The sharp questioning of Obama Administration lawyers in Supreme Court sessions this week has prompted much speculation about the fate of the Patient Protection and Affordable Care Act (hereinafter, "Obamacare"). Will the Court declare the individual mandate unconstitutional? If at least five of the nine lawyers on the Court made that declaration, will they go on and declare that the entire act establishing Obamacare must fall as well?
I do not know what the justices on the Supreme Court will do. But my perspective takes a step back from this entire guessing game. I think that the landmark case Marbury v. Madison, announced by the Supreme Court on February 24, 1803, was wrongly decided. On that day in February, the Supreme Court said that it had the authority under the US Constitution to declare an act of Congress unconstitutional, and therefore, invalid. Nowhere in the text of the Constitution is the Supreme Court given the authority to invalidate statutes at either the state or federal level. The Court in the past few days spent much time discussing the text of Obamacare and, in some cases, mocking its 2,700 page length. But we can anticipate that any Obamacare-related declarations by the Court--expected for the end of the Court's term this June--will assume that the Supreme Court has the power of "judicial review."
Another thing that we can anticipate--if the Court declares invalid all or part of Obamacare--will be howls of outrage. Howling is the Left's strong suit, and we will hear plenty. Of course, those of us old enough to have learned, on the afternoon of January 22, 1973, that the Court had, in Roe v.Wade, invalidated not only acts of Congress but the statues then in force in all fifty states, may have a different perspective. A person of the Left remembers that day in January fondly. Reflecting on that same day in January, one on the Right will remember that the Left thought this exercise of judicial review was an unending source of delight.
Considering what he called the Court's "disentitlement" of Congress and the states, JFK's sole nominee on the Supreme Court, Justice Byron White, did not see anything to bring delight. He wrote in his dissenting opinion in Roe v.Wade: "As an exercise of raw judicial power, the Court perhaps has the authority to so what it does today; but in my view, its judgement is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to the court."
If the Court this June gives the Left something to scream about, we cannot expect to hear phrases such as "improvident and extravagant" as, in restless walks, liberals prowl the night. But there could be some good if at least a few individuals on the Left, standing (albeit unconsciously) with Justice White, declare that "the Court perhaps has the authority to do what it does today...." It would be delightful, and long overdue, for more Americans to change the tune by adding (or simply implying) "Perhaps not.
(via The Celebrated Dr. Boli)
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Comments
Well, Peter, me and Co were impressed by "bad leutenant" Harvey Keitel.
Obamacare is an arrogant effort to dictate to 300 million people how their healthcare would be accomplished. In the 2010 elections, the American people said "No thanks." In the last six months, the Obama administration has used this dubious statute to attack Christian institutions, although these planned moves were kept well hidden while the Democrats in Congress rounded up votes. If you are looking for a basic description of the many objections to Obamacare, I would suggest you look at the editorials in the Wall Street Journal. Obamacare was designed to bankrupt private insurers, so that they could be replaced by a "single payer" system with the government rationing healthcare. However, it did not initially contemplate a government issued certificate in order to visit a doctor. (The law, if not rendered void, could yield hundreds of thousands of pages of regulations. So government-issued certificates could well be in the works if the folks in Washington are not stopped.)
It may not take until June to change her tune. There is a report in Politico today that President Obama is warning that overturning Obamacare would be "an unprecedented, extraordinary step" since the law was passed by a majority of members in the House and Senate. The President went on to denounce "judicial activism". He identified that dreaded problem as follows: "That a group of people would somehow overturn a duly constituted and passed law." "A group of people." An interesting turn of phrase for someone who taught constitutional law at the University of Chicago Law School.
As Justice Kagan might say, Wow! Wow! Politico purported to quote President Obama today in the item I posted above. But former constitutional law teacher Barack Obama actually referred to the members of the Supreme Court not simply as a "group of people" but as an "unelected group of people". They had better watch their steps.
2 are cool with him unless the wise Latina decides to uphold the constitution. But until last week the wise Latina didn't know it's law already that if you show up at the Emergency Room needing treatment and do not have insurance, the hospital is required to treat you. Not a big deal I guess unless you already understood that this was precisely the reason for the mandate with jail as penalty...Oh and it was Sotomayer that called herself "wise" - maybe she was speaking about Wise potato chips...her face is round.
Crackie - guess what I learned from the NYTimes - since my grandmother was half Cuban - that makes me a White Hispanic.
Mrs. P, When I wrote last Friday about the howls we could expect from the Left, I clearly underestimated them. The last few days have, of course, seen a series of lectures from Law Professor in Chief Obama. Today, University of Houston Law Professor David Dow sees the President's "unelected " and raises him. Good Professor Dow wants the five potentially moderate or conservative justices impeached if they overrule Obamacare. That would make that group of five (perhaps we should start calling them the Gang of Five) unemployed. This proposal is quite fitting for a fervent Obama supporter. If there is any area where President Obama has an expertise that is second to none, it surely is in the creation and preservation of unemployment.
Crackie, I'm surprised at you since you unestimated the Left's ability to howl as you are acquainted with my sisters...
As far as impeaching the judges, I think we have to revisit the lessons learned from the Clinton years. As you may recall Clinton was impeached for lying under oath. But his bleached narrative is he was impeached for lying about sex. And everyone lies about sex so no big deal.
Well this Affordable Care Act, thanks to the testimony of Sandra Fluke is really only about affordable sex, so whether the judges who strike it down are lying about its constitutionality, it doesn't matter because if they are lying, it is merely lying about sex.
Obama has only exhibited one area of expertise - to restrain from laughing out loud when his wife models her new outfits for.
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Well, Peter, me and Co were impressed by "bad leutenant" Harvey Keitel.
watch this movie, if you missed.
Posted by: Raul | March 30, 2012 at 03:05 PM
I will convey this information to Vladimir.
Posted by: Crackie | March 30, 2012 at 05:50 PM
it's up to you, so wot's wrong with Obamacare health,
did he planning to give a ceritificate to each citizen or you've to pay cash visiting doctors?
Sorry, most of your typing is unclear.
Anyway goodluck and enjoy life.
Posted by: Raul | March 30, 2012 at 07:16 PM
Obamacare is an arrogant effort to dictate to 300 million people how their healthcare would be accomplished. In the 2010 elections, the American people said "No thanks." In the last six months, the Obama administration has used this dubious statute to attack Christian institutions, although these planned moves were kept well hidden while the Democrats in Congress rounded up votes. If you are looking for a basic description of the many objections to Obamacare, I would suggest you look at the editorials in the Wall Street Journal. Obamacare was designed to bankrupt private insurers, so that they could be replaced by a "single payer" system with the government rationing healthcare. However, it did not initially contemplate a government issued certificate in order to visit a doctor. (The law, if not rendered void, could yield hundreds of thousands of pages of regulations. So government-issued certificates could well be in the works if the folks in Washington are not stopped.)
Posted by: Crackie | March 30, 2012 at 08:39 PM
It may not take until June to change her tune. There is a report in Politico today that President Obama is warning that overturning Obamacare would be "an unprecedented, extraordinary step" since the law was passed by a majority of members in the House and Senate. The President went on to denounce "judicial activism". He identified that dreaded problem as follows: "That a group of people would somehow overturn a duly constituted and passed law." "A group of people." An interesting turn of phrase for someone who taught constitutional law at the University of Chicago Law School.
Posted by: Crackie | April 02, 2012 at 03:28 PM
As Justice Kagan might say, Wow! Wow! Politico purported to quote President Obama today in the item I posted above. But former constitutional law teacher Barack Obama actually referred to the members of the Supreme Court not simply as a "group of people" but as an "unelected group of people". They had better watch their steps.
Posted by: Crackie | April 02, 2012 at 07:38 PM
2 are cool with him unless the wise Latina decides to uphold the constitution. But until last week the wise Latina didn't know it's law already that if you show up at the Emergency Room needing treatment and do not have insurance, the hospital is required to treat you. Not a big deal I guess unless you already understood that this was precisely the reason for the mandate with jail as penalty...Oh and it was Sotomayer that called herself "wise" - maybe she was speaking about Wise potato chips...her face is round.
Crackie - guess what I learned from the NYTimes - since my grandmother was half Cuban - that makes me a White Hispanic.
Posted by: Mrs. P | April 03, 2012 at 11:56 AM
Mrs. P, When I wrote last Friday about the howls we could expect from the Left, I clearly underestimated them. The last few days have, of course, seen a series of lectures from Law Professor in Chief Obama. Today, University of Houston Law Professor David Dow sees the President's "unelected " and raises him. Good Professor Dow wants the five potentially moderate or conservative justices impeached if they overrule Obamacare. That would make that group of five (perhaps we should start calling them the Gang of Five) unemployed. This proposal is quite fitting for a fervent Obama supporter. If there is any area where President Obama has an expertise that is second to none, it surely is in the creation and preservation of unemployment.
Posted by: Crackie | April 04, 2012 at 01:59 PM
Crackie, I'm surprised at you since you unestimated the Left's ability to howl as you are acquainted with my sisters...
As far as impeaching the judges, I think we have to revisit the lessons learned from the Clinton years. As you may recall Clinton was impeached for lying under oath. But his bleached narrative is he was impeached for lying about sex. And everyone lies about sex so no big deal.
Well this Affordable Care Act, thanks to the testimony of Sandra Fluke is really only about affordable sex, so whether the judges who strike it down are lying about its constitutionality, it doesn't matter because if they are lying, it is merely lying about sex.
Obama has only exhibited one area of expertise - to restrain from laughing out loud when his wife models her new outfits for.
Posted by: Mrs. P | April 05, 2012 at 10:49 AM