Did Obama Forget Marbury v. Madison?

[DarrinS]

http://www.huffingtonpost.com/greta-...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 cons utional 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 cons uted 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 cons utional."

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 cons utionality 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 Cons ution getting in the way. What changed in the last 75 years? The Cons ution or the composition of the courts? Raw political power, indeed.

http://spectator.org/archives/2012/0...e-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 uncons utional 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 " 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 cons utional 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 cons utional 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 cons ution.

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 Cons utionality. 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 uncons utional.

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 cons utional.

[FromWayDowntown]

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

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 cons utional sense to me, particularly given the Cons ution'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]

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 cons utional law scholar.

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