Did the Supreme Court Tip its Hand on ObamaCare?


On June 16 the U.S. Supreme Court sent a case (U.S. v. Bond) back to a lower court on Tenth Amendment grounds. The ruling, written by Justice Anthony Kennedy (the Court's "swing vote"), hints that ObamaCare just might be ruled unconstitutional. How? Justice Kennedy's opinion in U.S. v. Bond showed he still believes the federal government is restricted by the enumerated powers as listed in the U.S. Constitution. His viewpoint was expressed in a case the Lifetime network is probably making a movie about right now.

            In this case, Carol Anne Bond learned that her best friend, Myrlinda Haynes, was pregnant. Bond thought that was great until she found out that the baby was fathered by her husband of 14 years, Clifford. Naturally, Bond, a microbiologist residing in suburban Philadelphia, wanted revenge. She began in the usual way by threatening Haynes over the telephone: "I [am] going to make your life a living hell." Subsequently, Bond's attempts to make Haynes life a "living hell" got her convicted for harassment in 2005.

            Bond, however, was still out for revenge. Bond next smeared poisonous chemicals, such as an arsenic-based chemical (remember she is a microbiologist) on Haynes' car door handle, mailbox, and other places. Haynes got a burn from the chemicals and reported it to the police. The police, however, didn't know what to make of Haynes' claims. But then the U.S. Postal Inspection Service got involved because the mailbox had been tampered with. After its investigation, Bond was charged with a violating U.S. Code, Section 229, a statute that then prompted federal prosecutors to also throw the 1993 Chemical Weapons Convention at Bond.  Bond subsequently pleaded guilty in federal court and got a six-year sentence and nearly $12,000 in fines and restitution.

The use of this federal treaty on chemical weapons, however, was a bit much, so Bond's lawyers appealed by arguing that using the federal government's Chemical Weapons Convention against Bond is unconstitutional under the Tenth Amendment. ("The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.")

On appeal, the 3rd Circuit then ruled that Bond lacked standing to challenge her conviction, finding that only states, not individuals, can bring challenges under the Tenth Amendment.

With this constitutional question in the balance, the U.S. Supreme Court agreed to take the case and heard it last January.  Former Solicitor General Paul Clement represented Bond at the Supreme Court hearing.  Clement argued that "the structural provisions of the Constitution are there to protect the liberty of citizens." He articulated that states have the authority to resolve their own criminal justice cases -- some international treaty on chemical weapons shouldn't preclude this state right.

Which gets us back to Justice Kennedy and his tell on how he might rule on ObamaCare.  Justice Kennedy said at the hearing: "The whole point of separation of powers, the whole point of federalism, is that it inheres to the individual and his or her right to liberty; and if that is infringed by a criminal conviction or in any other way that causes specific injury, why can't it be raised?" This made court watchers wonder if this might forecast how Justice Kennedy might vote on ObamaCare.

Then, on June 16, the Court ruled 9-0 in favor of Bond that the U.S. Congress overstepped its authority by infringing on powers reserved to the states under the Tenth Amendment. (Bond, however, will have to make and win the Tenth Amendment argument in a lower court, as the Supreme Court only sent the case back down to the lower court while saying that Bond can fight her conviction on Tenth Amendment grounds.)  

So here's where it gets interesting for those wondering how the Court will vote on ObamaCare. The Obama Administration's argument is that it can mandate that people buy government-approved health insurance under the power the Constitution's Commerce Clause (The U.S. Congress shall have the power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes....") gives the federal government. The Commerce Clause has been viewed to be an expansive power by the Supreme Court; for example, the Court found in Wickard v. Filburn (1942) that the federal government can even regulate whether a farmer can grow wheat for his chickens. But the Court has never found that the government can mandate that citizens actively do something, such as purchase a product. This is why Justice Kennedy's opinion expressed in U.S. v. Bond is interesting, as it indicates his preference for state rights under the Tenth Amendment.

For example, in his opinion on U.S. v. Bond, Kennedy quoted the Supreme Court case New York v. U.S. (1992): "Federalism secures to citizens the liberties that derive from the diffusion of sovereign power." And then Justice Kennedy said, "[Federalism] protects the liberty of all persons within a state by ensuring that laws enacted in excess of delegated governmental power cannot direct or control their actions.... By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake. The limitations that federalism entails are not therefore a matter of rights belonging only to the states."

So in U.S. v. Bond Justice Kennedy found that Congress exceeded its constitutional authority. Let's hope he'll do the same when Obamacare makes it to the U.S. Supreme Court.

Frank Miniter is the author of Saving the Bill of Rights

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