Friday, June 29, 2012
National Review: supreme court "pretended" mandate was constitutional
By Rob Beschizza at 11:06 pm Thursday, Jun 28
billstewart
Yes,
but there are nine judges on the court, and it's very rare that
decisions are 9-0. They're typically 5-4 or 6-3, and there are
currently five judges that Americans consider to be conservative, four
that we call liberal (Europeans would probably call them "not quite as
rabidly right-wing") and most of the partisan kinds of decisions follow
the couple of people in the middle. (And the Republican Party has
been very aggressive about trying to appoint conservative judges when
they're in power, preferably young ones because the Supreme Court
members serve for life. The current chief judge is a recent Bush
appointee, and while he's not a right-winger, he strongly believes that
the President and Executive Branch should almost always be allowed to do
anything they want.)
And just because their opinions are Official, that doesn't mean they're always correct, or even vaguely close to correct. (Also, they usually try to decide whether an issue is constitutionally permissible, as opposed to whether it's a good idea or not, which they view as Congress's job.) Traditionally the right wing in the US complains bitterly if the courts do anything that increases individual civil liberties, and applaud loudly if it upholds the power of Republican presidents.
And just because their opinions are Official, that doesn't mean they're always correct, or even vaguely close to correct. (Also, they usually try to decide whether an issue is constitutionally permissible, as opposed to whether it's a good idea or not, which they view as Congress's job.) Traditionally the right wing in the US complains bitterly if the courts do anything that increases individual civil liberties, and applaud loudly if it upholds the power of Republican presidents.
arbitraryaardvark
Probably by this point no one's reading the thread.
There are several ways it would be fair to say that the court "pretended" to find the mandate a tax.
A: the president says it's not a tax, but his lawyers, using a legal fiction, say it is, and the court will go along with that pretense.
B: Roberts says, translated into plain english, this doesn't look much like a tax, but there's a presumption of constitutionality, so we will -interpret- it here as a tax, in order to uphold the statute.
C: Now I personally think Roberts believed what he wrote, but stategically it's brilliant. Marbury v Madison may have gotten the facts wrong about which papers were on whose desk, but strategically the case gave the court an important new power. Roberts gives the liberals a minor win by upholding Obamacare (less the state medicare aspect based on federalism), but scores a victory by finding 5 votes to limit the commerce clause, changing the dynamic between court and congress.
That assumption of power would have been called activist and partisan, if he hadn't conceded on the tax issue. He comes off as a statesman not a hack.
The next point I want to address is Rand Paul and who gets to decide what is constitutional. The government has three coequal branches. Each of them has a role as a protector of the constitution. Rand can vote to repeal unconstitutional statutes. Obama can veto unconstitutional bills, and maybe choose not to enforce unconstitutional statutes. The court can declare statutes unconstitutioanal, if they get a case or controversy, although unfortunately they have made up a rule about presumptions of constitutionality. The health of the republic depends on all three branches doing their job well. Rand is correct to have his own views. There is a similarity here with the protestant v roman catholic worldview. For protestants, jesus speaks to them through prayer and the bible, not just through a pope. When I swore to uphold the constitution, as a state employee and as a lawyer, my oath was to what the constitution means, not just what this court today says it means.
There are several ways it would be fair to say that the court "pretended" to find the mandate a tax.
A: the president says it's not a tax, but his lawyers, using a legal fiction, say it is, and the court will go along with that pretense.
B: Roberts says, translated into plain english, this doesn't look much like a tax, but there's a presumption of constitutionality, so we will -interpret- it here as a tax, in order to uphold the statute.
C: Now I personally think Roberts believed what he wrote, but stategically it's brilliant. Marbury v Madison may have gotten the facts wrong about which papers were on whose desk, but strategically the case gave the court an important new power. Roberts gives the liberals a minor win by upholding Obamacare (less the state medicare aspect based on federalism), but scores a victory by finding 5 votes to limit the commerce clause, changing the dynamic between court and congress.
That assumption of power would have been called activist and partisan, if he hadn't conceded on the tax issue. He comes off as a statesman not a hack.
The next point I want to address is Rand Paul and who gets to decide what is constitutional. The government has three coequal branches. Each of them has a role as a protector of the constitution. Rand can vote to repeal unconstitutional statutes. Obama can veto unconstitutional bills, and maybe choose not to enforce unconstitutional statutes. The court can declare statutes unconstitutioanal, if they get a case or controversy, although unfortunately they have made up a rule about presumptions of constitutionality. The health of the republic depends on all three branches doing their job well. Rand is correct to have his own views. There is a similarity here with the protestant v roman catholic worldview. For protestants, jesus speaks to them through prayer and the bible, not just through a pope. When I swore to uphold the constitution, as a state employee and as a lawyer, my oath was to what the constitution means, not just what this court today says it means.
# posted by gt @ 21:56
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