Obama Presidential Thread XIX: Starting a new chapter

[Kepler]

Re: Obama Presidential Thread XIX: Starting a new chapter

No. There are times where there's a 4-1-4 split, with the 1 concurrence in the result being the deciding vote but basically meaning none of the opinions are worth jack. There's some where justices agree solely "as to parts A, C & D" - but there'll never be an opinion where the majority opinion is written by one guy, and the 5 other votes agree "as to part A and the result, but not parts B, C, D, E, and F."

If there's 5 or more that agree, that's the majority opinion by operation of law. The one is a concurrance only.

Thank you. But doesn't that mean Roberts can't just flip in order to water down the majority opinion?

 

[unofan]

Re: Obama Presidential Thread XIX: Starting a new chapter

Thank you. But doesn't that mean Roberts can't just flip in order to water down the majority opinion?

He can flip to water it down if he still gets the votes - essentially he'd need to write an opinion that would get 6 votes (including his own and Kennedy's). Likewise, the 4 members on the left can't write an opinion that risks the loss of Kennedy. The left-wing also might not care so long as the law gets upheld in this instance.

The left might allow some watering down in order to have a 6-3 opinion, and they're still free to write their own concurrence as well.

Frankly, though, it's better than even money it's a 5-4 opinion written by Kennedy. Which sucks because Kennedy writes really bad opinions.

 

[WeWantMore]

Re: Obama Presidential Thread XIX: Starting a new chapter

Why would she?

Her former position (solicitor general) only gets involved at the higher levels, and to the best of my knowledge, the solicitor general's office has yet to get involved in the health care debate.

Oh, I had just read speculation (which looking back on it seems pretty half baked) that she might. Which would enable Kennedy to go the other way, make it 4-4, and effectively take a punt on it.

 

[Kepler]

Re: Obama Presidential Thread XIX: Starting a new chapter

Frankly, though, it's better than even money it's a 5-4 opinion written by Kennedy. Which sucks because Kennedy writes really bad opinions.

Is there anybody on this Court who doesn't write really bad opinions? Scalia's Thomistic drag act got old 20 years ago. I suppose Thomas is at least funny when he writes on porn.

 

[Craig P.]

Re: Obama Presidential Thread XIX: Starting a new chapter

"The Congress shall have power... To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof." Beyond the bill of rights or other specifically worded topical areas, there are no limitations to laws...in the Constitution.

Your final sentence contradicts your quote. Congress most certainly is limited in the laws that it passes, in that they must be "necessary and proper for carrying into execution" one of their enumerated powers.

That does not necessarily preclude a particular mandate being constitutional, but it is clearly a circumscription on Congress's power to pass laws. If one of their laws exceeds its bounds, it gets struck down by the Supreme Court.

 

[LynahFan]

Re: Obama Presidential Thread XIX: Starting a new chapter

I think Jefferson made the argument a tad more eloquently but I still don't buy it entirely.

Yes - fortunately, Jefferson did the majority of his writing before the advent of message boards...

I can only imagine how it would have read on alt.declaration.of.independence.

 

[Kepler]

Re: Obama Presidential Thread XIX: Starting a new chapter

Yes - fortunately, Jefferson did the majority of his writing before the advent of message boards...

I can only imagine how it would have read on alt.declaration.of.independence.

Well, somebody would have called him a knuckledragger and somebody else would have called him a communist. Except it was before 1848, so they would have called him a Bogomil or something.

This is why the educated used to write their important stuff in Latin.

 

[5mn_Major]

Re: Obama Presidential Thread XIX: Starting a new chapter

Because 5mn's logic is not that of those defending the law. He's saying that the since Congress can make laws, they can make any law they please. Those defending the law in actual courtooms are saying that it falls under the commerce clause and that a person who is alive is by definition a part of the health care system.

I guarantee if someone did take up a defense of the law based on 5mn's logic it would be nearer to 9-0 than 5-4.

You don't have to look far. Its basically the the first item listed in Congress' Constitutional powers:

The Congress shall have power to provide for the common defence and general Welfare of the United States.

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.

The commerce clause does NOT restrict legislation, it adds more responsibilities for legislation.

Its big govt for sure...but as will any judicial matter, the proof of burden is on those claiming that the legislation is indeed against the Constitution.

So if this is going to be close to a 9-0 vote...just how is the healthcare legislation unconstitutional?

 

[Foxton]

Re: Obama Presidential Thread XIX: Starting a new chapter

just how is the healthcare legislation unconstitutional?

I remember asking this same question when the legislation was being drawn up and it was repeatedly called unconstitutional without any citation of where it is.

 

[WeWantMore]

Re: Obama Presidential Thread XIX: Starting a new chapter

I remember asking this same question when the legislation was being drawn up and it was repeatedly called unconstitutional without any citation of where it is.

What gives the federal government the authority to mandate someone buys a product? That's where the burden of proof is, not the other way around.

 

[Foxton]

Re: Obama Presidential Thread XIX: Starting a new chapter

What gives the federal government the authority to mandate someone buys a product? That's where the burden of proof is, not the other way around.

Well first off you are not buying a product you are buying a service. Not a whole lof of a difference but I'm sure there's a ZOMG COMMUNISM argument to be made somewhere. Second of all, as just pointed out they need to provide for the common defense and general welfare.

 

[WeWantMore]

Re: Obama Presidential Thread XIX: Starting a new chapter

Well first off you are not buying a product you are buying a service. Not a whole lof of a difference but I'm sure there's a ZOMG COMMUNISM argument to be made somewhere. Second of all, as just pointed out they need to provide for the common defense and general welfare.

Yes, they need to provide for the general welfare. Therefore, the government tomorrow can mandate everyone to eat no more than the required daily intake of salt, right? After all, they must provide for the general welfare!

Or what about mandating everyone purchases a home security service? Welfare provided!

 

[Foxton]

Re: Obama Presidential Thread XIX: Starting a new chapter

Yes, they need to provide for the general welfare. Therefore, the government tomorrow can mandate everyone to eat no more than the required daily intake of salt, right? After all, they must provide for the general welfare!

Or what about mandating everyone purchases a home security service? Welfare provided!

So will you point out why it's unconstitutional or continue to be obtuse? And you must just hate the FDA for ensuring you get the food you bought instead of sawdust or something disease filled.

 

[WeWantMore]

Re: Obama Presidential Thread XIX: Starting a new chapter

So will you point out why it's unconstitutional or continue to be obtuse? And you must just hate the FDA for ensuring you get the food you bought instead of sawdust or something disease filled.

I'm not being obtuse. Answer the question. Under your reading of the Constitution, why can't the government pass a mandate tomorrow requiring us to purchase and eat 1 lb. of broccoli each week? Under your reading, is there a single thing the government can't do?

But to answer your question, it's unconstutional because the Constitution doesn't give the federal government the authority to mandate people buy a product or service. It's impossible to prove that something isn't there in any other way besides saying "It's not there."

 

[Priceless]

Re: Obama Presidential Thread XIX: Starting a new chapter

HARRISON
Judges are bound to interpret the Constitution within the strict parameters of the text
itself. The Constitution doesn’t provide for a right of privacy. The right doesn’t exist.

SAM
The third amendment says soldiers can’t be quartered in private homes. The fifth provides
protection against self-incrimination, and the fourth against unreasonable searches.
You deny the right to privacy lived in those passages?

HARRISON
No. I do not deny it, but the fact that the framers enumerated those specific protections is
all the more reason to believe that they had no intention of making privacy a de facto right.

SAM
They just fought a revolution but they had no question of their freedom. The Bill of Rights
wasn’t meant to codify the most crucial of those rights not to limit the others.

HARRISON
I do this for a living, Mr. Seaborn.

SAM
So do I, your honor.

BARTLET
Peyton, do I have the right to put on an ugly plaid jacket and a loud polka-dot tie and
walk down Main Street?

HARRISON
Yes.

BARTLET
Where in the Constitution is that right guaranteed?

HARRISON
First Amendment. Freedom of expression.

BARTLET
What about the use of cream in my coffee? Surely, there can be no free speech argument
to be made there?

HARRISON
No.

BARTLET
So you have no objection to the state of New Hampshire passing a law banning use of cream
in coffee?

HARRISON
I would have strong objection, Mr. President, as I like cream as well, but I would have no
Constitutional basis to strike down the law when you brought this case to the Supreme Court.

BARTLET
As I lose the votes of coffee drinkers everywhere.

 

[bronconick]

Re: Obama Presidential Thread XIX: Starting a new chapter

I'm not being obtuse. Answer the question. Under your reading of the Constitution, why can't the government pass a mandate tomorrow requiring us to purchase and eat 1 lb. of broccoli each week? Under your reading, is there a single thing the government can't do?

But to answer your question, it's unconstutional because the Constitution doesn't give the federal government the authority to mandate people buy a product or service. It's impossible to prove that something isn't there in any other way besides saying "It's not there."

It's a shame that the states waited about 70 years too long to finally find their balls when it came to the commerce clause.

 

[Foxton]

Re: Obama Presidential Thread XIX: Starting a new chapter

I'm not being obtuse. Answer the question. Under your reading of the Constitution, why can't the government pass a mandate tomorrow requiring us to purchase and eat 1 lb. of broccoli each week? Under your reading, is there a single thing the government can't do?

But to answer your question, it's unconstutional because the Constitution doesn't give the federal government the authority to mandate people buy a product or service. It's impossible to prove that something isn't there in any other way besides saying "It's not there."

It's a very vague part of the constitution, yes, they could create a law requiring you to do something like that but that's why there are checks and balances to check if the law they passed does in fact benefit the general welfare while not infringing on any rights. Or you could look at the commerce clause which is far more applicable where they are given the power to regulate interstate commerce which allows them to mandate behavior and requiring is just as valid of a regulation as prohibiting or regulating use.

Combining with the necessary and proper clause there's a lot that congress can pass that aren't expressively stated in the constitution that have been upheld to be constitutional and established various precedences to expand power.

Personally I hate this bill but come on. It takes a bit more than "it's not there" to say it's unconstitutional when the document itself gives a great deal of leeway on what is and what isn't constitutional.

 

[Kepler]

Re: Obama Presidential Thread XIX: Starting a new chapter

It's a shame that the states waited about 70 years too long to finally find their balls when it came to the commerce clause.

Yeah, we've been held in terrified subjection by a federal government we re-elect every 2, 4 or 6 years and a Supreme Court with 7 of 9 justices named by presidents who supported the doctrine of "strict construction." We shall overcommmmmmmmmmme...

 

[WeWantMore]

Re: Obama Presidential Thread XIX: Starting a new chapter

It's a very vague part of the constitution, yes, they could create a law requiring you to do something like that but that's why there are checks and balances to check if the law they passed does in fact benefit the general welfare while not infringing on any rights. Or you could look at the commerce clause which is far more applicable where they are given the power to regulate interstate commerce which allows them to mandate behavior and requiring is just as valid of a regulation as prohibiting or regulating use.

Combining with the necessary and proper clause there's a lot that congress can pass that aren't expressively stated in the constitution that have been upheld to be constitutional and established various precedences to expand power.

Personally I hate this bill but come on. It takes a bit more than "it's not there" to say it's unconstitutional when the document itself gives a great deal of leeway on what is and what isn't constitutional.

Yes, those are the two arguments the government made as well. However, they are both rather wrong headed. Choosing not to buy a service is not commerce. In fact, as Judge Vinson said, it is the antithesis of commerce. In all prior cases concerning the commerce clause, even when it was expanded, judges noted that there were outer bounds to it. If this law passes, there are literally no outer bounds.

As for the necessary and proper clause, that again is a misunderstanding of what it's meant to do. Since quoting Hamilton seems to be en vogue in this thread, here's his take from the Federalist 33:

These two clauses have been the source of much virulent invective and petulant declamation against the proposed Constitution. They have been held up to the people in all the exaggerated colors of misrepresentation as the pernicious engines by which their local governments were to be destroyed and their liberties exterminated; as the hideous monster whose devouring jaws would spare neither sex nor age, nor high nor low, nor sacred nor profane; and yet, strange as it may appear, after all this clamor, to those who may not have happened to contemplate them in the same light, it may be affirmed with perfect confidence, that the constitutional operation of the intended government would be precisely the same,if these clauses were entirely obliterated, as if they were repeated in every article. They are only declaratory of a truth, which would have resulted by necessary and unavoidable implication from the very act of constituting a federal government, and vesting it with certain specific powers.

Madison said the same thing in Federalist 44. Essentially, the necessary and proper clause gives Congress no new powers. It gives them the power to carry out duties that are necessary and proper as related to those already enumerated. For instance, since Congress has the power to create post offices, they also by the necessary and proper clause can make stamps, it's a direct relationship.

 

[WeWantMore]

Re: Obama Presidential Thread XIX: Starting a new chapter

Yeah, we've been held in terrified subjection by a federal government we re-elect every 2, 4 or 6 years and a Supreme Court with 7 of 9 justices named by presidents who supported the doctrine of "strict construction." We shall overcommmmmmmmmmme...

Imagine how bad you'd feel if Reagan wasn't terrible at nominating judges.