Tag Archives: U.S. Supreme Court

Perspectives on the Supreme Court’s Obamacare Ruling: Blind Governance, the New Roe, and Hellish Socialism

Posted on June 29, 2012 by | Leave a comment

By Daniel Downs

Several commentators provide additional perspective on the several problems inherent in Obamacare and the Supreme Court’s ruling on its constitutionality. The first commentator is David Zanotti, who is the President/CEO of the American Roundtable and author of the blog “For the Common Good” where the follow commentary was published. In his port, Mr. Zanotti points why the democrat’d healthcare reform law known as Obamacare is bad law unrepresentative of the American people.

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Governing in the Dark

At least we know it now. The pain is real but at least we can face it without mystery. We know Congress did not read the 2700 page health care bill. We know the Administration did not. Now we know that at least several of the Supreme Court Justices did not read the legislation either. In yesterday’s oral arguments, Justice Breyer admitted, “And I haven’t read every word of that, I promise…” (pg 23 at line 3). Chief Justice Roberts admitted much the same, but haltingly on page 40 at line 21. Justice Scalia even likened reading the legislation to the 8th Amendment of the Bill of Rights, which prohibits cruel and unusual punishment (pg 38 at line 7). (View the transcript from Wednesday morning’s hearing.)

So the cycle is complete. Congress didn’t read the bill. The President didn’t read the bill. The Justices of the Supreme Court (at least several who were honest about it) didn’t read the bill. Where does that leave us?

As a point of principle, is it ever right to pass a law that Congress has not read and fully debated? As a matter of common sense, how can we establish a system of health care delivery that touches every American if most in authority never had time to read or debate the enabling legislation?

Just for the sake of honesty, what is wrong with all of us that we are in a position of having to ask these questions in the first place?

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Lila Rose, President of Live Action, made the following comments about the Supreme Court’s favorable ruling of Obamacare:

“The Supreme Court ruling strikes at the heart of both Life and Liberty. Planned Parenthood and the abortion industry expect to make a killing off of Obamacare’s unconstitutional, socialized medicine scheme.”

She continued, “The Supreme Court has upheld nothing more than a Ponzi scheme to expand the abortion business. If this legislation is not overturned by the next administration, Obamacare’s socialist-style diktats will be used, not to provide better or more affordable health care, but to expand Planned Parenthood’s abortion empire across the backs of American taxpayers and people of conscience – and at the expense of our religious freedoms.

“In light of the ruling, Americans will greet Independence Day with prayer, sacrifice, and renewed energy to continue our opposition to this mandate. We must also recommit ourselves to restoring full constitutional protections of Life and Liberty to the most vulnerable in our society: unborn children.”

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If none of our public officials read the bill, one has to question the agenda of the democrats who wrote the bill, the President who signed it into law, and the Supreme Court who ruled it constitutional. Ms. Rose provided with one plausible agenda and another is the efforts of the left to make America a socialist nation.
Public education is the first government institution based on principles of socialism. It is also provides the premier method of indoctrinating citizens. Now, the health care system is by force of law another institution of socialism. In order to create subservient institutions of socialism, the ruling parties in government must have developed governmental socialism. Those same people had to convince a lot of citizens that socialism is the means to happiness and liberty. (Thank you FDR and media followers.) If aware of it, I imagine Marx, Lenin, and Krushev are all singing hallelujah and dancing in hell. I wonder how dark it is there?

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SCOTUS Healthcare Ruling Endangers Freedom

Posted on June 29, 2012 by | Leave a comment

By David E. Smith

As you know by now, in a 5-4 ruling, the Supreme Court of the United States (SCOTUS) ruled yesterday to uphold the core provisions of President Barack Obama’s Patient Protection and Affordable Care Act (PPAC). By their decision, we now face an egregious threat to American liberty.

This federal legislation contains a highly controversial and unpopular Individual Mandate, which, if not repealed, will force Americans to “buy” federally approved or sponsored healthcare plans or pay a penalty for non-compliance. Contrary to their promises to Congress as well as to the general public, proponents of the PPAC have succeeded in arguing to the Supreme Court that the Individual Mandate will function as a federal tax. We are very concerned that this will set a dangerous precedent for federal mandates.

We believe this law is a threat to personal liberty, religious freedom and family choices. It gives government bureaucrats alarming power over individual citizen’s healthcare decisions and will lead to future conflicts of conscience. Americans will be forced to choose either to comply and abandon their religious beliefs or resist and be fined for exercising their deeply held beliefs.

The PPAC includes provisions for abortion-inducing drugs, contraception and sterilizations, and tax dollars will subsidize many types of abortions. By advancing taxpayer funding of abortion, the PPAC is an attack on religious freedom and individual liberty.

We urge our national lawmakers to repeal the PPAC, and rather than rushing through an expansive overhaul, Congress needs to take a reasonable approach to reforming what’s wrong with healthcare. The federal reach into the lives of each and every American citizen is of grave concern. And the accompanying threats to freedom of conscience challenge the very concept of liberty.

We hope and pray that this monumental decision will be the catalyst to awaken and unite American voters – especially people of faith – this November. It should also serve to remind believers that we should be praying for true revival and the spread of the Gospel. As my friend Pastor James McDonald of Morton, Illinois pointed out on his Facebook page, “Do we understand that the One who orchestrates the end, orchestrates the means, and the means He uses is our faithful witness? Rise up, O Church of God!”

And here’s what others are saying:

“Today’s Supreme Court decision will do serious harm to American families. Not only is the individual mandate a profound attack on our liberties, but it is only one section among hundreds of provisions in the law that will force taxpayers to fund abortions, violate their conscience rights, and impose a massive tax and debt burden on American families.

“The Obama administration has created, for the first time in American history, new federal regulations that toss aside the constitutional right to religious freedom by forcing religious institutions and employers to pay for abortion-causing drugs, contraceptives and sterilizations.

“It’s now time to replace those leaders who disregarded the constitutional limitations of their authority and the deeply held religious beliefs of their constituents, voting for the government takeover of healthcare. We must repeal this abortion-funding health care law and restore the Constitution to its rightful place.” Tony Perkins. President of the Family Research Council

”We are outraged to see the Supreme Court ignoring the constitutional limits the Founders put in place to constrain the federal government’s power over us. Shame on them!

With this decision they have given a blank check to the federal government, forever altering the constitutional concept of checks and balances that has been so crucial throughout our history.

We wholeheartedly believe we must strive to make health care more affordable for all Americans. But it is inconceivable to believe we must infringe on our constitutional rights in order to achieve that.

Women will be especially hurt by today’s decision. As we have seen with the contraception mandate, the politicization of so-called women issues by the left leaves the majority of women extremely vulnerable to the exploitation of a few radical groups that exert much political influence in Congress and the White House. ~ Penny Nance, CEO of Concerned Women for America

“This is a stunning decision to uphold ObamaCare as a tax. Congress relied upon the Commerce Clause, not the Taxing and Spending Clause. The Court ignored the intent of Congress, which did not intend the mandate to be a tax but rather a penalty. Rulings like this on ObamaCare undermine the confidence of the people in the competency of the Supreme Court to follow the rule of law. Today’s decision damages the image of the Supreme Court and is bad for America.” Mat Staver, Founder and President of Liberty Counsel and Dean of Liberty University School of Law

“The ‘individual mandate’ was just one problem with the law. Our tax dollars are still being used to subsidize abortion and our Catholic institutions are still being forced to violate our beliefs.

“Congress must act immediately to fix the critical flaws in the health care law and begin to replace them with measured, sensible reforms. At the very least, they should not allow any tax dollars to be used to implement the law while remedies are decided. We encourage them to focus their energy on improving our nation’s health care system in a way that respects all stages of life, protects our consciences, and avoids negatively impacting the economic conditions of Americans.” ~ Matt Smith, President of Catholic Advocate

“It is astonishing that the majority of the justices did not see the bill for what it really is: a blatant violation of the personal freedoms guaranteed by our Constitution and perhaps a mortal blow to the concept of federalism… “When a government begins forcing citizens to purchase what it thinks is important or necessary, that government takes a dangerous step away from the freedom-embracing, democratic model.” ~ Richard Land, president of the Ethics & Religious Liberty Commission of the Southern Baptist Convention.

“The president’s health care law is hurting our economy by driving up health costs and making it harder for small businesses to hire. Today’s ruling underscores the urgency of repealing this harmful law in its entirety. What Americans want is a common-sense, step-by-step approach to health care reform that will protect Americans’ access to the care they need, from the doctor they choose, at a lower cost. Republicans stand ready to work with a president who will listen to the people and will not repeat the mistakes that gave our country ObamaCare.” ~ U.S. House Speaker John Boehner

“President Obama’s health care law stands as one of the largest tax increases in American history, it will be paid for by young Americans, whose dreams and plans for the future have already been derailed by failed policies that have denied their access to full-time, meaningful jobs in their chosen career paths. Young adults know they will pay the true costs of President Obama’s legislation — over a trillion dollars more in federal spending, more waste and fraud, increased American debt, and the inability to keep or choose healthcare plans that best suit their needs as individuals. Elections have consequences, and young adults will be organizing themselves far more actively than some might assume — they will not settle for leadership that ignores their concerns, limits their freedoms, and continues to bankrupt their futures.” ~Paul T. Conway, president of Generation Opportunity, Chief of Staff for the U.S. Department of Labor

”Today’s Supreme Court 5-to-4 decision upholding the individual mandate in ObamaCare was surprising. The court rejected the Obama Administration’s main argument that the individual mandate was constitutional based on the Commerce Clause. It rejected the administration’s second argument that the mandate was constitutional under the Necessary and Proper Clause.

“However, five justices, with Chief Justice John Roberts writing the majority opinion, concluded that the mandate was constitutional under Congress’ power to tax. As Roberts wrote in his opinion, “Simply put, Congress may tax and spend.”

“That’s the problem in Washington, isn’t it? There’s already way too much spending, and ObamaCare won’t help that. And it is a huge tax increase — $500 billion over the next ten years.” Gary Bauer, American Values

[The previous post extolled the Supreme Court ruling as a victory for the health care needs of poor children. It may be presumed that they believe it is a victory for their families too. This is doubtful seeing many proponents for the poor also are proponents of state rights of the child trumps parental rights. In other words, families don’t count. However, the above comments lack any mention of children, only families, the blatant violation of individual liberty, and the undermining of the principles of federalism. I wonder if we can have cherished freedoms and the American dream and government dictating by force of law how we will achieve it. The above author(s) seem to think otherwise.]

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Great Victory For Children: U.S. Supreme Court Upholding Obamacare

Posted on June 29, 2012 by | Leave a comment

Eight of the nation’s leading child health and advocacy organizations reacted to the U.S. Supreme Court’s 5-4 ruling today to uphold the Affordable Care Act:

“Today, the Supreme Court upheld a law that invests in children’s health from the ground up,” said American Academy of Pediatrics President Robert W. Block, MD, FAAP. “The Academy endorsed the Affordable Care Act because it addresses the same ‘A-B-C’ goals that are entrenched in our mission and in our 82 years of child health advocacy: providing all children in this country with Access to health care services, age-appropriate Benefits to meet their unique needs, and high-quality, affordable health care Coverage.”

“Today’s decision is a clear victory for children of all ages, races and incomes in America,” said Marian Wright Edelman, president of the Children’s Defense Fund. “I am delighted the Court has upheld the Affordable Care Act, including the Medicaid expansion, but I am deeply concerned by the limitation of the expansion that could exclude millions of poor parents. Together we need to work until all children and parents and everyone in America are guaranteed access to comprehensive, affordable health coverage.”

“Today’s Supreme Court ruling means children – especially chronic and complex patients that children’s hospitals specialize in treating – will continue benefitting from Affordable Care Act provisions including those that prohibit annual and lifetime caps on coverage,” said Mark Wietecha, President and CEO of the Children’s Hospital Association. “Children’s hospitals are innovating care delivery for this special-needs population through such models as medical homes with funding from CMMI and through other collaboratives. This care not only improves pediatric outcomes but takes costs out of the system – a goal shared by Congress and the Obama Administration.”

“Today’s ruling is a significant win for kids. State and federal officials can now get on with the urgent business of effectively and assertively implementing the Affordable Care Act so that more kids can have access to the health care they need. We urge policymakers to act quickly and make the right implementation choices so the Affordable Care Act can continue making progress covering uninsured kids, protecting millions of kids and parents from abusive insurance practices, and delivering quality care for kids from head to toe,” said First Focus President Bruce Lesley.

“While today’s decision is great news for our nation’s children and families, we remain concerned that the Court left open the possibility that the lowest income parents and other adults could be left behind. Now the responsibility for ensuring this is indeed a victory for all rests squarely on the shoulders of the states,” said Joan Alker and Jocelyn Guyer, Co-Executive Directors of the Georgetown University Health Policy Institute’s Center for Children and Families.

“This decision represents a landmark victory for pregnant women, infants and families. The Affordable Care Act will extend the benefits of health coverage to millions of women, children and families who would otherwise face every illness as a potential catastrophe. This law will give more pregnant women access to prenatal, maternity and postnatal care; more children the ability to obtain lifesaving vaccines and services to ensure their healthy development; and more families the financial security of knowing that they have adequate insurance. The Affordable Care Act will require that every health plan offer care for maternity coverage, in contrast to today’s individual market, where only 13 percent of plans cover maternity care,” said Jennifer L. Howse, PhD, President of the March of Dimes.

“We’re very pleased the Supreme Court upheld the entire Affordable Care Act,” said National Family Voices Executive Director Sophie Arao-Nguyen. “The law is a great step forward in protecting and improving the health of all children, including children and youth with special health care needs and disabilities. Today’s ruling means these vulnerable children will continue to enjoy the critical protections afforded by the law, such as bans on pre-existing condition exclusions, lifetime limits, and all annual limits on insurance coverage as of 2014. We’re grateful young adults can still be covered under their parents’ insurance plans up to age 26, and also that as of 2014, former foster children will be covered under Medicaid up to age 26. However, we’re disappointed the Court weakened the expansion of Medicaid to cover additional low-income adults. Family Voices will continue to join with our partners in each state to advocate for state coverage of this population.”

“Children have been some of the biggest winners in the health reform law, and now millions of American families can breathe easier knowing that care will be accessible and affordable,” said Bill Bentley, president and CEO of Voices for America’s Children. “With the fate of health reform now clear, every state should proceed with implantation of the law, full speed ahead. A number of states have been dragging their feet when it comes to establishing the new insurance markets for health plans, but now they must start laying the groundwork if the law is to benefit everyone by 2014.”

[Notice, however, how many of the above institutions will further benefit from the federal mandated health care
provision. It’s true many poor children will probably benefit from “taxing” the middle class to pay for the health care for the poor. Nevertheless, government coerced purchasing in the name of taxation without representation is a breach of the fundamental rights of the middle class. It is shame “poor children” are used for such divisive political shenanigans. But, one has to admit the democratic party can get the job done.]

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AZ v. US: Supreme Court Declares Criminalizing Illegal Immigrants & Warrantless Arrests Unconstitutional, Lets Stand Police Status Checks

Posted on June 26, 2012 by | Leave a comment

WASHINGTON, DC — A divided Supreme Court has struck down as unconstitutional key provisions of Arizona’s immigration law pertaining to the criminalizing of illegal immigrants (for not possessing their federal registration cards while working, applying for work or soliciting work) and warrantless arrests by police, while unanimously affirming the “show me your papers” part of S.B. 1070 that requires police to perform roadside immigration checks of people they determine might be in the country illegally. The Rutherford Institute had filed an amicus curiae brief in State of Arizona v. United States of America asking the Court to declare S.B. 1070 unconstitutional on the grounds that giving police officers broad authority to stop, search and question individuals—citizen and non-citizen alike—based primarily on appearance, race and the personal, subjective views and prejudices of the police, would move our nation yet one step closer to a “police state.”

“While the criminalizing and warrantless arrest provisions in the Arizona immigration law needed to be struck down, unfortunately, this ruling does little to recognize or counteract the real danger inherent in S.B. 1070, which is the erection of a prototype police state in Arizona,” said John W. Whitehead. “By allowing Arizona police to stop and search people, citizens and immigrants alike, based only on their own subjective suspicions and visual observations, and by failing to address the core issue being debated here—namely, whether Americans have any Fourth Amendment protections anymore—the Court has opened the door to a host of abuses, the least of which will be racial profiling. Without fail, we will be revisiting this issue again.”

In April 2010, Arizona enacted S.B. 1070 in response to a perceived crisis in illegal immigration. The law requires law enforcement officials to determine the immigration status of a person stopped, detained or arrested if the officer suspects that the person is an unauthorized immigrant. Before such persons may be released, police must determine and verify the person’s immigration status with the federal government. S.B. 1070 also makes it a state crime, punishable by up to 20 days in jail, for an alien legally present in the country not to have in his or her possession an alien registration document. The law also allowed state law enforcement officials to make a warrantless arrest of any person upon probable cause that the person has committed an offense which makes the person removable from the United States under federal immigration laws. The Obama administration challenged the constitutionality of S.B. 1070’s provisions, arguing that they were preempted by the Supremacy Clause of the U.S. Constitution. A federal district court in Arizona agreed, forbidding Arizona from enforcing the law, which the Ninth Circuit Court of Appeals similarly affirmed.

In weighing in on the case before the U.S. Supreme Court, attorneys for The Rutherford Institute argued that enforcement of S.B. 1070 poses a threat to the Fourth Amendment rights of all citizens and others because it authorizes officers to make arrests for misdemeanors constituting “excludable” offenses even though the minor offense was not committed in the officer’s presence. Moreover, the requirement that officers determine the immigration status of detainees would require that detentions extend well beyond what is reasonable under the Fourth Amendment. S.B. 1070 also poses a threat to rights under the Equal Protection Clause because law enforcement officials will, intentionally or subconsciously, use race as a proxy for decisions about a person’s immigration status, resulting in racial profiling of Hispanics.

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Rutherford Institute Asks Supreme Court to Declare Individual Mandate Provision of Obama Administration’s Healthcare Reform Unconstitutional

Posted on February 21, 2012 by | Leave a comment

(WASHINGTON, DC) — The Rutherford Institute has filed an amicus curiae brief with the U.S. Supreme Court in a case that will determine whether the major overhaul of the nation’s healthcare financing system adopted by Congress in 2010 will survive. The Institute’s brief in U.S. Dept. of Health & Human Services v. State of Florida asks the Court to strike down the “Individual Mandate” provision of the Patient Protection and Affordable Care Act of 2010, which requires almost all Americans to purchase health insurance, as an unwarranted and unprecedented exercise of power by the federal government. Arguing that by enacting the Individual Mandate “Congress has intruded on individuals’ rights to make private decisions about their own health and in the process has disrupted the federal-state balance” of power, Rutherford Institute attorneys have asked the Supreme Court to uphold a lower court ruling that the Individual Mandate is an improper exercise by Congress of its authority to regulate interstate commerce.

The brief in U.S. Dept. of Health & Human Services v. State of Florida is available here.

“No American should be penalized for choosing not to have health insurance,” said John W. Whitehead, president of The Rutherford Institute. “The Individual Mandate provision of the Obama Administration’s Healthcare Reform legislation is an unprecedented exercise of federal power in a field that has historically been a province of the states.”

After taking office in 2009, President Barack Obama embarked on a legislative initiative to overhaul the nation’s health care system, resulting in the enactment of the Patient Protection and Affordable Care Act of 2010. An integral part of the legislation is the Individual Mandate which commands that, with limited exceptions, all individuals within the United States ensure that they and their dependents are covered by a minimum level of health insurance each month. Individuals who fail to comply with the Individual Mandate are subject to penalty which is statutorily set at $695 per person, including those for whom the noncompliant person is responsible. The Act provides that Congress enact the Individual Mandate under its power to regulate “interstate commerce” as set forth in Article I, § 8 of the U.S. Constitution. Shortly after its enactment, Florida and 12 other states filed a lawsuit challenging various aspects of the Act, including the Individual Mandate, arguing that Congress had exceeded its power under the Interstate Commerce Clause. In August 2011, the U.S. Court of Appeals for the Eleventh Circuit upheld the states’ claim that the Individual Mandate was unconstitutional and constituted an unprecedented exercise of authority by Congress in requiring persons to purchase a product for the remainder of their lives.

In their amicus brief, Rutherford Institute attorneys ask the U.S. Supreme Court to affirm the appeals court’s decision, arguing that a ruling upholding the Individual Mandate “has implications not only as to the freedom of citizens to decide how to provide for their health care, but more broadly on the federalism embodied in the United States Constitution that is meant to preserve liberty by preventing the concentration of power in the national government.” The Institute’s brief points out that the Courts have traditionally recognized that the Constitution permits states to make general health and welfare decisions for the public good, and that the Individual Mandate is contrary to this rule and not a “necessary and proper” exercise of Congressional authority.

Alfred W. Putnam, Jr. and other attorneys with the law firm of Drinker, Biddle & Reath LLP, of Philadelphia assisted The Rutherford Institute in drafting and filing the amicus brief.

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In 9-0 Ruling in US v. Jones, U.S. Supreme Court Declares Warrantless GPS Use by Police Unconstitutional

Posted on January 23, 2012 by | Leave a comment

WASHINGTON, D.C.—In a unanimous ruling in United States v. Jones, the U.S. Supreme Court has declared that police must get a search warrant before using GPS technology to track criminal suspects. Insisting that individuals have a reasonable expectation that they will not be subject to constant monitoring by the government, and that escalating secretive technological surveillance violates an individual’s reasonable expectation of privacy, The Rutherford Institute had filed an amicus curiae brief in the case.

“We have entered a new and frightening age when advancing technology is erasing the Fourth Amendment,” said John W. Whitehead, president of The Rutherford Institute. “Thankfully, in recognizing that the placement of a GPS device on Antoine Jones’s Jeep violated the Fourth Amendment’s protection against unreasonable search and seizure, the U.S. Supreme Court has sent a resounding message to government officials—especially law enforcement officials—that there are limits to their powers.”

In September 2005, without Antoine Jones’s knowledge or consent, police placed a GPS device on the undercarriage of Jones’ Jeep vehicle while it was parked in a public lot in Maryland. GPS devices use orbiting satellites to produce accurate and continuous records of their position and of any person or object carrying the devices. Consequently, over the course of four weeks, police were able to monitor Jones’ movements and actions as he drove his vehicle. Based upon the detailed information obtained about Jones’ movements, police arrested and charged Jones with conspiracy to distribute drugs.

Prior to trial, Jones moved to suppress the evidence obtained using the GPS monitoring, arguing that because the police had violated the terms of a court order allowing the placement of the GPS device on his vehicle, the evidence was obtained without a warrant in violation of the Fourth Amendment’s protection against unreasonable searches and seizures. The trial court rejected Jones’ motion to suppress. However, on appeal, the D.C. Court of Appeals held that the use of the GPS device to track Jones and the evidence obtained constituted an illegal search in violation of the Fourth Amendment. Additionally, the Court of Appeals rejected the government’s claim that no violation of Jones’ privacy had taken place because the evidence pertained to Jones’ movements while he was in public.

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Rutherford Institute Urges U.S. Supreme Court to Hold Corporations Accountable for Human Rights Abuses in Keeping with the Rule of Law

Posted on January 5, 2012 by | Leave a comment

(WASHINGTON, DC) — The Rutherford Institute has filed an amicus curiae brief with the U.S. Supreme Court in a case that will determine whether U.S. courts are open to persons who are victims of human rights abuses by international corporations. The Institute’s brief in Kiobel v. Royal Dutch Petroleum Co. asks the Court to reverse a federal appeals court ruling that corporations are not subject to liability under the Alien Tort Statute (ATS), a 200-year-old law that allows victims of violations of the law of nations to recover damages from the persons responsible for the violations.

In their brief, Institute attorneys argue that U.S. courts should do all they can to prevent and remedy human rights abuses and that it is contrary to established principles and the rule of law to allow corporations to escape responsibility for heinous crimes that violate established international standards simply because they are not “natural” persons. The Rutherford Institute’s brief in Kiobel v. Royal Dutch Petroleum Co. is available at www.rutherford.org.

“Permitting corporations to escape civil liability for crimes against humanity is a fundamental departure from the constitutional theory of the rule of law upon which the U.S. Constitution rests,” said John W. Whitehead, president of The Rutherford Institute. “We have operated too long under a double standard that favors corporations, recognizing them as persons for the purposes of profit but failing to hold them equally accountable for their abuses. The Supreme Court needs to rectify this discrepancy and ensure that corporations are not given carte blanche to operate above the law.”

The case involves a lawsuit by residents of the Ogoni Region of Nigeria, where Royal Dutch Petroleum and its subsidiaries have been involved in oil exploration since 1958. The residents alleged that Royal Dutch, in cooperation with the Nigerian government, began a campaign of repression and terror after residents organized to protest and resist the exploration efforts because of its environmental effects upon the region. According to the complaint, the campaign involved the shooting and killing of Ogoni residents, attacking Ogoni villages, and beating, raping, torturing and arresting residents and destroying or looting of property by Nigerian military forces, allegedly with the aid and assistance of Royal Dutch and its affiliates.

Several Ogoni residents filed suit in a New York federal district court in 2002 under the Alien Tort Statute, which was enacted in 1789 by the First Congress and which provides federal courts with jurisdiction over “any civil action by an alien for tort only, committed in violation of the law of nations or a treaty of the United States.” Insisting that only natural persons are subject to federal court jurisdiction under the ATS, the corporate defendants filed a motion to dismiss the case, which the district court denied. On appeal, the Second Circuit Court of Appeals reversed the ruling, holding that corporations and other “juridical” entities, while considered “persons” under the law of the United States, are not considered persons under the ATS. However, a federal appeals court ruling in another, unrelated, case held that corporations are subject to the ATS.

In light of the conflict between the circuits, the Supreme Court agreed to hear Kiobel v. Royal Dutch Petroleum Co. In weighing in on the issue, attorneys for The Rutherford Institute are urging the Supreme Court to “affirm the foundational principle that corporations are not above the rule of law and are not available as a vehicle to circumvent domestic or international laws that punish participation in egregious human rights violations.”

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Affordable Care Act: Courts, Commerce and the Constitution

Posted on November 18, 2011 by | Leave a comment

By Cameron Smith

Recently, the Supreme Court agreed to hear a challenge to the Patient Protection and Affordable Care Act (PPACA). The Supreme Court’s decision in the case, likely to be issued in the summer of 2012, has as much to do with the constitutional limits on the federal government as with the future of American healthcare.

While the Court will hear a number of arguments against the PPACA, the most important consideration is whether Congress exceeded the constitutional limits of its power by establishing an “individual mandate” requiring individuals to either carry acceptable health insurance or pay a penalty. The Constitution’s “Commerce Clause” gives Congress the power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”

Gradually, the interpretation and application of the Commerce Clause has been stretched past the point of common sense. For example, the Supreme Court’s 1942 Wrightwood Dairy holding found that the federal government could regulate the price of milk sold solely within the State of Illinois. The opinion effectively established that commerce need not cross state lines to be under federal jurisdiction provided that “control over intrastate transactions…is necessary and appropriate to make the regulation of the interstate commerce effective.”

Could the framers of the Constitution really have envisioned that wholly intrastate commerce could somehow be interpreted as “Commerce…among the several States?”

The most shocking example of expanded congressional power under the Commerce Clause happened only a few months after the Wrightwood Dairy case. In Wickard v. Filburn, the Supreme Court ruled that the Commerce Clause allowed the federal government to regulate an Ohio farmer growing wheat on his own land for his personal consumption. The Court found that “[h]ome-grown wheat…competes with wheat in commerce” and, as such, was subject to the reach of the federal government.

Wrightwood Dairy effectively negated the “interstate” aspect of the Commerce Clause and Wickard expanded “commerce” to apply to activities never intended for the marketplace. After these cases, almost all activity that could conceivably impact interstate commerce has been upheld by the Court. Even the Civil Rights Act of 1964 was passed under Congress’s Commerce Clause authority on the theory that discriminatory practices by individuals impacted interstate commerce.

Earlier this month, the United States Court of Appeals for the District of Columbia (DC Circuit Court) upheld the PPACA’s individual mandate, in spite of the federal government’s inability to conceive of “any mandate to purchase a product or service in interstate commerce that would be unconstitutional” under the Commerce Clause. The court conceded that Congress has virtually limitless power to “forge national solutions to national problems no matter how local–or seemingly passive–their individual origins.”

Every American, regardless of their political inclinations on the PPACA, should be concerned about potential extensions of the DC Circuit Court’s decision in American politics. If the sole standard for determining congressional authority under the Commerce Clause is whether it addresses a national problem, then political ambition and the ability to assemble even the smallest of majorities are the only hurdles to unbridled federal control.

Consider recent national problems such as the housing crisis, automotive industry collapse, and skyrocketing energy prices. If the Commerce Clause has no real boundaries, what will stop Congress from preventing new residential construction until the stock of available homes is absorbed by the marketplace? Rather than the infamous “Cash for Clunkers” program or tax incentives for “green” fuels, what can prevent Congress from simply requiring Americans to turn in their old F-150s and buy new, fuel efficient automobiles?

The PPACA’s individual mandate also provides legislators with a politically expedient tool to avoid legislative transparency on the politically sensitive subjects of taxation and spending. The tax penalty associated with the individual mandate is effectively a mechanism to encourage the diversion of income from individuals directly to health insurers without passing through the government. The passage of the PPACA would have been highly unlikely if the individual mandate had been a national tax increase where the proceeds were promptly sent to insurance companies to pay for coverage. If the mandate is deemed constitutional, legislators will likely create similar income transfer provisions for other policy priorities.

Upholding the PPACA’s individual mandate could be the final blow for any remaining constitutional limitations on Congress’s Commerce Clause power. An individual’s right to avoid engaging in commerce is one of the last bastions of refuge from congressional control. Allowing Congress to conscript citizens into the stream of commerce in order to regulate their activities represents the height of federal encroachment not only into the domain of the states but also into the lives of individuals.

Constitutional limits on federal power are much more than archaic hurdles to “get things done.” America’s Founding Fathers endured the abuses of a controlling government’s power and specifically developed the Constitution as a safeguard against the repetition of those evils. The Court must restore those limits if the dangers of tyranny appreciated by the Founders are to be avoided.

Cameron Smith is General Counsel for the Alabama Policy Institute, a non-partisan, non-profit research and education organization dedicated to the preservation of free markets, limited government and strong families, which are indispensable to a prosperous society.

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Alford v. Greene: A Case with Far-Reaching Implications for Parents’ Rights

Posted on March 7, 2011 by | Leave a comment

By John W. Whitehead

“The child is not the mere creature of the state.” — United States Supreme Court, Pierce v. Society of Sisters

On March 1, the United States Supreme Court heard oral arguments in Alford v. Greene, the first major case involving Child Protective Services to go before the United States Supreme Court in 21 years and one of the most important parents’ rights cases ever to reach the Court.

If it goes the right way—i.e., to bolster parents’ rights—it will mean that state agents will have to obtain a court order in order to question a child at school. If it goes the wrong way, which the Obama administration is advocating for, along with 40 state attorneys general, law enforcement agencies, social workers, prosecutors and defense attorneys, it will be a serious blow to parental rights as well as the rights of children in the public schools. And then there’s the possibility that the Court will either vacate the lower court opinion, leaving the police and other government agents free to question students at will, or sidestep the issue altogether and simply choose not to rule on it, declaring it moot because the young girl involved is no longer a child.

Yet this is not an issue that is going to go away. Indeed, Alford v. Greene could have far-reaching implications for the rights of parents and students across the nation. And while the particulars of the case are egregious, they pale in comparison to the government’s effrontery in insisting that parents essentially forfeit their rights when they send their children to a public school.

In February 2003, an armed, uniformed county sheriff and an Oregon Department of Human Services caseworker directed school officials at an elementary school to summon a 9-year-old girl (referred to in the court documents as S.G.) for questioning. Despite the absence of a court order or the involvement of a judge, school officials called S.G. out of her class, took her to an empty conference room, and left her alone with the sheriff, James Alford, and the social services investigator, Bob Camreta. Then, without notifying S.G.’s mother and in the absence of anyone who might otherwise have looked out for the little girl’s best interests, these two men proceeded to question her for two hours.

During the course of the interrogation, Camreta, the social worker, peppered S.G. with questions about whether her father had ever abused her or her little sister. According to S.G.’s attorneys, when Camreta asked the 9-year-old if her father touched her “all over [her] body,” she said “yes,” referring to affectionate hugs, kisses and piggy-back rides. Camreta then asked “over and over again” if “some of those were bad touches.” Over and over again, the little girl said “no.”

Obviously intimidated by the two men, one of whom was wearing a gun clearly visible to the little girl, S.G. was too frightened even to ask for a glass of water or tell the men that she felt ill. At no time was she told that she could refuse to answer their questions or that she was free to leave the room on her own volition. (Incredibly, the Obama administration in their Supreme Court brief chalks up such interrogations to being “at most a minor intrusion on the liberty of a child whose freedom of movement is already considerably restricted by virtue of her presence at school.”)

As the interrogation dragged on, S.G. continued to deny that her father had ever abused her. Yet once the school buses started arriving to take her classmates home, S.G. found herself overcome with fear that she would be left behind. At that point, S.G. says she decided to lie and say yes to whatever the men asked, “just to get out of the room.” Upon returning home, S.G. was further traumatized to find the same two men in her house, questioning her mother. These encounters left the little girl feeling so nauseous that she later vomited five times and was unable to eat dinner.

Despite the fact that Alford had a tape recorder with him, no recording or documentation of the questions asked of S.G. during the two-hour interrogation exist. Nevertheless, based on the accounting of the two men and despite S.G.’s repeated denials of any abuse by her father, S.G. and her sister were subsequently removed from her parents’ care and placed in foster care for three weeks. They were eventually returned to their mother’s care after physical examinations failed to uncover any evidence of sexual abuse. Charges levied against their father were subsequently dropped.

In 2009, the U.S. Court of Appeals for the Ninth Circuit ruled in favor of S.G., declaring that the government had violated her Fourth Amendment right to be free from unreasonable searches and seizures. However, in appealing the case to the U.S. Supreme Court, the government is arguing that S.G.’s mere presence at school was sufficient to justify law enforcement officers seizing and interrogating her without her mother’s knowledge or consent—a position which, if upheld, will further undermine the rights of parents of public school students.

If Alford v. Greene were only about one family’s heart-wrenching ordeal, it would be bad enough. But it’s indicative of a more draconian mindset at work in the government, one that sees public school students as wards of the state, to do with as they will, in defiance of the children’s constitutional rights and those of their parents. This is far from the first time that government officials have usurped the rights of parents and arrogated authority and power over young people in the public schools. Hence, in recent years, students have found themselves subjected to invasive questioning and mass searches of their persons and property—often without their parents’ knowledge or consent.

Unfortunately, this effort to usurp parental authority and turn schools into virtual police states flies in the face of the Supreme Court’s 1968 admonition in Tinker v. Des Moines Independent School District that “neither teachers nor students shed their constitutional rights at the schoolhouse gate.” As attorney Tony LaCroix points out in “Student Drug Testing: The Blinding Appeal of In Loco Parentis and the Importance of State Protection of Student Privacy”: “The states, through a combination of compulsory attendance laws and in loco parentis-inspired policies, have ‘bootstrapped’ themselves into possessing a right to infringe on the personal liberties of students in a manner similar to a parent.” Moreover, as professor Susan Stuart recognizes in her article “In Loco Parentis in the Public Schools: Abused, Confused and in Need of Change”: “The consequences for students have been enormous, from increasing restrictions on student speech to loosening restrictions on how schools can conduct student searches. Schools have been given license to reach the outer boundaries of control by courts’ countenancing institutional and official behavior that is farther and farther from the reaches of professional conduct.”

Yet the harm caused by attitudes and policies that treat public school students as state vassals is not merely a short-term deprivation of individual rights. It also is a long-term inculcation of attitudes among our youth that civil liberties are luxuries that may be discarded at the whim and caprice of government officials if they deem doing so is for the so-called “greater good.” Rather than molding our young people into compliant citizens, the schools should be educating them for citizenship and in the scrupulous protection of our constitutional rights. Otherwise, as the Supreme Court has held, we “will strangle the free mind at its source and teach our youth to discount important principles of our government as mere platitudes.”

The public’s desire to stop and prevent child abuse cannot be gainsaid, but the government interest in investigating criminal activity has never been deemed sufficient to override fundamental rights such as the right to bodily freedom. As Supreme Court Justice Louis Brandeis opined in one of his dissenting opinions in 1928, “Experience should teach us to be most on our guard to protect liberty when the government’s purposes are beneficent. . . . The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”

To see John Whitehead’s video on the Alford v Greene case, go here.

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Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. He can be contacted at johnw@rutherford.org. Information about the Institute is available at www.rutherford.org.

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Abortion, a Constitutional Right? (38 Years of Roe v Wade)

Posted on January 22, 2011 by | Leave a comment

by Daniel Downs

Today, January 22, 2011, America remembers the Supreme Court decision that inaugurated abortion as legally protected privacy right. Pro-abortion supporters celebrate this day while devotees of pro-life oppose its existence.

A majority of Americans believe abortion is a constitutional right. In a Quinnipiac poll, 60% of Americans agreed Roe v Wade established a women’s right to abortion. I noticed most polls present abortion right as an established Constitutional right and proceed asking whether respondents want an amendment to ban it. Interestingly, 70% of Americans believe Supreme Court justices base their decisions on politics and not law according to the above poll. (Quinnipiac National Poll, April 21, 2010)

In a brief speech today, President Obama commemorated the Roe v Wade decision as establishing a women’s constitutional right to abortion. He said, “I am committed to protecting this constitutional right. I also remain committed to policies, initiatives, and programs that help prevent unintended pregnancies, support pregnant women and mothers, encourage healthy relationships, and promote adoption.” (USA Today)

Yes, most Americans believe in abortion as a constitutional right, but where is found in the U.S. Constitution? It is missing in the Supreme Law of the Land.

How then did the majority of Supreme Court justices discover it? They found a woman’s right to abortion in several places. First, natural law states that individuals have an absolute right over their own bodies. Second, they saw this natural law right positively in the 4the Amendment clauses forbidding government intrusion into private matters. Third, and last, they founded a technicality in the disagreement among academics and so-called professionals about when life begins. This technicality was their justification to permit abortions until “society” establishes such a consensus agreement, which they knew was likely to be never. They knew for such a consensus definition to occur secularists and traditionalist or moralists and liberal and conservatives, humanists and religionists would all have to come to an agreement that life begins at conception.

The problems with the Roe v Wade decision are many. Several worth stating are as follows: (1) Roe v Wade violates the law that prohibits individuals from harming their own bodies or others. Our laws allow officials arrest and detain people who seek to destroy their own body parts. (2) Human life is the result of the behavior of two people, not one. The court only recognizes the right of the women. In practice, the man has no right to his body part contributed to the newly conceived person. (3) At every stage, a baby develops as a separate entity apart from the women whose body is made to nourish and nurture the new person. A baby at the blastocyte, fetus, or any other stage is still a developing human being. (4) Lastly, the Constitution is supposed to protect the right to life. That two-letter word has more meaning than most people realize. If the right was a “right of life,” however human life may be defined, all Americans have a right to right possess it. However, the right is to life, which indicates a process of obtaining what human life is. And, human life is a process of becoming as well as a state of entropy. Human life is an inheritance of the past and a development toward a future, and a present state of being.

Because human life is an inherited interrelational, historical, and futuristic process, Roe v Wade should be regarded as a political act of violence against all human life. No way can it be constitutional.

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