Posts Tagged ‘Supreme Court’

16th December
2016
written by Sean Noble

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President-elect Donald Trump can point to any number of factors that led to his election to be the next occupant of 1600 Pennsylvania Avenue. Other than the desire for change (which was a huge factor) a leading reason was the vacancy on the Supreme Court left when Justice Antonin Scalia suddenly passed away.

 For many moderate to lean conservative voters who may have otherwise voted for Clinton, the prospect of the liberals taking over the court was too much to bear.

 The big question is, who will Trump pick? In an unconventional move (in a very unconventional election) Trump released a list of his possible picks before the election. Chances are he will likely pick from that list. It’s become a D.C. parlor game to try to guess who he will pick.

 Even though he was not on the list, I would argue Trump should consider Senator Ted Cruz. Cruz clerked at the Supreme Court, was the Solicitor General for Texas, and obviously, ran for President. The calculation for Trump would be like the move President Obama made in appointing Jon Huntsman Jr. as Ambassador to China – neutralize potential opposition. Obama believed that Huntsman would be a formidable opponent in his re-election efforts. As it turned out, Huntsman took the job, only to resign and return to the U.S. and mount a campaign. Obama’s concerns about Huntsman may have been accurate in a General Election, but he hadn’t thought through how difficult it would be for Huntsman to get through the primary.

 If Trump were to pick Cruz for the Supreme Court, it would be (in part) to prevent Cruz from mounting a primary challenge in 2020. It would also be a pretty good move because Cruz is a conservative and he is young – he could be on the bench for 30 or 40 years.

 Another reason to pick Cruz would be that he is so unpopular with both Republican and Democrat Senators that he may get Senate approval by acclamation! Anyone else is certain to face a brutal confirmation process as Democrats take their frustrations of losing the White House out on Trump’s nominee.

 Either way, it’s going to be a fascinating process to watch.

28th June
2012
written by Sean Noble

 

 

 

 

 

 

 

 

 

 

Supreme Court Chief Justice John Roberts turned the legal world upside down with his decision on Obama’s health care law that ruled that the individual mandate was unconstitutional under the Commerce Clause, but allowed it to remain as a tax provision.

This was an angle that no one saw coming.

Charles Krauthammer opines about what Roberts was thinking:

 Chief Justice John Roberts joins the liberal wing of the Supreme Court and upholds the constitutionality of Obamacare. How? By pulling off one of the great constitutional finesses of all time. He managed to uphold the central conservative argument against Obamacare, while at the same time finding a narrow definitional dodge to uphold the law — and thus prevented the court from being seen as having overturned, presumably on political grounds, the signature legislation of this administration.

Why did he do it? Because he carries two identities. Jurisprudentially, he is a constitutional conservative. Institutionally, he is chief justice and sees himself as uniquely entrusted with the custodianship of the court’s legitimacy, reputation and stature.

***

More recently, however, few decisions have occasioned more bitterness and rancor than Bush v. Gore, a 5-4 decision split along ideological lines. It was seen by many (principally, of course, on the left) as a political act disguised as jurisprudence and designed to alter the course of the single most consequential political act of a democracy — the election of a president.

Whatever one thinks of the substance of Bush v. Gore, it did affect the reputation of the court. Roberts seems determined that there be no recurrence with Obamacare. Hence his straining in his Obamacare ruling to avoid a similar result — a 5-4 decision split along ideological lines that might be perceived as partisan and political.

National health care has been a liberal dream for a hundred years. It is clearly the most significant piece of social legislation in decades. Roberts’ concern was that the court do everything it could to avoid being seen, rightly or wrongly, as high-handedly overturning sweeping legislation passed by both houses of Congress and signed by the president.

How to reconcile the two imperatives — one philosophical and the other institutional? Assign yourself the task of writing the majority opinion. Find the ultimate finesse that manages to uphold the law, but only on the most narrow of grounds — interpreting the individual mandate as merely a tax, something generally within the power of Congress.

Result? The law stands, thus obviating any charge that a partisan court overturned duly passed legislation. And yet at the same time the Commerce Clause is reined in. By denying that it could justify the imposition of an individual mandate, Roberts draws the line against the inexorable decades-old expansion of congressional power under the Commerce Clause fig leaf.

Law upheld, Supreme Court’s reputation for neutrality maintained. Commerce Clause contained, constitutional principle of enumerated powers reaffirmed.

That’s not how I would have ruled. I think the “mandate is merely a tax” argument is a dodge, and a flimsy one at that. (The “tax” is obviously punitive, regulatory and intended to compel.) Perhaps that’s not how Roberts would have ruled had he been just an associate justice, and not the chief. But that’s how he did rule.

Obamacare is now essentially upheld. There’s only one way it can be overturned. The same way it was passed — elect a new president and a new Congress. That’s undoubtedly what Roberts is saying: Your job, not mine.

 

27th June
2012
written by Sean Noble

The Supreme Court of the United States will release its decision on Obama’s health care law tomorrow.  This will likely be the most consequential decision of 2012.

Most court observers predict that the court will throw out the individual mandate, but no one seems to know whether they will overturn the entire law as well.

Concerned Women for America is running this ad as a reminder of what this law means, and why it still needs to be repealed if the court doesn’t overturn the entire law.

 
 

4th April
2012
written by Sean Noble

 

 

 

 

 

 

 

 

Candidate Obama campaigned as Mr. Everyman – the down-to-earth affable guy who could relate to real people.

President Obama is an arrogant elitist who believes – really believes – that he is a force of nature to which everyone must respond.  Take his remarks regarding the Supreme Court’s oral arguments of the health care law.

“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.”

Seriously?  This from a man who was a constitutional law professor?  There have been hundreds, if not thousands, of laws passed by Congress and state legislatures that have been overturned by the Supreme Court and even lower courts.  This is a doctrine of legislative review established more than 200 years ago in a case called Marbury v. Madison.

Obama’s assertion that the law “was passed by a strong majority” is revisionist history.  It ultimately passed the U.S. House on a 219-212 vote – in which all Republicans and 39 Democrats voted no.

Let’s review how it got to that point, because it’s a story that belies this notion that it was “passed by a strong majority of a democratically elected Congress.”

The first real floor action on health care reform happened in November of 2009 when the Democrats in the House passed their version that included a “public option” which was essentially a full government takeover of health care.  That vote was 220-215 with one Republican (Joseph Cao of New Orleans, who won the seat of Democrat William Jefferson after Jefferson was caught stuffing his freezer with cash from bribes) voting yes and 39 Democrats voting no.

Because at least eight Senate Democrats were on record opposing a public option, the Senate drafted it’s own bill and used the Christmas holiday as the leverage point to get it passed.

It passed the Senate with the 60 votes (the minimum required to end debate on legislation) on Christmas Eve 2009 after some rather outrageous giveaways were promised to Sen. Ben Nelson of Nebraska – “Cornhusker Kickback” – and Sen. Mary Landrieu of Louisiana.

Then a funny thing happened on the way to the Capitol – so to speak.  Outrage at how the Senate had managed the passage of the health care bill manifested itself in the special election in Massachusetts to fill the Senate seat left vacant as a result of the death of Sen. Ted Kennedy. In what must be one of the most shocking political upsets of all time, Republican Scott Brown defeated Democrat Martha Coakley, thus becoming “41” – that is, the 41st Republican in the Senate, and breaking the 60-vote supermajority of the Democrats.

At that point, passage of Obama’s health care bill looked doomed.  But then-Speaker Nancy Pelosi decided that they would force the House to vote on the Senate-passed bill by a legislative trick called “reconciliation.”

I won’t bore you with the reconciliation process, but suffice it to say, the House took what was essentially a draft bill (remember, the Senate pushed through their bill on Christmas Eve with deals being cut hours before, and what officially passed the Senate was language that included handwritten edits, notations and references) and passed it into law, because under reconciliation no language could be changed.

This is why Nancy Pelosi was being honest when she said, “We have to pass the bill so that we can find out what is in it.”  The Senate version (which was never intended to become the final law) left huge swaths of decisions to the Secretary of Health and Human Services because they hadn’t come to agreement on most of the implementation points.

Most damaging in the long run to Obama’s law was that the Senate version did not include a “severability clause” which is routine in bigger pieces of legislation.  Severability is normally included so that if some portion of a bill is found to be unconstitutional, it doesn’t take the entire bill down.

The severability issue brings us back to Obama’s claim that it would be unprecedented for the Supreme Court to overturn a law.  If it had never been done, why would Congress ever put a severability clause into legislation?

I am astounded at the blatant disregard for the truth that the President of the United States employs.  Does he really think that “warning” the Supreme Court is smart, let alone appropriate?  For him to equate overturning this horrific law to “judicial activism” is to turn the world upside down.  Striking down a law because it violates the constitution is not legislating from the bench.

Obviously, Obama is very worried about what might happen to his signature accomplishment.  But his outrage is misguided and he isn’t handling this in a very Presidential way.

 

29th March
2012
written by Sean Noble

 

 

 

 

 

 

 

Obama’s health care law may be on life support.  After three days of oral arguments before the Supreme Court in the challenge to the health care bill signed into law two years ago, the future of the law is very uncertain.

It’s clear that supporters of the law were rocked by how aggressive the questioning was by Justices Kennedy and Breyer – two justices that are key to which way the decision goes.  The Left is also very unhappy with Obama’s Solicitor General.  Mother Jones wrote, “If the law is upheld, it will be in spite of Verrilli’s performance, not because of it.”

I was struck my Kennedy’s first question right out of the box, “Can you create commerce in order to regulate it?”  That is how a Supreme Court Justice “gets up in your grill.”

Justices Scalia, Alito and Chief Justice Roberts also asked withering questions.  Justice Thomas was typically silent – he hasn’t asked a question in the last six years.  It is assumed that those four are near-certain to support striking down the individual mandate and based on Kennedy’s questioning, he could be the fifth vote.

What has alarmed the Left more than anything is the discussion in the final day of arguments when the Court discussed whether it was more reasonable to overturn the entire law if they agree that the individual mandate is struck down.

While I strongly believe that the individual mandate is unconstitutional, and have been cautiously optimistic that the Court would so rule, I have been very pessimistic about the Court overturning the entire law.  That would be a nice gift to the American people if it were to happen.

Transcripts of the three days of arguments are here:

Monday

Tuesday

Wednesday here and here

23rd March
2012
written by Sean Noble

With oral arguments in the case challenging the individual mandate of Obama’s health care law starting in the Supreme Court on Monday, this piece by Charles Krauthammer is worthy of posting in total. It is a must read.

Obamacare: The reckoning

By , Published: March 22

Obamacare dominated the 2010 midterms, driving its Democratic authors to a historic electoral shellacking. But since then, the issue has slipped quietly underground.

Now it’s back, summoned to the national stage by the confluence of three disparate events: the release of new Congressional Budget Office cost estimates, the approach of Supreme Court hearings on the law’s constitutionality and the issuance of a compulsory contraception mandate.

Cost:

Obamacare was carefully constructed to manipulate the standard 10-year cost projections of the CBO. Because benefits would not fully kick in for four years, President Obama could trumpet 10-year gross costs of less than $1 trillion — $938 billion to be exact.

But now that the near-costless years 2010 and 2011 have elapsed, the true 10-year price tag comes into focus. From 2013 through 2022, the CBO reports, the costs of Obamacare come to $1.76 trillion — almost twice the phony original number.

It gets worse. Annual gross costs after 2021 are more than a quarter of $1 trillion every year — until the end of time. That, for a new entitlement in a country already drowning in $16 trillion of debt.

Constitutionality:

Beginning Monday, the Supreme Court will hear challenges to the law. The American people, by an astonishing two-thirds majority, want the law and/or the individual mandate tossed out by the court. In practice, however, questions this momentous are generally decided 5 to 4 — i.e., they depend on whatever side of the bed Justice Anthony Kennedy gets out of that morning.

Ultimately, the question will hinge on whether the Commerce Clause has any limits. If the federal government can compel a private citizen, under threat of a federally imposed penalty, to engage in a private contract with a private entity (to buy health insurance), is there anything the federal government cannot compel the citizen to do?

If Obamacare is upheld, it fundamentally changes the nature of the American social contract. It means the effective end of a government of enumerated powers — i.e., finite, delineated powers beyond which the government may not go, beyond which lies the free realm of the people and their voluntary institutions. The new post-Obamacare dispensation is a central government of unlimited power from which citizen and civil society struggle to carve out and maintain spheres of autonomy.

Figure becomes ground; ground becomes figure. The stakes could not be higher.

Coerciveness.

Serendipitously, the recently issued regulation on contraceptive coverage has allowed us to see exactly how this new power works. All institutions — excepting only churches, but not excepting church-run charities, hospitals, etc. — will be required to offer health care that must include free contraception, sterilization and drugs that cause abortion.

Consider the cascade of arbitrary bureaucratic decisions that resulted in this edict:

(1) Contraception, sterilization and abortion pills are classified as medical prevention. On whose authority? The secretary of health and human services, invoking the Institute of Medicine. But surely categorizing pregnancy as a disease equivalent is a value decision disguised as science. If contraception is prevention, what are fertility clinics? Disease inducers? And if contraception is prevention because it lessens morbidity and saves money, by that logic, mass sterilization would be the greatest boon to public health since the pasteurization of milk.

(2) This type of prevention is free — no co-pay. Why? Is contraception morally superior to or more socially vital than — and thus more of a “right” than — penicillin for a child with pneumonia?

(3) “Religious” exemptions to this edict extend only to churches, places where the faithful worship God, and not to church-run hospitals and charities, places where the faithful do God’s work. Who promulgated this definition, so stunningly ignorant of the very idea of religious vocation? The almighty HHS secretary.

Today, it’s the Catholic Church whose free-exercise powers are under assault from this cascade of diktats sanctioned by — indeed required by — Obamacare. Tomorrow it will be the turn of other institutions of civil society that dare stand between unfettered state and atomized citizen.

Rarely has one law so exemplified the worst of the Leviathan state — grotesque cost, questionable constitutionality and arbitrary bureaucratic coerciveness. Little wonder the president barely mentioned it in his latest State of the Union address. He wants to be reelected. He’d rather talk about other things.

But there’s no escaping it now. Oral arguments begin Monday at 10 a.m.

1st July
2009
written by Sean Noble

Al Franken speaks to reporters outside home in Minnesota

Al Franken has officially won the Minnesota U.S. Senate seat, prevailing over Norm Coleman in what has been one of the most expensive post-election legal battles for a Senate seat in U.S. history.

This gives Obama and the Democrats the 60 seats that, if they all hung together, would enable them to push through legislation without worrying about a filibuster.  However, with the national environment shifting toward Republicans, there are a number of Democrat Senators up for re-election in 2010 that for anything even slightly controversial, it will be tough for the Democrats to get to 60 votes on cloture.

Franken will be assigned to the Judiciary Committee, which will immediately throw him into the national spotlight with the Sotomayor hearings starting in a couple weeks.

While he is an unabashed liberal, watch for Franken to carve a unique position on a variety of issues.  He will be underestimated because of his comedian (although that implies he has ever been funny) background, but he is as smart as the typical Senator, so he will undoubtedly get a glowing profile write up in a major publication shortly after the Supreme Court confirmation hearings.

If I was advising Franken (and I’m among the last of those he’d ever call) I would suggest that he keep a fairly low profile and build a reputation of taking the job very seriously.  I would advise that he only speak on the floor when he can speak with genuine substance on an issue.  It will be easy to dismiss him if he does some of his screeching, so for his own political future, he’d be wise to try to be a work horse rather than a show horse.

We’ll see if he can keep his ego in check enough to do so.  I have my doubts.

27th May
2009
written by Sean Noble

You knew it would happen.  Despite Obama picking a Latina for the Supreme Court, there are some in the Latino community that just aren’t as happy as they wanted to be.  Why?  She’s the wrong kind of Latina – that is, she’s Puerto Rican, not Mexican.

Many Latinos are elated that Obama has nominated a Hispanic, and they relate to her story of success from humble beginnings.

But some would have preferred to see Obama nominate a Mexican-American considering that they make up 70 percent of the nation’s 47 million Latinos.

“The argument could be made for (a Mexican-American nominee),” said Raul Yzaguirre, former head of the National Council of La Raza, one of the nation’s largest Hispanic civil-rights organization. He is now presidential professor of community development and civil rights at Arizona State University. “I want unity, so I am more inclined to overlook those things and say, ‘Let’s work together.’ “

Though Puerto Ricans and Mexicans share a common language, Puerto Ricans are U.S. citizens and are not considered immigrants like Mexicans, said Louis DeSipio, a political-science and Chicano/Latino studies professor at the University of California-Irvine.

As a result, Sotomayor could be less sensitive to immigration issues she may face as a Supreme Court justice than if she were Mexican-American, DeSipio said.

Luz Sarmina, president and CEO of Valle del Sol, a non-profit community-based Latino organization in Phoenix, said that she was thrilled with the choice of a Hispanic but admits that she would have liked to have seen Obama nominate a Mexican-American.

“I’m thrilled having a Latina, but I also think there are many Mexican-Americans well-qualified for that role. I don’t want to pit one group against the other, but I think I would have been thrilled to see a Mexican-American.”

In the name of unity, Yzaguirre will “overlook” the snub. DeSipio thinks Sotomayor will be “less sensitive to immigration issues” because she isn’t of Mexican descent.

Watch for this issue to get some more legs as Sotomayor’s record starts getting exposed.  What Mexican-Americans will learn is that she really isn’t much like them.

26th May
2009
written by Sean Noble

scotus

President Obama officially nominated Sonia Sotomayor to the Supreme Court to fill the vacancy being created by Justice Souter’s retirement this summer.

This was not unexpected.  We knew it was going to be a woman, and the historical appeal of appointing the first Hispanic to the bench was too good to pass up.  And Sotomayor has a VERY compelling personal story – so compelling, it was probably impossible for Obama to NOT tap her.

Sotomayor is not getting a free pass from some on the left.  My guess is that her confirmation process is going to be a little rocky.  She has been a bit of a judicial activist, and that will be a strong line of questioning by Republicans and they will be less interested in her personal story.  One thing for sure, it’s going to be an interesting summer. 

13th May
2009
written by Sean Noble

DHS Secretary Janet Napolitano continues to have her named dropped as a potential nominee to the U.S. Supreme Court.

As you may recall, I have blogged on this possibility before (here and here) and still believe that it is her only course of action in staying in a profile position in public service since I don’t think she can ever be elected to the Senate from Arizona.

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