The new Civil War

Looking forward to big decisions in 2012

By A.J. Wagner

The Civil War is about to be fought again. The battle will take place near the banks of the Potomac River where the combatants will be armed with briefs, memoranda and pithy statements to fire at their opponents. Their blue and gray suits, this time, will be well-pressed and accompanied by white shirts or blouses.

In 2012 there will be U.S. Supreme Court decisions affecting criminal law, copyright law and affirmative action that will make some headlines, but the cases with the most far-reaching effect are those that deal with health care and immigration. These cases not only could change the direction of current jurisprudence, they may also have a huge impact on the 2012 elections. When these cases are decided, the balance of power between the states and the federal government will be tilted in a way sure to strengthen one side or the other.

We have heard our entire lives that the War Between the States was about “states’ rights.” At issue was slavery in the context of a state’s right under the U.S. Constitution to allow for the ownership of slaves and to have escaped slaves returned to their owners by non-slaveholding states.

This time the issues revolve around the federal government’s authority to usurp state government in the area of immigration and in the area of controlling the commerce of health care. The Constitution provides the federal government with broad, specific powers regarding immigration and commerce. Article I, section 8, where the powers of Congress are enumerated, states, “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States; . . . To regulate Commerce with foreign Nations, and among the several States . . .To establish an uniform Rule of Naturalization . . .”

On the other side of the equation is the very important Tenth Amendment to the Constitution, which provides, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The argument goes that if the federal government does not have the power under the “commerce clause” or the “naturalization clause” or the “taxing clause” the power must revert to the states to do with it as they please.

There are three important cases on the health care issue. It will be argued in these cases that when passing the Affordable Care Act (ACA), Congress exceeded its authority under the “commerce clause” by requiring that all U.S. citizens and legal residents be required to buy health insurance.

Usually, when a court finds one provision of a law to be invalid it will allow the remainder of the law to stand. However, arguments will be presented that the entire law should be struck down as a violation of the “commerce clause” and that the law cannot survive without the purchase requirement.

There will be similar arguments focused on the penalties that must be paid should a person fail to buy the required insurance. The question here is whether Congress, under the “taxing clause” can force someone to buy something. The Obama administration argues that this is a permissible “tax.” There will be a question raised as to whether the Supreme Court can even hear the questions about this “tax” since it has not yet been imposed and won’t be imposed until 2014.

The Supreme Court has also agreed to take up the case of Arizona v. United States. This case is a challenge to Arizona’s immigration law known as S.B. 1070. The U.S. will argue that only it can make rules regarding immigration pursuant to the power to make “uniform” rules of naturalization. Arizona insists that it is only trying to supplement that law, not interfere with it.

Whatever the outcome of these cases, they will have an impact on the 2012 election with winners saying, “I told you so” and losers saying that the other side is destroying the true meaning of the Constitution. The losers will certainly hope for a backlash from their supporters.

Some Civil War historians note that one of the reasons the war was won by the Union was that the South could not get its states to work together. The premise for the war was states’ rights. When Jefferson Davis levied taxes against the states to help pay for the war effort, his efforts were rebuffed by states that did not want to give their new federal government such powers.

The battle lines have been drawn. We will know by the end of June if the states will prevail or if the Union’s powers will be preserved.



Disclaimer: The content herein is for entertainment and information only. Do not use this as a legal consultation. Every situation has different nuances that can affect the outcome and laws change without notice. If you’re in a situation that calls for legal advice, get a lawyer. You represent yourself at your own risk. The author, the Dayton City Paper and its affiliates shall have no liability stemming from your use of the information contained herein.

A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at

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A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at

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