There were significant federalist
implications of the United States Supreme Courts rulings on the Arizona border control
law and the federalization of health insurance that I have posted on frequently. Although there were no sweeping victories for
federalism and conservatism, there were some major narrow victories.
In the Arizona border control case, the Court ruled
that States may enforce federal laws, even if the federal government declines
to enforce its own laws. In this case, Arizona was requiring
its law enforcement officers to inquire as to citizenship status of suspects it
had probable cause to stop and pass the information along to federal
authorities. The ruling meant that the Obama
Administration’s attempt to prevent Arizona
from even enforcing federal laws would have violated states’ rights.
Had Chief
Justice John Roberts not sided with the liberals to form a 5-3 majority, the
votes would have been split 4-4 because of the recusal of Justice Elena
Kagan. A split decision would have left
the Appeals Court
ruling stand, which was that Arizona ’s
law was totally unconstitutional. Thus,
Roberts got the liberal Justices to go along with him in a narrow victory for
states’ rights, although the ruling restricted Arizona from exercising its sovereign right
over the entry of people onto its soil.
The
liberals had argued that because of the Supremacy Clause of the U.S. Constitution,
federal law would supersede state law because the Constitution granted the federal
Union the power to enact a uniform rule of
naturalization, “immigration” was strictly a federal power. However, as the conservative dissenters
pointed out in an opinion written by Justice Antonin Scalia, the right to
police a State’s borders to keep out those it does not want is an inherent
right of sovereignty. He noted the point
I mentioned in my post from April of this year, Chester Arthur, the Most
Underrated U.S. President, http://williamcinfici.blogspot.com/2012/04/chester-arthur-most-underrated-us.html,
that there were no federal immigration laws before the 1880s, meaning that the
issue was recognized as strictly a state one.
Indeed, naturalization, the
process of obtaining citizenship, which is understandably a federal matter, is
not the same thing as immigration,
let alone the broader matter of border control.
The Court gave deference to the
Legislative Branch and to its precedents that federalize an issue if Congress
enacts comprehensive legislation to address it.
Although there are joint federal and state powers, the Court only
permitted Arizona
to exercise power over the issue to the limited extent of enforcing federal
law, while rejecting the less controversial parts of the law that it ruled went
beyond the strict limit. Considering
that the Obama Administration and the Left did not even want to allow a State such
a limited power, the ruling was a landmark victory for states’ rights.
On the constitutional
challenge of the federalization of health insurance brought by a majority of
the States, among others, conservatives won greater victories, despite the
major disappointment of the refusal of the Supreme Court to declare the federal
mandate to purchase health insurance unconstitutional.
Seven of
the Justices agreed that the federal government lacked the power to mandate the
purchase of a good or service under the Commerce Clause and the Necessary and
Proper Clause under the General Welfare Clause, both of which were cited by the
Obama Administration, the liberal Democratic Congressional majority and others
on the Left as the unquestionable source of its limitless power. Thus, the ruling is a landmark case that
finally placed some significant limits to federal power under these provisions
liberals have used to do whatever they want that is not expressly prohibited
under the Constitution, its other provisions, such as the Tenth Amendment,
notwithstanding.
The Obama Administration, after
having denied that the mandate was a tax during the public debate over the
bill, then argued in the alternative in federal court that the federal Union had the power to issue such a mandate under its
taxing authority. A majority of five
Justices agreed. Congress is not
constitutionally obligated to tell the truth, but it is accountable to the
electorate for misleading the public, as it is for bad law. Although federal power now seems to be
unlimited to force individuals to do what liberals want through the taxing
power, their efforts will be exposed for what they are: a tax, which, as an
unpopular power requiring the consent through representation of those who are
taxed, would be difficult for the representatives of the people to impose.
As in the Arizona border control case, Roberts, who
wrote the majority opinion, deferred to the Legislative Branch. The counterargument from the four
conservative Justices who dissented on the taxing power question was that by
inferring legislative intent even when it was not expressed at the time, he substituted
his judgment for that of the Legislative Branch. Indeed, the question of which taxing power
the federal government was exercising under the Constitution remains. Therefore, once the tax begins to be collected,
someone harmed by its collection could challenge its constitutionality. I should add that there is no criminal
penalty under this law for the failure to pay the tax. Congress may further limit the enforcement of
its collection.
This ruling does not affect the
litigation against the other mandates that have been or will be issued under
the federalization of health insurance, such as the one requiring the free
coverage for sterilization, contraception and abortifacients I have posted
about previously.
The federal
government’s attempt to coerce the States into expanding Medicaid under the
plan to federalize health insurance was the second of the two challenges
brought by the States. The Court ruling
on this issue is another landmark victory for states’ rights.
The federal
government may not coerce the States into doing what it wants by threatening to
withhold all of its Medicaid funds instead of only the additional funds the
state would have received had it agreed to implement the expansion. In fashioning a remedy, however, as the
dissenters noted, some taxpayer money collected from the citizens of a state
will be used to fund Medicaid expansion in other states. Nevertheless, this case represented the most
significant limit ever to federal attempts to force the States to do its
bidding. In deferring to the Legislative
Branch and in keeping with the practice of not issuing rulings beyond the
necessary scope of the issue, the remedy the Court fashioned was narrow:
instead of striking down the expansion entirely, it ruled that the penalty for
a State that opted out of the Medicaid expansion could only be the loss of the
funds for expansion, not all its Medicaid funds. Many States are declining
to expand their Medicaid programs because of the ruling.
The Arizona border control and the
federalization of health insurance rulings acknowledged Court precedent in
expanding federal power, but finally placed some major limits to those powers
and acknowledged some states’ rights. The
Supreme Court did so without subjecting itself to a false charge of judicial
activism, but by restraining itself to narrow rulings and remedies to which
even the Left had difficulty in objecting to legally. The Legislative and Executive Branches will
henceforth have to exercise power more honestly and narrowly. Although conservatives were disappointed that
these rulings were not as great as hoped, they provide much support for federalism
and liberty.
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