Americans who respect the Constitution have been heartened by the oral arguments in the Supreme Court over the constitutionality of Obamacare.  Based on the thrust of the questioning and comments by Chief Justice Roberts and Justices Kennedy, Scalia and Alito, there is good reason to hope that not only will the individual mandate be ruled unconstitutional, but that as a result the entire 2,700 page law will be thrown out.

We will not know with certainty until the actual decision is released, which Court observers expect will be in June.  Justice Kennedy has disappointed constitutionalists before, and is capable of cobbling together some narrow reason to let the individual mandate and the entire law survive.  However, assuming the law is ruled invalid, what next?  Historical comparisons are never exact, but those who have studied the rise of the modern federal regulatory state can feel a sense of déjà vu over the events of the last few days.

In the mid-1930s, a series of headline-making Supreme Court decisions overturned not one but many aspects Franklin Roosevelt’s New Deal.  Some observers thought the whole Roosevelt program dead, and expected a major Republican comeback in the 1936 elections.  Instead, FDR went on the attack, blaming “economic royalists” for the continuation of the Depression and denouncing the Supreme Court for blocking Democrats’ efforts to use government to “help” Americans recover from the Depression.  One can reasonably argue that the entire Democrat campaign was a massive prevarication, but politically it worked.  FDR won re-election in a landslide, and Democrats made substantial gains in Congress.

In the midst of this political attack, one of the Supreme Court justices who had been voting against the New Deal laws, Owen Roberts (no relation to the current Chief Justice), switched to uphold a New Deal law like one the Court had struck down only a year before.  Shortly thereafter Roosevelt launched his infamous “court-packing” scheme, so Roberts’ vote has since become known as the “switch in time that saved nine.”  However, more important than this, other justices who had been voting against the New Deal laws began to retire.  Although he had not been able to appoint a single justice in his first term, by the end of his presidency FDR had named eight of the nine justices.

Starting from 1937, the increasingly Democrat Supreme Court reversed most of the anti-New Deal decisions, and effectively eliminated all constitutional restraints on federal economic regulation.  This culminated in the 1942 Wickard v Filburn decision which held that if an economic activity might affect interstate commerce the federal government can regulate it.

Wickard is the foundation on which not only Obamacare, but almost every other modern federal economic regulatory scheme is based.  It is the basis for allowing the EPA to regulate the use of tiny parcels of land and to stop any economic activity which might affect a single obscure species found in only one state.  It is the basis for preventing a local farmer who only sells locally from calling his produce “organic” unless she or he complies with reams of federal paperwork.  The examples go on ad nauseam.  At the end of his presidency, FDR boasted that, although he had lost the battle over his court-packing plan, he had won the war of bringing the Supreme Court into line with his New Deal philosophy of vastly expanded federal power.

What lessons do the events of the 1930s have for us today?  First, it is still critical that Obama be defeated.  It is almost certain that any decision against Obamacare will be 5-4.  Justice Scalia is 76 years old and Justice Kennedy is 75.  While Justice Thomas is “only” 63, he is said to be frustrated with his lonely stance of firmly standing by the Constitution’s original meaning (even Scalia can drift from respect for the Constitution’s original meaning).  All Obama has to do is to replace any one of these three in a second term, and the Supreme Court will shift to upholding the leftist agenda by consistent 5-4 votes, including reversing any decision against Obamacare by the current Court.

As many have pointed out, a decision overturning Obamacare may ironically help produce this result if conservatives get complacent over a Supreme Court victory.  Obama will be relieved of the burden of defending the wildly unpopular law, yet will be able to energize his base by denouncing the “Republican” Supreme Court’s obstruction of his efforts to “help” the people.  (On the other hand, there might be a somewhat offsetting advantage if Romney is the Republican nominee, since he is ill-equipped to attack Obamacare.)

Second, a Supreme Court decision against Obamacare could dilute the energy for reducing federal power back to something approaching its original constitutional bounds.  The legal arguments presented against Obamacare assume the validity of all prior Supreme Court decisions.  A decision overturning Obamacare will draw a line against the further expansion of federal power, which is a very good thing, but it will do nothing to roll back the previous expansion of federal power since the New Deal.  The EPA and all of the other alphabet soup of czars and regulatory agencies will remain undisturbed.  Again, complacency and lack of a clear target are the dangers.

(However, there is a somewhat offsetting advantage here also.  The publicity over the Obamacare cases has significantly raised public awareness of Wickard and its ilk, cases which even most lawyers had forgotten about if they were more than a few years out of law school.  This can only help in the larger war of educating Americans on how the federal government has expanded far beyond the limits the framers so carefully built into the Constitution.)

Third, a victory in the Supreme Court will perpetuate the myth that the Supreme Court will protect our freedoms.  As the FDR New Deal cases like Wickard and many since show, the Supreme Court is just as capable of taking away our freedoms as it is of preserving them.  We need to get over the New Deal idea that the Supreme Court is the ultimate arbiter of the meaning of the Constitution, and has the right to change its meaning to keep it up-to-date with current social thought.  We can not rely on the Supreme Court.  Only the political victory of Americans who respect the Constitution, reinforced by constitutional amendments restating and re-affirming the Constitution’s original meaning and structure, can permanently assure the restoration of our freedoms and Republic.

To accomplish the first we need to elect constitutionalists to Congress and state and local offices, not just the presidency.  To accomplish the second, we need to reform the amendment process to allow states to initiate and enact amendments without having to go through Congress or the unused and archaic mechanism of a convention. Such a proposal can be found at http://www.timelyrenewed.com/?page_id=317.

James W. Lucas is an attorney and the author of Timely Renewed: Amendments to Restore the American Constitution and the forthcoming Are We the People?: Using Amendment to Take Back Our Constitution from Big Government, Big Business, and the Supreme Court.   He blogs at www.timelyrenewed.com.

Two recent articles from the other side have put the lie to several Obama administration talking points without even realizing it.  One is that the bank bailout money is well on its way to being repaid and that the government has made a profit on it.  However, in an article entitled Banks Repaid Fed Bailout With Other Fed Money the Huffington Post reports that 48% of the money banks repaid to the government was taken from other federally funded programs that were intended to supply capital for loans to small business.  Instead the money went to payoff the bailout money.  The article cites GAO reports that of $205 billion lent under the first phase of TARP, the feds have been paid $211 billion.  But if $101 billion of that $211 billion came from other federal funding, that just means that the taxpayers have been paid back with their own money, not the banks’ money, and that the taxpayers are actually still $104 billion behind in the bank bailouts.  This completely contradicts Obama administration claims that the bank bailout money has been paid back at a profit.

A few days later the HuffPo reported that the Banks Figure The Feds Are A Safer Investment Than You.  This article notes that despite record low interest rates on Treasury debt, banks are investing in that instead of making loans to small businesses.  The banks can still make money on treasuries because they can borrow from the Federal Reserve for essentially no interest.  The Fed is doing this “because it sees the economy as dead in the water.  And the banks are sitting on that cash hoard because they, too, see the economy as dead in the water.”  So much for Obama administration hype about the economy surging on the rebound.

Of course, neither article explicitly makes the connection that these facts totally undermine the Obama administration’s economic claims.  But that is to be expected of the leftstream media.  More interesting is that they illustrate the Left’s failure to understand the deep relationship between the Left’s great nemesis, Wall Street, and its great love, Washington.  There is a reason Goldman Sachs people gave four times as much money to Obama in 2008 as they gave to McCain.  The flow of money from the Fed and the feds to the banks under Obama dwarfs all of the other bailout boondoggles.

Progressives dream that they can somehow purify Washington, and rescue it from Wall Street.  However, centralizing power can only facilitate centralizing wealth.  As I have argued elsewhere, progressives need to realize that Wall Street’s dominance of the nation will only end when Washington’s dominance of the nation ends.

Part of the attention Newt Gingrich has attracted recently, both good and bad, has focused on his proposals for reining in an activist federal judiciary.   Some of the proposals include congressional legislation limiting the federal courts’ jurisdiction in certain areas, abolishing particularly out-of-c0ntrol courts, presidential defiance of decisions he deems unconstitutional and calling judges before Congress to explain their decisions (hysterically translated in the MSM into “arresting” federal judges).   In a recent Wall Street Journal piece conservative legal scholar Curt Levey has defended these positions as technically constitutional.  However, there is a better (and more conservative) way to address judicial imperialism.

Newt’s complaints about judicial legislating are very legitimate.  The extent of our judiciary’s exercise of anti-majoritarian power is inconsistent with democratic governance.  However Newt’s proposals, while technically constitutional as Mr. Levey argues, run the risk of promoting destabilizing confrontations between the branches, and worse could be dangerous in the hands of a leftist President and Congress.   The better solution to judicial imperialism is the majoritarian process provided in the Constitution, which is amendment.  Constitutional amendment would be an orderly and democratically legitimate way to overrule anti-majoritarian judicial decisions.

Unfortunately, the path of constitutional amendment is considerably restricted by requirements of Article V which are the most stringent of any written constitution in the world.  Worse, half of Article V is moribund as its requirement that the states can only initiate amendment proposals through a convention has effectively blocked their introduction of amendments which would limit the ever-increasing centralization of power in Washington.

If Gingrich wishes to curtail judicial imperialism, he would do better to promote the re-energizing of the amendment process through the reform of Article V.  There are several ways Article V could be amended to facilitate greater use of the amendment process to check the excessive power of the judiciary while still preserving its fundamental concept of requiring super-majorities to change our foundational law.  The most important of these would be eliminating the archaic and useless requirement of a convention for states to initiate amendment proposals.  Eliminating the convention requirement would permit amendments to arise directly from the states which are much closer to popular influence than the remote elite Washington establishment which currently holds a monopoly on the meaning of our Constitution.    A specific proposal for such an “amendment amendment” can he found here.

One of the arguments in the current budget battle is over funding for public broadcasting, which fiscal conservative Republicans want to cut and Democrats and RINOs want to keep.  Separate from the budget battle but still very active at the present time is the argument over the so-called “fairness” doctrine.  This is the view that anyone with a broadcast license can be required to give “equal” time to opposing viewpoints on controversial issues.  Conservative defenders of the First Amendment, who are also usually fiscal conservative Republicans, oppose the imposition of the “fairness” doctrine while statist Democrats seem to keep dredging it up.

Now we are told that, because of split control of the government for the next two years, we must compromise on budgetary matters.  While I personally believe that we must instead make a stand and finally  push back the bloated behemoth which is our federal government, I am willing to accept the wisdom of my betters in Washington and try to think of ways to compromise.  And I think I have come up with one!  Let PBS and NPR keep their government funding, but subject them to the fairness doctrine.

It’s a beautiful compromise.  Leftists get taxpayer money for their public broadcasting and at least a partial implementation of the fairness doctrine.  After all, if the fairness doctrine is so great, why not get it implemented whenever and wherever possible?  Although conservatives may object to its imposition on private broadcasters, surely they can not complain about its application to taxpayer-funded broadcasting?  And on my side, although my preference would be to end all taxpayer funding of any broadcaster, as a fiscal conservative I would consent to such a compromise in a spirit of “moderation” and “reasonableness,” and of course above all to avoid being called an extremist by Chuck Schumer.

So what would our beloved PBS and NPR look like under the fairness doctrine?  Well, take as an example the 90 minute documentary I just watched on my local PBS station called “Journey to Planet Earth: Plan B: Mobilizing to Save Civilization.”  Hosted by Matt Damon and starring “environmental visionary” Lester Brown, this documentary presented as incontrovertible fact the view that if we don’t reduce our CO2 emissions by 80% by 2020, human civilization is certainly doomed.  (By the way, don’t worry.  We can easily achieve this goal.  All we need is a complete government takeover of the economy like in World War Two. Whew, what a relief!)  Now I think it would be completely reasonable under the fairness doctrine to require PBS to give an equal amount of time in an equivalent time slot to a documentary questioning climate change science.  Or any program sympathetically reporting on gay marriage would require a program of equal length and placement sympathetically reporting on the opposition to gay marriage.  Any program warning of the dangers of right-wing extremism would require one reporting on the dangers of left-wing extremism.  NPR commentators would have to be strictly allocated across the political spectrum, which means they would suddenly have to sign up a host of conservatives (maybe they could just make a deal to carry Rush Limbaugh?).

Yes, a beautiful compromise.  Or maybe, as the man said in the covert video, they would finally agree that public broadcasting would be better off without federal funding.

Now even the New York Times is reporting on the phenomenon of “anchor babies” or “birthright citizenship,” where women come to the United States to give birth so that their babies can claim automatic citizenship under the first sentence of the first section of the 14th Amendment.  The story reports on a home in San Gabriel, California which housed expectant Chinese women who paid $9,000 to $14,000 to come to the US to give birth.  Another sch establishment is a lovely little hotel in Manhattan which caters to Turkish mothers-to-be (it even provides strollers).  All these babies will be able to claim a US passport and open entrance into the US and, when they turn 21, will be able to apply for US residency for their parents (hence the term ‘anchor’ baby).

The constitutional language in question states that “all persons born … in the United States, and subject to the jurisdiction thereof” are citizens.  It was included in the 14th Amendment as a last minute afterthought to overrule the Dred Scott decision and assure that the freed slaves would be citizens.  Some are arguing that the “subject to the jurisdiction thereof” language should allow Congress to exclude anchor babies by statute, but that argument does not seem to be gaining much traction.  Many others have argued for the repeal of this section of the 14th Amendment all together.  Then Congress clearly could deal with the issue by statute under its power to “establish an uniform Rule of Naturalization.”  The problem here is that the hurdles to constitutional amendment are tremendously high.

Therefore, as long as we’re looking at amending the first section of the 14th Amendment, what we really need to do is look at the second sentence of the first section as well.  This is the sentence which contains the “due process” and “equal protection” phrases which federal courts have used as an open-ended license to rewrite the Constitution in accordance with their personal policy preferences.  It is under these phrases that federal courts dictate to state and local governments on police and a host of other local matters, it is these phrases that federal judges have expanded to include not only race discrimination but any other privileged group which the judges deem to be entitled to special protection, it is these phrases which gave us Roe v. Wade and the Perry v. Schwarzenegger decision in California which will mandate gay marriage throughout the United States if it prevails in the Supreme Court.

A blog post is not the place to detail the innumerable judicial abuses of the 14th Amendment.  Instead, let’s focus on the solution, which is to amend the first section of the 14th Amendment to restore its original meaning.  That original meaning was only to ban governmental race discrimination.  The great originalist constitutional scholar Lino Graglia of UT has long argued for this, and I lay it out in detail in my book Timely Renewed: Amendments to Restore the American Constitution.   In the process we could also remove the now misused first sentence.  But, more importantly, we could remove two dangerously vague phrases which have empowered an unchecked elitist judiciary to impose its social values on America by judicial fiat.  That is worth the effort of amending the Constitution.  For more, please see http://www.timelyrenewed.com.

There is much being said and to be said about President Obama’s decision to send US military forces to do whatever it is they are doing in Libya.  Some of this commentary is even noting that there is something in the Constitution about going to war, even citing Section 8 of Article 1 which vests in Congress the power “To declare War.”  Since the last time the United States declared war was 1941, most Americans have no recollection of Congress actually doing this.  However, all living Americans have very real knowledge of the United States being at war, for we have been almost continuously involved in military action from the end of the last declared war (World War Two) to the current moment.   How is it that we have been at war for six decades without any declaration of war?

In that time Presidents, both Democrat and Republican, have promoted the idea that the President has a right independent of Congress to send US forces into combat.  For most of our history this idea would have been rejected as a violation of the separation of powers written into the Constitution.  According to Madison, the constitutional arrangement was that Congress decided whether to engage in hostilities and only then would the President carry out the operations as commander-in-chief.

Since the 1950s this clear arrangement has broken down and the situation has become very murky.  As noted, Presidents have claimed the power to launch operations on their own authority.  Sometimes they solicited vague authorizations from Congress short of a formal declaration of war, such as the Gulf of Tonkin resolution which Lyndon Johnson used to expand the US involvement in Vietnam, or the resolution which George W. Bush used to invade Iraq and Afghanistan.  When the Presidents do not bother consulting the Congress, the Congress has acquiesced by not taking any action to stop the President and continuing to authorize appropriations to fund the actions.

Once, in 1972, Congress did push back by passing the War Powers Resolution.  This requires the President to notify Congress of the commencement of a military action, and then get a congressional approval within 60 days.   Most scholars consider the War Powers Resolution to be fairly ineffectual in restoring congressional priority in decisions to go to war.  Even so, Richard Nixon vetoed it (it was passed by more than the two-thirds of Congress needed to override the veto) and every President since has rejected its attempt to limit their power to commence military action.  Despite his statements in support of the War Powers Resolution when he was a Senator, President Obama now appears to be as willing to reject it as have all of his recent predecessors.

My purpose here is not to comment on the wisdom of any of our military engagements since 1945, including the current exercise in Libya.  My concern is deeper.  I believe in the wisdom of the separation of powers in the Constitution.  Governments possess no power more terrible than the ability to go to war.  The Framers felt that no single officer of the government, even the President, should have the power to go to war on his sole and exclusive authority.  We have lost sight of that fundamental principle, and as a result 80,000 Americans have died in wars launched contrary to the requirements of the Constitution.

Of course, supporters of presidential war powers have responses to this.  They say that modern warfare is murkier and faster than in the times of the founding.  In our times, there is not enough time for a debate in Congress.  I am willing to concede that modern circumstances are different.  However, is that sufficient justification for a de facto amendment of the original constitutional arrangement?  Is this simply another example of the concept of the “living Constitution”?  This philosophy basically says that the federal government can change the constitutional allocation of powers to adjust to modern conditions without a formal amendment to the Constitution if they can get away with it.  Despite the fact that many so-called conservatives have supported this shift in the war-making powers, if we are going to respect the Constitution and the rule of law, we must reject this interpretation just as vigorously as we do other modern distortions of the Constitution.

So how do we deal with the changed modern conditions of war?  In chapter 7 of my book Timely Renewed: Amendments to Restore the American Constitution, I propose an amendment which moves the requirement of congressional approval back to a point where proper congressional deliberation is still possible.  This is before US forces are even sent overseas.  The amendment would require a distinct congressional approval for any deployment of US forces outside of US territory, and further require that that approval be renewed every two years or else the troops have to be brought home.  Not only will this restore the Congress’ original constitutional authority to make the basic policy decision about our foreign wars, but also force us to review our far-flung worldwide military operations in an era of massive budget deficits.  See http://www.timelyrenewed.com

Democrats and their propagandists in the mainstream media are hard at work trying to portray the Republicans in the House as responsible for any shutdown of the federal government.  For example, in the New York Times  Gail Collins declares that “all hope for averting disaster lies with Speaker John Boehner,” as though Barack Obama and Harry Reid had nothing to do with the issue.  Erick Erickson summarizes what is at stake in his Redstate post.  There he describes how fearful the House GOP leadership is of being blamed for any shutdown, showing the effectiveness of the Democrat propaganda offensive.  We need a counter-narrative and fast, both to inform the general public of what is at stake and to buck up the courage of the House Republicans.  The Constitution provides that counter-narrative.

To begin, let’s just go back to basic procedure under the Constitution.  The Congress appropriates funds to run the government, and any tax measure must be initiated in the House.  This is the power of the purse which the House of Representatives inherited from the British House of Commons.  This power was fundamental to establishing parliamentary primacy over the monarchy, and consequently gave birth to modern representative government.  The President is then charged with spending the funds as dictated by Congress.  The government only shuts down if the President vetoes the congressional appropriation bills.   It is this presidential veto which effectuates the government shutdown, not Congress.  THE PRESIDENT SHUTS DOWN THE GOVERMENT, NOT CONGRESS.

Now currently there is a complication in that the President may not have an appropriation bill to veto because the Democrat-controlled Senate may not act.  However, in that case, the Democrats are still the ones responsible for the shutdown because the House has appropriated funds for the government to operate.  The decision to close down the government now still lies with the Democrats, either in the Senate or the White House.

Technically the Constitution does allow the President to veto appropriation bills.  However, by threatening in advance to veto the House’s appropriations bill because it does not fund everything he wants, President Obama is essentially trying to coerce the House into giving him more money.  Again, it is presidential action which is threatening the crisis.

The Constitution sees the executive and legislature as co-equal branches.  However, beginning with Woodrow Wilson and Franklin Roosevelt, the Presidency has gained ascendency over the Congress.  It is Congress, and particularly the House of Representatives, which the Framers saw as being the branch of the government which should be “first among equals,” particularly in fiscal matters.   The original scheme was that Congress decided what money to raise and what to spend it on, and the President merely administered the expenditures authorized by Congress.

The coming budget crisis is about more than the fiscal survival of our Nation, as important as that is.  It is about whether an ever more powerful President can misuse the threat of a veto to coerce more money out of the people and their House, or whether it is in fact Congress which decides the Nation’s spending as the Framers contemplated.

It can be very difficult for adults to stand their ground when children throw a tantrum when they don’t get what they want.  However, it is time for the adults in the House of Representatives to call Barack Obama and Harry Reid’s shutdown threats what they are — a tantrum thrown by over-indulged children who have finally been told that they can’t have all the goodies they have become accustomed to because the family can’t afford them any more.  At stake is more than the House’s paltry $60 billion in spending cuts.  This battle could determine whether we can ever re-set the constitutional balance to restore the people’s House to its rightful place of primacy over the Presidency on matters of the public purse.

For further discussion on restoring the original constitutional order, see http://www.timelyrenewed.com

Just a short post to note an important point of rhetoric.  Often dismissed, rhetoric, or “spin’ as we now call it, is critical in political persuasion.

The point is the distressing number of conservative commentators who have compared the scene in Madison to the scenes of the protests in Cairo.  The resemblance is only superficial and making it is dangerous.  While I am aware that there is a more complex story behind the Egyptian protests than the happy-face pro-democracy image portrayed in the lamestream media, nonetheless the Egyptian protesters were objecting to a regime which fundamentally violated human rights.  There is no comparison between the Egyptians’ situation and the protests in Madison against a freely, properly and duly elected representative government.

The more accurate comparison for the scenes in Madison is to the violent protests in Athens last year, where government workers went berserk over an insolvent government’s efforts to ask them to share in the pain of resolving the financial crisis brought on by their nation’s unsupportable welfare state.  Although, given our modern 24 hour news media induced attention span, it is difficult to recall the Greek protests of a few months ago, it is worth the effort.  Comparing selfish public unions to those Egyptians who really were bravely seeking more political freedom is both an insult to the Egyptians and to give undue political credence to the welfare statist power-grabbers in Wisconsin.

President Obama’s new budget again proposes raising the tax rates for the “rich” people who make over $200,000 a year (singles) or $250,000 a year (marrieds).  Capital gains and Medicare payroll taxes would also rise for these horrible rich people, and their deductions for mortgage interest, charitable contributions, property taxes, sales taxes, state and local income taxes, medical expenses, and employee business expenses would be cut back.

Of course, this is primarily a tax on job-creating small business.  However, through all this debate I always wondered how Nancy Pelosi, Harry Reid and the other Democrats in Congress decided that this particular income level made you “rich.”  Then I stumbled on these seemingly obvious factoids from Congress’ official website:

The current salary (2011) for rank-and-file members of the House and Senate is $174,000 per year.  The salaries for the leaders are:

Senate Leadership
Majority Party Leader – $193,400
Minority Party Leader – $193,400

House Leadership
Speaker of the House – $223,500 (remember Nancy Pelosi is married, so she is still under the $250,000 that would make her “rich”)
Majority Leader – $193,400
Minority Leader – $193,400

So it all actually just comes down to the old saying that the definition of a “rich” person is someone makes more than you do.

Opponents of Obamacare have welcomed Judge Roger Vinson’s decision that not only is the individual mandate unconstitutional, but that that renders the entire 2,000 plus page scheme unconstitutional.  (The previous ruling that the individual mandate was unconstitutional by Judge Henry Hudson did not overturn the entire statute.)  Although everyone recognizes that the issue will ultimately only be settled one to two years from now in the Supreme Court, Judge Vinson’s decision has heartened Obamacare opponents who are fighting politically in Congress and in the states to limit its impact now.  Recognizing that perception can become reality, the leftist legal establishment has counterattacked with an op-ed in the New York Times by Harvard law professor Laurence Tribe.  Professor Tribe contends not only that Obamacare is constitutional, but that all of the current Supreme Court justices except for Clarence Thomas will vote to uphold it. 

While I join other constitutional conservatives in celebrating Judge Vinson’s decision, a good lawyer must be willing to take a cold, hard look at his or her opponent’s legal position and plan for contingencies accordingly.  Obamacare rests on Congress’ power under the Constitution to “regulate commerce … among the several States.”  From the founding through 1936 that clause was interpreted as excluding activities which occurred only within one state.  Under that original interpretation, not only Obamacare but much of modern federal economic regulation would be indisputably unconstitutional.  However, in 1937 the Supreme Court began to reinterpret the interstate commerce clause.  The culmination of this reinterpretation was the 1941 case of Wickard v. Filburn, which upheld a penalty against an Ohio farmer for growing more crops than allotted to him under federal agriculture regulations even though he only consumed them on his own farm.  The Supreme Court held that the interstate commerce clause allowed Congress to regulate anything which might affect economic activity in another state (by growing his own food instead of buying it Mr. Filburn might depress prices for crops sold interstate).

Professor Tribe bases his defense of Obamacare on this interpretation of the interstate commerce clause.  Indeed, for decades after 1937 the Supreme Court found no federal economic regulation unconstitutional.  There was some hope that the Supreme Court would finally put some bound to this interpretation in the 1990s when it held that the interstate commerce power did not extend federal jurisdiction to carrying guns near schools and rape.  However, that hope suffered a serious setback in the 2005 case of Gonzalez v. Raich which held that federal regulatory power extended even to a cancer victim who grew marijuana plants in her own home for her own use pursuant to California’s medical marijuana law.  Here even Justice Antonin Scalia voted for federal power, and Professor Tribe cites this as proof that Justice Scalia would vote to uphold Obamacare.

The issue is bigger than even Obamacare, which is pretty big.  Is there any limit on federal regulatory power?  The Wickard rationale can easily be interpreted to say that there is none. The plaintiffs in the Obamacare cases are in the legally awkward position of having to argue that somehow there is some line somewhere.  The line they are trying to draw is a distinction between activity and inactivity.  Professor Tribe correctly notes in his article that this distinction fails if we allow that the fine for failing to buy health insurance is a tax.  In his decision Judge Vinson rejected that argument because of the politically deceptive refusal of congressional Obamacare proponents to describe the fine as a tax.  However, other federal courts have accepted that argument. 

Judge Vinson has declared “this far but no farther!”  I would be overjoyed if his opinion were to be adopted by a majority of the high court.  However, we must recognize that the Wickard and Gonzalez cases are mighty obstacles to defeating Obamacare in the Supreme Court.  Moreover, even if there is some line drawn by the Supreme Court against the individual mandate, “this far” is still very far beyond the original meaning of the interstate commerce clause.  The legal attack on Obamacare must proceed on the assumption that all previous federal economic regulation is valid.  A victory against Obamacare would be a great victory for freedom, but would still leave vast fields in which the federal leviathan can romp triumphant over our liberties.

So what do we do?  Of course, we pursue the fight in the courts.  However, given the weight of the New Deal interstate commerce clause legal precedents, we must not rely on victory there.  The obvious contingency is political action in Congress to repeal Obamacare, which must be pursued with unfailing vigor now and through the 2012 elections. 

Ironically Professor Tribe points us toward a third alternative.  In his article, even he acknowledges that Justice Thomas “can be counted a nearly sure vote against the health care law” because “he alone has publicly and repeatedly stressed his principled disagreement with the whole line of post-1937 cases that interpret Congress’s commerce power broadly.”  A return to the pre-1937 interpretation of the interstate commerce clause would not only sweep away Obamacare, but a host of other “one-size-fits-all” regulatory regimes which have been imposed on America by a corrupt, over-centralized, bureaucracy-ridden national government. 

Of course, Justice Thomas can not persuade even Justice Scalia to take this step judicially.  However, there is a method of accomplishing a return to the original understanding of the interstate commerce clause in one stroke.  That is constitutional amendment.  This post is already too long, so I refer anyone who has read this far to my further discussion of how we can achieve that here.  With typical leftist arrogance, Professor Tribe entitled his article “On Health Care, Justice Shall Prevail.” Such an amendment would restore justice by allowing the entire American people to declare “not even this far” to the federal imperialism which Obamacare so blatantly represents.