Napolitano: Supreme Court to Strike Down Obamacare
By: David A. Patten
President Barack Obama is one of the worst presidents ever in terms of
respecting constitutional limitations on government, and the states
suing the federal government over healthcare reform "have a pretty
strong case" and are likely to prevail, according to author and judicial
analyst Andrew P. Napolitano.
In an exclusive interview with Newsmax.TV's Ashley Martella, Napolitano
says the president's healthcare reforms amount to "commandeering" the
state legislatures for federal purposes, which the Supreme Court has
forbidden as unconstitutional.
"The Constitution does not authorize the Congress to regulate the state
governments," Napolitano says. "Nevertheless, in this piece of
legislation, the Congress has told the state governments that they must
modify their regulation of certain areas of healthcare, they must
surrender their regulation of other areas of healthcare, and they must
spend state taxpayer-generated dollars in a way that the Congress wants
"That's called commandeering the legislature," he says. "That's the
Congress taking away the discretion of the legislature with respect to
regulation, and spending taxpayer dollars. That's prohibited in a couple
of Supreme Court cases. So on that argument, the attorneys general have
a pretty strong case and I think they will prevail.”
Napolitano, author of his just-released “Lies the Government Told You:
Myth, Power, and Deception in American History” and a Fox News senior
judicial analyst, is the youngest Superior Court judge ever to attain
lifetime tenure in the state of New Jersey. He served on the bench from
1987 to 1995.
Napolitano tells Newsmax that the longstanding precedent of state
regulation of the healthcare industry makes the new federal regulations
that much more problematic.
"The Supreme Court has ruled that in areas of human behavior that are
not delegated to the Congress in the Constitution, and that have been
traditionally regulated by the states, the Congress can't simply move in
there," Napolitano says. "And the states for 230 years have had near
exclusive regulation over the delivery of healthcare. The states license
hospitals. The states license medications. The states license healthcare
providers whether they're doctors, nurses, or pharmacists. The feds have
had nothing to do with it.
"The Congress can't simply wake up one day and decide that it wants to
regulate this. I predict that the Supreme Court will invalidate major
portions of what the president just signed into law…"
The judge also says he would rate President Obama as one of the worst
presidents in terms of obedience to constitutional limitations.
"I believe we have a one party system in this country, called the
big-government party," Napolitano says. "There is a Republican branch
that likes war and deficits and assaulting civil liberties. There is a
Democratic branch that likes welfare and taxes and assaulting commercial
"President Obama obviously is squarely within the Democratic branch. The
president who had the least fidelity to the Constitution was Abraham
Lincoln, who waged war on half the country, even though there's
obviously no authority for that, a war that killed nearly 700,000
people. President Obama is close to that end of lacking fidelity to the
Constitution. He wants to outdo his hero FDR."
For those who oppose healthcare, the Fox legal expert says, the bad news
is that many of the legal challenges to healthcare reform will have to
wait until 2014, when the changes become fully operational.
Until then, there would be no legal case that individuals had been
actually harmed by the law. Moreover, Napolitano says it takes an
average of four years for a case to work its way through the various
federal courts the final hearing that's expected to come before the
"You're talking about 2018, which is eight years from now, before it is
likely the Supreme Court will hear this," he says.
Other issues that Napolitano addressed during the wide-ranging
- He believes American is in danger of becoming "a fascist country,"
which he defines as "private ownership, but government control." He
adds, "The government doesn't have the money to own anything. But it has
the force and the threat of violence to control just about anything it
wants. That will rapidly expand under President Obama, unless and until
the midterm elections give us a midterm correction – which everyone
seems to think, and I'm in that group, is about to come our way.
- Napolitano believes the federal government lacks the legal authority
to order citizens to purchase healthcare insurance. The Congress [is]
ordering human beings to purchase something that they might not want,
might not need, might not be able to afford, and might not want --
that's never happened in our history before," Napolitano says. "My gut
tells me that too is unconstitutional, because the Congress doesn't have
that kind of power under the Constitution."
- The sweetheart deals in the healthcare reform bill used that persuaded
Democrats to vote for it – the Louisiana Purchase, Cornhusker Kickback,
Gatorade Exception and others – create "a very unique and tricky
constitutional problem" for Democrats, because they treat citizens
differently based on which state they live in, running afoul of the
Constitution's equal protection clause according to Napolitano. "So
these bennies or bribes, whatever you want, or horse trading as it used
to be called, clearly violate equal protection by forcing people in the
other states to pay the bills of the states that don't have to pay what
the rest of us do," Napolitano says.
- Exempting union members from the so-called "Cadillac tax" on expensive
health insurance policies, while imposing that tax on other citizens, is
outright discrimination according to Napolitano. "The government cannot
draw a bright line, with fidelity to the Constitution and the law, on
the one side of which everybody pays, and the other side of which some
people pay. It can't say, 'Here's a tax, but we're only going to apply
it to nonunion people. Here's a tax, and we're only going to apply it to
graduates of Ivy League institutions.' The Constitution does not permit
that type of discrimination."
- Politicians from both parties routinely disregard the Constitutional
limits imposed on them by the nation's founding document, Napolitano
says. "The problem with the Constitution is not any structural problem,"
says Napolitano. "The problem with the constitution is that those who
take an oath to uphold it don't take their oath seriously. For example,
just a month ago in interviewing Congressman Jim Clyburn, who's the No.
3 ranking Democrat in the House, I said to him, Congressman Clyburn, can
you tell me where in the Constitution the Congress is authorized to
regulate healthcare? He said, 'Judge, most of what we do down here,'
referring to Washington, 'is not authorized by the Constitution. Can you
tell me where in the Constitution we're prohibited from regulating
healthcare.' Napolitano says that reflects a misunderstanding of what
the Constitution actually is. "He's turning the Constitution on its
head, because Congress is not a general legislature," he says. "It was
not created in order to right every wrong. It exists only to legislate
in the 17 specific, discrete, unique areas where the Constitution has
given it power. All other areas of human area are reserved for the
- Napolitano says that members of Congress infringe on Constitutional
rights because they fail to recognize its basis. "They reject
Jefferson's argument, in the Declaration of Independence, that our
rights come from our Creator, therefore they're natural rights,
therefore they can't be legislated away," Napolitano says. "They think
they can legislate on any activity, regulate any behavior, tax any
person or thing, as long as the politics will let them survive. They're
wrong, and with this healthcare legislation, they may be proven wrong,
in a very direct and in-your-face way."
Friday, March 26, 2010