The Supreme Court Should Not Kill Obamacare: A Tea Party Perspective

By: Michael Lotfi
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Ocare2Some call me a conservative, some call me a libertarian & some call me a tea party member. I call myself a “conservatarian” (you can use it if you want). Regardless, there is something that needs to be known. It’s something the pundits of the left and right regularly ignore. Those who embrace it, are often accused of “neoconfederacy”, or my favorite “racism”. I’m talking about State rights. It’s odd that opponents of State rights who cry “racist!” regularly cite the Supreme Court’s decision to uphold Obamacare. It seems they forget that the same court ruled African Americans were not human, but property in Dred Scott v. Sandford.


You see, it makes little sense to vest much value in Supreme Court decisions made after 1803. The Supreme Court has not ruled within its constitutional jurisdiction since Chief Justice John Marshall gave the majority opinion in Marbury v. Madison. In this case, Chief Justice John Marshall unconstitutionally expanded the power of the Court to rule on cases, which would apply to the entire country. This was not the original intent of the Supreme Court of the United States. Every case ruled on since then is null and void. Even so, it’s imperative to remember that the Court issues opinions, not decrees.

We know that America was founded on compact theory. This is made crystal clear by Madison, the father of the Constitution, when he drafted the Report of 1800. Compact theory dictates that the states compose the country. These states explicitly grant the federal government its power. Compact theory also sets the paradigm that the State has the authority to dictate whether or not a federal law is constitutional. If you asked Americans on the street today they would most likely tell you the opposite is true.

All that build up for what? Well, why wait for the Supreme Court to strike down the law? There are multiple cases making their way to the SCOTUS, which very well may cripple Obamacare. However, if we are a nation of principled citizens we should not rely on these Supreme Court opinions regardless of how they sway. As I said before, the SCOTUS is operating outside of its jurisdiction.

Individual states have the power to nullify Obamacare, if they so choose to take that path. However, there is another way the law can also be killed.

Let us consider that only 17 states are running their own health care exchange under the Patient Care Act (PCA). Another 26 are leaving it completely up to the feds, and the remaining few are doing a joint exchange. Now, in this case, it may seem that more states have opted for greater government control. Not so, because of text of the PCA states who opted for the federal exchange are actually on their way to opting out of Obamacare. This is why essentially every state run by republicans opted for the federal exchange. Many states are now in the process of trying to kill the medicaid expansion under Obamacare. If successful, with a few more steps, these states have effectively nullified Obamacare. These states are now in a stronger position to move on to the next phase–

Next, let us consider how many states are run by republicans. Democrats only have complete legislative control over 17 states. Also, they could soon be losing Virginia, as the gubernatorial race between McAuliffe (D), Cuccinelli (R) and Sarvis (L) tightens. A recent poll shows Sarvis dropping 1 point, and McAuliffe/Cuccinelli in a statistical tie.

Regardless of that race, republican ran states are on the rise. Since Obama took office, republican governors have taken over 9 states. If the trend continues, republicans will continue to gain ground in the states. Also, libertarian candidates are taking the field with relatively impressive results.

Given time, it’s more than possible that the magic number 38 could be reached. What is this number? It’s the number required for a constitutional amendment. If republican and libertarian state representatives, senators and governors held to the principles, which they claim are of their core convictions, then a constitutional  amendment could be achieved. Such an amendment would block the healthcare law across the board. More so, the path of constitutional amendment is one of maintained principle.

An amendment most likely isn’t the answer though. The federal government doesn’t listen to the Constitution we have today, so there is little warrant to believe an amendment would suffice. Nullification is likely the rightful remedy.

Although I do not agree with Obamacare, I would not support the Supreme Court striking it down. Why? Because, in doing so, the Supreme Court continues to act outside of its constitutionally delegated authority. With this avenue, it is only a matter of time until someone with differing values tries to impose those values onto the rest of the country. Again, this was never the intended purpose of the Supreme Court. Supreme Court opinions are not the “law of the land”. The Constitution is the law of the land. Madison, the father of the Constitution, has explicitly defined for us that the Constitution restrains the federal government through avenue of the people composing the states. The states give the federal government its power. The inverse is the greatest modern fallacy America faces.

The founders have given us a principled avenue to resolve overbearing federal government power. It is of paramount importance that Americans rediscover their resolve for true freedom. However, this resolve must be rooted in principle. It must not rely upon those who act without principle. If we simply rely on the Supreme Court we will lose. Whether the law is struck down or upheld is of no importance. The Supreme Court should have never been allowed to rule on the legislation in the first place and therefore we should not look to the problem for a solution.

OPINION: Follow Michael Lotfi on Twitter: @MichaelLotfi

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Michael Lotfi

CEO, Political Director at BrandFire Consulting LLC
Michael Lotfi is a Persian-American political analyst and adviser living in Nashville, Tennessee. Lotfi is the founder and CEO of BrandFire Consulting LLC. The firm specializes in public and private technology centered brand development, lead generation, data aggregation, online fundraising, social media, advertising, content generation, public relations, constituency management systems, print and more. Lotfi is also the executive state director for the Tennessee Tenth Amendment Center, a think-tank focused on restraining federal overreach. Lotfi graduated with top honors from Belmont University, a private Christian university located in Nashville, Tennessee.
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  • RC

    This article goes beyond the argument of Obamacare. It’s taking ACA and using it as an example of the current mainstream thinking of most citizens. Sadly – most people have not been educated to realize that the ultimate power lies within the states and the people. The federal government, from my limited understanding, is only to regulate the commerce between state lines and provide for a national defense. Other than that, everything else needs to be handled by the states. The state governors need to push back against the fed and put them back in their place as the whole of DC is acting outside of their constitutional boundaries.
    ACA is just one of the many examples of this fallacy.

  • Leaping Raven

    Understanding your point of view, what is your interpretation of the power the supreme court is supposed to have? My initial understanding was a 3 part government with all three branches in equal power to each other. With your current evaluation it gives the flavor of tossing out the judicial branches effect on the system and thus minimizing it. I envisioned the judicial system as the review of the constitutional document and verifier of any new laws created to point back to explicit citing in the aforementioned document. In other words, if you can’t point to a specific place in the Constitution for a law to derive from, then the law is invalid and thus thrown out. In my world (though this is just my head), I saw the judicial branch as required to review all laws as they are passed for this relevance despite what the vote is. This is meant to keep the constitution pure and un-trampled. Now if it is an amendment, then obviously the judicial system has no over-site on this legislation and instead incorporates this thinking into it’s paradigm. But alas the real world is to have a “case” that impinges on someone that the feds are willing to prosecute to actually have even a light shined on outrageous or ridiculous laws. It leaves the executive branch the ability to use intimidation to govern and then drop the case when a person finds the monetary means and time to fight this activity (rarely). Reguardless the executive branch wins even if it backs off just based on the money siphoned out of the citizen to fight for themselves (which should never have to happen if the laws were thrown out before they impacted the citizens.) I would love to see the Judges do a job such as going through ever law on the books and really linking it back to the constitution or nullifying it if no such link exists. This should include executive orders.

    • Michael Lotfi

      I am not proposing the SCOTUS be tossed out.The purpose of the SCOTUS is to make rulings on cases between two parties and only two parties. They can certainly use constitutional opinion in these cases, but the opinions only have legal force in those cases. No where in the Constitution is the SCOTUS delegated the authority to define the Constitution as well as define their own jurisdiction, which it did with US v. Darby, Marbury v. Madison, McCulloch v. Maryland etc., etc., etc., which allowed the expansion of the federal government in the first place.

      • NewHampshire

        Where were you when the libertarian movement known as the tea party started in Dec of 2007? TPP is NOT the teaparty.

        • Phydeux

          Dude, knock it off, you don’t OWN the Tea Party. So stop trying to tell others they’re not allowed into your exclusive little club like a 5 year old kid.

          With pompous people like you, who’d WANT to be in the “real” tea party?

        • r3VOLution IS NOT republican

          Nor is Freedomworks, Tea Party Express and Tea Party Nation. They are FAKE-TEA GOP groups, disguised as “tea party.” And those same CO-OPTERS are now slithering around the Liberty Movement and alt-media.

          As abrasive as it may be, I share your frustration.

      • Leaping Raven

        I’m not saying throw it out either, but instead redefine the powers. The largest thing left out of the constitution was a conflict of interest clause. A thing that never should have been added was a requirement for anyone to make any money in service. And the Courts as the third branch were meant to determine if a law was constitutional. This is what the constitution says. it does not define how that determination was to be upheld. I say the judges should be busy each day looking at every law on the books and Verifying the constitutionality of it. They need to show how the new law originates from the writings and with a write up get a majority of the people to understand that pointing. If they cannot do this, that law should be stricken. It is simple. If the majority of the people cannot “fall” for the courts observation, then it is up to the people through the legislation to remove that law that the “courts” find acceptable but unable to validate to the public. This is the scrutiny our republic should have for adopting ANY new law other than the original constitution. The founders KNEW it would bend like it has due to political parties and special interests. They attempted to make it HARD to change. They just didn’t know how much power, self interest, and ignorance the legislators would gather. Why because being a politician as a career was not a consideration at that time.

    • Rich Grise

      But all three branches are the employees of the taxpayers. The 3-legged stool of the three branches rests on a foundation of the Will of the People. We are the final bastion! Disobey!

      Nullify!
      http://tenthamendmentcenter.com/2012/11/14/nullification-in-one-lesson/

      • Leaping Raven

        Nullify can work, but doesn’t have to . . . unfortunately.

    • Phydeux

      Raven, the courts can’t act on their own with regard to laws. The law has to be enacted, enforced, and then challenged by someone who the law was enforced against.

      For example, if there was a law passed saying it was illegal to say the word “retarded” in public. You couldn’t challenge the law’s legality until you’d been handed a citation for saying “retarded” in public. You would then argue your case to the local judge, and if he upheld the law, you’d appeal it on constitutional grounds, and then you work your way up the apellate chain hoping they’ll see the constitutional violation and forward it to the state supreme court for review. If the state supreme court fails to invalidate the law, you take it to the SCOTUS and they make the final determination.

      This is why there are TONS of archaic laws on the books that make no sense now. It up to the legislature to either review and repeal the statutes themselves (which they rarely have time or the inclination to do) or for some poor soul to run afoul of them and challenge the relevance of such an out-dated law.

      • Leaping Raven

        Yes, I unfortunately “know” how this is handled. I did say that it “should” be done differently. I’d like to see the courts review every law and verify it’s basis on the constitution or be able to throw it out. If you think about it, that is a true power that is correct for a check and balance of the courts to other powers. It will also get rid of government intrusion and dominance and the archaic laws you have mentioned.

        • Phydeux

          The problem there is that you effectively turn judges into legislators. The entire purpose of a judge is simply to rule on a matter brought before them by two parties. They cannot, on their own, bring cases before their court.

          Even in the matter of a contempt citation the prosecutor is still responsible for processing the charge even though the judge has the power to have you held and charged.

          The checks and balance equation is simple:
          Congress draws up the laws.
          The Executive enforces the laws.
          The courts determine the constitutionality of challenged laws.

          • Leaping Raven

            Not legislators . . . they become Over-site (quality control). They are not making laws; simply removing those that are not correct and have no real parent law in the constitution. If the legislators wish to adjust the constitution to add new stuff, then then formulate an amendment with a 2/3 vote and then the justices must add that to their paradigm.

          • Leaping Raven

            You added the word “Challenged” law . . . it does not need to be challenged to be judged constitutional. Just like some books are trying to put in “militia” to the second amendment. These minor word changes . . . effect everything.

  • NewHampshire

    Nonsense! If they can rule it constitutional, they can UNRULE it. And this guy is NOT a legit ‘tea party’. Only those of us who were there on day one at Faneuil Hall in 2007 are the ‘real’ tea party.

  • TheOtherBen

    I would call myself an outsider to the left/right paradigm. I will admit that several years ago, I would’ve been what many of the more rabid readers here would call “liberal,” and since many of those people have the higher reasoning ability of a tea leaf and believe in sins-of-the-father style BS and like their American fascism coming from corporate growth as opposed to governmental (which I’m also against), they’d probably still call me a liberal.

    I know Obamacare is probably not a good law. Heck, the editorial written above even ASSUMES the reader here at BenSwann.com, supporting Ron Paul and (formerly) liberty-oriented organizations like C4L, also must be vehemently against Obamacare.

    I don’t think it’s a good idea to coerce or “voucher” people to buy insurance.

    HOWEVER…

    I think it would be fine if a country takes care of its citizens. That’s what countries DO. They organize militaries to protect themselves from outside threats. They create organizations to research disease and create cures. They fund police and fire departments. And yes, they have SOME kind of organization make sure that we don’t all end up breathing in radon gas from some nearby mine that could give two scratches whether or not we inhale any of it.

    Countries are supposed to take care of their citizens to SOME degree, period.

    I don’t really care much about how that’s accomplished, and if people are arguing to me that hospitals, as private organizations, should be able to refuse care to anyone– especially people with bad credit or no money– then I wonder why they’re not supportive of a New World Order style socialist agenda, because honestly it seems to me that credit checks before treatment and refusal to help sick people are what THAT kind of system are all about.

    I think of myself now as generally politically independent. Many of the foaming-at-the-mouth conservatives that end up posting and reading here were against the idea of some kind of health system whereby our tax dollars are used to guarantee our health and well-being. Well, they’re against taxes, so why not? Strong should survive. Weak should perish. Only those who can afford expensive-ass insurance in the USA (re: any individual plan) should have it. Good old fascism with money at the root of it, rather than a
    government.

    I do feel as though states that did not want “Obamacare” as the writer points out, should not be corralled by the federal government and forced to purchase such for their citizens.

    Perhaps we can have one large group plan where everybody who wants it can have it, and everybody who doesn’t can give it the finger and walk? Perhaps liberals can create a group plan that covers just Democrats and anyone that’s Republican can suck a big toe when they get sick?

    • Phydeux

      You said: “I think it would be fine if a country takes care of its citizens. That’s what countries DO.”

      That’s what OTHER countries do. The USA was founded to BREAK the mold of what other countries do. The founding ideals of this country put the rights of the individual first, then the local community, and finally the state.

      The federal government’s ONLY roles are national defense against foreign invaders, managing a common currency, and coordinating trade between the states. And essentially acting as referee in squabbles between the states via the federal courts. That’s it!

      The individual is responsible for his or her own health and welfare. Your prosperity is YOUR responsibility, not that of your neighbor, your mayor, or a politician in far off Washington DC. If individuals CHOOSE to come together and provide for the welfare of others out of the goodness of their heart, that’s their perogative. But the Constitution provides no method or means for coercing or forcing the individual to provide for the well-being of other individuals with the exception of taxes required to maintain a standing army.

      And if you look back at insurance BEFORE HMO’s, you’d see that it wasn’t nearly as expensive as it is now, nor as complicated. You generally had coverage for catastrophic health emergencies, births, and maybe dental. That’s it. The rest was largely out of pocket, but far cheaper than it is now because you didn’t have to pay 3 extra employees to do paperwork and 14 different advisers to help you navigate all the insurance, Medicare, and Medicaid hurdles. Strip all that bloat out of the system and medical care once again becomes a reasonably priced commodity with competition between providers.

      • Zionistout

        That’s all fine. But the government doesn’t do the things it should. Defending the country has now become illegal wars of aggression all over the world, foreign aid to countries like China, Israhell and Pakistan, corporate welfare and uncontrolled unnecessary military spending. They also did nothing to protect our trade and industries or workers. Which is why the country is failing. Welfare is a bad, but the welfare genie is already out of the bottle. Good luck getting it back in. There is a way but none of the politicians plan to do anything to solve it.

        • Phydeux

          What is your beef with Israel, hmm? What did they ever do to you? I’ve been there, I’ve seen the country, and then I see you using phrases like “Jew World Order” and have to wonder where you get the idea Israel is some evil influence.

          Until you’ve been there, read the history, and understand why Israel truly exists, maybe you should stop with the childish word play like “Israhell” and “JWO”.

          They are one tiny country trying desperately to hold onto their existence in a hostile neighborhood, all while trying to be hospitable hosts to every Judeo-Christian faith and visitor who comes to visit.

          • Zionistout

            My problem with Israel? They control my country, our elections and they are stealing our money through illegal foreign aid. Also they are waging war against white Americans through social and economic means.

    • Waldetto

      You are SO almost there! Yes, a “country” should do all those things and more! The reason we can’t is because our government has taken all our money! The reason we don’t is because the government, being based on a foundation of immorality, (theft), has turn rich against poor, left against right, etc.

      • Zionistout

        The government has spent all the money on wars for Jews and the rich elite money classes. The Jew wars came when we started fighting in the middle east. Israhell gets 6-7 billion dollars a year from the US in foreign aid. With that much money every year every US citizen could have had life time healthcare. Instead it is going to fund building houses for Jews in Israhell and to help Israhell build up more military. The government has wasted all of our money.

        Just this evening I saw on the News old man Cheney was sitting on TV talking about how Obama was not protecting Israel and was leaving Israhell unprotected against Iran and how Iran is working on nuclear weapons. The neocons haven’t changed. They still care more about the Jews and Israhell than their own citizens. It is disgusting.

    • Zionistout

      This was a very good post. Well thought out. It shows you are thinking. The “liberty movement” has taken on a kind of neocon style mouth foaming stupidity only seen my the supporters of the “two party” system. Yes the neocons have no plans to fix the healthcare crisis, and this is not a supporting statement of Obamacare but something needs to be done. Obamacare is bad but the neocons have no realistic plans. They just want to take things back to the way they were. If you can’t afford healthcare then tough. Go die in a corner some where. Yes in that case most of these so called “conservatives” which are just neocons, even the citizens should be supporting a Jew World Order style government. Since they are hell bent on decreasing the population. You see all these foaming out the mouth rabid retard neocons going on and on about the NWO plan to decrease the population and kill people. Then they complain about any attempts to get healthcare to people who need it, or attempts to make it affordable. The correct way to fix this is to fix the economy, enforce the trade tariffs, end world trade/free trade, raise the minimum wage and allow people to take care of themselves. Now the neocons are always complaining about welfare and all the people on welfare but when you talk about raising the minimum wage they start moaning and bitching about that. “oh its unfair” “it will make inflation worse” and my favorite “all those people making minimum wage are losers and don’t deserve it”. They want welfare done away with but they don’t want to make rich fat cat multi-billion dollar companies like Walmart pay for their own employees. The walmart website currently directs their employees to the medicare website concerning health insurance. Walmart is a government store. The neocons also don’t have any real interest in fixing the economy. They want to continue world trade, they want to continue shipping jobs overseas and bringing in foreigners to take even the manual labor jobs like construction. They want to import Indians and Asians to take the technology driven jobs. The neocons will not do anything to repair the economy because it will infringe on the “free market” system, which is just code speak for rich capitalist can do anything they want, even ship your jobs overseas. America is in this miserable condition because it is trying to survive as a $7-$10 an hour service nation. It can’t and won’t survive. We need to produce something to sell. Not just stock the shelves. Bush talked just like Ron Paul and changed his tune once in office. I voted for Bush for his second term. Calling the minute men vigilantes, the Chinese lead painted toys and the wars, lies and all did it for me. The economy was just as bad as it is now under Bush so the neocons can’t sell me anymore lies. That goes for Rand Paul as well. I will not vote for another neocon ever. They have no intentions on fixing the economy, no intentions on enforcing the trade Tariffs and bringing the jobs back, and no intentions to fix the healthcare crisis. Except to tell people to go die. No better than the Jew World Order. Yes most of these people are still asleep. They are all mostly still sheep and don’t know anything. They are just latching onto buzz words and sound bites still.

  • John

    Consider this. If you look closely the bill and the $770B bailout both have a little mental health snippet in there. The drugs are mood changers and lifetime prescriptions. If you stop taking them you double the risk of suicide.

    A mandatory drug is on the horizon. It’s fine to say “Oh, it’s just a few states that will have Obamacare” but pretty soon they will have support of those drugged states to get anything they want.
    “First they came for the communists…”

  • Rich Helm

    I’m a bit confused.
    You say, “states are now in the process of trying to kill the medicaid expansion under Obamacare.” Does that require a Supreme Court decision? If so, do you think that decision in the states’ favor would be legit?

    Do the “few more steps” the states have to take to effectively nullify Obamacare require a constitutional amendment to the Constitution? How likely is that?

  • r3VOLution IS NOT republican

    So… an amendment for healthcare… TARP, Stimulus, Bailouts, SS, SNAP, WIC EBT cards, Depts of Ed, Ag, Labor, Energy, Art, etc, etc…

    I’m with State nullification, rather than the REPUBLICAN solution of amendments, that seems to (wink, wink) require electing more LEFTIST republicans.

  • http://socklint.com/ socklint

    Excellent. Thank you. NULLIFY!

  • ax123man

    What would this constitutional amendment say? The problem is that the constitution, if interpreted correctly, should have prevented the ACA (and many other fed. intrusions) in the first place. Does this mean we also need a constitutional amendment to restore the fourth amendment of the constitution?

    Relying on that piece of paper is a mistake. Stop looking to Washington, be it POTUS, SCOTUS or old pieces of paper. These are crutches that create complacency. If you want to, reference the 10th amendment, but realize that they are only words that back up natural rights we all have. That amendment is not necessary for those rights to exist. And remember that the last words of that amendment read “…. or the people”.

  • Patriot#14

    This is so true. This is what I teach my children. That is why the Declaration Stated These United States not The United States!!!!!!! Excellant