Obama’s Legal Minions Name Their Enemy

From The Atlanta Journal-Constitution:

Provisions of the federal Affordable Care Act, also known as ObamaCare, “may violate the constitution of Ayn Rand, but they do not violate the Constitution of the United States,” acting solicitor general Neal Kumar Katyal told a three-judge panel of the 11th Circuit Court of Appeals Wednesday. Conversely, attorney Paul Clement, representing Georgia and 25 other states, framed the issue of mandated purchase of health insurance as an issue of liberty. “Can the federal government compel an individual to take part in commercial activity in order to better regulate that individual?” he asked the judges. [ObamaCare gets put through judicial wringer | Jay Bookman

And what does Ayn Rand have to say about the constitution?

The American system of checks and balances was just such an achievement. And although certain contradictions in the Constitution did leave a loophole for the growth of statism, the incomparable achievement was the concept of a constitution as a means of limiting and restricting the power of the government. […] 

Today, when a concerted effort is made to obliterate this point, it cannot be repeated too often that the Constitution is a limitation on the government, not on private individuals—that it does not prescribe the conduct of private individuals, only the conduct of the government—that it is not a charter for government power, but a charter of the citizens’ protection against the government. [“The Nature of Government”, The Virtue of Selfishness]

The clause giving Congress the power to regulate interstate commerce is one of the major errors in the Constitution. That clause, more than any other, was the crack in the Constitution’s foundation, the entering wedge of statism, which permitted the gradual establishment of the welfare state. But I would venture to say that the framers of the Constitution could not have conceived of what that clause has now become. If, in writing it, one of their goals was to facilitate the flow of trade and prevent the establishment of trade barriers among the states, that clause has reached the opposite destination. [“Censorship: Local and Express”,  Philosophy: Who Needs It 184]

This view is apparently what the Nihilist’s of the Obama administration disagree with.

As Good As One Could Expect: Notes on Judge Vinson’s Opinion of Obamacare

Amy Peikoff writes in her blog, Don’t Let It Go, on Judge Vinson’s 78 page opinion in which he held that Obamacare was unconstitutional:

[…] When I first read the opinion, I was not pleased. I was not pleased that Vinson began by using an Originalist approach; I was not pleased that he seemed to concede the propriety of treating the Constitution as, in effect, a “living” document; I was not pleased that he implied that the Supreme Court could — in fact that he seemed to invite them to — eliminate the activity/inactivity distinction. I feared that the Supreme Court might just decide that, in our modern commercial age, yada, yada, yada, an economic decision can constitute “activity” for purposes of the Commerce Clause, and that Vinson hadn’t done enough to prevent this. I found his basic argument — that, given the current state of Commerce Clause jurisprudence, if this law were to be upheld, no real distinction could be made between the “individual mandate” and anything else Congress wanted to make people do, and therefore, if this law were to be upheld, our government would no longer be a limited one whose powers are enumerated — terribly unsatisfying. But today, after sleeping on it (even if only for a few hours), and having a brief interchange with an actual Constitutional Lawyer, I realize that my expectations are unrealistic. This is about as good as one could expect.

First, even if Vinson were an Objectivist, his job would be to apply the law, as it exists, to the facts of the case before him. Thus, even if he rejected the Originalist approach, he would still be stuck with the language of the Commerce Clause itself, plus all of the horrible precedent expanding Congress’s powers under that clause. Especially given that Vinson is a district court judge, it seems the best he can do is to explain why, in the context of this binding precedent, Obamacare goes too far, and is therefore unconstitutional. So, given that I’ve concluded this was Vinson’s assignment, is there something significant he could have done that would have been more satisfying to me? I did find his expressing “reluctance” in striking down the legislation to be annoying. I mean, at least he needn’t be reluctant! He is, after all, assuming he is right, saving us from a government whose powers are no longer enumerated and limited, right? He should be glad about this! I also was annoyed that he seemed to be inviting the Supreme Court, twice during the course of his opinion, to reformulate its Commerce Clause jurisprudence in a way that allows them to uphold this legislation. However, what I realized today is the only significant thing I found missing was some sort of argument as to why it must be an activity that Congress regulates under the Clause. I wanted some sort of positive justification for the activity/inactivity distinction. It was no good to just hang one’s hat on the idea that, if you get rid of this distinction, Congress could do whatever it wants. I needed more!

What sort of argument could one provide?

Find out in her enlightening post, Notes on Judge Vinson’s Opinion.