Did Obama Forget Marbury v. Madison?

[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 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.

Agreed. My point was simply in reference to the cons utionality of the Militia Act. No one bothered to fight it so the Supreme Court did not rule on its cons utionality. Here, unlike the Militia Act, you have a party or parties raising the cons utionality 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 cons utional 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 cons utional scholar, he is the president and he certainly has the right to interpret the cons ution 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 cons utional understanding than all posters on this forum.

Just because I disagree with ACA, does not mean that it is uncons ional. 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 cons utionality 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 cons utional understanding than all posters on this forum.

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

Because the common reader is not an expert on the cons ution. Lets be realistic here, I would argue that most people on here could not tell me which article of the cons ution 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 cons ion 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 cons utionality of a law, makes the law uncons utional. 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 uncons utional to the common reader?

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

[Wild Cobra]

Because the common reader is not an expert on the cons ution. Lets be realistic here, I would argue that most people on here could not tell me which article of the cons ution 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 cons ion 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 cons utionality of a law, makes the law uncons utional. 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]

[FromWayDowntown]

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

Understood and agreed.

[ElNono]

IMO, Obama is well aware of the capacity of the SCOTUS to evaluate the cons utionality 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 cons utional matters?

[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 with 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 uncons utional to the common reader?

Which aspect of the law is clearly uncons utional?

[FromWayDowntown]

Which aspect of the law is clearly uncons utional?

The part that's uncons utional. 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...#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 uncons utional 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 uncons utional, specifically referencing Mr. Obama’s comments yesterday about judges being an “unelected group of people.”

http://thinkprogress.org/justice/201...supreme-court/

[boutons_deux]

...

[ElNono]

Which aspect of the law is clearly uncons utional?

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...#ixzz1r1FyYYi2

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

Activist judges!

[FuzzyLumpkins]

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 cons utional 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 subs ute 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...itmo-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://volokh.com/2012/04/02/preside...-cons ution/

[Winehole23]

dp

[FromWayDowntown]

http://volokh.com/2012/04/02/preside...-cons ution/

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 uncons utional because it is unpopular, the notion that an enactment of Congress is unassailable as the act of an elected political body is an hetical 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 cons ution 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.