This column presents facts regarding the United States Constitution, the Declaration of Independence, the Wisconsin State Constitution, and various other documents in reference to modern topics. Mark hopes to encourage interest in those works so that others can consider whether our government is practicing within its constitutional limits. In the last category, he may indicate his opinion. Mark is a resident of New Berlin. Readers are encouraged to visit the following sites for more information on the United States Constitution and Thomas Jefferson's views on politics and government.
According to the Wall Street Journal, May 11, 2011 (full article available on-line)
RICHMOND, Va.—A federal appeals-court panel Tuesday questioned the state of Virginia's right to sue to overturn the federal health-care overhaul and showed sympathy to the Obama administration's arguments on the substance of the law.
The three judges on the panel, chosen at random using a computer program, provided a favorable forum for the administration. All are Democratic appointees, with two named by President Barack Obama and one by President Bill Clinton.
In two and a half hours of rapid-fire questioning, the panel at the U.S. Court of Appeals for the Fourth Circuit here heard arguments in two suits challenging the 2010 health overhaul. Plaintiffs contend the law violates the Constitution by requiring Americans to either carry insurance or pay a fee.
The hearing previewed how the Obama administration likely will argue before Supreme Court, which is expected ultimately to decide the case perhaps as soon as its 2011-12 term. It was the first oral argument before a federal appellate court, with the Fourth Circuit hearing two challenges side by side.
In Tuesday's hearing, the three appellate judges sharply questioned what gives Virginia "standing," or the right to sue the federal government in the case. Virginia ties its standing to a 2010 state law that says people in the state can't be forced to pay a penalty for lacking health coverage.
"How on earth can there be standing if all it takes is Virginia to pass a statute and for the attorney general to come to court?" asked Judge Andre M. Davis, an Obama appointee. Judge James A. Wynn Jr.,also appointed by Mr. Obama, raised the question of whether the state law was created simply to gain standing.
E. Duncan Getchell, Jr., solicitor general of Virginia, ticked off a list of what he called similar cases in which states including Oregon and Wyoming have sued on behalf of residents' interests. "We can't give ourselves standing by declaration," he told the court.
"Isn't that exactly what you just did?"Judge Davis shot back
After Tuesday's hearing, Mr. Cuccinelli said he would appeal to the U.S. Supreme Court if the appeals court finds he lacks standing.
The other case at issue Tuesday was brought by Liberty University, which contended that failing to have health coverage is "inactivity" and can't be regulated under the Constitution's Commerce Clause. Courts have found that Congress has the power to regulate economic activity under that clause.
Liberty lost at the district-court level and ran into more trouble with the appellate panel. Judge Diana Gribbon Motz, a Clinton appointee, noted that the penalty would be levied through an individual's federal income tax returns, which must be filed. "Is it not an activity?" she asked, referring to the filing of taxes.
Acting U.S. Solicitor General Neal Katyal, who argued for the Obama administration, said almost all Americans get health care and having insurance is just a mechanism of helping pay for it first. He said the mandate will prevent those who are covered from being forced to absorb $43 billion a year in uncompensated care. "We don't know the chance that we will get hit by a bus or struck by cancer," he said.
Mathew D. Staver, counsel for Liberty University, argued that some Americans "chose not to put themselves into that stream," he said. "They want to be left alone."
Federal Appeals Court of the 4th Circuit VS. The Constitution
US Constitution; Amendment 9
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
US Constitution; Amendment 10
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
“In the first place it is to be remembered that the general government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects, which concern all the members of the republic, but which are not to be attained by the separate provisions of any. The subordinate governments, which can extend their care to all those other subjects which can be separately provided for, will retain their due authority and activity.”
James Madison, Federalist 14 (excerpt)
“It may safely be received as an axiom in our political system, that the State governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority.”
Alexander Hamilton, Federalist 28 (excerpt)
We the People:
Those plain words of the Constitution deny this power to the federal government. So every US citizen can see that we already have standing according to the ninth amendment and every state already has standing per the tenth. That is reinforced by Alexander Hamilton’s plain words. You and I can see how these judges of the fourth circuit court are reaching for some rationalization to divert the argument. If they proceed in this way, is it because we just cannot understand their superior reasoning, or is it an impeachable violation of the judges’ oaths?