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In the Year of our LORD Jesus Christ
-- As of January 20, 2017
A Sigh Of Relief With The Inauguration Of Donald John Trump as President of the United States of America, And Hope For A Prosperous Future For All United States Citizens (we who are a nation called "the melting pot of the world"). We shall be great and exceptionally great again.

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Peace and Liberty. Semper Fidelis.

Sunday, August 4, 2013

Can We The Healthcare Mandate Be Relitigated Before The Supreme Court And Tossed Out? I Personally Believe It Can and Should Be, But Only The States That Sued Might Only Have That Standing At Present.

Chief Justice Marshall, in
Cohens v. Virginia, 19 U.S. 6 Wheat. 264  (1821) @ 404
 stated that:
“Questions may occur which we would gladly avoid, but we cannot avoid them. All we can do is to exercise our best judgment and conscientiously to perform our duty.”
But in the words immediately preceding this, he also stated the solution inside of the problem.
“The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the Constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given than to usurp that which is not given. The one or the other would be treason to the Constitution.” 

Obama has regularly stated that if Congress does not legislatively act on an issue that helps him subvert or abridge or remove certain Constitutional rights of U.S. Citizens, he will merely do a legislative end-run around them and create an Executive Order or simply put an action into motion as part of his Executive Policy anyway.  He has even stated this threat before the U.S. Supreme Court Justices attending front and center at the State of the Union Speech in which he has also reiterated such threats.

Obama as a M-level lecturer on the Constitution (M for Morons) with regard to his   University of Chicago syllabus.  Obama used his class to speak on how to subvert the Constitution via the 14th Amendment, for example, and despite his “teaching” Constitutional law, he appears oblivious to the Supreme Court's decisions in respect to his claim that he can personally end-run legislate by himself around Congress and / or the Courts threats.

Myers v. United States, 272 U.S. 52 (1925) @177
“…MR. JUSTICE HOLMES, dissenting.
… The duty of the President to see that the laws be executed is a duty that does not go beyond the laws or require him to achieve more than Congress sees fit to leave within his power.”

He is to act within the confines of the Constitution, the supreme law of the land, because the Constitution is a law, not a guide of recommendations.  The Constitution lists a Bill of Rights he must uphold, but Obama is apathetic to any admonition to this regard and the legal counsel. 

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)@ 180
"... in declaring what shall be the supreme law of the land, the Constitution itself is first mentioned,
and not the laws of the United States generally,
but those only which shall be made in pursuance of the Constitution,
have that rank.
Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument."

Miranda v. Arizona, 384 U.S. 436 (1966) @ 491
"Where rights secured by the Constitution are involved, there can be no rulemaking or legislation which would abrogate them."

Almeida-Sanchez v. United States, 413 U.S. 266 (1973) @ 272
"It is clear, of course, that no Act of Congress can authorize a violation of the Constitution."

But now, in regard to the forced Healthcare Mandate that a Soros special interest group wrote, that Congress refused to read and the Democrats adamantly passed anyway, and to which 26 states of the United States sued and were handed down a relegislation by a lone Chief Justice, we now take the issue and kick it up a notch.

The Obama Administration has on its own Executive Branch authority, without the necessary Congressional Legislation, waivered all businesses as exempt from paying Healthcare mandate taxes until 2015, but prejudicing themselves against the individual citizen, especially the working poor with a "pay or else" attitude, and that "if you don't like it, make Congress make legislation and pass it as law to get yours."   Really.  Obama and his minions usurp the authority of Congress to re-legislate one group of people, business owners, and act as if they have the right to exercise any legislative powers they want to on a whim in the future.

Hypothetically speaking, what would really happen if the majority of the  individual tax-paying U.S. Citizenry that Obama and his (illegal) Administration were to pay the I.R.S. only its normal Federal Income Taxes minus the   extra Obamacare charge that may range from $695 per person to 2.5% of a person’s income, whichever amount is greater?  Exactly, what would really happen if more than half of we who pay income taxes flatly were to refuse to pay the added unConstitutional amount, and making the legal challenge on a national scale -- NOT because Obama subverted the Constitution and illegally, criminally violated the separation of powers,  exempting a group over there and excluded us, but --  because Obama is NOT legal under the Constitution to hold office and sign anything into law, and because the Healthcare mandate did not pass the Supreme Court as a tax except by one vote, while 8 others voted differently?   The actual vote was 4-4-1, not  de jure (by claim) the 5-4 that has been assumed.

 It merits serious consideration, discussion, and legal analysis, even if a hypothetical.  Will even this hypothetical be denied even as a hypothetical last option left the American people if the Executive Branch under Obama and Congress, and the Courts all choose to NOT follow the Constitution and play the “let’s ignore the Constitution here, here, or there” games they have been playing since the 2008 election cycle that allowed a foreign natural born citizen with alien citizenships at birth to the Office of the Presidency in the first place? It is a hypothetical that even the Media along with Congress has been virtually proposing, saying that if businesses don’t have to pay their first Healthcare payment until 2015, why should the average tax-payer as well.  In fact, the Media and Congress essentially proposed the above hypothetical first (minus giving legitimate legal reasoning to not pay under case law and the Constitution).    
The actual tally of passing Obamacare as a mandated tax was only one lone Chief Justice that mandated Healthcare by inserting a form of legislation into the decision and calling it a "tax".  Chief Justice Roberts inserted language and re-legislated the Healthcare Mandate that Congress passed while refusing to read of its contents, and then by Roberts lone decision, made his opinion that specifically defined unconstitutional act that the officials of the Obama Administration at Obama has directed those under him to carry out,  as though Roberts legislative  unconstitutional act while part of the Judicial Branch were as law, when it really is not.  

Huntington v. Worthen, 120 U.S. 97 (1887) @101-102
 “An unconstitutional act is not a law; it binds no one, and protects no one.”

 5 justices did NOT carry Obamacare, the vote was 4-4-1.  Yet, when we discuss it, it is treated as though the stalled opinion to pass the mandate by 4 against 4 is to be treated as though it were a majority opinion, even when it is not.  It is a 4-4-1 decision outright, and 8-1 against Roberts in re-legislating it as a tax from the bench.

Question:  Did the Healthcare Law regarding Part III-B (the mandatory purchase or pay the fine requirement) legally really pass United States Supreme Court Muster?

NO CONSENSUS as to what Constitutional Provision acted as the engine of Healthcare was ever decided upon in majority.  Tens of thousands of attorneys need to put down their paper, stop trusting hearsay, and read the decision carefully and thoroughly for themselves.  The Opinion of Roberts was just that, an opinion…and oddly enough, as regarding the Healthcare Law as only Constitutional when it is regarded as a tax was the opinion of 1.  Are we to take that the opinion of just one Court Justice now trumps the contrary opinions of the other 8?  No.  Of course we should NOT.

…Did the Court see to a Consensus of Affirmation  Aequam Servare Mentem (a Consensus of Affirmation keeping an even mind)?  No.  A minority opinion said that it can be legal if you rule that only this part of the Constitution over here is used, but not that part over there; while another minority opinion said, No, you must use that part of the Constitution over there but you cannot use this part of the Constitution over here.  Effectually, by majority, Healthcare as a mandate, when challenged by closer examination, I would argue, appears to have been more  struck down than not, regarding the forced purchase or pay mandate…despite claims to the contrary, even by what the Media has thus far gleaned from the syllabus and Opinion of the Chief Justice.

[Page 3] “ CHIEF JUSTICE ROBERTS concluded in Part III-B that the individual mandate must be construed as imposing a tax on those who do not have health insurance, if such a construction is reasonable.”

  So let's have that discussion now.

 By refusing to pay the added "premium", could we not say that the U.S. Citizenry under the Law commit NO actual crime if it is an unConstitutional Act in the first place?   That is a viable legal interpretation that should be re-visited to the U.S. Supreme Court, it seems to me. 

  For the Court has stated in
Ex parte Siebold, 100 U.S. 371 (1879) @376 -377
“An unconstitutional law is void, and is as no law. An offence created by it is not a crime. A conviction under it is not merely erroneous, but is illegal and void,  and cannot be a legal cause of imprisonment.”

And to add injury to injury, since Obama is NOT a United States Natural Born Citizen and has NO admissible in U.S. Court documentation to prove authority under Bute v. Illinois 333 U.S. 640 (1948) @ 653 and Nguyen v. INS 533 U.S. 53 (2001) @ 54, 62; then, he has no authority and no tangible office by which to prosecute except as a criminal in office acting under color of authority in a usurpation of power.  The question on Healthcare might be, whether like Ernst Janning,

 Chief Justice Roberts may be chargeable for crimes against the Constitution and Humanity at a time when his "leader" is toppled, because he acts outside the protection of the Constitution of the Sovereignty at the time. 

Ex parte Young, 209 U.S. 123 (1908) 159 - 160
The act to be enforced is alleged to be unconstitutional, and, if it be so...it is simply an illegal act upon the part of a State official in attempting, by the use of the name of the State, to enforce a legislative enactment which is void because unconstitutional. If the act which the state [official] ...seeks to enforce be a violation of the Federal Constitution, the officer, in proceeding under such enactment, comes into conflict with the superior authority of that Constitution, and he is, in that case, stripped of his official or representative character, and is subjected in his person to the consequences of his individual conduct. The State has no power to impart to him any immunity from responsibility to the supreme authority of the United States. See In re Ayers, supra, p. 123 U. S. 507.

Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810)  @ 87
“The question whether a law is void for its repugnancy to the Constitution is at all times a question of much delicacy...   The Court, when impelled by duty to render such a judgment, would be unworthy of its station could it be unmindful of the solemn obligations which that station imposes.  … The opposition between the Constitution and the law should be such that the judge feels a clear and strong conviction of their incompatibility with each other.”

Then, where it regards legislation on taxation, if it needs more specific language to be executed, that specific language must be Constitutionally implemented (i.e., by Congressional legislation specifying that).

Davis v. Burke, 179 U.S. 399 (1900) @ 403

"Where a constitutional provision is complete in itself, it needs no further legislation to put it in force. When it lays down certain general principles, as to enact laws upon a certain subject, or for the incorporation of cities of certain population, or for uniform laws upon the subject of taxation, it may need more specific legislation to make it operative. In other words, it is self-executing only so far as it is susceptible of execution. But where a constitution asserts a certain right, or lays down a certain principle of law or procedure, it speaks for the entire people as their supreme law, and is full authority for all that is done in pursuance of its provision. In short, if complete in itself, it executes itself.”

 The essential, is that Roberts, in the Judicial Branch, has no legal authority to mandate a tax upon any of us, because that power exclusively belongs to Congress in the Legislative Branch.  Chief Justice Roberts should have sent the Healthcare Mandate back to Congress as needing a re-write, because it was not his job to re-legislate from the Bench, even if he were to have cited extra-ordinary circumstances. 

A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935) @ 495, 528-29
@ 495  “Extraordinary conditions, such as an economic crisis, may call for extraordinary remedies, but they cannot create or enlarge constitutional power.” 

@528    “Extraordinary conditions may call for extraordinary remedies. But the argument necessarily stops short of an attempt to justify action which lies outside the sphere of constitutional authority. Extraordinary conditions do not create or enlarge constitutional power.      [Case Footnote: See Ex parte Milligan, 4 Wall. 2, 71 U. S. 120, 71 U. S. 121; Home Building &; Loan Assn v. Blaisdell, 290 U. S. 398, 290 U. S. 426.  ]
The Constitution established a national government with powers deemed to be adequate, as they have proved to be both in war and peace, but these powers of the national government are limited by the constitutional grants. Those who act under these grants are not at liberty to transcend the
Page 295 U. S. 529
imposed limits because they believe that more or different power is necessary. Such assertions of extraconstitutional authority were anticipated and precluded by the explicit terms of 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." “

…Second. The question of the delegation of legislative power. We recently had occasion to review the pertinent decisions and the general principles which govern the determination of this question. Panama Refining Co. v. Ryan, 293 U. S. 388. The Constitution provides that
"All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives."
Art I, § 1. And the Congress is authorized "To make all laws which shall be necessary and proper for carrying into execution" its general powers. Art. I, 8, par. 18. The Congress is not permitted to abdicate or to transfer to others the essential legislative functions with which it is thus vested. “

Norton v. Shelby County, 118 U.S. 425 (1886) @442
 “…an unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.”

Williams v. Rhodes, 393 U.S. 23 (1968) @29
 “But the Constitution is filled with provisions that grant Congress or the States specific power to legislate in certain areas; these granted powers are always subject to the limitation that they may not be exercised in a way that violates other specific provisions of the Constitution.”

Poindexter v. Greenhow, 114 U.S. 270 (1885)  @ 290
"...the maxim that the King can do no wrong has no place in our system of government, yet it is also true, in respect to the state itself, that whatever wrong is attempted in its name is imputable to its government, and not to the state, for, as it can speak and act only by law, whatever it does say and do must be lawful. That which therefore is unlawful because made so by the supreme law, the Constitution of the United States, is not the word or deed of the state, but is the mere wrong and trespass of those individual persons who falsely speak and act in its name. "    

 By declaring you have powers and authority outside that granted by the Constitution and acting on that claim, you act and speak falsely in the name of the Government and under color of authority.

That means that Obama is prosecutable without statute of limitations and without protection for being a usurper, not being a Constitutionally qualified office holder without a U.S. Natural Born Citizenship (even as he votes as Barry Soetoro, citizen of Indonesia, for himself in the 2012 election with a White House 1600 Pennsylvania Avenue address, etc.); and that Chief Justice Roberts may also one day concurrently join him in prison as well, it seems to me.  

Now some Obama zealots may say, “Hold it.  You’re crossing the threshold of free speech.”  But that is not so.  I have placed the arrest and prosecution of Obama and his co-conspirators against the Constitution of the United States into a hypothetical indeterminate future scenario that is, for now, merely "abstract principle, divorced from any effort to instigate action to that end" as the Court itself stated in Brandenburg.

 In Brandenburg v. Ohio, 395 U.S. 444 (1969) @447
 the United States Supreme Court in regard to the use of what some may deem as violent speech held that U.S. Government may “forbid or proscribe advocacy of the use of force or of law violation [only] where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
The primary concern of free speech that crosses the line, in the opinion of the Court, will generally focus on whether if or not the speech itself poses a "clear and present danger" to Society so as to cause actual harm.  Schenck v. United States, 249 U.S. 47 (1919) @52
“The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. Gompers v. Bucks Stove & Range Co., 221 U. S. 418, 221 U. S. 439. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.”


 Then,  in  Yates v. United States 354 U.S. 298 (1957) @ 318,
we also have the distinction made between  the  "abstract principle [of discussing rebellion], divorced from  any effort to instigate action to that end” and  that of an actual  call to arms or violence “advocacy directed at promoting unlawful action.”
An advocacy of an illegal action at some indefinite time in the future,  such as "we'll take the f**king street later" when an anti-war demonstration group is ordered to disperse, as long as it is not directed at a specific group, but is a generic utterance, was not considered by the Court in Hess v. Indiana 414 U.S. 105 (1973) @  107 to produce immediate or imminent harm, and therefore is protected speech.
Discussing a possible future scenario that can easily be changed by a Congress itself willingly specifically de-funding a program under the same hypothetical by a different means, this still falls under the definition of the abstract principle divorced from an actual advocacy toward imminent harm, and is therefore protected speech. 

 Hess v. Indiana 414 U.S. 105 (1973) @  107
“It hardly needs repeating that
"[t]he constitutional guarantees of freedom of speech forbid the States to punish the use of words or language not within 'narrowly limited classes of speech.'"
Gooding v. Wilson, supra, at 405 U. S. 521-522.”

In Liverpool, N.Y. & Phila. S.S. Co. v. Commissioners - 113 U.S. 33 (1885) @ 39, http://supreme.justia.com/cases/federal/us/113/33/case.html
 The United States Supreme Court stated that the Court cannot enter hypotheticals on Constitutionality, and that in regard to its function and functionality, the United States Supreme Court itself
      “has no jurisdiction to pronounce any statute, either of a State or of the United States, void because irreconcilable with the Constitution except as it is called upon to adjudge the legal rights of litigants in actual controversies. In the exercise of that jurisdiction, it is bound by two rules, to which it has rigidly adhered: one, never to anticipate a question of constitutional law in advance of the necessity of deciding it; the other, never to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied. These rules are safe guides to sound judgment. It is the dictate of wisdom to follow them closely and carefully.
If, on the other hand, we should assume the plaintiff's case to be within the terms of the statute, we should have to deal with it purely as an hypothesis, and pass upon the constitutionality of an act of Congress as an abstract question. That is not the mode in which this Court is accustomed or willing to consider such questions. It has no jurisdiction to pronounce any statute, either of a State or of the United States, void because irreconcilable with the Constitution except as it is called upon to adjudge the legal rights of litigants in actual controversies. In the exercise of that jurisdiction, it is bound by two rules, to which it has rigidly adhered: one, never to anticipate a question of constitutional law in advance of the necessity of deciding it; the other, never to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied. These rules are safe guides to sound judgment. It is the dictate of wisdom to follow them closely and carefully.
So, in effect, we might say that we must ourselves explore the law and hypotheticals if we are to legally and peacefully resolve this to the very best of conclusions that upholds the U.S. Constitution and the individual rights guaranteed by that founding document called the "Supreme Law of the land."  

 But now that the Supreme Court has ruled, the question is, who has Article III standing to sue? 

The Court recognized the States of Virginia et al. the Article III standing or the right to sue, and that is essential to even get an audience before them.

Baker v. Carr, 369 U.S. 186 (1962)  @ 204
 “Have the appellants alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions? This is the gist of the question of standing. It is, of course, a question of federal law."


Valley Forge Christian College v. Americans United for Separation of  Church and State, Inc., 454 U.S. 464 (1982) @ 475-76, http://supreme.justia.com/us/454/464/case.html
“We need not mince words when we say that the concept of "Art. III standing" has not been defined with complete consistency in all of the various cases decided by this Court which have discussed it, nor when we say that this very fact is probably proof that the concept cannot be reduced to a one-sentence or one-paragraph definition. But of one thing we may be sure: those who do not possess Art. III standing may not litigate as suitors in the courts of the United States."

Ohio ex rel. Popovici v. Agler, 280 U.S. 379 (1930) @383, 384

@383   The language [of the Constitution] … has to be interpreted in the light of the tacit assumptions upon which it is reasonable to suppose that the language was used.

@384  …In the absence of any prohibition in the Constitution or laws of the United States, it is for the state to decide how far it will go.

 I believe that the any of the States that sued over Obamacare can re-sue a challenge regarding Roberts violating the separation of powers, and have the decision set aside and thereby void out Obamacare. In fact, that may be the very best solution...to have that Healthcare decision set aside by the Supreme Court itself. 

That's my input. 

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