American Elephants


The Arrogance of the President of the United States. by The Elephant's Child

Well, while the rest of us are trying to understand just what Chief Justice John Roberts has done with his ruling, it doesn’t make any difference, you see. Obama has said firmly that the Supreme Court is wrong, it is not a tax, it is a mandate. He doesn’t care what the Supreme Court says. He is the President of the United States, the most important man in the world, and he says it is not a tax.

Funny, that’s what he did with the Arizona decision. The Supreme Court said that Arizona had a right to ask those stopped for possible violations for their papers. In other words, to prove their citizenship. Obama has essentially said that he doesn’t care for that decision, and the federal government will not respond to questions about immigration status from Arizona, unless it concerns a major crime.

And then there is the Department of Justice which has announced that they don’t care if Congress has found Attorney General Eric Holder in Contempt of Congress — they will not prosecute him.

These are not the only examples. There are many, many more where the Obama administration has just chosen to ignore or to refrain from prosecuting laws passed by Congress, or take Congress’ laws as a starting point for going far beyond Congressional intent.

For example, Congress has given the EPA authority to regulate under the Clean Water Act the “navigable waters” of the United States. The EPA is taking this as authority to control any trickle that eventually flows into the waters that are actually navigable. Refusing to open Yucca Mountain Nuclear Repository, after Congress found it the most satisfactory site in the country, with transparent claims of wanting to find a better place. If you start looking for laws that the administration just refuses to enforce — they are all over the place. This is an administration that does not recognize the separation of powers, but only the exercise of its own power.

Constitutional Law professor Randy Barnett at Georgetown Law was one of the architects of the legal case against ObamaCare. In this piece, he explains the origins of the unprecedented exercises of federal power as arising in the Great Depression when political progressives managed to be allowed to regulate any intrastate activity that substantially “affected”interstate commerce.

From then until today, most law professors have taught that the power of Congress to regulate the “national economy” is limited only by congressional restraint, which means that the power is unlimited. When, in 1995, the Rehnquist Court held that Congress could only regulate intrastate activity that was “economic” in nature, the legal intelligentsia threw a fit about “conservative judicial activism.” Until today, these same experts have maintained that this was the only limitation on congressional power, which is why they and the administration were so confident of victory. Since the Affordable Care Act “regulates” economic activity, it must be constitutional.

Today, the Supreme Court definitively rejected this position by holding that mandating economic activity is not the same as regulating it, and that some means Congress chooses to regulate commerce can be improper. Today the court reaffirmed the traditional view that there must be a judicially enforceable limit on the powers of Congress. From now on, Congress will need to take the limits of its own power seriously, because it can be assured that the court will be looking over its shoulder. …

Whatever happens at the polls, however, by affirming that the Commerce Clause and the Necessary and Proper Clause of the Constitution have judicially enforceable limits, today’s decision will be a landmark of constitutional law.

Read the whole thing. Over at Powerline, Attorney John Hinderaker offers a dissent, partly joined by Attorney Paul Mirengoff while examining the same complex problem — the continual expanding of government power beyond those enumerated in the Constitution by using the Commerce Clause as justification. He sees this ruling as very narrow, limited to those in which Congress wants to regulate inaction because it affects interstate commerce. John says “I see no reason to assume that Justice Roberts voted and wrote as he did for any reason other than that he thought he was correctly applying the relevant legal principles to the case before him.”

Scott Johnson, the third attorney at Powerline, pointed out that contrary to popular belief and its own self-image, the Court has rarely been much of a bulwark on behalf of individual liberty. Certainly it has acquiesced, not just today but for many decades, in a steady expansion of federal power beyond what is contemplated by the Constitution. Again, read the whole thing, it’s not long.

Those who seek power have little concern for individual liberty, but we have never before had a president who has so little concern. He is a far-left radical, and wants “radically transforming America” to be his legacy. Unfortunately, he doesn’t understand how old and tired his arguments are, and the extent to which they have always failed wherever they are enacted.


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