SCOTUS and the Collapse of States' Sovereignty

The ongoing collapse of the boundaries between the federal government and the sovereign, individual states has been accelerated by the recent ObamaCare decision.  Conservatives should put aside speculations about John Roberts's legal casuistry or his supposed capitulation to White House and media pressure.  The fact of the matter is that neither the reduction of the influence of the Commerce Clause nor the expansion of congressional authority to tax, much less Justice Roberts's psychological difficulties -- real or perceived -- is the chief issue at stake in the recent and disastrous 5-4 Supreme Court decision to uphold the Affordable Care Act.

The continuing destruction of state sovereignty has been accompanied by the jettisoning of the First Amendment and its guarantees, with churches and church institutions being forced to bow to federal intrusion and authority.  The demolition of the Bill of Rights firewall protecting individuals from the predations of their own government and the evaporation of the distinctions among the three branches of government are yet two more profoundly disturbing consequences.

The demise of the constitutional boundaries separating the federal government, institutions, and individuals has been so swift and profound that one might even call what is happening to our country a bloodless coup of the executive branch.

But in particular, the enactment and results of the Affordable Health Care Act are proving as dangerously divisive and threatening to states' sovereignty as the issue of slavery was before the Civil War. 

Students of history will recall Henry Clay's Compromise of 1850.  Clay attempted to divide the United States into slave and free states.  The eventual result was not peace, but disaster, as citizens of both slave and free states hardened their ideological positions and sought to avoid the full implementation of the law.  There was no compromise possible, as Abraham Lincoln pointed out when he wrote, using Christ's words as an example, that the nation could not permanently survive as a house divided between slave and free.  One vision or the other had to prevail, as the issue was an inherently moral one leaving no middle ground.

Chief Justice Roberts's decision has in effect divided the nations' states in a manner similar to Henry clay's legislative achievement.  A competing vision of what this nation should look and be like, a vision which allows no possible compromise, has been laid out by the current administration, has become the law of the land, and is now upheld by the last court of appeal, thanks to one man's capitulation to unconstitutional thinking.  Roberts had the chance to unify the nation by rejecting the entire law as unconstitutional, but he didn't.

The result is a rupturing of the federal system characterized by irrevocable damage to the sovereignty of the individual states.  States must now decide if they are going to be subsumed under the federal government by means of the Affordable Care Act.

Fortunately, there are signs that some states will not go quietly into the suffocating embrace of ObamaCare.  Louisiana's Bobby Jindal is refusing to implement the law.  Florida's governor Rick Scott is digging in his heels.  Scott Walker of Minnesota has proclaimed that he is not in any hurry to implement the law. 

The competing visions for the roles of individual states and the federal government are becoming apparent as some governors essentially secede from this administration. 

If the states accede to their own destruction by the federal government, they will be reduced to mere appendages following and enforcing the orders and edicts of the federal government.  A horde of federal officials newly appointed to the 159 new agencies established by ObamaCare will join the harassing entities of the IRS, the EPA, and other non-elected agencies, to gnaw away and eventually collapse individual states' rights, sovereignty, and freedoms.  Enabled by an army of bureaucrats, the 159 agencies will now write thousands of pages of regulations.  According to Republican Rep. Denny Rehbery of Montana, "[t]here's already some 13,000 pages of regulations, and they're not even done yet."

In the face of such regulatory handcuffing by federal agencies, what does it matter if the federal government cannot yank current Medicaid funds for non-compliance?  Compliance will be assured by other means -- namely, regulatory ones.

A 2,800-page edict regulating every conceivable choice of states and individuals simply allows no compromise.  The law is either rejected in its entirety as a parasitic alien fastened onto the state body politic or it is allowed to feast on the state hosts, sucking them dry.

Legal complexity, the hallmark of the Affordable Care Act, is the friend of tyranny in that it provides the means to punish and control citizens arbitrarily.  The Supreme Court has handed the executive branch the authority to penalize for behavior that is not necessarily illegal, but which acts as a "nudge" to conform to leftist ideals, be it the purchase of health insurance or -- eventually? -- a car run on algae, politically correct light bulbs, and so on.  

Being thought of as not behaving properly even when one is not transgressing the law, being punished for not doing something, is a direct attack on freedom. 

Since the high Court has set its horrific precedent, there is absolutely no aspect of life which cannot now be subject to regulation and taxes for non-compliance.  If implemented, the Affordable Health Care Act will deny the constitutionally guaranteed freedom of choice, creating a government with absolute power and control over human behavior.  U.S. citizens may as well be slaves.

As John Dalberg-Acton noted over a century and a half ago in his essay "The Civil War in America: Its Place in History," the choice comes down to a definition of freedom.  While his conclusions concerning the war may not rest easy with some Americans, he certainly made a profound statement when he wrote: "We understand liberty to consist in exemption from control.  In America it has come to mean the right to exercise control."

Current state governors, then, are in the position of governors before the Civil War.  In an irony of history, the choice between slave and free states is once again before us. 

Are the people of the individual states to remain free or become slaves?

Will states and their governors fight for sovereignty and freedom?

Let's hope conservatives forego the endless discussion about John Roberts, thus capitulating to the left's usual means of defining debate -- making the matter entirely personal rather than focusing on the issues and the results of the catastrophic decision by the SCOTUS.

The dissenting governors and those who support them will have a hellish fight on their hands as the administration, its confidence bolstered by the SCOTUS decision, seeks to make ObamaCare the means of fundamentally transforming this United States of America.

But capitulation is not an option.

Fay Voshell is a frequent contributor to American Thinker.  She may be reached at

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