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April 4, 2012     The New Era Paper
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lle e ra - April 4, 2012 COhlhIUNITV OPINION Page 5 Case before Court threatens historical view of Constitution By David J. Porter There is a widely held view that Congress has virtually unlimited power to legislate, especially con- ceming economic matters. Consider, for example, the pas- sage of the controversial Patient Pro- tection and Affordable Care Act two years ago. While Congress' power to regulate the economy is not com- pletely unbounded, it is very far- reaching indeed. However. it was not always so. Under the Articles of Confed- eration. Congress was powerless to address conflicting commercial regulations imposed by the several states. To remedy that flaw. the enu- merated powers given to Congress_ under the Constitution included the authority "[t]o regulate Commerce ... among the several States." At the time the Constitution was ratified. "'commerce" referred to trade--buying and selling prod- ucts-but it did not include all eco- nomic activity, , such as manufactur- Ing, agriculture, and labor. In the ratification debates, there was little deliberation over. the Commerce power because it was understood to be an insignificant threat to local or non-commercial affairs. James Madison emphasized that point in Federalist No. 45. Early Congresses rarely in- voked the Commerce power. The Supreme Court's first opportunity to determine its scope did not arise un- til Gibbons v. Ogden (1824). In that case. the Court held that Congress may regulate interstate commerce. but not commerce that doesn't ex- tend to or affect other states. Over the next century, the Court reiterated that Congress' Commerce power did not include regulation of production in anticipation of trade. In these decisions, the Court empha- sized the distinction between com- merce and other types of economic activity that are not commerce: "Without agriculture, manufactur- ing, mining, etc., commerce could not exist, but this fact does not suf- fice to subject them to the control of Congress" (Newberry v. United States. 1921). A sfight shift occurred in 1914. when the Court held that where in- terstate and intrastate aspects of commerce are so intermingled, the Constitution permits regulation of interstate commerce even if that results m incidental regulation of purely intrastate commerce. But in general, the Court's view of Con- gress' Commerce power remained unchanged. In 1935. the Court held that Congress may not regulate intra- state sales of poultry, and as late as 1936. the Court invalidated a federal law regulating labor because "the re- lation of employer and employee is a local relation." The Court's century-old Com- merce Clause jurisprudence ultimate- ly bowed to far-reaching New Deal laws. In NLRB v. Jones & Laughlin Steel Corp. (1937). the Court upheld the National Labor Relations Act against a Commerce Clause chal- lenge, holding that Congress may regulate intrastate production if it has a "close and substantial rela- tion to interstate commerce." And in United States v. Darby (1941), the Court declared that "[t]he power of Congress over interstate commerce is not confined to the regulation of commerce among the states." Wickard v. Filburn (1942) is generally considered the most ex- pansive Commerce Clause deci- sion to date. In that case. the Court held that Congress could regulate a farmer's production and consump- tion of homegrown wheat because even though his activity was local. was not commerce, and did not sub- stantially or directly affect lmerstate commerce, it could, in combination with others' similar conduct, affect interstate commerce. In 1964 and 1971. the Supreme Court rejected Commerce Clause challenges to the application of civil rights laws to motels and restau- rants, and to a federal criminal law prohibiting local instances of loan sharking. In these cases, the Court dismissed arguments that: the regu- lated activity was not commercial. Congress was legislating against moral wrongs, the activity was pure- ly local, and the economic effect of the regulated activity was so small as to be trivial. In United States v. Lopez (1995) and United States v. Morri- son (2000),-the Supreme Court re- sisted further expansion, a reminder that even after the New Deal cases. Congress' Commerce power still has outer limits. Because the federal laws in Lopez and Morrison (prohibiting possession of a gun near a school and gender-motivated violence, re- spectively) regulated local activity having no effect on interstate com- merce, they were really exercises of the general police power that be- longs exclusively to the states. In the case now pending before the Supreme Court on the Patient Protection and Affordable Care Act. the issue is whether Congress has the power to compel non-participants into the health insurance market, so that they can then be regulated. It's a novel question, and no precedent governs the Court's decision. During its oral argument, the federal gov- ernment asserted that every person is an "actuarial reatity" whosecur- rent existence and eventual mortal- ity creates a statistically measurable insurance risk. By that theory, everyone is ines- capably a "participant" in the health insurance market and therefore sub- ject to federal regulation. Such meta- physical abstraction threatens not merely to further stretch, but finally to break the Framers' structural de- sign that for 225 years has preserved individual liberty and served as a check on unlimited federal power. - David J. Porter is an at- torney with Buchanan Ingersoll & Rooney PC and a trustee of Grove City College. The opinions expressed by the author are his own. LETTERS TO TIIE EI)ITOP. i Considerate folks keep dogs quiet Editor: After visiting other parts of the country, I believe overall most of Sweet Home area residents are friendly and considerate people. It is a great place to live. Many own dogs that they are very attached to. My complaint would be that some care more about their dogs than they do about being good neighbors. Ask neighbors who live near a barking dog or dogs how they feel about that, and they are slightly irri- tated to downright angry. Let me tell you, dog owner, if your dog barks, you have at least one neighbor an- gry and probably many more. Ask any walker or jogger if they like barking dogs. They're not protecting your property - just making a lot of noise. Whatever you do as a neighbor, don't ask the dog owner to shut his dog up. You will be the bad guy. I love dogs, and believe me. you can train them to stop barking. Most people prefer peace and quiet. I have heard dog owners compare their barking dogs to kids playing. That's ridiculous. I can hear dogs barking from both 50th Avenue and Wiley Creek. but go to First Avenue. behind the fire sta- tion. Hawthorne School, etc.. it's usually the same dogs. I've got news for dog own- ers in that not everyone loves your dog. It would be nice if dog own- ers would be considerate of their neighbors and try to stop theirdogs from barking. Dennis Huenergardt Sweet Home Health numbers tell the real story Editor: Health index statistics reveal that the following states are the 10 most healthy in America, in order: Vermont, New Hampshire. Massachusetts. Minnesota. Maine. Iowa. Utah. Hawaii. Nebraska and Connecticut. Least healthy: Alabama, Georgia. South Caro- lina. Florida. Texas. Oklahoma. Nevada. New Mexico, Missis- sippi and, worst of all, Louisiana. Almost all of the 10 healthy states are blue (liberal/ states. The 10 least healthy states are red (conserva- tive) states and two purple (swing). Take note that the No. 1 and No. 3 healthiest states in America. have the most socialized (gasp!) health care systems in the country? Red. conservative, states fail across the board. They are the poorest, file the most bankruptcies, have highest divorce rates, have highest teen pregnancies, have highest il- literacy, have highest occupational accidents, have the highest violent crime rates.., illegitimacy.., and the list goes on. If that doesn't give you pause- make you think and rethink again, then your mind is dead closed and you have no business voting. Red states are Donee (welfare) states. Donee states are those who get more m federal aid than they pay into the federal government. Donor states pay more in taxes than they receive. In other words, the blue states keep the red states alive. That shows me how little the con- servative parties care about the American citizen. And, of course, they have some deep, dark-ages-rooted bizarre hate for us females. Like we're subhu- man and therefore undeserving of full inalienable rights. We bleed, they don't. That stumped men until only just recently. Portland. Oregon by the way. ranks ninth (out of 75) in the 2010 Amer- ica's Most Literate Cities. Portland is blue. Diane Daiute Sweet Home Editorial unaffrdable fr many. From page 4 ally, under the Necessary and Prop- er Clause of the Commerce Clause (also known as the "elastic clause." Which allows the U.S. government to "make all laws which shall be necessary and proper for carrymg into execution the foregoing pow- ers. and all other powers vested by this constitution") and under Con- gress' power to tax. Though the Affordable Healthcare Act was formulated by the Obama Administration. it was approved by Congress, over loud protests from dissenting members. The Supreme Court's decision will be final and will set a precedent that will likely be heard loudly. No matter what it is. the deci- sion will be controversial. If it is upheld, civil disobedience, law- suits and the inefficiencies of gov- ernment management may result. Polls have shown that a majority of Americans actually oppose Obam- acare. Then. if only the individual mandate is struck down, how work- able would the .remainder of the law be? If the entire law is struck down. what to do about the prob- lems that prompted its creation in the first place? Today's world of medicine is indeed excruciatingly The other point to remember here is the role the Court is play- ing in the existing controversy, the battle between those who oppose Big Government and those who see government as the solution to our problems. This case should mark a turn- ing point in America's political and social history, but the upcoming November election will be even more significant. The Supreme Court's six men and three women range in age between 51 and 79. Ruth Bader Ginsberg, 79, appointed by President Clinton. is the oldest. with Antonin Scalia and Anthony Kennedy close behind, at 76. The justices are appointed for life. or until they resign, and the likelihood of one or more stepping down before the end of the next presidential term, if not this one, is high. The current Court is divided between four conservative jus- tices, of whom Scalia is one. four liberals, including Ginsberg, and a swing vote - Kennedy. It does not take political genius to see how the next elected presi- dent- whether it be Baruch Obama or someone else - will affect not only the legislative direction of our nation, but the makeup of the U.S. Supreme Court. the final arbiter of whether laws stand or fall in the face of the U.S. Constitution. l m m u m m m m n mm m m m mm m m mm. m mmm m mm m n m m m mm m mm m m m n m m m m m m m m m mm m m m m m m mm u mmmm m L " m Contact.Your ocal Government Representatmves ! m cw of Sweet Home m mm craig Maain, Ci Manager, (54t) 367-8969 i - cmartin@ci.sweet-home.or.us I City Council m m Craig Fentiman, Mayor, (541) 367-6826 e-mail: cfentiman @ci.sweet-home.or.us m Chanz m Marybeth Angulo, Counc Ior (541) 367-7798 m Michael Hall, Councilor, (541) 570-2044 III Mike Reynolds, Sweet Home, (541) 367-5601 Greg Mah er, Councilor, (54!) 401-0110 L David VanDer p Crawfordsv e, (541) 367-3856 II Scott McKee Jr., Councilor, (541) 405-6191 Billie Weber, Memberat Large, (541) 367-2487 m Ron Rodgers, Councilor, (541) 401-2590 II Linn County Commissioners I School Distdct No. 55 Roger Nyquist, rnyquist@co I nn.or.us John K. Lindsey jlindsey@co nn.or.us I I Federal Government m Sen. Ron Wyden (D) (202)224.5244 m e-mail: http: en.senate.gov/contact/ I (541) 409-1034 Sen. Jeff Merkley (D) (202) 24-3753 -1003 e-real http://merkley.senate.govtcontac'dcontact/cf m m 11) 367-3773 mRep Peter A. DeFazo (D) (800) 944-9603 m e-maU: http://defazio.house.gov/emailme.shtml m State Government I Sen. Fred Girod (R, Dist. 9) (503) 986-1709 m e-mail: sen.fredgirod @ state.or.us Sen. William Morrisette (D, Dist. 6) I (503) 986-1706 e-mail: sen billmorrisette@state.or.us I Rep. Sherrie Sprenger (R, Dist. 17) m (503) 986-1417 e-mail: rep.sherriesprenger@state or us Rep, Phi Barnha (D,Dst 11) (503)986-1411 I I Don Schrader Superintendent (541)367-7126 phi I ' Will Tucker wtucker@co.linn.or.us e-mail: rep. Ibarnhart@state.or.us