Obama v. Marshall

According to barack obama, John Marshall, the greatest Chief Justice of all time, was a reckless, activist judge.

Professor obama Gives a Lecture

In a response to press corps questions about last month’s obamacare hearings, our erudite professor/president lashed out at the Supreme Court, in what many saw as a blatent attempt to influence its ruling, in the process embarrasing himself by making several patently false statements about our Constitution and the Judiciary Branch.

Sensing — or perhaps tipped off — that last Friday’s initial vote had gone against his eponymous health care law, obama whined that the High Court was on the verge of taking “what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.” The boy genius went on to refer to our nation’s highest court as “an unelected group of people [who] would somehow overturn a duly constituted and passed law.”

Ignoring for the moment obama’s standard demogoguery (and, admittedly, calling a slim 7-vote victory as “a strong majority” is better than the Nancy Pelosi’s earlier description of a strict party-line vote as “bipartisan“), it’s important to emphasize the temerity of the president’s comments.  obama insinuated that the Judiciary never does, nor should it ever, overturn laws passed by the Legislative branch.

Activist Judges — Proglodyte Version

That’s a false meme which crops up among right-wingers and proglodytes alike whenever rulings don’t go their way.  As one dolt at The Atlantic wrote following the first ruling against obamacare, “contrary to what many Americans believe, our Constitution actually doesn’t provide for judicial review. The power of courts to invalidate state laws is perhaps implied in the text….”  I guess that’s true, if you count ‘something some Alexander Hamilton dude wrote in this obscure & irrelevant book, The Federalist Papers’, as “implied.”

The “general liberty of the people”, Hamilton argues in Federalist #78, “can be preserved in practice no other way than through” independent courts “whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.”

Hamilton rejects the claim “that the legislative body are themselves the constitutional judges of their own powers” as unsupported by “any particular provisions in the Constitution.”  To suppose “that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents” makes no sense to Hamilton.

It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order … to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts.

obama and the jacobins also choose to ingore another important document.  Art. III, Sec. 1  of the U.S. Constitution, establishes “The judicial power of the United States, shall be vested in one Supreme Court, and such inferior Courts as the Congress may from time to time ordaind and establish” (94 of them at present, including the several that ruled on obamacare).

Art. III. Sec. 2’s provision that “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution,the Laws of the United States … under their authority”, including “controversies to which the United States shall be a Party….”

Faced with the prospect of a ruling he won’t like, our constitutional law professor-in-Chief simply wished away that part of the Constistution that actually provides for judicial review (albeit, not in so many words.)  And this is where the ghost of John Marshall needs to get medieval on obama’s scrawny ass.

Judicial Review — 209 Years Young

If you, non-Harvard-matriculated, non-constitutional-law-lecturing plebeians need to know of one Supreme Court case, it should be Marbury v. Madison (1803), when the Court first struck down a federal law, establishing forever more the principle of Judicial Review.

The great, acclaimed first Chief Justice, John Marshall, whose opinions are considered touchstones by all (legitimate) legal scholars, declared in Marbury v. Madison that it is “emphatically the province and duty of the judicial department, to say what the law is.”  Following the ruling, this principle became known as Judicial Review.  It’s pedantic semantics to argue that Judicial Review was only implied, simply because the 1803-vintage coinage didn’t appear in the 1788 text.

Since 1803, the Supreme court has used its power of judicial review to repeal  nearly a thousand state statutes, including (progs take note) Roe v. Wade. Another 160 acts of Congress, including 6 New Deal laws that overstepped the limits of the Commerce Clause, plus over 50 in the just the past three decades, have been struck down.  That’s about five a year — hardly “unprecedented.”

Homework Assignment … for the Professor

Alarmed by obama’s apparent direct challenge to Judicial Review, the Fifth Circuit U.S. Court of Appeals ordered Eric Holder to respond in writing whether “the Department of Justice recognize[s] that federal courts have the authority in appropriate circumstances to strike federal statutes because of one or more constitutional infirmities.”

Holder complied by confirming that “the power of the courts to review the constitutionality of legislation is beyond dispute” while insisting his bosses comments were “fully consistent” with that principle.

Following what must have been a crash refresher course on constitutional law, obama back-tracked on his comments:

The point I was making is that the Supreme Court is the final say on our Constitution and our laws, and all of us have to respect it, but it’s precisely because of that extraordinary power that the Court has traditionally exercised significant restraint and deference to our duly elected legislature, our Congress. And so the burden is on those who would overturn a law like this….

They should have left it at that.  But White House spokesman Jay Carney  blurted out  that the president was specifically referring to “the precedent under the Commerce Clause” regarding a legislature’s ability to address “challenges to our national economy.”  Then the Harvard Law grad put his foot right back into his mouth:

We have not seen a court overturn a law that was passed by Congress on an economic issue, like health care, that I think most people would clearly consider commerce, a law like that has not been overturned at least since Lochner.  So we’re going back to the ’30s, pre-New Deal.

For the record, Lochner v. New York (1905)  predated the New Deal by three decades, is today considered largely irrelevant, and dealt with the Due Process Clause, not the Commerce Clause.

Real-life legal experts were quick to remind obama of U.S. v. Lopez (1995) and U.S. v. Morrison (2000), two quite recent Supreme Court cases where Congress was indeed found to have overstepped its Commerce Clause powers.  Both ruled that, even though a private act (packing a gun to school; beating up women; resp.) might have some aggregate effect on commerce, if not in itself commercial activity, it cannot be subject to regulation.

Calculated Ploy, or Emotional Outburst?

obama’s fractured-fairy tale version of Constitutional law may have been the first shot fired in a ploy to use the obamacare ruling in the election. Or, as fellow true liberal and political commentator, John Smart, surmised, “he lost his temper because he didn’t get his way.  That’s how narcissistic personalities act.”

Quite likely, the primary motive was to save the mandate by shifting a swing vote — Kennedy’s, most would guess.  But consider another possibility — the result obama was trying to influence was not a 5-4 in favor, but to avoid a 6-3 against.  Although the comments & questions of four leftist judges during the hearings mostly indicated support for the law, one line of questioning by Justice Sotomayor raised speculation.  “So … you’re answering affirmatively to my colleagues that have asked you the question, can the government force you into commerce,” she asked Verilli, the government’s attorney.  When he conceded that point, Sotomayor followed up rhetorically, “And there is no limit to that power.”  The need to establish a clear, limiting principle to the scope of Congress’ regulatory power — in this case, why insurance but not broccoli — was the central question on all nine justice’s minds.  It was the lack of clear limits that led courts nearly identical in philosophical spectrum as this one to rule in Lopez and Morrison.
Pols like James Carville believe obama can campaign successfully on a 5-4 loss, presenting it as part of the GOP crusade against ‘our values.’  Tacitly acknowledging that Republicans will control both houses come 2013, obama can offer himself as a ‘last line of defense’. The standard argument, that we need a Democrat in the White House to nominate new justices, will of course be made.  The fresh defeat of a law passed by Democrats contains more potency than the stale, vague threat to Roe, which three decades of conservative majorities on the Court have yet to repeal.

All these propaganda tools are seriously compromised were one of the four presumed ‘solid’ votes for the mandate to flip, especially an obama appointee.  Then the story line goes: ‘This guy devoted the entire first year of his term to getting this law passed,and now it’s wiped off the books.  He wasn’t smart enough to realize it had constitutional issues, nor could he even pick the right judge to uphold it.’

If obama did indeed learn that Sotomayor will rule against, it’s no wonder he lost his cool.

Do I Get My Single Payer Now?

Many progs, in sudden shock & disillusionment that the entire ACA may be overturned — not to mention fearing taunts by coworkers over their “Healthcare: Reformed!” coffee mug — desperately seek a silver lining.  If obamacare must be defeated, they reason, maybe it’s the first step to passing real healthcare reform: a single-payer system that covers absolutely everyone.  The more severely mentally ill believe losing before the Supreme Court was all along part of obama’s secret, multi-dimensional plan to implement single-payer.

Not so fast, gang.  Even assuming you somehow re-elect barry with Dem majorities in both houses while, barry’s simply not interested in single-payer.  In his impromptu teach-in he insisted that “in the absence of an individual mandate, you cannot have a mechanism to ensure that people with preexisting conditions can actually get health care.”   Yet, as Single Payer Action —  you, know, barry, those liberals who filed that amicus curiae brief arguing against your mandate — stated in said brief:

[T]he Government characterizes the provision as necessary to the effective regulation by Congress of the national healthcare market, but disregards the proven success of single payer systems currently operating in the United States…. Congress has already implemented successful single payer systems that provide universal coverage to certain subsets of the population, including Medicare … and the Veterans Health Administration….

No surprise that healthcare experts who supported a national single payer system were banned from testifying before Congress.

A Tough Sell

Whatever the vote, if obamacare is struck down in whole or part, it will make touting the president’s list of accomplishments a tough sell.  To rally ‘the base’, obama may well be forced to promise of single-payer in his second term.  The GOP can easily counter by spinning it: ‘We just got rid of the obamacare y’all hate; now he’s promising to do obamacare all over again!’

Even from people who’d hoped for any kind of healthcare reform, giving obama a mulligan may be too much to ask.  He was handed a ‘mandate’ and large majorities in Congress, and he screwed up.  Those ideal conditions will not be recreated.  When the ACA was first introduced in 2009, it was a major disappointment to those on the far Left.  Now, a failure of obama’s healthcare juggernaut  may bring those long-supressed resentments back to the surface.  Given the efficiency of obama’s propaganda machine, it’s easy to forget the stridency of the voices on the Left originally opposed to obamacare:

  • Democrats “lost the initiative the minute that our party jumped into bed with the insurance companies,” complained Dennis Kucinich.  “This bill represents a giveaway to the insurance industry”
  • “This is essentially the collapse of health care reform” lamented Howard Dean. “Honestly the best thing to do right now is kill [it.]”
  • “From what we know about the bill, it is worse than passing nothing, ” seethed Jane Hamsher of Firedoglake, who found the bill “worse than passing nothing. If I wanted Joe Lieberman writing a health care bill, I would’ve voted for John McCain.”
  • Huffy Poo opined that the bill failed to pass “the first rule of medicine … ‘do no harm.'”

Even those obama slut-monkeys, MoveOn.org, protested outside the White House, issuing a press release complaining “[w]ithout a public option, it’s just a giveaway to the insurance companies, and it does nothing to control costs.”
While obama’s team eventually quelled dissent from the Left,  it has been unable to remedy overall discontent with obamacare.  The latest Gallup poll reported that only 20% of Americans, and just 37% of Democrats, thought the mandate was constitutional; that only 11% of swing state voters feel the law has helped their families; that 53/40, voters favored repeal of the law.  Of the 28 states that filed suits against the ACA, 12 went for obama in 2008.  And Scott Brown tells us all we need to know about how Massachusetts feel about obamacare.

This November, when trying to get out the vote, OFA may find itself fighting the resentment of otherwise dependable voters like this MoveOn member picketing outside the White House in 2009:

“To me, it’s the death of health care.  And that’s sad, because this was a real opportunity. I think people voted heavily Democratic because they wanted something done to solve the health care problem, and instead we’re just getting something that will benefit the insurance companies.”

(c) 2012 by True Liberal Nexus.  All rights reserved.

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6 Responses to Obama v. Marshall

  1. walthe310 says:

    So much verbiage, so little content. The “O” in Obama is capitalized.

    • tamerlane says:

      That’s the best you can do? Maybe their aren’t enough Truth Team brownshirts to go around, so you can only spend a few seconds at each of the many blogs on your hit list.

      C’mon walter, stay a while, & write us another love poem about Dear Leader!

    • tamerlane says:

      “so little content?” ROFL! I cite 5 landmark cases, an amicus brief, the U.S. Constitution, and the Federalist Papers. As part of their OFA training, BOTT-zombies must be hypnotized so they don’t register anything unflattering to Dear Leader.

      Please walter, donate your brain to Science when you pass. Maybe by studying it, they can find a cure.

  2. Tamerlane, you clearly elucidated the point of why I believe that Sotomayor will vote with the majority to strike down Obamacare.

    She plainly laid out the main concern the justices have to the SG — the limiting principle. And the SG provided no adequate response to her question, other than ‘we won’t go beyond what is reasonable’. I was amazed by this lack of response to the broccoli question. It seemed to me that she was urging him to provide a bare minimum for them to mull over during deliberations. But I’m puzzled by her intention. Is Sotomayor trying to indirectly assist the SG, reminding him that he has not provided to the justices the key component that everyone is concerned about (where is the limit??) [to effectively help the guy who got her the job get his signatory accomplishment passed], or is she truly concerned about the fundamental change in the relationship btw govt and individual [that she indeed has a more strict constructionist position regarding commerce]. I had heard that Sotomayor in prior hearings before she became a sup justice had consistently sided with business interests. I’m not sure that she is willing to just support Obamacare to help the POTUS who got her her spot on the bench as payback unless she has a damn good reason to do so — a limiting principle she can convince herself will keep that crucial check on the vast expansion of fed govt power. So it seems that the Justices will have to come up with their own limiting principle and that’s how they would be making law (the real judicial activism) as pointed out by Kennedy, which they are reluctant to do. Without it, I see that this issue will open up the door to endless lawsuits, because of the scientific finding du jour. [Did you see that scientists (in a poorly designed study BTW) came to the conclusion that eating any meat leads to an early death? Of course, there is the ever evolving debate as to whether eating eggs is good for you. And let’s not forget the finding during 2009 that mammograms are bad for women and not necessary to boot if you’re under age 60.] Its obvious that a clear limit is needed for them to pass Obamacare. How can others not see this is beyond me.

    So it’s plausible she would vote consistent with her past rulings (and principle), and then the 6-3 scenario you described would indeed upset Obama. What a huge slap in his face.

    Another thing I think the Obamacare supporters don’t get, and why single payer was sunk by Obama, is the influence of trial lawyers. Who are the lawyers going to sue once single payer is enacted? I question this with all seriousness. And, I bring this up as a supporter of single payer universal healthcare and also as someone who has tried to sue the VA in the past. It is nearly impossible to beat the feds in a fed lawsuit (endless resources, time, etc.). Indeed, approx 15 years ago there was only a max of 20 appellate lawyers who had experience with the VA (if I remember correctly it was something like 12 total). If SPUH passed would you still be able to sue Big Pharma (dispensing drugs under govt contract) and/or an incompetent physician (who is essentially a fed govt employee)? I wonder if besides Big Pharma’s & health insurance co’s donations into Obama’s coffers if the effect on trial lawyers’ jobs played into this decision as well (not to mention the effects on advertising cos). I agree with you that Obama was selected by TPTB due to his commitment to undermine SUPH from being enacted. Obama’s own comments about privatizing SS during the primaries made my eyebrows raise. And we knew from his past that he’d say one thing in public and do another in private (i.e., Excelon) bamboozling the electorate in the process. I’m also suspicious that under Obamacare Big Pharma can still waste spend millions on tv advertising.

    Sorry to ramble, but these have been my concerns which came up again during the Sup Court hearing. I appreciate your insight.

    • tamerlane says:

      All eight, breathing justices struggled to get a definitive answer to the limit-of-scope question. Breyer, Ginsberg, Kagan clearly were trying to give Verilli a leg up; Alito, Scalia seemed immovable; Roberts, Kennedy, and to an extent, Sotomayor, seemed to truly grapple with the question.

      Yes, PSUH will put a couple of industries out of business; not surprising they’d stop at nothing to stay alive. Che sera, sera — whalers, corset-makers, and slave traders all are no more.

  3. sophie says:

    During the Edwardian Age, there were over 80 umbrella repair shops in London, and I dare you to find a good cobbler these days.
    Sotomyer is the wild card here, I don’t think she wants to pull a political stunt so early in her tenure. That is, if she really is a ‘wise Latina.’
    Kagan oth, seems to have no problem following the party line, I can’t explain this opinion, except to say that I think she’s an Obot, anyone coming from an Ivy campus is a political animal already.
    I don’t think the general public will accept a political ploy from the Court, it would scare the hell out of most thinking citizens.

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