Obamacare back to Supreme Court

The Supreme Court will consider whether employers who religiously oppose it can be required by Obamacare to cover forms of medicines and devices (contraceptives) that can  terminate pregnancy.  The company is run by a Mennonite family.  Federal appeals courts are split on the issue which involves a number of sub-issues, including the Religious Freedom Restoration Act, Free exercise of religion, rights of corporation, etc.

Majority say Obama not trustworthy

New poll shows that a majority of Americans do not believe the President is honest and trustworthy.  His lies about Obamacare not causing cancellations finally caught up with him.  However, this is just the straw that broke the camel's back. For instance, Months ago he told the people that the NSA spying and other programs were under control and that there was nothing to worry about.  Wikileaks, Snowden, complaints from foreign leaders and other sources showed this not to be the case.  He promised to close Guantanamo, make government more transparent, etc., etc., etc.  Is the Obamessiah a false prophet? Will Obamania finally collapse?  Or, has the attained cult of personality status such that supporters will ignore the facts?  Time will tell.

Both sides at fault in Obamacare debate

The debate over Obamacare has brought out a lot "spin" from both the Left and the Right.  Both sides should be ashamed of this unethical behavior.  When are the American people going to hold their elected officials accountable for lies, distortions, etc.?  See these and other excellent articles at factcheck.org

Book Review: Jeffrey Toobin's "The Oath."

I am a long-time Supreme Court watcher and analyst and have taught courses on the Court and constitutional issues (e.g. Fourth Amendment, Second Amendment).  I eagerly took up this book.

The book “The Oath,” by Jeffery Toobin, is subtitled “the Obama White House and the  Supreme Court.” 

As the subtitle suggests, this book is primarily about the struggle between  our most liberal President ever, and the conservative faction on the Court, and the struggle between the liberal and conservative factions on the Court.  One faction is the four conservatives on the Court (Scalia, Alito, Thomas and Roberts) who are sometimes joined by Justice Kennedy, who is the Court’s most frequent swing vote.  The liberal faction is Ginsburg, Kagan, Sotomayor and Breyer.  Toobin provides an inside look at both the White House and the Court.  This review will cover only selected points.

Obama has appointed two Justices, both female (Sotomayor and Kagan), and, for the first time the Court has three females, all of whom vote in a liberal direction.  Like all recent  Presidents, Obama sought appointees who share his ideology.  His appointees have not disappointed him.

In terms of qualifications and background, Kagan’s is a very questionable choice.  Kagan had not practiced law  in two decades before being appointed Obama’s Solicitor General.  She had never had a case before the Court.   She had never been a judge anywhere.  She, unlike most recent Justices, had never clerked for a U.S. Supreme Court Justice. Prior to becoming Solicitor General, she had never argued a case in any courtroom.  Her main claim to fame was that she was the first female Dean of Harvard Law School.  Obama wanted her on the Court and his only option was to name her Solicitor General so that she would have at least some minimal qualifications.  Even this appointment was a reach.  Solicitor General frequently had long records of litigation and were active in constitutional litigation (e.g.  Johnson’s appointee Thurgood Marshall).  As has become the case recently with most nominees, Kagan danced around the questions, dodged frequently and was a vague as possible in her confirmation hearing.  In spite of her minimalist qualifications, the Democratic majority in the Senate assured her confirmation.

The book discusses the most controversial cases that came before it, including D.C. v Heller (Second Amendment gives right to individuals), McDonald v. Chicago (Second Amendment applies against the states) Citizens United (First Amendment invalidates portions of “campaign reform” legislation) NFIB v. Sebelius (upholding Obamacare).  Toobin takes the liberal position in all these cases.  Rather than celebrating the strengthening of Constitutional vales and the Bill of Rights in these decisions, Toobin bad-mouths them.   Liberal hypocrisy appears to be at work.    When the liberals lose we generally see accusations of ignoring precedent, ignoring the Constitution, blatant policy- making, etc.   When the liberals win, we generally get praise for the decision.

It is clear to Toobin who are the “bad guys,” on the Court, the four conservatives and Kennedy.  Additional bad guys are the NRA, powerful corporations and the Tea Party.  Obama ‘s policies and the Constitution are often portrayed as the victims of the conservatives on the Court.   Anyone looking for a balanced, sophisticated treatment of the decisions and the Justices will be sadly disappointed.  However, the book is informative about the Court, some of its history, Justices, important cases, etc.  It provides interesting insight into the members of the Court and their interactions.  With these caveats, I’d recommend this book for light reading.

 

ObamaCare oral argument: Swing-vote Justice Kennedy expresses concerns

Oral argument in the ObamaCare case was held today in Washington. Kennedy, as is usually the case, is expected to be the swing vote. The 4 knee-jerk conservatives will vote against it and the 4 knee-jerk liberals will vote for it. Sometimes, as in D.C. v. Heller, Kennedy will tip his hand as to which way he is leaning and likely to vote. No clear indication from Kennedy today, but he seems to be troubled by the individual mandate. What he appears to be hinting at is that the federal government is not supposed to be a government of unlimited powers, but this mandate seems to be saying just that. Without some clear statement of limiting principles on this exercise of federal power, Kennedy may vote against ObamaCare. If some federal power limiting principle emerges, that allows ObamaCare, but doesn't turn the federal goverment into one of unlimited powers, Kennedy may find it constitutional. Stay tuned!

Supreme Court options in ObamaCare case

The most-awaited Supreme Court decision this term will be on the constitutionality of ObamaCare. The primary issue is whether or not Congress has power to enact the provision requiring all (who are deemed to be able to afford it) to purchase health insurance from a private company. The government argues that such power flows from Congress' power to regulate interstate commerce (cl. 3) and the necessary and proper (cl. 18) clauses in Art. I sec. 8 of the Constitution. Those who do not purchase such insurance will pay a monetary penalty. The penalty is not a "tax" which perhaps could be justified under Congress' Art. I sec. power to lay and collect taxes (cl. 1).
Opponents argue that the Constitution was never intended to give the federal government such wide-ranging powers, and that some of these issues were intended to be left to the states under the 10th Amendment. Given the precedents and the composition of the Court, the former argument has a chance the latter has little chance. The 4 knee-jerk conservatives will most likely vote to strike down all or parts of the law. The 4 knee-jerk liberals will vote to uphold everything and, as is often the case in the controversial battles, the decision will be made by Justice Kennedy.
Like the 2012 election, this decision will be crucial in determining whether the U.S. moves toward European-style socialism and reduced freedoms or maintains some semblance of a regulated but still market-driven economy and being, overall, the freest society on the planet.


According to Findlaw, the Court has six options.

Nearly 3/4 of Americans think the ObamaCare mandate is unconstitutional.

Nearly 3/4 of respondents in this poll felt the ObamaCare mandate (individuals required to purchase health insurance) is unconstitutional. Whether 56% (or 5/9) of the Supreme Court will agree remains to be seen. This is a good website. Check it out if you have time.

The Obama Care Case in Plain English

This article from scotusblog attempts to use plain English to explain the ObamaCare cases before the Supreme Court. The Court decided to hear 3 separate appeals from lower courts. As the article states, this decision will be a "historic one." Hopefully the decison will be announced in June or July.

69% believe ObamaCare is Unconstitutional

According to this Rasmussen poll, 69% of Americans believe the federal government has no power under the Constitution to require that people purchase medical purchase. Let's hope 69% of the Supreme Court agrees and reinforces the concept that the federal government is one of limited powers.

Recusal Refusal: Latest on the ObamaCare case

Justices Thomas and Kagan refused to recuse themselves (sit out) the ObamaCare case.
No net change as Thomas will vote almost certainly vote against it, Kagan (appointed by Obama) will almost certainly vote for it. Obama sought "empathetic" Justices for the Supreme Court. How could any sincerely "empathetic" Justice vote against expanding the welfare state? They will cancel each other out. As usual, J. Kennedy will be the swing vote in what is very likely to be a 5-4 decision.

More on ObamaCare case

More on the Supreme Court's ObamaCare case at Scotus blog.com. The usual suspects reacted as expected. NY Times in favor of the law, Wall St. Journal hopes it is overturned.

Supreme Court to hear ObamaCare case

The Supreme Court has agreed to hear cases on the constitutional challenges to ObamaCare. Although what the Justices say during oral argument will probably give a better basis for predictions, based on prior cases, the Court's 4 conservatives (Scalia, Thomas, Alito and C.J. Roberts) will vote against ObamaCare. The Court's 4 liberals (Ginsburg, Breyer, Sotomay and Kagan) will vote for it. Kennedy will be the swing vote. This will decision will be HUGE in what it says about the powers of the federal government. If ObamaCare is upheld, it will be only a short step to a federal government with no constitutional limits save the Bill of Rights. The doctrine of "enumerated powers" will be only a verbal shell.

Occupy Wall Street: Economics and the First Amendment

The Occupy Wall Street folks are tremendously naive. They believe Wall Street is responsible for the collapse. Partly, but the U.S. government is more culpable. It started with federal legislation encouraging banks to make home loans to very high risk borrowers. It was exacerbated by a lack of investor confidence in the government and economy because of a federal debt that was out of control and an ObamaCare plan which would cost billions and jobs. Yes, there was criminality and corruption on Wall Street and it needs to be dealt with. However, bailing out obviously mismanaged firms sent the wrong message. They think some kind of socialism is the cure. (See Economist Walter Williams recent column) They haven't been doing much reading about the crisis in Greece and the EEU. They don't get it that there is no such thing as a free lunch or pie in the sky. However, I respect their First Amendment right to protest peacefully.

U.S. S.Ct. term starts today (Mon. Oct 3).

The U.S. Supreme Court's Oct. 2011-12 term started today. The constitutionality of ObamaCare is the high profile issues, but there are others. The decisions on the big cases usually do not come out until the end of the term (May-June). Later posts will highlight some of these cases.

11th Circuit strikes down individual mandate in Obamacare

The 11th Circuit has found the individual mandate in Obamacare unconstitutional. I agree with the decision. If the idea of enumerated powers and a government with Art I limits on its powers is to remain meaningful, this has to be done. Lower courts have split about 50/50 on this. This will be the big case for the 2011-2012 term.

Good piece on Obamacare & the Constitution

Good short piece on Obamacare, the Supreme Court and the Constitution. Scroll down to find it if necessary

ObamaCare passes 6th Circuit Review

The U.S. Court of Appeals for the Sixth Circuit upholds Obamacare and finds no constitutional commerce clause problems in the individual mandate to obtain medical insurance. Based on existing precedent, this is probably the proper result. The Supreme Court is going to have to shoot down a number of existing precedents (e.g. Wickard v. Fillburn) to invalidate the law. Supreme Court here we come.

Supreme Court rejects expedited review of Obamacare

The U.S. Supreme Court refused to take the Obamacare challenges for an expedited review. The cases will have to continue through the U.S. Courts of Appeals. Personally, I think an issue of this magnitude should be decided ASAP. How much money will be spent over the next year or two on a program that may be unconstitutional? Probably the earliest they could decide the case would be Summer 2012.

Preview of possible S.Ct. decision on Obamacare

It seems highly likely that the final say on the constitutionality of Obamacare will be had by the U.S. Supreme Court. If past patterns hold it will be 4-4 with Kennedy the swing vote. Doctrinally, I think he will vote against it, but he may decide that this is too great a leap by the Court and go with it. Stay tuned. See the linked article from the Economist which is an excellent publication (sometimes with a conservative lean).

Quick S.Ct. Review of Va. ObamaCare case?

The state of Virginia, which won at the U.S. District court level in its challenge to ObamaCare, is seeking immediate Supreme Court review of that case. This is a somewhat unusual procedure as cases usually go to the appropriate U.S. Court of Appeals before going to the Supreme Court. This case is separate from the recent Florida decision also striking down the law. Given the importance of the issues, quick review by the Supreme Court seems warranted. Stay tuned to see if the Court will grant Virginia's motion.