Did Obama Forget Marbury v. Madison?

[DarrinS]

http://www.huffingtonpost.com/greta-van-susteren/oh-my-did-president-obama_b_1398155.html





Tune in to On the Record at 10pm tonight... if we have time, I am going to discuss this.

Every law school -- yes, even Harvard Law School -- teaches the landmark case Marbury v. Madison. It was decided in 1803 (yes, 1803!). You read it your first year in law school.

The case stands for the proposition that the Supreme Court has the power to review statutes passed by Congress to determine if constitutional or not.

Here is what President Obama said today:


I would just remind conservative commentators that for years what we've heard is the biggest problem on the bench was judicial activism or a lack of judicial restraint that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example.

And here's more from the Associated Press:


President Barack Obama says he remains confident that the health care law approved during his administration will be upheld by the U.S. Supreme Court.
Obama says: "It's constitutional."

Obama says the health care law was passed by a democratically elected Congress and that he does not think "unelected" members of the Supreme Court should overturn the legislation.

He said Monday the law touches upon economic, legal and human concerns, and he hopes "that's not forgotten in the political debate."

Last week, the health care law faced skepticism from conservative justices during three days of oral arguments, raising questions over whether the president's signature accomplishment will remain intact.


According to Marbury v. Madison, the Supreme Court has the power to review the constitutionality of the health care law (and any other law). So do not be disturbed by them reviewing the health care law. That IS their job.

What may disturb you is that not one member of Congress READ the bill before voting for it... and the president sure didn't read it before he SIGNED it.

But, to get to the president's point about 'unelected officials' -- AND WHAT IS SCANDALOUS -- is that after the 2,700 page law was signed by the president, it got sent to HHS for them to create rules to implement. Those who are writing these rules -- and there are thousands of rules expected -- are not only NOT elected, we don't ever learn their names. They are simply government employees at the HHS with ENORMOUS power over your lives and you have zero say about it. You can't vote them out of office -- they aren't elected and you don't know their names! Yes, THAT is scandalous because they have so much power over your life. Congress -- our elected officials -- should write the rules. They are answerable to us.

We have discussed this On the Record at 10pm many times....

[clambake]

so what

[Winehole23]

Obama working the refs. It won't work, but might reappear as a theme in the campaign this fall -- unelected justices overturning the will of elected majorities.

Any Republican making this argument would be a high minded patriot, but when Obama does it he is either cynical or ignorant of US history.

[ChumpDumper]

No, he didn't forget it. He didn't say the court didn't have the right of review.

[clambake]

Any Republican making this argument would be a high minded patriot, but when Obama does it he is either cynical or ignorant of US history.

[Winehole23]

Just as he did when he lectured the justices about Citizens United, Obama plans to demagogue any Supreme Court ruling that is unfavorable to his health care program. The same president who holds Roe v. Wade inviolate, a decision that invalidated the laws of all 50 states on an issue no one had previously imagined to be under federal jurisdiction, will inveigh against judicial activism.


But Obama's cheering section also gives away the game when they lament that the Supreme Court has for the past 75 years allowed Congress, with the president's permission, to act as a national problem-solving machine without the Constitution getting in the way. What changed in the last 75 years? The Constitution or the composition of the courts? Raw political power, indeed.
http://spectator.org/archives/2012/04/03/obamas-preemptive-strike-on-th

[Winehole23]

I don't defend Citizen's United and I'm not altogether sure Antle does -- seems to me he was pointing out how principles are tailored to fit desired outcomes.

[Winehole23]

Obama's claim that overturning the ACA would be "unprecedented" is pure puffery -- acts of Congress have been found unconstitutional about 50 times in US history.

[2centsworth]

Obama said "it would be unprecedented for the Supreme Court to overturn a law democratically passed in congress"

I could just imagine if Palin said something like that,"stupid bitch" would fly out the mouths of libs.

[baseline bum]

Nah, Palin is an idiot c*nt tbh. Pretty ridiculous statement from Uncle Tom though.

[Spurminator]

It's election year pandering and it's maddening.

[Winehole23]

Cries from the right that the individual mandate is unprecedented also ignore inconvenient facts like the Militia Act of 1792, passed by the US Congress and signed by George Washington, that required all able bodied men of a certain age to purchase a musket and ammunition if they did not already possess them.

[elbamba]

Cries from the right that the individual mandate is unprecedented also ignore inconvenient facts like the Militia Act of 1972, passed by the US Congress and signed by George Washington, that required all able bodied men of a certain age to purchase a musket and ammunition if they did not already possess them.

I don't believe it was passed under the Commerce Clause Power. I could be wrong. I do not pretend to be a constitutional law scholar.

[elbamba]

1792?

[Winehole23]

edited

[Winehole23]

I don't believe it was passed under the Commerce Clause Power. I could be wrong. I do not pretend to be a constitutional law scholar.Sounds like you know a little more about it than I do, as usual. I'll see what I can find out.

[elbamba]

So it looks like the Militia Act of 1792 comes from Article 1 Section 8 of the constitution.

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; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

[elbamba]

From reading a few articles online, you are going to get those with a more conservative outlook to say the Militia Act is inapplicable. If you read the Dailykos of Huffington, you will find the opposite.

I could not find any case where the Militia Act was brought before the Supreme Court to rule on its Constitutionality. This is why I would disregard the argument. Remember that the court does not simply issue an order, a lawsuit must be filed and it needs to run the proper course. From what I could read, most rich people didn't care because they could afford to pay the fee and did not have to serve in the militia.

[Winehole23]

so then, relying upon an enumerated power, the government can compel citizens to buy something

[elbamba]

so then, relying upon an enumerated power, the government can compel citizens to buy something

I cannot cite to any reason you cannot make the argument. However, in this case, 29 states joined together to argue the law, as drafted, is unconstitutional.

Let me also add that there were later versions of the Militia Act adopted by congress. I do not know if those statues required people to purchase guns, bullets and whatever else was in the two versions of the 1792 Act. Of course, militas were dropped altogether in favor of more effective and efficient volunteer organizations. State National Guards.

Not that I can blame the government from backing away after the how poorly the state militias performed in 1812 and the Mexican War.

[CosmicCowboy]

so then, relying upon an enumerated power, the government can compel citizens to buy something

I think the justices made it pretty clear in their oral arguments that if Obama had just called it a tax instead of a penalty and made it high enough that it generated revenue that it would have been constitutional.

[FromWayDowntown]

However, in this case, 29 states joined together to argue the law, as drafted, is unconstitutional.

I'm not sure what difference that makes -- other than the possibility that other acts weren't even challenged. I've heard numerous majoritarian arguments against the ACA -- to be clear, I'm not suggesting here that you're making one; citing to the fact that many states have chosen to contest the law is one point made by those offering majoritarian arguments -- and none of them make much constitutional sense to me, particularly given the Constitution's generally counter-majoritarian nature.

The law is either a valid exercise of congressional power or it isn't; the extent to which the citizenry disagrees with the law itself is a matter to be resolved at the ballot box.

[Wild Cobra]

:lmao Citizens United being such a great decision

Corporations = People
Money = Speech
thus

Corporations can spend unlimited amounts of Money to influence elections.
(But people can't spend unlimited amounts of money to influence elections..because shucks, deys jess ordinary people after all)
So can the unions, so what's the difference?

[Wild Cobra]

It's election year pandering and it's maddening.
They only get away with it because there are enough stupid people who believe it.

[Wild Cobra]

I don't believe it was passed under the Commerce Clause Power. I could be wrong. I do not pretend to be a constitutional law scholar.
That's OK. Obama's not a constitutional scholar either. One small piece of addition doesn't count to be classed as a "scholar."

[elbamba]

I'm not sure what difference that makes -- other than the possibility that other acts weren't even challenged. I've heard numerous majoritarian arguments against the ACA -- to be clear, I'm not suggesting here that you're making one; citing to the fact that many states have chosen to contest the law is one point made by those offering majoritarian arguments -- and none of them make much constitutional sense to me, particularly given the Constitution's generally counter-majoritarian nature.

The law is either a valid exercise of congressional power or it isn't; the extent to which the citizenry disagrees with the law itself is a matter to be resolved at the ballot box.

Agreed. My point was simply in reference to the constitutionality of the Militia Act. No one bothered to fight it so the Supreme Court did not rule on its constitutionality. Here, unlike the Militia Act, you have a party or parties raising the constitutionality of the Act. Thats all.

In reference to the history. It is difficult to say how a court in 1792 would have ruled due to the fact that the court's power was sort of undefined until Marbury.

[elbamba]

That's OK. Obama's not a constitutional scholar either. One small piece of addition doesn't count to be classed as a "scholar."

I don't know that Obama considers himself a constitutional scholar, he is the president and he certainly has the right to interpret the constitution in the way he feels it should be interpreted.

I will say that between Obama and the lawyers on his staff, I am sure that they have more constitutional understanding than all posters on this forum.

Just because I disagree with ACA, does not mean that it is unconstitional. There are plenty of Supreme Court cases that I disagree with, that were held to be consitutional. I am sure you would disagree with the constitutionality of Roe v. Wade.

[Wild Cobra]

I will say that between Obama and the lawyers on his staff, I am sure that they have more constitutional understanding than all posters on this forum.

Perhaps, but why then did they pass and sign legislation that is clearly unconstitutional to the common reader?

[elbamba]

Let me just add that even though the Obama attorneys got hammered during the oral arguments, that should be very little indication of how the court will rule. Most cases are decided well before oral arguments.

[elbamba]

Perhaps, but why then did they pass and sign legislation that is clearly unconstitutional to the common reader?

Because the common reader is not an expert on the constitution. Lets be realistic here, I would argue that most people on here could not tell me which article of the constitution is applicable to which branch of government without looking it up on Google. The same would be said if I asked how many amendments are there to the constition or name the first five. In fact most people probably could not name the rights granted under the First Amendment without looking it up.

I don't believe that just because many if not all lay people who disagree with the constitutionality of a law, makes the law unconstitutional. I disagree with judges all the time. Anytime I have ever lost a case on summary judgment, I usually think the court got it wrong. . .and thats usually where it ends. With me thinking they got it wrong.

[FromWayDowntown]

Perhaps, but why then did they pass and sign legislation that is clearly unconstitutional to the common reader?

Do you (or some other, hypothetical common reader) claim to know more Constitutional Law than Stephen Breyer?

[Wild Cobra]

Because the common reader is not an expert on the constitution. Lets be realistic here, I would argue that most people on here could not tell me which article of the constitution is applicable to which branch of government without looking it up on Google. The same would be said if I asked how many amendments are there to the constition or name the first five. In fact most people probably could not name the rights granted under the First Amendment without looking it up.

I don't believe that just because many if not all lay people who disagree with the constitutionality of a law, makes the law unconstitutional. I disagree with judges all the time. Anytime I have ever lost a case on summary judgment, I usually think the court got it wrong. . .and thats usually where it ends. With me thinking they got it wrong.
My bad, of course you are correct. I keep forgetting at times that the common person, reader, etc. doesn't get the same quality education from high school as I did those decades back.

[ElNono]

:lol

[FromWayDowntown]

Agreed. My point was simply in reference to the constitutionality of the Militia Act. No one bothered to fight it so the Supreme Court did not rule on its constitutionality. Here, unlike the Militia Act, you have a party or parties raising the constitutionality of the Act. Thats all.

Understood and agreed.

[ElNono]

IMO, Obama is well aware of the capacity of the SCOTUS to evaluate the constitutionality of any given law. I'm fairly sure his diatribe is largely targeted to a different segment than the SCOTUS.

[ElNono]

My bad, of course you are correct. I keep forgetting at times that the common person, reader, etc. doesn't get the same quality education from high school as I did those decades back.

Are you implying you've expertise in constitutional matters? :lol

[boutons_deux]

When an ugly Repug troll, a mental and physical midget, says the individual insurance mandate will lead to forced broccoli purchases (mirrors the InSaneTorum "logic" of same sex marriage leading to bestiality), you know the Repug SCOTUS is less-than-junior- varsity team of VRWC-hand-picked shills, tools, fools.

Barry's gotta fight the VRWC shit with shit of his own. There is no high road when the Repug sewers are spewing non-stop.

He/Dems are also highlighting that the 100% Repug-endorsed Ryan budget evil will end Medicare.

[Mr. Peabody]

Perhaps, but why then did they pass and sign legislation that is clearly unconstitutional to the common reader?

Which aspect of the law is clearly unconstitutional?

[FromWayDowntown]

Which aspect of the law is clearly unconstitutional?

The part that's unconstitutional. Duh.

[elbamba]

A federal appeals court is striking back after President Obama cautioned the Supreme Court against overturning the health care overhaul and warned that such an act would be "unprecedented."

A three-judge panel for the 5th Circuit Court of Appeals on Tuesday ordered the Justice Department to explain by Thursday whether the administration believes judges have the power to strike down a federal law.

A source inside the courtroom, who did not want to be identified, confirmed the incident to Fox News.

A letter from the court instructs the Justice Department to provide an explanation of "no less than three pages, single spaced" by noon on Thursday.

Fox News' Shannon Bream contributed to this report.



Read more: http://www.foxnews.com/politics/2012/04/03/judges-order-justice-department-to-clarify-following-obama-remarks-on-health/#ixzz1r1FyYYi2

This just keeps getting better. Way to step up and get your name in the paper 5th Circuit.

[boutons_deux]

The United States Court of Appeals for the Fifth Circuit may be the most ideological court in the country. When the oil industry’s allies in Congress wanted to protect the industry from drilling lawsuits, they passed a bill trying to force those lawsuits into the reliably industry-friendly Fifth Circuit. When a high school cheerleader sued her school district after it made her cheer for her alleged rapist, the Fifth Circuit ordered the alleged rape victim to pay more than $40,000. When one of the court’s few progressives asked a series of probing questions to a prosecutor during a court hearing, Fifth Circuit Chief Judge Edith Jones yelled at him to “shut up” and asked him if he would like to leave the courtroom. Earlier today, however, the Fifth Circuit left the realm of mere ideology and leaped over the line into partisanship.

Immediately after a DOJ attorney took the podium today in an appeal of a lower court decision upholding a provision of the Affordable Care Act, Republican Judge Jerry Smith threw a tantrum:

[W]hen a lawyer for the Justice Department began arguing before the judges. Appeals Court Judge Jerry Smith immediately interrupted, asking if DOJ agreed that the judiciary could strike down an unconstitutional law. . . . Smith then became “very stern,” the source said, telling the lawyers arguing the case it was not clear to “many of us” whether the president believes such a right exists. The other two judges on the panel, Emilio Garza and Leslie Southwick–both Republican appointees–remained silent, the source said.

Smith, a Reagan appointee, went on to say that comments from the president and others in the Executive Branch indicate they believe judges don’t have the power to review laws and strike those that are unconstitutional, specifically referencing Mr. Obama’s comments yesterday about judges being an “unelected group of people.”

http://thinkprogress.org/justice/2012/04/03/457727/republican-fifth-circuit-pitches-a-partisan-tantrum-after-president-obama-speaks-out-about-supreme-court/

[boutons_deux]

...

[ElNono]

Which aspect of the law is clearly unconstitutional?

well, well, well... another guy that didn't pay attention in high school back in the day...

[ElNono]

A federal appeals court is striking back after President Obama cautioned the Supreme Court against overturning the health care overhaul and warned that such an act would be "unprecedented."

A three-judge panel for the 5th Circuit Court of Appeals on Tuesday ordered the Justice Department to explain by Thursday whether the administration believes judges have the power to strike down a federal law.

A source inside the courtroom, who did not want to be identified, confirmed the incident to Fox News.

A letter from the court instructs the Justice Department to provide an explanation of "no less than three pages, single spaced" by noon on Thursday.

Fox News' Shannon Bream contributed to this report.

Read more: http://www.foxnews.com/politics/2012/04/03/judges-order-justice-department-to-clarify-following-obama-remarks-on-health/#ixzz1r1FyYYi2

This just keeps getting better. Way to step up and get your name in the paper 5th Circuit.

Activist judges!

[FuzzyLumpkins]

:lmao Citizens United being such a great decision

Corporations = People
Money = Speech
thus

Corporations can spend unlimited amounts of Money to influence elections.
(But people can't spend unlimited amounts of money to influence elections..because shucks, deys jess ordinary people after all)

The words persons and person from the 14th amendment being expanded to groups has been in the books for a long long time.

money as a form of expression as well.

As it stands now it wouldn't be hard to link most of these superPACs to elected officials and prosecute but lo and behold the powers that be choose not to pursue.

I recommend anyone that actually wants change to vote third party from now until a third party gets national funding and standing in all of the various counties and precincts around teh country.

[Winehole23]

If the Court does end up striking down the mandate, this will be the second consecutive presidency in which the Supreme Court imposed significant limits on the primary agenda of the sitting President in ways that were unexpected based on precedents at the time the President acted. Last time around, it was President Bush and the War on Terror. The President relied on precedents like Johnson v. Eisentrager in setting up Gitmo. But when the Court was called on to review this key aspect of the President’s strategy for the War on Terror, the Court maneuvered around Eisentrager and imposed new limits on the executive branch in cases like Rasul v. Bush and Boumediene v. Bush.

The President’s opponents heralded the Court’s new decisions as the restoration of the rule of law and the application of profound constitutional principle. Meanwhile, the President’s allies condemned the decisions as the products of unbridled judicial activism from a political court. If the mandate gets struck down, we’ll get a replay with the politics reversed. Just substitute Obama for Bush, health care reform for the War on Terror, the individual mandate for Gitmo, and Wickard for Eisentrager.http://volokh.com/2012/04/03/more-on-the-obamacaregitmo-parallel/

[Winehole23]

It is certainly not “unprecedented” for the Court to overturn a law passed by “a democratically elected Congress.” The Court has done so 165 times, as of 2010. (See p. 201 of this Congressional Research Service report (http://www.gpo.gov/fdsys/pkg/GPO-CONAN-2010/content-detail.html).)http://volokh.com/2012/04/02/president-obama-versus-the-constitution/

[Winehole23]

dp

[FromWayDowntown]

http://volokh.com/2012/04/02/president-obama-versus-the-constitution/

I don't think this is really a disputable issue. Nor should it be. Just as one would be absolutely wrong to argue that the law is unconstitutional because it is unpopular, the notion that an enactment of Congress is unassailable as the act of an elected political body is antithetical to anyone who accepts the notion of judicial review. The President's argument is a cynical political statement much more than an assessment of the accepted powers of the Supreme Court of the United States (or any other Article III court, for that matter).

I will say, though, that the argument the President makes is a clear variation on the theme advanced by those who vacuously complain about judicial activism.

[CosmicCowboy]

The Presidents comments were not intended for the consumption of politically astute individuals that attempt to understand the constitution and separation of powers...they were cynically intended for the unfortunately vast under educated rabble that will take anything that President Obama says as unassailable fact. I really find that cynicism in his position reprehensible.

[CosmicCowboy]

The fact that the mainstream media didn't call him out on his ridiculous comments is even more reprehensible.

[FromWayDowntown]

The Presidents comments were not intended for the consumption of politically astute individuals that attempt to understand the constitution and separation of powers...they were cynically intended for the unfortunately vast under educated rabble that will take anything that President Obama says as unassailable fact. I really find that cynicism in his position reprehensible.

His adversaries for that position are equally cynical about the electorate to which they speak.

Frankly, most of what currently comprises the discourse in national politics -- and particularly Presidential politics -- takes an exceedingly dim view of the populous. And, frankly, the populous frequently justifies that view.

[CosmicCowboy]

agreed, unfortunately.

[Winehole23]

The fact that the mainstream media didn't call him out on his ridiculous comments is even more reprehensible.Wrong:

http://loyalopposition.blogs.nytimes.com/2012/04/03/the-president-fumbles-the-court-issue/
http://www.cnn.com/2012/04/03/opinion/presser-obama-supreme-court/index.html
http://www.washingtonpost.com/blogs/post-partisan/post/obamas-unsettling-attack-on-the-supreme-court/2012/04/02/gIQA4BXYrS_blog.html
http://ideas.time.com/2012/04/02/why-obama-shouldnt-declare-war-on-the-supreme-court/?xid=gonewsedit

and so on...

[Winehole23]

http://www.washingtonpost.com/opinions/the-supreme-courts-civics-lesson/2012/03/29/gIQASfdZjS_story.html
http://www.washingtonpost.com/opinions/mr-obama-tones-down-his-supreme-court-rhetoric/2012/04/03/gIQAC9fwtS_story.html
http://www.csmonitor.com/Commentary/the-monitors-view/2012/0403/Obama-s-swipe-at-the-Supreme-Court
http://www.foxnews.com/opinion/2012/04/03/when-it-comes-to-constitution-obama-cannot-lay-glove-on-supreme-court/
http://www.latimes.com/news/opinion/opinion-la/la-ol-president-obama-judicial-activism-threatens-obamacare-20120402,0,3097146.story

[FuzzyLumpkins]

The Presidents comments were not intended for the consumption of politically astute individuals that attempt to understand the constitution and separation of powers...they were cynically intended for the unfortunately vast under educated rabble that will take anything that President Obama says as unassailable fact. I really find that cynicism in his position reprehensible.

Spare me the uneducated tripe. You look at the constituents that make up the religious right and there are a whole lot of dumbfucks from arkansas to florida. Southern planters have been preying on that for centuries and those chickens have come to roost in the GOP.

[Jacob1983]

Why doesn't anyone grill Obama on this shit? He was against the mandate before he was for it. He's a bigger joke than Bush. At least with Bush, you knew what to expect.

[Winehole23]

Why doesn't anyone grill Obama on this shit? He was against the mandate before he was for it.Something similar can be said about Romney, so it's more or less a wash.

btw, is there something wrong with a politician changing his mind, or with doing what is possible instead of what is ideal?

[Wild Cobra]

Something similar can be said about Romney, so it's more or less a wash.

btw, is there something wrong with a politician changing his mind, or with doing what is possible instead of what is ideal?
States rights. Massachusetts had the right. The 10th amendment is one aspect.

[FuzzyLumpkins]

States rights. Massachusetts had the right. The 10th amendment is one aspect.

You think that statute is going to fail on the basis of federalism?

Perhaps you should look up Supreme Court cases involving the income tax and quit talking out of your ass about everything.

[Wild Cobra]

You think that statute is going to fail on the basis of federalism?

Perhaps you should look up Supreme Court cases involving the income tax and quit talking out of your ass about everything.
I didn't say that. I'm only pointing out one is a state law, the other isn't. Do you understand what "one aspect" means?

[101A]

The United States Court of Appeals for the Fifth Circuit may be the most ideological court in the country. When the oil industry’s allies in Congress wanted to protect the industry from drilling lawsuits, they passed a bill trying to force those lawsuits into the reliably industry-friendly Fifth Circuit. When a high school cheerleader sued her school district after it made her cheer for her alleged rapist, the Fifth Circuit ordered the alleged rape victim to pay more than $40,000. When one of the court’s few progressives asked a series of probing questions to a prosecutor during a court hearing, Fifth Circuit Chief Judge Edith Jones yelled at him to “shut up” and asked him if he would like to leave the courtroom. Earlier today, however, the Fifth Circuit left the realm of mere ideology and leaped over the line into partisanship.

Immediately after a DOJ attorney took the podium today in an appeal of a lower court decision upholding a provision of the Affordable Care Act, Republican Judge Jerry Smith threw a tantrum:

[W]hen a lawyer for the Justice Department began arguing before the judges. Appeals Court Judge Jerry Smith immediately interrupted, asking if DOJ agreed that the judiciary could strike down an unconstitutional law. . . . Smith then became “very stern,” the source said, telling the lawyers arguing the case it was not clear to “many of us” whether the president believes such a right exists. The other two judges on the panel, Emilio Garza and Leslie Southwick–both Republican appointees–remained silent, the source said.

Smith, a Reagan appointee, went on to say that comments from the president and others in the Executive Branch indicate they believe judges don’t have the power to review laws and strike those that are unconstitutional, specifically referencing Mr. Obama’s comments yesterday about judges being an “unelected group of people.”

http://thinkprogress.org/justice/2012/04/03/457727/republican-fifth-circuit-pitches-a-partisan-tantrum-after-president-obama-speaks-out-about-supreme-court/

Name drop:

Emilio read the scriptures at my wedding.

[boutons_deux]

The Presidents comments were not intended for the consumption of politically astute individuals that attempt to understand the constitution and separation of powers...they were cynically intended for the unfortunately vast under educated rabble that will take anything that President Obama says as unassailable fact. I really find that cynicism in his position reprehensible.

10s of Ms of your ignorant "low information" redstate bubba buddies will believe anything Fox Repug network, WND, hate radio, or SCOTUS right-wing extremists (broccoli !!!) spew on them.

btw, your predatory capitalist buddy Willard Gecko is LYING cynically, etch a sketch of the day, that Barry is causing high gas prices. bubbas believe that shit.

[CosmicCowboy]

Obama is so pissed about the possibility of those unelected judges messing with Obamacare he's appointing a new czar to look into the problem.

[DarrinS]

Obama is so pissed about the possibility of those unelected judges messing with Obamacare he's appointing a new czar to look into the problem.


But he has no problem with unelected czar, Kathleen Sebelius, running 1/6 of the US economy.

[boutons_deux]

"Kathleen Sebelius, running 1/6 of the US economy"

You Lie

and were there a Secretaries of HHS under in dubya's Reign of Error "running 1/6 of the US Economy"?

or do you trash only Dem and only women HHS secy?

[Winehole23]

http://www.forbes.com/sites/aroy/2012/02/07/the-tortuous-conservative-history-of-the-individual-mandate/

http://www.forbes.com/sites/aroy/2012/04/02/once-upon-a-time-liberals-hated-the-individual-mandate/

[Winehole23]

Even so, why were so many on the Right willing to embrace an idea that conservatives attack as unconstitutional today? How can the Heritage Foundation’s legal scholars attack an idea once championed by its health care analysts? One possibility is that the Heritage Foundation is simply more conservative, or more free market, than it used to be. Another is that the legal environment has changed dramatically. In 1994 it had been over 50 years since the Supreme Court had invaildated a federal law for exceeding the scope of the Commerce Clause. The Supreme Court’s decision in United States v. Lopez , striking down the Gun-Free School Zones Act, was not until 1995 — after the Clinton health care plan had been defeated and after the Republicans had retaken Congress, effectively ending the debate over health care reform. Prior to Lopez, it was simply assumed there were no meaningful limits on the federal government’s regulatory powers. After Lopez (and United States v. Morrison in 2000), that all changed. While the argument that the individual mandate exceeds the scope of federal power as interpreted by the courts is still difficult to make, it is no longer implausible as it was in 1994 (particularly for those of us (http://www.freep.com/article/20100328/OPINION02/3280434/-1/WEATHER0501/NO-Requirement-exceeds-powers-spelled-out-in-U.S.-Constitution) who believe Gonzales v. Raich was wrongly decided).


Of course it’s also fair to argue that many Republican office-holders and partisans are simply opportunistic, opposing ideas today they supported before merely to oppose the President. In many cases, I am sure this is true. Just witness Republican efforts to transform themselves into champions of Medicare, opposing any and all spending cuts. But just because this may be true of partisans and politicians, does not mean its true of those in the broader conservative and libertarian movements. Many conservative and libertarian voices were no less critical of the individual mandate when proposed by the Heritage Foundation or Mitt Romney than they are today.
http://volokh.com/2010/03/29/was-the-individual-mandate-a-republican-idea/

[FuzzyLumpkins]

I didn't say that. I'm only pointing out one is a state law, the other isn't. Do you understand what "one aspect" means?

I know exactly what that one aspect is. What is the one aspect? Oh yeah thats right: the tenth amendment. I get that you are clueless about even the generalities of Judicial Review but gmfb.

[ChumpDumper]

If Obama said the SCOTUS has never declared a law unconstitutional, then he's wrong and disingenuous. Nothing I've read indicates he forgot Marbury.

[TeyshaBlue]

If Obama said the SCOTUS has never declared a law unconstitutional, then he's wrong and disingenuous. Nothing I've read indicates he forgot Marbury.

He did seem to implicate that it would be "unprecedented", no?

[ChumpDumper]

He did seem to implicate that it would be "unprecedented", no?Yep.

[elbamba]

Attorney General Eric Holder assured a federal appeals court Thursday that the Obama administration believes judges have the authority to overturn federal laws, after President Obama's comments earlier this week raised concerns from the bench about his view of judicial power.

Holder, in a three-page letter to the 5th Circuit Court of Appeals, said "the power of the courts to review the constitutionality of legislation is beyond dispute," though it should only be exercised in "appropriate cases."


The response capped an unusual dispute between the co-equal branches of government, one which has since reverberated on the campaign trail and beyond. Senate Republican Leader Mitch McConnell, in prepared remarks for a speech Thursday afternoon, told Obama to "back off" and "let the court do its work."

Obama originally said it would be "unprecedented" for the Supreme Court to overturn the federal health care overhaul, following its three-day review of the law last week. Administration officials have insisted all along that the president was not making a broad statement -- and was rather referring only to cases pertaining to the Commerce Clause and dealing with matters of the national economy.

Holder backed up the president's remarks in his letter to the appeals court Thursday. While saying the court has the right to review laws, he cited prior opinions that acts of Congress are "presumptively constitutional" and said the executive branch has "often urged courts to respect the legislative judgments of Congress."

He wrote that the "principles of deference are fully applicable when Congress legislates in the commercial sphere," calling Obama's comments "fully consistent" with the principles in the letter.

The fallout from the president's comments, though, is likely to drag on, with the presidential general election campaign on the horizon -- and a Supreme Court decision likely to land in the middle of it.

Holder already previewed what his response would be on Wednesday, saying the courts have "final say."

The letter comes after a three-judge panel for the 5th Circuit Court of Appeals on Tuesday ordered the Justice Department to explain its position by Thursday.

White House Press Secretary Jay Carney has continued to defend the president's remarks -- sparring at length with reporters at Wednesday's press briefing.

Carney has argued that there's no dispute from the administration regarding the courts' authority to strike down laws. He says the president was instead referring specifically to the traditional deference the court has shown Congress when it comes to laws addressing challenges to the economy -- such as health care.

"What he did was make an unremarkable observation about 80 years of Supreme Court history," Carney said Wednesday. He went on to say, "It's the reverse of intimidation."

House Speaker John Boehner's office later cited cases over the past two decades where the Supreme Court overturned federal laws because they exceeded limitations under the Commerce Clause -- which is at the heart of the health care case.

An administration official, though, noted that those cases did not deal with major economic regulation as the health care law does.

Though Carney says the president did not misspeak when he discussed the case on Monday, Obama was not quite so specific.

"I'm confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress," Obama said on Monday. "And I'd just remind conservative commentators that for years what we've heard is the biggest problem on the bench was judicial activism or a lack of judicial restraint, that an unelected 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."

Obama reiterated his stance on Tuesday, saying the court has traditionally shown "deference" to Congress and that "the burden is on those who would overturn a law like this."

On the 5th Circuit Court of Appeals, a justice on Tuesday chided the administration for what he said was being perceived as a "challenge" to judicial authority -- referring directly to Obama's latest comments about the Supreme Court case.

"That has troubled a number of people who have read it as somehow a challenge to the federal courts or to their authority," Judge Jerry Smith said. "And that's not a small matter."

Smith ordered an explanation of no less than three pages by noon local time on Thursday.

All three judges on the panel are Republican appointees.


Read more: http://www.foxnews.com/politics/2012/04/05/obamas-supreme-court-comments-become-political-football-as-justice-preps/#ixzz1rBpzDy6U

[boutons_deux]

"He was against the mandate before he was for it. "

All the Repug mucky mucks in 1993 were strongly for a personal insurance mandate in opposition to Hillarycare. Now their hobbyhorse is "unconstitutional".

[boutons_deux]

"being perceived as a "challenge" to judicial authority"

Exactly, the judicial is not omnipotent nor free from checks and balances, so suck on it, judge.

[Winehole23]

Agreed. My point was simply in reference to the constitutionality of the Militia Act. No one bothered to fight it so the Supreme Court did not rule on its constitutionality. Here, unlike the Militia Act, you have a party or parties raising the constitutionality of the Act. Thats all.Nor did they fight individual health insurance mandates:


The framers, challengers have claimed, thought a constitutional ban on purchase mandates was too “obvious” to mention. Their core basis for this claim is that purchase mandates are unprecedented, which they say would not be the case if it was understood this power existed. But there’s a major problem with this line of argument: It just isn’t true.


The founding fathers, it turns out, passed several mandates of their own. In 1790, the very first Congress—which incidentally included 20 framers—passed a law that included a mandate: namely, a requirement that ship owners buy medical insurance for their seamen. This law was then signed by another framer: President George Washington. That’s right, the father of our country had no difficulty imposing a health insurance mandate....


Six years later, in 1798, Congress addressed the problem that the employer mandate to buy medical insurance for seamen covered drugs and physician services but not hospital stays. And you know what this Congress, with five framers serving in it, did? It enacted a federal law requiring the seamen to buy hospital insurance for themselves. That’s right, Congress enacted an individual mandate requiring the purchase of health insurance. And this act was signed by another framer, President John Adams.


Not only did most framers support these federal mandates to buy firearms and health insurance, but there is no evidence that any of the few framers who voted against these mandates ever objected on constitutional grounds. Presumably one would have done so if there was some unstated original understanding that such federal mandates were unconstitutional. Moreover, no one thought these past purchase mandates were problematic enough to challenge legally.
http://www.tnr.com/article/politics/102620/individual-mandate-history-affordable-care-act

[TeyshaBlue]

Interesting grounds, WH. I wonder, however, if the seamen medical insurance regs were more along the lines of worker regulation? Much like OSHA today?

[Winehole23]

that's a good question

[boutons_deux]

Were any of the mandates to buy firearms and seamen's health insurance mentioned in the SCOTUS hearing?

We'll see if Roberts "calls ball and strikes" or whether he and his extremist/VRWC accomplices re-write rules of the game.

[EVAY]

You know, I think that Obama knows about Marbury v. Madison and doesn't intellectually question the SCOTUS' ability to review legislation. I think that his comment ('unprecedented') was a poor choice of words that represented hyperbole for a campaign-style audience...and that he wishes he had never said.

Having said that myself, I can hardly believe the stupidity of a sitting president taking on the SCOTUS in a public forum when he HAS to know that the egos of the Supremes would be enough to make them vote against him if they can find any reason to do so.

I believe that he decided that the SCOTUS was going to battle him from the minute that Roberts (in a supreme [no pun intended] act of egotism) tried to administer the oath of office to him from memory and muffed it while (seemingly) emphasizing his middle name. Obama was clearly pissed at that, and the need to repeat the process the next day.

But then in the State of the Union he publicly took on a SCOTUS decision that was written by Kennedy (I believe), the one guy who could make the court rule in his favor.

For a guy who famously declares himself to be non-confrontational, he has totally mismanaged the relationship with SCOTUS, IMO.

[Winehole23]

For a guy who famously declares himself to be non-confrontational, he has totally mismanaged the relationship with SCOTUS, IMO.other than this comment, how so?

[EVAY]

other than this comment, how so?

You mean, other than the public comment in the State of the Union and the comment in the public forum about a case before the justices at the moment? How many times does it take for a president to publicly challenge the SCOTUS before it becomes a pattern of mismanagement?

I don't know of any public comments that he has made in favor of the SCOTUS.

Perhaps I am simply unaware? Are you aware of some public comments that would offset the ones I mentioned?

[Winehole23]

You mean, other than the public comment in the State of the Union and the comment in the public forum about a case before the justices at the moment? How many times does it take for a president to publicly challenge the SCOTUS before it becomes a pattern of mismanagement?

I don't know of any public comments that he has made in favor of the SCOTUS.

Perhaps I am simply unaware? Are you aware of some public comments that would offset the ones I mentioned?Not as I know of. Just wondering how extensive the mismanagement was.

I tend to doubt what the President says much influences the SCOTUS one way or the other in its rulings, but like you suggested, challenging the legal probity of the judicial branch can hardly be helpful...except maybe as a way to massage public perceptions of an adverse outcome for the ACA.

[boutons_deux]

"I don't know of any public comments that he has made in favor of the SCOTUS."

He's checking and balancing, not running a popularity contest.

SCOTUS has been packed with right-wing/UCA/VRWC/anti-Human-American extremists. No harm in Barry being in opposition and in agreement with 10Ms of Americans who feel the same way.

[EVAY]

Not as I know of. Just wondering how extensive the mismanagement was.

I tend to doubt what the President says much influences the SCOTUS one way or the other in its rulings, but like you suggested, challenging the legal probity of the judicial branch can hardly be helpful...except maybe as a way to massage public perceptions of an adverse outcome for the ACA.

With the composition of the SCOTUS as it is today, I respectfully disagree with your doubting the influence. I think that Scalia and Alito are two of the biggest egos and most sensitive to perceived slights that I have seen in the last 30 years. Roberts has a much smoother public persona, but I think he is likewise extremely sensitive to the 'image' of the Court, e.g., removing the Court members from the State of the Union addresses after Obama took them on in the first one he gave.

I think this has been a fractious relationship since the Inauguration and I think all of the egos are totally fragile at this point. Which is why I consider it so idiotic for Obama to have taken them on. I happen to be in favor of some version of the health care law. Not all of it, but some of it. And I don't think that Obama did any good for the chances of finding it constitutional with his comments.

Of course you are right, imo, about the effort at 'massaging' public opinion about the potential negative outcome. But the fact that it would be widely reported was a guarantee that the court would hear of it, as well.

The thing that I think was really silly was the reaction of some of the right wing that Obama was 'bullying' the court. As if this court could be bullied by ANYONE, particularly a president they have already shown contempt for.

[boutons_deux]

Barry's running a re-election campaign, not parading in a beauty contest before SCOTUS.

[Winehole23]

With the composition of the SCOTUS as it is today, I respectfully disagree with your doubting the influence. I think that Scalia and Alito are two of the biggest egos and most sensitive to perceived slights that I have seen in the last 30 years.Do you think Alito and Scalia would twist their legal reasoning just to show up Obama?

[boutons_deux]

"Alito and Scalia would twist their legal reasoning just to show up Obama?"

of course. They are UCA/VRWC shills and hacks.

[Wild Cobra]

Nor did they fight individual health insurance mandates:

http://www.tnr.com/article/politics/102620/individual-mandate-history-affordable-care-act

Doesn't the constitution have a specific passage dealing with maritime laws? I don't remember much at all about this, but it might be the difference.

[EVAY]

Do you think Alito and Scalia would twist their legal reasoning just to show up Obama?

i think their legal reasoning is already screwed up, and I think Scalia is as partisan in his own way as Breyer is in his.

[EVAY]

^^^^In other words, yup.

[FromWayDowntown]

i think their legal reasoning is already screwed up, and I think Scalia is as partisan in his own way as Breyer is in his.

That concept is the most fascinating part of this hubbub to me.

Had Obama simply said that the Court would be engaging in judicial activism if it struck down this law, he would have been making almost exactly the same point -- that courts should be circumspect (or even altogether reluctant) about striking down the enactments of popularly elected bodies -- while using the rhetorical term that conservatives have chosen for years.

It's ironic to hear the debate flip now -- to hear conservatives speak of the virtues of the very sort of judicial review they detest -- and to hear liberals talk about the need for judicial restraint.

I've long argued that the debate about this topic has absolutely no philosophical mooring and is dependent entirely upon the extent to which one approves of or dislikes the outcome of a given case. This would just seem to be further proof of that.

[Wild Cobra]

That concept is the most fascinating part of this hubbub to me.

Had Obama simply said that the Court would be engaging in judicial activism if it struck down this law, he would have been making almost exactly the same point -- that courts should be circumspect (or even altogether reluctant) about striking down the enactments of popularly elected bodies -- while using the rhetorical term that conservatives have chosen for years.

It's ironic to hear the debate flip now -- to hear conservatives speak of the virtues of the very sort of judicial review they detest -- and to hear liberals talk about the need for judicial restraint.

I've long argued that the debate about this topic has absolutely no philosophical mooring and is dependent entirely upon the extent to which one approves of or dislikes the outcome of a given case. This would just seem to be further proof of that.
I think the problem comes when there is such a split like the 5:4 decisions, and when there is no clear cut reason to the public. As much as we would all like a perfect court system, it will never happen. When deci9sions seem based on ideological lines, there will always bee the conclusion that the judges all have their activist ideals.

Shouldn't a reasonable decision be at 7:2 or better?

[Winehole23]

^^^^In other words, yup.In other words, you basically agree with Obama wrt the politicization of legal reasoning, but castigate him for expressing it directly -- being impolitic with the truth as he and you see it, no?

[Winehole23]

That concept is the most fascinating part of this hubbub to me.

Had Obama simply said that the Court would be engaging in judicial activism if it struck down this law, he would have been making almost exactly the same point -- that courts should be circumspect (or even altogether reluctant) about striking down the enactments of popularly elected bodies -- while using the rhetorical term that conservatives have chosen for years.

It's ironic to hear the debate flip now -- to hear conservatives speak of the virtues of the very sort of judicial review they detest -- and to hear liberals talk about the need for judicial restraint.

I've long argued that the debate about this topic has absolutely no philosophical mooring and is dependent entirely upon the extent to which one approves of or dislikes the outcome of a given case. This would just seem to be further proof of that.People reason backwards from the outcome and assume judges are similarly outcome oriented.

No doubt this sometimes happens, but I tend to think judges take legal reasoning a bit more seriously than that...perhaps this makes me naive, but I think most judges really do care about getting it right. In the case of Scalia, Raich definitely raises the issue of consistency wrt to originalism, but on the other hand, I'm not sure I like judges who prize doctrinal consistency over doing justice as they see it, even if I happen to disagree with the result...

[EVAY]

In other words, you basically agree with Obama wrt the politicization of legal reasoning, but castigate him for expressing it directly -- being impolitic with the truth as he and you see it, no?

Precisely. It is idiotic politically, to me, for him to say what he did because I believe it reinforces a tendency already there for folks like Scalia and Alito to
look for legal rationales to defend the supremacy of the court in determining whether or not congress had the authority to enact a law that their political persuasion finds unpalatable.

[EVAY]

People reason backwards from the outcome and assume judges are similarly outcome oriented.

No doubt this sometimes happens, but I tend to think judges take legal reasoning a bit more seriously than that...perhaps this makes me naive, but I think most judges really do care about getting it right. In the case of Scalia, Raich definitely raises the issue of consistency wrt to originalism, but on the other hand, I'm not sure I like judges who prize doctrinal consistency over doing justice as they see it, even if I happen to disagree with the result...

I plead not guilty to the crime of reasoning backwards from an outcome of this SCOTUS to assuming anything. For example, the case several years back that supported a case of imminent domain (was it New Jersey? I can't remember) over a home owner that was, to me, in direct conflict with the 4th amendment (and no, I don't question the normal application of imminent domain...this case had some particular characteristics that made the ruling egregious). I was floored by the decision. I (correctly) assumed that the 'liberal' judges would uphold the imminent domain (and they did) because they are more comfortable with the 'government intervention for the greater good' theory, but several of the 'conservative' judges agreed also, on the basis that government should indeed intervene to help commerce. So I became persuaded, based on that, that this conservative court was more prone to government intervention than previous 'conservative' courts.

There have been other cases since then ( and I am not a lawyer and can't remember things like case names, etc.) that convinced me that this court is not at all opposed to government intervention when it enables corporations or governmental entities encroaching on personal rights and freedoms.

But based on the questions and tone of the oral arguments in this case, I expect the court to rule that congress overstepped and cannot force the restriction regarding the individual mandate. Because they don't like it...not because it is any more intrusive into personal freedoms than anything else they have ruled on over the years. If they do that, I hope they strike the entire law and we have to start over, because the country can't afford the law without the mandate being in there.

Yes, I do believe that you are a bit naive on this one issue. I don't attribute mal-intent to the justices...I attribute egoism and normal human preferences coloring judgement.

[Winehole23]

For example, the case several years back that supported a case of imminent domain (was it New Jersey? I can't remember) over a home owner that was, to me, in direct conflict with the 4th amendment (and no, I don't question the normal application of imminent domain...this case had some particular characteristics that made the ruling egregious). I was floored by the decision.Kelo v City of New London...

[EVAY]

Kelo v City of New London...

Thank you so much!! Only after you said it could I remember it. I would never have remembered it on my own.

[spursncowboys]

You owe him a box of wine

[boutons_deux]

"they strike the entire law and we have to start over"

Repugs will block any more health care reform. It will probably be decades before national health care reform is passed.

The Repugs will not do anything to reduce the exorbitant health care prices. They will deny health care govt expenditures to sick, poor, disabled, young.

[Wild Cobra]

We should not forget:

fRdLpem-AAs

[Winehole23]

You owe him a box of wineAppreciate the sentiment, but my access to wine is more or less unhindered. I'm not wanting for wine, nor would I demand it as tribute for allegedly helpful bulletin board replies, so alas, I must decline your generous offer of someone else's generosity...

:lol:toast

[Winehole23]

Nothing against the box wine. Nothing at all.

Some of that's pretty good wine nowadays, the price point is good and it stays fresher longer in a vacuum sealed bag than it would in a bottle...

[boutons_deux]

We should not forget:

fRdLpem-AAs

St Ronnie was dumb fool, a wealthy tool for the VRWC.

for-profit, capitalist "medicine" is sucking Human-Americans dry ($15K+/year just for insurance for family of 4, projected at nearly $25K in 10 years), while "death panelling for profit" 10s of Ms.

American sheeple just bend over and take it.

But some don't, and many can't, so:

http://www.newyorker.com/talk/financial/2012/04/16/120416ta_talk_surowiecki

[spursncowboys]

Appreciate the sentiment, but my access to wine is more or less unhindered. I'm not wanting for wine, nor would I demand it as tribute for allegedly helpful bulletin board replies, so alas, I must decline your generous offer of someone else's generosity...

:lol:toast

:lol

[Winehole23]

interesting thread about "judicial supremacy", court-packing and how mass politics affects SCOTUS.

focus is on the aftermath of the Dred Scott decision.

1054749247717994496

[Spurtacular]

No, he didn't forget it. He didn't say the court didn't have the right of review.

He made the point that unelected judges should not overturn law. Try to keep up, 2012 pavlov.

[Pavlov]

He made the point that unelected judges should not overturn law. Try to keep up, 2012 pavlov.
lol no, derp.

You're wrong.

Again.

[Spurtacular]

lol no, derp.

You're wrong.

Again.

:lol sociopath truth

[Pavlov]

:lol sociopath truth:lol Obama said the law was constitutional therefore the SCOTUS shouldn't overturn it.

Did SCOTUS overturn it, derp?

Yes or no.

Tell the truth.

[spurraider21]

from the OP


Here is what President Obama said today:

I would just remind conservative commentators that for years what we've heard is the biggest problem on the bench was judicial activism or a lack of judicial restraint that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example.

he was absolutely right. the hypocrisy is mind boggling. the same people who whine about "activist judges" are the same ones who were cheerleading for SCOTUS to overturn obamacare.

barry didnt claim SCOTUS didn't have the authority to review law, he was shoving those people's own ideology back in their face

[Pavlov]

:lol at how indignant CC was about Black President over this.


The Presidents comments were not intended for the consumption of politically astute individuals that attempt to understand the constitution and separation of powers...they were cynically intended for the unfortunately vast under educated rabble that will take anything that President Obama says as unassailable fact. I really find that cynicism in his position reprehensible.

The fact that the mainstream media didn't call him out on his ridiculous comments is even more reprehensible.

The most he can say about Trump is Lookit all the tail he gets!

[Spurtacular]

:lol Obama said the law was constitutional therefore the SCOTUS shouldn't overturn it.

Did SCOTUS overturn it, derp?

Yes or no.

Tell the truth.

Giving one part of the argument doesn't negate the other part of the argument.

:lol Today's documented sociopath.

[Pavlov]

Giving one part of the argument doesn't negate the other part of the argument.:lol what are you even talking about?

Here's the quote again:

I would just remind conservative commentators that for years what we've heard is the biggest problem on the bench was judicial activism or a lack of judicial restraint that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example.

What are you saying is his argument, derp?

[boutons_deux]

"5th Circuit Court of Appeals"

the rigged, stuffed, hyperconservative 5th Circuit Court of Appeals ? dubya-douchebag Priscilla fucking Owen's court? LMFAO