Archive for the ‘Judicial Activism’ Category
This video shows how in the tank and/or stupid MSNBC is about the Constitution:
Here’s what Andrea Mitchell said about the shootout at the I’m not a sixth grader corral:
I brought my handy pocket Constitution with me today just to make the point that this (the fight between Sen. Cruz and Sen. Feinstein) was not a fair fight because Ted Cruz thought that, somehow, he was going to take on Sen. Dianne Feinstein, who began her career in politics facing the bloodshed in San Francisco when she was elevated to become the mayor after the assassinations there.
Ms. Mitchell is a blowhard and a political hack. Notice that she didn’t address the arguments Sen. Cruz made in belittling Sen. Feinstein in the Judiciary Committee. Here’s that video:
Here’s what Sen. Cruz said that ripped Sen. Feinstein’s arguments to shreds:
My fourth and final point is that the Constitution should be the touchstone of everything we do. Some have suggested in this hearing that the role of Congress is to pass laws and it’s up to the courts to determine constitutionality. I would point out that every one of us takes an oath to defend the Constitution and that is a fundamental obligation of every member of this body.
There has been a suggestion that Heller would allow this regulation. I would point out that I am not unfamiliar with the Heller case. Indeed, I represented 31 states before the Supreme Court in the Heller case. So I have an intimate familiarity with that case, having been an active part in litigating and winning it 5-4 before the Supreme Court. And what the Supreme Court said in Heller — it did say there are some restrictions on the Second Amendment that are permissable. For example, it specifically identified the current ban on fully automatic machine guns. But it also said that weapons that are in common use, such as, in that case handguns were the principle issue being discussed, and the same arguments that are being suggested about why assault weapons could be banned were made by the District of Columbia in Heller why handguns could be banned.
The Supreme Court said “No, if they’re in common use for self defense, they cannot be banned consistent with the Second Amendment.” We have heard testimony that there are some 4,000,000 weapons that would be covered by this legislation. I would suggest that, by any measure, 4,000,000 weapons qualifies as common use. So, under the terms in Heller, they can not be constitutionally prohibited.
Mitchell’s argument is based totally on the logic that Sen. Feinstein has been in DC a long time. She’s the chair of the Senate Judiciary Committee. Therefore, she wins the fight. Sen. Cruz’s argument is based on the Supreme Court’s ruling in Heller, which dealt with Washington, DC’s ban on handguns.
In that case, the Supreme Court ruled DC’s handgun ban unconstitutional because it infringes on people’s right to defend themselves and their families. That’s consistent with the plain language of the Second Amendment.
If Ms. Mitchell wants to argue against SCOTUS’ ruling in Heller, she has to argue against the plain language of the Second Amendment. That’s an uphill fight at best.
Sen. Feinstein’s argument, if it can even be classified as such, isn’t based on the Constitution. It’s based on the time-tested liberal axiom of “Surely, we must do something.” That axiom isn’t rooted in thinking things through. It’s based on emotion, which is basing policy on the shakiest of grounds.
Ms. Mitchell is right in the sense that this wasn’t a fair fight. Sen. Feinstein was overmatched by the freshman Republican who knew substantially more about the Constitution and the Bill of Rights than the chair of the Senate Judiciary Committee.
It’s pretty embarrassing when a freshman schools a committee chair on the chair’s supposed area of expertise. That’s what happened, though. That’s because Sen. Feinstein didn’t think about the rights protected by the Constitution. Conversely, Sen. Cruz had an intimate and thorough understanding of the Bill of Rights and the Supreme Court’s Heller ruling.
What’s most delightful is that the best is yet to come. Sen. Feinstein’s bill doesn’t stand a fighting chance in the Senate. I’d bet that Republicans won’t filibuster Sen. Feinstein’s bill because they’ll want vulnerable Democrats to vote on Sen. Feinstein’s bill.
The myths about the Affordable Care Act are multiplying on editorial pages. This SCTimes editorial is a good picture of those myths being amplified:
Too many partisan politicians are (again) being allowed to frame a key part of federal health care reform in a misleading, even irrelevant ideological perspective.
These folks proclaim the U.S. Supreme Court’s mandate to carry health insurance is an erosion of our personal freedoms. Then they couple it with a dead-end conversation about whether it’s a tax or fine on all people. It’s not all people; just those who don’t choose (but can afford) insurance.
President Obama has gotten into the habit of calling people freeloaders if they’ll be affected by the individual mandate. That’s a disgusting, dishonest characterization. Since when has the government had the authority to tell car owners that their car insurance had to have specific coverages?
Here’s a little dose of reality. The government doesn’t have the authority to tell people that they have to buy a policy that includes collision, theft, fire, liability and comprehensive coverages.
Yet that’s exactly what the individual mandate does. It says that people who don’t buy the health insurance policy that the government dictates will pay the individual mandate tax.
Imagine this: as a result of the Affordable Care Act, a couple that bought a high-deductible policy, then pays for routine checkups and doctor visits, is subject to the individual mandate tax because their policy didn’t meet the federal government’s minimum coverages.
In other words, people that did the right thing in buying their own health insurance are a) being called freeloaders by President Obama and b) subject to a hefty tax because they didn’t do exactly what President Obama dictated to them to do.
If that doesn’t sound like the actions of an autocratic government, then it’s time people read the definition of autocrat:
- an absolute ruler, especially a monarch who holds and exercises the powers of government as by inherent right, not subject to restrictions.
- a person invested with or claiming to exercise absolute authority.
- a person who behaves in an authoritarian manner; a domineering person.
This statement is particularly irritating:
These folks proclaim the U.S. Supreme Court’s mandate to carry health insurance is an erosion of our personal freedoms.
First, the Supreme Court’s ruling carries with it an erosion of each person’s liberty. If people want to argue that we’re burdened whether we purchase the health insurance the government tells us to purchase or pay a massive tax, that’s an intellectually honest argument. It’s disgusting but it’s intellectually honest.
Second, who appointed the Supreme Court to be the arbiters of personal liberties? They have the right to tell us if something’s constitutional. They don’t have the authority to ignore the Constitution even when an administration attempts to ignore it.
Regardless of Chief Justice Roberts’ opinion, the Tenth Amendment says that the things that the federal government isn’t responsible for are the responsibility of the states and the people. Here’s another BS section from the editorial:
If your core objection is all about choice vs. force, you really only have to answer two questions before you propose your alternative plan. First, if people are allowed to choose no insurance, how are they going to pay their medical bills, especially when those bills exceed their savings account?
Will they turn over their cars, homes and even assets of other relatives to pay bills? And when that’s not enough (which it won’t be in many cases), how will they cover the remainder? Last I checked, indentured servitude wasn’t exactly legal, which brings us to paying the ultimate price, shall we say, human foreclosure?
The first question doesn’t think about liberty because it accepts a faulty premise. It’s bad enough when government tells people they have to buy health insurance. It’s worse when government tells people that that health insurance policy is subject to a massive tax if it doesn’t include the coverages that they insist people buy.
Minnesota state statutes include 68 mandates for health insurance, each one adding costs to the insurance policy. If government didn’t initially impose 68 mandates to be included in each health insurance policy, more people would buy health insurance because it wouldn’t be too expensive. If people were allowed to buy high-deductible policies that included coverage for catastrophic health events, the premise for the first question disintegrates. Ditto with the second, sarcastic argument.
The problem with this type of editorial is that it deals with what is rather than what should be. Saying that we have to comply with a fatally flawed law is technically true as a matter of law. It’s downright stupid to say that we shouldn’t try repealing a law that a) doesn’t contain health care costs, b) doesn’t control increases in health insurance premiums, c) doesn’t give people sensible health insurance options and d) limits people’s freedom.
Questions like that probably limit the number of invites I get to dinner parties. But they get to the cold-hearted realities about the “mandated coverage” debate, which many see as the center of this health reform act.
It’s disappointing that educated people wouldn’t think this issue through better than this. The Affordable Care Act is a solution at financial gunpoint. It isn’t a solution. It’s a way to bankrupt this nation.
It’s disgusting that a government thinks it can impose unconstitutional, stupid laws on people who’ve tried to do the right thing. It’s more disgusting to think that people start from the default positions that a) liberty is a frivolous thing and b) money is more important than liberty. People who are more worried about money than liberty soon won’t have either.
In today’s landmark decision, Chief Justice Roberts’s majority opinion was badly wrong from a constitutional standpoint. The vast majority of Americans think that the PPACA is horrible legislation and terrible policy.
That isn’t why I’m arguing that Chief Justice Roberts got it wrong. Instead, I’m arguing that Chief Justice Roberts got it wrong because he’s essentially ruled that the courts have the right to rewrite the legislation.
In the original draft of the legislation, there was a specific section of the legislation that dealt specifically with taxes. It’s absurd to think that the Chief Justice of the Supreme Court can simply rewrite legislation.
That’s what Chief Justice Roberts did. Congress didn’t include the mandate in the section on taxes. People remember President Obama’s interview with George Stephanopoulos where President Obama repeatedly insisted that the mandate wasn’t a tax. Only when it got into the courts did they start calling it a tax.
Chief Justice Roberts might make many wonderful rulings during his time as Chief Justice but his legacy will be sullied by this ruling. He didn’t just call balls and strikes this time. Instead, he appropriated for himself the authority to rewrite the PPACA.
That’s what activists do. Judicial historians will note that.
Most importantly, the American people will be repulsed by the decision, mostly because it kept intact legislation that hurts the American people.
Aside for the activist aspects of this ruling, the reality is that this ruling gives employers another major reason to not hire. It gives small businesses with 40-45 employees justification not to hire that fiftieth employee.
There are two bits of good news despite this ruling. One tidbit of good news is that other cases are working their way through the system. The other tidbit of good news is that this will motivate voters to defeat the people that initially gave us this job-killing monstrosity.
There’s no question that President Obama will get a temporary surge after this ruling. There’s no question, though, that this is a net negative for President Obama because he’s got to defend this terrible legislation the next 4 months.
President Obama’s political decision to rescind the federal government’s pact with Arizona is proof positive that President Obama won’t enforce the federal government’s laws. He’s essentially become the first US Scofflaw-in-Chief. Predictably, Arizona law enforcement is reacting to the Scofflaw-in-Chief’s edict. First, here’s what Gov. Brewer said about the Scofflaw-in-Chief’s decision:
“As though we needed any more evidence, President Obama has demonstrated anew his utter disregard for the safety and security of the Arizona people. Within the last two hours, I have been notified the Obama administration has revoked the 287(g) agreement under the authority of which Arizona law enforcement officers have partnered with the federal government in the enforcement of immigration law.
“Of course, it is no coincidence that this announcement comes immediately on the heels of the U.S. Supreme Court’s ruling upholding the constitutionality of the heart of Arizona’s anti-illegal immigration law: SB 1070. It’s worth noting that 68 law enforcement entities in 24 states have functioning 287(g) agreements with the federal government. But it appears the only agreements eliminated today were those in Arizona, the state that happens to be on the front lines of America’s fight against illegal immigration. We are on our own, apparently.
“I suppose I shouldn’t be surprised. The Obama administration has fought the people of Arizona at every turn, downplaying the threat that a porous border poses to our citizens, filing suit in order to block our State from protecting itself, unilaterally granting immunity to tens of thousands of illegal aliens living in our midst, and now this. Still, the disarmament of Arizona’s 287(g) agreements is a new low, even for this administration.
President Obama has exceptionally thin skin. He also isn’t much into enforcing laws that past congresses have passed and previous presidents have signed into law. Today’s decision to undercut Arizona’s ability to protect its people is the greatest abdication of a president’s domestic responsibilities in the past 25 years.
Arizona is Ground Zero of the immigration battle. Their citizens have been tortured, held hostage or murdered outright. Despite those facts, the federal government has turned a blind eye towards Arizona.
Here’s what Rep. Jeff Flake said:
Mesa, Arizona – Republican Congressman Jeff Flake, who represents Arizona’s Sixth District, today criticized the Obama Administration’s suspension of the Immigration and Customs Enforcement (ICE) Immigration and Nationality Act Section 287(g) program in Arizona, which allows local authorities to partner with federal law enforcement agencies to carry out certain immigration enforcement functions. ICE announced today that with the suspension of the 287(g) program, their agents will not respond to a scene in which a person’s immigration status is in question unless that person is a convicted criminal, has been removed from the US previously and reentered unlawfully, or is a recent border crosser.
“Suspending this program will strip our local authorities of critical tools to deal with illegal immigration,” said Flake. “The Obama Administration is effectively broadcasting that unless an illegal immigrant is wanted for a crime, the attention of ICE isn’t warranted.”
President Obama campaigned against President Bush and Bush’s “imperial presidency.” It’s ironic that his administration is selectively, and intermittenly, enforcing the laws on the books. President Obama has become what he campaigned against.
KrisAnne Hall, whom I met at this year’s RightOnline Conference, wrote this brilliant article about Monday’s opinion written by Anthony Kennedy. I found this part particularly compelling:
Not only is this ruling devoid of any appeal to the Constitution, it is very dangerous. It is an aberration of fundamental Constitutional principles and a brazen assault on state sovereignty! Chiefly, Kennedy takes the Supremacy clause of the Constitution, which declares that the Constitution is the supreme law of the land, and translates that principle into the supremacy of the Federal government over the states. There couldn’t be anything more contrary to our founders’ intent. Let me repeat: this opinion is a monumental assault on the sovereignty of the states.
Article I section 8 clause 4 of the Constitution states that Congress has the power [t]o establish an uniform rule of naturalization. The purpose of the federal government in the case of immigration, as Justice Kennedy appropriately acknowledges is “to be a single voice of the nation for foreign relations.”
This external focus is in line with James Madison’s directive that: “The powers delegated by the proposed Constitution to the Federal Government are few and defined. Those which are to remain in the State Governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace negotiation, and foreign commerce…”
Justice Kennedy’s ruling allowed President Obama to continue his disastrous, dangerous policies that endanger people. If Justice Kennedy had the final say in the matter, state sovereignty would’ve disappeared midway through his intellectually flimsy opinion.
Over the past two years, the Republican Party has slowly been building a permission structure for the five Republicans on the Supreme Court to feel comfortable doing something nobody thought they could do: Violate the existing understanding of the Commerce Clause and, in perhaps the most significant moment of judicial activism since the New Deal, overturn either all or part of the Affordable Care Act.
The first step was, perhaps, the hardest: The Republican Party had to take an official and unanimous stand against the wisdom and constitutionality of the individual mandate. Typically, it’s not that difficult for the opposition party to oppose the least popular element in the majority party’s largest initiative. But the individual mandate was a policy idea Republicans had thought of in the late-1980s and supported for two decades. They had, in effect, to convince every Republican to say that the policy they had been supporting was an unconstitutional assault on liberty.
Klein’s writing that ‘Republican justices’ are violating “the existing understanding of the Commerce Clause” is judicial activism doesn’t mean they’re being activists. That’s a warped twist on words.
If the individual mandate is ruled unconstitutional, the 5 justices will have only ruled that the Ninth and Tenth amendments must be taken seriously. They will have ruled that the Commerce Clause isn’t meant to give Congress and the president the authority to strip states and individuals of the rights the Founding Fathers originally gave them.
The Supreme Court’s Wickard v. Filburn ruling was as misguided as was their Roe v. Wade ruling.
Striking down precedents that violate the Constitution is a virtuous thing. They enable the courts to restore the Constitution to its proper place of authority.
The proper definition of judicial activism is when the courts put in place their policy preferences even if it volates the Constitution and the Bill of Rights.
Wickard v. Filburn was clever lawyering but the justices could’ve said that they appreciated the clever lawyering without ruling for the clever lawyer’s client. Wickard v. Filburn opened the floodgates that helped Congress take rights away from states and individuals.
If it’s examined closely, Wickard v. Filburn is a ruling that says the federal government has the right to tell businesses that they have to conduct business according to the federal government’s preferences.
That ruling didn’t have anything to do with interstate commerce. It had everything to do with the federal government passing a law to artificially creating commerce. As is usually the case, the federal government’s attempt to bully businesses into doing what they want hurt farmers without helping the economy.
It’s government of, by and for the control freaks in government.
Hopefully, the Supreme Court will rid us of 75 years of bad precedents when it hands down its ruling this Thursday.
With SCOTUS apparently heading towards striking down at least part of the PPACA, Democrats have already been testing trial balloon defenses. One of their arguments will be that the Roberts Court is an activist court, the type of thing conservatives railed against for years.
I won’t say that you should ignore the Left’s arguments. I’m recommending that you smash their arguments and ridicule them for making intellectually flimsy arguments.
The Left’s intellectual laziness started with their getting their way in the Wickard v. Filburn ruling. Wickard v. Filburn is constitutionally tortured:
A farmer, Roscoe Filburn, was growing wheat for on-farm consumption. The U.S. government had established limits on wheat production based on acreage owned by a farmer, in order to drive up wheat prices during the Great Depression, and Filburn was growing more than the limits permitted. Filburn was ordered to destroy his crops and pay a fine, even though he was producing the excess wheat for his own use and had no intention of selling it.
The Supreme Court interpreted the United States Constitution’s Commerce Clause under Article 1 Section 8, which permits the United States Congress “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”. The Court decided that Filburn’s wheat growing activities reduced the amount of wheat he would buy for chicken feed on the open market, and because wheat was traded nationally, Filburn’s production of more wheat than he was allotted was affecting interstate commerce. Thus, Filburn’s production could be regulated by the federal government.
That opened the floodgates for SCOTUS to rapidly and incorrectly expand the federal government’s authority beyond its constitutional boundaries.
The Commerce Clause was codified into the Constitution to give the federal government the authority to prevent interstate trade wars. PERIOD. It wasn’t intended to give Congress a quasi-constitutional rationalization for doing whatever it wanted.
The Commerce Clause is now used by progressives in both parties to justify rationalize major expansions of federal authority. The Founding Fathers envisioned a federal government with enumerated responsibilities and the authority to do what only the federal government needed to do.
That’s why they put the Ninth and Tenth amendments in the Bill of Rights.
What the Left is disparaging as judicial activism is nothing more than the SCOTUS using the Constitution as the basis for their ruling. That isn’t what past courts have done but it’s the right way for determining whether legislation is constitutional.
That said, if that’s what’s happening, it’d mark a major shift in how cases are ruled on. Some might rightly argue that it’s a revolutionary shift in how the courts rule on things.
During Chief Justice John Roberts’ confirmation hearings, Sen. Dick Durbin asked him what assurances Durbin could get that a Chief Justice Roberts would “side with the little guy” in his rulings. Roberts’ reply certainly left them apoplectic.
Roberts replied that the senators could rest assured that “every time that the Constitution is on the little guy’s side,” he’d rule for the little guy.
Democrats didn’t like that reply but it’s a reply that the vast majority of Americans would wholeheartedly agree with.
While it’d be foolish to argue that basing opinions on precedents isn’t worthwhile, it isn’t foolish to argue that badly thought through precedents are worthless.
Nobody questions the fact that Rudy Giuliani is pro-choice. Still, he’s argued that Roe v. Wade isn’t SCOTUS’s best work from a constitutional. Rudy’s argued that the US Constitution doesn’t give the federal government the authority to rule on what he sees as a states’ rights issue.
To be fair, Democrats are struggling to cope with what’s possibly a brave new world for them. They’ve relied on SCOTUS to give them their biggest political victories.
Hypothetically speaking, telling Democrats that they’ll have to earn their legislative victories through the legislative branch in cooperation with the executive branch is a shock to the Democrats’ nervous system.
Hopefully, SCOTUS’ ruling on the PPACA will usher in a new era of relying on the Constitution for their rulings rather than the justices substituting their policy beliefs for the elected branches of government’s policies.
This afternoon, President Obama said that overturning Obamacare would be judicial activism. That’s insulting. Judicial activism is when judges ignores the Constitution and inserts their policy preferences into a ruling. Judicial activism is when creates rights that aren’t spelled out in the Constitution.
The left is trying their best to cheapen the phrase by claiming that rulings they disagree with is fraught with judicial activism. That’s BS. Screaming judicial activism is the left’s latest tactic when judges don’t rule the way they want.
If these justices rule that O’Care is unconstitutional, they’ll point to specific parts of the Constitution that O’Care tramples. That isn’t judicial activism. It’s the opposite of judicial activism.
President Obama’s scolding this afternoon was political theatre. It didn’t have anything to do with judicial activism. This was political theatre meant to exite President Obama’s base. It’s a preview of the tactics that President Obama’s campaign and the Agenda Media will utilize if O’Care is ruled unconstitutional.
President Obama says that overturning O’Care will be unprecedented overreach. That’s projection on his part. Nothing like O’Care has ever been attempted. No other legislation, at any level of government, has required American citizens to buy a commercial product as a condition of breathing.
Here’s a little information about the second of the Militia Acts of 1792:
The second Act, passed May 8, 1792, provided for the organization of the state militias. It conscripted every “free able-bodied white male citizen” between the ages of 18 and 45 into a local militia company overseen by the state. Militia members were to arm themselves with a musket, bayonet and belt, two spare flints, a cartridge box with 24 bullets, and a knapsack. Men owning rifles were required to provide a powder horn, 1/4 pound of gun powder, 20 rifle balls, a shooting pouch, and a knapsack. Some occupations were exempt, such as congressmen, stagecoach drivers, and ferryboatmen. Otherwise, men were required to report for training twice a year, usually in the Spring and Fall.
The mandate required militias to be prepared for war. As commander-in-chief, presidents had to ensure the Country would be protected.
That’s why the mandate in O’Care is totally different in context than the mandate in the Militia Acts of 1792. The mandate in O’Care is social policy. The mandate in the Militia Acts of 1792 was military and national security policy.
If this administration wanted some credibility about restraint, they shouldn’t have let their NLRB, an agency filled with unelected bureaucrats, tell Boeing that they couldn’t build a manufacturing plant in South Carolina. If this administration wanted some credibility about restraint, they shouldn’t attempt to implement Cap and Trade through the EPA, another agency filled with unelected bureaucrats.
President Obama’s record on restraint is the opposite of stellar. President Obama’s understanding of the Constitution is the opposite of thorough.
Here in central Minnesota, Republicans had a decent day. King Banaian, aka Landslide Banaian, must be smiling after learning that Minden Township was added to his district. While Rep. Gottwalt’s district lost a key city in Rockville, his district is still a solid GOP district.
As a result of those shifts, Sen. John Pederson must be smiling, too. He lost Rockville, a strong GOP city, but gained Minden Township, a strong GOP township.
Rep. Gottwalt’s loss, Rockville, is Larry Hosch’s loss, too. Rep. Hosch’s red district just got substantially more red.
A new district was created east of St. Cloud that’s strongly Republican. That district will include the cities of Rice, Foley, Becker, Clear Lake and Clearwater. The candidate there should consistently get 65% of the vote once they get to know it.
I’m told that the new district has two potentially strong candidates ready to run in the district, too.
While it was a good day for the GOP, it would’ve been better had the Special Redistricting Panel done what it said it was going to do in its rulings. Instead, the SRP chose to break up lots of smaller cities than was warranted.
On the House side, the legislative map split 39 cities. The SRP map split up 89 cities. That’s bad news for those cities because they’ve now been handed an expensive bill for holding elections. Instead of being able to order uniform ballots for the entire city as much as possible, these cities will now have to order multiple versions of ballots for the multiple House districts.
In addition to that, they’ll have to find new polling places so ballots from the multiple districts don’t get mixed together.
Most disappointing, though, is the court’s capriciousness in initially stating that they’d abide by the 2002 rulings, then ignoring those principles in putting this map together.
Thanks to their maps, future legislatures can’t count on the courts’ rulings as being a guide for future redistricting cycles. They’ve essentially destabilized the process. They’ve essentially put themselves in charge of the process, too.
They’ve now entered the political realm. That’s dangerous. It’s time for the legislature to write out the courts as much as possible. They should establish clear principles that must be followed consistently.
It’s time to establish some stability in our redistricting process. The legislative and executive branches need it. Finally, it’s time for the judicial branch to stay out redistricting as much as possible.
William Robinson, the ABA’s president, is fighting Newt Gingrich even though he’s playing with a losing hand. Robinson’s op-ed in the Des Moines Register is as defensive an op-ed as I’ve seen lately. Here’s the opening paragraph to Robinson’s op-ed:
Abolish courts. Ignore rulings. Impeach judges. These are just a few of the ideas Newt Gingrich has suggested to win over the Republican voters in Iowa.
Judges who issue rulings based on personal policy preferences rather than what the Constitution says should be impeached. As for Congress abolishing courts, Jeffrey Anderson’s article is instructive:
Gingrich deserves credit for reminding Americans that, except for the Supreme Court (which was established by the Constitution), the entire federal judiciary was established and designed by Congress. As such, it can certainly be redesigned or reined in as necessary. In their early days, the federal courts, filled with Founders and those whom the Founders had appointed, were exemplary (despite attempts by modern law school professors to lump judges like the great John Marshall in with the policymaking judges of today).
Lawyers have, to a great extent, developed an attitude that the judiciary is a sacred cow that shouldn’t be criticized under any circumstances. Last night, Catherine Crier was interviewed by Greta van Susteren on this subject.
David Rivkin and Lee Casey wrote this must-read op-ed that gives a detailed history of the health care lawsuit in its path to the Supreme Court. Erwin Chemerinsky’s op-ed, unfortunately, is predictable but typically liberal thinking.
Here’s part of Rivkin’s and Casey’s op-ed:
The Constitution limits federal power by granting Congress authority in certain defined areas, such as the regulation of interstate and foreign commerce. Those powers not specifically vested in the federal government by the Constitution or, as stated in the 10th Amendment, “prohibited by it to the States, are reserved to the states respectively, or to the people.” The court will now determine whether those words still have meaning.
As we argued two years ago in these pages, the Patient Protection and Affordable Health Care Act (aka ObamaCare) is unconstitutional. First and foremost, the law requires virtually every American to have health insurance. Congress purported to impose this unprecedented “individual mandate” pursuant to its constitutional power to regulate interstate commerce, but the requirement is not limited to those who engage in any particular commercial or economic activity (or any activity at all). Rather, the mandate applies to everyone lawfully present in the United States who does not fall within one of the law’s narrow exclusions.
Under our Constitution’s system of dual sovereignty, only states have the authority to impose health and safety regulations on individuals simply because they are present. The Supreme Court has ruled many times that the Constitution denies to the federal government this type of “general police power.” Federal legislation must be grounded in one of the “enumerated” powers the Constitution grants to Congress—such as the power to regulate interstate commerce. Although the Supreme Court has interpreted that power broadly (especially since the 1940s), it has consistently held that the Commerce Clause has limits.
Rivkin and Casey are basing their arguments on what the Constitution says. They clearly understand the thinking of the Founding Fathers. If they didn’t, they couldn’t have grasped the concept of dual sovereignty. That’s a clear distinction from Prof. Chemerinsky’s op-ed:
Not surprisingly, the Supreme Court on Monday agreed to decide the constitutionality of the individual mandate in the Affordable Care Act, the healthcare reform package passed in 2010. Under current constitutional law, this should be an easy case to predict, the law is clearly constitutional. But what complicates the decision and makes the result unpredictable is whether the justices will see the issue in terms of precedent or through the partisanship that has so dominated the public debate and most of the court decisions so far.
The primary issue before the Supreme Court is whether Congress’ power to regulate commerce among the states gives it the authority to require that individuals either purchase health insurance or pay a penalty. The Supreme Court has repeatedly held that under the commerce clause, Congress may regulate economic activity that, taken cumulatively across the country, has a substantial effect on interstate commerce.
Prof. Chemerinsky’s argument essentially is that precedent, not the clearly written text of the Constitution, should determine the outcome. That’s a well-established legal tactic. It’s also wrong. When precedents don’t reflect the content of the Constitution, those precedents must be struck down. The Constitution, not 5 justices with a political preference, should determine whether something’s constitutional.
Here’s another argument from Prof. Chemerinsky:
Thus, under current law, there are two questions: First, is Congress regulating economic activity? Second, if so, looked at in the aggregate, is there a substantial effect on interstate commerce?
The answer to the first question is no, Congress wasn’t regulating economic activity. They were imposing their will without the consent of the governed. The Supreme Court has given wide latitude to cases involving the Interstate Commerce Clause in the past. That’s led to this moment.
Had the justices not bought into clever lawyerly arguments but instead stuck with the Constitution, the long list of precedents that Prof. Chemerinsky now cites wouldn’t exist.
Prof. Chemerinsky argues that politics will determine the Supreme Court’s final ruling. That argument is flimsy at best. The reality is that Prof. Chemerinsky doesn’t like the fact that the ruling will be based on the Constitution, not on precedent.
It’s time to start scrapping precedents when they conflict with the Constitution. It’s time to put limits on the things that the federal government is allowed to do.