Earlier this month three judges sat down from 4th U.S. Circuit Court of Appeals to hash out the constitutionality of Obama’s heath care plan. The panel was in response to two lawsuits filed by Virginia’s Attorney General Kenneth Cuccinelli and Liberty University. Now it seems this is just as much as a political question than constitutional one. The judges were pulled from a pool of 14 candidates. The three judges selected could be decidedly in favor of Obama’s politics. That is because all three judges were Democratic appointees.
This is how they were “pulled.”
Under the rules of the 4th Circuit, judges are picked to sit on particular cases by “a computer program designed to achieve total random selection,” the court said. The third member of the panel, Judge Diana Motz of Maryland, is a President Clinton appointee.
Even if this comes off as a setback to those who find the law it’s very likely the appeals will wind up at the steps of the Supreme Court.
James Madison wrote in Federalist No. 46 that the state and federal governments “are in fact but different agents and trustees of the people, constituted with different powers.” In Federalist No. 28 Hamilton explained citizens could use one against the other to keep the system in balance. “If the rights are invaded by either, they can make use of the other as the instrument of regress.”
There are dozens of states – 37 by my latest count -appealing to states’ sovereignty as a legal way to challenge federal encroachment to be delivered in the coming Washington mandate. Indeed these states are well within their rights to challenge the federal government. State and local units of government do their part to establish decentralization and they would cease to be federal units the moment they stop existing independent of the national government. This is not a unitary system for good reasons. Our Constitution and system of government was derived from the beliefs and dispositions of America. A careful agreement was decided from the beginning that distributed power well enough to fit a “large and extended Republic” for many years to follow. Provided, of course, we could maintain the agreement.
Whether the 10th Amendment and the 5th Amendment will hold up in the courts against Article I of the constitution and the “necessary and proper” clause are other matters and remains to be seen. However, calling on Madison once more, he stated in Federalist No. 45, “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.”
Obamacare will certainly challenge the nation over if it wants a national system to be dependent on Washington even more so than was the case in the 1930s on into the 1960s, or continue to build upon the reemergence of dual federalism that began in the 1980s. Federalism allows for a division in power and how laws and policies can vary from state to state. To what extent has been the real concern. Every American generation has dealt — either successfully or unsuccessfully — with the issue. As President Wilson observed, “Because it is a question of growth, every successive state of our political and economical development gives it a new aspect, makes it a new question.”
Indeed, so lets have equal opportunity to answer it.