Stephen B. Presser, responding to today’s Supreme Court decision in Liberty lost? The Supreme Court punts, makes some very cogent points about what government is and ought to be in demonstrating how unconstitutional Obamacare is. Invoking King James I of England more than 400 years ago, Presser asserts that even for kings the core principle existed that there must be some restraint on government power. Continuing, he notes with John Adams that ours is a government of laws, and not of men.
The U.S. Constitution states, in Article I, Section 8, that “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.” By citing this law one man, Chief Justice John Roberts, made ours a government of men. The four other conservatives on the court did not fall into this trap; recognizing that the Constitution exists to reign in arbitrary power, they realize that the text of the Constitution, “Power to lay and collect Taxes,” does not mean arbitrary power to do so, but only the limited power that the conservatives justices themselves apprehend. It is the conservative justices, who understand the truth behind the text, who remain true to the notion that we must follow the law, and not the government of men.
The Supreme Court derives its power from Article III, Section 1 of the Constitution, “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority.” By assuming the law gave him the right to render a decision about the health care act on the basis of this text, and by citing Congress’ power to tax, Chief Justice Roberts is overthrowing the notion that this is a nation of laws. Presser rightly laments the fact that the ruling leaves “the determination of the scope of Congress’ powers to Congress itself, and to the American people,” rather than to the law itself.
Congress gets its power from Article I, Section 8, particularly the last sentence, that Congress shall have the power “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” By exercising this power in crafting and passing the health care act, Congress also clearly signals that we are no longer a government of laws, but one of men.
But Presser saves his best ammunition for his final arguments. Having lamented that today’s decision improperly leaves power in the hands of the Congress and the American people instead of the law, he calls on Congress and the people to take matters into their own hands and right this travesty.
In a concurring opinion, Ilya Shapiro adds, in Court’s ruling a ‘Frankenstein’s Monster’, that the Constitution is not merely “The Congress shall have Power To lay and collect Taxes”, and not merely “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution”, but, he notes, “a correct application of the Constitution inevitably rests on the Madisonian principles of ordered liberty and limited government that the document embodies.”