Archive for the ‘Judicial Activism’ Category

When KSTP’s Tom Hauser interviewed Sen. Klobuchar, (DFL-MN), Sunday morning, they discussed President Obama’s nomination of Judge Merrick Garland to replace Antonin Scalia on the Supreme Court. Like an actress reading from a script, Sen. Klobuchar said that Judge Garland is a moderate. That term is interesting because it’s empty. Being the inquisitive type, I sent Sen. Klobuchar a message for clarification. It read “Sen. Klobuchar, you told Tom Hauser that Judge Garland is a moderate. I understand what a political moderate is but I don’t know what a judicial moderate is. I’d appreciate it if you’d explain what your definition of a judicial moderate is. Further, if Judge Garland is a moderate, does that mean Justice Sotomayor and Justice Kagan are radicals or ideologues? I’d appreciate a quick, substantive reply.”

Sen. Klobuchar’s auto-response said “Thank you for taking the time to e-mail me. This is a confirmation that we have received your message. One of the most important parts of my job is listening to what the people of Minnesota have to say to me. I am here in our nation’s capital to do the public’s business on behalf of the people of our state. Please continue to visit my website at to follow what I am working on, both in Washington and Minnesota. It is frequently updated with current news and events regarding my work in the U.S. Senate. Additionally, many constituents ask about tracking the progress of legislation. One useful tool is to regularly check my website. Another resource I recommend is the Library of Congress legislative information website, I hope you find this information helpful. – Amy”

Since Sen. Klobuchar hasn’t explained what a judicial moderate is yet, I’ll rely on something that Dennis Prager wrote about Judge Garland:

In a column in The Wall Street Journal, Juanita Duggan, President and CEO of the National Federation of Independent Business, wrote that Garland is so anti-small business and so pro-big labor, that “This is the first time in the NFIB’s 73-year-history that we will weigh in on a Supreme Court nominee.”

What worries the NFIB, she explains, is that “in 16 major labor decisions of Judge Garland’s that we examined, he ruled 16-0 in favor of the NLRB (National Labor Relations Board).”

Apparently, a judicial moderate sides with Big Labor 100% of the time. Forgive me if I don’t agree that that’s the definition of a moderate. Forgive me if I think that sounds more like a hardline leftist ideologue. Then there’s this:

Tom Goldstein wrote in the SCOTUSblog that Garland favors deferring to the decision-makers in agencies. “In a dozen close cases in which the court divided, he sided with the agency every time.”

Again, that sounds more like the definition of a leftist ideologue. It doesn’t sound like a centrist/moderate. This is worth checking out, too:

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Earlier this week, a video highlighted Sen. Schumer’s statements on judicial nominees that directly contradict his statements today. Because he got caught accidentally telling the truth, Sen. Schumer wrote this statement. Sen. Schumer’s statement highlights his judicial philosophy, which is captured when he said “During President Bush’s term, Democrats had voted for Justice Roberts and allowed Justice Alito to go through?—?both of whom said they would, as Justice Roberts said, be umpires calling balls and strikes. Once they got on the court they immediately started moving the court in an ideological direction, and they have continued to do so. Decisions that dramatically deviated from precedent and pulled America in a strongly rightward direction, handed down with a 5–4 majority, became the hallmark of this court.”

Schumer continued, saying “Under Chief Justice Roberts, the court has deviated from strongly held precedents on campaign finance issues, voting rights, choice, unions, environmental regulations, and many others.” Notice that Sen. Schumer didn’t accuse the Roberts Court of deviating from the text of the Constitution. Sen. Schumer’s biggest concern was that Justice Roberts didn’t follow precedents, which might or might not align with the text of the Constitution.

Frankly, precedents might not be worth much. If they’re grounded in the Constitution, then they might be helpful. If they aren’t grounded in the Constitution, precedents should be rejected and/or scrapped immediately. The gospel according to Justice Scalia says that text of the Constitution and the text of the statute being litigated determine the ruling. They’re the principles behind originalism and textualism.

It’s worth noting that liberals love precedents and stare decisis when it leads to their preferred political outcome but they rejoiced when the Supreme Court threw out the precedent that led to their ruling on gay marriage. Democrats like Schumer don’t care about precedents as much as they love getting the verdicts that fit with their agenda.

Putting things in biblical terms, the difference between basing rulings on the text of the Constitution and basing rulings on precedents is striking. Precedent-based rulings are flimsy like quicksand. Text-based rulings are as sturdy as the firm foundation that they’re built on.

Shouldn’t we want to build a judiciary that makes its rulings based on something foundational, not on something flimsy?

This statement is BS:

But whether Republicans agree or not with my evaluation of whichever candidate the president puts forward, they have a constitutional obligation to hold hearings, conduct a full confirmation process, and vote on the nominee based on his or her merits.

Sen. Schumer isn’t telling the truth. There’s nothing in the Constitution, in either Article I, which deals with congressional responsibilities, or Article III, which deals with the judicial branch, that requires Congress to act on a president’s judicial nominees. Further, Sen. Schumer voted 26 times during President Bush’s first term to continue filibustering President Bush’s judicial nominees. How is filibustering judicial nominees voting “on the nominee based on his or her merits”?

I’d like to thank Sen. Schumer for issuing this statement. It exposes the flimsiness of the liberals’ judicial philosophy.

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Brian Beutler’s article attempts to make the case that Republicans might ultimately lose if the Supreme Court upholds today’s ruling:

An adverse Supreme Court ruling would throw the ACA into chaos in three dozen states, including huge states like Florida and Texas. The vast majority of beneficiaries in those states would be suddenly unable to afford their premiums (and might even be required to reimburse the government for unlawful subsidies they’ve already spent). Millions of people would drop out of the insurance marketplaces. Premiums would skyrocket for the very sick people who need coverage the most.

But that’s where the conservatives’ “victory” would turn into a big political liability for red- and purple-state Republicans. An adverse ruling would create a problem that could be fixed in two ways: With an astonishingly trivial technical corrections bill in Congress, or with states setting up their own exchanges. If you’re a Republican senator from a purple state—Wisconsin, Pennsylvania, Nevada, North Carolina, Florida, Ohio, and others—you’ll be under tremendous pressure to pass the legislative fix. If you’re a Republican governor in any state, many thousands of your constituents will expect you to both pressure Congress to fix the problem, and prepare to launch your own exchange.

Conservatives would like to believe that they could just leave something as deeply rooted as Obamacare permanently hobbled, or that they could use the ensuing chaos as leverage, to force Democrats to reopen the books, and perhaps gut the law in other ways. I think they’re miscalculating. Just as government shutdowns and debt default threats don’t create leverage because the public doesn’t support inviting chaos in pursuit of unrelated goals, I don’t think an adverse ruling in Halbig will create leverage for the GOP.

I think Beutler isn’t just wrong about the leverage. I think he’s kidding himself if he thinks this puts Republicans in a difficult position.

By the time the Supreme Court rules on this lawsuit, it’s quite possible that there will be Republican majorities in the House and Senate. If that’s the case, think of this scenario:

Congress might well change Section 36B as part of a bigger bill that’s sure to include other provisions that Republicans like and that President Obama doesn’t like.

For instance, a new bill might include a change to 36B along with a change that eliminates the medical device tax, another change that changes the definition of a Qualified Health Plan, aka QHP, and a change that reduces the penalties for the employer and individual mandates.

Employers and families would certainly love a tiny penalty for not obeying the law. Young people would love being able to buy a catatrophic policy with a HSA to cover other expenses. There’s no question that eliminating the medical device tax would make medical device manufacturers happy.

At that point, President Obama signs the bill that’s essentially a fresh start that dramatically improves the ACA or he vetoes a popular bill that forces families to pay higher insurance premiums, that doesn’t repeal an unpopular tax and he alienates major parts of his base. In my opinion, that’s ‘Rock meets hard place’ territory for President Obama. The good news is that it’s great news for employers, families and young people.

All that’s required is for Republicans to pass a bill that’s filled with popular provisions. Since a majority of people don’t like the bill’s specifics, that shouldn’t be that difficult.

Finally, Beutler insists that this is judicial activism. There’s nothing activist about the DC Circuit’s ruling. They said that Section 36B meant what it said. For the record, here’s the specific language of Section 36B:

monthly premiums for such month for 1 or more qualified health plans offered in the individual market within a State which cover the taxpayer, the taxpayer’s spouse, or any dependent (as defined in section 152) of the taxpayer and which were enrolled in through an Exchange established by the State under 1311 [1] of the Patient Protection and Affordable Care Act

The judiciary’s first responsibility is to determine whether a law is constitutional. If it passes that test, the next test is to determine whether the statute gives the executive branch the authority to take action.

In this instance, the DC Circuit ruled that the ACA didn’t give the executive branch, in this case the IRS, the authority to change a major provision of the statute.

It isn’t radical to think that the executive branch doesn’t have the authority to rewrite specific provisions of existing statutes. If the Supreme Court validates this ruling and if President Obama wants that provision changed, there’s a simple remedy: work with Congress to change that part of the ACA.

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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.

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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:

  1. an absolute ruler, especially a monarch who holds and exercises the powers of government as by inherent right, not subject to restrictions.
  2. a person invested with or claiming to exercise absolute authority.
  3. 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.

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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.

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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.

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I told you so. I said it was just a matter of time before liberals started writing articles about the ‘activist’ SCOTUS. Ezra Klein’s post proved me right:

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.

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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.

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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.

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