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The Court is Not Supreme
By Mark Shepard, Bennington Vermont

March 11, 2010

Ignoring constituent concerns about the constitutionality of the federal government controlling healthcare did not work. Sighting Article I, Section 8 of the Constitution held no water. Claiming that he has "not heard legal scholars suggest the health reform bill is unconstitutional" is not even close to believable. So what did Congressman Peter Welch do to justify his vote for the House healthcare bill? He punted ... the constitutionality issue off to the court stating that the court is "ultimately responsible" to ensure policy is constitutional.

Does Congress have a lesser degree of responsibility to uphold the Constitution than the Court? Is Congress inferior to the Court? While Americans have little confidence in Congress, I think it is both wrong and unwise for Congress to take a back seat to the Court. The Supreme Court is supreme among courts, but it is not supreme among the branches of our government. Indeed many of our present day problems stem from a weakening of the legislative branch of government as members of Congress and state legislators create cover for their actions or inactions by pushing their rightful duties off to either government agencies or the courts.

Ensuring policy is presumptively constitutional, prior to implementation, is a primary responsibility of every member of Congress, the President, and the courts. Every member of Congress took an oath to responsibly understand and abide by the intent of the Constitution. This pledge requires studying the writings of the framers to understand exactly what was intended by the specific words and phrases they chose to dictate the constitutional consequences of their deliberations. Words and phrases may change in perceived meaning over time which, if taken face-value at any given moment, may allow for altered application of the Constitution if not checked against their original context.

From those historical writings (see the link to my open letter at my 2006 congressional race website: www.ShepardForCongress.org) I, and a growing number of Americans, see no way to construe the Constitution as giving the federal government the power to control healthcare and mandate all Americans purchase a federally prescribed health insurance policy.

If any of the three branches of government should have more governance capability than the others, it must be the Legislative by its constitutional design being the closest to the people and having the power to make laws that regulate both the executive and judicial branches as well as having the power to remove, under prescribed circumstances, the "President, Vice President and all civil officers of the United States" from office (Article II, section 4) as well as the power to create and abolish entire circuit courts. However, despite that power, the legislative branch remains neither above the law nor the Constitution. Congress can only change law by lawful means. Thus, if Congress desires to pass a bill along the lines of the massive Senate or House healthcare bills, its appropriate genesis would be the introduction of an amendment to the Constitution framing that desired outcome.

This is a matter far larger than this single healthcare bill. The very form of our government, with appropriate checks and balances and citizen input, is at stake. Putting the Court as the supreme authority ultimately puts five people a majority of the Supreme Court as the ultimate deciders of the direction of our country. That perspective is far removed from how, and why, this nation was founded. It also undermines the rightful responsibility of the legislative body, and in doing so, undermines the people's ability to guide our government. Inattention to the constitutional framing of our federal government by many members of Congress is moving our government further and further away from a government "...of the people, by the people, and for the people..." as Congress inches America closer and closer toward tyranny.

Mark Shepard

Mark Shepard
Bennington, Vermont

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