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The Power of the SCOTUS II: "Release the Kagan!"

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Re: The Power of the SCOTUS II: "Release the Kagan!"

dxmnkd316 said:
That's an *ahem* interesting take on this.
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I find it "interesting" that you use the term "interesting" to describe Kepler's "troubling" rant about someone else's use of the words "interesting" and "troubling."

Some might suggest that [insert your own punchline here!]
 
Re: The Power of the SCOTUS II: "Release the Kagan!"

unofan said:
If it didn't strike it down 50 years ago, it isn't going to now, either.
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Does that mean we do have a bet? $10 of mine vs $25 of yours? or did you have different odds to suggest in a counter-offer?
 
Re: The Power of the SCOTUS II: "Release the Kagan!"

FreshFish said:
Does that mean we do have a bet? $10 of mine vs $25 of yours? or did you have different odds to suggest in a counter-offer?
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Yeah, no. I don't make bets with close friends on anything other than the annual NCAA pool. What makes you think I'd wager with a random internet persona who I'm not even convinced is anything more than a troll...
 
Re: The Power of the SCOTUS II: "Release the Kagan!"

unofan said:
Yeah, no. I don't make bets with close friends on anything other than the annual NCAA pool. What makes you think I'd wager with a random internet persona
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nothing at all, just testing the waters. We use $1 wagers at work to short-circuit arguments. Usually either it's something one can look up or something that will unfold over the passage of time. Either way, one person sets the over/under and the other decides which side to pick and that ends the argument.

There was a troll in our Men's Division I thread who we silenced by offering him bets on his predictions about the relative position of our team vs his. Glad to see you are not like him. :)
 
Re: The Power of the SCOTUS II: "Release the Kagan!"

This'll be an interesting media talking point should the health care law stand.

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Re: The Power of the SCOTUS II: "Release the Kagan!"

"Whatever I don't like is judicial activism." :)

That's hysterical. These people aren't even trying anymore.
 
Re: The Power of the SCOTUS II: "Release the Kagan!"

Thoughtful article today in Wall Street Journal, with two good nuggets.

First, on "judicial activism":

"Judicial activism" is one of those agreeably ambiguous terms that can support almost any criticism of the courts. Under our constitutional system, judicial activism entails judges rewriting rather than interpreting the laws, exercising "will instead of judgment," in Alexander Hamilton's phrase.
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which is followed by an examination of "separation of powers" which is not only within the federal government itself, but also between the federal and state governments:
The Framers assumed that the Constitution's federalist architecture, dividing power between the federal government and the states (creating a "vertical" separation of powers to complement the "horizontal" separation among the three federal branches), would be the primary defense against governmental overreaching. Indeed, Hamilton argued in the Federalist Papers (No. 84) that adoption of a Bill of Rights "would even be dangerous" for the very reason that "[t]hey would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted."

Accordingly, the Supreme Court always has measured federal statutes against both the Bill of Rights and the Constitution's structural protections. It has struck down laws found wanting in either case.
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Which then gets to the key point: what is necessary to find PPACA constitutional (emphasis added below):
To uphold ObamaCare's insurance-purchase mandate as a legitimate exercise of Congress's power to regulate interstate commerce, the court must find some neutral, judicially enforceable limiting principle that would maintain the Constitution's balance of power between federal and state authority. That principle must keep the power to regulate interstate commerce from morphing into a general power simply to regulate the citizenry. The court has always ruled, correctly, that only the states have such a general "police" power under our Constitution.
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The last sentence was a bit of a revelation for me, and it also answers some questions that have bedeviled others: the states have the power to regulate their citizens directly, while the federal government does not.

The bolded text above seems to underlie some of Justice Roberts' and Justice Kennedy's questions during the hearings on PPACA: to paraphrase, "suppose I wanted to find the law constitutional: what limiting principle would I invoke in order to do so?"
 
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Re: The Power of the SCOTUS II: "Release the Kagan!"

It's certainly not universally true that the court seeks out an enforceable limiting principle on enumerated powers. For example, they have basically admitted that any copyright term short of explicitly limitless is legitimate in response to challenges of the perpetually-extending copyrights that various corporate rentiers have sought and obtained from Congress. As a practical matter, I fail to see an enforceable limiting principle in that case, unless the limiting principle you would see is based on content rather than term. (Personally, while I'm not sure there's a bright line to be had, I do think that Congress is skirting the bounds of flouting the obvious intent of the Constitution's grant of copyrights, which is to encourage innovation, not to provide perpetual rents to the rentiers.)
 
Re: The Power of the SCOTUS II: "Release the Kagan!"

Craig P. said:
It's certainly not universally true that the court seeks out an enforceable limiting principle on enumerated powers. For example, they have basically admitted that any copyright term short of explicitly limitless is legitimate in response to challenges of the perpetually-extending copyrights that various corporate rentiers have sought and obtained from Congress. As a practical matter, I fail to see an enforceable limiting principle in that case, unless the limiting principle you would see is based on content rather than term. (Personally, while I'm not sure there's a bright line to be had, I do think that Congress is skirting the bounds of flouting the obvious intent of the Constitution's grant of copyrights, which is to encourage innovation, not to provide perpetual rents to the rentiers.)
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I was told there'd be no lawyer-speak... :p
 
Re: The Power of the SCOTUS II: "Release the Kagan!"

Kepler said:
He gets a bit of a pass, as that was that Dick Posneresque Econo-Lawyer Speak. ;)
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Too bad he missed the opportunity to invoke the Sunny Bono Mickey Mouse Copyright Extension Act...I think we're about due for Disney's next major bribery, err, campaign contributions to assure another extension so Steamboat Willie doesn't fall into the Public Domain.
 
Re: The Power of the SCOTUS II: "Release the Kagan!"

unofan said:
Too bad he missed the opportunity to invoke the Sunny Bono Mickey Mouse Copyright Extension Act...I think we're about due for Disney's next major bribery, err, campaign contributions to assure another extension so Steamboat Willie doesn't fall into the Public Domain.
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Is that a Clinton reference?? :D
 
Re: The Power of the SCOTUS II: "Release the Kagan!"

WeWantMore said:
SB 1070 oral arguments today.
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This is one of those cases that leaves me going "huh? what?"

If the AZ law is presented correctly in various news articles I've read, it merely instructs state officials to enforce federal law. The Administration didn't bother to change the federal law when they had filibuster-proof majorities and now they don't want the federal law enforced?

One of the ironies is that the predecessor governor, Democrat Napolitano, is now Director of Homeland Security and while governor she declared a state of emergency in AZ over the very same issue.
 
Re: The Power of the SCOTUS II: "Release the Kagan!"

FreshFish said:
This is one of those cases that leaves me going "huh? what?"

If the AZ law is presented correctly in various news articles I've read, it merely instructs state officials to enforce federal law. The Administration didn't bother to change the federal law when they had filibuster-proof majorities and now they don't want the federal law enforced?

One of the ironies is that the predecessor governor, Democrat Napolitano, is now Director of Homeland Security and while governor she declared a state of emergency in AZ over the very same issue.
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Yah, a lot of us in Arizona have been going "huh, what?" at the federal government on this subject for years. Should be interesting to see how the Supremes go on this. It's really a much bigger case than just AZ's immigration law, but rather one of those cases that will help define what, if anything, a state can do to address public safety needs.

Napolitano's flip-flopping on immigration issues makes Romney look like a pillar of consistency.

Not enforcing the border laws will help get Obama re-elected, which is what it's all about. No surprise there.
 
Re: The Power of the SCOTUS II: "Release the Kagan!"

It sounds like I may not have been the only one with a "huh? what?" reaction....

From WSJ:

Several justices said they couldn't understand the legal distinction between allowing ad-hoc checking of a person's immigration status and codifying that into a general policy, since federal law already requires the federal government to answer questions from state officials about a person's status.

Chief Justice John Roberts said the section merely required state officers to notify the federal government that they had picked up an illegal immigrant and it was entirely up to the federal government to decide whether to take action against that person. Chief Justice Roberts said he couldn't understand how that interfered with federal discretion over immigration enforcement.

The question before the court was whether the Arizona law interfered with federal law, which both sides agree enjoys primacy in questions of immigration.

Solicitor General Donald Verrilli, representing the Obama administration, said the status-checking provision worked with the Arizona law's other provisions to undermine federal immigration policy as legislated by Congress.

But no member of the court—even those on the liberal wing—expressed clear agreement with Mr. Verrilli's stance on that point. "You can see it's not selling very well," said Justice Sonia Sotomayor, who said she was confused by Mr. Verrilli's answer as to why a statewide rule on checking status was worse than an ad-hoc policy.
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Some aspects of the law did come under further scrutiny:

Chief Justice Roberts said he was troubled by the provision criminalizing job seeking because he said it went further than federal law in punishing illegal immigrants. Justice Sotomayor also expressed concerns about that part of the law, saying Congress rejected the idea of punishing illegal immigrants who seek work.
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which could lead to a nuanced ruling:

Each of the four provisions struck down by lower courts involves a separate legal analysis, meaning that the Supreme Court could uphold some but not others. Justice Elena Kagan, who was solicitor general when the Obama administration filed its challenge to the Arizona law, recused herself.
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In an unrelated matter, SCOTUS also issued a technical ruling on an IRS matter that went 5 - 4 with Kennedy in the minority. That doesn't happen often.
 
Re: The Power of the SCOTUS II: "Release the Kagan!"

FreshFish said:
In an unrelated matter, SCOTUS also issued a technical ruling on an IRS matter that went 5 - 4 with Kennedy in the minority. That doesn't happen often.
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That is interesting. There must be some sort of "clustering" metric on which justices tend to group together.

I wouldn't be surprised if the correlations are pretty low, though. The "liberal"/"conservative" distinction holds on high profile politicized cases, but the Court still seems to do lots of technical work where the voting is all over the place.
 
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