Saturday, February 5, 2011

And we're off!


As I said previously, I'm still undecided on Judge Vinson's ruling.

It comes as no great surprise that an honest conservative, regardless of his or her opinion on the efficacy of The Affordable Care Act, would side with judge Vinson and his opinion on limiting Federal authority as granted by the commerce clause. Here I stress the word "honest". Frankly, it seems to me conservatives and liberals are both equally inclined to lose track of the constitutional issues and cite judicial activism when confronted by rulings which strike down laws they favor. This issue is a perfect case in point. Pay attention here...

I decided to take a look at the previous rulings which upheld the Act and compare their reasoning to judge Vinson's. Last year, in a suit brought by Liberty University (Howard's alma mater!), Lynchburg based federal judge Norman K. Moon ruled in favor of the Feds. Similarly, in a suit brought by the (ubiquitous) Thomas More Law Center, judge George Carom Steeh ruled for dismissal. Thoughtful observers will note that Moon and Steeh were both appointed to the bench by Democrats, whereas Vinson was appointed by a Republican. I guess you would have to be blind not to see that this distinction explains at least in part the different rulings.

But only in part - and that's important. Personally I see other motives operating, wheels within wheels if you will, which seem to go beyond the simple explanation of liberal vrs conservative. To wit:

As you might expect, in his 20 page opinion (a mere dip of the toe compared to judge Vinson's 128 page extended swim), judge Steeh saw the The Affordable Care Act to be entirely within the scope of the commerce clause. One of the cases he cited in support of his logic was the 2005 Supreme Court ruling in Gonzales vrs Raich. Here's where things get really interesting.

To summarize, California resident Angel Raich grew marijuana for his own medicinal use, a practice which was absolutely legal under California law. The U.S. government saw otherwise. Consequently local authorities, accompanied by the DEA, destroyed Mr. Raich's marijuana plants and Raich sued. The case made it all the way to the SCOTUS and there Mr. Raich lost. From the wikipedia article:

"Gonzales v. Raich (previously Ashcroft v. Raich) ... (2005), was a decision by the United States Supreme Court ruling that under the Commerce Clause of the United States Constitution, the United States Congress may criminalize the production and use of home-grown cannabis even where states approve its use for medicinal purposes..."(my emphasis).

Curiously, the case divided the two most conservative judges: Scalia and Thomas. In concurrence, while recognizing the limitations of the commerce clause, Judge Scalia offered a line of reasoning which should put him at odds with Judge Vinson. Judge Scalia wrote:

"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." (again, my emphasis)

Now believe it or not, this was pretty much the same line of reasoning the Feds offered judge Vinson with regards to the individual mandate.

In dissent, Thomas stuck to his conservative guns and concluded:

"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"..."

Oh my! Forgive me for chuckling, but isn't it entertaining to watch a sure 'nuff throw down between a couple of iconic conservative pit bulls? Anyway...

My own opinion here is that judge Scalia was most likely inclined to stretch the the interpretation of the commerce clause because in his heart of hearts he sided with the Feds on the issue of enforcing laws against the production and use of marijuana. Judge Thomas on the other hand looked further down the road and saw this as an unjustifiable expansion of Federal authority. What a pickle!

Now since we both know judges Scalia and Thomas, not to mention all the rest of the Supremes, will be fervently checking into our blog for guidance on this most important issue, I suggest we apply our customary perceptivity to it most ricky tik. Que pensez-vous?


No comments:

Post a Comment