The New York Times is very afraid of a court that cares about the Constitution:
If the conservatives decide that they can sidestep the Constitution to negate Congress’s choices on crucial national policies, the court’s legitimacy — and the millions of Americans who don’t have insurance — will pay a very heavy price. Chief Justice Roberts has the opportunity to avoid this disastrous outcome by forging even a narrow ruling to uphold the mandate and the rest of the law. A split court striking down the act will be declaring itself virtually unfettered by the law.
The conservatives want to “sidestep the Constitution”? Really? And if they rule (correctly) that the Ninth and Tenth Amendments are not trumped by a Commerce Clause of unlimited scope, and that the powers of the federal government remain enumerated, they are “declaring themselves unfettered by the law”?
Can I acquaint the Gray Lady’s editorial board with a minor decision from a couple centuries ago called Marbury v. Madison?
[Update a while later]
The Left’s meltdown over the Constitution:
Judicial activism is not something that happens every time the Supreme Court overturns a statute. The Justices owe deference to Congress and the executive, but only to the extent that the political branches stay within the boundaries of the Constitution. Improper activism is when the Court itself strays beyond the founding document to find new rights or enhance its own authority without proper constitutional grounding.
The classic example, acknowledged by good liberals like Alexander Bickel and Archibald Cox at the time, is Roe v. Wade in 1973. The High Court discovered a right to abortion rooted in a right to privacy that it had invented in Griswold in 1965 from the Constitution’s “penumbras” and “emanations.” Roe overturned 50 state laws and pre-empted a healthy debate that would have reached a different abortion consensus in different states. Our cultural politics has been polarized ever since.
The ObamaCare case is very different, as the oral arguments made clear. The Court is debating the reach of the Commerce Clause and of its own precedents in considering the limited and enumerated federal powers that are explicit in Article I, Section 8.
The Court has often overturned laws that exceeded those powers, including laws that it said exceeded the authority of the Commerce Clause (Lopez in 1995, for example, and Morrison in 2000). Hundreds of other precedents have extolled the value of the constitution’s “dual sovereignty” system—the division of state and federal power. As recently as the U.S. v. Bond case last year, Justice Kennedy wrote that “federalism protects the liberty of the individual from arbitrary power.”
But if they rule in favor of the Constitution, they’ll be demonized nonetheless.
[Update a while later]
So, a majority of the public wants it overturned, and expects it to be overturned. And somehow the court will “lose its legitimacy” by following the Constitution, and overturning it? When it won’t even affect stare decisis?
Dream on, Left.
Risible from start to finish.
Similar reasoning can be found in the Vietnam era statement, “We had to destroy the village in order to save it.”
There has been no court less restrained in signaling its willingness to replace law made by Congress with law made by justices.
And there has been no “newspaper” less restrained in practicing advocacy under the guise of journalism since… ever.
The four moderates on the court have a leftish bent
And a pretzel is a bent piece of bread.
It’s no wonder the modern left so often finds itself incapable of coherent argument. They read this tripe and consider themselves informed.
Not tripe. It’s the stuff that passed through the tripe before it became tripe.
the Ninth and Tenth Amendments are not trumped by a Commerce Clause of unlimited scope
The 10th amendment (“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.”) is irrelevant, because the Constitution does specifically delegate a federal power to regulate commerce.
The 9th (“The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”) says that the people may have rights not enumerated, but for that to be relevant the court would have to identify this non-enumerated right, and deem it sufficiently important to justify striking down an otherwise legitimate exercise of Congressional power under the commerce clause. That would be akin to the identification of a right to privacy in Griswold and Roe v. Wade, precisely the sort of judicial activism decried by the Republican members of the court.
It would also mean striking down a major law, and enshrining a newly discovered right, over an implementation detail. There’s no question that the individual mandate would be constitutional if it was structured as a tax credit rather than a penalty. If law A and law B have precisely the same effects, but only one is constitutional, the constitutional issue at stake is of no great importance. Requiring that laws be phrased one way and not another is no bulwark against tyranny.
It may be, however, a convenient way for Republican judges to give the Republican party something it failed to win at the ballot box.
because the Constitution does specifically delegate a federal power to regulate commerce.
It does not delegate a power to create commerce. Let alone create it for the express purpose of regulating it.
There’s no question that the individual mandate would be constitutional if it was structured as a tax credit rather than a penalty.
There’s plenty of question. The arguments would be different is all.
It may be, however, a convenient way for Republican judges to give the Republican party something it failed to win at the ballot box.
The reason the mandate was “structured” as a penalty instead of a tax was because of the ballot box. The congressional one. It’s the reason you lost this to begin with. Better luck next time.
There’s plenty of question.
No, there isn’t. The tax code is full of tax credits, for everything from efficient windows to hybrid cars. Do you think it’s constitutional to give a tax credit for buying a Volt, but not for buying health insurance?
The reason the mandate was “structured” as a penalty instead of a tax was because of the ballot box.
And how did that work out?
The last time I checked I am not being forced to “buy” a Volt. Yet. You’re clearly in favor of UK-style single-payer. I would think you would consider “tax-credits” for the purposes of subsidizing health insurance to be a step in the wrong direction.
And how did that work out?
The Democrat control of Congress was destroyed in the mid-terms because after Pelosi passed it, people read it.
Thanks Jim for coming and showing the truth in Rand’s opinion of the NYT linked article. I thought about fisking your points, but no need. Rand already did so. Its just amazing you still make them. Still, I feel the need to pull out a few doozies.
It would also mean striking down a major law
Alas, one would think liberals would find this a good thing. That is, if they truly believed in the meaning of that label.
enshrining a newly discovered right
Perhaps, newly discovered to some. Most of us recognize the Bill of Rights has existed for over 200 years, but apparently some are just discovering what it says.
There’s no question that the individual mandate would be constitutional
“Would be constitutional” is an admittance that it is not consitutional. This is why I decided to just point back to what Rand said. If you want to see the SCOTUS delegitimize government, then let sit an Act that is illegal, but is “close enough”. If “close enough” is the measuring stick, then vigilante tyranny will become the norm. After all, the man on a street with a gun dealing out justice has precisely the same effects as the government officer enforcing a mandate based on an unconstitutional law.
If law A and law B have precisely the same effects, but only one is constitutional, the constitutional issue at stake is of no great importance.
If that’s the standard, then indeed the consitutional issue isn’t of great importance, because at the point the constitution is no longer of importance.
Requiring that laws be phrased one way and not another is no bulwark against tyranny.
It damn sure is when the point of phrasing the law incorrectly was to purposefully lie to the voting public the intent of the law.
Perhaps, newly discovered to some
An explicit right to be free of federally-mandated commerce would be something new. It certainly wasn’t there when Adams forced sailors to buy health insurance.
If you want to see the SCOTUS delegitimize government, then let sit an Act that is illegal, but is “close enough”.
It isn’t illegal, because it does not give Congress any power that it did not already have, and then some. The irony is that there’s only an individual mandate because Obamacare preserves private health insurance (and customer choice in health insurance) rather than following Medicare’s single-payer model. It takes logical gymnastics to paint this preservation of consumer choice as a dire threat to constitutional rights.
It damn sure is when the point of phrasing the law incorrectly was to purposefully lie to the voting public the intent of the law.
Hogwash. Any voter who knew the first thing about the law knew that it forced them to either have health insurance or pay a penalty. You honestly think that the single least popular element of the law was put there as a selling point?
Jim, Adam’s didn’t force sailors to sail. That’s what “federally-mandated” commerce would mean in that context. What he did was forbid them to sail unless their captain had collected 20 cents per sailor as a payroll tax to the federal government.
It isn’t illegal
Jim, basic US civil studies for you. The US Constitution is the law of the land in the United States America. If an Act violates the US Constitution (what is meant when something is unconstitutional), then it violates the law of the land. Such an act is illegal and cannot be enforced. See a local middle school teacher or student if you need further assistance.
Any voter who knew the first thing about the law knew that it forced them to either have health insurance or pay a penalty
No voter knew a thing about the Act until it was passed, just as Pelosi told us. Further, Obama violated his 2008 campaign promise to be transperant by allow any passed legislation to sit 5 days prior to his signature. He lied, but that’s not illegal. Voters responded to the Democrats grab for power by voting them out of office in mass. It looks like that will continue this cycle.
In 2008 when he was in a primary fight against Hillary Clinton, Obama opposed the individual mandate. How were voters to know that after he took office, he’d be for it? Were they to assume he was lying (actually a very safe assumption)? Was Obama channelling his inner John Kerry of being against something before being for it?
Jim has a legitimate argument because our founders made a mistake in the wording of the commerce clause. It’s not a winning argument, but it is legitimate.
It’s not winning because in context it’s clear the founders never intended it to be the club of unlimited power. Obama in particular is not suited for Thor’s hammer.
The Founders would be rolling in their graves if they saw an amendment originally designed to prevent states from placing tariffs on each other’s goods being used to completely circumvent the enumeration of federal powers.
You know the joke about the Obama’s lie clock in heaven that Jesus uses as a fan to cool his office? Are the founders spinning faster?
Meh, the only news worth getting worked up about is their final decision.
The way the democrats have been attacking the scotus, they must not feel their chances are good.
The justices voted on the issues last Friday. They already know the outcome, as do their clerks and many others who work there. I think there’s a good chance that Obama know how the votes turned out as well.
Things will changes, of course, just as the Germans were able to firm up their defense in September ’44 after the collapse in August, but it is my opinion that right now the left is firmly on a trajectory to being nothing more than speedbumps.