mandate is in effect just a tax hike on certain taxpayers who do not have health insurance, it may be within Congress's constitutional power to tax."
Here you see stari decisis at work. The Majority doesn't take into consideration what the Framers and Ratifiers said or intended about the tax and spend clause connected with the General Welfare clause; they went to other court decisions and their own sense of "fairness" to answer to how to decide on the claim by the national government.
Stari Decisis enables the Court to decide on its own, arbitrarily, what is and what isn't Constitutional free from constraint as long as they can achieve a majority. Free of any restraints of what the Framers and Ratifiers explicitly claimed during the Convention and the Ratification Debates.
This decision is but another verse in a long developed love song the legal profession has created for itself!
"We, the Justices sing melodically and in unison with other supreme court tyrants throughout the history of this Constitution all the way back to Marshall; we the Justices sing, we know what's best for you little serfs and we will not be encumbered with a clear and simple document like the Constitution. Further you little subjects, when this silly little document is in our way, and an Act of Congress is one of which violates it, we Justices will adopt the meaning (of the Act) that does not violate its meaning and ignore the one that does!"
This, folks, is the sausage making of current jurisprudence.
I’m going to start running my life this way:
IRS – Mr. Kreslins, you owe us $10,000 for taxes
Me – In reviewing the Internal Revenue Code, even though there are hundreds of codes I clearly violate in not paying my taxes, I did observe this one provision that protects me from payment if read a certain way. I believe I’ll adopt that meaning so that my desire to not pay my taxes survives!
How do you think that will work out for me?