Monday, March 26, 2012

Obamacare Violates Separation of Powers

Today, the Supreme Court finally begins its hearings on Obamacare. They will decide whether unelected bureaucrats at the Department of Human and Health Services have the power to legislate, mandate, and enforce healthcare prerogatives. Nine judges will determine if this law is constitutional.

If our "betters" still hold our founding fathers relevant, a determinate factor should be Madison’s Federalist Paper #47. It was these assertions that allayed some of the Anti-Federalist concerns about a consolidation of power, and helped the states ratify the Constitution. Here is an excerpt:

From these facts, by which Montesquieu was guided, it may clearly be inferred that, in saying "There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates," or, "if the power of judging be not separated from the legislative and executive powers," he did not mean that these departments ought to have no partial agency in, or no control over, the acts of each other. His meaning, as his own words import, and still more conclusively as illustrated by the example in his eye, can amount to no more than this, that where the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free constitution are subverted. This would have been the case in the constitution examined by him, if the king, who is the sole executive magistrate, had possessed also the complete legislative power, or the supreme administration of justice; or if the entire legislative body had possessed the supreme judiciary, or the supreme executive authority. This, however, is not among the vices of that constitution. The magistrate in whom the whole executive power resides cannot of himself make a law, though he can put a negative on every law; nor administer justice in person, though he has the appointment of those who do administer it. The judges can exercise no executive prerogative, though they are shoots from the executive stock; nor any legislative function, though they may be advised with by the legislative councils. The entire legislature can perform no judiciary act, though by the joint act of two of its branches the judges may be removed from their offices, and though one of its branches is possessed of the judicial power in the last resort. The entire legislature, again, can exercise no executive prerogative, though one of its branches constitutes the supreme executive magistracy, and another, on the impeachment of a third, can try and condemn all the subordinate officers in the executive department.

The reasons on which Montesquieu grounds his maxim are a further demonstration of his meaning. "When the legislative and executive powers are united in the same person or body," says he, "there can be no liberty, because apprehensions may arise lest the same monarch or senate should enact tyrannical laws to execute them in a tyrannical manner." Again: "Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor." Some of these reasons are more fully explained in other passages; but briefly stated as they are here, they sufficiently establish the meaning which we have put on this celebrated maxim of this celebrated author.

Congress has abdicated their responsibilities by conferring the legislative process unto the executive branch; therefore, Obamacare is unconstitutional. It violates the tenets of separation of powers. And if the Supreme Court rules in favor, than the judiciary have also abdicated their responsibility. We will in fact have a tyranny of the executive.

Secretary Sebelius demonstrated this tyranny when she mandated that the Catholic Church violate its conscious by providing contraceptives. And for the federal government to mandate anyone to purchase a product or be fined or thrown in jail is in fact tyranny.

But let’s face the facts. We haven’t followed the Constitution in over a hundred years. Stare decisis has replaced our founding documents. We are ruled by precedents rather than principles.


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