Toxic News For ObamaCare? Will Curious Chemical Case Precedent Poison Law's Constitutional Claim Tomorrow?Jun 27, 2012
The United States Supreme Court rarely shows unanimity in the cases it hears. But a 9-0 verdict in an obscure case about a chemically burned paramour from 2011 may provide an insight into how the court may rule tomorrow. The case, Bond v. United States sounds more like something from Boston Legal, or even The People's Court, than the Supreme Court. Here's what happened: Defendant Carol Bond discovered that one of her best friends was pregnant by her husband. In retribution, she sprinkled caustic chemicals on a mailbox, car door handle and door knobs. It worked: The home-wrecker suffered burns.
Federal prosecutors, however, didn't attempt a conviction under standard criminal laws. Instead, as if this case couldn't get stranger, tried Ms. Bond under a statute designed to implement the Chemical Weapons Convention. David Rivkin, perhaps the country's best appellate attorney and who successfully argued the first phase of the multi-state lawsuit against ObamaCare which the Supreme Court ultimately will decide tomorrow, takes it from here, in an op-ed published last year in the Wall Street Journal:
In defense, she argued that the law exceeded Congress's power because its violation required no link to interstate commerce or any other specific federal interest. The government argued that because the state (Pennsylvania) was not party to the suit, Ms. Bond could not defend herself by attacking that law on federalism grounds. The government prevailed in the Third Circuit Court of Appeals.
The Supreme Court disagreed. With an unusual unanimity, the court held squarely that individual citizens have every right to challenge federal laws on the ground that they exceed the limited and enumerated powers vested in Congress by the Constitution. The court stated without equivocation that "[b]y denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When the government acts in excess of its lawful powers, that liberty is at stake."
Perhaps most frightening to ObamaCare defenders is a line from Justice Anthony Kennedy's opinion — the justice considered the court's swing vote, who, nevertheless, is committed to a dual state sovereignty system of federalism: "Fidelity to principles of federalism is not for the States alone to vindicate." More Rivkin:
For Supreme Court watchers, Bond is a profound reaffirmation of the centrality of the state-federal "dual sovereignty" system. That's why the decision is bad news for those who defend ObamaCare — the most extravagant challenge to that dual system in our history.
In enacting the ObamaCare law, Congress seized for itself the very type of power — the ability to regulate individual conduct regardless of any significant connection to interstate commerce or another legitimate federal regulatory interest — that the Constitution reserves solely to the states. In defending the law in court, the Obama administration has persistently sought to narrow the Constitution's federalism principles and to trivialize the Supreme Court's recent decisions supporting those principles.
What Bond makes clear is that those principles and cases are meant to be read broadly to achieve their original purpose: securing "the freedom of the individual" by allowing the states to respond "to the initiative of those who seek a voice in shaping the destiny of their own times without having to rely solely upon the political processes that control a remote central power."
For the rest of this insightful, short and very readable op-ed, click here. Prediction: By a 5-4 vote, the individual mandate is struck. The rest is allowed to stay but with reservations.