Why The Political Class Needs Weeding Out

[Annie]

It's what makes me move away from both parties-they do the same things in different ways to the people, for their own power/money gains:

http://www.nationalreview.com/bench...-contains-landmine-federalism-carrie-severino

Senate GOP Jobs Bill Contains a Landmine for Federalism
By Carrie Severino
Posted on October 18, 2011 10:57 AM


Douglas Holtz-Eakin offers three cheers for the “Jobs Through Growth Act,” the Senate Republican alternative to President Obama’s jobs bill...


On the upside, the bill would repeal the Obama administration’s two most aggressive assaults on the Constitution — Obamacare and Dodd-Frank — and “require congressional approval by joint resolution of any federal rule that would cost the economy $100 million or more.” ...


Unfortunately, the bill would also enact S.197, “The Medical Care Access Protection Act.” Among other things, S.197 sets a statute of limitations for claims, caps damages and creates standards for expert witnesses. These may sound like great ideas, but they are not within the constitutional powers granted to the federal government for the very same reasons Obamacare is not.


The law’s own justification for its constitutional authority should be chilling to anyone committed to limited federal power. The bill’s findings state that health care and health insurance are industries that “affect interstate commerce,” and conclude that Congress therefore has Commerce Clause power to regulate them — even when it involves an in-state transaction between a doctor and patient, governed by in-state medical malpractice laws. Is there any industry that couldn’t be found to have an effect on interstate commerce? The agriculture and manufacturing industries, long considered the paradigmatic areas not covered by the Commerce Clause, certainly fall under federal power under this broad analysis.


As Georgetown law professor Randy Barnett explains here, in a piece criticizing Republicans for their “fair-weather federalism, “tort law — the body of rules by which persons seek damages for injuries to their person and property — has always been regulated by states, not the federal government. Tort law is at the heart of what is called the ‘police power’ of states.” Of course, there are contexts — product liability, for example — in which states can take actions that set standards for the entire country, turning federalism on its head. (See Michael Krauss’s brief summary here.)


...

 

[Centinel]

It's what makes me move away from both parties-they do the same things in different ways to the people, for their own power/money gains:

The law’s own justification for its constitutional authority should be chilling to anyone committed to limited federal power. The bill’s findings state that health care and health insurance are industries that “affect interstate commerce,” and conclude that Congress therefore has Commerce Clause power to regulate them — even when it involves an in-state transaction between a doctor and patient, governed by in-state medical malpractice laws. Is there any industry that couldn’t be found to have an effect on interstate commerce? The agriculture and manufacturing industries, long considered the paradigmatic areas not covered by the Commerce Clause, certainly fall under federal power under this broad analysis.

The commerce clause:

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

The word "affect" does not appear. Congress has the power to regulate commerce among the states, not any activity that might somehow effect commerce. To give congress power to regulate any activity that might somehow effect would be to give congress virtually unlimited power.

The fact that this proposal comes from Republicans is just shows how both Democrats and Republicans have abandoned the founders' constitution.

 

[SmarterthanYou]

The commerce clause:

The word "affect" does not appear. Congress has the power to regulate commerce among the states, not any activity that might somehow effect commerce. To give congress power to regulate any activity that might somehow effect would be to give congress virtually unlimited power.

The fact that this proposal comes from Republicans is just shows how both Democrats and Republicans have abandoned the founders' constitution.

reference the bolded part. someone should probably have a discussion with the SCOTUS then, because there are several cases throughout the last century where congress has indeed been given this power, despite it not being listed in the constitution. see, both democrats and republicans would have us believe that they do support the constitution, when in fact the only thing they support is ultimate federal power, especially via the commerce clause. Wickard v. Filburn was just the start. It culminated with Gonzales v. Raich, where SCOTUS handed over to congress the authority to do pretty much anything it ever wanted to without giving a damn about the soon to be unintended consequences. Even Scalia, the so called 'originalist' felt is was more important to decide the Raich case based on his ideology rather than the constitution when he submitted a separate concurring opinion to throw away limited federal power using the necessary and proper clause.


Scalia's opinion

Justice Scalia wrote a separate concurrence that aimed to differentiate the decision from the more recent results of United States v. Lopez and United States v. Morrison. Although Scalia voted in favor of limits on the Commerce Clause in the Lopez and Morrison decisions, he said that his understanding of the Necessary and Proper Clause caused him to vote for the Commerce Clause with Raich for the following reason:
“ Unlike the power to regulate activities that have a substantial effect on interstate commerce, the power to enact laws enabling effective regulation of interstate commerce can only be exercised in conjunction with congressional regulation of an interstate market, and it extends only to those measures necessary to make the interstate regulation effective. As Lopez itself states, and the Court affirms today, Congress may regulate noneconomic intrastate activities only where the failure to do so “could … undercut” its regulation of interstate commerce. ... This is not a power that threatens to obliterate the line between “what is truly national and what is truly local.”[7] ”
[edit] Dissenting opinions

Justice O'Connor, dissenting, began her opinion by citing United States v. Lopez, which she followed with a reference to Justice Louis Brandeis's dissenting opinion in New State Ice Co. v. Liebmann:
“

Federalism promotes innovation by allowing for the possibility that "a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country..."[8]
”

O'Connor concluded:
“

Relying on Congress’ abstract assertions, the Court has endorsed making it a federal crime to grow small amounts of marijuana in one’s own home for one’s own medicinal use. This overreaching stifles an express choice by some States, concerned for the lives and liberties of their people, to regulate medical marijuana differently. If I were a California citizen, I would not have voted for the medical marijuana ballot initiative; if I were a California legislator I would not have supported the Compassionate Use Act. But whatever the wisdom of California’s experiment with medical marijuana, the federalism principles that have driven our Commerce Clause cases require that room for experiment be protected in this case.
”

Justice Thomas also wrote a separate dissent, stating in part:
“

Respondent's local cultivation and consumption of marijuana is not "Commerce ... among the several States."

Certainly no evidence from the founding suggests that "commerce" included the mere possession of a good or some personal activity that did not involve trade or exchange for value. In the early days of the Republic, it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana.
”

and
“

If the Federal Government can regulate growing a half-dozen cannabis plants for personal consumption (not because it is interstate commerce, but because it is inextricably bound up with interstate commerce), then Congress' Article I powers -- as expanded by the Necessary and Proper Clause -- have no meaningful limits. Whether Congress aims at the possession of drugs, guns, or any number of other items, it may continue to "appropria[te] state police powers under the guise of regulating commerce."
”

and further:
“

If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States. This makes a mockery of Madison's assurance to the people of New York that the "powers delegated" to the Federal Government are "few and defined", while those of the States are "numerous and indefinite."[9]
”

Chief Justice William Rehnquist, author of the majority opinions in United States v. Lopez and United States v. Morrison, joined O'Connor's dissent

 

[Centinel]

reference the bolded part. someone should probably have a discussion with the SCOTUS then, because there are several cases throughout the last century where congress has indeed been given this power, despite it not being listed in the constitution. see, both democrats and republicans would have us believe that they do support the constitution, when in fact the only thing they support is ultimate federal power, especially via the commerce clause.

Yes, someone should definitely have a discussion with the SCOTUS.

SmarterThanYou, I see you've got a quote from federalist 33 in your sig. Have you ever read 46? In it, Madison explains how the states might "resist and frustrate" unwarranted measures by the federal government.

Check out this part:

But ambitious encroachments of the federal government, on the authority of the State governments, would not excite the opposition of a single State, or of a few States only. They would be signals of general alarm. Every government would espouse the common cause. A correspondence would be opened. Plans of resistance would be concerted. One spirit would animate and conduct the whole. The same combinations, in short, would result from an apprehension of the federal, as was produced by the dread of a foreign, yoke; and unless the projected innovations should be voluntarily renounced, the same appeal to a trial of force would be made in the one case as was made in the other. But what degree of madness could ever drive the federal government to such an extremity. In the contest with Great Britain, one part of the empire was employed against the other. The more numerous part invaded the rights of the less numerous part. The attempt was unjust and unwise; but it was not in speculation absolutely chimerical. But what would be the contest in the case we are supposing? Who would be the parties? A few representatives of the people would be opposed to the people themselves; or rather one set of representatives would be contending against thirteen sets of representatives, with the whole body of their common constituents on the side of the latter.

Look at what Madison is saying here. Essentially, when the federal government undertakes "ambitious encroachments", the states would organize to resist, including military resistance, if necessary.

The supreme court is just one part of the federal government, and it just as possible that the court could encroach upon the liberties of the people of the states as the legislature or the executive could. Whether the encroachment come from the court, the congresss, or the president, it is the responsibility and the duty of the state governments to protect their citizens from the encroachment.

Note the bolded part above. Madison is asserting that the people of the states would react to encroachments by the federal government in exactly the same way as they would react to the dread of a foreign yoke. In either case, they would resist, militarily if necessary.

Nowhere does he say, "Unless, of course, the encroachment is approved by the supreme court."