Schumer: Roberts Broke His Promise On Commerce Clause

http://tpmdc.talkingpointsmemo ^ | July 1 2012 | Kapur

[NoLibZone]

U.S. Chief Justice John Roberts’ swing vote to uphold ‘Obamacare’ under Congress’s taxing powers has drawn praise from his usual critics. One top Democratic senator lauded Roberts’ “judicial independence” in saving President Obama’s signature law, but also argued that the Bush-appointed jurist broke his promise by narrowing the scope of the Commerce Clause.

In his opinion, Roberts explained in detail why he believes his view is not inconsistent with precedent, siding with conservative architects of the legal challenge in the argument that Congress may not regulate inaction.

“In my view it certainly merited upholding under the Commerce Clause,” said Sen. Chuck Schumer (D-NY), his party’s leader on messaging. “I do worry, in the future, about the courts limiting the Commerce Clause as a way of limiting the ability of the federal government to help average

[SERKIT]

What do LibDems like Chuck “U” Schumer and Mohammedans have in common? They are never happy until the other side is obliterated and they are easily upset.

[superloser]

This is the largest Rope-a-dope in the history of mankind.

Just wait, it will get better.

If this commerce clause prohibition had been in place when the EPA was going after the Sacketts, EPA would have been neutralized immediately.

Schumer is just now discovering he has lost the power to issue orders.

When the Courts start having to deal with this precedent, a whole lot of "regulatory agencies" are going to discover their wings have been not just clipped, but defeathered.

[Antoninus]

I think Robert’s decision is wrong, but he sure put a crimp on furure Commerce Clause challenges.

No he didn't. Future leftist courts (and that's what we're going to have into the foreseeable future) will just disregard Robert's bloviating nonsense and rule however they want. That's how it works now. We have no constitution. We have rule by whatever the elites want.

[NoLibZone]

Add the Medicaide ruling.

Yeah I hope that this is not digested until Nov 7th or it will sublimate the passion the ruling has stirred with in the conservative movement.

I hope Rush doesn’t discuss this.

Boooo!!!! Roberts!!!!

[webstersII]

“When the Courts start having to deal with this precedent, a whole lot of “regulatory agencies” are going to discover their wings have been not just clipped, but defeathered. “

Not sure I follow you.

Please explain further.

[superloser]

Please explain further.

By denying the Federal Government "police powers" -- agencies like EPA who try ordering landowners to make improvements to fallow land cannot.

The Roberts ruling restricts regulation to actual activity. Inactivity is not permitted to be regulated - compelled - or cajoled.

This should also put a knife into the endangered species act as well.

Assuming crafty lawyers can make use of this ruling, agencies can no longer just issue orders to people who are not engaged in activity.

Picture a situation where someone buys a plot of land. EPA comes on the scene and demands a bunch of improvements.

But wait -- merely owning land is not "activity" per se. If the landowner is doing nothing with the land, there is nothing to regulate.

That's how I see it. A crafty lawyer can likely make hay of this and it explains why Schumer is unhappy. When Schumer is unhappy, there has to be a reason for it and that reason is usually good for America.

[depressed in 06]

I still want to know what Roberts was threatened with, to force him to change his mind.

The fact that Roberts came around to Nanzi's thinking, Constitution, are your kidding, everything we do is Constitutional, makes me think he was Lewinskied by Nanzi, or the three broads on the court or Breyer. Scoff, if you will, but, it makes as much sense as he was following the Constitution.

[philman_36]

The other linked article is good as well...
@Anti-‘Obamacare’ Lawyer Celebrates Supreme Court RulingThough Barnett’s policy preferences weren’t vindicated Thursday, the crux of his legal theory is now the law of the land. The case against the healthcare law rested on Barnett’s argument that the Commerce Clause does not empower the government to regulate “inactivity” — Congress can not make idle people enter the health insurance market if they don’t want to enter it.

And yet aren't people saying the Commerce Clause argument is dicta?

But though the battle over ‘Obamacare’ is now confined to the trickier realm of politics, Barnett views the Court’s holding on the Commerce Clause as more than a consolation.
If it were dicta instead of a holding wouldn't this man be rather upset and quite vocal about it?

[webstersII]

“But wait — merely owning land is not “activity” per se. If the landowner is doing nothing with the land, there is nothing to regulate. “

Now I see what you mean.

Thanks for the explanation.

[philman_36]

How about hearing it from Randy Barnett himself...
@ We lost on health care. But the Constitution won.Lawmakers argued that this mandate was justified by the Constitution’s commerce and “necessary and proper” clauses. Had we not contested this power grab, Congress’s regulatory powers would have been rendered limitless.
They are not. On that point, we prevailed completely. Indeed, the case has put us ahead of where we were before Obamacare. The Supreme Court has definitively ruled that the commerce, necessary and proper clause, and spending power have limits; that the mandate to purchase private health insurance, as well as the threat to withhold Medicaid funding unless states agree to expand their coverage, exceeded these limits; and the court will enforce these limits.

Wouldn't this man know above all others if it was dicta or a ruling?

Are people already being led this early on to come to a false conclusion about dicta vs ruling?

[philman_36]

@ We lost on health care. But the Constitution won.In perhaps the most important passage of his opinion, Roberts insisted that “without deciding the Commerce Clause question, I would find no basis to adopt such a saving construction” of the penalty. This makes his analysis of the commerce clause a binding holding for future courts to follow.

Somebody been lying.

[superloser]

Yeah I hope that this is not digested until Nov 7th or it will sublimate the passion the ruling has stirred with in the conservative movement.

If what we are seeing here on FR is any indicator, the "Second Prize in a Beauty Contest" we won will be needed to get people to action.

The tone is very depressed and subdued. If that continues, we will need some good news to get people off the couch.

[NoLibZone]

Thank you.

I have the article from here:

http://www.nola.com/newsflash/index.ssf/story/we-lost-on-health-care-but-the-constitution-won/ee811e8a5fa1df58b828037401aa9c5f

Please keep ‘em coming!

[philman_36]

Please keep ‘em coming!

I'm trying, man. Definitely swimming against a strong tide right now.
Too much emotion and not enough thoughtful analysis right now, IMO.

To be honest I'm worried about alienating myself further than I already am by undertaking such a contrarian view from the vast majority of FReepers.

Ah well, nobody said life was going to be easy.

[NoLibZone]

I don’t know.

I feel that the ruling will fill the sails of many conservatives.

I hope they don’t see what Roberts did ...yet.

I hope Rush keeps up the , “get Roberts!”- spiel.

The left lead by Shcumer is starting to get it.

[NoLibZone]

That passion is a great thing.

It will push Obama out.

Get Roberts!!!

BOOOO Roberts!

[mo]

Anytime Chuckie is unhappy.....something is going right somewhere in America!!!!

[philman_36]

Get Roberts!!!
BOOOO Roberts!

LOL Ah, the glory of reverse psychology revealed.
My kids were great learning tools for me.

Anyway, back to Mr. Barnett, from http://www.cato.org...Health Care Ruling: A Strange Constitutional Win

By rewriting the law to make it a "tax," however, the court has now thrown Obamacare into the political process. The people will decide at the ballot box whether this so-called "tax" will stand.
I have argued that Roberts didn't so much rewrite the law as he simply upheld the Government's argument that the individual mandate was constitutional as a tax only if it didn't pass Commerce Clause muster.
Mr. Barnett can phrase it how he likes. He was the one arguing the case, not me. I'll stand by, and behind, my opinion.

[philman_36]

The American public wanted action during the Great Depression, and there is little evidence it was much interested in constitutional questions. But in 2009 and 2010, millions demanded a return to our written Constitution with its scheme of limited and enumerated powers. The election of a Congress hostile to President Obama's health care law, and of state officials willing to challenge it in court, has resulted in an epic national constitutional debate and this week's ruling affirming that Commerce and Spending Clause have real limits.

In November, the American people will have the opportunity to renew their commitment to their written Constitution by insisting on a president who will nominate and a Senate who will confirm constitutionally conservative justices who won't wilt under fire — justices who will hold Congresses of both parties to the limits prescribed in the Constitution.

Constitutional turning points have occurred before in America, and sometimes in cases where the apparently losing side went on to be history's winner. It can happen again. Today is only the beginning.

Hear, hear!

[editor-surveyor]

Yes, the word is over-reach.