('76 Contributor) In a huge victory for school choice, the Colorado Court of Appeals last month overturned the injunction placed on the Douglas County Choice Scholarship Program (CSP).
The CSP is Colorado’s only school-choice voucher program. Any student who lives within the Douglas County School District, and has resided there for at least one year, is eligible to apply to receive up to 75 percent of the state per-pupil funding to attend a school of choice. If there are more applicants than scholarships, a lottery is held to award the vouchers. Parents may also pay out of pocket to supplement the voucher coverage.
In 2011, the ACLU of Colorado, the National ACLU Program on Freedom of Religion and Belief, Americans United for the Separation of Church and State, and others filed suit in Colorado state court, claiming that the school choice option violated the statutory provisions of the CSP itself and seven provisions of the Colorado constitution, including, importantly, the establishment clause in the Colorado constitution. As an ACLU spokesperson said after winning an injunction to prevent the program from being implemented: “By paying for students to attend religious schools, the state was unconstitutionally promoting and subsidizing particular faiths.”
The Colorado Court of Appeals saw things differently, overturning the injunction. There is much to laud in the opinion, and the immediate beneficiaries of the ruling are the 304 students whose rights under the program are now vindicated. The Court of Appeals has given a particular victory in its analysis of how courts should analyze incidental funding of religious schools.
In rejecting the plaintiffs’ establishment clause claims, the appellate court applied the decision of the U.S. Court of Appeals for the Tenth Circuit in Colorado Christian University v. Weaver, 534 F.3d 1245 (10th Cir. 2008). In this decision, penned by then-Judge Michael McConnell, the Tenth Circuit held that it violated the First Amendment to provide financial aid to students attending sectarian institutions but not to students attending “pervasively sectarian” institutions. As the Tenth Circuit noted, “inquiring into the pervasiveness or intensity of… belief” of religious institutions receiving funding is a form of anti-religious discrimination.
In the case challenging the CSP, the Colorado appeals court applied the same logic, holding that
the inquiry in which the district court engaged—into the degree to which religious tenets and beliefs are included in participating private schools’ educational programs—is no longer constitutionally permissible. In the thirty years since Americans United was decided, the United States Supreme Court has made clear that, in assessing facially neutral student aid laws, a court may not inquire into the extent to which religious teaching pervades a particular institution’s curriculum. Doing so violates the First Amendment.
This means that a First Amendment violation does not occur when a facially neutral law happens to fund religious school. Rather, the true First Amendment violation occurs when an activist court seeks to scrutinize the curriculum of schools funded by vouchers to sniff out religion it doesn’t like.
Ultimately, this decision shows once more that neutral voucher programs do not infringe upon taxpayers’ liberties. Educational choice gives parents control over their share of funding, making education dollars more mobile and allowing parents to choose the best schooling options for their children. The simple fact that some of this money goes to religious schools does not violate the First Amendment.
It is a travesty for Americans to be forced into only one option for their children’s schooling. School choice has proven, time and time again, to produce better educational outcomes than government-assigned schools. As HLindsey Burke of The Heritage Foundation writes:
School choice has led to improved academic outcomes, higher graduation rates and increased student safety. It has improved parental satisfaction with their child’s academic and social development, and satisfaction with their child’s school overall. And it allows parents to access educational options that meet their child’s unique learning needs.
Last month’s ruling affords Douglas County students that opportunity.
Brittany Corona graduated from CCU in politics and pre-law in 2012, and is currently a member of the Young Leaders Program at The Heritage Foundation.
(Centennial Fellow) U.S. Sen. Rand Paul’s filibuster was not only enormously fun to watch, but demonstrated a piece of political genius to boot. If nothing else, the filibuster was a symbolic victory for conservatives sorely in need of a public show of resistance against an increasingly engorged leviathan.
On the merits of Sen. Paul’s arguments, we enter more muddled territory, which made the episode all the more fascinating to watch. It recalls one of the historically central arguments in American politics — that of the ontological role of the state in general and the limits of executive power specifically.
Now, the question can be burlesqued by posing it at its extremes — by asking, on the one hand, whether the president has the right to order a drone strike on an innocent journalist for writing a piece criticizing this or that policy of the administration, or on the other by asking if the president needs to get a court order, reviewed and signed off by the ACLU, to order the shooting down of an explosives-laden airplane piloted by a seriously disgruntled American citizen that’s hurtling towards a packed football stadium. Little is gained by such acts of reductionism, as the answers to either question are obvious to most. The struggle lies in between.
Conservatives rightly harbor a natural skepticism of executive power. This skepticism has come under strain from time to time, particularly when Democrats controlled Congress and the executive branch was held by Republicans. The natural tendency was to gravitate towards an affection for executive power. This is dangerous ground for a conservative to tread on, both philosophically and practically. Philosophically, the underpinnings of conservatism have always been geared towards a diffusion of power away from a central authority and practically since, well, our guy might not always be at the helm. Like, for instance … now.
The Supreme Court has much to teach us in this regard, if not in the homiletic manner to which it’s accustomed. It has long been a favorite sport of the right to lament upon the creeping authority of the high court. As much as it is proper to guard against usurpation by the Supreme Court, it ought to be equally proper to guard against the same on the part of the executive.
This is not to say, mind you, a strong executive has no place. We live in an era where decisive military (or paramilitary) force could be required, and where the failure to properly use such force can result in consequences too terrible to bear much contemplation. Such action can only come at the direction of the commander-in-chief. And to deny him that ability is both wrong and supremely dangerous. (This, incidentally, is why the election Americans hold every four years is kind of important.)
Adam Smith perhaps put it best when he described the first duty of government as protecting society against violence and invasion from other societies. I dare suggest that if an individual chooses to visit great harm or death upon his society in the name of an organization dedicated to destroying that society, then that individual effectively forfeits his rights to that society’s protections. The question that has badgered and gnawed at those who think and argue on the American political structure since before the republic’s inception, is some version of this: “Where is the line drawn between adequately protecting society and tyrannizing it?” The United States has historically done rather well at answering that question by identifying certain ideas and principles, inherited and honed, that place checks on the power or authoritarian overreach of any one branch of government and then codifying them in the Constitution.
That’s where the problem lies with the current administration. Do I think President Barack Obama would like to order a missile hit on, say, Bill O’Reilly or some of the Tea Partiers? Probably. Just as I am confident Richard Nixon from time to time harbored violent daydreams about Bob Woodward or the hippie infestation, or that President Reagan did about the obnoxious Green Peace nuts. Do I think he will? Of course not. In fact, I often worry the egalitarian-in-chief would be more inclined to deploy the ACLU than the USMC in the face of a threat. But his demonstrated statist affinity for promiscuous use of executive orders, coupled with the fact that he holds most of the Constitution — and many other American and western traditions and institutions — in obvious contempt makes one very uneasy.
Which is why, if for just a moment, I too found myself standing with Rand.
('76 Contributor) “Mere precedent is a dangerous source of authority,” warned Abraham Lincoln in an 1857 speech. Yet the United States Supreme Court has grown too comfortable ruling on precedent or statute and avoiding constitutional questions— and the citizens of the United States are to blame. The precedents behind Supreme Court case Shelby County v. Holder, argued last month, prove this judicial deconstruction.
The question before the Court regards the constitutionality of section five of the 1965 Voting Rights Act (VRA). When the VRA came to the Court four years ago in Northwest Austin Municipal District Number One v. Holder, the Court offered an opinion without considering the constitutional question. They did so by a doctrine known as constitutional avoidance. The Court used this doctrine to uphold the statute in question without reference to the Constitution. Such an act is antithetical to a constitutionally limited government of limited purposes, but even worse is the utter lack of outcry from the American citizenry.
This supposed doctrine of avoidance comes from a precedent set forth by the Marshall Court in 1936. It stated, “The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of”. In other words, the Constitution is the last authority, not the first. If there exists another way to rule on the case, do not bother with the Constitution.
This doctrine represents the greatest threat to self-governance: the abandonment of the Constitution. The experiment in self-governance set forth in 1789 relied on a constitutionally limited government. The American Constitution was written and established with a purpose, not to mention a strong degree of permanence. This rule of law is what sets American constitutionalism apart from unwritten constitutions—which are based on precedent— because supremacy in governing is found in the Constitution, not the office holder. The Constitution is the ultimate authority. Therefore, it is antithetical to the American constitutional order for the highest Court to rule from precedent or statute, while consciously avoiding the constitutional question.
Constitutional avoidance is particularly egregious in a case dealing with the VRA, such as Shelby. The VRA was enacted in 1965 to ensure every American his or her constitutional right to vote under the Fifteenth Amendment. Section two of the VRA sufficiently does this. However, section five, the statute in question, was only enacted as a temporary measure to counter discrimination in states deemed discriminatory by the U.S. Attorney General. It mandated these states to submit any political districting changes to the Department of Justice for review. This measure was only supposed to last five years; yet, it has been extended four times, and is still in effect.
Although necessary in 1965, the continued renewal of VRA’s section five is a federal intrusion into state and local government. The Northwest case questioned this federal intrusion. However, the Court ruled that the plaintiff was entitled to apply for exemption per section five, and therefore it would be unnecessary for the Court to decide on constitutionality.
Like Northwest, the question in front of the Court for Shelby directly regards Congressional power over voting districts in states under Article Four and the Tenth Amendment. The question too long evaded must now be decided fully. However, there is nothing stopping the Court from ruling once again on the doctrine of avoidance.
With constitutional order being jeopardized by the very office intended to guard it, where is the civic outcry?
This is the most disheartening truth revealed by the doctrine of constitutional avoidance: the American public has lost its civic responsibility— the core tenet of limited government. Self-governance requires that the people maintain a certain reverence for their Constitution, fully understanding its purpose to secure unalienable rights, and jealously defending it from encroachments of federal powers. The people must hold the government accountable to the limited powers they granted in 1789. The limited powers serve a purpose. If the powers are stretched, freedom in America is stretched, and self-government ceases to exist.
Shelby may redeem the poor decision of Northwest, restoring Constitutional order. Or it may also fall subject to the unfounded doctrine of constitutional avoidance. Regardless of the Court’s decision, the people must wake up and recognize the encroachments to their liberty, especially when the highest tribunal utilizes a doctrine that completely avoids the document of ultimate authority—the document of the people, by the people, and for the people.
('76 Contributor) How fragile, very fragile, is our democracy, our free market economic system, and our country. For the first time ever, I am concerned that America's best days are behind it.
The Supreme Court decision on Obamacare upheld the most far-reaching, burdensome, and intrusive legislation in the history of our country. It will destroy the genius of our founders who had a clear understanding of how to best utilize the natural human condition, our incentive-based behaviors, desire for freedom, and limited government with specific enumerated powers to achieve a better overall collective society.
There should be virtually no dispute that this genius created the most prosperous, generous, non-imperial world-protector, and overall successful society in the history of the world.
No one in Congress read the health care bill's 2,700 pages, with 1,700 references to new rules, and 21 tax increases drafted by 20-30-something year-old staffers with virtually no experience in the business world. The Supreme Court decision strikes down the mandate and the heavy coercion of states to expand Medicaid with our hard-earned tax dollars, which has now created an untenable and ugly piece of patchwork legislation.
.To get a sense of the destructive magnitude and controlling nature of this legislation, I suggest that you link to the Crawford Radio website and read the articles entitled PPACA Obamacare (3/28, 4/11, 5/17, 5/23, 6/6, 7/17, 7/18, and 8/8).
I would guess that, if you read one article, you will want to read more. It provides an insight into the liberal thinking about how to control the most important aspect of our lives, our personal health and well-being. It is a clear manifestation of the insidious accumulation of rules and regulations over the past 30-40 years, which have stolen our personal liberties and freedoms that our founders knew to be so important to each individual.
The legislation is job-destroying, innovation-stifling, and grants the government unlimited power to tax you for not buying something you don't want, creating a slippery-slope for future legislation that is beyond comprehension. The legislation was all about insurance and control of our lives, not about access to quality healthcare at the lowest cost. Virtually no effort was made to find ways to reduce costs through free market solutions, tort reform, mitigation of fraud and waste, or elimination of bureaucratic and reporting red-tape that are so burdensome to every doctor and hospital and ultimately the greatest healthcare system and medical innovator in the world.
The bottom-line is that, not only is the doctor/patient relationship destroyed, but the best and brightest will simply not suffer the control and negative income consequences of joining a profession that used to be the most highly-regarded in our society. However, we will likely get 16,000 new IRS agents, while documentation already exists about a pending doctor shortage.
I believe the most destructive force burdening our society is seldom talked about, and that is the endangerment of the spirit of American individualism. Unlike any other country, our system provided each individual the opportunity and the necessary human condition to work hard and to be productive. The result is that an individual then leads a purposeful life, with a sense of accomplishment and human dignity, and hope for the future, regardless of compensation. Those elements strengthen the human condition and then nurture the individual spirit, thereby improving our local communities, and ultimately the spirit and soul of our entire country.
I believe that this spirit and soul, as well as its very heart, are in peril. This, combined with our enormous deficit-spending and incomprehensibly large accumulating debt, provides a immoral assault and theft on future generations, who currently can't even vote. I am personally heart-sick to think that America, as we knew it, our parents knew it, and our grandparents knew it in such a positive way, will not be enjoyed by our children and grandchildren with the same blessings.
Elections matter. This upcoming election will unequivocally be the most important one in the history of our country. Never again should one individual, in this instance Barack Obama or Chief Justice Roberts, have ultimate power over our country's future. Additionally, having this great country's President publicly excoriate and diminish earned success and achievement, the rugged individualism and entrepreneurial spirit, which is the very essence of what has made this the most prosperous society in the history of the world, should be of grave concern to everyone.
Unfortunately, it illustrates that people either simply do not understand achievement, success, and creation of jobs and wealth, or it is just a threat to their vision, thereby justifying their continued attacks and tax increases on this group that is essential to the future of our country. This critically-important job creation, with the attendant reduction of government dependency, has multiple layers of benefits beyond government revenues.
Alexis DeTocqueville's extensive tour of America yielded great insight, including the memorable words often attributed to him: "America is great because America is good." With the diminishing individual spirit and soul of our country and continued secularization, America is ceasing to be as good and may cease to be great!
In contrast, consider this newly coined word whose definition would be amusing if weren't so painfully and frighteningly true: "Ineptocracy, (in-ep-toc'-ra-cy): A system of government where the least capable to lead are elected by the least capable of producing, and where the members of society least likely to sustain themselves or succeed, are rewarded with goods and services paid for by the confiscated wealth of a diminishing number of producers and job-creators."
I ask you to think about the above and recognize that participation and vigilance in the upcoming election are critical, not just the presidential election, but at all levels. I offer these thoughts to everyone, regardless of party-affiliation or ideology. This is simply about whether we are concerned about America, as we know it, and its existence in the future.
If you are compelled by what you have read, I suggest you forward the link to a handful of additional friends and acquaintances, children, grandchildren, etc. prior to the election. On the other hand, as in our great society, if you disagree or find fault with what I'm doing, I would appreciate hearing about it.
Want to read more? Here are some additional links you may want to view:
Buz Koelbel is a leading Denver businessman in the field of land development and commercial real estate, one of the founders of the Common Sense Policy Roundtable, and a member of the Centennial Institute Business Council.
(Boston) If a traveler would discern in a single place in a single day the origin and meaning of these United States of America, no better setting could be found than this city’s justly famed Freedom Trail. Along the winding cobblestone streets and adjacent harbor that George III decried as a ”hotbed of sedition and treason” one can trace the footsteps of Paul Revere, Benjamin Franklin, John Adams, Thomas Paine, Samuel Adams, and many others who prepared the way for Revolution and Independence.
A harsh climate, and the isolation imposed by a broad ocean made self-rule a necessity and eventually these early Americans came to greatly prefer this freedom to the decrees and exactions of a distant and arbitrary central government.
Thus was born the concept of “We the People” and the radical proposition that ordinary men were actually fit to govern themselves.
To paraphrase Lincoln we are now engaged in a historic Presidential election to test whether that proposition- government for the people, by the people, and of the people- and the nation to which it gave birth can long endure.
Pitted against the vision of the Founding Fathers- reinforced by the words and deeds of Lincoln- is a radically different conception of man’s capacity for self-governance. This Doctrine- called Progressivism- rejects the Natural Law- Rights derived from the Creator- enshrined in the Declaration of Independence and Lincoln’s belief in the capacity of ordinary men to rise through their own efforts.
The roots of Progressivism can be traced to the doctrines of 19th century European Socialism which saw History as a long leftward march characterized by unending class struggle leading toward “Social Justice” defined as the equal distribution of wealth.
From the beginning Progressivism had a deep distrust of democracy and individual freedom. Writing in 1914 the Progressive philosopher Herbert Croly (The Promise of American Life) rejected “the traditional American confidence in individual freedom” because it “resulted in a morally and socially undesirable distribution of wealth”.
Because the modern world had become too complex to allow self-rule by ordinary men, Progressives believed- though hesitated to preach openly- that power must be entrusted to elites- experts, technocrats- who would rule on behalf of their fellow citizens (e.g. Obamacare’s Independent Payment Advisory Board).
If one would see the full flowering of this approach to governance, one need look no further than today’s European Union where democratic usages are being steadily drained from member states and replaced by faceless, unelected, and unaccountable bureaucrats in Brussels. There elections are lamented as “political interference”, annoying distractions that impede the spinning of ever expanding webs of regulation to shape and control the daily lives of citizens too unenlightened to know what is good for them. This ultimately becomes the world that Orwell foresaw in his allegory Animal Farm.
In his inaugural address of 1801 Thomas Jefferson posed this question :
“Sometimes it is said that man cannot be trusted with the government of himself. Can he, then, be trusted with the government of others? …. Let history answer this question.”
Nearly two centuries later Ronald Reagan who had seen history’s answer in the horrors of Hitler’s National Socialism and Stalin’s Union of Soviet Socialist Republics renewed Jefferson’s timeless question:
“From time to time, we have been tempted to believe that society has become too complex to be managed by self-rule, that government by an elite group is superior to government for, by, and of the people. But if no one among us is capable of governing himself, then who among us has the capacity to govern someone else?”
Today there is an immediacy to this question, and the existential threat posed by Progressivism has been best articulated by Paul Ryan who said the following in a recent interview: “What I’ve been trying to do is indict the entire vision of Progressivism… the intellectual source of the big government problems that are plaguing us today ….a cancer because it basically takes the notion that our rights come from God and nature and turns it on its head and says …No, they come from government… It’s a complete affront to the whole idea of this country”
Not since Pearl Harbor has our country faced such peril. The growing culture of Dependence fostered by Progressivism that continually erodes the foundation of our Democracy was well described by Hayek in his 1944 classic The Road to Serfdom.
The pundits describing this fateful election speak often of an impending “fiscal cliff”, but Americans should be in no doubt that there is much, much more at stake than mere money.
William Moloney is a Centennial Institute Fellow and former Colorado Commissioner of Education. His columns have appeared in the Wall St. Journal, U.S.A. Today., Washington Post, Washington Times, Philadelphia Inquirer, Baltimore Sun. Denver Post, and Human Events.
For anyone who naively thought the Supreme Court would render a clean and tidy decision on ObamaCare, Chief Justice John Roberts' majority-of-one opinion should be instructive.
Rarely does the high court render an opinion that draws bright lines by simply applying the constitution as written. More often, the court's opinion is sufficiently muddled that a future court in a similar case can arrive at any decision it desires simply by selectively quoting only the passages that support its desired outcome and ignoring those that do not.
Roberts did exactly that in finding ObamaCare's insurance mandate unconstitutional under the constitution's Commerce Clause: "[T]o permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority."
But next Roberts ignored the court's precedent that distinguishes a "tax" from a "penalty," as the dissenting conservative justices noted: "We have never held that any action imposed for the violation of the law is an exercise of Congress' taxing power - even when the statute calls it a tax, much less when (as here) the statute repeatedly calls it a penalty."
Roberts therefore concluded - and was joined by the court's four activists - that the mandate that everyone purchase insurance could survive as a proper exercise of Congress' power to tax.
Does it matter whether the mandate falls within Congress' power to regulate commerce or the power to tax? In this case, it doesn't. Only when future courts choose to follow or ignore Roberts' attempt to corral Commerce Clause authority will we be able to evaluate the supposed silver lining of this obfuscatory cloud.
Several observers speculate that Roberts changed his position at the last minute after initially siding with the rest of the court's conservatives who were prepared to strike down ObamaCare lock, stock and barrel. These observers site inconsistencies in the text of the conservative dissent that make it appear that their dissenting opinion was originally written as the majority opinion.
If so, was Roberts motivated by a desire to prevent the court from appearing too political - a concern that never deters judicial activists - or was he intimidated by the specter of President Obama campaigning against the Supreme Court, as FDR did after the court invalidated much of his New Deal? It's doubtful we will ever know the answer.
In the wake of this mess, both the political and legal landscapes are intriguing.
Americans are left with the clear message not to expect the court to intervene to protect our freedoms - especially not after voters entrust the reins of power to Barack Obama, Nancy Pelosi, Harry Reid and their big government fantasies. Today more than ever, no one will protect our freedom if we don't do it for ourselves.
If the voters want to reject ObamaCare, they must reject Obama come November. It's as simple as that.
ObamaCare and its costly, coercive insurance mandate won't be the foremost issue in the election, but it will play a more prominent role than if the court had thrown it out.
Moreover, the court's decision will now serve to galvanize those opposed to ObamaCare's budget-busting cost, both to Americans individually and to the nation as a whole.
If they win the White House and the Senate, Mitt Romney and the Republicans clearly have a mandate to repeal ObamaCare and replace it with something that respects personal, economic and religious freedom, that doesn't drive us further into debt, and that moves America away from the European model of socialized welfare and toward sustainability.
Meanwhile, Barack Obama can spend these next few months explaining why he signed the largest middle-class tax increase of alltime in order to pass a health insurance bill that has driven costs higher for American families, exploded our national debt, and is supported by barely one-third of the public.
My time in D.C. with the CCU and Centennial Institute Washington Week clan began with not the greatest of surprises – after driving 1,670 miles from Denver my car’s fuel pump failed just twenty miles short of our destination. Sparing you further details of the dilemma; I had a very interesting discussion with the driver of the tow truck, Kevin. Kevin made it very clear that he backed Obama for re-election. After unsuccessfully prying into his reasoning for such a stance, I began to lose hope for the discussion. Then Kevin introduced the idea of term limits for Congress. Kevin was highly in favor of a possible limit of service on the Hill for both chambers. This proposition is not foreign at CCU, Centennial Institute, or conservative dialogue in general, and provided a needed common ground between Kevin and myself on our short ride to the garage. This conversation would not be the last time that term limits would be raised during this trip.
On Friday, former Colorado Congressman and Senator, Hank Brown led CCU students on a tour of the Capitol. Senator Brown has extensive knowledge of the Capitol’s art, history, and symbolism. As a former Senator, Hank Brown provided CCU students a nearly unlimited access tour of both chambers. One very special place we found ourselves in was the House Appropriations Committee room. In this room, a portion of the fresco is composed of a painting of the Roman Senator and leader Cincinnatus being called from his plough to defend Rome. Senator Brown told us the significance of this lies not in the fact the Cincinnatus heard the call of duty and went to save Rome, but that he returned to his farm and denied the dictatorship of Rome after completing his service. This historical event was repeated in the life and service of George Washington. Both men loved their country, they left their home to serve and defend but returned when their service was no longer required, turning down dictatorial power.
These two men, Washington more commonly, are cited by those who argue for a Congressional term limit. We have seen a handful of men go to congress and serve valiantly at their posts as Senators of Congressman then return to their homes and occupations, imploring others to do the same. But are these self-imposing term limiters to be compared to Cincinnatus and Washington? To know this we must know the enemy in all three cases. In Cincinnatus’s time the enemy was the attacking Aequi forces. During Washington the threat was the British Empire. But today the greatest fight in front of a conservative congressman or woman is the fight to stop & reverse government growth and defend constitutional government. And while universally imposed term limits would theoretically aid that pursuit, Conservatives are not raising the memory of Cincinnatus or Washington when they leave the government in the hands of the entrenched spenders while patting themselves on the back for showing restraint. I applaud the honorable service of these Senators and Representatives, though I feel this is one area where leading by example hurts our cause. These strong conservative members should fight to the end of the battle; until term limits are instated, then leave their posts with dignity.
Isn’t it ironic that the Smartest President Ever – according to one historian – can say something so ridiculous that most high school civics students would recognize his statements to be hogwash?
After the Supreme Court concluded its hearings on the Affordable Care Act (aka “ObamaCare”), President Obama said, during a White House news conference at which he clearly had to anticipate such questions, that it would be “unprecedented” and “extraordinary” for the Court to strike down his health care law as beyond the constitutional limits on the powers of Congress.
He concluded that sentence with another whopper: that ObamaCare “was passed by a strong majority of a democratically-elected Congress.”
Lastly, he claimed that it would be “a good example” of “judicial activism” if “an unelected group of people would somehow overturn a duly constituted and passed law.”
Each of those statements is, to put it charitably, dubious.
Judicial review of laws passed by Congress is among the basic responsibilities of our Supreme Court, first established in an opinion written in 1803 by Chief Justice John Marshall.
The Supreme Court has a 209-year history of invalidating laws it judges to be beyond the powers which we the people” gave to government via the Constitution. Sometimes these decisions please conservatives; other times, they please liberals. No matter, a court ruling that all or parts of ObamaCare are unconstitutional would hardly be the first of its kind.
Obama surely knows better, even if he wasn’t really a “professor” of constitutional law, as Hillary Clinton’s 2008 campaign discovered.
So did the smartest, most articulate president simply misspeak? Did he think he could fool all of the people on this score? Or did he somehow think he could intimidate the Supreme Court?
Who did he think he was fooling by claiming ObamaCare “was passed by a strong majority”? It’s hard to fool the entire country about events that happened just two years ago amid one of the most highly watched debates in the last 50 years.
Congress passed ObamaCare 219 to 212 with every Republican plus 34 Democrats voting against it. Bare majority would be more accurate.
Finally, the President tried to steal a conservative critique of the courts – that of judicial activism – and redefine for his own purposes.
Obama, it seems, would have us believe that judicial activism occurs any time the Supreme Court strikes down an act of Congress. Or perhaps he wants us to think that conservatives hold this simplistic understanding.
Again, this is both intellectually lazy and factually dishonest.
The First Amendment says “Congress xx shall make no law xx respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press . . .” (emphasis added).
If Congress makes a law that prohibits certain forms of political speech just before an election, that’s a clear violation of the First Amendment, and the Court should rule it unconstitutional – as it did in another decision that Obama has criticized.
Judicial activism occurs when justices invalidate an act of Congress based upon their own opinions or policy preferences — not based on the plain text of the Constitution.
Activist judges try to cloak their activism in something that seems constitutional. Recall that Roe v. Wade struck down state laws restricting abortion not by quoting the constitution itself but by citing “penumbras” and “emanations” that were supposedly related to actual constitutional rights. Even many liberals now acknowledge that Roe was ill-conceived.
Such exaggerations and falsehoods merely add to the broken promises of ObamaCare. Rather than bring down premiums by $2,500 as promised, ObamaCare will increase premiums. We also know that even if you like your current health plan, there’s a good chance you won’t be able to keep it.
Perhaps the only thing more alarming than the excesses and overreach of ObamaCare is the long march of falsehoods and deliberate misrepresentations employed to justify it.
Mark Hillman served as Colorado Senate Majority Leader and State Treasurer. He is now a Centennial Institute Fellow. To read more or comment, go to www.MarkHillman.com.
('76 Editor) Is there any limit to the power of Congress? That's really the question we heard argued before the Supreme Court in last week's Obamacare debate, and which the nine justices are now sorting out as the nation waits. I know, I know, the case turns specifically on how far the Constitution's commerce clause or necessary and proper clause can be stretched to justify the individual mandate for everyone to buy health insurance (or burial insurance, or cell phones, or broccoli). But in the broadest sense, this is a struggle over whether the time-honored constitutional limitations on federal power over you and me as Americans can now be waved off with the arrogant impatience of Nancy Pelosi saying, "Are you kidding? Are you kidding?"I believe, and you probably do too, that the state exists for individuals. But many people, whether they admit it or not, seem to believe individuals exist for the state. The contest between these two views, in America and around the world, has intensified in the past hundred years. But it has been going on for centuries. In Britain 500 years ago, it played out in the attempt of King and Parliament to overrule the religious conscience of Englishmen and redefine the historic Christian church in accord with the marital whims and economic ambitions of Henry VIII. A giant of personal integrity and political statesmanship from this period is Sir Thomas More, who left his post as the king's chief minister to become the chief obstacle (not by anything he said, but merely by his silence) to consolidation of absolute spiritual as well as temporal power under the crown, ultimately paying with his life. A Man for All Seasons, the 1956 play by Robert Bolt, dramatizes More's rise and fall, with key passages in the dialogue following the documentary record verbatim. At the climax of his trial for treason, More is undone by perjured testimony quoting a belief which he was correctly suspected of holding but had not, contrary to the witness Richard Rich, ever voiced: "Parliament has not the competence" to make Henry the head of the church. That line rang in my ears as Paul Clement pressed his case for constitutional limited government at the Supreme Court. "Congress can't do it," would be the equivalent in today's American vernacular. Under the Framers' explicit intent, few are the things Congress can forbid us as free citizens, and fewer still the things it can compel. Buying something against our will is not one of them. Just because we consent for you to govern us, we say in effect to the legislative and executive and judicial branches through our founding charter, does not mean you own us. Each of us owns ourselves, and you work for us, not we for you. Is that understood? We mean to see that it is!This is not Tudor England, of course. No one's neck is on the block, no matter what the outcome of this PPACA case; but in a very real sense the stakes involve not only freedom of commerce but freedom of conscience. A year ago that might have sounded far-fetched. Not now, not after the HHS mandate for abortion drugs has revealed Obama's naked assertion of preeminence for the things of Caesar over the things of God. To the question of how far the authorities can invade individual liberty and personal responsibility, this president has answered: All the way. To which, if we don't want to be placed under absolute submission, our rejoinder must be in the spirit of Thomas More: "No, never. Parliament has not the competence. Congress can't do it. Not while we have breath."
(Centennial Fellow) The federal government wants power, far more power than the Constitution grants, because, after all, officials don't trust mere citizens to do the right things in their lives, and who better to instruct them than their betters in D.C.?
But there that darned Constitution sits, limiting federal sway in the interest of liberty, at least if one looks at what its words obviously mean. So what's to be done? Easy. The power seekers argue that the explicit meaning of the words doesn't count as much as "principles" that fit their progressive predispositions.
We're nearing calamity if positive change does not gallop to the rescue. I can think of few subjects that better illustrate our plight than the Supreme Court case on the health-care-reform law. If the court says it's OK for Washington to compel citizens to buy health insurance and states to spend themselves into oblivion on Medicaid, say goodbye to just about any federal restraint whatsoever.
We didn't get to this danger overnight. It started with progressives looking at an industrializing, urbanizing nation and failing to note that early abuses were disappearing faster than Congress could pass well-intentioned laws that sometimes had worsening results. When the Supreme Court balked during the New Deal at allowing Congress to disregard constitutional limits, President Franklin Roosevelt said to get with the program or he would pack the court with buddies of his. The justices went prone, all the better to kiss his feet.
A chief transgression that followed was playing games with the commerce clause. It allows Congress to "regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes," but Congress and the courts decided it could mean something much broader, even something as absurd as telling an Ohio farmer named Roscoe Filburn in 1942 that he couldn't grow wheat to feed his livestock.
The movement from rule of law to ridiculous rigmarole gave us a regulatory state stifling our economy and our freedoms. That's not to say all regulations are bad or constitutionally forbidden -- the issue is overreach that now includes an oppressive health-care act that will add significantly to the national debt and to the payments due on millions of insurance premiums.
It will thus endanger our economic future while already keeping businesses from hiring because of expensive obligations to come. It would almost certainly entail health-care rationing of a severity never before seen in this country.
The enactment of this law was based on misconceptions about inferior health care and terribly low longevity that turns out to be the highest in the world when one subtracts deaths due to homicide and accidents.
Yes, there are problems with the health system, just as there are answers. Martin Feldstein, a Harvard economist who once served in the Reagan administration, notes we could take care of the tens of millions who are uninsured by moving from employer-based insurance to individual catastrophic insurance at no more cost than we have today.
Maybe the worst element of Obamacare is the individual mandate telling people they have to buy insurance or pay a penalty. The commerce clause has been cited to justify it, which is silly because the mandate does not regulate commerce. It punishes people for a failure to engage in commerce.
Usually by 5-to-4 votes, the high court has been edging toward reason in recent years, and so there is hope. But if it fails to kill the whole law, we will have a monster on our hands and a Congress allowed to keep creating them forever as our liberties shrink to the unnoticeable. There could be other opportunities for rescue, but a court doing its duty would be a major step in the right direction and would actually foster sane reform of health care at the same time.
Jay Ambrose, formerly Washington director of editorial policy for Scripps Howard newspapers and editor of dailies in El Paso and Denver, is a columnist living in Colorado and a Centennial Institute Fellow. This column is the second in his special series entitled "The Tipping Point Cometh."