Pirate's Cove

Elizabeth Wydra engages in a bit of fantasy over at The Politico, hoping against hope that the voices on the right will be shut down

Of all the possible outcomes being tossed around as the Affordable Care Act litigation heads for Supreme Court consideration, one is usually overlooked: If the court upholds the act’s constitutionality and its “individual mandate,” it could sound the death knell for the tea party.

Well, if pooping on cop cars, rampant drug use, violence, murder, sexual assault, and rape hasn’t shut down the Occupiers, a loss at SCOTUS wouldn’t eliminate the Tea Party. For one thing, the TP is not a single subject movement, unless you consider the over-arching idea of a limited federal government as the starting point.

The challenges to the mandate are perhaps the most concrete manifestation of the tea party’s vision of the Constitution and the role of government. The tea party has made its name by promoting a constitutional vision of a weak central government, incapable of addressing national issues — like the health care crisis, environmental protection and financial system reform — and this theory is at the heart of the lawsuits challenging the mandate. Progressives have long argued that the tea party’s vision has more to do with the failed Articles of Confederation than our enduring Constitution.

Liz was on the right track right up to the word “incapable.” That is incorrect. We understand that the federal government has a role, and what that role should be, as established by the pesky Constitution thing.

That argument by the progressives is a new one to me, though. Perhaps that’s how she thinks about it, without any real facts and knowledge.

But what if this message were delivered by the conservative Roberts Court in a high-profile defeat for the tea party in the health care litigation?

There is a distinct possibility that the high court could uphold the health care law’s constitutionality, not just with a 5-4 ruling — in which swing-vote Justice Anthony Kennedy sides with the court’s more liberal members — but with the support of conservative heroes, like Justice Antonin Scalia and Chief Justice John Roberts.

Got that? A distinct possibility. Why?

After all, Scalia concurred in the 2005 decision, Gonzales v. Raich, in which the court upheld a federal ban on possession of marijuana grown in accordance with local law for personal, medicinal use — because the ban was part of a broader regulation of interstate commerce.

Except, marijuana, rightly or wrongly, is a Schedule I drug, banned and illegal, under federal law. Unlike the individual mandate, no one is being forced to purchase cannabis simply because they are a citizen of the United States under the Commerce clause, because they might possibly cross state lines at some point. Heck, the federal ban on drugs itself may be overbearing, if the drugs never cross a state line or US border.

The health care law might also pick up conservative support in the Supreme Court beyond the Commerce Clause argument. Another constitutional basis for the law’s individual mandate is that it is a “necessary and proper” means of carrying out Congress’s constitutional power to regulate commerce.

I love when Liberals cite the Constitution without context. The last line of Article I, Section 8, states

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

The powers of Congress are laid out in Section 8 prior to that line. Necessary and proper points to what Congress is tasked with doing, not that I really have to point that out to people who can read. Section 9 lays out what Congress cannot do. How about this one in 9?

No Tax or Duty shall be laid on Articles exported from any State.

The Obama administration has, at times, proclaimed that the mandate is a “tax.” So, the Constitution defeats their, and Elizabeth’s, argument.

Even if the Mandate was upheld by SCOTUS, it would only make the Tea Party work harder, and would not erase the primary purpose, which is to reduce the size and scope of the federal government.

Crossed at Right Wing News and Stop The ACLU. Please sign the drill now petition.