This is even scarier

[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

[Jim in CT]

Spence, I'm still waiting...you said that we can't hold Obama accountable for spontaneous answers to questions asked, but yet you did just that with Palin. Why the double-standard?

I'm all ears...

[Jim in CT]

Originally Posted by Jim in CT

Spence, I'm still waiting...you said that we can't hold Obama accountable for spontaneous answers to questions asked, but yet you did just that with Palin. Why the double-standard?

I'm all ears...

Spence? Anything?