SCOTUS Update: No Decision on PPACA, Most Provisions of AZ Immigration Law Struck Down (Updated)

Monday, June 25, AD 2012

The Supreme Court’s decision on the individual mandate will be delivered on Thursday. Based on who has authored opinions thus far this term, it is highly likely that the majority opinion will be delivered by Chief Justice Roberts. Even if that is the case, that does not mean that the individual mandate is doomed.

Today the Court did deliver an opinion on the Arizona immigration law, striking down three of the four major provisions. The Court permitted the “show your papers” provision, though the language suggests that it must be applied narrowly. Justice Kennedy delivered the opinion of the Court. The case was decided 5-3, with Justice Kagan recusing herself. Justices Alito, Scalia, and Thomas dissented. The opinions can be found here.

The Court also ruled that juvenile convicts cannot be subject to life in prison without parole. As Shannen Coffiin quipped, next “look for the Court to decide that juvenile offenders cannot be sent to their room without possibility of their supper.” The decision is here.

In another case, the Court ruled that its Citizens United decision applies to a Montana state law.

All in all, today’s decisions remind us that, no matter how the Court rules on the individual mandate, the Court is still a bloody mess.

I hope to have further analysis of the Arizona case later today.

Update: Reading through the opinions now in the Arizona case, and I just want to note that Alito agreed with the majority in declaring Section 3 of the AZ law (which forbids the “willful failure to complete or carry an alien registration document”) to be preempted by federal law. Both Thomas and Scalia would have upheld all four sections of the law.

Update 2: And the fig leaf that the Court gave to the state of Arizona proved to be of little use:

The Obama administration said Monday it is suspending existing agreements with Arizona police over enforcement of federal immigration laws, and said it has issued a directive telling federal authorities to decline many of the calls reporting illegal immigrants that the Homeland Security Department may get from Arizona police.

Administration officials, speaking on condition they not be named, told reporters they expect to see an increase in the number of calls they get from Arizona police — but that won’t change President Obama’s decision to limit whom the government actually tries to detain and deport.

Shorter headline should be, “Obama to Arizona: Drop Dead.”

 

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3 Responses to SCOTUS Update: No Decision on PPACA, Most Provisions of AZ Immigration Law Struck Down (Updated)

  • “Obama to Arizona: Drop Dead.”

    Obama to all U S citizens–“Drop Dead.”

  • Getting desperate?
    The more he uses executive orders, the more despotic he becomes, the sooner he will be OUT.
    Can he be indicted for continuing to fail to carry out the law of the land and contradict the Constitution?

  • “Obama to Arizona: Drop Dead.”

    Obama to all U S citizens–”Drop Dead.”

    Isn’t that the point of Planned Parenthood and all that is the Democratic Party?

Sons of Cain: St. Michael, Knights of Longinus, and Bohemians

Saturday, May 26, AD 2012

Can you answer the Teaser Questions at the end?

When I asked my political science and history buff, numerical mechanics expert, Special Ops retired military officer husband to recommend his favorite author so I could read it, it was a wifely effort to show love, to get to know him better. He answered, “Tom Clancy,” and handed me Debt of Honor and Executive Orders, an overwhelming 2,500 page paperback brick stack. My eyes bugged out.

But hey, I’m committed, so I read Tom Clancy’s masterpiece tale, and my hesitation turned into enthusiasm. The technical world of national warfare, really the pitting of good and bad individual leaders against each other, was fascinating and caused me to rethink the meaning of pacifism. Through the characters, I developed an appreciation for the courage and humility required of good leaders. Tom Clancy is a master at teaching through storytelling because his novels are exhaustively researched, reality-based fiction. The two-part story (only part of a bigger series) centers around a terrorist attack in which a hijacked Boeing 747 is flown directly into the U.S. Capitol during a joint session of Congress, decapitating the government. It is interesting to note that the books were published four and six years before September 11, 2001. Many people wondered about the prophetic nature of the book because it turned out to be more real than anyone anticipated. Tom Clancy understands the mentality of his characters, deeply.

Reading Val Bianco’s novel, Sons of Cain, was kind of like that, except Mr. Bianco brings a spiritual fullness to his work that makes it eternally pertinent. It is not nearly as tedious as working through a Clancy military novel, but the progression of the story ushers the reader into a life-changing experience, beckoning a more thoughtful dive into current world events and what goes on the minds of those who cause them. It makes spiritual warfare tangible and present, yet with an inspiring catechetical quality. I no longer wonder how to think of angels and demons, and I can almost see the “spiritual space” in the battle of good and evil when I consider how and why certain events happen the way they do. Are there large and terrible demons with their claws dug deeply in the heads and abdomens of men, preying on their minds and souls, coercing them to malice and perceived power, even as it makes them feel sick? Think about it!

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16 Responses to Sons of Cain: St. Michael, Knights of Longinus, and Bohemians

  • “Watching him now, she understood that he had been protecting this bread and wine as much as he was her.” “Watching him now, she understood that he had been protecting the Body, Blood, Soul and Divinity of Jesus Christ, under the appearances of this bread and wine as much as he was her.” It is Jesus Christ Who gives us the power to command demons and their minions. It is Jesus Christ for Whom the Angels battle Satan.

  • Five: Thomas, Scalia, Roberts, Alito and Kennedy. Pope Leo XIII. The miracle of the Sun. “My God, My God, Why have You forsaken me?” Dismus. Longinus cast the spear into Jesus Christ’s side, and was converted by the Blood of Christ. Two. Individuals who forfeit their humanity for success.

  • Good writing, I mean of Stacy Trasancos

  • Kindle, $5, boom. Mine. Starting . . . now.

  • Very fun read. I enjoyed it and am looking forward to some more from Val Bianco.

  • Mary,

    “Watching him now, she understood that he had been protecting the Body, Blood, Soul and Divinity of Jesus Christ, under the appearances of this bread and wine as much as he was her.”

    AMEN!

    In the story at this point, the narrative is through the eyes of a young woman who is in the beginning stages of reverting back to her childhood faith. She has just been rescued by this priest and is amazed at his reverence for God’s gifts.

    Oh…I’d better not say too much. 😉

    Thank you, Mary!

  • Thank you, Stacy Trasancos: “Watching him now, she understood that he had been protecting this bread and wine as much as he was her.”
    “Watching him now, she understood that he had been protecting this bread and wine, Whom she would later come to realize is the Real Presence, as much as he was her. (or maybe more?) Calling Jesus bread and wine after consecration does not make sense to me. Let us leave it at that. OK?
    God bless you.
    Mary

  • Pingback: Holy Spirit Pentecost Modesty Sons of Cain Val Bianco Holy Ghost | The Pulpit
  • Well, Mary, if you read the entire Chapter, you will find that there is absolutely NO question about the True Presence. It is, in fact, celebrated throughout the entire novel. It is, after all, the absolute core of our faith. You did very well on the questions: Missed a SC Judge, Quite a few more Oct 13 events, missed a State on Physician Assited Suicide. Perfect on all the rest.

    SONS OF CAIN will receive the Catholic Writers Guild Seal of Approval in June, so if you ever decide to give it a look, please rest assured that it is faithful to Church teaching. Thank you for your input, Mary. God Bless you and I hope you have a nice weekend.

  • I must admit upfront that I did not read this article. However, the title of the book caught my attention and I comment strictly from a biblical exegesis point of view.

    If you follow the lineage in the early chapters of Genesis, you may notice that the line of Cain does not follow through. Biblically, we are not “Sons of Cain” but sons of Seth.

    Maybe symbolic Sons of Cain in our sinfulness and lack of respect for our brother, but I just thought I would take this opportunity to do a little Bible trivia.

  • Peter Trahan, why would you ever comment about something you are not educated on? Take 5 minutes and read the article. Any good Catholic knows we aren’t actually sons of Cain.

  • The last sentence in the last quote of the review — is in reference to the title.

    Oh, please!!! Don’t make me give away too much. Just read the book. It’s got lots of accurate and good trivia!

    There’s even a demon named Citereh. Anyone get that name??? 😀

  • “Heretic” spelled backwards.

    As interesting as this book seems, THAT particular bit seems cheesy as heck.

  • Kristin, Haha. OK. That was funny, sorry. 😀

  • Ha ha, Kristin, don’t knock it til you’ve tried it. If you decide to read the book, contact me and I’ll send you a copy. I promise, it is a lot of things, but “cheesy” is one adjective I’ve not heard yet. Thanks for your comment, though.

  • I downloaded the book and read it.

    It is, in many ways, a good read. I will likely read it again to get the full feel for what the author is trying to do. And to ensure that the criticisms (such as I have below) are valid.

    With that said, one of the difficult times I had with the novel was attempting to figure out the personal point of view from which it is written. Who is the narrator who is with the Pope in his vision, who has spiritual sight beyond the holy men in the book such that the narrator is fully aware and sightful of all good and evil presences in play at any time? In short, is the narrator claiming angelic sight or to be God?

    Although J.R.R. Tolkien and C.S. Lewis were great friends for many years, as I recall, one of Tolkien’s criticisms of the Screwtape Letters (ironically dedicated to Tolkien) was that it was far too involved “voicing” evil – basically, too far into trying to understand evil. At one moment in Sons of Cain, the author (rightly) notes the dangers of things like the ceremonies taking place in the woods – talking to gods is like opening the door to evil. However, isn’t trying to give evil a voice not unlike this in some way? Using one’s imagination to delve deeply into the nature and operation of evil?

    As Elrond noted in Lord of the Rings: “It is perilous to study too deeply the arts of the enemy, for good or for ill.” In that and many similar warnings, I think we hear the voice of Tolkien speaking, and I think it is a good consideration for authors and the rest of us as well.

The Left Suddenly Uncomfortable with Concept of Judicial Review

Wednesday, April 4, AD 2012

Don has covered President Obama’s not too subtle threat to the Court that it not dare strike down all or even part of Obamacare.  Yesterday he somewhat toned down his remarks, but still managed to step in it.

At an appearance this afternoon, a reporter asked Obama a question following up on yesterday’s comments: “Mr. President, you said yesterday that it would be ‘unprecedented’ for a Supreme Court to overturn laws passed by an elected Congress. But that is exactly what the court’s done during its entire existence. If the court were to overturn the individual mandate, what would you do, or propose to do, for the 30 million people who wouldn’t have health care after that ruling?”

Obama’s answer to the question was that he expects to win in court, and “as a consequence, we’re not spending a whole bunch of time planning for contingencies.” He went on to talk at some length about the “human element”–that is, people who would supposedly suffer in the absence of ObamaCare. Message: Obama cares, though not enough to spend “a whole bunch of time planning for contingencies.”

But the most interesting part of his answer was the beginning, in which he tried to walk back, or at least clarify, his statement from yesterday. He spoke slowly, with long pauses, giving the sense that he was speaking with great thought and precision: “Well, first of all, let me be very specific. Um [pause], we have not seen a court overturn [pause] a [pause] law that was passed [pause] by Congress on [pause] a [pause] economic issue, like health care, that I think most people would clearly consider commerce. A law like that has not been overturned [pause] at least since Lochner,right? So we’re going back to the ’30s, pre-New Deal.”

As James Taranto points out, this response is wrong on multiple levels.  The case that Obama cites in fact pre-dates the New Deal by a good thirty year.  Second, the full title of the case – Lochner vs. New York – tells us that this was a case involving state law, not federal legislation.  As Taranto further explains, there have been plenty of Supreme Court cases in which the high court struck down state laws, some dealing with economic matters.  And there of course have been plenty of cases where the Court has in fact declared federal statutes unconstitutional.  In fact two cases in the late 90s – US v. Lopez and US v. Morrison – directly implicated the commerce clause, and in both cases the Court rendered a 5-4 decision overturning acts of Congress which relied upon the commerce clause for their justification.

But other than that, I guess Obama was spot on.

The broader issue, other than Obama’s seeming ignorance of constitutional law, is that the left has suddenly decided that they don’t much care for this concept of judicial review.

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36 Responses to The Left Suddenly Uncomfortable with Concept of Judicial Review

  • Much of the Left is going through a collective melt down that is a pure joy to behold. They really did buy into the malarkey that Obama was going to be FDR II. Now that he has turned out to be, on his good days, Jimmy Carter II, they are left to rant against the Supreme Court to attempt to save the miserable ObamaCare, the sole accomplishment of the Obama administration, unless they consider an accomplishment the amassing in three years of the amount of debt it took the Bush administration eight years to run up.

  • I rarely disagree with Don (or Paul for that matter), but my take on Obama’s commentary differs. I don’t think he is registering any discomfort with the concept of judicial review. He is simply claiming that the Court should be deferential to the legislature rather than activist in its own understanding of its role. And he is pointing out that this is a conservative principle that should be embraced by a conservative Court, implying that to do otherwise would be hypocrisy. Of course, the real hypocrisy rests with Obama et al who normally have no problem with judicial activism trumping state or federal legislation that they find disagreeable.

    I think the claims that the administration is somehow suggesting that an adverse ruling by the Court would be invalid or illegitimate are over the top and largely just grandstanding attempts to score rhetorical points. When he suggests that the Court would be over-stepping its powers to strike down the mandate Obama is saying exactly the same thing that we conservative said, and quite correctly, with respect to the Court’s decision in Lawrence. We were making a claim on the merits, as is he. No one is suggesting that the Court is without the legal power to render a decision with which many will disagree and honestly believe is wrong and therefore an inappropriate exercise of authority.

    With respect to judicial activism, this case presents a clash of two conservative principles. First, courts should be uphold laws even if they disagree with them, as long as they are constitutional. In other words, courts should not confuse their policy preferences with constitutional boundaries. Second, courts should respect the fact that the Constitution allocates only limited powers to the federal government, with those unallocated (including general police powers) resting with the states, subject to the Bill of Rights. Opponents of Obamacare are relying on the second principle to trump the first. Obama and other proponents are citing the first principle as a tactic to convince the Court and the American public that the mandate is constitutional, even from a conservative perspective — nothing out of bounds about that really.

    Finally, I don’t think that Obama’s inference of hypocrisy misses the mark completely. The mandate issue is not an easy one. On the one hand, plainly it is an attempt to regulate interstate commerce. But doing so by requiring people to purchase a product whether they want to or not was almost certainly beyond the comprehension of the Framers and also without precedent. But nor is their precedent to the contrary. As odious as this legislation is to me, I do not consider its constitutionality an easy question. just because the Framers may not have envisioned an expansive federal government does not mean they didn’t give us the architecture to allow for it.

    Obama is a terrible President for a host of reasons. We hardly need to manufacture any phony ones — and I think this one really is phony.

  • Perhaps it’s not a direct refutation of the concept of judicial review (though in the case of Dowd, she is certainly implying as much). What Obama is doing is casting doubt on the legitimacy of the Court’s decision, and I suspect we’ll see a lot more of this in various corners on the left over the coming months. I do honestly think that his original comments were made in attempt to sway the Court. Plan B is to convince the public that the Court is usurping its legitimate authority.

    Do I put it beyond Obama to try and make an end-run around the Court? No. At least, there is greater than zero chance that he would try and pull an Andrew Jackson. I’m not saying it’s likely, but sadly there is a chance.

    As odious as this legislation is to me, I do not consider its constitutionality an easy question.

    I do, but we’ll have to agree to disagree on that question.

    We hardly need to manufacture any phony ones — and I think this one really is phony.

    I’m not sure it’s phony to point out that Obama is attempting – as usual – to demagogue an issue in order to cover his ass.

  • Obama’s minions are taking up the cudgels in support of his bullying of the Court. David R. Dow, Cullen Professor at the University of Houston Law Center, calls for the impeachment of Justices who vote against ObamaCare if they strike down ObamaCare.

    http://www.thedailybeast.com/articles/2012/04/03/impeach-the-supreme-court-justices-if-they-overturn-health-care-law.html

    What makes this hilarious is that Dow wrote a book called America’s Prophets: How Judicial Activism Makes America Great.

    http://www.amazon.com/Americas-Prophets-Judicial-Activism-America/dp/0313377081/ref=ntt_at_ep_dpt_4

    Mike, I have a huge amount of respect for you, as you know, but there is nothing phony about this issue. Obama knew precisely what he was doing when he picked this fight with the Court. This may well become the major issue this year, after the economy.

  • In 2008, it was “Hope and Change!”

    In 2012, it’s “Obey me!”

    They don’t know how to think. They only know what to think.

    Don,

    Plus, clueless Prof. Dow ain’t too smart. He apparently confused which SCOTUS impeachee he was ranting over.

    From an Instapundit commenter.

    “He’s not even writing about the right justice.

    “Samuel Chase is the justice who was impeached in 1805. Salmon Chase was the chief justice appointed by Abraham Lincoln in 1864.”

  • If they can make you buy health insurance, what else can they make you buy or make you do, or . . . ?

    The New York Sun: “Ex Parte Obama”

    “It’s been a long time since we’ve heard a presidential demarche as outrageous as President Obama’s warning to the Supreme Court not to overturn Obamacare. T he president made the remarks at a press conference with the leaders of Mexico and Canada. It was an attack on the court’s standing and even its integrity in a backhanded way that is typically Obamanian. For starters the president expressed confidence that the Court would “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.” . . .

    “It is outrageous enough that the president’s protest was inaccurate. What in the world is he talking about when he asserts the law was passed by “a strong majority of a democratically elected Congress”? T he Patient Protection and Affordable Health Care Act barely squeaked through the Congress. In the Senate it escaped a filibuster by but a hair. T he vote was so tight in the house — 219 to 212 — that the leadership went through byzantine maneuvers to get the measure to the president’s desk. No Republicans voted for it when it came up in the House, and the drive to repeal the measure began the day after Mr. Obama signed the measure.

    “It is the aspersions the President cast on the Supreme Court, though, that take the cake. We speak of the libel about the court being an “unelected group of people” who might “somehow overturn a duly constituted and passed law.” This libel was dealt with more than two centuries ago in the newspaper column known as 78 Federalist and written by Alexander Hamilton.”

  • For the record, Dowd is an idiot shill. Who cares what she thinks. Dow is also a shill, if not an idiot. He, like many college profs, doesn’t have a bone of academic integrity in him. It may be that these fools are doing Obama’s bidding, but I don’t think one can fairly tease that from the words that Obama has actually spoken. Obama is not attacking judicial review — he is asserting that his legislation is constitutional if considered under a conservative lens. It is not a silly argument, even if hypocritical. Moreover, while Obama failed to mention Lopez and Morrison those cases really don’t help opponents of Obamacare aside from the fact that they stand for the proposition that the commerce clause is not a blank check.

    Finally, regarding impeachment of judges for rendering disagreeable decisions, Dow’s position is silly beyond measure. The mandate question is unprecedented and the commerce clauses reach in that context cannot be easily discerned from the words. Unlike Paul, I can see merit in both arguments. Roe and progeny, however, not so. The Court just fabricated law to suit its policy preferences and in so doing truly did act outside the scope of its power. But even the most conservative jurists did not call for impeachment or governmental disobedience of the decision, although the case for such would at least be tenable. Professors like Dow are whores.

  • “Professors like Dow are whores.”

    Now that we agree on Mike! 🙂

  • Was the DOMA subject to “executive” judicial review when the DOJ, I believe, as ordered/requested by Mr. Obama publicly announced that it would no longer defend that piece of legislation passed by both houses of congress or was that merely an act in contempt of congress, which is ok when the executive branch has “issues” with legislation but is not ok when the, constituionally mandated, judicial branch has problems of its own with legislation it is required to review?

    Why has this man not been removed from office? Oops, I forgot, he is demagogue
    and they control the senate.

  • Speaking of lousy law professors, how bad must Obama have been?

  • Pinky, I can only imagine. The guy thinks Lochner was a commerce clause case involving the scope of Congress’s commerce clause powers. Yikes. What a dope.

  • Well, I certainly didn’t mean any disrespect. And I’m sure he’s an excellent law professor, when he’s in his comfort zone. But apparently making precise public statements about the most basic elements of Constitutional law is outside that zone. See, I’m not a lawyer, so I would’ve thought that ability was important. That shows how little us non-lawyers really understand.

  • Gee, where was Maureen Dowd after Roe V. Wade?

    AMDG,
    Janet

  • Rush suspects that Obama is playing dumb, to some extent, and is playing to the lowest common denominator. I suspect there is something to that. That said, yeesh, I pity any future lawyers trapped in a classroom with him.

  • Late in commenting. Just my typical hell fire and brimstone. I don’t expect there to be any justice on this earth.

    Every single one of us mortal human beings are going to be subject to Judicial Review. We will on that Great and Terrible Day be judged by the Supreme Justice Himself, and that judgment will be based on our deeds. Those who today call the murder of the unborn the right to choose, and the filth of homosexual sodomy civil rights will stand before the Great White Throne with no excuse, facing eye ball to eye ball the Almighty Himself. May God have mercy on their souls, and on ours for no one is exempt. God, being perfect Love, is absolute Justice, and He will NOT let the murder of the unborn or the filth of homosexual sodomy go unavenged.

    Enter by the narrow gate; for wide is the gate and broad is the way that leads to destruction, and there are many who go in by it. Because narrow is the gate and difficult is the way which leads to life, and there are few who find it. Matthew 7:13-14

  • The Patient Protection and Affordable Healthcare Act. It’s name is tenuous. The words “protection” and “affordable” are vague and subject to changes over time, meaning to say that coverage of what for whom is not set in stone. Since the government has no money to pay for anything, the administrators of the insurance can change and eventually deny coverage. There’s an issue in Massachusetts with limiting the dental procedures of MassHealth. And, he’s talking about the people, ‘human element’, that would suffer without this – call it an etch a sketch act because, I think, it applies more to the 2700 pgs. of HHS Admin (and not Gov. Romney). Considering the way this administration cannot budget after years on the job, I doubt that it would happen with health insurance.

  • From what I understand, Obama was not a Law professor, just a lecturer.

    “Obama is attempting – as usual – to demagogue an issue in order to cover his ass.”

    Yes, that’s his M.O., but although Barry is certainly a gifted demagogue, how do you get people angry because a law they never liked or approved of in the first place has been struck down? Two years ago, when this monstrosity was forced through Congress, I recall libs pooh-poohing the polls which showed Obamacare was despised by a majority of Americans. The conventional wisdom among leftists was that although the dumb American public (so inferior to those progressive Europeans) would initially resist the change, Old Silver Tongue would explain the goodness and necessity of the law so eloquently that our hard hearts would melt and we’d all be foursquare behind Obamacare by the time 2012 rolled around. Well, here it is, election year, and most Americans still think Obamacare stinks on ice. That wasn’t in the Dem script.

    Demagoging the issue will certainly motivate the Dem base. But the rest of us, who didn’t like the law then and don’t like it now? It’ll be a very tough sell, she said with a smile on her face.

  • Does anyone else think it’s ridiculously funny when Leftists whine about priests in ages past getting paid 10% tax which actually went to feeding people whereas now people have to pay something like 50% tax to the government and you don’t know what the hell most of it is funding. As far as health insurance goes if we had a monastary near every town and city the poor man could get free health care from monks. As far as I can tell Obama is a sneaky bastard who can’t be trusted as president, he is inconsiderate of the supreme court simply because of his acutely obvious overconfidence in his statements.

  • Someone compiled a list of why Obama can’t run on his record. Any other “firsts”?

    • First President to apply for college aid as a foreign student, then deny he was a foreigner.

    • First President to have a social security number from a state he has never lived in.

    • First President to preside over a cut to the credit-rating of the United States

    • First President to violate the War Powers Act. .

    • First President to be held in contempt of court for illegally obstructing oil drilling in the Gulf of Mexico .

    • First President to defy a Federal Judge’s court order to cease implementing the Health Care Reform Law.

    • First President to require all Americans to purchase a product from a third party.

    • First President to spend a trillion dollars on ‘shovel-ready’ jobs when there was no such thing as ‘shovel-ready’ jobs.

    • First President to abrogate bankruptcy law to turn over control of companies to his union supporters.

    • First President to by-pass Congress and implement the Dream Act through executive fiat. .

    • First President to order a secret amnesty program that stopped the deportation of illegal immigrants across the U.S. , including those with criminal convictions.

    • First President to demand a company hand over $20 billion to one of his political appointees.

    • First President to terminate America ’s ability to put a man in space.

    • First President to have a law signed by an auto-pen without being present.

    • First President to arbitrarily declare an existing law unconstitutional and refuse to enforce it.

    • First President to threaten insurance companies if they publicly spoke out on the reasons for their rate increases.

    • First President to tell a major manufacturing company in which state it is allowed to locate a factory.

    • First President to file lawsuits against the states he swore an oath to protect (AZ, WI, OH, IN).

    • First President to withdraw an existing coal permit that had been properly issued years ago.

    • First President to fire an inspector general of Ameri-corps for catching one of his friends in a corruption case.

    • First President to appoint 45 czars to replace elected officials in his office. .

    • First President to golf 73 separate times in his first two and a half years in office, 90 to date.

    • First President to hide his medical, educational and travel records.

    • First President to win a Nobel Peace Prize for doing NOTHING to earn it.

    • First President to go on multiple global ‘apology tours’.

    • First President to go on 17 lavish vacations, including date nights and Wednesday evening White House parties for his friends; paid for by the taxpayer.

    • First President to have 22 personal servants (taxpayer funded) for his wife.

    • First President to keep a dog trainer on retainer for $102,000 a year at taxpayer expense.

    • First President to assets the Azan (Islamic call to worship) is the most beautiful sound on earth.

    • First President to take a 17 day vacation.

  • Dow, Dowd, Holder, Obama, et al are children of Satan. They do their father’s bidding.

    They were never on the side of truth.

    There is no truth in them.

    They do what is natural to them. They lie.

    Their father is the father of all lies.

  • I’m confused. So what’s the big deal? Obama says that Lochner was the last time that the court struck down a legislative measure. But conservatives are saying “Ha! That was only state legislation, not federal legislation!!”. What’s the point? Obama is not wrong about it – and you’re all agreeing with him: Lochner was struck down regardless if it’s state or federal.

  • What’s the point? Obama is not wrong about it – and you’re all agreeing with him: Lochner was struck down regardless if it’s state or federal.

    Let’s see:

    He was wrong about it being federal legislation.
    He was wrong about the time period.
    He was wrong about the Court not having struck down major federal legislation since the New Deal era.

    So he was wrong about every single element, but somehow he was right?

    And the state/federal difference is not some minor distinction.

  • Has anyone put together a list of decisions that the average liberal supports where the Court struck down federal law? Roe, Griswold, and that Texas sodomy law were all cases where the Court overturned state law, yielding results that liberals wanted. I can’t think of any federal examples though.

  • Pinky,

    Off the top of my head, I would guess New York v. Clinton, which struck down the line item veto.

  • Pinky raises a very important point. Libs favor an expansive understanding of various “rights” hidden deep inside the creases of the constitution. Because these rights almost always serve to limit police powers and because police powers generally rest with the states, Libs tend to favor activist judges vis-a-vis state legislation. Because libs disfavor economic liberty and instead favor sweeping regulation of commerce, they support an expansive understanding of federal power via the commerce clause.

  • Wrong about the time period? The New Deal was from 1933 to 1936.
    Lochner v New York was from 1905.
    Obama said that it was pre-New Deal.

  • I just found a .pdf from the Government Printing Office listing Congressional acts that the Supreme Court overturned. Pretty interesting stuff. Congress keeps violating the commerce clause, and keeps getting called out for it. I also noticed that the Supreme Court really likes protecting obscenity and anything that can loosely be called free speech (such as flag burning).

  • Student – He said ’30’s, pre-New Deal.

  • What law cannot Congress pass that would not be legit by the lib interpretations of the “commerce clause”?

    Plus, Student’s right.

    Obama is never in error.

    Whatever he says is correct because it supports the agenda.

    For all such sons of Satan, the truth is that which serves their purposes.

    Obama is never wrong. He is ever lying.

  • Hey, I’m not saying that Obama’s never wrong.
    I was just about to comment that Zummo proved me wrong.

  • Has anyone put together a list of decisions that the average liberal supports where the Court struck down federal law?

    There was also United States v. Eichman where the Supreme Court struck down a federal statute against desecration of the US flag.
    http://en.wikipedia.org/wiki/United_States_v._Eichman

    Just to agree with Mike Petrik: when liberals fund expansive federal programs with tax dollars, it is difficult to show standing as a plantiff to bring suit.
    http://en.wikipedia.org/wiki/Standing_(law)#Taxpayer_standing

  • Thanks Joe Green for listing many of Obama’s presidental actions to date. The list gives me pause on this Holy Saturday. The impulse to drop to my knees and implore God’s Mercy upon this nation whose leadership is so corrupt and the hearts of the citizens so ignorant and apathetic is great. Many are like sheep without a Shepherd; unable to recognize His Voice which beckons them to follow Truth and to receive life in abundance. Pontificating about the interior motives of the Presidents’ heart is speculation and generally a useless waste of energy.

  • I’m not law savvy…. but what is the big deal with the Commerce Clause and why do people feel that the courts should not strike down legislation when it pertains to the commerce clause? I get what commerce is, but what is it that makes it such a big deal for courts to strike down laws that fall under that banner of Commerce Clause.

    I’m liberal, but if Obamacare is wrong then it’s wrong. I’ve spoke to friends who are also liberal and I’ll ask “why is it wrong for the courts to strike down Obamacare?” and I just get the response “because it falls under the Commerce Clause”. Then I will ask “what about the Commerce Clause prevents legislation related to that clause from being stuck down by a court” and the response will be “Courts just shouldn’t do that.”

    It makes no flippin’ sense to me. Please help

  • Student,
    Our constitution grants Congress only limited powers, and each law Congress enacts must come within the ambit of those powers. The constitution grants Congress to power to regulate commerce among the states. The question is whether Obamacare (particularly the mandate) comes within the ambit of that power or is outside it. If the former, then the legislation is within Congress’s power to enact and the Court should uphold it; if the latter, then the legislation is outside of Congress’s power and the Court should strike it down.

  • Thank you for that answer, Mike.

    So then if it would be the former the courts do indeed have no right to strike down that type of legislation.

  • Yes, exactly. What the Court must do is discern whether the power to regulate commerce among the states inludes the power to require citizens to purchase health insurance. If it concludes that it does, then it should uphold the law. The question is not an easy one in my view. While the constitution does not generally limit *state* legislative powers outside the Bill of Rights (which is why the Massachusetts insurance mandate is almost certainly constititional), there must be a warrant for Congressional legislation. Congress’s commerce clause power has been construed broadly by federal courts, but it is not without limit. The idea that this power can be used to require each citizen to purchase a product he may not want would be almost certainly regarded as unthinkable by the Framers; yet, the language employed in the commerce clause seems broad on its face, and just because the Framers may not have intended to grant Congress such sweeping power does not mean that it did not do so nonetheless. Words can have meaning, and therefore effect, outside their intent. Nonetheless, critics have a powerful point in noting that such a power to compel an affirmative act dramatically alters our historic understanding between the relationship between our supposedly limited federal government and its individual citizens. While it is that alteration that supplies the disturbing subtext, the precise legal question many be more mundane, such as does the power to regulate interstate commerce include the power to require a person to engage in commerce who wishes not to. This is interesting stuff and reasonable people can come out differently in my view, though I realize that most of my fellow conservative commentators disagree with me on that.

Hollow Victories

Wednesday, March 28, AD 2012

There is some excitement that oral arguments are going well for opponents of Obamacare.  Though oral arguments are not perfectly indicative of how the Supreme Court will vote in the end, there is some cause for guarded optimism.  That being said, even if the Court completely strikes down Obamacare, it will be something of a hollow victory.

Don’t get me wrong.  There is no other correct course of action for the Court to take than to strike down the individual mandate and thus effectively kill Obamacare.  It is one of those remarkable monstrosities that happens to be both bad policy and unconstitutional.  The problem is that something this monumental is essentially being decided on the whims of a single Justice.  How did we reach the point where our basic liberties come down to what Anthony Kennedy may have had for breakfast one day?

I don’t mean to be flip, but it feels like we’ve taken a very wrong turn somewhere along the line. 

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15 Responses to Hollow Victories

  • For those that support Romney, this election is about nothing other than putting an –R in the White House.

    Winning isn’t an end in itself. It is a means to an end. That’s precisely the point of the Supreme Court example.

    Reality is not always a pleasant thing to contemplate. But part of being conservative, I think, is a willingness to face up to reality even when it’s not pleasant. One may not like the prospect of having to choose between Romney and Obama in November, but that’s reality. Calvin Coolidge isn’t going to be on the ballot.

  • “How did we reach the point where our basic liberties come down to what Anthony Kennedy may have had for breakfast one day?”

    The weeping you hear is from the Founding Fathers in the next world.

  • Winning isn’t an end in itself. It is a means to an end. That’s precisely the point of the Supreme Court example.

    Thus demonstrating why you, and so many other Romney supporters, continue to miss the point.

  • “Calvin Coolidge isn’t going to be on the ballot.”

    Yeah, but the Mormon Richard Nixon probably will be. I’ll vote for him in preference to Obama, but other than Romney not being Obama, I’ll be hanged if I can think of anything else Romney has in his favor from a conservative point of view.

  • The Supremes don’t necessarily have the “last say.” If struck down, in part or in its entirety, Obamacare could still come back in another form as devised by Obama and a complaisant Congress. Also, given that hundreds of entities have been granted exemptions to the law, that language could be broadened to include certain individuals or small businesses, thus debunking the false notion that “everyone” must buy health care or face a stiff penalty. In short, the lawyers and politicians will find a way toward a “compromise” that will defuse the issue before November.

  • 3 points:

    (1) “… happens to be both bad policy and unconstitutional …”
    But you repeat yourself. If it’s unconstitutional, it is by definition, bad policy. 🙂

    (2) Whatever the faults of Anthony Kennedy (and you know my opinion on the man, and I am, to put it mildly, not a fan), he has throughout his career on the Court been fairly solid on 10th Amendment issues. Not that his swing-vote squishiness doesn’t give me some pause, but I’m not as worried about how he will vote on this issue as I will be when the Court is inevitably called upon to define same-sex “marriage” as a so-called “fundamental right”. I’m actually slightly more concerned how Roberts and Alito will vote.

    (3) And THIS is the REAL implication for the upcoming election. At this juncture, the judicial nomination argument is one of the key talking points Romney’s supporters are using to try to sway those like me who are going to be voting 3rd party this fall. Let’s suppose that it’s Roberts and/or Alito (in addition to or instead of Kennedy) that joins the 4 liberals to uphold ObamaCare. Suddenly, the “But we HAVE to vote for Romney to get conservative Justices” argument becomes moot. If either or both of the two most recent Supreme Court Justices that were appointed by a conservative GOP president with approval by big GOP majorities in the Senate can’t be counted on to vote against the constitutionality of ObamaCare, then the GOP will, and SHOULD, lose the judicial nomination argument in its favor for all eternity.

  • “then the GOP will, and SHOULD, lose the judicial nomination argument in its favor for all eternity.”

    Why Jay? Roberts and Alito from all intents appeared to be solid conservative nominees, and thus far they have voted that way. If they go rogue now we should hand over to the Democrats the Supreme Court for all eternity? That does not make any sense to me.

  • You make some very necessary points Mr. Zummo. I would simply add that the election of Barrack Obama is a reflection of us, our society, our governance, and our fondness for dependence (as opposed to liberty). The greater concern is whether we have reached the tip point. While many argue politics, to his credit Obama has advanced the statist agenda across the board.

  • Come on, “blackmail”? I haven’t heard anything like that. I mean, by those standards, someone could say that your raising doubt about Romney’s SCOTUS nominees is an attempt to blackmail Romney supporters into voting for Santorum. But that’d be nonsense, because you’re not blackmailing anyone; you’re trying to present your preferred candidate in the best possible light, which is a perfectly reasonable thing to do. Remember the time-honored truth that the Paulbots never seem to recall, that antagonism is rarely persuasive.

  • Pinky,

    I have the strike-through there and I thought that indicated that I used the word for humorous, exaggerated effect.

  • Yeah, I know, I’m just getting a bad taste in my mouth from all this. The article and some comments tended to lump all Romney supporters together as the enemy, a voting bloc composed entirely of RINO’s.

    Years back, volunteering for a campaign, I remember being told to never alienate anyone, because even if the voter wasn’t supporting your candidate, he could be on the fence about a half-dozen other races further down the ticket. It ticks me off to see assumptions of bad faith being made by supporters of all four candidates against supporters of their opponents. And to top it off, there’s near-complete agreement about the issues. Most Republican primary voters only disagree about which candidate would best promote a pro-life, low-tax, internationally secure agenda. They weight issues differently, and make different calculations about effectiveness, experience, and electability, but they agree on 90+% of the platform.

    Every party goes through this in the primaries, and by November I hope that heated words spoken in March will be forgotten. I’m just worried.

  • Don, the point I’m making is that if the GOP-nominated Justices can’t be counted on to strike down a monstrosity like ObamaCare, then the argument that we just HAVE to vote for Republicans because of the Supreme Court will no longer prove sufficient to justify voting for just any Republican, especially one like Mitt Romney.

    I mean, seriously. If even a majority of GOP nominees can’t be counted on when it comes to the REALLY BIG issues like abortion and ObamaCare, then there’s really not much left to justify conservative voters continuing to do what we’ve been doing.

  • I understand your argument Jay, but it still does not make any sense to me. We are going to have a Supreme Court and its rulings are going to have a vast impact on our lives. I see no reason to hand it over to the Democrats forever. Overall I have found the Republican justices appointed since Reagan far more congenial to my views than those appointed by the Democrats, to say the least. A Souter and a Kennedy are arguments for better screening of appointees, not an argument for having someone like Obama in the White House forever to keep making appointees like Breyer and Ginsburg until the rulings are always 9-0 in favor of treating the Constitution like toilet paper.

  • Don, I concede that a the GOP nominees are, on the whole, better than Democrat nominated judges. That’s not debateable. But, for the better part of 3 decades now, Supreme Court Justices have been trotted out as one of the, if not THE, main reasons to vote for the Republican nominee, regardless of whether that Republican nominee was one that was otherwise suitable.

    ALL I’m saying is that, yes, a Mitt Romney is likely, on the margins, to nominate better judges than Barack Obama. BUT if those judges are unlikely to do things like overrule Roe or strike down ObamaCare, then the argument holds MUCH LESS weight, and becomes not as strong an argument for voting for Mitt Romney.

    So, in the situation in which we find ourselves – a likely nominee for President that is wholly unacceptable to me, the argument that we just HAVE to vote for him because he will nominate judges who will … do what? Overturn Roe? Strike down ObamaCare? Again, it is a lot less compelling argument on behalf of the GOP nominee when the judges nominated, while better than what we might expect from the Dems, can’t be counted on when it comes to the BIG issues that are most important to me.

    Now, once again, my argument is only pertinent if there is a defection from, say, Roberts and/or Alito to uphold Obamacare; but if none of the GOP-nominated Justices (apart from the squish Kennedy) votes to uphold ObamaCare, then the issue of judges will actually strengthen Romney’s hand: “See, if we had more Justices like Scalia, Thomas, Roberts, and Alito, we could stop even MORE of this kind of big-government nonsense.”

  • I disagree with Paul’s assessment of the Commerce Clause. Words matter, and the words used to assign to Congress the power to regulate interstate commerce can easily be understood to be very broad in their application. Just because the Framers did not envision (or presumably favor) such broad application, does not mean they didn’t create the architecture that allowed for it (even if they didn’t mean to!). It is not ridiculous to maintain that Congress has the power to regulate the health care component of our national economy by creating a mandatory insurance system, which is not to say that I think that is the better argument — actually I don’t.

    I do favor a mandated insurance system, but only at the state level. It is necessary to prevent the free rider system we have today, where thousands of people choose to go without insurance knowing that the government (i.e, the taxpayers) will pay for their necessary care. That said, such a mandated system should cover only truly necessary care that is sufficiently expensive to warrant risk sharing (i.e., insurance). Optional care and routine care that is not so expensive that it cannot be budgeted should not be covered by mandated insurance.

    Insurance has its place in health care, but its current role is not rational. It is a by-product of a tax system that encourages employers to compete for employees by providing unnecessarily rich coverage, which leads to serious inefficiencies. The user is two steps (employer and provider) removed from the payor. Accordingly, most people use health care services more aggressively because they do not bear the lion’s share of the cost of such services in any perceptible way. If we removed the tax favored status of health insurance, it would de-couple from employment thereby allowing a more robust and mature market to develop for individuals (just like property, casualty, and life insurance); families would then purchase insurance that rationally meets their needs, which in most cases would be affordable high deductible policies that cover any necessary catastrophic care.

    A federal (not state) insurance mandate may well be unconstitional, but it is not necessarily bad policy if (i) designed to prevent free riders and (i) limited in coverage appropriate to insurance. Obamacare is not remotely so limited. It goes in exactly the wrong direction by expanding the role of insurance rather than tailoring that role to its purpose.

Assessing Potential Supreme Court Vacancies

Tuesday, February 28, AD 2012

Supreme Court appointments have been a relatively muted issue during the campaign.  It might be worth taking a look at the Court and in order to see where we might be headed over the course of the next presidential term.  I will be listing Justices in order from least to most likely to retire over the next four years.  Letter in parentheses indicates party of the president under which they were appointed.

John Roberts (R), Samuel Alito (R), Sonia Sotomayor (D), Elana Kagan (D):  All recent appointments, and all relatively young.  None of these guys are going anywhere anytime soon barring a catastrophic health crisis.

Clarence Thomas (R): Even though he recently started his third decade on the Court, Thomas is still fairly young, as he won’t turn 70 until 2018.  He is the Justice most committed to completely overturning decades of bad precedents, and I have a hunch he’d like to be on the Court to help shape those future rulings.  There is a tiny sliver of a chance he could retire if a Republican wins the presidency, but it would be a fairly big surprise.

Antonin Scalia (R), Stephen Breyer (D): Scalia and Breyer are fairly close in age.  Scalia turns 80 at the end of the next presidential term, and Breyer is two years his junior.  Scalia would also be completing his 30th year on the Court in 2016.  Both are still vigorous and active.  Neither will retire if a member of the opposite party wins the forthcoming election, and I would put the odds of retirement at just under 50/50 if someone from their party wins.  I would imagine Scalia would share some of Thomas’s desire to be able to shape opinions, so he might hang on through the next term.

Anthony Kennedy (R):  The Court’s swing vote, he is just a few months younger than Scalia and has served just one less year on the Court.  His retirement would be the game changer, and whoever gets to pick his replacement could be altering the course of the Court for the next thirty years.  It doesn’t matter which party controls the White House, the confirmation fight over his replacement will be a bloodbath, and I would fully expect a filibuster effort.

Will he retire, and will he peg his retirement to whoever is in the White House?  He’s a moderate, but he was appointed by a Republican.  Ultimately Kennedy will probably decide upon his retirement in the same manner as he decides most of his votes: by flipping a coin.

Ruth Bader Ginsburg (D): The only one of the eight clear ideoloigical justices who could retire during an administration of the opposite party.  She is the oldest member of the Court, and she has had some health problems in recent years.  I personally have seen her up close a couple of times, and she looked incredibly frail – and this was several years ago.  But she is still fairly vigorous, even travelling to Egpyt in order to tell the Egyptians how rotten our Constitution is.  She has evidently indicated a willingness to retire at 82, the same age as Louis Brandeis.  That would occur in 2015.

If Barack Obama wins re-election, I would put the odds at just about 100 percent that she will retire over the next four years.  Even if  a Republican wins the White House, health issues might force her hand.  If that happens, the confirmation battle will be just as intense, if not more so, than for whoever would replace Kennedy.

Ultimately the question we have to ask is which of the candidates is likely to go to the mats when it comes to a Supreme Court nomination battle?

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3 Responses to Assessing Potential Supreme Court Vacancies

  • Ruth Bader Ginsburg was chief counsel for the American Civil Liberties Union, not American nor Civil, before she became professor of Law at Rutgers University in New Jersey. She wrote in her book that fourteen year old girls ought to be given sexual freedom (without informed sexual consent at emancipation?) and the court took her lede by emancipating every pregnant child, without parental notification. The state was given access to aborting the infant child of the infant child. Ginsburg was shoed into the Supreme Court where I believe she has done nothing remarkable since her ideas and her non ideas are as severe as her hairdo. She reminds me of Chuckie Cheese on a bad day.

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  • John Roberts (R), Samuel Alito (R), Sonia Sotomayor (D), Elana Kagan (D): All recent appointments, and all relatively young. None of these guys…

    Two of “these guys” aren’t even “guys”.