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The Right Prescription
The Supreme Arbiter of Your Liberty
The fate of Obamacare, and your individual liberty, could be decided by Anthony Kennedy.
Now that the Department of Justice has petitioned the Supreme Court to review Florida v. HHS, the high-profile challenge to Obamacare whose plaintiffs include officials of 26 states, most experts believe the justices will take up the case this term and issue their decision next summer. This possibility has been greeted with no small amount of glee by the law’s opponents. But we should be careful what we wish for. If the Court rules Obamacare or its mandate unconstitutional, it would definitely be the ultimate “twofer” for conservatives, polishing off an atrocious assault on individual liberty and subjecting the President to a devastating defeat in the midst of his reelection campaign. But this is far from inevitable. The deciding vote will probably be cast by a justice whose opinions have been all over the ideological map.
Progressive mythology notwithstanding, Supreme Court justices don’t robotically adhere to their general ideological bent. This is why, in Bush v. Gore, the 7-2 majority that ruled the Florida recount unconstitutional included two liberal justices. Nonetheless, it isn’t difficult to imagine which way eight of the nine current justices will come down on the Obamacare question. Justices Kagan, Ginsburg, Breyer, and Sotomayor will almost certainly favor upholding the entire law, including its egregious mandate. Justices Roberts, Scalia, Thomas, and Alito will probably want to strike down the mandate, although it’s harder to predict their opinions concerning its severability from the rest of the law. Anthony Kennedy, however, is the Supreme Court’s sole remaining swing vote, and it is impossible to predict what he will do.
He has on many occasions produced opinions about which conservatives have no cause for complaint. He was, for example, not merely among the seven justices who ruled the 2000 Florida recount unconstitutional, he was one of the five justices who said that the state had run out of time to contrive an alternate method of vote tabulation. Likewise, Kennedy joined the majority in District of Columbia v. Heller, which struck down the D.C. handgun ban pursuant to the Second Amendment. Predictably, the latter decision incurred the wrath of progressives everywhere, many of whom singled out Kennedy for derision concerning a remark he had made during oral arguments about the need for “the remote settler to defend himself and his family against hostile Indian tribes and outlaws, wolves and bears and grizzlies.”
Justice Kennedy has also sided with liberal majorities in a variety of important cases, including the infamous Kelo v. City of New London, in which the Court permitted a local government to steal a piece of real estate from a private individual and give it to a corporation. The tragic irony in this case is that the “economic development” ostensibly served by New London’s land grab has never taken place. Five years later, the stolen property is being used as a debris dump: “Pfizer, the intended beneficiary of the land theft, walked away years ago from their development plans. Now, to add new insult to injury, the vacant lot is a dump. Literally.” In other words, Kennedy participated in a gross violation of private property rights and the pretext for this atrocious decision has long since evaporated.
Significantly, Kennedy also voted with the majority in Gonzales v. Raich, a ruling that will certainly figure in the Court’s deliberations concerning the individual mandate. This case involved Angel Raich, who had been growing medicinal marijuana for his own use on his own property in a state where this was legal. In 2005, however, the Supreme Court ruled that the federal government could prohibit him from doing so pursuant to its power to regulate interstate commerce. This decision was, as Ilya Somin of George Mason University puts it, “easily the broadest-ever Supreme Court interpretation of the Commerce Clause.” And, because Congress claimed the mandate was an exercise of its power under that very clause, the DOJ has cited this ruling in virtually every brief it has filed since it began defending Obamacare last year.
Kennedy’s record, then, is not merely incoherent. It also suggests that he believes the Constitution gives the federal government very broad powers via the Commerce Clause. If the Court upholds the individual mandate, it will increase federal power over your day-to-day life to a much greater degree than did even the Raich ruling. Whereas the latter regulates an activity, growing pot, Obamacare’s mandate regulates something you are not doing. As constitutional law professor Randy Barnett explains it: “[T]he statute speciously tries to convert inactivity into the ‘activity’ of making a ‘decision.’ By this reasoning, your ‘decision’ not to take a job, not to sell your house, or not to buy a Chevrolet is an ‘activity that is commercial and economic in nature’ that can be mandated by Congress.”
In other words, if the Supreme Court acquiesces in Obamacare’s specious justification for the mandate, it means that there are no real limits to federal power. And this is where your personal liberty will be intimately affected by Justice Kennedy’s view of the mandate. If Congress can order you to buy insurance, it can order you to do anything. As U.S. District Judge Roger Vinson put it last year, “If they decided everybody needs to eat broccoli because broccoli makes us healthy, they could mandate that everybody has to eat broccoli each week.” Assuming the Court does grant the DOJ’s petition, the only man standing between you and that kind of tyranny is a 75-year-old swinger from Sacramento, California. Anthony Kennedy could well be the ultimate arbiter of your personal liberty.
About the Author
David Catron is a health care revenue cycle expert who has spent more than twenty years working for and consulting with hospitals and medical practices. He has an MBA from the University of Georgia and blogs at Health Care BS.
Letter to the Editor View all comments (133) | Leave a comment
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The Bishop| 10.5.11 @ 7:00AM
Given Elena Kagan's previous role as Solicitor General in the Obama administration, shouldn't she recuse herself from this decision?
oldfart| 10.5.11 @ 7:31AM
Ethics requires that she recuse herself. But when did ethics every get in the way of a progressive?
The Bishop| 10.5.11 @ 8:16AM
Ah, yes, ethics! What was I thinking?
Jack in Wi.| 10.5.11 @ 8:42AM
Kennedy and O'Connor were 2 of Reagans biggest mistakes.
W| 10.5.11 @ 10:22AM
Reagan nominated Kennedy after Bork was savaged and defeated by the Dems, notably TeddyK and JoeyBiden and PatrickLeahy.
Al Adab| 10.5.11 @ 1:24PM
We end up with these "luke warm' types on the bench because the GOP refuses to play by the DEM playbook. Should not the GOP have gone to the mat over Kagan and Sotowhooziz? The Left can "bork" or filibuster any nominee but heaven forbid Conservatives ever try that.
W| 10.5.11 @ 3:03PM
Absolutely. The Dems, through Schumer, announced they will question and oppose a nominee based on his political beliefs regardless of the qualifications.
The Reps still play the old gentleman routine by approving a nominee provided the nominee is qualified. They don't question the views of Ginzburg, Kagan, etc.
I think the Reagan people were not prepared for the Bork attacks. Bork was the most qualified nominee in recent history, and they assumed he would be approved.
At least Bush 41 was prepared when Clarence Thomas was attacked by the Teddy/Biden gang,and fought back.
Incidentally I saw and heard Justice Scalia two weeks ago and he is brilliant. He was approved in 1986 by a vote of 96 to 0.
Always good to hear from you, Sheik,and hope all is well with you.
Al Adab| 10.5.11 @ 3:47PM
Thank you W, good to know you are on the job.
W| 10.5.11 @ 4:53PM
Al Adab,came home early and now am making pasta with a musroom/white wine/garlicl/olive oil/zucchini sauce for wife
Occam's Tool| 10.5.11 @ 4:07PM
The nomination of judges IS the most important Domestic part of a President's job, and the reason why NOT allowing Liberals to win is SOOOO important. I got out and voted for McCain because I knew there would be appointments this term. Can anyone doubt we would have had two better appointments than clown 1 and 2 if McCain had won?
Quartermaster| 10.5.11 @ 9:00PM
Yes, we can doubt it. McCain is known as a RINO for a very good reason. I'm sure Reagan had regrets about Kennedy. McCain would have had none and appointed more besides.
RCV| 10.5.11 @ 4:14PM
Scalia is brilliant, and he deserved his unanimous confirmation. Kagan and Sotomayor did face tough questioning before their approval, as did Alito before he was approved. Roberts sailed through almost as easily as anyone did.
W| 10.5.11 @ 5:01PM
OT and RCV, (what a combo!)
I agree with you both. I have one reservation.
Both parties now place so much emphasis on the Court because it seems the Court decides every important issue, such as abortion and Obamacare.
I don't think this is good in the long run for a representative republic. The Court is the least representative branch.
What do you think?:
W| 10.5.11 @ 5:04PM
Ooops, forgot to put Al Adab in the greeting, and Al, what do you think?
Al Adab| 10.5.11 @ 5:37PM
We have allowed the Court to become an arbiter of law, indeed a creater of law, by its penchant to find meaning in the "penubras" of plain language. In part this derives from the desire of some to impose a theoretical reality on an unwilling (free) population. That they have found willing accomplices in Judges, themselves a self-annointed elite, is the source from which the issue of the Courts importance stems. Thus we arrive at a point in our national life where the States are seeking to reassert themselves on behalf of their citizens against the centralizing power of the national government. The inertia of centralization is what we seek to overcome thereby returning authority to more local governments closer to the people and in that sense, reflecting the diversity of our fifty States.
Sorry that was a bit long but I try to answer.
RCV| 10.5.11 @ 6:51PM
Al Adab: We have certainly centralized, as you note, from the Federal system originally envisioned by the Framers. But I don't think you can completely blame the Court for that. The nation made a deliberate decision in the wake of the calamatous Civil War to change our institutions from a more decentralized union of States to a national Republic. That was the clear import of the Amendments enacted to the Constitution in the Antebellum period. The 13th through 15th Amendments took away the states' powers to deny any of their citizens rights that were viewed as "national" rights; the 16th gave broad new taxation powers to the national government; the 17th specifically removed from state legislatures the power to name Senators, who would be more indebted to state interests. All of these were deliberate efforts to forge a unified national government.
You can bemoan the trend, but it's hard to blame on the Court. In its further defense, the current Court has been moving steadily toward an envigoration of state power vis-a-vis the federal government, but the antebellum amendments will prove a check on returning the balance to its original design,
Al Adab| 10.5.11 @ 7:58PM
RCV:
Certainly I do not blame our trends toward centralization on the courts. Actually I blame us. For whatever reason, one might suppose a search for a "more perfect Union" being one, we have centralized authority. The experiment has failed. Now is the time in our national life to unwind that centralization which may or may not have achieved its goals.
Careful to not confuse the post-bellum amendments with the progressive era ones. A half century seperates them. We have seen the failure of the Progressive Era by now and need to consider how to move authority back to the States.
The constant tension between the Federal and Stae governments was something Madison considered as a genius of the Constitution as he thought that constant tension and debate would protect Liberty.
Quartermaster| 10.5.11 @ 9:04PM
One can not separate the so-called progressive era amendments from the post Lincoln's war amendments. The Progressives were in the mainstream of the GOP from the beginning which is why we had the illegal war of 1860-65 in the first place. The progressives have changed their goals over the years, but they have always been statists and got their start in the early GOP.
RCV| 10.5.11 @ 6:42PM
I think that is a strength, not a weakness, of our Constitutional Republic. We have guarantees of rights against encroachment by the majority. The Federalist is eloquent on why, in a Constitutional Republic, the passions of the majority must sometimes be checked if fundamental rights are to be guaranteed. I'm heartened in reading my Constitutional law books to see how consistently the Court has protected our constitutional freedom of speech for example.
Does it make mistakes sometimes? Indeed: Dred Scott, Plessy. Maybe someday people will view Roe v. Wade in that way. But over the long haul, I think it's one of the reasons our Republic has survived, and will survive over the long haul.
W| 10.6.11 @ 11:04AM
RCV
I agree about an strong or almost absolutist position on free speech since that is the foundation of the rest of the Bill of Rights.
Justice Scalia said he believes that about the First A, he was discussing the flag burning case where he agreed that the First A allows such speech, even though he personally opposed it.
I agree because the Government should not limit the cititzens' speech, but the Court in cases such as abortion and Dred Scott was simply substituting its opinion on social policy. In Scott had the Court applied the statute as written, Scott would have been free, instead they ruled a slave was personal property.
Some of the Dem Senators questioned Alito as if he was a racist. They questioned Bork about movies he rented and why did he have a beard. The Rep Senators did not ask, nor should they had, Kagan and Sotomayor in this manner. I have no problem with tough questions about their judicial views and philosophy and how they analyze cases.
RCV| 10.6.11 @ 11:40AM
Oh, but they did - they questioned Sotomayor at length on the proposition that she was a "pro-Latino" racist. I share with you disdain at the circus our judicial confirmation proceedings have become.
W| 10.6.11 @ 2:53PM
But the questions were because she said something about a "Latino woman" understanding the issues. They asked her what she meant. I don't know what that means.
Scalia said he has two sons who are attorneys and one son a priest, and the priest makes up for two attorneys.
RCV| 10.6.11 @ 5:54PM
I've actually met the Scalia attorney sons, and they are as smart as their father, and just as nice. Every Catholic family, certainly the Italians and Irish I grew up with, always wanted one son to be a priest .... but just one. The rest had to produce the grandchildren.
Jack in Wi.| 10.5.11 @ 7:27PM
Bork should have been his first nominee not O'Conner. She was never much of a legal mind. Reagan let us all down with those 2 picks O'Connor and Kennedy.
Dave | 10.5.11 @ 4:02PM
For those among us who, understandably, might still be having difficulty following the Obamacare raisin trail and what actually looms at the END of that trail, I thought you might like to read a short commentary/quote on the subject. I can't honestly give actual attribution to the quotee, but so far, it's being attributed to Donald Trump. Or as the first Mrs. T calls him - "The Donald." A few reader here might think it's just another smart a-s comment from somebody with too much time on their hands. However, when you read each line and consider the underling questions ... it makes pretty good sense.
There's a lot of stuff here that the always reliable, shaky kneed Republicans were too timid to ask during the Day One debates. But with their past history, it was predictable.
Anyway, give it a read, give it some thought and see what you *think. (*actual thinking may be estimates; your thoughts may vary.)
"Let me get this straight: We're going to be gifted with a healthcare plan we're forced to buy and fined if we don't, which claims to cover at least ten million more people without adding a single new doctor but provides for 16,000 new IRS agents, written by a committee who's chairman says he doesn't understand it, passed a Congress that didn't read it but exempts themselves from it, and signed by a president who smokes, with funding administered by a treasury chief who didn't pay his OWN taxes, for which we'll be taxed for four years before any benefits take effect, by a government which has already bankrupted Social Security, Medicare, all to be overseen by a surgeon general who is obese and financed by a country that's ... broke! What could possible go wrong?"
Questions? Anyone??
Thom| 10.5.11 @ 7:38PM
If common sense had anything to do with judical appointments and their decisions the obvious here would never had to have been said.
Nancy in NC| 10.5.11 @ 9:37AM
She (and Sotomayer) should never have been confirmed in the first place.
Mike Hawk| 10.5.11 @ 11:05AM
Ask Lindsay Grahamnesty about that.
loulou| 10.5.11 @ 10:38AM
Chief Justice Roberts had better make sure Kagan recuses herself.
RCV| 10.5.11 @ 11:46AM
No. Nothing in the rules of judicial ethics would call for her to disqualify herself, since she had no involvement in the legislation in question. Because Supreme Court Justices can't be replaced, they are required to recuse themselves only when absolutely called for.
George S| 10.5.11 @ 12:56PM
Wrong. She drafted legal arguments as to how to avoid the restrictions of the commerce clause. If you were a party in a law suit or a criminal case, would you want a judge who has already formed an opinion against your arguments prior to hearing them?
RCV| 10.5.11 @ 2:04PM
She did not, and so testified before the committee. Please cite your source for facts to the contrary.
2guns | 10.5.11 @ 2:21PM
Would to show the "Facts" except Eric Holder won't release the emails and other documents that show her envolvement.
RCV| 10.5.11 @ 2:46PM
How do you know they exist?
George S| 10.5.11 @ 4:02PM
No go. As Solicitor General it is her job to advocate the government's argument. Whether she actually sat at the keyboard herself is irrelevant; her office was actively preparing arguments to circumvent the commerce clause. To say that there is no evidence of a formed opinion is to believe she did not participate in any of the preparations. Was she told she was being appointed to the next SCOTUS slot? Or did she artfully testify in the manner of Alger Hiss: "I do not anyone by the name of Whittaker Chambers" (he only knew him by his code name, so technically he did not commit perjury. Technically.) Either way, that disqualifies her from rendering an opinion striking down the law because she would have to agree that her predetermined opinion is wrong. That's why recusal was invented.
RCV| 10.5.11 @ 4:17PM
No, her testimony was clear and concise as to her noninvolvement in the drafting of the legislation. There is simply no basis for believing otherwise. Nothing - nothing - in the Canons of Judicial Ethics would call for her recusal, and Supreme Court Justices have affirmative duty to hear cases when they are not required by the Canons to recuse themselves.
Dollface| 10.5.11 @ 6:32PM
You can always lie.
RCV| 10.5.11 @ 6:44PM
Yes, but do you have any proof she did?
Southern_Comment| 10.5.11 @ 7:19AM
Yes, but that will not make it a reality.
VBMax| 10.5.11 @ 7:22AM
How has it come to this? That one man can determine the future of freedom in America. Obviously, this is not what the Founders had in mind for us. Somewhere in their constitutional deliberations lies the solution and we must avail ourselves of it.
Moe Blotz| 10.5.11 @ 8:06AM
As tyranny encroaches the last resort would be to consult Smith & Wesson,Ruger,Charter Arms,Glock,Winchester,and a host of others that do not come into my mind.
Maxwell| 10.5.11 @ 8:25AM
With all due respect, I prefer the law firm of Wilson, Baer, Brown, & Springfield.
Moe Blotz| 10.5.11 @ 10:52AM
Thank you for adding to the list. Your choice of law firm would be preferable to Dewey, Dickem, and Howe.
Anthony| 10.5.11 @ 9:53AM
It has come to this because all of Washington has become corrupt. Our system of government envisioned by our Founders, is the greatest testament to the very best of mankind.
What has happened over the decades is that pols of both parties have ignored fealty to the Constitution and have been unable to control their appetites for power. The worse instincts of humanity have taken control.
This corruption in all branches of the government, including the Courts, have led to this abysmal situation.
We the people left these bastards to their own devices and failed to take notice and do our jobs as the true stewards of America.
Jefferson knew that government needed to be shaken up every 20 years or so. We are long, long, overdue for a serious shakeup in Washington!!!
rendite| 10.5.11 @ 1:12PM
How has it come to these biannual travesties played out by the Supremes and the minions who serve them?
It has come to this because we are deeply confused. We somehow consider those in the law as those involved in an upright, decent, good, white-collar working profession.
Trinacria| 10.5.11 @ 1:29PM
Not exactly a profound insight, there, Tony.
Al Adab| 10.5.11 @ 3:04PM
Truth is a defense nonetheless. It need not be profound.
George S| 10.5.11 @ 1:09PM
One Man is not deciding our fate. First, 220 Representative members voted for it to pass the House. Then, 60 Senators votes for it, then signed by the president. From there, it went to District courts and Appellate courts where at least a dozen judges ruled on it. Since those judges did not all agree, it now goes before nine more.
It has come to this because we decided to teach Republicans a lesson by turning over two branches of government over to liberal Democrats back in 2008.
John Navratil| 10.5.11 @ 5:31PM
George S,
An who could possibly have thought they could do so much damage in such a short time? It boggles the mind.
WalkingHorse| 10.5.11 @ 3:39PM
"The mass of mankind has not been born with saddles on their backs, nor a favored few booted and spurred, ready to ride them legitimately, by the grace of God." -- Thomas Jefferson
"Firearms are second only to the Constitution in importance; they are the peoples' liberty's teeth." -- George Washington
"Laws are made for men of ordinary understanding and should, therefore, be construed by the ordinary rules of common sense. Their meaning is not to be sought for in metaphysical subtleties which may make anything mean everything or nothing at pleasure." -- Thomas Jefferson
"Law is often but the tyrant's will, and always so when it violates the right of an individual." -- Thomas Jefferson
Walking Horse| 10.5.11 @ 3:51PM
@VBMax - look at my other post for some salient comments by two of our more prominent Founders.
Al Adab| 10.5.11 @ 5:51PM
Has it come to this? Perhaps, but cannot we together say, "This far and no further?"
Al Adab| 10.5.11 @ 5:52PM
Has it come to this? Perhaps, but cannot we together say, "This far and no further?"
Timothy L. Pennell| 10.5.11 @ 7:25AM
Bush v Gore is not a good example. For the Liberals, on the Court, Al Gore was just a Man. There's lots of Men. And Presidents come and go. It's the IDEOLOGY that is Sacrosanct.
ABORTION: Everybody knows, that there's no Right to Murder your Unborn Child. Everybody knows it. Yet, there it is. No-one can point to WHERE it is, in the Constitution. They've just point to the Supreme Court Decision.
SEPERATION of CHURCH and STATE: Show me where it says that you cannot put up a Creche, at Christmas time. Show me the clause, in the 1st Amendment that states:There shall be NO PRAYER before the Big Game, and no GOD BLESS YOUS, on School Property.
If anything, it states just the opposite.
School Busing. Judges RAISING TAXES for "Equality" purposes. (Milwaukee?) Judges Forcing School Busing. (Yonkers) Judges CONFISCATING Private Property, in an attempt to get MORE TAX REVENUE. (Kelo vs. New London)
It's all about Ideology.
We have 4 Supreme Court Justices, who agree with ALL of those decisions, I've just mentioned. One of them - Kagan - couldn't even answer the question, when she was asked if the Government can tell you WHAT TO EAT. They don't believe in the Individual.
How can anyone, who has ANY knowledge of what's in the Constitution, think that it allows for the Federal Government to FORCE YOU to buy something?
It's for the CAUSE. It's for the Collective. For the Greater Good.
All power to the CAUSE.
Nancy in NC| 10.5.11 @ 9:36AM
As usual, Timothy, I find your comments right on target.
Redstateboy| 10.5.11 @ 9:43AM
Pennell.. don't forget the most worthless piece of crap on that court: Ruth Bader Ginsburg. This woman is a first class nutjob. I don't believe there is a Far enough Left position she wouldn't rule as "Constitutional"
loulou| 10.5.11 @ 10:41AM
No, the fool Breyer is every bit as bad as Ruth Buzzi. The wise Latina has been laying low but I guarantee she could give Ruth Buzzi a run for the money in terms of worthless piece of crapness. At least Ruth is intelligent. Or used to be.
Occam's Tool| 10.5.11 @ 4:02PM
Ruth is intelligent; this merely extends her scope for evil.
RCV| 10.5.11 @ 4:19PM
Ruth Ginzburg is not "evil", which is why she and Justice Scalia are such close friends. Demonizing people who hold good faith opinions you diagree with is a nasty habit.
Al Adab| 10.5.11 @ 5:02PM
Do you guys mean Darth Vader Ginsberg? Many ideologues are intelligent people. That is why they so often seek Utopia. Theory trumps reality as reality is often less than ideal. Perfection is the enemy of success and seeking to create and impose it leads to tyranny.
martin j smith| 10.5.11 @ 7:26AM
Our entire legal structure needs to change starting with SCOTUS because it has become basically a political wing of political persuasion that happens to influence the judges. So perhaps ALL JUDGES must be elected by the voters with term limits AND with the ability to recall them if the voters don't like their views or decisions. That is about it from me .
Harry the Horrible| 10.5.11 @ 9:25AM
No election of Supreme Court Justices. That goes against the intention of the founders.
But perhaps set a term for their appointment? Say 10 years, with the option for being re-appointed for another 10 years before mandatory retirement?
Mike Hawk| 10.5.11 @ 10:05AM
A mandatory retirement age would be more suitable.
USSAlabama| 10.5.11 @ 10:20AM
Exactly. End lifetime appointment. This crap of waiting on one to die is ridiculous.
Also think we need a way to get rid of one when s/he goes rogue - like (?).
loulou| 10.5.11 @ 10:44AM
Thurgood Marshall had dementia towards the end of his term. Scary.
Mark Levin wrote a book, "Men In Black" about the many loosers who have sat on the SC.
Mike Hawk| 10.5.11 @ 11:07AM
Mark Levin goes right to the essence of the problem. Great book.
Leroi| 10.5.11 @ 10:47PM
Similar to the identification of the classes of the Senate in Art 1 Sec 3.
18 year terms, one justice's term expires every two years. Every presidential term will nominate 2 justices, every senatorial term will vote on 3. A justice dies in office, the replacement serves the rest of that justice's term; if >4 years were left, the replacement can't be nominated for a full 18 year term.
George S| 10.5.11 @ 2:07PM
You cannot just apply term limits and elections to liberal leaning Justices. The media and Congress would just love to go after Scalia during election season. Why do you think that Congress never touched mandatory sentencing for drug crimes, social security or ethanol subsidies with a pencil sharpened by the Constitution? To prevent waves of attack ads by their opponents and making reelection more difficult. Same cover your ass protect your power will now apply to legal decisions made to please voters instead of a respect for the Constitution.
martin j smith| 10.5.11 @ 7:28AM
In the meantime since we have the none goof balls to deal with why not have GIANT Tea Party Rally in fromt of the SCOTUS building with signs that say.
NO TO OBAMACARE. Or better: VOTE NO TO OBAMA CARE.
Dan Hirsch| 10.5.11 @ 9:43AM
mj,
I believe the idea behind the lifetime appointment for Justices was to insulate them from voter retribution for unpopular decisions. The original thought was that should the Court grab the wheel and start legislating and exceeding its authority, the legislature and the executive branches would react to limit their activities. We also have the option to amend the Constitution as a way to get rid of bad SCOTUS output, like Roe v. Wade...
We actually should start pushing for an Amendment to put the Commerce Clause back in its cage. Maybe something like, federal laws only apply to things that actually do cross state lines, rather than things that could cross state lines.
It'll be messy, but a lot less messy than what we have now...
Actively promoting and passing Constitutional Amendments looks like it should be a serious, frequent, bread-and-butter tactic for the Tea Party.
We wouldn't have to wait four years, and the pols would see that it was time to get with it or get out...
No tax pledges are easy, but pretty fragile. Constitutional Amendments, no so much.
Remember the impact of California's ballot proposition system? We could start today. Why put up with this for another 13 months?
Paging Tea Party Patriots everywhere!!!!
Don't Tread On Me!!!
Maddox| 10.5.11 @ 9:57AM
Yes, the way to deal with bad legislation is through Congress. That is why the next election will determine whether we avoid third world status as a country or remain free with potential to prosper.
Al Adab| 10.5.11 @ 11:50AM
Whatever the Court may opine, the thirty-three States suing over opt out potential will ultimately be the arbiters. States will simply refuse to play or pay and then we shall see exactly what tyranny we have evoked.
Pelligrino| 10.5.11 @ 1:22PM
Thank you, AA. The number of governors, state legislators, states attorney generals, etc. The list is long. So many who have gone on the record to say, "No, this is junk. It will bankrupt our state." As it is with corporations who have also sought exceptions to policy or opt outs.
The hacks in Washington D.C. can come up with all kinds of malarkey. Ultimately it has to work in the empirical world.
This does not.
POST American| 10.5.11 @ 7:36AM
--Great piece!
NOW, is everyone getting a load of how
the capstone is co-opting and discrediting
the GENUINE American oposition via
their scripted 'Wall Street Be-IN'?
-------Or should we say 'BEE---IN'?
---------as in hive-jive?
And in all the mayhem, and media coverage,
NO mention of the nature of the FED ---and
certainly NOTHING on Globalisation
and the RED China sellout, TREASON and EUGENICS
OP.
---SO, as ever, keep goin' kiddies! ---keep goin'!
------Roseanne's wearing a Mao jacket!
--------and Michael Moore's got
------------David Rockefeller's eyes!
---------------------Just keep a goin'---------------------
Ignats75| 10.5.11 @ 9:02AM
Without being priggish, I find all arguments where words are spelled incorrectly specious. Please stop making my head hurt.
Nancy in NC| 10.5.11 @ 9:35AM
The Supreme Court is not the end all. Congress can still repeal the piece of crap.
Also, where did we get the notion that the Supreme Court is appointed for life? Where does the Constitution say anything remotely like that?
The Founders intended for the Judicial branch to be the weakest of the three branches, followed by the executive branch, with the Congressional branch the strongest.
Look how far we have progressed...NOT!
Dan Hirsch| 10.5.11 @ 9:49AM
Nancy,
Here: http://en.wikipedia.org/wiki/S.....tes#Tenure
Capice?
And would you really want a faster revolving door at the SCOTUS?
I think we need to get the Tea Party a lot more involved in the Constitutional Amendment process. They clearly have the breadth and appetite for it. It'd sure plumb up these DC statists who think they rule us...
DTOM
Mimi| 10.5.11 @ 10:00AM
If the JUSTICES were on their toes...Last summer they should have READ every word of the OBAMACARE 3000 pages. This administration of Democrats have been putting a lot of FREEDOM KILLING stuff in all the FINE-PRINT of laws!
We should see the court to totally renounce ALL of the health-care BILL as UN-CONSTITUTIONAL by ALL NINE Justices!!!
RND| 10.5.11 @ 11:47PM
Mimi, it would be wonderful if these justices, our legislators, senior govnerment officials all actually read.
Do they?
Very Doubtful.
This is why they have massive staffs.
They get the staffs to cut and paste and apply a little yellow highlighter to a few salient points.
I am sure there is a tops 5-page executive summary rigid rule for the final product that the "boss" sees.
Yeah, the law school grad kid doing this cutting, pasting, reviewing, checking is in his first real job. Oh, sure, he thinks he's really hot stuff working for a Supreme. But his real goals in life are more imediate: Getting a good buzz on watching Monday Night Football with pizza in Georgetown tonight and then trying to snag that cute intern in the Senate office into bed by Friday night.
If anyone actually views these 3,000+ page monsters, they 1) don't understand 45% of what they're reading, and 2) don't have to worry that much.
No one else but the K-Street boys have actually read it. Oh, actually they -- the well-heeled lobbyists -- they wrote it.
Carol| 10.5.11 @ 10:00AM
Mark Levin was talking about this last week. He said that Kennedy sided with John Paul Stevens much of the time. Scary.
Retired Justice Stevens Says Obamacare Supported By Medical Marijuana Decision
By On the Net, on September 29th, 2011
ABA Journal: Retired Justice John Paul Stevens is citing one of his own opinions as offering legal support for President Obama’s health care law.
Stevens referred to the opinion, Gonzales v. Raich, in an interview with Bloomberg News. The 6-3 decision held the federal government had commerce clause authority to ban medical marijuana, even when the drug doesn’t cross state lines.
“To the extent that the commerce clause is an issue in the case, it just seems to me very similar” to the medical marijuana dispute, Stevens told Bloomberg. Justice Antonin Scalia and Anthony M. Kennedy sided with Stevens in the case, though Scalia wrote separately.
Dan Hirsch| 10.5.11 @ 10:13AM
Carol,
They cannot overturn a Constitutional Amendment! C'mon people, we can only count on ourselves!!!!
Time to start circulating an Amendment on this. If 26 states have already joined the suit against it, we only need 11 more.
I'm just saying, this is a serious answer to "Oh no! What can we do?"
DTOM
martin j smith| 10.5.11 @ 10:26AM
Voters get back at SCOTUS thru elections particularly Presidential elections but also others. But for me SCOTUS appears to be a group of " Judges" who because of their own political persuasion create a pre-ordained result on one side or the other. This is not justice but a political battle in the courts as we can see here.
Term limits I support. But insulating judges from the wrath of the voter--I do not think that has been happening or will ever happen.
Dan Hirsch| 10.5.11 @ 11:05AM
mj;
Can you recall any human effort that did not end up shaped somehow by political aspects?
If you don't like politics, you need to live in a cave or a grave. To get away from politics, you just have to get away from people, including those little voices in your head that often disagree with each other.
I'm just sayin'...
DTOM
VonMisesJr| 10.5.11 @ 10:53AM
I predict the Supreme Court will defer to the next session. The docket is full with other unconstitutional offenses by the regime, and they will wait for the election to potentially rectify the issue.
This would be positive since Obama will have to run with this albatross around his neck. And if Hillary steps in, she has HillaryCare that will be cement boots.
John Navratil| 10.5.11 @ 5:37PM
VonMisesJr,
I don't think this is an option. It's on the docket for this term. RCV?
martin j smith| 10.5.11 @ 11:31AM
We have four justices on the left and four on the right and one who apparently is a loose canon or something who can go either way. So the fate of our Liberty in this particular case rests with one person.
If he supports the mandate are there remedies that can be followed or is this our end ?
Will one justice take it upon itself to determine the way our nation goes ? Very scary indeed.
martin j smith| 10.5.11 @ 11:40AM
Actually I have one thought--it is not a remedy exactly but I will call it a strong motivator. That is it will be the pin that is applied to the b-hind and gets voters who might have been a bit asleep to wake up,
Peppermint Tea| 10.5.11 @ 12:10PM
President Obama WANTS a decision on Obamacare next summer to build his campaign. If O-care is ruled unconstitutional, he will tell the untaxed identity-conscious class that they need to re-elect Democrats to do it right. It gives him an issue for them to fight for--and by fight, I mean, DEMONSTRATE, STRIKE, and RIOT. He hopes this helter-skelter will either get him elected or allow him to suspend elections.
Plan B is that it is found constitutional--that the State has the right to tell us what to buy, how to live, and what to eat. And he will proceed and tell us how to vote, or if voting is even necessary.
George S| 10.5.11 @ 12:39PM
I wouldn't sweat Gonzales v Raich as a precursor to upholding ObamaCare. That decision did not in any way shape or form give wiggle room to the Congress to mandate people to purchase marijuana. The decision stretched the authority of the Congress to regulate activity of individuals on private property if there is a rational basis that that activity could be used as a loophole to circumvent federal law (holy constitutional convention, Batman).
Yes it's a stretch, but before the mandate to engage in economic activity is adjudicated, there still has to be another one or two Gonzales type cases to bridge the gap in order for Kennedy to take the jump. Not now though; at least I hope so.
Ken (Old Texican)| 10.5.11 @ 1:14PM
What it all boils down to folks.....
If we can't take the Senate and the presidency in 2012, this country goes into the toilet for our lifetimes excluding MASSIVE refusals to obey tyrants by us sitting down and refusing taxable income.
Question:
How many of you are willing to sit down and starve the pukes?
Al Adab| 10.5.11 @ 1:49PM
A General Strike.
There are enough in the Conservative Movement, the TEA Party, our Libertarian friends and business owners to make it happen. Take a couple days off and see how the heathen rage.
no hussein 2012| 10.5.11 @ 2:58PM
Count me in!
Richard| 10.5.11 @ 1:58PM
We wait each Spring for the latest edicts from the ruling class Supreme Court as if we are some European peasants bowing to the latest Royal decree. Tyranny is thy name.
RCV| 10.5.11 @ 2:05PM
No, a Constitutional Republic is thy name. Read the Federalist.
idalily| 10.5.11 @ 11:28PM
We haven't been a true Constitutional Republic since the 17th Amendment.
RCV| 10.6.11 @ 5:56PM
Not so, not so.
Citizen| 10.5.11 @ 2:16PM
If the case regarding growing marijuana for self consumption is the main liberal precedent, doesn't this mean that the WH vegetable garden is unconstitutional as it deprives farmers of selling their goods?
RCV| 10.5.11 @ 2:47PM
Your usual brilliant legal analysis, Clint. Congress hasn't outlawed vegetable gardens, you idiot.
Ken (Old Texican)| 10.5.11 @ 3:04PM
RCV,
actually they have outlawed personal growing... They just don't have enough regulators YET to enforce it.
My grandfather and his boys shot a couple of govment guys when they demanded he plow under his corn crop.
Heh...
They never came back to Houston County Texas...and my granddad fed his cows and fed his kids.
You dumbshit paper pushers will deal with this some day.
Ken (Old Texican)| 10.5.11 @ 3:19PM
My post was cut off.
RCV,
you paper-lie pushers will deal with this some day SOON!
Al Adab| 10.5.11 @ 3:45PM
Actually RCV they did many year ago and placed personal gardens under the interstate commerce clause because people MIGHT sell their beans.
RCV| 10.5.11 @ 5:03PM
I'm well aware of the Agricultural Adjustment Act that the New Deal Congress passed and the Court's rulings upholding it. I think the White House Garden would even have passed muster under that legislation, no matter what one thinks of it!
Al Adab| 10.5.11 @ 5:48PM
Good thing too. During the second world war victory gardens accounted for 40% of national agricultural production. We really can feed ourselves.
no hussein 2012| 10.5.11 @ 3:02PM
Wow, are you stupid!
no hussein 2012| 10.5.11 @ 2:56PM
if this husseincare is not ruled unconstitutional, this country is done!
Oldefarte| 10.5.11 @ 3:00PM
I would suggest to everyone to NOT hold much HOPE in the outcome of the SCOTUS decision on this. Maybe rational, rational etc; but who really cares. The Judicial branch of government has assumed far too much power historically in its decisions; and its ability to overide the will of the people via the legislative branch [and less so the exxecutive branch] should be the essential issue. To my knowledge, courts in other countries do not have such immence political power; and strong consideration should be given to reigning in judicial clout. How, you say? Easy, by voting for REPUBLICANS, that's how. Granted they are no saints, but they are NOT RADICALS [and that's the POINT], whereas DEMOCRATS are such!!!!!!!
no hussein 2012| 10.5.11 @ 3:04PM
When did husseincare become the will if the people?
no hussein 2012| 10.5.11 @ 3:05PM
...of...
John II| 10.5.11 @ 3:51PM
Say what you like about the old duffer, but I always add to my night prayers the intention of Justice Kennedy's survival at least until 2013. Imagine the baleful consequences of one more Supreme Court appointment by the Professor before the young duffer rides off into the sunset on a permanent lecture tour. He'd probably appoint Eric Holder, if you're looking for a concrete image of the future as nightmare.
And now back to "Judge Hardy and Son" (1939), perhaps the best of the 15 Andy Hardy flicks from MGM in the 30s, in which Judge Hardy (the perennially distinguished-looking Lewis Stone) intones to his son Andy (a 19-year-old Mickey Rooney) that he expects to be around for some years to come, "barring accidents and disease." In fact, Lewis Stone himself died of a heart attack at the age of 73, in 1953, when he has chasing some prowlers off his property.
Join me now in prayer, fellow TAS readers: Lord, preserve Justice Kennedy from accidents and disease, and keep the vandals and punks off his property at least until 2013. Thank you, Lord.
John II| 10.5.11 @ 3:52PM
Say what you like about the old duffer, but I always add to my night prayers the intention of Justice Kennedy's survival at least until 2013. Imagine the baleful consequences of one more Supreme Court appointment by the Professor before the young duffer rides off into the sunset on a permanent lecture tour. He'd probably appoint Eric Holder, if you're looking for a concrete image of the future as nightmare.
And now back to "Judge Hardy and Son" (1939), perhaps the best of the 15 Andy Hardy flicks from MGM in the 30s, in which Judge Hardy (the perennially distinguished-looking Lewis Stone) intones to his son Andy (a 19-year-old Mickey Rooney) that he expects to be around for some years to come, "barring accidents and disease." In fact, Lewis Stone himself died of a heart attack at the age of 73, in 1953, when he has chasing some prowlers off his property.
Join me now in prayer, fellow TAS readers: Lord, preserve Justice Kennedy from accidents and disease, and keep the vandals and punks off his property at least until 2013. Thank you, Lord.
John II| 10.5.11 @ 3:56PM
Pardon the hiccough. I wonder how that happened . . .
RCV| 10.5.11 @ 4:21PM
You're just getting old, my friend, like me.
Al Adab| 10.5.11 @ 5:44PM
That and our mortality is something we all share in commen.
Paul from SA| 10.5.11 @ 5:51PM
Would an individual gun mandate be constitutional?
Al Adab| 10.5.11 @ 5:55PM
A number of cities and towns, many in the West, actually do have such mandates on the books in recognition of the Militia.
Paul from SA| 10.5.11 @ 6:14PM
Ah, yes, I knew that. I should have said, 'federal gun mandate.'
The point being, if a federal individual health-insurance mandate is ruled constitutional, shouldn't a gun mandate be ok?
Along with a life-insurance mandate, a lawsuit-insurance mandate, an unemployment-insurance mandate, .....
I don't think the liberals on the court will like it, and it should be brought up as a counter-argument.
Al Adab| 10.5.11 @ 6:49PM
And a mandate for light bulbs to be followed by a mandate that every second car must be a Chevy Volt. You are right Paul, mandates are wonderful things. Lets get a few Conservative ones passed and see how long the court lets them stand. Taking book on that?
Timely Renewed | 10.5.11 @ 6:42PM
The fundamental underlying problem is not just the Gonzalez case, but the 70 year old New Deal Supreme Court precedents which vastly expanded the original scope of the Constitution's interstate commerce clause. Until this fundamental distortion of the Constitution is addressed, the leftists will always find other ways to expand federal power over healthcare and every other aspect of our national life even if this one aspect of Obamacare (the individual mandate) is ultimately overturned in the Supreme Court. We will not be able to stop and roll back the ever-increasing expansion of the federal leviathan until we have restored the original meaning of the interstate commerce clause. We can accomplish this by amending the Constitution to reverse such Supreme Court misinterpretations of the Constitution's original meaning and structure. See http://www.timelyrenewed.com.
Thom| 10.5.11 @ 8:23PM
I’m not generally in favor of the Andrew Jackson way of dealing with the Supreme Court but there is no practical check on the Court through the amendment process as some have suggested here. A 5 to 4 ruling is trivial in comparison to the effort to get two thirds of Congress and three fourth of the State legislatures to agree on anything. Both Congress and State Legislatures are accountable for their decisions; the Court is not in any practical sense. When the Court makes rulings on precedent or references existing laws and bypasses the enumerated limits placed on each branch by doing so it has essentially gone “rogue” and it has done that numerous times over the last 50-60 years without a single amendment or Congressional response to that. If the Court won’t honor the existing enumerated Constitution with decades to 150 years of tradition and practice to back that up what makes anyone here think amending the Constitution would change that practice?
Each of us to varying degrees lead tempered lives because we are to varying degrees held accountable for important things and decisions in our own lives. The essence of the three branches and checks and balances on each was to impart some sense of accountability on the government as a whole. The Court has no such accountability mechanism in practice. Jackson famously told the Court of his time to stuff it and if they didn’t like that command their army to do something about it. I don’t remember the specifics or who was in the right from a constitutional prospective but no one came and arrested Jackson as a result. TR couldn’t get the money he wanted to sail the navy around the world from Congress so he ordered it to sail and go until Congress found the money or they ran out of fuel. They got the fuel. The merits of these individual cases are not important but the back and forth and check on the power of each branch is. Our Supreme Court is “rouge”. The cumulative damage done by this over the decades out shadows the narrower rulings the four existing conservative justices try to maintain.
If the Court rules King Obamacare constitutional, there will be civil unrest or worse. Most people can sense when the façade of a Republic is stripped away for all to see. I wouldn’t want to be in Justice Kennedy’s shoes if he has any sense of what this last nail in the coffin of the Constitution will invoke. The Court ruled in 1866 that several of the things Lincoln did during the war were unconstitutional. A pointless gesture if there ever was one. Serfdom is just around the corner for many if the Court does not restore the Republic.
John Navratil| 10.5.11 @ 10:04PM
Thom,
Well our Supreme Court is certainly more "rouge" than when it was nine men ;)
RCV| 10.6.11 @ 11:51PM
The Republic will survive just fine no matter how the Court rules on the health care mandate. If there really is a public groundswell against the law, there's an easy political remedy for undoing what Congress has done.
Osamas Pajamas| 11.16.11 @ 11:41PM
You have not disclosed the remedy that you have in mind, but I prefer a remedy which employs the Second Amendment to the US Constitution, in order to defend the rest of the US Constitution from attack by the US government dictatorship.
Gary| 10.5.11 @ 10:46PM
If the Court indulges in the semantic gymnastics calling a decision "not to buy insurance" or not to do whatever as abasis for upholding the health care law all bets are off. It is a a lie and lunacy akin to Clinton saying how you define "is." If so there are no limits to federal power.
Gary| 10.5.11 @ 10:46PM
If the Court indulges in the semantic gymnastics calling a decision "not to buy insurance" or not to do whatever as abasis for upholding the health care law all bets are off. It is a a lie and lunacy akin to Clinton saying how you define "is." If so there are no limits to federal power.
Leroi| 10.5.11 @ 10:50PM
Flipper, Flipper, Flippper
Faster than lightning
No one you see
Flips faster than he
Anthony "Flipper" Kennedy deciding our rights. We are well and truly effed.
POST American| 10.5.11 @ 11:52PM
As we write, listening to coverage of those
UN and World Bank massacres of farmers
in Honduras in the name of establishing
'carbon zones'. Going on across the world.
----UNTIL we get those KEY 'bennie violent'
directors and operatives of our
'shadow government' before that revived HUAC meets
NUREMBERG tribunal ---some things we
can do right now for liberty:
-Clear the Freemasons, 'Council of Church'
infiltrators, subverters and informers OUT
of our churches. Masons wishing to preserve
the 'Doctrine of Works' Luciferian purity
of their lodges can follow suit with christians
--IF they can find any.
-Hurl all your HD flicker rate mind control
TVs from your home ------NOW
-Remove your PCs from private, intimate
spaces. They are, one and all, surveillance
and tracking devices. Keep them in the office,
library, public spaces
-Pull out of the franchise slum. Create your
own little scene. Start a coffee club in your
basement, backyard, wherever. NO surveillance
or eavedropping ALLOWED
-Dismantle and disconnect those ON STAR
surveillance and eavesdropping devices
---now included in ALLLLL new cars
-REFUSE to comply with any decrees or
mandates involving forced injections or
any other meds. Even putting aside the
FACT that they're made in RED China,
and contain God knows what viruses,
the link with AUTISM is now UNDENIABLE.
GATES, like the now infamous Jonas Salk,
comes from a whole long line of Rockefellow
EUGENISTS. For clues on what's on ----check
out the intel on those long ago POLIO shots
and sleeper cancer and leukemia viruses.
Put in intentionally ---knowing full well the
they'd sleep for decades and kick in ---right
around retirement.
--AGAIN--
----------HUAC meets NUREMBERG 2012----------
Dan Mathewson| 10.6.11 @ 5:51PM
Wow! You have exceeded yourself on battiness.
Bill| 10.6.11 @ 9:19AM
When one person has the power to decide whether or not a government plan to annex one-sixth (a privately-owned one-sixth) of our economy into government ownership and regulation is going to allowed, something has gone wrong with our system.
Hayekian77j| 10.9.11 @ 7:51PM
I disagree that the swing vote on ObamaCare (and more broadly, on the construction of the Interstate Commerce Clause) is Justice Kennedy. While Kennedy is on the mainstream of the justices as to the Interstate Commerce Clause, it is Scalia that seems to take a hard-line, pro-government stance on the Interstate Commerce Clause. I would recommend you read his concurring opinion in Gonzales v. Raich, where he states (and I am paraphrasing here) that the activities which are being regulated themselves do not have to even affect interstate commerce if the regulation of the activity is part of a larger, comprehensive regulatory scheme.
This is much more deferential to the legislature and the executive branch's policies concerning regulations than the norm. The normal jurisprudence since 1937 on the Interstate Commerce Clause (with one notable exception being Clarence Thomas) has been to uphold the regulation of any local activity that "substantially affects interstate commerce." Scalia says "to hell with what affects it might have... if it is part of a broader, comprehensive scheme whose purpose is to regulate interstate commerce, then the regulation is within the powers of congress to enact."
supra | 10.18.11 @ 1:28AM
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Osamas Pajamas| 11.16.11 @ 11:37PM
Death to dictators, every one of them, everywhere.