A wall of wet toilet paper
So how is this a good thing? After
all, the mandate was upheld as a proper
exercise of Congress’s power to tax and
spend for the general welfare. The Court
criticizes prior over-expansive exercises
of the Commerce Clause power. While
the Court has not always honored prece-
dence, this case seems different. The pro-
gressive justices on the Court joined in
Chief Justice Roberts’ opinion, so they, at
least, are on record as agreeing that a line
in the sand has been drawn as far as the
Commerce and Necessary and Proper
clauses are concerned. Thus, if the gov-
ernment tries to expand the powers fur-
ther and overreach, the justices will at
least have to explain how they can ignore
their own logic in the Sebelius opinion,
something few justices have been willing
to do in the past. They usually stand be-
hind their own rulings. It is prior justices’
decisions they have problems with.
The Tenth Amendment is a wall to keep
Questions for Discussion
the Federal government from interfer-
ing in the daily affairs of the citizens of
the several states, at least, that’s how the
Founding Fathers envisioned it. It re-
serves power not given to the Federal
government by the Constitution to the
states. Sadly, the Tenth Amendment is
nothing more than a wall of wet toilet pa-
per. Since the first breech by the Supreme
Court in Wickard v. Filburn, 19 the pa-
per has been shredded. Congress walks
through it each lawmaking session, and
the President does the same by ignoring
the role of Congress and legislating via
executive orders, as do Federal agencies
through their ever expanding regula-
tory powers. How do we stop this ever-
encroaching power? You and I must elect
leaders who respect the limits placed on
the Federal government by the Bill of
Rights and the rest of the Constitution.
Otherwise, the nation we grew up in may
change so dramatically in the next twenty
years that it will not resemble the free na-
tion our Founding Fathers gave us more
than two hundred years ago.
1. What is Congress expressly authorized to do under its enumerated constitutional powers?
2. What does the term “reserved to the
3. Can Congress impose income taxes?
(Hint: this is a power addressed by
another amendment to the Constitution.) Why or why not?
4. In the 2012 presidential election,
some opponents of Mitt Romney
took issue with him being critical of
Obamacare since he supported a similar initiative in Pennsylvania when
he was the governor. What is the
difference between what he did and
what Obamacare did? What argument does Romney have to support
his healthcare initiative while also opposing President Obama’s? Find cases
to support this distinction.
5. Can you think of some of your daily
activities that are now regulated by
the federal government that shouldn’t
Kevin Mark Smith is an allied attorney with
the Alliance Defending Freedom in Wichita, Kansas, where he lives with his wife and
three daughters. He writes often on the law,
homeschooling, and issues of importance to
Christians, families, and conservatives on
1. This text is from the original Constitution and
misspellings are original.
2. United States v. Lopez, 514 U.S. 549, 586 (1995)
(J. Thomas, concurring).
3. Bowman v. Chicago & N. W. Ry. Co., 125 U.S.
465, 479-80, (1888).
4. 514 U.S. at 585-86.
5. See Marbury v. Madison, 5 U.S. 137 (1803)
(holding that the Supreme Court’s role is to
ensure that acts of the legislative and executive
branches are Constitutional).
6. Wickard v. Filburn, 317 U.S. 111, 114 (1942).
8. “A doctrine or policy of following rules or
principles laid down in previous judicial decisions unless they contravene the ordinary principles of justice.” Merriam-Webster Dictionary.
Hence, today’s court is supposed to honor past
decisions of the same court.
9. Ibid. at 124 (italics added).
10. Wickard, 317 U.S. at 127-28.
11. National Federation of Independent Business
v. Sebelius, 132 S. Ct. 2566, 2577 (2012).
12. Sebelius, 132 S. Ct. at 2577.
13. Ibid. at 2578.
14. Ibid. at 2586.
15. Sebelius, 132 S. Ct. at 2587.
16. Ibid. at 2588.
17. Ibid. at 2589.
18. Ibid. at 2593.
19. 317 U.S. 111 (1942).
It is up to Congress to determine how many justices sit on the Court.