Tag Archives: Supreme Court

Herman Cain At The National Press Club

The Politico article about two un-named women who claimed that Herman Cain directed ‘inappropriate behavior’ at them immediately cast a huge cloud over his possible presidential future.

After addressing that issue today at the National Press Club’s luncheon, it seems to me that Cain knocked it out of the park as a non-issue. Not only did he knock that one out, but he explained his plans for his administration regarding the economy, foreign relations, and everything else very well.

That said, here is Cain’s date with the National Press Club. For walking into the media’s house and answering all the tough questions squarely, I think he handled himself and his campaign chances very well.

As for the actions of Politico, they are just showing their colors.

Election Result Changes In Wisconsin

Through what is believed to be ‘human error,’ the incumbent Wisconsin Supreme Court justice David Prosser beat out challenger Joanne Kloppenburg by over 7,000 votes instead of Kloppenburg by 204 as was initially reported.

The problem was that the votes in Brookfield, Wisconsin were not counted. And Brookfield had a 55 percent voter turnout that went 3 to 1 for Prosser.

Link: Waukesha County Clerk Failed To Send In City’s 14,000 Votes

On Obamacare, Let Justice Prevail

The media hasn’t been doing well lately. Try as they might to tie the goings on in Egypt to a Obama foreign policy success, they failed. However, the events in Egypt did take the heat off of the administration for judge Vinson’s recent ruling that Obamacare is unconstitutional in its entirety. It’s time to revisit this ruling and where this case is headed.

Where the U.S. Constitution is concerned, there are two views. One is that it serves as our blueprint for governance as intended by our founding fathers who wrote it. The other point of view is that the constitution is old, outdated, and is useful only as a guideline to be adjusted up or down as needed.

President Obama holds the second view. In this radio interview, speaking to the issue of civil rights and the Warren court, then Senator Obama said . . .

The Warren court wasn’t that radical.  It didn’t break free from the essential constraints that were placed by the founding fathers in the constitution. Generally, the constitution is a charter of negative liberties. . . . It doesn’t say what the federal government must do on your behalf.

And that is on purpose. Anything else is left up to the states. In light of his attitude of the constitution, it begs the question that has yet to be asked of the president. What does it mean to you ‘to protect and defend the Constitution of the United States?’

This loose, if not contemptuous, attitude of the constitution is more common among Liberals, Progressives, and the political Left. It is also the belief of another constitutional lawyer Lawrence H. Tribe of Gore v Bush fame. Tribe’s book, The Invisible Constitution, purports that

what is not written in the Constitution plays a key role in its interpretation. Indeed some of the most contentious Constitutional debates of our time hinge on the extent to which it can admit of divergent readings.

Well DUH! That’s why we have a Supreme Court.

Tribe wrote an opinion piece about Obamacare last week in the New York Times which is found below in its entirety, with comments.

On Health Care, Justice Will Prevail

By LAURENCE H. TRIBE

Cambridge, Mass.

THE lawsuits challenging the individual mandate in the health care law, including one in which a federal district judge last week called the law unconstitutional, will ultimately be resolved by the Supreme Court, and pundits are already making bets on how the justices will vote.

But the predictions of a partisan 5-4 split rest on a misunderstanding of the court and the Constitution. The constitutionality of the health care law is not one of those novel, one-off issues, like the outcome of the 2000 presidential election, that have at times created the impression of Supreme Court justices as political actors rather than legal analysts.

{You lost that one Larry. Sorry.}

Since the New Deal, the court has consistently held that Congress has broad constitutional power to regulate interstate commerce. This includes authority over not just goods moving across state lines, but also the economic choices of individuals within states {where?} that have significant effects on interstate markets. By that standard, {new standard} this law’s constitutionality is open and shut. Does anyone doubt that the multitrillion-dollar health insurance industry is an interstate market that Congress has the power to regulate? {Judge Vinson is dealing with the part that regulates people Larry, not the insurance industry.}

Many new provisions in the law, like the ban on discrimination based on pre-existing conditions, are also undeniably permissible. But they would be undermined if healthy or risk-prone individuals could opt out of insurance, which could lead to unacceptably high premiums for those remaining in the pool. For the system to work, all individuals — healthy and sick, risk-prone and risk-averse — must participate to the extent of their economic ability. {Yeah right. So kill all the hundreds of waivers, mostly to unions.}

In this regard, the health care law is little different from Social Security. The court unanimously recognized in 1982 that it would be “difficult, if not impossible” to maintain the financial soundness of a Social Security system from which people could opt out. {Make that ‘impossible,’ and that’s not because of the system, it’s because congress has been spending it on entitlement programs for the last 50 years.} The same analysis holds here: by restricting certain economic choices of individuals, {it is ‘requiring’ choices, not restricting choices} we ensure the vitality of a regulatory regime clearly within Congress’s power to establish. {clear in your mind perhaps}

The justices aren’t likely to be misled by the reasoning that prompted two of the four federal courts that have ruled on this legislation to invalidate it on the theory that Congress is entitled to regulate only economic “activity,” not “inactivity,” like the decision not to purchase insurance. This distinction is illusory. Individuals who don’t purchase insurance they can afford have made a choice to take a free ride on the health care system. They know that if they need emergency-room care that they can’t pay for, the public will pick up the tab. {And under Obamacare, they can buy their insurance after they get sick and be covered. Effectively killing private sector health insurance.} This conscious choice carries serious economic consequences for the national health care market, which makes it a proper subject for federal regulation.

Even if the interstate commerce clause did not suffice to uphold mandatory insurance, the even broader power of Congress to impose taxes would surely do so. After all, the individual mandate is enforced through taxation, even if supporters have been reluctant to point that out. {You mean like proponents were reluctant to call it a tax when trying to sell it to the American people. They said it was not a tax, but a penalty. Only since going to court are they now calling it a tax. Can you say Bait and Switch?}

Given the clear case for the law’s constitutionality {in your mind}, it’s distressing that many assume its fate will be decided by a partisan, closely divided Supreme Court. {Like Bush v Gore?} Justice Antonin Scalia, whom some count as a certain vote against the law, upheld in 2005 Congress’s power to punish those growing marijuana for their own medical use; a ban on homegrown marijuana, he reasoned, might be deemed “necessary and proper” to effectively enforce broader federal regulation of nationwide drug markets. To imagine Justice Scalia would abandon that fundamental understanding of the Constitution’s necessary and proper clause because he was appointed by a Republican president is to insult both his intellect and his integrity.

Justice Anthony Kennedy, whom many unfairly caricature as the “swing vote,” deserves better as well. Yes, his opinion in the 5-4 decision invalidating the federal ban on possession of guns near schools is frequently cited by opponents of the health care law. But that decision in 1995 drew a bright line between commercial choices, all of which Congress has presumptive power to regulate, and conduct like gun possession that is not in itself “commercial” or “economic,” however likely it might be to set off a cascade of economic effects. The decision about how to pay for health care is a quintessentially commercial choice in itself, not merely a decision that might have economic consequences. {And not one for the federal government to make.}

Only a crude prediction that justices will vote based on politics rather than principle would lead anybody to imagine that Chief Justice John Roberts or Justice Samuel Alito would agree with the judges in Florida and Virginia who have ruled against the health care law. Those judges made the confused assertion that what is at stake here is a matter of personal liberty — the right not to purchase what one wishes not to purchase — rather than the reach of national legislative power in a world where no man is an island. {The confusion lies in your understanding of the federal government’s enumerated powers.}

It would be asking a lot to expect conservative jurists to smuggle into the commerce clause an unenumerated federal “right” to opt out of the social contract. If Justice Clarence Thomas can be counted a nearly sure vote against the health care law, the only reason is that he alone has publicly and repeatedly stressed his principled disagreement with the whole line of post-1937 cases that interpret Congress’s commerce power broadly. {And correctly so, imho.}

There is every reason to believe that a strong, nonpartisan majority of justices will do their constitutional duty, set aside how they might have voted had they been members of Congress and treat this constitutional challenge for what it is — a political objection in legal garb. {So the setup is, if you lose this one, it will have been a political rather than constitutional. Just like Gore v Bush. It’s like being a sore loser in advance.}

Laurence H. Tribe, a professor at Harvard Law School, is the author of “The Invisible Constitution.”

Hearings On Obamacare Begin Tomorrow

Hearings on the State of Florida (and dozens of others) v United States begin tomorrow at U.S. District Court in Pensacola, Florida. The state is challenging the health care legislation on several angles, not the least of which is that the Federal Government can not force citizens to buy health insurance or a certain kind of health insurance if they don’t want to.

The Folks Win, For Now

Wouldn’t you like to know where your bank bailout money went? Who knew, in this age of transparency and accountability, that you would have to go to the Supreme Court to find out?

A U.S. appeals court refused to reconsider a ruling that requires the Federal Reserve Board to disclose documents identifying financial firms that might have failed without the largest U.S. government bailout.

And speaking of the accountability and transparency that President Obama promised we would see, what does it take to see that we were lied to?

Link: Fed Loses (Again), Expected to Appeal

Obama Administration v. Arizona v. The Constitution

The straw man argument of the year is Eric Holder’s challenge to Arizona’s law that deals with illegal immigrants which, is no different from federal law. You will recall all the hoopla by Obama and his people crying about the Arizona law being all about racial profiling, which is illegal. Apparently Eric Holder does not believe his boss’s assertion, otherwise he would have filed his suit against Arizona on that basis. He didn’t.

Holder’s case is based on the Supremacy Clause of the U.S. Constitution. I’m not a lawyer, I make sandwiches, but it seems to me that you can’t prove a supremacy argument by laying down and not enforcing federal law like Eric Holder and President Obama are doing.

Besides, it’s not like this issue has not been before the Supreme Court. Ann Coulter, who is a lawyer, sums it up as only Ann can . . .

The court -– per Justice William Brennan — said that the federal government’s supremacy over immigration is strictly limited to: (1) a “determination of who should or should not be admitted into the country,” and (2) “the conditions under which a legal entrant may remain.”

So a state can’t start issuing or revoking visas, but that’s about all it can’t do.

Manifestly, a state law about illegal immigrants has nothing to do with immigrants who enter legally or the condition of their staying here. Illegal aliens have neither been “admitted into the country” nor are they “legal entrants.”

Indeed, as Brennan noted in the De Canas case, there’s even “a line of cases that upheld certain discriminatory state treatment of aliens lawfully within the United States.” (You might want to jot some of this down, Mr. Holder.)

So there’s no “field pre-emption” of state laws dealing with aliens, nor is there an explicit statement from Congress pre-empting state regulation of aliens.

Related Links:

Second Amendment Still Law, Barely

The Supreme Court of the United States upheld the Second Amendment of the Constitution today, deciding that the right to legally keep and bear arms extends to all citizens in all states. That’s the good news.

But the fact that it’s a 5-4 vote is a bit un-nerving. Because if this court were actually following the Constitution the vote should have been nine to nothing. It should have been unanimous.

The opinion’s of the justices begin on the following pages in the decision:

  • Alito, Kennedy, Roberts, concurring, p7
  • Scalia, concurring, p52
  • Thomas, concurring, p67
  • Stevens, dissenting, p123
  • Breyer, Ginsberg, Sotomayor, dissenting, p180

Link: Justices extend gun owner rights nationwideThe Supreme Court Decision (pdf)

Kagan’s Paper Trail

What Supreme Court nominee Elena Kagan lacks in the way of academic writing, she (apparently) more than compensates for with her lawyerly output during her time in the Clinton White House Counsel’s Office.  Recalling that former President George W. Bush shared over 50,000 pages of material associated with now Chief Justice John Roberts’s time as a lawyer in the Reagan White House, Byron York of the Washington D.C. Examiner reports which way precedent points in divulging Kagan’s work product.

“There is now a precedent that a White House lawyer’s materials will be produced,” says Bradford Berenson, an associate counsel in the Bush White House. “I think it will be very difficult for the Obama administration, given everything they’ve said about transparency and openness, to withhold these documents.”

Before anyone starts salivating over the thought of reading thousands of legal memos, remember that the current Oval Office occupant is not inclined to share information.  Unlike President Bush, Obama can’t be bothered to take a single question from the press after signing the Freedom of the Press Act.

Constitutional controversy over executive privilege, anyone?

The above is totally lifted from the CFIF website by author Ashton Ellis.

Links: Ashton Ellis: Kagan’s White House Paper Trail |  Byron York: Will the Senate see Kagan’s long paper trail?

Obama’s Supreme Court Pick, Elena Kagan

Is Elena Kagan a good pick for the Supreme Court? She wouldn’t be my pick. My pick would be someone with judicial experience. Someone with experience in interpreting and deciding law. A supreme court nominee should be someone who advocates for the Constitution, not a lawyer whose experience is advocating for a client.

Having absolutely no track record to reference in terms of how she interprets law, we have to know what she thinks about the Constitution and her interpretation of it. Whether she thinks the Constitution is ‘the rule’ or ‘a guideline’ is paramount. And that will open up a lot of questions. Nothing against Elena Kagan, but considering who picked her and the track record of other Obama appointments, chances are that this choice is more political than judicial.

You don’t have to look any further than Eric Holder, Obama’s pick for Attorney General. Like Obama, Holder is in denial over the notion of who the enemy is in the war on terror. So he pics an AG with a career in defending them and who to this day, after halting the military tribunals in order to conduct the trials in the civilian court system, has not decided whether to try the Gitmo terrorists in New York City. Obama’s track record seems just as relevant in this pick as Kagan’s background and understanding of constitutional jurisprudence.

One thing getting buzz is the sexual orientation of Elena Kagan. Does it matter if she is a lesbian? As far as I’m concerned, that’s a non-issue for the position. But she will have to convince the Judiciary Committee and Congress that whatever her feelings are regarding homosexuality, that she will not let those feelings have sway in any decision before the court. Again, considering who picked her and with no judicial experience to examine, she has an uphill battle.

Is Elena Kagan the vehicle to assuage the gay community and to be used as such by the President, as ‘political’ as her pick seems to be? In all fairness and with all due respect to Ms. Kagan, the President should go against his own personal beliefs about the Constitution and pick an experienced jurist who Sen. Robert Byrd (D-WVa) would pick, an originalist.

Links: Politico: Elena Kagan’s friends: She’s not gay |  h/t SodaHead

Is Obamacare Constitutional?

That is the question that will hopefully soon be answered by the Supreme Court. But the conventional wisdom for those who think that Obamacare  is just dandy with the Constitution, like Pennsylvania Governor Ed (Fast Eddie) Rendell, seems to be calling the health care system put in place in Massachusetts as precedent.

Biggest problem with this, and this is the fallacy of Rendell’s argument, is that the states can make whatever law they want, within their state, and the federal government has no similar autonomy. The federal government is restrained by the 10th Amendment of the Constitution thusly . . .

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.

Gov. Rendell and the Obama administration are making the giant leap that the federal government is the same as a state. Dictators view those as being the same, but this is not the case in the United States.

If the people of Massachusetts don’t like the health care system there (which they’ve found out is way more expensive then they figured), they can change it, or they are free to move to another state to get out from under it. Our freedom and liberty allow us to do that. If you like to smoke pot, you may want to move to California. If you like to not have your income taxed by the state, you may want to move to Florida. If you like to pay taxes on anything and everything, you may want to move to New York.

The massive centralization of control and power that Obamacare projects is simply antithetical to the original intent of the founding fathers and the documents they created.

Under Obamacare, there is no provision in the constitution that gives the federal government the power to require citizens to purchase anything else they be fined. Under Obamacare, there is no where to go to get out from under it.