Last Week:
Fast Track Trade Authority
What's It All About?

Next Week:
Should the Government be involved
in the Marriage Business?

July 6, 2015

With the recent Supreme Court decisions, reflection is in order. It’s clear the federal government was formed by the states; not the other way around. That’s why the tenth amendment is included in the Bill of Rights; it says:
“The powers not delegated to the United States [e.g., the federal government] by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

In other words, unless specific roles and powers are granted to the federal government, then they fall within the purview of the individual states and ultimately to the people of those states.

What we witnessed last month is a Supreme Court -- not the constitution -- rewriting legislation. Unless some action is taken, the court’s actions will render the tenth amendment null and void. Our concern is over the lack of a constitutional foundation for the court’s action.

Justice Scalia said “Perhaps sensing the dismal failure of its efforts to show that ‘established by the State’ means ‘established by the State or the Federal Government,’ the Court tries to palm off the pertinent statutory phrase as “inartful drafting.’ This Court, however, has no free-floating power ‘to rescue Congress from its drafting errors.’”

By rewriting the law the court disregarded what the main drafter said in 2012.  Key architect Jonathan Gruber said: “What’s important to remember politically about this is if you're a state and you don’t set up an exchange, that means your citizens don't get their tax credits—but your citizens still pay the taxes that support this bill.”

This was an intentional act by the drafters. If you don’t set up an exchange then your people will not get government subsidies.But 34 states choose not to take the bait and form their own healthcare exchanges.  So the Court rewrote the law contending the law’s drafters didn’t really mean what they said, and so the subsidies will continue.
Under Article I of the Constitution ONLY Congress has the authority to write laws, not the Court.

Possible solutions?

The constitution’s framers considered, but did not include, a provision allowing Congress to override Supreme Court decisions – similar to overriding a Presidential veto – where a 2/3rd majority of both houses could override a court’s decision. Adding this to the constitution could serve as an additional check/balance against juridical activism.

There are other possible solutions such as imposing term limits on the members of the court or including “a deliberate failure to follow the original meaning of the Constitution” as grounds for impeachment of those in the Judiciary.

All of these solutions would take a constitutional amendment and it’s really naïve to think Congress would propose such an amendment. This brings us back to calling an Article V Constitutional Convention.

The founding fathers told us there would come a day when the federal government would abuse its power. We have just witnessed it!  Perhaps it’s time for the states to take bold action and stand up to those in Washington who have let “power” go to their heads. Texas is one of the states that has not jumped on the Constitutional Convention bandwagon. Perhaps it’s time we consider doing so?

Bill, Mark, and John