Obama Takes Shot at Supreme Court

[applecorped]

http://www.reuters.com/article/2012/04/02/us-obama-healthcare-idUSBRE8310WP20120402

"President Barack Obama took an opening shot at conservative justices on the Supreme Court on Monday, warning that a rejection of his sweeping healthcare law would be an act of "judicial activism" that Republicans say they abhor. Obama, a Democrat, had not commented publicly on the Supreme Court's deliberations since it heard arguments for and against the healthcare law last week.
Known as the "Affordable Care Act" or "Obamacare," the measure to expand health insurance for millions of Americans is considered Obama's signature domestic policy achievement.
A rejection by the court would be a big blow to Obama going into the November 6 presidential election."






It was later found that the Supreme Court only had a bag of skittles on them.:boxedin:

[Neally]

More today:

"The Supreme Court is the final say on our Constitution and our laws and all of us have to respect it. But it's precisely because of that extraordinary power that the court has traditionally exercised significant restraint and deference to our duly elected legislature, our Congress," Obama said.

"The burden is on those who would overturn a law like this. Now, as I said, I expect the Supreme Court actually to recognize that and to abide by well-established precedents out there," he added.

Deference? Burden? :eye-poppi

[C_Felix]

If the SC upholds it, Limbuagh, Hannity, O'Rielly, Romney, Santorum...etc...would claim "Judicial activism."

If the SC knocks it down, Limbuagh, Hannity, O'Rielly, Romney, Santorum...etc...would thank the justices for not being "activist" while Maddow and Olberman (if he has a venue) would complain about the judges being "activist."

[Trakar]

If the SC upholds it, Limbuagh, Hannity, O'Rielly, Romney, Santorum...etc...would claim "Judicial activism."...

Would this not add further support to the common commerce clause understanding that "not doing something" is indeed an action with impacts and is therefore properly under the auspices of commerce clause authorities and regulatory power?

[Halfcentaur]

If the SC upholds it, Limbuagh, Hannity, O'Rielly, Romney, Santorum...etc...would claim "Judicial activism."

If the SC knocks it down, Limbuagh, Hannity, O'Rielly, Romney, Santorum...etc...would thank the justices for not being "activist" while Maddow and Olberman (if he has a venue) would complain about the judges being "activist."

What are you, some kind of judicial activist?

[Ziggurat]

5th circuit fires back (http://www.cbsnews.com/8301-504564_162-57408827-504564/appeals-court-fires-back-at-obamas-comments-on-health-care-case/).

[leftysergeant]

And so what are those snotty little dweebs going to do if Holder tells them to go play on the freeway? They have no power to sanction the Executive branch for refusing.

[KoihimeNakamura]

5th circuit fires back (http://www.cbsnews.com/8301-504564_162-57408827-504564/appeals-court-fires-back-at-obamas-comments-on-health-care-case/).

Ahaha. That was dumb of them when the laywer there promptly answered his question.

[shuize]

And so what are those snotty little dweebs going to do if Holder tells them to go play on the freeway? They have no power to sanction the Executive branch for refusing.


They could hold the DOJ attorney in contempt of court for starters.

[leftysergeant]

They could hold the DOJ attorney in contempt of court for starters.So? Are they going to have him arrested? Them and whose army?

[shuize]

So? Are they going to have him arrested? Them and whose army?


It was a her (Dana Lydia Kaersvang).

In the event she were to be jailed for contempt, federal marshals would take her into custody. But I'm fairly certain that despite your big talk on her behalf, she will do exactly as ordered.

[Beerina]

Judicial activism is discovering new rights (good idea or otherwise) in order to overturn a law.

It's not saying, "What the hell, people? There's nothing in the Constitution authorizing this. Remember that the government was created by The People, and granted certain powers which are deliberately listed, and none others. Remember that?"


So, even if Jesus came down on a cloud and said, "This health care law is The Greatest Thing Ever", that's still 100% separate from whether it is constitutional or not.


So if it's the greatest thing ever (as some of you suggest) and it's a major shift in the government-to-citizen power distribution (which it is) then you can go about convincing people to change the Constitution to specifically authorize the government this power.


It's been done before. The first of my two .sig lines addresses why. And if you need an explanation of that, I direct you to a review of all of human history.

[Spindrift]

Judicial activism is discovering new rights (good idea or otherwise) in order to overturn a law.

It's not saying, "What the hell, people? There's nothing in the Constitution authorizing this. Remember that the government was created by The People, and granted certain powers which are deliberately listed, and none others. Remember that?"


So, even if Jesus came down on a cloud and said, "This health care law is The Greatest Thing Ever", that's still 100% separate from whether it is constitutional or not.


So if it's the greatest thing ever (as some of you suggest) and it's a major shift in the government-to-citizen power distribution (which it is) then you can go about convincing people to change the Constitution to specifically authorize the government this power.


It's been done before. The first of my two .sig lines addresses why. And if you need an explanation of that, I direct you to a review of all of human history.

So the Citizens United decision would be an example of judicial activism?

[tyr_13]

So if it's the greatest thing ever (as some of you suggest)



Who has said that? Who has suggested that? Everyone I can think of on JREF who supported the law was along the lines of, 'it isn't perfect/enough, but it's a hell of a lot better than nothing.'

[WildCat]

So the Citizens United decision would be an example of judicial activism?
No, the 1st Amendment is quite clear, no legal somersaults required.

"Congress shall make no law... abridging the freedom of speech"

Which is exactly what McCain-Feingold tried to do.

[Cleon]

Deleted (OT).

[Bikewer]

Unfortunately, Congress has a long history of passing patently-unconstitutional legislation.

[eeyore1954]

Obama said it would be "an unprecedented, extraordinary step" if the court overturned "a law that was passed by a strong majority of a democratically elected Congress
Whether or not a law is passed by a strong majority should have nothing to do with determining it's constitutionality.

I think it's important and I think the American people understand and I think the justices should understand that in the absence of an individual mandate, you cannot have a mechanism to ensure that people with pre-existing conditions can actually get health care," Obama said then. "So, there's not only an economic element to this and a legal element to this, but there's a human element to this and I hope that's not forgotten in this political debate." Is he correct that this should be considered when determining a laws constitutionality?

Last point if Santorum or Bachman had made a comment similar to the first one there would already be a 200 comment thread saying how stupid they were.

[Cleon]

Last point if Santorum or Bachman had made a comment similar to the first one there would already be a 200 comment thread saying how stupid they were.

That's not an actual "point," really.

"If the situation was different, your reaction would be different, ergo hypocrisy" is the ultimate in non-arguments.

[WildCat]

That's not an actual "point," really.

"If the situation was different, your reaction would be different, ergo hypocrisy" is the ultimate in non-arguments.
I don't think anyone claimed it was an argument.

[eeyore1954]

That's not an actual "point," really.

"If the situation was different, your reaction would be different, ergo hypocrisy" is the ultimate in non-arguments.

As Wildcat already said it was not an argument. To me it was just an observation.

[Brown]

Getting back to the topic, it is possible that the Court decision might not be as monstrous as some commentators are saying. As we saw in Supreme Court on Homeopathy, Psychics and Satan (http://forums.randi.org/showthread.php?t=200905), sometimes the questions that come from the bench are not a good indication of the way the case will be decided.

The assumption is that the questions from the bench suggest that five members of the Court are going to nullify most or all of the Act. It may be so, but it's not necessarily so.

For one thing, Justice Kennedy's comments notwithstanding, the act is presumed constitutional. The burden to show unconstitutionality is on the challenger, not on the defender. (News flash: Justice Kennedy probably knows this.)

Also, every textbook on constitutional law discusses the extent of legislative power and the precedents that recognize that the Congress may address problems that never occurred to the Framers of the Constitution. And there are A LOT of modern and not-so-modern concerns that never occurred to the Framers: drug trafficking, nuclear materials, television, the Internet, air traffic, interstate highways, environmental crises, modern medicine, railroads, the space program, wireless communication, and so on and so on, ALL of them regulated to some degree by the Federal government with few squawks from the Judicial Branch. The fact that national health care never occurred to the Framers, and therefore ought not to be regulated by the Federal government, is a weak argument, as is the argument that an explicit basis for the Act is not found in the Constitution's enumerated powers.

Many seem to assume that four members of the Court are going to uphold most significant portions of the Act, and that there are five who wish to strike it down for result-oriented non-judicial reasons. If these assumptions are correct (and we have reasons to believe that they are NOT, as well as reasons to believe that they are), then these five would be playing a dangerous game. The president's comments seem to be designed, at least in part, to point out the dangerous game that may be played.

The Supreme Court generally has to issue not only a decision, but reasons for the decision. And therein lies the danger. The outcome might be devastating, but the reasons might be more so. Maybe Medicare would be invalidated, or maybe a variety of non-health-related acts would be invalidated under that rationale (in which case the popularity of the Court may go into the toilet, and the Justices might find themselves subject to impeachment). Maybe the rationale would support "Medicare for all" (and Obama could ask the electorate for a mandate for just such a thing).

Maybe, just maybe, the decision might be well-reasoned and supported by seven or more members of the Court, and though the decision explains what is wrong with the Act, it also discloses how the Act can be fixed.

Maybe, just maybe, five or more members of the Court uphold the Act in key respects.

The biggest concern for me, one that I have not yet seen expressed by other commentators, is the chicken-spit rationale. (Yes, chicken-spit is a euphemism for another, more impolite, term.) The chicken-spit rationale is one in which the result is clear (Obama loses, his legislation is unenforceable), but the rationale is damn near opaque.

Not to go off on this issue again, but the decisions (plural) in Bush v. Gore were based upon chicken-spit rationales, for reasons I've already outlined. One of those reasons, but not the only one, is the language in the per curium opinion on the merits to the effect that the decision had limited precedential value. Bush wins, there will be no recount, but the rationale was chicken-spit.

Another way to issue a chicken-spit decision would be to issue a fractured decision with multiple opinions stating the "judgment" (not the "opinion") of the Court. Maybe Justice Scalia issues one opinion, joined by Justice Thomas. Maybe Justice Alito issues another opinion, joined by Chief Justice Roberts. Maybe Justice Kennedy issues an opinion of his own, in which no one joins in full (though they may join in parts of others' opinions), and despite not speaking for any other member of the Court but himself, Justice Kennedy's views tend to carry the day. Four dissenting justices sign a unified rationale, but they lose. Five other justices issue a variety of disparate views, but there is none on which all agree, yet they all agree on the result: Obama loses. The rationale, however, would take MONTHS to sort out, assuming it could be sorted out at all.

THAT would be chicken-spit. And it would be chicken-spit because there are strong indications that it would have been done on purpose, and in bad faith. It would be done so as to issue a result, influence an election, to make the problem impossible to fix, and to make it impossible for Obama to ask the electorate for a mandate for fixing it. It would be an abuse of power.

[Cleon]

I don't think anyone claimed it was an argument.

As Wildcat already said it was not an argument.

Interesting that you both seem to think that the use of the word "argument" is somehow significant.

To me it was just an observation.

For it to be an observation, it has to be observed. Hypothetical situations, by definition, are not observed.

Whether you call it a "point," an "argument," or an "observation," it was still just plain old bullcrap.

[tyr_13]

SNIP

I was in disagreement with Obama on this issue, but if what he's saying is using your rationale, then it makes a lot more sense.

[Brown]

I was in disagreement with Obama on this issue, but if what he's saying is using your rationale, then it makes a lot more sense.It makes sense, sort of. Obama is in a difficult spot, and I don't mean that in a bad way. His work might be upheld (maybe with a tweak or two). But it might be swatted down, in large part or in its entirety. (Some members of the Court essentially publicly expressed as much during oral argument.)

It would be foolish for him to announce a backup plan, not because he's unprepared or because he's put all his eggs in one basket, but because it's not his move. There are so many ways the Court could play it, and it doesn't make any sense to announce a strategy until the Supreme Court makes its move.

Regardless of what the Supreme Court does, Obama can turn it to his advantage. But he can set the stage for taking that advantage now.

[eeyore1954]

Interesting that you both seem to think that the use of the word "argument" is somehow significant.



For it to be an observation, it has to be observed. Hypothetical situations, by definition, are not observed.

Whether you call it a "point," an "argument," or an "observation," it was still just plain old bullcrap.

Is it just plain old bull manure that if Santorum or Bachman had made a similar statement there would be a long thread bemoaning their lack of knowledge or arrogance.

[leftysergeant]

No, the 1st Amendment is quite clear, no legal somersaults required.

"Congress shall make no law... abridging the freedom of speech"

Which is exactly what McCain-Feingold tried to do.that makes sense only if money is speech. That corporations are people isn't even stare decisus. Some corporate whore law clerek diddled the documents and the few times an issue of corporate personhood came up there were enough morons on the bench that they didn't even notice the error of their ruling.

[DavidJames]

I don't think anyone claimed it was an argument.
As Wildcat already said it was not an argument. To me it was just an observation.The intellectually honest equivalent of "just asking questions", right ;)

My sig gets proven true daily.

[tyr_13]

Is it just plain old bull manure that if Santorum or Bachman had made a similar statement there would be a long thread bemoaning their lack of knowledge or arrogance.

For that it is worth, I happen to agree with your speculation. However, I imagine that in this hypothetical thread, there would be people pointing out the more nuanced arguments if such existed.

[eeyore1954]

The intellectually honest equivalent of "just asking questions", right ;)

My sig gets proven true daily.

I wasn't even just asking questions it was just an "observation" about the way things are on this board.

But to the thread in general what do you think about his remarks?

[Trakar]

5th circuit fires back (http://www.cbsnews.com/8301-504564_162-57408827-504564/appeals-court-fires-back-at-obamas-comments-on-health-care-case/).

I can't believe a sitting appelate judge in a an official proceeding referred to the Patient Protection and Affordable Care Act as "obamacare," that alone should be grounds for this justice to recuse himself from any further official connection to such cases.

[marksman]

Judges refer to statutes by their colloquial names all the time. While I agree this is a bit of grandstanding on the Court's part, it's not unusual for courts to do a little push back when a President appears to undercut their authority. I doubt President Obama is going to go all President Jackson on the Court and say "Judge Smith has made his decision, now let him enforce it!"

The Attorney General will simply write a letter that says "The Executive Branch believes in the doctrine of judicial review as set forth in Marbury v. Madison, with respect to the Health Care Act and every other act of Congress."

[Tricky]

Whether or not a law is passed by a strong majority should have nothing to do with determining it's constitutionality.
Very true.

Whether or not a law is passed by a strong majority should have nothing Is he correct that this should be considered when determining a laws constitutionality?
It should certainly be considered. "Promote the general welfare" and all that Constitution stuff...

Last point if Santorum or Bachman had made a comment similar to the first one there would already be a 200 comment thread saying how stupid they were.
It's pretty well acknowledged that these boards are more Democratic Party leaning than Republican, so certainly the number of anti-Palin or anti-Santorum comments would be more numerous. The opposite would be true on conservative boards. What is your point? Are you suggesting that this is somehow unfair?

[marksman]

Attorney General Holder said he will submit a letter to the Fifth Circuit, as ordered (http://hosted2.ap.org/APDEFAULT/3d281c11a96b4ad082fe88aa0db04305/Article_2012-04-04-Obama-Health%20Care-Judge/id-5d4de1805fe14313b186e0c2a712ff91).

[Brainster]

Tangentially related: Buffoonish law school prof (http://www.thedailybeast.com/articles/2012/04/03/impeach-the-supreme-court-justices-if-they-overturn-health-care-law.html) suggests impeaching the Supreme Court if they strike down Obamacare:

You think the idea is laughable? Thomas Jefferson disagreed with you.

Jefferson believed Supreme Court justices who undermine the principles of the Constitution ought to be impeached, and that wasn’t just idle talk. During his presidency, Jefferson led the effort to oust Justice Samuel Chase, arguing that Chase was improperly seizing power. The Senate acquitted Chase in 1805, and no Justice has been impeached since, but as the Supreme Court threatens to nullify the health-care law, Jefferson’s idea is worth revisiting.

What's really laughable is that the law school prof is the author of a book entitled (http://www.amazon.com/Americas-Prophets-Judicial-Activism-America/dp/0313377081/ref=ntt_at_ep_dpt_4) America's Prophets: How Judicial Activism Makes America Great.

He marshals the usual silly argument in favor of the individual mandate:

First, Congress’s authority in passing the law rests on an elementary syllogism: You don't have to drive, but if you do, the government can make you buy insurance.

Of course, he completely misses the point that the federal government does not require you to buy auto insurance; rather it is the various state governments.

The logical structure at work here is that if you are going to do something (drive, for example), the government can make you purchase a commercial product (insurance, for example), so long as it has a good reason for doing so (making sure you can pay for any damage you do).

But of course there is a key difference that he's ignoring here; I can avoid the requirement to get auto insurance by not driving.

[leftysergeant]

Tangentially related: Buffoonish law school prof (http://www.thedailybeast.com/articles/2012/04/03/impeach-the-supreme-court-justices-if-they-overturn-health-care-law.html) suggests impeaching the Supreme Court if they strike down Obamacare:If Thomas votes to overturn it, he might be subject to a conflict of interest charge.

I do not advise him to trust that there will not be a majority in the House and Senate out aftger his sorry hide next year.

Of course, he completely misses the point that the federal government does not require you to buy auto insurance; rather it is the various state governments.States don't do interstate commerce law. Health care has to beprotable across state lines to be worth much.

But of course there is a key difference that he's ignoring here; I can avoid the requirement to get auto insurance by not driving.

Stay home and don't spread your germs.

[WildCat]

that makes sense only if money is speech.
Printing pamphlets, buying an ad in the newspaper, buying a radio ad, all free speech. You are against free speech, correct?

That corporations are people isn't even stare decisus.
I don't think you understand what legal personhood is, or why it's necessary. Why don't you read a book and get back to this point?

At any rate, it's completely irrelevant to the Citizens United ruling, which you apparently never read, let alone understood.

Some corporate whore law clerek diddled the documents and the few times an issue of corporate personhood came up there were enough morons on the bench that they didn't even notice the error of their ruling.
Absolute nonsense. The concept of legal personhood predates the formation of the United States. It goes all the way back to the Industrial Revolution, when businesse grew bigger than sole proprieterships.

[WildCat]

Attorney General Holder said he will submit a letter to the Fifth Circuit, as ordered (http://hosted2.ap.org/APDEFAULT/3d281c11a96b4ad082fe88aa0db04305/Article_2012-04-04-Obama-Health%20Care-Judge/id-5d4de1805fe14313b186e0c2a712ff91).
Of course he will, it would be very embarrassing for him to be arrested by US Marshals and forcibly brought before the judge.

[WildCat]

Of course, he completely misses the point that the federal government does not require you to buy auto insurance; rather it is the various state governments.
More importantly, drivers are licensed, there is no right to drive. As with any license, it comes with duties and responsibilities.

[mhaze]

And so what are those snotty little dweebs going to do if Holder tells them to go play on the freeway? They have no power to sanction the Executive branch for refusing.

Now the Justices are snotty little dweebs.

Great!

[WildCat]

If Thomas votes to overturn it, he might be subject to a conflict of interest charge.
Say what now? Under what statute? :boggled:

[WildCat]

As heard on another board, a joke lawyers tell about federal judges. When they're well out of earshot, of course!

Q: How many federal judges does it take to screw in a light bulb?

A: 1, he holds the bulb in the socket and waits for the universe to revolve around him.

[mhaze]

Printing pamphlets, buying an ad in the newspaper, buying a radio ad, all free speech. You are against free speech, correct?


I don't think you understand what legal personhood is, or why it's necessary. Why don't you read a book and get back to this point?

At any rate, it's completely irrelevant to the Citizens United ruling, which you apparently never read, let alone understood.


Absolute nonsense. The concept of legal personhood predates the formation of the United States. It goes all the way back to the Industrial Revolution, when businesse grew bigger than sole proprieterships.Prior to that, if I recall correctly. Didn't it arise in the shipping trade?

[Trakar]

Judges refer to statutes by their colloquial names all the time...

"Obamacare" is not a colloquial name, it is inflammatory political rhetoric. The colloquial name would be "healthcare reform act."

[eeyore1954]

"Obamacare" is not a colloquial name, it is inflammatory political rhetoric. The colloquial name would be "healthcare reform act."

I agree he should not call it that but it is becoming common usage. I could swear I even read it in the NY Times.

[carlitos]

Takes a shot? Come on, people. You are better than that. :rolleyes:

[Trakar]

I agree he should not call it that but it is becoming common usage. I could swear I even read it in the NY Times.

If he can't be objective in his statements from the bench, he needs to recuse himself from any issues that deal with areas where he cannot seperate reasoned judicial consideration from personal political fervor.

[Neally]

Now the Justices are snotty little dweebs.

Great!But of course! Anyone that doesn't follow the leftysergeant rules of thought can be subjected to the penalties of juvenile pejoratives.

[Sam.I.Am]

If Thomas votes to overturn it, he might be subject to a conflict of interest charge.

Of course you also feel that way about our newest Madame Justice as well. I mean she was at least partially involved in the process as The Presidents Solicitor General during the congressional debate on this matter. If you can argue that Thomas's spouse (but not Thomas directly) is involved in the matter but that is enough for you to want him to recuse himself then clearly if another justice had an even more direct role in crafting the law that they too should be recused.

[Brown]

I have had to let myself cool down after learning that Chuck "Chuckles" Grassley, US Senator from Iowa, recently called the President "stupid." His exact tweet:Constituents askd why i am not outraged at PresO attack on supreme court independence. Bcause Am ppl r not stupid as this x prof of con lawOh, Chuck, Chuck, Chuck. What shall we do with you?

Considering the fount of idiocy that seems to flow like pig manure from your pie hole, you really ought to think twice before suggesting that the current president of the USA is "stupid," or that he is more stupid than the people who elected him. And you ought to think five times before you decide that childish name-calling is better than a reasoned rebuttal, which is EXACTLY what this message shows you decided.

Chuck, you are in no position to ridicule anyone else's intelligence, and you REALLY are in no position to go head-to-head with this president. We won't go into credentials, who got the most legal training, who has the most law degrees, who has taught the most law courses, who knows more about constitutional law in general. We won't discuss the times you've addressed the Iowa State Bar Association only to find your assertions about law and the legal process being challenged by people who actually knew what they were talking about. We won't mention some of the incredibly dumb or softball questions you asked as as a member of the judiciary committee. We won't mention that you talk like a hayseed.

No, we won't get into any of that.

But we will mention the matter of good manners. As a United States Senator, you should choose your words more carefully. The President chose his words carefully. It ought to be not too much to expect that you do the same.

Now, let me leave aside the Senator and turn to the other shining light from Iowa, Governor Terry Branstad. Governor Branstad sided with the Senator from his party, saying:I thought it was incredible that somebody that is a graduate of a law school would make the kind of outlandish statements that the President of the United States said....

Why would the President of the United States who is a law school graduate – who even taught in law school – make that kind of outlandish statement? You’ve got to ask the President that....Now, there are things we won't go into about Terry, either. But what, pray tell, oh Learned One, was so "outlandish" in the President's remarks? Be careful, Governor; for not too long ago you were critical of an Iowa Supreme Court decision that struck down a statute forbidding homosexuals to marry each other, and you don't want to sound like a flaming hypocrite. Do you?

[Newtons Bit]

Takes a shot? Come on, people. You are better than that. :rolleyes:

Heh.

[Ziggurat]

Say what now? Under what statute? :boggled:

I believe that's the "anything leftysergeant doesn't like is illegal" statute.