Delegate Bob Marshall continues to play a leading role in fighting Obamacare. Here is an explanation of the amicus brief that he others filed urging that the Supreme Court hear the case.
Delegate Bob Marshall Files Amicus Brief Urging Supreme Court Overturn Fourth Circuit Obamacare Decision
Contact: 703-853-4213
[November 3, 2011, Manassas] Del. Bob Marshall (R- Prince William/Loudoun) filed an Amicus Brief today with the U.S. Supreme Court urging its review of the Obamacare decision of the federal Appeals Court in Richmond.
The Fourth Circuit panel had ruled on September 8, 2011, that Virginia had no standing to challenge the Constitutionality of the Obamacare individual insurance mandate. That decision came on the same day as another ruling by that Court, a position adopted by no other federal court that had considered the matter, that the individual mandate constituted a tax, and could not therefore be reviewed until the law actually took effect.
In that other case brought by Liberty University, the Fourth Circuit said what Congress had denied in the Obamacare law (Patient Protection and Affordable Care Act) — that the individual mandate requiring that a private party pay for insurance coverage they may not want or need, or even could find immoral, was in reality a tax, even though it was paid to a private insurance company and not the government.
Marshall’s brief pointed out that the Court’s reasoning reached an absurd result: “As a result of these twin rulings, the party which the Court of Appeals believed had standing was barred by statute from obtaining a ruling on the merits, while the party not barred by statute did not have standing. If the Court of Appeals were correct, the result would be a Catch-22 — no one could challenge the constitutionality of PPACA’s individual mandate in a federal court.” (pp. 7-8).
Marshall authored the Virginia Health Care Freedom Act, which was relied upon by Attorney General Cuccinelli to prosecute the legal challenge.
Marshall argued to the Supreme Court that the Appeals Court decision was inconsistent with the U.S. Supreme Court’s decision earlier this year in Bond v. United States, which held that “Federalism … protects the liberty of all persons within a State by ensuring that law enacted in excess of delegated governmental powers cannot direct or control their actions “
The Marshall amicus brief made other important points.
Founding Father, and Federalist Paper co-author, Alexander Hamilton, a delegate to both the Constitutional Convention and the ratifying convention in New York, affirmed that states have the constitutional right to file suits in federal court to protect citizens. Madison understood the role of the General Assembly — which the Fourth Circuit denigrated in its decision — in writing: “… state legislatures will always be: ‘not only vigilant but suspicious and jealous guardians of the rights of the citizens, against encroachments from the Federal government …” [A. Hamilton, Federalist No. 28]
Moreover, Fourth Circuit judges failed in their role as arbiters between the states and the federal government as described by Founding Father James Madison during the ratification debates of the Constitution. “n the case Congress shall misconstrue … part of the Constitution, and exercise powers not warranted by its true meaning … the success of the usurpation will depend on the executive and judiciary departments, which are to expound and give effect to the legislative acts….” [J. Madison, Federalist No. 44]
The Fourth Circuit opined that the Commonwealth “lacks the ‘personal stake’ in this case essential to ‘assure that concrete adverseness which sharpens the presentation of issues.’” Delegate Marshall argued that: “This is unsupported speculation belied by the arguments made by the Attorney General of Virginia and the vigor with which he has pressed this case in the courts.” (p. 9.)
Marshall’s brief also pointed to the political nature of the decision by three appellate judges, all appointed by Democrat Presidents, who had quoted from a case in which standing was denied “to prevent state ‘bureaucrats’ and ‘publicity seekers’ from ‘wresting control of litigation from the people directly affected.’”
Marshall said, “Accusations of this sort against Virginia elected officials, whether express or implied, could result in disciplinary action were they used in floor debate in the House of Delegates against another member. Intemperate language impliedly directed at Virginia’s elected legislators may be expected in heated political debate, but is wholly inappropriate for federal judges.”
Marshall’s amicus brief was joined in by former Delegate and candidate for the Virginia Senate, Dick Black, as well as a number of public policy organizations.
The full Amicus Brief may be found at http://delegatebob.com/wp-content/uploads/2011/11/Virginia-v.-Sebelius-Marshall-amicus-brief.pdf
The Court will be singularly unimpressed with this kind of political grandstanding. It may be good for a few uninformed votes, however, so I guess it’s worth it. We probably should have a post on the DC Circuit’s ruling today.
Scout – We are all affected by peer pressure and by the knowledge we will be held accountable.
We appoint judges to the Supreme Court for life. So these judges know they cannot easily loose their positions. Nonetheless, they still want to be held respect. Thus, when people others hold in esteem suggest a course of action, they take notice just as anybody else would. They know if they do something else they must produce a good explanation.
Marshall’s amicus brief will look like a political document to the Court and have no impact. They were not waiting to hear what Mr. Marshall had to say on this subject. Their antennae are pretty finely tuned to filter out that kind of thing. They see a lot of it.
Scout – You could be right, and that would explain a few things.
It is revealing is that you did not criticize amicus brief. You just attacked Marshall personally.
Scout, you are neither ignorant or stupid. You know better than to ridicule people just because their opinions differ with your own. So why do you do it?
Marshall is an elected official whose accomplishments rate him worthy of respect. Moreover, the folks who joined him in amicus brief are worthy of our respect. Like it or not, that is just the way it is.
Has it occurred to you that the Constitution, the Declaration of Independence, and the Magna Charta are political documents? What we write about those documents are also political documents.
The legal opinions that the Supreme Court produces are just political documents that judges write about the Constitution. And what is the point of political documents? They exist to help us find acceptable ways to settle our differences.
If we do not consider what other people think, particularly those with differing political opinions, we cannot settle our differences with other people peacefully. In fact, when those in power do not think the opinions of the other side worthy of consideration, that must eventually lead to the enslavement of the other side.
Such arrogance leaves that other side only two options. Fight or capitulate. That is why we have that political document we call the Declaration of Independence.
Actually, Tom, I said nothing about Marshall personally and I did comment on the amicus brief. I also have a rather good record of respecting other people’s views. I happen not to agree with all of them, but, particularly by standards of blogdom, probably am entitled to some sort of civility prize. (I’ll keep checking the mail). Perhaps you were confusing me with someone else.
There are some positions of Marshall I respect. Not this one. This amicus brief is a political document as is the press release that accompanies it. And I strongly disagree that the opinions of the Supreme Court are “just political documents that judges write about the Constitution.” I certainly can’t contend that that has never happened, but, generally speaking, your making that statement generally appears to me to reflect a very low regard for the Constitution and the judicial system. If Mr. Marshall wants to run for the General Assembly on his views about national health care, he can have at it (although I’m more interested in candidates’ views on infrastructure and education funding in those races). I think I probably share some of his views on recent health care revisions. But I’m under no obligation to agree with this kind of filing on important constitutional issues. It cheapens the Court (for which I have a very high regard and which I regard as a counter-weight against anti-constitutional political instincts) and, in my humble and respectful opinion, it will have absolutely no impact on the ultimate resolution of the issues that have been put forward on Health Care reform. Zero. Zilch. If you read the Court’s eventual final opinion on the subject and can point me to the part where they identify Bob Marshall’s amicus as pivotal, I’ll buy you a beverage of your choice.
Now, I look forward to your post on the DC Circuit’s recent opinion by Judge Silberman. Was that “just a political document” written by a politician in a black robe?
Scout – You wrote about Marshall and amicus brief what you wrote. When anyone can quickly read what you wrote, what is there to discuss?
Have you ever looked up the definition of the word “political”? The word does not have the derogatory meaning you want to give it. Moreover, regardless of the connotation that we give the word “political”, judges are not creatures that stand apart from politics.
Should we have an especially high regard for our courts? Not really. In an ideal world, we would appoint our best people to serve as judges. We don’t. Who we put on the bench depends on that messy process we call politics. In practice, we use political processes to appoint or to even elect judges.
Do judges have a special responsibility to interpret the Law? Yes. That is in accordance with their official duties. Nonetheless, we all have the responsibility to let judges know our expectations and to hold them accountable.
Our political system requires each citizen to understand the Law and to obey the Law or to accept the consequences. We each have duty to participate and make our political processes work. That duty does not allow us to stand idle and give over to judges and elected officials all our responsibilities. When we do such thing, we surrender ourselves to tyranny.
I expect I will do a post on the DC Circuit’s opinion. I will offer my opinion of it then.
Do a compare and contrast of the 4th, 6th, 11th, and DC Circuit’s opinions and then we can get beyond low-grade electioneering reflected in the Marshall press release. We’ll all feel better and a lot more like adults. Thanks for jumping in on this.
Scout – Seems like you are trying to raise the bar. Tell you what. You write that post(s). If you make a serious effort, focus on constitutional issues, and reference your sources, you can send it to me. I will put up on my website and give you credit.
I’m retired from my posting days, CT. Two years was about all I had in me.
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