This is even scarier

[justplugit]

Originally Posted by spence

Reagan's brilliance was that he was really a pragmatist...

-spence

Yes, a very practical man, but more importantly a true Leader who brought
the country together, made people proud to be Americans and brought
out true Patriotism.

The Justices should not be concerned wether something is completly wrong or not, but wether
it is or is not Constitutional.

[zimmy]

Originally Posted by justplugit

The Justices should not be concerned wether something is completly wrong or not, but wether
it is or is not Constitutional.

Well, then it will pass, since it is constitutional based on precedent. The real question is whether the supreme court will overturn settled law. Many are obviously in favor of that.

[Backbeach Jake]

Reagan gave the working man the first kick in the nuts in this continuing assination of the middle class. Deregulation and union busting have undone us all.

[detbuch]

Originally Posted by zimmy

Well, then it will pass, since it is constitutional based on precedent. The real question is whether the supreme court will overturn settled law. Many are obviously in favor of that.

Precedent is supposed to be binding only on the lower federal district and appeal courts. Even in those courts, judges often don't follow precedent. The ninth circuit is famous for abandoning precedent. The Supreme Court is not bound to follow precedent. If it were, the current interpretations of "commerce," "regulate," and "interstate" would never have happended. The first 150 years of SC jurisprudence understood those words, as well as many others, to be something quite different than the meanings they took on during the FDR court which, obviously, didn't follow precedent. Nor is there even precedent for adjudication upholding federal power to require individuals to buy commercial products, nor any precedent for it to create commerce that did not previously exist. So there is not really a settled law to be overturned. But if there were, or is, the SC is not bound to follow it, especially if such law was "settled" unconstitionally. Bad case law not only can be reversed, it should be.

[scottw]

04/02/2012 TheWashingtonPost

Obama’s unsettling attack on the Supreme Court
By Ruth Marcus

"There was something rather unsettling in President Obama’s preemptive strike on the Supreme Court at Monday’s news conference.

“I’d just remind conservative commentators that for years what we’ve heard is the biggest problem on the bench is judicial activism or a lack of judicial restraint — that an unelected group of people would somehow overturn a duly constituted and passed law,” Obama said. “Well, here’s a good example. And I’m pretty confident that this court will recognize that, and not take that step.”

To be clear, I believe the individual mandate is both good policy and sound law, well within Congress’ powers under the Commerce Clause. I think overturning the mandate would be bad not only for the country but for the court itself. Especially in the wake of Bush v. Gore and Citizens United, it would look like a political act to have the five Republican-appointed justices voting to strike down the law and the four Democratic appointees voting to uphold it.

That unfortunate outcome would risk dragging the court down to the partisan level of a Congress that passed the law without a single Republican vote. As much as the public dislikes the individual mandate(this is interesting), a party-line split would not be a healthy outcome for public confidence in the court’s integrity.

And yet, Obama’s assault on “an unelected group of people” stopped me cold."

Obama’s unsettling attack on the Supreme Court - PostPartisan - The Washington Post

the only "precedent" being set here is one of an American President acting as a Third World Dictator

Pass the smelling salts! Obama `attacked’ SCOTUS! - The Plum Line - The Washington Post
to be fair Zimmy, here's a rebuttal, although, both authors are sitting on the same side of the aisle politically...

I always like to check the bio's just to see where they might be coming from...

Ruth Marcus- Ruth Marcus is a columnist and editorial writer for The Post, specializing in American politics and domestic policy. Marcus has been with The Post since 1984. She joined the national staff in 1986, covering campaign finance, the Justice Department, the Supreme Court and the White House. From 1999 through 2002, she served as deputy national editor, supervising reporters who covered money and politics, Congress, the Supreme Court, and other national issues. She joined the editorial board in 2003 and began writing a regular column in 2006. A graduate of Yale College and Harvard Law School(who apparently half paid attention while at Harvard Law unlike our President), she was a finalist for the Pulitzer Prize for Commentary in 2007. She lives in Maryland with her husband, Jon Leibowitx, their two daughters, and the world’s cutest dog.

Greg Sargent- Greg Sargent writes The Plum Line blog, a reported opinion blog with a liberal slant -- what you might call “opinionated reporting” from the left. He joined the Post in early 2009, after stints at Talking Points Memo, New York Magazine and the New York Observer. He lives in Maryland with his wife, son and daughter.

[scottw]

CHRIS MATTHEWS: "I was totally unprepared because of the way people talked. I always thought, intellectually, it might be a problem but I never heard it discussed politically as a prospect, that they actually might get his major achievement just ripped off the books."

CHARLES KRAUTHAMMER-"Here's the president talking about respect for the law and implying there's partisanship if the law is overturned. We all were witnesses to the oral hearings in which Obama's case for the constitutionality of the law was utterly demolished to the point where one liberal observer called it a 'train wreck,(I believe it was referred to as a "train wreck" on day one and a "plane wreck" after the final arguments)'" Charles Krauthammer said on FOX News' "Special Report" this evening.

"It's perfectly natural for a majority of the Court to side with the side that actually won the argument intellectually. That's not partisanship, that's logic. What is partisanship is when the four liberal justices are in such lockstep with the administration that they end up supporting the case that's been utterly destroyed in an open argument and be humiliated," Krauthammer said on the panel.

"Second, the president talks about the deal as unprecedented. What' he talking about? Since 1803, our system has been one in which the Supreme Court in the end, judges, whether the law is constitutional or not. And in this case, he talked about the law passing by majority. He had a strong majority, with 75 Democrats outnumbering Republicans in the House. Obamacare passed by seven votes. It was a very narrow majority. It wasn't as broad of a majority that he implied," he added.

"On every count he doesn't have an argument. This is liberals in shock over watching their side being demolished in oral argument and trying to bully the Supreme Court into ending up on their side in a case which they clearly lost intellectually and logically," Krauthammer concluded.

fascinating stuff

[Jim in CT]

Originally Posted by scottw

CHRIS MATTHEWS: "I was totally unprepared because of the way people talked. I always thought, intellectually, it might be a problem but I never heard it discussed politically as a prospect, that they actually might get his major achievement just ripped off the books."

CHARLES KRAUTHAMMER-"Here's the president talking about respect for the law and implying there's partisanship if the law is overturned. We all were witnesses to the oral hearings in which Obama's case for the constitutionality of the law was utterly demolished to the point where one liberal observer called it a 'train wreck,(I believe it was referred to as a "train wreck" on day one and a "plane wreck" after the final arguments)'" Charles Krauthammer said on FOX News' "Special Report" this evening.

"It's perfectly natural for a majority of the Court to side with the side that actually won the argument intellectually. That's not partisanship, that's logic. What is partisanship is when the four liberal justices are in such lockstep with the administration that they end up supporting the case that's been utterly destroyed in an open argument and be humiliated," Krauthammer said on the panel.

"Second, the president talks about the deal as unprecedented. What' he talking about? Since 1803, our system has been one in which the Supreme Court in the end, judges, whether the law is constitutional or not. And in this case, he talked about the law passing by majority. He had a strong majority, with 75 Democrats outnumbering Republicans in the House. Obamacare passed by seven votes. It was a very narrow majority. It wasn't as broad of a majority that he implied," he added.

"On every count he doesn't have an argument. This is liberals in shock over watching their side being demolished in oral argument and trying to bully the Supreme Court into ending up on their side in a case which they clearly lost intellectually and logically," Krauthammer concluded.

fascinating stuff

I love The Hammer...

[Jim in CT]

Originally Posted by zimmy

The real question is whether the supreme court will overturn settled law. Many are obviously in favor of that.

The Supreme Court does that all the time. That's how slavery was abolished, and that's how abortion was legalized, the Supreme Court overturned what was, up to that point, settled law. Just because the President signs a bill into law, doesn't make it constitutional, as I suspect we will soon see.

[JohnnyD]

Originally Posted by zimmy

Well, then it will pass, since it is constitutional based on precedent. The real question is whether the supreme court will overturn settled law. Many are obviously in favor of that.

Where is the precedent?

Many people point to car insurance which is completely unrelated.


Edit: Just stumbled across this article.
http://www.washingtonpost.com/nation...3tS_story.html
I wouldn't doubt the possibility of Obama hurting his chances and changing a potential 5-4 decision in his favor into a 5-4 decision against him. Let's not forget that this is the second time Obama has called out the Supreme Court. There's a good chance that challenging the court results in at least one Justice's mentality turning into "you know what, F$#& him."

[Jim in CT]

Spence? Yoo-hoo, Spence? No comment on the fact that Obama doesn't agree that the Supreme Court has the traditional authority to deem duly passed laws as un-constitutional? Spence, you have no comment on Obama's idiotic, outrageous statement?

[mosholu]

The interesting thing about the arguments in front of the SCOTUS is not whether they have the right to overturn laws that are unconstitutional. That is a given. It is the standard of review that is coming under question and the idea that Congress as the elected voice of the people (in theory) has the right to make policy and challenges to any law passed by Congress have a heavy burden to overcome. The conservative justices during the oral arguments felt that the weight of proof was on the Gov't to show that the legislation passed by the Congress allows the Gov't the ability to go into interstate commerce in this area. This would be a significant departure from Court precedent and you can argue that the Court has the right to move in whatever direction it sees fit. Forgetting about this particular law and whether you support it or not do you really want a group of judges that are appointed for life with very limited standard of review to start deciding matters of policy. I think that that would be a significant shift in the system of checks and balances we have in this country and it makes me uneasy.

[RIJIMMY]

Originally Posted by mosholu

do you really want a group of judges that are appointed for life with very limited standard of review to start deciding matters of policy. I think that that would be a significant shift in the system of checks and balances we have in this country and it makes me uneasy.

Am I on mars? Does anyone here have a clue what the supreme court does? This isnt about policy. Its about the LIMITS OF GOVERNMENT.
A decision will not say we shouldnt have health care reform, it will say the US Govt CANNOT make you do something that was not intended in the constition.
Just curious, do folks think the SCOTUS was out of bounds when they legalized abortion? Ended Segregation? Do you you think prohibition should be LEGAL???????? I dont, its theirr ole to keep the executive and legislative branch in check.
For gods sake liberals are now trying to taint a processs that has worked in their favor for years. WTF is happening here?

[detbuch]

Originally Posted by mosholu

The interesting thing about the arguments in front of the SCOTUS is not whether they have the right to overturn laws that are unconstitutional. That is a given. It is the standard of review that is coming under question

What do you mean by "the standard of review"? The standard used FOR review would be the Constitution, no? The review is to determine if the law is Constitutional, no? Does the standard OF review differ? Do you mean strict scrutiny or loose scrutiny? Do you mean textual or some originalist interpretation which determines if the law is within congressional powers as enumerated, or an instrumentalist view to bring about social change regardless of constitutional authority to do so? And under whose question is the standard coming? Is the government questioning what standard the court is using, and if so, what specifically is its question? Is the government pleading that the Court MUST follow a precedent? And that precedent is that all economic activity falls under its power to regulate commerce? There may have been such an assumption on the part of Congress that it had unlimited powers to do whatever it wished under the Commerce Clause, but that was never stated as such nor assumed by the SCOTUS. And since no such power is given in the Constitution, nor was ever explicitly stated as such by the Court, there has always been a judicial assumption of limits to government power under that clause, or any other clause, no matter under what "standard of review" justices used. The plaintiffs and the "conservative" justices questioned if the limits had been reached by the mandate. The justices questioned if there was a limiting principle that would confine the government's power to require an individual to buy something only to this health care law and not apply this power to any other legislation such as mandating the purchase of broccoli or funeral insurance. The Government could not define or say what would limit it. In essence, if the Government were granted such a power by the Court, it's power would reach beyond any assumed limitation by the Commerce Clause, and it could, indeed, do anything it wished. Does that make you "uneasy" even a little bit?

and the idea that Congress as the elected voice of the people (in theory) has the right to make policy and challenges to any law passed by Congress have a heavy burden to overcome.

Congress has the right to make policy because, and only because, the Constitution grants that power. But the Constitution constrains Congress severly (in theory) to make policy ONLY within the limits enumerated. And it should be a light burden, indeed, to challenge a law passed by Congress if it goes beyond its constitutional authority. Does it not make you a bit "uneasy" to envision a Congress that oversteps its authority and the "burden" to challenge it were made "heavy"?

The conservative justices during the oral arguments felt that the weight of proof was on the Gov't to show that the legislation passed by the Congress allows the Gov't the ability to go into interstate commerce in this area.

Is it truly interstate commerce when you visit your doctor?

This would be a significant departure from Court precedent and you can argue that the Court has the right to move in whatever direction it sees fit.

This would be a "significant departure" from which Court precedent? The Court has already departed from various precedents. The precedent to which you refer, whatever it is, is probably a departure from previous precedent. The Commerce Clause jurisprudence of the past 70+ years has been an extremely significant departure from that of the previous 150 years. Precedent can be used in law as an aid, but precedent should not be binding and certainly not merely for convenience.

Forgetting about this particular law and whether you support it or not do you really want a group of judges that are appointed for life with very limited standard of review to start deciding matters of policy. I think that that would be a significant shift in the system of checks and balances we have in this country and it makes me uneasy.

No, deciding matters of policy, if that means legislating, is exactly what SCOTUS should not do. What SCOTUS should do is determine if policy is constitutional. That is the very essence of the original checks and balances. When the Court abandons its function and duty and merely steps aside to allow Congress unlimited, unconstitutional power, what, exactly is the check and balance there?

[scottw]

the seed that Obama planted in his statements was to attempt to redefine "judicial activism" as SCOTUS acting within it's authority to strike down a law(that he happens to desire) that it finds Unconstitutional....as usual..turning logic on it's head

Black's Law Dictionary defines judicial activism as a "philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions."

the activist judges that the right have railed about for years are judges that legislate from the bench and attempt to create public policy and even law, often with the approval of law makers and these have tended to be liberal minded judges who do not feel constrained by the Constitution or any limits placed on their office. There are countless examples.....

the ultimate decision will be that of some number of judges ruling based on the Constitutionality of the law and it's mandates which is prefectly within their purview and the other number of judges "will allow their personal views about public policy, among other factors, to guide their decisions" disreguarding any obvious conflicts with the Constitutional boundaries placed on the Federal Government and preferring to assist in creating public policy and law clearly outside of those boundaries....there is little argument that the 4 liberal minded "activists" on the court will vote in lock step because they either do not feel constrained by the Constitution or they will "find" something in the Constitution or point to precedent that will support their public policy beliefs....(perhaps, in the case of Justice Breyer, he will point to some precedent in "foreign law" or among the "positive liberties" not yet defined in the Constitution..there it is again....to support his notion)

The second Berlinian concept – to Berlin*, "positive liberty" – is the "freedom to participate in the government;" In Breyer's terminology, this is the "active liberty," which the judge should champion. Having established this premise of what liberty is, and having posited the primary importance of this concept over the competing idea of "Negative Liberty" to the Framers, Breyer argues a predominantly utilitarian case for judges making rulings that give effect to the democratic intentions of the Constitution.


*Isaiah Berlin (Latvia/United Kingdom, 1909–1997) is most famous for his attempt to distinguish 'two conceptions of liberty'. Berlin argued that what he called 'positive' and 'negative' liberty were mutually opposing concepts. Positive conceptions assumed that liberty could only be achieved when collective power (in the form of church or state) acted to 'liberate' mankind from its worst aspects.** These, Berlin felt, tended towards totalitarianism. Negative conceptions, by contrast, argued that liberty was achieved when individuals were given maximal freedom from external constraints (so long as these did not impinge on the freedom of others to achieve the same condition).

** you should also investigate how this relates to Liberation Theology and "Collective Salvation"... with regard to this President

[spence]

Originally Posted by Jim in CT

Spence? Yoo-hoo, Spence? No comment on the fact that Obama doesn't agree that the Supreme Court has the traditional authority to deem duly passed laws as un-constitutional? Spence, you have no comment on Obama's idiotic, outrageous statement?

Sorry, have been working hard to try and keep the DOW above 13,000. The economic recovery is keeping me pretty busy

I don't see you could interpret Obama's remark as stating the SCOTUS doesn't have the authority. Obama was simply using a bit of the Right's own poison against them.

It was a heavy handed political remark for sure, but the Administration didn't fare well in the media last week and so they have to tighten up their line.

Obama's comments if anything we to reassure the base he was fighting for their interests...Reagan did the same thing.

-spence

[Jim in CT]

Originally Posted by spence

Sorry, have been working hard to try and keep the DOW above 13,000. The economic recovery is keeping me pretty busy

I don't see you could interpret Obama's remark as stating the SCOTUS doesn't have the authority. Obama was simply using a bit of the Right's own poison against them.

It was a heavy handed political remark for sure, but the Administration didn't fare well in the media last week and so they have to tighten up their line.

Obama's comments if anything we to reassure the base he was fighting for their interests...Reagan did the same thing.

-spence

\

Spence, i noticed you werent too busy to comment on this thread, earlier, yet dodge the issue I raised. So don't give me that, OK?

Spence, Obama said it would be "unprecedented" for the Court to overturn a law passed by the legislature. "Unprecedented". The man taught constitutional law, and he doesn't think the court has ever, not once, overturned a law signed by congress?

You didn't present yourself any better than he did Spence...you shuold both be enbarassed.

Our president doesn't think that the Supreme Court has ever declared a law to be unconstitutional. Our Treasury Secretary is a tax cheat. Our vice president is an admitted plagiarist. Our Secretary Of State claimed that on an overseas trip she had to JUMP! into military vehicles because of sniper fire (turned out to be a lie, caught on video, her excuse for the lie was that she was tired, and because o fthat, she imagined that she had been shot at), and our attorney general thinks that (1) soldiers on the battlefield should "arrest" enemy combatants, and that (2) it was a good idea to give machine guns to Mexican drug runners.

Not exactly the 1927 Yankees, this inner circle we have...

[spence]

Originally Posted by Jim in CT

Spence, Obama said it would be "unprecedented" for the Court to overturn a law passed by the legislature. "Unprecedented". The man taught constitutional law, and he doesn't think the court has ever, not once, overturned a law signed by congress?

Obama's statement was in response to a question, not a prepared remark. That he left out some context is reasonable and when asked again he was more specific.

Well, first of all, let me be very specific. We have not seen a Court overturn a law that was passed by Congress on a economic issue, like health care, that I think most people would clearly consider commerce — a law like that has not been overturned at least since Lochner. Right? So we’re going back to the ’30s, pre New Deal.

I think Obama's assertion that the bill was passed by a big majority was certainly a stretch, but his comment that the SCOTUS hasn't mucked with economic policy in the modern era does appear to be accurate from what I've read.

This blabbering on that Obama doesn't know what the Supreme Court does is pretty absurd.

-spence

[JohnR]

Originally Posted by Jim in CT

\

Spence, Obama said it would be "unprecedented" for the Court to overturn a law passed by the legislature. "Unprecedented". The man taught constitutional law, and he doesn't think the court has ever, not once, overturned a law signed by congress?

That's OK, Joe Biden stated Obama's call on Bin Laden was the most audacious thing in 500 years of history

(and it was Audacious, just not in the top 500 of the last 500)

Originally Posted by The Dad Fisherman

May I suggest everybody take a deep breath and relax....

I'm pretty sure Bossman wants everybody to play nice in the Sandbox

And, yes, he does.

[RIJIMMY]

Originally Posted by zimmy

Well, then it will pass, since it is constitutional based on precedent. The real question is whether the supreme court will overturn settled law. Many are obviously in favor of that.

from Zimmy, constitutional scholar. WTF man, seriously?
you better not beyotch then when the real scholars deliver an opinion.

and BTW - this whole "settled law" thing, thats what the supreme court does for a living. They confirm or overturn settled law as a course of their daily business. aint no big f'in deal if they do. Anyone remember "seperate but equal" ? They overturned their own ruling.

[zimmy]

Originally Posted by RIJIMMY

from Zimmy, constitutional scholar. WTF man, seriously?
you better not beyotch then when the real scholars deliver an opinion.

and BTW - this whole "settled law" thing, thats what the supreme court does for a living. They confirm or overturn settled law as a course of their daily business. aint no big f'in deal if they do. Anyone remember "seperate but equal" ? They overturned their own ruling.

Thank you. i appreciate your acknowledgement of my scholarship on the constitution . My post was a bit of baiting, but as far as they overturn settled law, they almost always reject even hearing cases of settled law, so to say it is no big deal is a stretch. I agree with the fact that Obama was way out of line commenting on it and I beleive it almost certainly results in a 5-4 to overturn it. It's human nature. I would certainly feel like stickin it to him if I were a justice.

The precedent goes back at least as far as US v SEU in 1944. The auto insurance and fire insurance are relevant because operation of a vehicle requires a license and the vehicle must be insured. US v SEU dealt with the same issue in fire insurance. In the health insurance case, the reasonable expectation is that everyone will use medical services. The impact of the uninsured on interstate commerce (medical services) is clear. Lack of insurance is a driving froce in the cost of health care commerce. Congress has the power to legislate interstate commerce.

[RIJIMMY]

Originally Posted by zimmy

, they almost always reject even hearing cases of settled law, so to say it is no big deal is a stretch. .

clueless


The US Supreme Court has declared a total of 1,315 laws (as of 2002, the most recent year for which statistics are available; the database may be updated in 2012) unconstitutional using the process of judicial review.

The first time the Court declared a federal law unconstitutional was in Chief Justice John Marshall's opinion for Marbury v. Madison, 5 US 137 (1803), in which he asserted Section 13 of the Judiciary Act of 1789 was unconstitutional because it extended to the Supreme Court an act of original jurisdiction not explicitly granted by the Constitution.

[zimmy]

Originally Posted by RIJIMMY

clueless


The US Supreme Court has declared a total of 1,315 laws (as of 2002, the most recent year for which statistics are available; the database may be updated in 2012) unconstitutional using the process of judicial review.

I am suprised by the clueless comment from you.
Do you know what that is a percent of all the laws ever brought up for consideration? They receive 10,000 petitions per year. You do the math.