Well, well, well... what do we have here?
We have a "Letter to the Editor" from best bud and midtown-Manhattan attorney Carl David VanDemark praising the recent asinine decision of clearly deranged senior federal Appeals Court (D.C. Circuit) Justice Laurence H. Silberman to uphold the constitutionality of ObamaCare.
Regarding Justice Silberman's concurring opinion in Susan Seven-Sky, aka Susan Sevensky, et al., Appellants v. Eric H. Holder (No. 1:10-cv-00950), Counselor VanDemark writes...
Judge Silberman is a genius!
(Now before you tie me to a Thorazine drip and lock me in a rubber room, hear me out.)
Obviously the correct decision is that the individual mandate is unconstitutional. However, in upholding ObamaCare in his recent D.C. Circuit Court of Appeals opinion, Judge Silberman has "thrown down the gauntlet" and challenged the SCOTUS to do the right thing.
You see (this is the genius part), if Judge Silberman had simply held that the individual mandate is unconstitutional, he would have made it too easy for the Supremes (read Justice Kennedy) to hang their hat on one of the other circuit court opinions (e.g., that the mandate is really a tax) and uphold ObamaCare.
But not anymore!
Judge Silberman wrote that judicial validation of the mandate could "turn the Commerce Clause into a federal police power, at the expense of state sovereignty."
That's right folks, uphold ObamaCare and you've just flushed Article I Section 8 of the U.S. Constitution down the toilet.
That's the truth, but can Justice Kennedy handle the truth?
But wait, it gets better! In finding support for his (non-nonsensical) opinion, Judge Silberman went all the way back to Wickard v. Filburn, the 1942 case where the Court held that Congress could limit wheat growing for personal consumption because of the total affect it could have on inter-sate commerce. So... if the individual mandate is not permitted under the Commerce Cause, then neither are laws limiting wheat growing for personal consumption!
At that point (did I mention Wickard was a 1942 case?), the whole house of cards comes crumbling down.
Brilliant I tell you! Brilliant!
(Now before you tie me to a Thorazine drip and lock me in a rubber room, hear me out.)
Obviously the correct decision is that the individual mandate is unconstitutional. However, in upholding ObamaCare in his recent D.C. Circuit Court of Appeals opinion, Judge Silberman has "thrown down the gauntlet" and challenged the SCOTUS to do the right thing.
You see (this is the genius part), if Judge Silberman had simply held that the individual mandate is unconstitutional, he would have made it too easy for the Supremes (read Justice Kennedy) to hang their hat on one of the other circuit court opinions (e.g., that the mandate is really a tax) and uphold ObamaCare.
But not anymore!
Judge Silberman wrote that judicial validation of the mandate could "turn the Commerce Clause into a federal police power, at the expense of state sovereignty."
That's right folks, uphold ObamaCare and you've just flushed Article I Section 8 of the U.S. Constitution down the toilet.
That's the truth, but can Justice Kennedy handle the truth?
But wait, it gets better! In finding support for his (non-nonsensical) opinion, Judge Silberman went all the way back to Wickard v. Filburn, the 1942 case where the Court held that Congress could limit wheat growing for personal consumption because of the total affect it could have on inter-sate commerce. So... if the individual mandate is not permitted under the Commerce Cause, then neither are laws limiting wheat growing for personal consumption!
At that point (did I mention Wickard was a 1942 case?), the whole house of cards comes crumbling down.
Brilliant I tell you! Brilliant!
Hmm... I'm not so sure, Carl. Indeed I fear Silberman has offered Justice Kennedy just the cover he'll need in order to argue that Obama's federal government mandate that insurance be purchased is simply a "logical offshoot of the Wickard decision."
Remember McCain-Feingold, Carl?
You claim that "Silberman has thrown down the gauntlet." Hmm... and your guess is that Kennedy will refuse to pick it up...???
Remember how Bush signed "McCain-Feingold" even while expressing "reservations about the constitutionality of the broad ban on issue advertising."
That was Bush being... er... "clever." (Too clever by half as it turned out!)
That was Bush "throwing down the gauntlet." (How'd that work out, Carl?)
Carl, the fact is, Wickard is the Law of the Land. In 1942 the Supreme Court crossed the Rubicon and laid the foundation for all that has come after. Yes, at times various Supreme Court majorities have fought back, have restricted government intrusion into free markets, but the pattern - from our perspective - has over time been one step forward and two steps back.
Yes, Carl, I understand your premise... your reasoning. You expect Justice Kennedy to "pick up the gauntlet" and joined by Roberts, Scalia, Thomas, and Alito this will enable the "conservative majority" to once and for all drive a stake into the heart of Wickard.
I've gotta tell ya, buddy... not only do I fear Kennedy will do just the opposite... but in addition I wouldn't even trust Roberts and Scalia to take that ultimate step. You need to understand something, Carl... the only "true" constitutionist on the High Court is Clarence Thomas. He's the only one for whom the Constitution itself trumps stare decisis come what may. While Scalia is often misidentified as a true constitutionist, the truth is, Scalia will - depending upon how old and how entrenched bad precedent is - grit his teeth and "abide" by "bad law" if and when he feels the alternative is simply too disruptive to "settled law" and the various precedents which over time have come into being based upon that "settled law."
Anyway, Carl... I hope and pray you're right.
I hope and pray I'm wrong.
If in the end you're proven prescient then it's my treat for all you can drink at Defiant followed by pizza at the Nanuet Restaurant!
If on the other hand my fears turn into reality... it'll be your treat... at Peter Luger.
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