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Interesting grounds, WH. I wonder, however, if the seamen medical insurance regs were more along the lines of worker regulation? Much like OSHA today?
Nor did they fight individual health insurance mandates:
http://www.tnr.com/article/politics/...dable-care-actThe framers, challengers have claimed, thought a cons utional 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 cons utional grounds. Presumably one would have done so if there was some unstated original understanding that such federal mandates were uncons utional. Moreover, no one thought these past purchase mandates were problematic enough to challenge legally.
Interesting grounds, WH. I wonder, however, if the seamen medical insurance regs were more along the lines of worker regulation? Much like OSHA today?
that's a good question
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.
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.
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?
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.
"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.
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 cons utional 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.
Barry's running a re-election campaign, not parading in a beauty contest before SCOTUS.
Do you think Alito and Scalia would twist their legal reasoning just to show up Obama?
"Alito and Scalia would twist their legal reasoning just to show up Obama?"
of course. They are UCA/VRWC shills and hacks.
Doesn't the cons ution have a specific passage dealing with maritime laws? I don't remember much at all about this, but it might be the difference.
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.
^^^^In other words, yup.
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 cir spect (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?
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?
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...
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.
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 en ies 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.
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.
You owe him a box of wine
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