Has Bob Marshall's Senate Campaign Just Begun?

That was my initial thought when I heard driving home today when I heard that Virginia's lawsuit was struck down today, and now widely expected to move up to the Supreme Court.  While we surely identify Ken Cuccinelli with this fight, its been Bob Marshall that has proven to be the backbone to the lawsuit.  In fact, for many conservative victories we have Bob Marshall to thank:  fighting Obamacare, defeating HB3202 (which I supported at the time but have become reformed), and getting the state marriage amendment. 

Marshall just unleashed a broadside email against the ruling and what I hear is a man with a voice and a true message.  Unlike George Allen, Bob Marshall can really tell us why he is running for higher office.  What I want in a US Senate candidate is someone who talkes like this:

 Neither Virginia nor its citizens may Challenge ObamaCare --
Delegate Bob Marshall, Health Care Freedom Act author responds

SEPTEMBER 8, 2011 -- RICHMOND:
CONTACT 703-853-4213

Three Democrat appointed federal judges ruled today that Virginia and its citizens have no rights they can vindicate in federal court, recalling to mind the actions of British King George III, who “abdicated Government here, by declaring us out of his Protection” (Declaration of Independence). Their decision is at fundamental odds with legitimate, constitutional government.

While the Federal Fourth Circuit acknowledged that “Congress has imposed a potentially ‘harsh regime’ on some taxpayers,” which poses questions of “unusual legal, economic and political significance,” it still held that neither states such as Virginia, nor citizens may legally challenge the imposition of a congressional statute which Congress’ own Research Service concludes has no precedent in American history.*

The three federal judges appointed by Presidents Obama and Clinton claim that “a state has no interest in the rights of its individual citizens sufficient to justify such an invasion of federal sovereignty.” (Virginia v. Sebelius)

It also dismissed individual Virginia citizens’ challenge (Liberty University v. Geithner) to the novelties of ObamaCare when the court inexplicably mischaracterized health insurance premiums paid to private companies as a tax.

Founding Father, and Federalist Paper author Alexander Hamilton, a delegate to both the Constitutional Convention and the ratifying convention in New York, affirmed states have the constitutional right to file suits in federal court to protect citizens. In my Fourth Circuit amicus brief I noted:

“... 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 will constantly have their attention awake to the conduct of the national rules and will be ready enough, if anything improper appears, to sound the alarm to the people and not only to be the VOICE but if necessary the ARM of their discontent.’ [A. Hamilton, Federalist No. 26, G. Carey & J. McClellan, edts., The Federalist, p. 134 (1990) (capitalization original, bold added). See also A. Hamilton, Federalist No. 28, p. 141.]”

On April 4, 2011, I had filed an amicus brief in the Fourth Circuit which was joined in by several organizations on behalf of their members. The panel’s opinion paid no attention to the authorities in that brief (at page 4), including my reliance on Virginia James Madison’s view of the essential role of the state legislatures under the U.S. Constitution, a matter with which America’s “Father of the Constitution” had some familiarity: http://lawandfreedom.com/site/health/VA_v_Sebelius_Amicus.pdf

The role of the federal judiciary, in confronting Congressional and Presidential fidelity or departure from the Constitution, was made clear to the People during the ratification debates.

“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, Id., p. 233.]

Even recent decisions of the Supreme Court have recognized the validity of dual sovereignty, residing both in the states and federal government.

Moreover, the panel ignored the Commonwealth’s enactment of the bill of which I was Chief Patron, the Virginia Health Care Freedom Act. The judges believed it irrelevant that the Democratic Virginia Senate and Republican Virginia House of Delegates enacted a law signed by the Governor, which established that the individual mandate could not be constitutionally imposed on Virginians.

For citizens to place confidence in the decisions of federal courts, the People must have confidence that the federal judiciary bases its decision in the text and original meaning of the U.S. Constitution, and not just in prior judicial decisions which may have departed from that text. The panel failed to do this and failed to even acknowledge that they understand the Founders’ original intent as expressed authoritatively by Alexander Hamilton and James Madison.

Of course, while I am disappointed, the panel’s opinion also disregarded other briefs against Obamacare filed by distinguished Americans such as former Attorney General Edwin Meese.

I urge Ken Cuccinelli, the distinguished Attorney General of the Commonwealth of Virginia, to promptly seek a review of the panel’s opinion by the entire Fourth Circuit, or by the U.S. Supreme Court, as he deems appropriate. There appears to be no reason to seek reconsideration by this panel which has strayed so far from the text of the Constitution in these decisions.

It would be unfortunate if politics had any part in this decision. The Fourth Circuit panel was truly remarkable, for it included only judges appointed by Democratic Presidents — including two new judges who had only recently been appointed by President Obama: Andre M. Davis of Maryland and James A. Wynn, Jr. of North Carolina. Diana Gribbon Motz of Maryland was appointed by President Clinton.

Comments

[NoVA Scout]

I agree with Marshall that it makes sense to seek review by the Court sitting en banc. The decision has the scent of a side-step on important issues. The panel's standing analysis may be correct, but, given the importance of the case not just for health care reform, but also for Social Security and other federal programs, it's the kind of thing that should have buy-in from the court as a whole if this is the way the Fourth Circuit is going to line up. The rest of Marshall's press release is generally malarkey. It's very hard to imagine an elected official having so distorted a view of the constitutional history of this country (well, now that I've typed that, I guess the level of understanding of the Constitution is about as bad among our elected officials as it is in the electorate at large - Guys like Marshall just can project their ignorance more loudly than most). Marshall's amicus brief is (like his press release) a Calhounist polemic. His overt suggestion that the decision is politically motivated is unhelpful. Asking for review en banc (even if it is denied) is one way to dispel that concern.