Private property has always had a unique place in American society. The Founding Fathers recognized that government exists to protect private property. They were influenced by Enlightenment-era philosophers John Locke and Adam Smith, who believed the right to property was a fundamental, natural right. Donald Trump, however, appears to believe that private property can be taken on a whim by the influential and politically-connected.

Ten years ago, the United States Supreme Court effectively scratched the line “for public use” from the Fifth Amendment’s Takings Clause, which allows the government to take and repurpose private property. The 5-4 decision in Kelo v. New London said that property may be taken from one private owner and given to another private owner if it will generate more revenue for the city.

The Supreme Court has taken an active role in redefining, rather than simply interpreting, our country’s laws. Two clear examples of this can be seen in the two ObamaCare opinions written by Chief Justice Roberts, NFIB v. Sebelius and King v. Burwell. Whether it is calling a penalty a tax, or saying an exchange established by Kathleen Sebelius was established by the states, the Supreme Court is playing an active role in changing legislation.

Many Americans are eagerly (and nervously) awaiting the King v. Burwell decision, which is expected to come at the end of the month. The court case will determine whether ObamaCare, which looks to be falling apart independently of legal intervention, is illegally providing subsidies to those enrolled in the exchange.

Texas v. United States

Normally to sue in federal court, a plaintiff must establish standing. There are three requirements for establishing standing: (1) an injury in fact, (2) a causal relationship between the injury and the defendant’s conduct, and (3) the injury would be redressed by a favorable court ruling.

The Necessary and Proper Clause is often called the “Elastic Clause” because it is believed to give Congress “implied powers” that government is assumed to possess without being mentioned in the Constitution. There is a problem with this view: a government that is able to expand its power through an “Elastic Clause” is more likely to abuse its power.

It has been assumed that once the Supreme Court issues a decision, the other courts in this country are bound to follow the decision for all future cases that fall within the announced rule. However, it can be argued that in most circumstances, neither the Constitution nor federal law requires other courts to follow the Supreme Court. Indeed, it has been the Supreme Court itself that has demanded that their decision be binding on future cases. This seems to be the type of usurpation of power is the type our Founders detested and the Constitution was meant to prohibit.

“All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.” – U.S. Constitution Article I, Section 7

“To regulate Commerce with foreign Nations, and among the several states, and with the Indian Tribes.”