27 thoughts on “The Constitutional Law Professor”

  1. That’s talk for the masses. The mandate is an expansion of government power beyond that permitted by the Constitution, so it’s not activist to strike it down.

    Frankly, prior case law expanding the Commerce Clause is way past what the Constitution allows, so it wouldn’t be activist to strike a lot of it down now, too. The Constitution can legally be altered by amendment. There’s no other way. Legally.

  3. The justices voted last Friday on this case. They already know the outcome. I suspect Obama does, too. This is likely battlespace preparation, getting people ready for at least parts of the oxymoronically titled “Affordable Care Act” to be overturned. They had hearings on different parts of the law. One hearing was on the mandate. I suspect that’ll be overturned 6-3. As for severability, that’s likely to be a 5-4 decision. I hope they rule that the lack of a severability clause means that the whole law is overturned but that all depends on how Kennedy was feeling that morning*.

    *They could save everyone time and money by just having Kennedy decide what he thinks the Constitution means on any given subject.

    1. I’d say it’s definitely battlespace preparation. My gut feel is also a 6-3 vote against the mandate. Breyer may go with the conservatives on this one. Probably only 5-4 for no severability and overturning the entire PPACA, as you said. And I believe POTUS already knows the scores. Someone has leaked Friday’s SCOTUS votes to him.

      The issue now is, exactly what battle are they prepping for? My money is on POTUS planning to issue Executive Orders that mandate free contraceptive services for women, children staying on parents’ insurance until 26, and other parts of the PPACA that appeal to Obama’s hoped-for main voting blocks in November. Executive Branch will find some tenuous basis for those Executive Orders in laws other than PPACA. I hope I am wrong and that POTUS will simply abide by SCOTUS rulings if they invalidate any or all of the PPACA. “I won an election on this issue, SCOTUS did not” and “social justice” as rationales for my hypothetical Executive Orders will not fly with the bulk of independent voters, but Obama may be at the point where he has nothing to lose trying that path.

      1. Executive orders have their limits Blue….Obama can force federal contractors and the federal government itself to implement the policies you mention, but he can do nothing to private parties (i.e. most of the economy) that isn’t directly doing business with the feds.

        With that said, your suggested line of rhetoric for him sounds exactly right.

        (BTW: my bet is that Kagan, slimy apparatchik that she is, leaked the results to him)

        1. (BTW: my bet is that Kagan, slimy apparatchik that she is, leaked the results to him)

          It’s the only explanation for the timing of this phony outrage.

  5. No Sh*t Larry!!! let’s just get rid of all the other Supremes and have Kennedy decide what’s constitutional.

    1. Or you could just make a special version of the Magic 8 Ball and let it decide. “Signs point to unconstitutional.” That would have about as much relevance to the Constitution as Anthony Kennedy’s decisions.

  6. James Taranto at the WSJ commented on whether such a decision would be “unprecedented” as follows:

    “Unprecedented? Even Linda Greenhouse would mock him for saying that. Did he sleep through the Harvard Law class on Marbury v. Madison?

    For that matter, did he sleep through his own 2010 State of the Union Address, in which he upbraided the Supreme Court for striking down portions of the Taft-Hartley and McCain-Feingold laws, both of which passed Congress by wider margins than ObamaCare did?”

    Taranto also quotes Rand’s pithy observations at PJMedia on the topic.

    1. Pity that the Constitutional Law professor (actually a lecturer, but anon….) never heard of Federalist 78….

  7. They didn’t complain when Lawrence v. Texas struck down a law that was older than the Magna Carta. Or when Roe v. Wade struck down a bunch of state abortion laws. Or when Kelo amended the Fifth Amendment’s Takings Clause by allowing eminent domain takings for private use.

  8. “OK, I give up, can someone tell me what would be “unprecedented” about SCOTUS striking down a law as unconstitutional?”

    This time it happened to Obama. Stuff like that doesn’t happen to Obama. The manchild acts like he’s never -seen- a B on even a homework assignment.

    1. Well, if you don’t count Citizens United. But maybe, despite the fact that he upbraided the court over it at the State of the Union address, he’s forgotten that.

      Speaking of which, just how politically smart is it to continually bait and lie about the people that you’re trying to get to vote your way?

      1. Citizen’s United wasn’t his.

        Obamacare is.

        Finding something to say “I’m shocked, shocked!” over is his modus operandi. But typically it’s something someone else has done that he can whine about. This time, it’s his “signature accomplishment” potentially having problems.

  9. Do you want to be able to predict his behavior? The man is a narcissistic sociopath. All else follows.

    1. One problem with having such a man as President is the very real risk of his overconfidence in his ability to push around leaders of the less powerful nations of the world.

  10. My question is not will they strike it down en masse or just pieces, but if they do, just how bat shit crazy is he gonna go! At this point, nothing would surprise me.

    He might try to bring charges against them for voting that way. It’s what totalitarian nuts do when they don’t get their way.

  12. So I’d imagine that Biden has gone from “Big F*cking Deal!” to “No F*cking Way!”. Huzzah!

  13. Oh, snap!

    …a federal appeals court apparently is calling the president’s bluff — ordering the Justice Department to answer by Thursday whether the Obama Administration believes that the courts have the right to strike down a federal law…

    “Don’t call my bluff!”

    1. That is Deeeeelicious! The US could be independent of fossil fuels, forever, if we could channel to turbines the superheated steam coming off the necks of Obama, Holder, and all their pals tonight due to the 5th Circuit’s order!

    2. Titus, your link now has updates. 🙂

      UPDATE 6 p.m. ET: The White House is declining to comment on the 5th Circuit’s order, but the president today did clarify his comments that it would be “unprecedented” for the Court to overturn laws passed by a democratically elected Congress. During a question-and-answer session after a luncheon speech in Washington, a journalist pointed out “that is exactly what the Court has done during its entire existence.”

      Mr. Obama suggested he meant that it would be “unprecedented” in the modern era for the Court to rule the law exceeded Congress’ power to regulate an economic issue like health care.

      Obviously Obama got his law degree from a cereal box because he certainly hasn’t studied any Supreme Court cases. He’s making himself look like an ignorant bufoon (which he is), and he’s making himself look that way to lawyers.

      1. in the modern era

        Meaning I guess since Citizens United? Or perhaps he means since April 1st, 2012?

        Note, there’s a second update:

        Smith made his intentions clear minutes after the DOJ attorney began her argument, jumping in to ask: “Does the Department of Justice recognize that federal courts have the authority in appropriate circumstances to strike federal statutes because of one or more constitutional infirmities?”

        Yeah, that is something to get cleared up. To turn a phrase by someone popularly elected, The President “acted stupidly”. Not only does the Supreme Court have the right to rule on such a decision, so does the lower appellant court. Recall, the 11th Circuit ruled against the mandate already. That ruling could have stood if not appealed by the Justice Department. If the DoJ isn’t held accountable, then it can be assumed the DoJ plans to ignore the appeals process. That’s a BFD, as someone else once said.

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