• Thanks for stopping by. Logging in to a registered account will remove all generic ads. Please reach out with any questions or concerns.

Obamacare faces Supreme Court Challenge

a_majoor

Army.ca Legend
Reaction score
30
Points
560
Notice the tone being taken with the Supreme Court of the United States (one of the three co-equal branches of government according to the US Constitution) now that Obamacare is facing serious challenge and in danger of being ruled against. Of course politics is a huge factor in this, if Obamacare is struck down the President has literally nothing to show for three years in office, and of course the possibilities oof richly rewarding friends and punishing enemies through control of 1/6 of the US economy would vanish as well.

The revival of constitutional principles has already been previously seen with Supreme Court support for the US Second Amendment, if they rule against Obamacare on Constitutional grounds (the limits of the Commerce Clause) then we might expect longer term challenges to other laws and programs on the basis of the US 10th Amendment (the Enumerated Powers clause)

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.":

http://www.nationalreview.com/blogs/print/295410

Obama v. SCOTUS
By Charles Krauthammer
April 5, 2012 8:00 P.M.

“I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”

            — Barack Obama, on the constitutional challenge to his health care law, April 2

‘Unprecedented”? Judicial review has been the centerpiece of the American constitutional system since Marbury v. Madison in 1803. “Strong majority”? The House has 435 members. In March 2010, Democrats held a 75-seat majority. Obamacare passed by seven votes.

In his next-day walk back, the president implied that he was merely talking about the normal “restraint and deference” the courts owe the legislative branch. This concern would be touching if it weren’t coming from the leader of a party so deeply devoted to the ultimate judicial usurpation — Roe v. Wade, which struck down the abortion laws of 46 states — that fealty to it is the party’s litmus test for service on the Supreme Court.

With Obamacare remaking one-sixth of the economy, it would be unusual for the Supreme Court to overturn legislation so broad and sweeping. On the other hand, it is far more unusual to pass such a fundamentally transformative law on such a narrow, partisan basis.

Obamacare passed the Congress without a single vote from the opposition party – in contradistinction to Social Security, the Civil Rights Act, the Voting Rights Act, Medicare, and Medicaid, similarly grand legislation, all of which enjoyed substantial bipartisan support. In the Senate, moreover, Obamacare squeaked by through a parliamentary maneuver called reconciliation that was never intended for anything so sweeping. The fundamental deviation from custom and practice is not the legal challenge to Obamacare but the very manner of its enactment.

The president’s pre-emptive attack on the Court was in direct reaction to Obamacare’s three days of oral argument. It was a shock. After years of contemptuously dismissing the very idea of a legal challenge, Democrats suddenly realized that there actually is a serious constitutional argument to be made against Obamacare — and they are losing it.

Here were highly sophisticated conservative thinkers — lawyers and justices — making the case for limited government, and liberals weren’t even prepared for the obvious constitutional question: If Congress can force the individual into a private contract by authority of the Commerce Clause, what can it not force the individual to do? Without a limiting principle, the central premise of our constitutional system — a government of enumerated powers — evaporates. What then is the limiting principle? Liberals were quick to blame the administration’s bumbling solicitor general, Donald Verrilli, for blowing the answer. But Clarence Darrow couldn’t have given it. There is none.

Justice Stephen Breyer tried to rescue the hapless Verrilli by suggesting that by virtue of being born, one enters into the “market for health care.” To which plaintiffs’ lawyer Michael Carvin devastatingly replied: If birth means entering the market, the Congress is omnipotent, authorized by the Commerce Clause to regulate “every human activity from cradle to grave.”

QED.

Having lost the argument, what to do? Bully. The New York Times loftily warned the Supreme Court that it would forfeit its legitimacy if it ruled against Obamacare, because with the “five Republican-appointed justices supporting the challenge led by 26 Republican governors, the court will mark itself as driven by politics.”

Really? The administration’s case for the constitutionality of Obamacare was so thoroughly demolished in oral argument that one liberal observer called it “a train wreck.” It is perfectly natural, therefore, that a majority of the Court should side with the argument that had so clearly prevailed on its merits. That’s not partisanship. That’s logic. Partisanship is four Democrat-appointed justices giving lockstep support to a law passed by a Democratic Congress and a Democratic president — after the case for its constitutionality had been reduced to rubble.

Democrats are reeling. Obama was so taken aback, he hasn’t even drawn up contingency plans should his cherished reform be struck down. Liberals still cannot grasp what’s happened — the mild revival of constitutionalism in a country they’ve grown so used to ordering about regardless. When asked about Obamacare’s constitutionality, Nancy Pelosi famously replied: “Are you serious?” She was genuinely puzzled.

As was Representative Phil Hare (D., Ill.) As Michael Barone notes, when Hare was similarly challenged at a 2010 town hall, he replied: “I don’t worry about the Constitution.” Hare is now retired, having been shortly thereafter defeated for reelection by the more constitutionally attuned owner of an East Moline pizza shop.

— Charles Krauthammer is a nationally syndicated columnist. © 2012 the Washington Post Writers Group.
 

cupper

Army.ca Veteran
Reaction score
1
Points
0
Like several pundits who closely follow the Supreme Court said the day after oral arguments were completed, no one has ever made money betting on the final decision based on what happened during oral arguments.

I'll wait for the decision to come down in June.

And for what it's worth, in my opinion, the Obama Administration went too far too soon, trying to fix everything at once.

BUT they also didn't go far enough, by not bringing in a single payer system.
 

a_majoor

Army.ca Legend
Reaction score
30
Points
560
Since the SCOTUS is going to rule based on the constitutional provisions, rather than any real or imagined benefits of the law itself, we should focus on that issue. One thing which was rather embarrassing was how weak the actual grounding of Obamacare was (the "Individual Mandate" essentially saying there were no limits to the Commerce Clause). Even worse was the endlessly repeated factoid that the President had once lectured on Constitutional Law, so should have quickly identified the danger:

http://www.breitbart.com/Big-Government/2012/04/04/Former-Obama-Student-Obamas-Ignorance-of-Constitution-Embarrassing

Former Obama Student: Obama's Ignorance of Constitution Embarrassing

Prof. Thom Lambert of the University of Missouri Law School has responded with alarm to President Barack Obama's attack on the Supreme Court and the power of judicial review by recalling his own days as Obama's student at the University of Chicago.

Lambert, who writes for the "Truth on the Market" blog, not only studied under Obama, but also clerked for the federal judge who issued an order yesterday demanding that the Department of Justice clarify whether the government believed courts had the power to overturn constitutional laws.

Lambert wrote:

Thus, a Wall Street Journal editorial queried this about the President who “famously taught constitutional law at the University of Chicago”:  “[D]id he somehow not teach the historic case of Marbury v. Madison?”

I actually know the answer to that question.  It’s no (well, technically yes…he didn’t).  President Obama taught “Con Law III” at Chicago.  Judicial review, federalism, the separation of powers — the old “structural Constitution” stuff — is covered in “Con Law I” (or at least it was when I was a student).  Con Law III covers the Fourteenth Amendment.  (Oddly enough, Prof. Obama didn’t seem too concerned about “an unelected group of people” overturning a “duly constituted and passed law” when we were discussing all those famous Fourteenth Amendment cases – Roe v. Wade, Griswold v. Connecticut, Romer v. Evans, etc.)  Of course, even a Con Law professor focusing on the Bill of Rights should know that the principle of judicial review has been alive and well since 1803, so I still feel like my educational credentials have been tarnished a bit by the President’s “unprecedented, extraordinary” remarks.

Lambert added: "Fortunately...[t]his morning, the judge for whom I clerked, Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit, called the President’s bluff....I must say, I’m pretty dang proud of Judge Smith right now.  And I’m really looking forward to reading that three-page, single-spaced letter."
 

cupper

Army.ca Veteran
Reaction score
1
Points
0
Thucydides said:
Since the SCOTUS is going to rule based on the constitutional provisions, rather than any real or imagined benefits of the law itself, we should focus on that issue.

If only that were true. The Court considered 4 issues over three days of arguments.

Day 1 was devoted to the question of standing, and whether the "taxing" provisions could be challenged before they came into effect

Day 2 was devoted to the individual mandate and the commerce clause

Day 3 was devoted to two issues: first, could the rest of the law be separable from the individual mandate; and second, can the federal government unilaterally expand medicaid coverage without consent of the states.

What I find humourous in this latest uproar is the fact that it seems that only the conservatives can comment and criticize the courts over what is perceived as judicial activism. Bush has a whole bunch of Greatest Hits where he calls out judges that overruled his administration on various issues.
 

vonGarvin

Army.ca Legend
Reaction score
20
Points
430
cupper said:
What I find humourous in this latest uproar is the fact that it seems that only the conservatives can comment and criticize the courts over what is perceived as judicial activism. Bush has a whole bunch of Greatest Hits where he calls out judges that overruled his administration on various issues.

My google-fu must be off.  I can't find any articles where Bush "calls out judges that overruled his administration on various issues."


Could you help me out here?
 

Edward Campbell

Army.ca Myth
Subscriber
Donor
Mentor
Reaction score
1,116
Points
1,160
Technoviking said:
My google-fu must be off.  I can't find any articles where Bush "calls out judges that overruled his administration on various issues."


Could you help me out here?


Try this, TV.
 

cupper

Army.ca Veteran
Reaction score
1
Points
0
Thank you Mr. Campbell. I was afraid that I would have to resort to posting a link to the Daily Show and lose all cred.
 

Edward Campbell

Army.ca Myth
Subscriber
Donor
Mentor
Reaction score
1,116
Points
1,160
All it proves is that Obama is just a big a dipstick as Bush ever was.
 

vonGarvin

Army.ca Legend
Reaction score
20
Points
430
In that first clip, G.W. Bush says that "new laws" ought not to be created by the courts, but they ought to stick to interpreting the constitution.  Second clip, same thing (complaining about judges making laws instead of interpreting them).  Third clip: "servants of the law, and not legislate from the bench". 

In the current bruhaha, President Obama said "I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress."  Forget for a moment that the law was passed by a majority of seven (7), the court is currently attempting to see if the law passes the litmus test of being constitutional.  They are not creating new laws. 

So, that clip, though it makes for great sound bytes, is not even close to the same thing that Mr. Obama is saying.  Mr. Bush may be a dipstick, but in those clips, his complaint was of judges creating new laws, not of interpreting laws.  The Supreme Court of the USA has, as I understand things, struck down laws as being unconstitutional in the past, so this would not be an "unprecedented" step.
 

Edward Campbell

Army.ca Myth
Subscriber
Donor
Mentor
Reaction score
1,116
Points
1,160
The business of "making law" from the bench goes back, at least, as far as Huburt de Burgh, who was was justicar of England during the minority of Henry III, and the complaints sound just about the same ... nothing new to see here, folks, move along.
 

tomahawk6

Army.ca Legend
Reaction score
62
Points
530
The issue here is Can Congress Require Citizens to Purchase Health Insurance ? The democrats never considered that their law could possibly be unconstitutional. Some democrats argue that state governments require operators of motor vehicles to have a license and insurance.If you dont want to drive ,you dont need a license or insurance. This was a bad law. Few read it. Last survey I saw showed 77% of the public against it. IF it is found to be unconstitutional there wont be rioting in the streets.

A better approach would have been to make it optional.Put everyone that wants the insurance either into Medicare or Medicaid [those under 55].Simple and straight forward.I like our current system and dont see a need for change.Remember that alot of state's have state sponsored insurance for those who dont have it.But its not free.
 

Brad Sallows

Army.ca Fixture
Reaction score
2,840
Points
1,010
"Judicial activism" is not really at issue in this dispute.  "Judicial activism" is when a judicial branch reads in (creates) new laws.  A decision to vacate legislation created by a legislative branch is not "judicial activism".  I am frankly surprised at the calibre of intellect attributed to some of the public figures attempting to make the argument that "judicial activism" is afoot.

The closest this dispute might come to "judicial activism" is if the Court decides to vacate more than the provision in dispute, but less than the entire act (ie. if the Court attempts to decide what portion of the law can be salvaged while deciding what additional portions must be jettisoned).  And of course, part of what was gone over in oral argument was whether the Court should or even could (2,700 pages to comb over) attempt to do so.
 

cupper

Army.ca Veteran
Reaction score
1
Points
0
And throwing out 100 years of election finance law in one fell swoop by granting corporations the same status as a person isn't judicial activism?

To quote Judge Judy: Please, don't piss on my leg and tell me it's raining.

The right claims judicial activism as creating new laws that appear to not follow their interpretation of the Constitution, the left claims judicial activism is overturning laws that are constitutional based on their interpretation of the Constitution.

The conservatives are pissed that the liberals are using their own line against them, and they can't say a thing about it without looking like complete hypocrites.
 

Brad Sallows

Army.ca Fixture
Reaction score
2,840
Points
1,010
I think the corporation-as-a-person in law threshold was crossed a long time ago, and the Court doesn't get to make up cases: it generally waits for cases to be brought before it.

Judicial activism is when the bench usurps the role of the legislature: creating new law.  Overturning prior law and precedent is just business as usual.  Some argue for the involvement of partisanship, but good luck trying to draw boundaries around that (not as to the existence of partisanship - the judges are human - but rather as to proving the influence of partisanship, or trying to distinguish between partisanship and the honestly held belief in a particular interpretation of law).

The Court is, in fact, the interpreter of the Constitution.  Even the Democrats said so when questions of constitutionality of PPACA were raised during the legislative process.
 

cupper

Army.ca Veteran
Reaction score
1
Points
0
Sooo...

When lower courts overturn voter initiatives banning same sex marriage, by deeming it to be unconstitutional, that's not judicial activism according to your definition?

(Careful.... It's a trap!)
 

Bird_Gunner45

Army.ca Veteran
Reaction score
0
Points
0
cupper said:
Sooo...

When lower courts overturn voter initiatives banning same sex marriage, by deeming it to be unconstitutional, that's not judicial activism according to your definition?

(Careful.... It's a trap!)

I dont hear many dems whining about that particular ruling.  BOTH sides benefit from judicial rulings at certain times.  Obama just needs to suck it up and accept his wins (same sex marriage) with his losses (possibly health care)
 

Brad Sallows

Army.ca Fixture
Reaction score
2,840
Points
1,010
I'm not sure exactly what you mean.  Are you referring to something that directly becomes legislation, or something that is the trigger for legislation to be developed?
 

cupper

Army.ca Veteran
Reaction score
1
Points
0
Brad Sallows said:
I'm not sure exactly what you mean.  Are you referring to something that directly becomes legislation, or something that is the trigger for legislation to be developed?

I'm referring to the judge who overturned Proposition 8 in California which eliminated same sex marriage, because it was found to be unconstitutional in that it discriminated against same sex couples.

Your argument was that the courts are not being activist when they strike down laws on the basis of being unconstitutional. They are only being activist when they interpret in such a way as to have the perceived effect of creating a new law.

Bird_Gunner45 said:
I dont hear many dems whining about that particular ruling.  BOTH sides benefit from judicial rulings at certain times.  Obama just needs to suck it up and accept his wins (same sex marriage) with his losses (possibly health care)

But you hear every socially conservative family values advocate screaming bloody murder about how this debases the concept of marriage, how the judge was not exercising judicial restraint, and was being an activist judge by over ruling the majority (slimmest of mind you) of the electorate who voted in favor of Prop 8.

And I'm not convinced that Obama personally considers any of the pro same sex marriage judgements to be a win. I think he'd rather not fight that fight and have Congress finally deal with it.
 

Bird_Gunner45

Army.ca Veteran
Reaction score
0
Points
0
cupper said:
But you hear every socially conservative family values advocate screaming bloody murder about how this debases the concept of marriage, how the judge was not exercising judicial restraint, and was being an activist judge by over ruling the majority (slimmest of mind you) of the electorate who voted in favor of Prop 8.

And this is different from the Liberal cry/suckyfest that will occur if Obamacare is shut down how? 

The judiciaries job is to interpret the legality of laws.  Sometimes both sides try to overstep their bounds.  Sometimes it's good for libs, sometimes it's good for conservatives, but at all times it's good for democracy to have a check and balance.

That said, Obama, as a constitutional lawyer, seems to have a weak grasp on the constitution, which would be troubling to me if I were American.
 

ModlrMike

Army.ca Veteran
Subscriber
Donor
Reaction score
839
Points
960
To get the discussion back on track:

I think the most pressing question is: does the government have the authority to tell the populace how and where to spend their money?

I say no. Others contend that the greater good trumps individual rights. Personally I think the most fundamental change to health care in the US should be tort reform. But that would require the lawyers who occupy the house and senate to agree... and how likely is that?
 
Top