Justice Kennedy: Individual Mandate Fundamentally Changes Relationship of Govt.

[PSM]

Originally Posted by Dusty

Ditto.

Why is that, anyway? I never bothered to research it.

They have to write the pro and con opinions. They want to be more precise than the monstrosity they are ruling on.

Pat

[tonyz]

Originally Posted by Dusty

Too bad half the SCOTUS doesn't look at it that way. How comforting to know that we have a couple maroons on the bench that think the Constitution is invalid.

We are just one Supreme Court justice away from a nightmare.

Originally Posted by Dusty

"We're just throwing a boatload of money at the states to give to poor people for health care."

And just where does she think that boatload of money came from...

[Solar]

Originally Posted by tonyz

We are just one Supreme Court justice away from a nightmare.

...and one election.

What Conservative Legal Revolution?
A 5-4 ruling against ObamaCare is the least Republicans should expect given the number of justices they've been able to appoint.
By JOHN YOO
WSJ

"This week's Supreme Court arguments over ObamaCare have left opponents of the law quietly crossing their fingers. Questions from the bench hint that the court's conservative wing may hold together to strike down the individual mandate, which requires all American adults to purchase health insurance. But this week's arguments also reveal the risky gamble of placing all hopes of stopping ObamaCare in the courts, and they underscore the pivotal importance of this year's elections to restoring limited government.

Overturning ObamaCare by a mere 5-4 margin would show the tenuousness of the 40-year conservative campaign to alter the Supreme Court. In the four decades since Richard Nixon first made the Supreme Court a campaign issue, Republicans have controlled the White House for seven presidential terms and Democrats for only four. Yet conservatives and liberals can claim four seats each on the court, with Anthony Kennedy happily floating about in the middle.

Republican presidents nominated justices such as Harry Blackmun, John Paul Stevens and David Souter, who became dependable liberal votes. Democrats have yet to make a similar mistake.

As a result, the conservative revolution in constitutional law has fizzled. The court has reaffirmed the right to abortion, intervened in wartime military decisions, upheld distortions of the separation of powers such as the independent counsel statute, and barely nibbled at the outer reaches of the New Deal expansion of federal power over the states.

While the high court has not conjured forth as many new constitutional rights as it once did, it may soon impose gay marriage on the country when it gets the case of Perry v. Brown. Only in the area of criminal procedure, where the solid liberal bloc sometimes suffers defections, has the court seriously rebalanced constitutional law.

The winner of this November's presidential election may enjoy the chance to appoint three new Justices. By the end of the next president's term in 2016, Ruth Bader Ginsburg will be 83, Antonin Scalia and Justice Kennedy will turn 80, and Stephen Breyer will be 78.

This points to a remarkable increase in longevity on the court. Before World War II, justices were on average 69 years old at retirement. After World War II they were 73, and for justices appointed after 1968, they were 80. Until 1968, justices averaged about 15-16 years on the court; after that the figure shot up to 24 years. By 2016, Justice Scalia will have served for 31 years, and Justice Kennedy for 29. Plainly, the next president will have the chance to lock into place a conservative court majority or to launch a liberal counterrevolution. Should President Obama win re-election, he may even appoint a majority of the Supreme Court that conceivably could be in a position to reverse any decision this year blocking ObamaCare.

The prospect of a new liberal court displays the dangers of placing all the conservative eggs in the judicial basket. Republicans today should heed the advice of their party's first, and greatest, president. "If the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court," Abraham Lincoln declared in his first inaugural address, "the people will have ceased, to be their own rulers, having to that extent, practically resigned their government, into the hands of that eminent tribunal."

Only conservative control of both the executive and legislative branches can replace ObamaCare with sensible, pro-market health-care reforms. Winning a Senate majority could give Republicans the leverage to moderate Obama's Supreme Court nominees in a second term. But it cannot override a presidential veto, one sure to greet any bills repealing ObamaCare. Conservative control of the White House and both houses of Congress will stop further adventures beyond the Constitution's limits, relieving the need for a judicial salvation that may never come."

Mr. Yoo is a professor at the University of California at Berkeley School of Law who served in the Justice Department under President George W. Bush. He is the author of the just-released "Taming Globalization" (Oxford University Press).

[Dusty]

Originally Posted by PSM

They have to write the pro and con opinions. They want to be more precise than the monstrosity they are ruling on.

Pat

Well, of course, bro-but why are they given that much time?

Let's face it, it might take that long to write a 2700-page bill, but over 60 days to flesh out a yay or nay?

It boils down to three words, really-it ain't Constitutional.

[Pete]

The SC kinda' crossed the bridge and burnt it behind them with Wickard v Filburn.

[Dusty]

Originally Posted by Pete

The SC kinda' crossed the bridge and burnt it behind them with Wickard v Filburn.

IMO, they crossed it with Engel v. Vitale and burnt it with Roe v. Wade.

[Dusty]

http://www.politico.com/news/stories/0412/74743.html

President Barack Obama voiced confidence Monday that the Supreme Court will uphold his health care law in his first public remarks on the issue since the three days of oral arguments last week.

In a rare instance of a president weighing in on a high court case in which the ruling has not yet been released, Obama suggested that the high court would be guilty of “judicial activism” if it overturned the law. He also argued that the justices should uphold the individual mandate, saying it’s a key — and constitutional — piece of the law.

“We are confident that this will be upheld because it should be upheld,” Obama said at a joint news conference at the White House with Canadian Prime Minister Stephen Harper and Mexican President Felipe Calderon.

During three days of hearings last week, conservative justices signaled skepticism toward the individual mandate, which requires nearly all Americans to buy health insurance or pay a fine. Based on their questions, the conservative justices did not appear to support the idea of upholding the law if they were to strike down the mandate.

Obama said the individual mandate must remain in the law for it to function.

“I think it is important and I think the American people understand, and I think the justices should understand that in the absence of an individual mandate, you cannot have a mechanism to insure that people with preexisting conditions can actually get health care,” he said.

Some liberal groups are preparing to attack the court for judicial activism should the mandate be overturned, and Obama laid the groundwork for that argument on Monday, as he reminded conservatives of their fears of overreaching courts.

Overturning the law would be “an unprecedented, extraordinary step” since it was passed by a majority of members in the House and Senate,” he said. “I just remind conservative commentators that for years we’ve heard that the biggest problem is judicial activism or a lack of judicial restraint. That a group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I’m pretty confident that this court will recognize that and not take that step.”

Snip

Read more: http://www.politico.com/news/stories...#ixzz1qunqegna

[Sigaba]

The president's train of thought takes longer leaps of fantasy than the paranoid inner dialog of a graduate student standing in the middle of a grocery store with a contact high during the Clinton administration.

As an erstwhile "professor" of constitutional law, the president should know that the framers took steps to limit the impact of popular opinion on the supreme court.

To be clear, I don't take exception to a chief executive using the bully pulpit to get the message out. I do resent a chief executive doing it ineptly.

[Dusty]

Originally Posted by Sigaba

The president's train of thought takes longer leaps of fantasy than the paranoid inner dialog of a graduate student standing in the middle of a grocery store with a contact high during the Clinton administration.

As an erstwhile "professor" of constitutional law, the president should know that the framers took steps to limit the impact of popular opinion on the supreme court.

To be clear, I don't take exception to a chief executive using the bully pulpit to get the message out. I do resent a chief executive doing it ineptly.

How many chief executives, historically, have openly despised the Constitution?

This guy obviously detests the Founders. Have you seen this?

http://www.youtube.com/watch?v=5HeoxAmmxnI

[Sigaba]

Originally Posted by Dusty

How many chief executives, historically, have openly despised the Constitution?

The argument that a president is stepping outside of the boundaries of the constitution is not new. Similar charges have been lobbed at every war time president as well as at those chief executives who have been in office during ferocious debates over controversial public policies.

The founders anticipated conflict among the branches of the federal government. Hence, the constitution puts in place mechanisms for checks and balances. Therefore, is it beyond the pale when those in power seek redefine the lines of authority and/or expand the portfolios of their offices? Or does this criticism apply only when the other guy does it?

Two questions I frequently asked a friend when we'd debate the merits of Bush the Younger's administration were:

• Was Bush a "terrible" president because, according to critics, he circumvented the constitution, or was he a remarkably effective president because he could achieve his goals in the face of staunch political opposition?
• Is it a president's responsibility to perform the checks and balances that fall into the briefs of the other two branches of the government?

Originally Posted by Dusty

This guy obviously detests the Founders. Have you seen this?

http://www.youtube.com/watch?v=5HeoxAmmxnI

The founders themselves had some intense rivalries and doubts about each other. These deeply held divisions were downplayed and understudied in the Consensus historiography that followed the Second World War. However, historians have greatly expanded our understanding of how turbulent a time the early national period actually was.*

In short, I think there's much more to be gained politically from criticizing the president for his mishandling of present day issues, his inchoate political philosophy, his profound lack of intellectual depth, his self-serving opportunism, and his poorly-disguised contempt for his supporters and opponents alike, than for his relationship to and understanding of America's past.

YMMV.


________________________________
* A convenient discussion of these three issues--and many others--is available in Robbie J. Totten, "Security, Two Diplomacies, and the Formation of the U.S. Constitution: Review, Interpretation, and New Directions for the Study of the Early National Period," Diplomatic History, 36:1 (January 2012): 77-118. And by "convenient" I mean the article is within arm's reach. I do not mean "accessible" nor necessarily "enjoyable."

[Dusty]

Originally Posted by Sigaba

The argument that a president is stepping outside of the boundaries of the constitution is not new. Similar charges have been lobbed at every war time president as well as at those chief executives who have been in office during ferocious debates over controversial public policies.

The founders anticipated conflict among the branches of the federal government. Hence, the constitution puts in place mechanisms for checks and balances. Therefore, is it beyond the pale when those in power seek redefine the lines of authority and/or expand the portfolios of their offices? Or does this criticism apply only when the other guy does it?

Two questions I frequently asked a friend when we'd debate the merits of Bush the Younger's administration were:

• Was Bush a "terrible" president because, according to critics, he circumvented the constitution, or was he a remarkably effective president because he could achieve his goals in the face of staunch political opposition?
• Is it a president's responsibility to perform the checks and balances that fall into the briefs of the other two branches of the government?

The founders themselves had some intense rivalries and doubts about each other. These deeply held divisions were downplayed and understudied in the Consensus historiography that followed the Second World War. However, historians have greatly expanded our understanding of how turbulent a time the early national period actually was.*

In short, I think there's much more to be gained politically from criticizing the president for his mishandling of present day issues, his inchoate political philosophy, his profound lack of intellectual depth, his self-serving opportunism, and his poorly-disguised contempt for his supporters and opponents alike, than for his relationship to and understanding of America's past.

YMMV.


________________________________
* A convenient discussion of these three issues--and many others--is available in Robbie J. Totten, "Security, Two Diplomacies, and the Formation of the U.S. Constitution: Review, Interpretation, and New Directions for the Study of the Early National Period," Diplomatic History, 36:1 (January 2012): 77-118. And by "convenient" I mean the article is within arm's reach. I do not mean "accessible" nor necessarily "enjoyable."

Reckon Bush would do an interview in which he basically whines about being shackled by the intentions of the Founders?

[Sigaba]

Originally Posted by Dusty

Reckon Bush would do an interview in which he basically whines about being shackled by the intentions of the Founders?

Maybe the country would have been better off if Bush the Younger had initiated a conversation that invited Americans to square the ideas and concepts of the founders with the difficult choices of GWOT.

The current president certainly has gained a lot of support within his base for filling in the silence.

[Dusty]

Originally Posted by Sigaba

The current president certainly has gained a lot of support within his base for filling in the silence.

A paperhanger with a f.cked up half-moustache did something very similar.

[tonyz]

Originally Posted by Gypsy

I'm annoyed we have to wait until June for their decision. They voted, let's have the judgement already.

That is a very good question - as I understand things that vote - that you refer to - is merely a straw vote. Theoretically, the justices are not bound by that vote at this time.

One must start somewhere to see where the group of justices stand on the case before them - that vote is merely the beginning of negotiations for a variety of matters pertaining to this case.

What is most likely going behind the scenes is some horse trading for votes and what is and what is not to be included in the written decision itself.

Thus, you see the President lobbying in the press for his preference - subsequent to that vote.

We may or may not receive the actual decision by June.

[Gypsy]

Originally Posted by tonyz

That is a very good question - as I understand things that vote - that you refer to - is merely a straw vote. Theoretically, the justices are not bound by that vote at this time.

I heard that...it annoyed me as well.