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Beckwith

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Guide to Supreme Court arguments over ObamaCare

 

Billy Hallowell says the Supreme Court will begin hearing arguments on Monday over President Barack Obama’s contentious health care overhaul, the Patient Protection and Affordable Care Act, derisively labeled “ObamaCare” by its opponents. Here is a look at how the case will unfold before the court in question-and-answer form:
 
Q: What’s this all about?
 
A: The Supreme Court is hearing a challenge to the Patient Protection and Affordable Care Act, which is Obama’s signature domestic achievement. Passed by Congress in 2010, its aim is to provide health insurance to more than 30 million previously uninsured Americans, while trying to restrain costs and prevent disruptions to the majority already with coverage. Opponents say the law is unconstitutional; their chief argument is that Congress does not have the power to force unwilling Americans to buy health insurance or pay a fine.

Q: When will the court get started?
 
A: Justices will begin hearing arguments shortly after 10 a.m. EDT Monday, March 26. They will hear six hours of arguments on several different issues on Monday, Tuesday and Wednesday.
 
Q: Which issues on which days?
 
A: Monday’s 90-minute argument is about whether court action is premature because no one yet has paid a fine for not having health insurance. Tuesday’s two-hour argument will cover the central issue of whether Congress overstepped its authority by requiring Americans to purchase health insurance starting in 2014 or pay a penalty. Wednesday’s arguments will be split into two parts: Justices will hear 90 minutes of debate in the morning over whether the rest of the law can take effect even if the health insurance mandate is unconstitutional and another hour Wednesday afternoon over whether the law goes too far in coercing states to expand the federal-state Medicaid program for low-income people by threatening to cut off federal aid to states that don’t comply.

Q: When will the justices rule?
 
A: The court could decide any time, but complex cases argued in the spring normally produce decisions near the end of the court’s session, scheduled for late June.
 
Q: Is it possible that the justices won’t decide whether the law is constitutional or not?
 
A: It is possible. The first issue the court is discussing is whether an obscure tax law makes it too early for the Supreme Court to get involved. If they decide that the issue is premature, then the case will be dismissed without a binding ruling from the justices.
 
Q: What did lower federal courts say?
 
A: The 11th U.S. Circuit Court of Appeals in Atlanta ruled that Congress overstepped its authority when lawmakers passed the insurance mandate, the only appeals court to come to that conclusion. The 6th U.S Circuit Court of Appeals in Cincinnati upheld the entire law, as did the U.S. Court of Appeals for the District of Columbia Circuit in Washington, D.C. The 4th U.S. Circuit Court of Appeals in Richmond, Va., ruled that the question was premature and the law can’t be challenged in court until after 2015, when the first penalties for not having insurance would be paid.
 
Q: Who are the justices on the Supreme Court?
 
A: The chief justice is John Roberts, who joined the court in 2005 after being nominated by President George W. Bush. In order of seniority, the other justices are Antonin Scalia (confirmed in 1986 after being nominated by President Ronald Reagan), Anthony Kennedy (1988 by Reagan), Clarence Thomas (1991 by President George H.W. Bush), Ruth Bader Ginsburg (1993 by President Bill Clinton), Stephen Breyer (1994 by Clinton), Samuel Alito (2006 by President George W. Bush), Sonia Sotomayor (2009 by Obama) and Elena Kagan (2010 by Obama.)
 
Q: Who will be arguing for the law?
 
A: Solicitor General Donald B. Verrilli, Jr. will argue for the government on Monday and Tuesday. Deputy Solicitor General Edwin S. Kneedler will present part of the government’s case on Wednesday, and Verrilli will do the rest. Information about Verrilli and the solicitor general’s office can be found here. A court-appointed lawyer, H. Bartow Farr III, will also argue that if government cannot require people to buy health insurance, all other provisions of the law can go into effect. Another court-appointed lawyer, Robert Long, will also argue that the lawsuits challenging the insurance purchase requirement are premature because the penalty has yet to be imposed.
 
Q: Who will be arguing against the law?
 
A: Representing Florida on Monday will be Washington appellate lawyer Gregory G. Katsas. Former Solicitor General Paul Clement, now in private practice, will represent Florida on Tuesday and Wednesday. Former Justice Department attorney Michael A. Carvin will represent the National Federation of Independent Businesses.
 
Q: Can I go watch the arguments, and if I can’t make it to Washington, can I watch on television or online?
 
A: The Supreme Court does not allow live television or radio broadcasts from inside its building, so the only way Americans can actually see or hear the arguments live is to be inside the courtroom while lawyers and justices debate. There are seats reserved inside the courtroom for members of the public on a first-come, first-served basis, with some people allowed to stay for the entire argument while others have to leave the courtroom and give their seats to the next people in line after 3-5 minutes. The Supreme Court will also make the audio recording of the arguments available later the same day here.
 
Q: What type of health care do the justices get, and will they be affected by their ruling?
 
A: The justices participate in the same health care plan as members of Congress and other federal workers. As participants in an employee-sponsored health care plan, it is unlikely that whatever decision the Supreme Court makes will substantially affect their personal health care insurance.
 
Q: I’ve heard people say that Justices Elena Kagan and Clarence Thomas should take no part in this case? What’s that about?
 
A: Opponents of the law wanted Kagan to disqualify herself because she served as solicitor general under Obama when the health care overhaul law was conceived and passed. She has said she did not participate in crafting a legal defense for the law, but her detractors doubt her statement, arguing that she was heavily involved in policy discussions on how to make sure ObamaCare passed through Congress. Thomas’ detractors insist that he should have disqualified himself because his wife, Ginni, worked with groups that opposed the new law.
 
Decisions to stay out of a case are the responsibility of each individual justice, and neither Kagan nor Thomas justice stepped aside.
 
Roberts said in his 2011 year-end report that he has “complete confidence in the capability of my colleagues to determine when recusal is warranted. They are jurists of exceptional integrity and experience whose character and fitness have been examined through a rigorous appointment and confirmation process. I know that they each give careful consideration to any recusal questions that arise in the course of their judicial duties.”


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Beckwith

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Supreme Court and ObamaCare

Ed Morrisey says asAs the issue of ObamaCare goes to the Supreme Court this week, two new polls show what most other pollsters have found for the last two years -- the majority of Americans want ObamaCare overturned.

We’ll start with the new Reason-Rupe poll, which surveyed 1200 general-population adults to find that 62% believe that the individual mandate is unconstitutional:

As the Supreme Court hears challenges to the Patient Protection and Affordable Care Act this week, a new Reason-Rupe poll of 1,200 adults finds 62 percent of Americans believe it is unconstitutional for Congress to mandate the purchase of health insurance, while 30 percent think requiring health insurance is constitutional.

Legal experts have suggested that if Congress has the power to require individuals to buy health care insurance, it may also mandate that Americans buy broccoli. The Reason-Rupe poll finds 87 percent of Americans believe Congress does not have the power to require the purchase of broccoli, while 8 percent say Congress can force you to buy vegetables.

Reason-Rupe finds 54 percent of Americans think the health care law will result in the rationing of health care services. Half of Americans have an unfavorable view of the health care law, while 32 percent have a favorable view of it. Similarly, 49 percent say the law should be repealed and 36 percent would let it stand.

There’s a fairly obvious disconnect in these numbers, in the 13-point difference between respondents who say that the law is unconstitutional (62%) while only 49% want it repealed. That leaves 13% who think it violates the Constitution but somehow think it should remain law — or at best are unsure whether it should or not. This looks like a symptom of poor civics instruction in the US, which should teach that the Constitution is the foundational legal document of the country, and that laws cannot contradict it, especially federal law, which the Constitution explicitly exists to limit.

Still, only 36% think it should be kept in place in the Reason/Rupe survey, which is otherwise rather friendly to Obama. The D/R/I is a strange 41/38/13, but at least the difference between Democrats and Republicans is within the ballpark, even if independents are undersampled. Obama’s job approval rating in this survey is 48/46, although his approval on economic policy is 44/53. A majority of the respondents say they will either definitely vote for Obama (30%) or could do so (21%). Those are better numbers than Obama gets in other polls, so the survey hardly oversampled Obama critics to get these numbers.

The sample is a little different in The Hill’s poll, but the results are about the same:

Half of likely voters want the Supreme Court to overturn Obama’s healthcare law, according to The Hill’s latest poll.

Just 42 percent said the court should uphold the law, with 50 percent saying it should be struck down.

A majority of both men and women want the law voided. By a 52-percent-to-39-percent margin women are more opposed to it than men, who oppose it 48 percent to 45 percent, a difference that matches the poll’s 3-point margin of error.

Only blacks (74 percent), Democrats (71 percent) and liberals (75 percent) want the law upheld. While even the youngest voters oppose the law (47 percent to 42 percent among those aged 18-39), opposition grows to 53 percent among voters aged 65 and older.

This poll surveyed likely voters rather than general-population adults, and its D/R/I is 32/36/32, which probably oversamples Republicans by a small margin at the expense of Democrats. However, the numbers aren’t that much different. That’s bad news for President Obama, especially when it comes to the public perception of his signature legislative achievement. Only 22% believe it will make the quality of health care better -- twenty points lower than those who want the bill upheld. Forty-two percent believe it will make health care worse, and another 30% believe it will do nothing to improve or worsen health care, which makes nearly three-quarters of likely voters who believe ObamaCare will either be ineffective or worse.

That’s not the only problem for Obama in this poll, either. Democrats have owned the health care issue for years over Republicans, usually well into double digits. Today’s poll shows a dead heat between Democrats and Republicans on trust regarding health-care policies, 44% each (indies give Dems the edge, but within the MoE at 40/37). That’s a big problem for Democrats heading into the fall elections, especially with Obama getting hammered on another traditional Democratic strength, the economy.

Finally, there is a big vote of no-confidence in the Supreme Court as well. The Hill asked whether the justices decide cases based on the Constitution or on their own personal political beliefs. By more than 2-1 (56/27), voters believe the justices act on their personal political beliefs rather than the Constitution. That ratio holds up across every demographic in the crosstabs. One presumes that a 5-4 decision on this case will only corroborate that impression.


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Claudia

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well, so far, they are not kicking the can down the road to 2015, they will hear the rest (or to/at whatever point they deem it being useless) and at least see whether the case has merits.......

Beckwith

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Obama lawyer laughed at in Supreme Court

Fox News is reporting that on the first day of health care reform arguments before the Supreme Court, two justices needled a top Obama lawyer for simultaneously calling the fine that will be paid under the law for not purchasing insurance a "penalty" and a "tax."
 
The confusion arises because of the administration’s argument that the power to enforce the individual mandate is rooted in Congress’ taxing power -- but that the mechanism itself is designed to be a penalty, not a revenue-generating policy.
 
The narrow but important distinction created a communication challenge for the lawyer representing the Obama administration.
 
U.S. Solicitor General Donald Verrilli used the phrase "tax penalty" multiple times to describe the individual mandate’s backstop. He portrayed the fee as a penalty by design, but one that functions as a tax because it’s collected through the tax code.
 
"General Verrilli, today you are arguing that the penalty is not a tax. Tomorrow you are going to be back and you will be arguing that the penalty is a tax," said Justice Samuel Alito, in one of the few laugh lines throughout the 90 minutes of argument Monday.
 
The remark underscores the fine line the White House is walking in its argument. On one hand, it says the backstop is not a tax, because that could subject it to the Anti-Injunction Act -- the focal point of Monday’s arguments — and delay a ruling to at least 2015. On the other, they claim that the power to impose a penalty derives from Congress’ broad taxing power. That’s in part because calling it a tax makes defending the mandate easier -- Congress' power to levy taxes is less in question than its power to require people to do things.
 
Justice Elena Kagan asked whether refusing to buy insurance would constitute breaking the law, to which Verrilli responded that if people "pay the tax, then they are in compliance with the law." That caught the attention of Justice Stephen Breyer.
 
"Why do you keep saying tax?" Breyer interjected, to more laughs.
 
The justices, particularly the four Democratic-appointees, and Justice Antonin Scalia, appeared skeptical that the fine constitutes a tax.

The distinction is nuanced, but key to one of the administration’s arguments.

 

On pages 31 through 32 of the transcripts, the Solicitor General  admits that for yesterday’s argument the fee IS a tax and that for today's argument it is NOT a tax.

 


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Beckwith

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"Train wreck for the Obama administration"

Ed Morrisey says call  it The Faceplant Heard ‘Round The Nation. CNN legal analyst Jeffrey Toobin, who had earlier predicted that the Supreme Court would uphold the individual mandate, called the first half of oral arguments on the issue “a train wreck for the Obama administration,” and openly predicted that the court would overturn at least that part of ObamaCare:

The Supreme Court just wrapped up the second day of oral arguments in the landmark case against President Obama’s healthcare overhaul, and reports from inside the courtroom indicate that the controversial law took quite a beating.

Today’s arguments focused around the central constitutional question of whether Congress has the power to force Americans to either pay for health insurance or pay a penalty.

According to CNN’s legal analyst Jeffrey Toobin, the arguments were “a train wreck for the Obama administration.”

“This law looks like it’s going to be struck down. I’m telling you, all of the predictions including mine that the justices would not have a problem with this law were wrong,” Toobin just said on CNN.

Toobin questioned the preparation of Obama administration Solicitor General David Verelli, saying he was “not ready” to answer questions on the mandate:

Toobin added that he felt that U.S. Solicitor General David Verrilli simply wasn’t prepared for the conservative justices.

“I don’t know why he had a bad day,” he said. “He is a good lawyer, he was a perfectly fine lawyer in the really sort of tangential argument yesterday. He was not ready for the answers for the conservative justices.”

Toobin also said that Anthony Kennedy looked like a “lost cause” for mandate supporters. CBS’ Jan Crawford tweeted out Kennedy’s comments during the arguments:

KENNEDY: Health care law “changes the relationship between the individual and the government in a very fundamental way.”

KENNEDY: Can you “create” commerce in order to regulate it? Suggests govt has “heavy burden” in health care case.

Crawford also reported heavy skepticism during oral arguments, noting that a majority appeared “[t]roubled there would be no limits on Congressional power.”

We’ll update this as we get video and more reaction. At the moment, though, the White House has to be less than pleased.

Update: The Hill also notes Kennedy’s skepticism. The report also concludes that the four liberal justices seemed ready to support the mandate:

Tom Goldstein, the author of a popular Scotus Supreme Court blog, offered a mid-argument update in which he said there was no fifth vote yet in favor of or against the mandate.

He wrote that the four more liberal justices on the court appeared to be in favor of the mandate, while conservatives were expressing skepticism.

In other words … 5-4, here we come.

 

 

 


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Beckwith

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Democrats removed Severability Clause so entire ObamaCare Law must be thrown out

Jim Hoft says Virginia Attorney General Ken Cuccinelli agreed with Greta Van Susteren that the entire ObamaCare Law must be thrown out because Democrats removed the severability clause in the bill when they voted on it in the US Senate.  Therefore, if the Supreme Court decides that the individual mandate is illegal, then they must throw out entire law.



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CAPTAINMACK

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Of course Obamacare is not Constitutional, first and foremost because neither is Obama!

lawyer12

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@captainmack

EXACTLY - great analogy....and truth in the statement
bushido

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Barry vs Barry.  And everyone loses..........

                                                       
Beckwith

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Remember this?

 


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Claudia

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Yep, VERY ODD that he was even allowed into the Judicial Chambers when there were at least three cases PENDING against him at the time.....  can we say CONFLICT OF INTEREST or BUYING/THREATENING GOOD WILL or COHERSING THE JUDICIAL BRANCH right from the start immediately after being elected, that little romp into the chambers took place in December right after his "election" but before his actual swearing in at the Podium on Jan 20..   2009...... seems like a very long time ago, doesn't it, see how time flies when you are in a PANIC about the WAY THE NATION IS GOING.......... down the tubes right in front of the national electorate

Beckwith

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Another $17 trillion surprise found in ObamaCare

Neil Munro is reporting that Senate Republican staffers continue to look though the 2010  ObamaCare law to see what’s in it, and their latest discovery is a massive $17 trillion funding gap.

“The more we learn about the bill, the more we learn it is even more unaffordable than was suspected,” said Ala. Sen. Jeff Sessions, the Republican’s budget chief in the Senate.

“The bill has to be removed from the books because we don’t have the money,” he said.

The hidden shortfall between new ObamaCare spending and new Obamacare taxes was revealed just after Supreme Court judges grilled the law’s supporters about its compliance with the constitution’s limits on government activity. If the judges don’t strike down the law, ObamaCare will force taxpayers find another $17 trillion to pay for ObamaCare’s spending.

The $17 trillion in extra promises was revealed by an analysis of the law’s long-term requirements. The additional obligations, when combined with existing Medicare and Medicaid funding shortfalls, leaves taxpayers on the hook for an extra $82 trillion over the next 75 years.

The federal government already owes $15 trillion in debt, including $5 trillion in funds borrowed during Obama’s term.

That $82 billion in unfunded future expenses is more more than five years of wealth generated by the United States, which now produces just over $15 trillion of value per year.

The $82 trillion funding gap is equal to 28 years of the the current federal budget, which was $3.36 trillion for 2011.

The new $17 trillion funding gap is five times the current federal budget.

Currently, the Social Security system is $7 trillion in debt over the next 65 years. Medicare will eat up $38 trillion in future taxes, and Medicaid will consume another $2o trillion of the taxpayer’s wealth, according to estimates prepared by the actuarial office at the Centers for Medicare and Medicaid Services.

The short-term cost of the ObamaCare law is $2.6 trillion, almost triple the $900 billion cost promised by Obama and his Democratic allies, said Sessions.

The extra $17 billion gap was discovered by applying standard CMMS estimates and models to the law’s spending obligations, Sessions said.

For example, Session’s examination of ObamaCare’s “premium support” program shows a funding gap $12 billion wider that predicted.

The same review also showed the ObamaCare law added another $5 trillion in unfunded obligations for the Medicaid program.

President Obama told the American people that his health law would cost $900 billion over ten years and that it would not add ‘one dime’ to the debt… this health law adds an entirely new obligation -- one we cannot pay for -- and puts the entire financing of the United States government in jeopardy,” Sessions said in a floor speech.

“We don’t have the money… We have to reduce the [obligations] that we have.”

 


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Claudia

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A message from Van Irion about ObamaCare case, thought you all would like to have his input........

 

Why Oral Arguments Don't Tell Us What the Court Will Do

Last week the media became momentary experts on the Supreme Court. I found it amusing to hear some of the prognostications derived from the Obamacare oral arguments. What very few of the pundits explained was the mechanics of how the Court operates. Without understanding that, it is very difficult to put oral arguments in the proper prospective.

By the time oral arguments are presented, most of the Justices have already formed strong opinions about a given case. This is more true of high profile cases like Obamacare when the Justices have, by that time, considered the case in depth. Cases are first presented to the Court in filed documents that request the Court to take up the case. Those filings present the arguments and issues in detail. These requests are considered by the Justices many months before oral arguments. Very few requests are ever granted, but once the Court does accept a case the parties then submit briefs that include detailed arguments and analysis of legal precedent as it relates to their specific case. Often non-parties also file amicus (friend of the court) briefs with the Court. In the case of Obamacare, close to 100 different groups, including Liberty Legal Found ation, filed amicus briefs. The Justices consider these amicus briefs, and their staff's research of the briefs, in preparation for oral arguments.

So, you can see that a party presenting an oral argument is very unlikely to present a perspective that the Justices haven’t already considered.

Despite all this oral arguments can still change the outcome, but I believe that such changes are rare. I listened to all of the Obamacare oral arguments from last week. There were certainly some interesting points made, but I seriously doubt that any of the Justices ended the week with a fundamentally different decision than what they had at the beginning of the week.

The most likely time for a Justice to change his or her opinion is actually after oral arguments, during the preparation of the Court’s written opinions. Anyone that writes regularly understands that the process of writing forces you to crystallize your thoughts. Good writing requires a logical progression of ideas. This is particularly true for legal writing. So, the process of writing often leads the writer to confront facts and assumptions that he or she may have ignored or glossed over before writing. For this reason, writing sometimes changes a Justices opinion on an issue. Justices have often “changed sides” during preparation of the Court’s rulings.

So, if you consider the fact that real changes of opinion are more likely to happen after oral argument, not during oral argument, you can see that it’s almost impossible to get any real indication of how the Court will rule from oral arguments.

Many of the main-stream-media opinions about Obamacare are very educational. Even the predictions about how the Court will rule can be entertaining. But don’t bet the farm on any predictions. We at Liberty Legal Foundation will continue to hope for the best, but prepare for the worst. Barring a miracle ruling that returns us to pre-1942 commerce clause jurisprudence, Liberty Legal Foundation will continue the fight after next summer’s ruling with our Obamacare Class Action.

In Liberty,

bushido

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Obama ‘confident’ Supreme Court will uphold health care law

This vid is of today's announcement/press conference in which barry throws the Supreme Court under the bus...implying they are an un-elected bunch of idiots.

                                                           

He has lost control...he lost his mind decades ago.

lawyer12

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Obama thinks he is in Chicago and he is Al Capone...

He is delusional and Kagan as a little dog would goes running to him telling him that the Court is about to overturn the whole thing.

Obama as the Narcissist he is, wants to issue a warning like a Chicago Thug would always do....
SocalJay

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Article covering the above video is here.
Seriously

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He's covering his tracks is all. If the Supreme Court declares it un-Constitutional, he's going to blame them and the Dem's that wrote it and passed it.  Notice his comment, "passed by a strong majority of democratically elected Congress".  He can play it either way - blame SCOTUS or the Dem's that wrote it - depending on his audience at any given moment.  And an Atty's response to all of this BS!

An Open Letter to President Barack H. Obama, Constitutional Scholar

Dear Mr. President,

Supposedly, you are some sort of constitutional scholar.  At the very least, you can read, you can write, and despite being merely some sort of guest lecturer at the University of Chicago Law School, you once famously referred to yourself as a “Constitutional Law professor.”

Ringing a bell so far, Mr. President? Great.

While my Juris Doctor is from the Rutgers School of Law in Camden, New Jersey, and while Rutgers-Camden is a fine school but is hardly Harvard Law School, within the first three days of Constitutional Law class those who did not already know of and understand Marbury v. Madison, perhaps the single most important decision in the history of the United States Supreme Court, were nonetheless introduced to it ad nauseum.

In Marbury, the United States Supreme Court held that federal courts across our nation not only have the authority, but also the duty, to review the constitutionality of acts of Congress–including statutes and treaties–and to designate as void those acts of Congress which countermand the United States Constitution.  The term you’re searching for between those ears of yours, Mr. President, is “judicial review.”  And, while it has been nearly two years since I opened up a Constitutional Law book and can now debate divorce and family law in South Carolina better than I can the Constitution, I recall enough from law school and bar exam study to know that the doctrine of “judicial review” is now settled law.

In other words, since the landmark Marbury decision came down from the very Court you belittle and smear as “unelected” and “activist” in 1803, and because of “judicial review,” federal courts in the United States of America have the power–and duty–to review laws passed by Congress, decide whether or not those laws either comport with our Constitution or countermand it, and either uphold those laws that pass constitutional muster or declare void those laws that do not.

Not a difficult concept, Mr. President.  Not a difficult concept for a first-year law student at Rutgers-Camden, and certainly not a difficult concept for a Harvard Law grad who lectured on Constitutional Law at University of Chicago Law School and later went on to deceive a nation into crowning him president of the United States.  This ain’t race-baiting or class warfare, Mr. President, but Marbury and judicial review should nonetheless certainly be in your wheelhouse.

So, what’s the problem?  Earlier today, according to Fox News and other sources, this apparently happened:

President Obama, employing his strongest language to date on the Supreme Court review of the federal health care overhaul, cautioned the court Monday against overturning the law — while repeatedly saying he’s “confident” it will be upheld.

The president spoke at length about the case at a joint press conference with the leaders of Mexico and Canada. The president, adopting what he described as the language of conservatives who fret about judicial activism, questioned how an “unelected group of people” could overturn a law approved by Congress.

“I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress,” Obama said.

Those statements are so indicative of ignorance of not only Constitutional Law but also basic civics that I don’t even know where to begin.

First, even a second-grader understands that the the United States Government is split into three separate branches in order to insulate one from another and provide checks and balances for each.  Of course, it is easy to comprehend how a totalitarian like yourself would have trouble distinguishing the lines between the various branches; after all, you have an established penchant for making illegitimate recess appointments and facilitating regulatory and other extra-legislative mechanisms designed to eschew and usurp the traditional role of the Legislative Branch — is should come as no surprise that you are utterly incapable of understanding why Justices of the United States Supreme Court are indeed unelected.

The Justices of the United States Supreme Court are unelected, Mr. President, to insulate and protect them from the influence and derision of lawmakers and chief executives like you.

The rest is here and it's VERY good!

http://americasright.com/2012/04/02/an-open-letter-to-president-barack-h-obama-constitutional-scholar/


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BuckeyeMike

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Attorneys, please express an opinion...

Would not the IX Amendment ("The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.") provide a defense against Obamacare?

In the Courts decision on Griswold v Connecticut, Justice Arthur Goldberg, Justice Earl Warren and Justice William Brennan) expressed this view in a concurring opinion:
 
"The Framers did not intend that the first eight amendments be construed to exhaust the basic and fundamental rights.... I do not mean to imply that the .... Ninth Amendment constitutes an independent source of rights protected from infringement by either the States or the Federal Government....While the Ninth Amendment - and indeed the entire Bill of Rights - originally concerned restrictions upon federal power, the subsequently enacted Fourteenth Amendment prohibits the States as well from abridging fundamental personal liberties. And, the Ninth Amendment, in indicating that not all such liberties are specifically mentioned in the first eight amendments, is surely relevant in showing the existence of other fundamental personal rights, now protected from state, as well as federal, infringement. In sum, the Ninth Amendment simply lends strong support to the view that the "liberty" protected by the Fifth and Fourteenth Amendments from infringement by the Federal Government or the States is not restricted to rights specifically mentioned in the first eight amendments."

To me, the Court has set precedence that prevents Obama from infringing upon our liberty to privately choose by what means we care for ourselves.

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In a remarkable, partisan exchange in a Texas courtroom Tuesday, a federal judge demanded that the Obama administration formally explain recent statements by President Obama that some have construed as questioning the authority of courts to review, and potentially strike down, his signature health care law.

Judge Jerry Smith of the 5th Circuit U.S. Court of Appeals, a Reagan appointee, issued the order during oral arguments in a case challenging the Affordable Care Act’s restrictions on physician-owned hospitals.

“I would like to have from you by noon on Thursday… a letter stating what is the position of the Attorney General in the Department of Justice in regard to the recent statements by the President — stating specifically, and in detailed reference to those statements, what the authority is in the federal courts in this regard in terms of judicial review,” Smith told a government lawyer in a recording of the hearing released by the court.

“The letter needs to be at least three pages, single-spaced and it needs to be specific,” he added.

Smith was responding to statements Obama made Monday at a Rose Garden press conference, when he said in response to a question that it would be “an unprecedented and extraordinary step” if the Supreme Court overturned a law that was passed by “a democratically elected Congress.”

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freedomstands

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I knew that I had Texan roots for a reason! It was the Texas Senator and Legislator that said Obama doesn't have a certified birth certificate and it needs to investigated. Now a REAGAN appointed judge from Texas says he wants to know exactly what he meant......If we could just get the ball rolling down hill......Oh my...Some things happen for a reason. I wonder if this is one of those times. I am praying and praying and praying.

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Obama puts out figurative bounty on Supreme Court

 

RUSH: Obama and his attack on the Supreme Court yesterday.  It happened toward the end of the program in the last half hour and it was happening on the fly.  I didn't really have enough time to listen in detail to what Obama said, and thus I didn't have a chance to, in detail, reply.  I've now listened to what Obama said.  I've got three sound bites here.

 

When I got home yesterday at about six o'clock last night I got a flash encrypted message from a friend who says, "You know, somebody in the court leaked to Obama. That's why he went out there and did this today. Somebody called him. He lost the vote, the preliminary vote on Friday. He lost it, and somebody leaked it." And that became an active theory that began to be bandied about amongst a lot of people that I know. Because people were saying,

 

"Why go out," as Obama did yesterday...? It was in the form of a question. We must remember that he was asked a question about this. He didn't launch into this on his own, but once he got the question, it was, "Katie, bar the door," and he was off to the races.

And the question everybody was asking is: "Why do this? Why attack the court? Why intimidate them, why threaten them if they had voted to uphold the mandate?" And I have an answer for that. See, I know these people. I know liberals. I don't want that statement to sound bombastic. You people here -- new listeners to the program -- that's not a braggadocios statement. It's not bombastic. It's not outrage or any attempt to shock. I just know them, and so when somebody asks me, "Why would Obama say that if he didn't have to? If he had been told that the preliminary vote on Friday was in his favor, why take the attitude that he took?" There is an answer to that. I don't know if it's right, but there is an answer.

He's a thug.

And again, I'm not trying to be provocative when I say this. I'm just quoting Bill Clinton, folks. Bill Clinton referred to Barack Obama as a Chicago thug during the 2008 presidential campaign. This after Clinton some years earlier had told Juanita Broaddrick, "Put some ice on that lip" after she said he raped her. (I mentioned that for this "war on women" that supposedly the Republicans are waging.) But there's every possibility that Obama feeling his oats, being told that the vote went his way, would still go out and do this, 'cause he knows there are more votes to come. I'm not predicting it. I'm just saying I could understand it.

It's easier to understand that somebody leaked to him that the preliminary vote went against him and that the mandate fell by whatever the preliminary vote was and that explains his attitude yesterday. But I can see him saying what he said if the vote went in his favor as well, as a means of further intimidation, making sure they don't change their minds or whatever. You might say, "Well, how would that work? Wouldn't that just kind of make them be more resistant?" The reason this is all a crock in the first place is that (and we will go through this as we play the Obama sound bites) it is obvious that to the left this is an entirely political process.

 

There's nothing judicial going on here. There's nothing legal. This isn't even really about the Constitution. This is about politics, pure and simple, and Barack Obama's reelection. It's all it is. But he says things in these sound bites which you'll hear coming up and they're chilling to me. "The court has to understand..." "The court must understand," is one of his sound bites. No, the court must not -- does not have to -- listen to you. What is this, "The court must understand"? That is a threat! How many of you think it possible that Obama will make a trip to the Supreme Court before the vote, before the final vote? Can you see it happening? I can.

  

I'm not predicting it. (interruption) You're shaking your head. You don't think it would ever happen? Why would he be...? Why would Obama visiting the Supreme Court between now and June be any more unconscionable than what he did yesterday? (interruption) It's a visual? No! He's just going up to say hi to Kagan. He's going up to say hi to Kagan and Sotomayor, to see how they're doing. (interruption) He called 'em out of the State of the Union right to their face. Remember that with Justice Alito? Anyway, let me take a break. We'll come back and we will get into some of these sound bites and we'll tear this down as it happened sometimes line by line. Mike, be prepared when I say, "Stop." There might be some frequent stops and starts as we go through this.

 

Continues here . . .

 


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Beckwith

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The man who knew too little

James Taranto says we  were half-joking yesterday when we asked if Barack Obama slept through his Harvard Law class on Marbury v. Madison, the 1803 case in which the U.S. Supreme Court first asserted its power to strike down unconstitutional laws. It turns out it's no joke: The president is stunningly ignorant about constitutional law.

At an appearance this afternoon, a reporter asked Obama a question following up on yesterday's comments: "Mr. President, you said yesterday that it would be 'unprecedented' for a Supreme Court to overturn laws passed by an elected Congress. But that is exactly what the court's done during its entire existence. If the court were to overturn the individual mandate, what would you do, or propose to do, for the 30 million people who wouldn't have health care after that ruling?"

 

Obama's answer to the question was that he expects to win in court, and "as a consequence, we're not spending a whole bunch of time planning for contingencies." He went on to talk at some length about the "human element"--that is, people who would supposedly suffer in the absence of ObamaCare. Message: Obama cares, though not enough to spend "a whole bunch of time planning for contingencies."

But the most interesting part of his answer was the beginning, in which he tried to walk back, or at least clarify, his statement from yesterday. He spoke slowly, with long pauses, giving the sense that he was speaking with great thought and precision: "Well, first of all, let me be very specific. Um [pause], we have not seen a court overturn [pause] a [pause] law that was passed [pause] by Congress on [pause] a [pause] economic issue, like health care, that I think most people would clearly consider commerce. A law like that has not been overturned [pause] at least since Lochner, right? So we're going back to the '30s, pre-New Deal."

In fact, Lochner--about which more in a moment--was decided in 1905. Thirty years later, after the New Deal had begun, the high court unanimously struck down one of its main components, the National Industrial Recovery Act, as exceeding Congress's authority under the Interstate Commerce Clause. The case was A.L.A. Schechter Poultry Corp. v. U.S. (1935).

 

It is true that in subsequent New Deal cases, the court vastly expanded Congress's power to regulate "interstate commerce," although it has never done what the administration asks it to do now, namely authorize Congress to force individuals to engage in commerce. Obama seems to have been trying to make the accurate observation that since the '30s the court has not struck down a federal law that applies to economic activity on the ground that it exceeds Congress's Commerce Clause authority.

But in citing Lochner, the president showed himself to be in over his head.

The full name of the case, Lochner v. New York, should be a sufficient tip-off. In Lochner the court invalidated a state labor regulation on the ground that it violated the "liberty of contract," which the court held was an aspect of liberty protected by the 14th Amendment's Due Process Clause. (The legal doctrine at issue, "substantive due process," refers to the meaning of "life, liberty and property" under the Due Process Clause.)

Lochner, which was effectively reversed in a series of post-New Deal decisions, did not involve a federal law--contrary to the president's claim--and thus had nothing to do with the Commerce Clause, which concerns only the powers of Congress.

It's appalling that any president would have the effrontery to lecture the Supreme Court about a pending case. It's astounding that this president, who was once a professor of constitutional law at an elite university, would do so in such an ignorant fashion.

 


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Political word games

Thomas Sowell says that one of the highly developed talents of Barack Obama is the ability to say things that are demonstrably false, and make them sound not only plausible but inspiring.

That talent was displayed just this week when he was asked whether he thought the Supreme Court would uphold ObamaCare as constitutional or strike it down as unconstitutional.

He replied: "I'm confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress."

But how unprecedented would it actually be if the Supreme Court declared a law unconstitutional if it was passed by "a strong majority of a democratically elected Congress"?

The Supreme Court has been doing precisely that for 209 years!

Nor is it likely that Barack Obama has never heard of it. He has a degree from the Harvard law school and taught constitutional law at the University of Chicago law school. In what must be one of the most famous Supreme Court cases in history -- Marbury v. Madison in 1803 -- Chief Justice John Marshall established the principle that the Supreme Court can declare acts of Congress null and void if these acts violate the Constitution.

They have been doing so for more than two centuries. It is the foundation of American constitutional law. There is no way that Barack Obama has never heard of it or really believes it to be "unprecedented" after two centuries of countless precedents.

In short, he is simply lying.

Now there are different kinds of liars. If we must have lying Presidents of the United States, I prefer that they be like Richard Nixon. You could just look at him and tell that he was lying.

But Obama is much smoother. On this and on many other issues, you would have to know what the facts are to know that he is lying. He is obviously counting on the fact that, in this era of dumbed-down education, many people have no clue as to what the facts are.

He is also counting on something else -- namely, that the pro-Obama media will not expose his lies.

One of the many ways of lying smoothly is to simply redefine words. Barack Obama is a master at that as well.

In the comment on the case pending before the Supreme Court, President Obama said that he wanted to remind "conservative commentators" that they have complained about "judicial activism" -- which he redefines as the idea that "an unelected group of people would somehow overturn a duly constituted and passed law."

First of all, every law that the Supreme Court has overturned for the past 209 years since Marbury v. Madison was "a duly constituted and passed law."

Second, the "judicial activism" that conservatives have complained about was judges making rulings based on how they felt personally about the issue at hand, rather than about what the Constitution of the United States said.

In recent years, great efforts have been made to redefine "judicial activism" in terms of judges declaring laws unconstitutional, instead of "deferring" to Congress or other government institutions.

But what is the Constitution's Bill of Rights supposed to protect the ordinary citizen from? Government institutions! If judges are to defer to the very institutions that the Bill of Rights tries to protect the citizen from, what is the point of having a Bill of Rights?

As for Supreme Court justices being unelected, that has been true since the Constitution was created. That was done deliberately, so that they could render their judgments without fear of political repercussions. If unelected Supreme Court justices are to automatically defer to elected officials, that again raises the question of why they are there at all.

Why are the taxpayers paying their salaries and housing them in an expensive marble building -- just so that they can go along to get along?

It would be hard to become nostalgic about Richard Nixon, who was forced to resign in disgrace. But at least you could tell when he was lying. Obama's lies are just as big but not as visible, and the media that exposed Nixon is covering for Obama.
 


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Barack Obama, Professor of Unconstitutional Law

Barack Obama has declared war on the Supreme Court in advance of the Court's ObamaCare decision.  Declaring the Justices of the Court "unelected," Obama seems eager to create a constitutional crisis.  Why is Obama insulting the integrity of the judiciary and not making the constitutional argument for his health care legislation?

 

Find out.


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