Friday - March 26, 2010

Be afraid

Thanks to Rich K, who emailed me the link and reminded me that we are so totally screwed. PLEASE read the linked story. Then please figure out how to curb the beast, given the established legal precedents and a politically influenced Supreme Court. I’m not seeing a way, outside of torches and pitchforks.

We’re going to be hearing a lot about the commerce clause, the dormant commerce clause, and preemption thanks to anti-federal health care lawsuits by state attorney generals. If they rely on the standard arguments made in such cases, they (and we) will surely lose.

Preemption is a concept of Article VI of the United States Constitution:

This Constitution, and the laws of the United States which shall be made in pursuance thereof ... shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

The only condition that needs to be satisfied is that the federal law be shown to have been made pursuant to the Constitution. The reach of the interstate commerce clause is well-known and documented: Basically any activity or product that “affects interstate commerce” can be federally regulated.

What affects interstate commerce? Just about everything. In one of the few cases nullifying a federal law as exceeding the reach of the commerce clause, the majority challenged the dissenters to name an area of activity that the federal government cannot regulate. Needless to say, no answer was forthcoming. When the standard is “affecting interstate commerce,” there is no activity or product that is separated by more than one degree.

There appears to be no escape from the logic of the federal argument: Once a federal law has been shown to be made pursuant to the Constitution, state laws and/or constitutions are preempted. When the standard is as broad and as vague as “affecting interstate commerce,” there is no activity that cannot be regulated by the federal government.

If Congress has the power under the commerce clause to make all armed robberies affecting interstate commerce (that is, all armed robberies) federal crimes, then it may, according to the Clear Statement Doctrine, expressly nullify all state armed robbery laws in all states. If Congress has the power to nullify state armed robbery laws, then it has had that power from the beginning. If Congress has had that power from the beginning, then states have never had it: They merely exercised that power until Congress awakened its dormant commerce clause power.

One can substitute any activity or product affecting interstate commerce for armed robbery, and one would necessarily reach the same conclusion.

And everything can be shown to affect interstate commerce.

We need another amendment. I think we might need a revolution first. We certainly do not need this crop of tyrants in DC.

Posted by Drew458     on 03/26/2010 at 03:17 PM   
Filed Under: • Tyrants and Dictators •  
• Comments (2) • Trackbacks(0)  Permalink •  

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It's been a long strange trip without you Skipper, but thanks for pointing us in the right direction and giving us a swift kick in the behind to get us going. Keep lookin' down on us, will ya? Thanks.

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