Archive for the ‘Judicial Activism’ Category

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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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.


Well, I don’t think we should even be having a discussion on this. We should simply condemn this type of conversation. This country is based on the rule of law as a founding principle and when he’s attacking the third branch of government, this is more than an ideological debate. He is attacking the foundations of this constitutional republic and I think it’s absolutely outrageous.

That’s incendiary, inaccurate rhetoric. Mark Levin refuted the “constitutional foundation” of this nation when Mr. Levin ripped Ann Coulter’s arguments to shreds. During his 10 minute dialogue, Levin explained that the SCOTUS is the only federal court created by the U.S. Constitution. He then explained that the lower courts were created by acts of Congress and that, theoretically speaking, they could be dismantled by passing a bill that abolishes several or all of the lower courts.

Later in the interview, Crier said this about Speaker Gingrich:

When he talks about radical, what he’s talking about are rulings that he personally disagrees with.

That’s intellectually dishonest in the extreme. Speaker Gingrich frequently mentioned Judge Biery of San Antonio. Speaker Gingrich didn’t just throw a hissy fit because he didn’t like Judge Biery’s ruling. Speaker Gingrich criticized Judge Biery’s ruling because he ignored the straightforward language of the First Amendment and clearly articulated recent rulings of the SCOTUS about prayer in public schools.

Since when does arguing for the verbatim text of the First Amendment constitute a situation where Newt is throwing a hissy fit based on personal ideology? For Ms. Crier’s edification, here’s the text of the First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

I agree with Ms. Crier that America “is based on the rule of law as a founding principle.” I disagree with Ms. Crier when she implies that Speaker Gingrich’s statements constitute an abandonment of the rule of law. It’s clear that Newt’s fighting for the rule of law and the Constitution and that Ms. Crier is fighting for a myth.

The reason why this argument is important is because the courts have been the tool of choice for progressive special interest organizations for tying America’s economy in knots. When investors wanted to build the Big Stone II coal-fired power plant, progressive special interests litigated it to death. When PolyMet wanted to create high-paying jobs, progressive special interest organizations tied it up in the courts.

If the judiciary isn’t reined in ASAP, progressive special interest organizations, along with the EPA and the NLRB, will tie America’s economy in knots for a generation or longer.

It’s troublesome when liberals like Ms. Crier misrepresent the truth. It’s quite another when allegedly conservative candidates and pundits argue that Newt’s following the Constitution and knowing the history of the judiciary is incendiary and radical.

By saying these things, Mitt and Ann Coulter are playing into the hands of the political correctness police. If there’s anything that the political correctness police hate, it’s people telling the real truth about this country’s history. In fact, the political correctness police are frightened by people like Speaker Gingrich telling the truth about the judiciary.

Whether we’re talking about Mr. Williams, Ms. Crier, Mitt Romney or Ann Coulter, if they’re arguing against Speaker Gingrich’s positions on the judiciary, they’re fighting a losing fight against Speaker Gingrich, Mark Levin and Thomas Sowell.

Good luck winning that fight.

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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.

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Now that the Supremes have agreed to hear the arguments for Obamacare, the biggest questions left to be answered are abundant. Will this be this administration’s day of reckoning? Or will the Supremes rule that the federal government’s authority is unlimited? This ruling will be the most controversial ruling since Roe v. Wade and Kelo v. New London.

The Supreme Court said Monday it will hear arguments next March over President Barack Obama’s health care overhaul, a case that could shake the political landscape as voters are deciding if Obama deserves another term.

This decision to hear arguments in the spring sets up an election-year showdown over the White House’s main domestic policy achievement. And it allows plenty of time for a decision in late June, just over four months before Election Day.

If the Supremes rule that O’Care is unconstitutional, I’ll predict that Democrats will criticize the justices as being judicial activists who hate the average person. That’s what they did after the Citizens United ruling.

In fact, that’s what they did following Judge Vinson’s ruling in the Florida case:

The ruling out of Florida is unsurprising in one respect: the judge, a conservative Republican appointee, had already signaled his hostility to the law in hearings a few months ago. So people who follow the health care litigation have been waiting for him to issue the ruling that came down Monday.

It was anticipation over this ruling, and real concern about how the judge would likely distort longstanding case law to reach it, that led over one hundred law professors to sign a statement last week expressing their view that the ACA is constitutional. Their statement pointedly observed that the “current challenges to the constitutionality of this legislation seek to jettison nearly two centuries of settled constitutional law.”

What Democrats won’t like hearing is that Judge Vinson cited both the Constitution and the Federalist Papers in his ruling. These are the foundational writings of what is and isn’t constitutional. The U.S. Constitution states the what, the Federalist Papers explains the why.

There’s nothing activist about applying foundational principles when making this ruling. Here’s what President Obama said during his State of the Union Address following the Citizens United ruling:

“I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities.” Last week’s Supreme Court Citizen’s United decision opens the floodgates to special interests and foreign countries and companies bankrolling national campaigns. The President called for bipartisan support for legislation that will remedy the Supreme Court’s unprecedented and troubling decision.

President Obama’s statement doesn’t have anything to do with reality. It had everything to do with his hatred of this correct ruling because it levels the playing field. Democrats and President Obama love the fact that unions pump tens of millions of dollars into political campaigns for Democrats.

Here’s something else that’s noteworthy about the appeal:

The justices announced they will hear an extraordinary five-and-a-half hours of arguments from lawyers on the constitutionality of a provision at the heart of the law and three other related questions about the act. The central provision in question is the requirement that individuals buy health insurance starting in 2014 or pay a penalty.

In the modern era, the last time the court allotted anywhere near this much time for arguments was in 2003 for consideration of the McCain-Feingold campaign finance reform. That case consumed four hours of argument. This argument may spread over two days, as the justices rarely hear more than two or three hours a day.

This law should be overturned because not overturning it means that the federal government’s authority is essentially unlimited. That’s unacceptable.

UPDATE: Welcome Powerline readers. Take the time to read my post of the most recent presidential polling. If you appreciate my analysis, feel free to drop some coins in the tip jar, too.

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This October, the Minnesota Supreme Court will hear testimony from civic organizations before issuing the congressional and legislative maps that determine Minnesota’s political boundaries for the next decade.

That they’re conducting these hearings despite the fact that the House Redistricting Committee held 13 hearings at the Capitol and 3 hearings around the state is telling.

Shouldn’t the courts be seperated from public opinion? Shouldn’t their job be to apply the laws and the Constitution to the census data?

It isn’t that we shouldn’t hear testimony from civic organizations. It’s that that’s the committees’ responsibility. The courts hearing from civic organizations means that the courts are adding an additional political step to the process.

Politics should be limited to the political branches of government, aka the legislative and executive branches. Judicial proceedings should be limited to making judicial rulings based on the law and Constitution.

Based on where the population shifts happened the past decade, the maps put together by Rep. Sarah Anderson’s committee are quite defensible maps that Gov. Dayton shouldn’t have vetoed. His veto was purely political, designed to keep his base happy.

Politics should be removed from redistricting. Redistricting committees already rely on redistricting software. After the committee hears from the interested civic organizations, the information should be plugged into the redistricting software.

Whatever system is used, the Minnesota Supreme Court shouldn’t be engaged in anything but the law. It shouldn’t engage in hearings. That’s the legislative branch’s responsibility.

It’s time for the courts to stick with their responsibility. It isn’t their responsibility to get involved in conducting political hearings.

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Judge Sumi, the Wisconsin judge that ordered Wisconsin’s Secretary of State Doug La Follette to not publish Wisconsin’s new collective bargaining law, is upset because she screwed up. This article does a nice job outlining Judge Sumi’s mistake:

Huebsch’s latest comments raise questions about whether he or others could face sanctions following a hearing Tuesday, when Dane County Circuit Judge Maryann Sumi said any further implementation of the law is prohibited under a temporary court order.

“Now that I’ve made my earlier order as clear as it possibly can be, I must state that those who act in open and willful defiance of the court order place not only themselves at peril of sanctions, they also jeopardize the financial and the governmental stability of the state of Wisconsin,” Sumi said Tuesday.

Sumi was referring to a March 18 ruling that a legislative committee likely violated the state’s open meetings law when it rushed passage of the bill earlier this month. That order also barred Secretary of State Doug La Follette from publishing the law.

But the nonpartisan Legislative Reference Bureau, which wasn’t party to the case, published the law on the Legislature’s website Friday citing a separate statutory obligation to publish laws within 10 days of being signed by the governor. That has prompted the administration to declare the law is in effect.

I can’t help but highlight the unions’ lawyering was sloppy, too. Their omitting the Legislative Reference Bureau from their TRO application is stupefying. It’s the unions’ attorneys’ responsibility to stop the law from being published. That means knowing that the Legislative Reference Bureau had the affirmative legal obligation to publish the law.

Judge Sumi can’t change her ruling after the fact. Her TRO didn’t mention the Legislative Reference Bureau. Joining them to her ruling after her initial ruling would essentially represent Judge Sumi arguing against her own ruling.

At this point, the unions’ attorneys are a laughingstock. They didn’t do their proper research. Had they done their research, they would’ve found out that the Legislative Reference Bureau also publishes the laws. At that point in their due diligence, they could’ve added the LRB to their TRO.

Any attempt by Judge Sumi or the union attorneys to change her ruling to include the LRB would almost automatically trigger a due process appeal. If a due process appeal is made, that appeal isn’t a Wisconsin state court matter because due process rights are part of the federal Constitution. That means that potential lawsuit would be decided by SCOTUS.

The minute this litigation leaves the unions’ home court of Wisconsin state courts, they’re history.

If Judge Sumi or the Wisconsin Supreme Court cared about Wisconsin state law, this case would’ve been history by now. Wisconsin’s open meetings laws don’t apply to special sessions. That’s what the legislature was operating in.

This is long-settled law. If the unions don’t like Section 19.87, their remedy is to get legislation written, passed and signed into law. In fact, this lawsuit should’ve been thrown out before the hearing.

Judge Sumi doesn’t have the right to ignore the laws she doesn’t like. Writing new laws that support her policy preferences isn’t administering justice. It’s the opposite of justice because it substitutes codified law with personal preferences.

Her attempt to skirt this law is proof that she’s unfit for the bench. Society can’t tolerate jurists who ignore laws they don’t like. That’s a form of low-profile anarchy.

It isn’t even-handed justice.

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