ANTONIN SCALIA, OUR MAN ON THE SUPREME COURT
The voluminous health care bill is not a done deal. Let us repeat, the voluminous health care bill is not a done deal. We at TNBTP bring to your attention the Brady Bill. This bill was name after Jim Brady who took a slug or two during the assassination attempt on President Ronnie Regan way back in 1981.
The Supreme Court has ruled the bill or sections of it to be Unconstitutional. This can be the road for the individual States to take to contest the implimentation of the health care bill if it passes. The road to success is based on the 10th Amendment to the Constitution. Please click on the following URL to learn more about the 10th Amendment and Nullifcation actions being taken by various States. http://en.wikipedia.org/wiki/Tenth_Amendment_to_the_United_States_Constitution
Majority decision
The majority of five justices ruled that the interim provisions of the Brady Bill are unconstitutional. In his opinion, Justice Scalia states that, although there is no constitutional text precisely responding to the challenge, an answer can be found “in historical understanding and practice, the structure of the Constitution, and in the jurisprudence of this Court.”
Historical understanding and practice
Scalia concedes that legislation compelling judges to carry out Federal legislation has been passed. But he considers that the nature of the courts, which occupy a vertical hierarchy that requires consideration of prior decisions by Federal or state courts, exempts this from applying in this case. Furthermore, contrasting the frequency of legislation applying to judicial courts to the absence of legislation applying to state executives to show this power was not granted.
The structure of the Constitution
Scalia refers to the “dual sovereignty” established by the U.S. Constitution that federalism is built upon. His opinion states that the Framers designed the Constitution to allow Federal regulation of international and interstate matters, not internal matters reserved to the State Legislatures. The majority arrives at the conclusion that allowing the Federal government to draft the police officers of the 50 states into its service would increase its powers far beyond what the Constitution intends.
The Court also offered an alternative basis for striking down the provision: it violated the constitutional separation of powers by robbing the president of his power to execute the laws; that is, it contradicted the "unitary executive theory". The Court explained
- We have thus far discussed the effect that federal control of state officers would have upon the first element of the "double security" alluded to by Madison: the division of power between State and Federal Governments. It would also have an effect upon the second element: the separation and equilibration of powers between the three branches of the Federal Government itself. The Constitution does not leave to speculation who is to administer the laws enacted by Congress; the President, it says, "shall take Care that the Laws be faithfully executed," Art. II, §3, personally and through officers whom he appoints (save for such inferior officers as Congress may authorize to be appointed by the "Courts of Law" or by "the Heads of Departments" who with other presidential appointees), Art. II, §2. The Brady Act effectively transfers this responsibility to thousands of CLEOs in the 50 States, who are left to implement the program without meaningful Presidential control (if indeed meaningful Presidential control is possible without the power to appoint and remove). The insistence of the Framers upon unity in the Federal Executive—to insure both vigor and accountability—is well known. See The Federalist No. 70 (A. Hamilton); 2 Documentary History of the Ratification of the Constitution 495 (M. Jensen ed. 1976) (statement of James Wilson); see also Calabresi & Prakash, The President's Power to Execute the Laws, 104 Yale L. J. 541 (1994). That unity would be shattered, and the power of the President would be subject to reduction, if Congress could act as effectively without the President as with him, by simply requiring state officers to execute its laws.
Finally, the majority cited previous rulings by the Supreme Court in similar situations. They relied on New York v. United States, wherein the Court ruled a Federal bill compelling States to enact legislation to provide for radioactive waste disposal was unconstitutional because it violated the Tenth Amendment; thus, a precedent was set prohibiting the Federal government from compelling a state to enforce a Federal regulatory program.
The dissent
In his dissent, Justice Stevens suggests the Commerce clause of the Constitution, giving the Federal government the right to regulate handgun sales, can be coupled with the Necessary and Proper Clause, giving Congress the power to pass whatever laws are necessary and proper to carry out its previously enumerated power. Federal direction of state officials in this manner is analogous to ordering the mass inoculation of children to forestall an epidemic, or directing state officials to respond to a terrorist threat. He is very concerned with the ability of the federal government to respond to a national emergency and does not believe that "there is anything in the 10th amendment 'in historical understanding and practice, in the structure of the Constitution, or in the jurisprudence of this Court,' that forbids the enlistment of state officers to make that response effective." Moreover, the text of the Constitution does not support the Majority's apparent proposition that "a local police officer can ignore a command contained in a statute enacted by Congress pursuant to an express delegation of power enumerated in Article I."
Effects of the decision
The immediate effects of the ruling on the Brady Bill were negligible. The vast majority of local and state law enforcement officials supported the interim provisions and were happy to comply with the background checks, unconstitutional or not. The issue ended with the completion of the federal background check database. However, Printz v. United States was an important ruling in support of limits on Federal power and States' Rights.
The political poles have reversed from Printz, especially after the attack on the World Trade Center; where Printz protected conservative local authorities from liberal federal power, it also now protects liberal local authorities from conservative federal power. Professor Ann Althouse has suggested, retained in its strong form, the anti-commandeering doctrine announced in Printz "can work as a safeguard for the rights of the people";"the federal government might go too far in prosecuting the war on terrorism," Printz provides a circuit-breaker that might allow local and state officials to refuse to enforce regulations curbing individual rights. Moreover, "[b]y denying the means of commandeering to the federal government, the courts have created an incentive [for Congress] to adopt policies that inspire [rather than demand] compliance, thus preserving a beneficial structural safeguard for individual rights," and "state and local government autonomy can exert pressure on the federal government to moderate its efforts and take care not to offend constitutional rights."[
http://www.eskimo.com/~bpentium/articles/bradybil.html Please click on the preceeding URL to learn more about the powers reserved to the States.
http://www.eskimo.com/~bpentium/articles/bradybil.html Please click on the preceeding URL to learn more about the powers reserved to the States.
Posted by THENEWBOSTONTEAPARTY at 12/30/2009 4:43 PM 
Categories: uncategorized
Tags: TEA PARTY POLITICS TAXES TYRANTS COMMUNISM BOSTON TEA PARTY SOCIALISM
Categories: uncategorized
Tags: TEA PARTY POLITICS TAXES TYRANTS COMMUNISM BOSTON TEA PARTY SOCIALISM
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