Thursday, October 6, 2011

Jobs bill would defy Constitution and Supreme Court

Washington – If it passes Congress, the American Jobs Act will create the kind of confusion that results in numerous trips to both state and federal court.

According to Rob Natelson, a constitutional scholar affiliated with the Tenth Amendment Center, the bill's biggest flaw is its “bald claim to suspend the Eleventh amendment.”

In Section 376(a), the bill provides “Abrogation of state immunity – A state shall not be immune under the 11th Amendment to the Constitution or otherwise, to a suit brought...under this Act.”

Mr. Natelson asks, “What? Is abrogation of the First Amendment next?”

The Eleventh Amendment provides that “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by a Citizen of another State, or by Citizens or Subjects of any Foreign State.”

The argument is impeccable. At the time of the ratification of the Constitution, legislators realized that “Through a series of expensive lawsuits, opponents argued, a state and its taxpayers might be bankrupted. In response, proponents of the Constitutiion such as John Marshall pointed out that a suit by an individual against an unwilling state was not properly a case or a controversy as the law used the term, and Constitution gave the feeeral courts jurisdiction only over 'cases and controversies.' On such representations, the Constitution was ratified.”

Using that “commerce clause” as a shield, the bill would allow those passed over for hiring in favor of a person already employed to bring suit against the employer.

“Of course, the mandate is flatly unconstitutional under the Constitution's actual meaning. Burt it also is deeply suspect under modern supreme Court jurisprudence,” Mr. Natelson argues.

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