Posted on 03/23/2012 6:51:21 AM PDT by SeekAndFind
Conventional political wisdom holds that the U.S. Supreme Court, scheduled to hear a challenge to President Barack Obama's healthcare law beginning on Monday, is likely to strike it down on partisan lines. The court's Republican appointees enjoy a 5-4 majority.
But a review of lower court rulings by conservative judges, subtle signals from individual justices, and interviews with professors and judges across the ideological spectrum suggest that presumption is wrong - and that the court will uphold the law.
Not that conservative court-watchers like to broadcast such a view in this combustible atmosphere.
"It's almost like they're confessing to some secret vice when they say they don't think (the law) should be struck down," said former U.S. Court of Appeals Judge Michael McConnell, George W. Bush appointee who now teaches at Stanford Law School, referring to some fellow conservatives.
Several legal experts who do not necessarily favor the law, but bet it will survive, point to the decisions of two leading conservative federal appellate judges who already have sided with the Obama administration. The core of its healthcare law is a requirement that most people in the United States buy insurance by 2014.
In decisions upholding that so-called individual mandate last year, those judges stressed the classical conservative regard for judicial restraint and deference to Congress. While they wrote that the healthcare law might be flawed as a policy matter, they said decisions on how to reform the system were best left to legislators.
By contrast, three conservative judges who rejected the law took what some critics said was a more activist approach and said they were compelled to strike down the law because it exceeded congressional power. One invoked the 18th-century Boston Tea Party, in a decision widely viewed as a salute to the modern-day Tea Party movement's advocacy
(Excerpt) Read more at reuters.com ...
Now that picture is not only grim but down right frightening
“If conservative lower court judges can vote in favor of Obamacare, who’s to say that conservative justices in the SCOTUS won’t as well”
If I recall correctly, in those specific cases in those circuits the conservative judges didn’t address the unfunded mandate which is forcing someone to purchase something, those judges ruled more on the “standing” issue with those who challenged the ruling.
The Constitution says whatever 5 out of 9 Supreme Court Justices say it says.
Be afraid. Be very afraid.
I have posted this as a question in other forums, but have yet to receive an answer. Does Kagan recusing or not recusing herself really matter in the ruling?
If she stays, and all conservative justices rule against it, it's overturned 5-4.
If she recuses herself, and all conservative justices rule against it, it's overtunred 5-3.
If she stays, and one conservative justice upholds it, we lose 5-4.
If she recuses herself, and one conservative justice upholds it, it becomes a 4-4 decision. What happens in this case?
If it does, Romney is done.
A liberal’s wet dream... That case is not even on point...yeah it sights Commerce Clause but the real issue was could the Feds shut down personal pot growing and useage in states that had passed medical marijuana laws. Very convoluted case... the 9th circus sided with the pot growers SCOTUS did not
Levin addressed this the other day on his show. The briefs have addressed this issue as well. The only question is will the judges do their job and protect the Constitution not some living breathing amorphous sludge thought up by libs????
Most of McCain-Feingold was overturned in the Citizens United ruling.
Respondents in this case do not dispute that passage of the [Controlled Substances Act], as part of the Comprehensive Drug Abuse Prevention and Control Act, was well within Congress' commerce power. Nor do they contend that any provision or section of the CSA amounts to an unconstitutional exercise of congressional authority. Rather, respondents' challenge is actually quite limited; they argue that the CSA's categorical prohibition of the manufacture and possession of marijuana as applied to the intrastate manufacture and possession of marijuana for medical purposes pursuant to California law exceeds Congress' authority under the Commerce Clause.
The only way the Supreme Court could have held otherwise would have been by expressly overturning its 1942 opinion in Wickard v. Filburn, in which the Court held that the government may regulate personal cultivation and consumption of crops, due to the aggregate effect of individual consumption on the interstate wheat market. I was disappointed that a majority of the Supreme Court did no take the opportunity to overturn Wickard, but not surprised.
The bottom line is that Gonzales v. Raich does not give the federal government unlimited police power or the power to force citizens to engage in commerce.
If you want to buy birth control, no problem. There is no politician running for public office anywhere in the U.S. today that is calling for the government to prohibit the purchase of birth control. If you want to buy birth control for your employees, fine. If you want to buy birth control for anyone else in the world, there are many charitable organizations that you can contribute your money to that will help you spend it however you want. You should not, however, be FORCED by the federal government to buy birth control for everyone else in the country. That is what Obamacare is all about.
That about sums-it-up, nicely/sadly, BSR.
America, the republic founded by George Washington, John Adams, Ben Fraklin, Thomas Jefferson,...hangs by a thread. SCOTUS decision will be the final thread that breaks the republic.
“three conservative judges who rejected the law took what some critics said was a more activist approach”
No, an activist judge is one who legislates from the bench and creates law outside the scope of the Constitution. A judge that bases decisions on adherance to the Constitution is not by any means and “activist” judge.
“three conservative judges who rejected the law took what some critics said was a more activist approach”
No, an activist judge is one who legislates from the bench and creates law outside the scope of the Constitution. A judge that bases decisions on adherance to the Constitution is not by any means and “activist” judge.
Of course SCOTUS is not bound but the writer is pointing out that a 5-4 conservative leaning SCOTUS majority is not slam dunk assurance for striking it down “in toto”.
It is more certain that SCOTUS will throw the voters a bone and strike down the individual mandate, hold that severability is implied and uphold the tax provisions as authorized under the 16th Amendment.
And it is this latter tax authority that will force a de facto individual mandate ‘later’.
Some short summary headlines are:
Obamacare survives and lives to expand another day.
SCOTUS will operate on the Obamacare malignancy but leave some of its cancer cells to spread and metastasize later.
The way we get rid of the cancer for good is to repeal the 16th Amendment and replace its tax code with a pre-1913 compatible code which can be read about here:
http://www.fairtax.org/site/PageServer?pagename=about_faq
If my memory serves, Kennedy said after O was elected, he would not consider retiring until after the O was out of office. What he meant, good or bad, not sure. He does tend to be a more conservative voice on matters before the court as of late.
It's all about controlling the language. Those who control the language control the debate. Remember 'pro' choice, 'gay' lifestyle, reducing 'earned' income credits for people who paid no taxes is a tax 'increase'.
Such people used to be known as liars. Now they are 'spin doctors'.
Oy!
Reuters - trying to presure the court with its mindless articles.
What it boils down to is does the Commerce Cluase of the Constiution give the Federal Government the right to force people to buy a product?
Answer: No.
Kennedy will side with the other four sane justices on the cort and vote against Ginsberg, Breyer, Soda-Jerk and Kagan.
Bush’s signing of a law he thought probably unconstitutional was just one more point against considering him a god,much less great president.
It was his duty to veto any law he thought bad,and unconstitutional is surely bad.
That is just one more reason I despise the Bushes.They love big government.We lost freedom under Bush but too many conservatives refused to hear anything bad about “our guy”;not unlike the deluded $40,000 a year worker who says the $4,000,000 ballplayer is “my buddy”.
The Founders' passion was for individual liberty and the means to protect it through a written constitution which would "govern both the governed" and those who were delegated limited powers in government.
We ought to remember that our Constitution's separating, dividing, limiting, checking and balancing of certain delegated powers was intended to leave the sovereign power in the hands of the Constitution's "ONLY Keepers" (Justice Story), not in the hands of ANY branch of the government it structured--including the Supreme Court.
We, in retrospect, are in a position to appreciate the wisdom of their work and to question their reasoning, as revealed in their writings and their various positions.
On the other hand, we also are able to see how their warnings about dangers to liberty might develop, depending on the ideas of Executive, Congress, or Supreme Court members during a particular time period in America's history.
Already, we have seen abuses by each of the three branches, which tend to reveal the wisdom of the Founders' limitations on power in each branch, including that of the Court.
As to Jefferson and his fear of the idea that a Supreme Court, such as one which might soon exist, might endanger liberty in violation of the Framers' intent, how can one doubt that possibility, given the political climate of 2012?
From StreetLaw.org, come the following Jefferson quotations on the subject:
"2."But the Chief Justice says, 'There must be an ultimate arbiter somewhere.' True, there must; but does that prove it is either party? The ultimate arbiter is the people of the Union, assembled by their deputies in convention, at the call of Congress or of two-thirds of the States. Let them decide to which they mean to give an authority claimed by two of their organs. And it has been the peculiar wisdom and felicity of our Constitution, to have provided this peaceable appeal, where that of other nations is at once to force."
—Thomas Jefferson to William Johnson, 1823. ME 15:451
3."But, you may ask, if the two departments [i.e., federal and state] should claim each the same subject of power, where is the common umpire to decide ultimately between them? In cases of little importance or urgency, the prudence of both parties will keep them aloof from the questionable ground; but if it can neither be avoided nor compromised, a convention of the States must be called to ascribe the doubtful power to that department which they may think best."
—Thomas Jefferson to John Cartwright, 1824. ME 16:47
4."The Constitution . . . meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch."
—Thomas Jefferson to Abigail Adams, 1804. ME 11:51
5."To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps. Their maxim is boni judicis est ampliare jurisdictionem [good justice is broad jurisdiction], and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves."
—Thomas Jefferson to William C. Jarvis, 1820. ME 15:277
6."In denying the right [the Supreme Court usurps] of exclusively explaining the Constitution, I go further than [others] do, if I understand rightly [this] quotation from the Federalist of an opinion that 'the judiciary is the last resort in relation to the other departments of the government, but not in relation to the rights of the parties to the compact under which the judiciary is derived.' If this opinion be sound, then indeed is our Constitution a complete felo de se [act of suicide]. For intending to establish three departments, coordinate and independent, that they might check and balance one another, it has given, according to this opinion, to one of them alone the right to prescribe rules for the government of the others, and to that one, too, which is unelected by and independent of the nation. For experience has already shown that the impeachment it has provided is not even a scare-crow . . . The Constitution on this hypothesis is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please."
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