Earlier today, every Democrat in the Senate voted against the Ted Cruz amendment to defund Obamacare. Well, every Democrat except for the cowardly Joe Manchin who made sure to be absent for the vote. In doing so, they have painted a bullseye on their backs, as many red state Democrats, such as Max Baucus, Mark Begich, Tim Johnson, and Mark Pryor, will stand for reelection this cycle.
However, there is one point worth repeating. Whether Obamacare is ultimately disrupted or not, we must not cede the point that it is unconstitutional. I heard some Republicans speaking on the floor saying that “yes, the court ruled it’s constitutional, but it’s still bad policy.” No, it is not constitutional, and no court can vitiate the enumerate powers doctrine of the constitution.
The idea that the federal government can tax an activity or even inactivity is absurd, and was an argument concocted by an unprincipled John Roberts in an attempt to “save the court’s image.”
Moreover, the idea that the Commerce Clause vests the federal government with the power to regulate any activity (or inactivity) is preposterous.
Here’s what James Madison had to say about the Commerce Clause in a letter to Joseph C. Cabell in 1829:
For a like reason, I made no reference to the “power to regulate commerce among the several States.” I always foresaw that difficulties might be started in relation to that power which could not be fully explained without recurring to views of it, which, however just, might give birth to specious though unsound objections. Being in the same terms with the power over foreign commerce, the same extent, if taken literally, would belong to it. Yet it is very certain that it grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government, in which alone, however, the remedial power could be lodged.
Madison is bemoaning the expansion and misconstruing of the Commerce Clause circa 1829! One can only imagine what he would say about our entire domestic policy in 2012. The Commerce Clause was never meant to be used as a tool to grow the federal government. Quite the contrary, it was designed as a safeguard against the abuse among the states. Anyone with a shred of intellectual honesty knows that the federal government was never vested with the power to regulate or tax virtually every activity of the individual.
The day we cede ground on this, every other political battle becomes irrelevant.
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