American Elephants

Act of Great Cunning? Too Clever By Half? Complete Disaster? by The Elephant's Child

The ObamaCare decision was a shock. We had been hearing about the huge numbers of  the public who wanted ObamaCare repealed. Intrade was running over 70% for repeal.  And Chief Justice Roberts joined the left to uphold ObamaCare. For many Republicans, the instant reaction was outrage.

With Justice Anthony Kennedy, who is often the swing vote, joining the conservative members of the court, we seemed to have repeal guaranteed and Chief Justice Roberts voted to uphold. Why?

Trying to understand was interrupted by a more plebeian problem, of the plumbing variety. You know how it goes. You try all the home remedies hoping to avoid having to call the plumber, and it’s always late on Friday or on the weekend, when the cost is way higher.  Nevermind. You know how it goes.

Here are a variety of serious people with fine minds offering their take:

Paul Rahe is a professor of History at Hillsdale College and an outspoken critic of ObamaCare.

Sean Trende is Senior Elections Analyst for Real Clear Politics.

Timothy Dalrymple writing at Patheos after listening to a talk from Paul Clement, who argued the case.

Mark Tapscott. Executive Editor of the Washington Examiner.

Richard Epstein Professor of Law at University of Chicago and NYU School of Law. Senior Fellow at the Hoover Institution.

Joshua Hawley Now a Law Professor, but a former clerk to Chief Justice Roberts.

Randy Barnett Professor of Constitutional Law at Georgetown Law, and a member of the team that argued the case before the Supreme Court.

You can easily find all sorts of articles filled with outrage.  These are more thoughtful. The Wall Street Journal has several pieces, but is behind a subscription barrier.

ObamaCare is Narrowly Upheld 5—4. by The Elephant's Child

The very idea that we sit on the edge of our seats, eyes toward Washington DC, waiting on the deliberations and dispositions of nine mortals to tell us how much of our liberty we get to retain is preposterous.  —Dave Carter, Ricochet  

—The Supreme Court ruled that ObamaCare’s individual mandate is not constitutional under the Commerce Power, which was how Congress framed the mandate to avoid a political backlash from calling it a tax. Congress and the president swore up and down that the mandate was not a tax. Yet the Court upheld the mandate as a valid use of that disavowed taxing power. What Congress said the individual mandate is, the Court said is not constitutional. What Congress said the mandate is not, the Court ruled is constitutional. Everybody got that?

Where does that leave us?

  1. The Supreme Court just enacted a law that Congress never would have passed.
  2. The Court just told Congress it is okay to lie to the people to avoid political accountability.
         —Michael F.Cannon, CATO                 

—  We  do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation’s elected leaders. We ask only whether Congress has the power under the Constitution to enact the challenged provisions.”
—Chief Justice Roberts from the decision, for the majority

—Today’s decision validates our claim that a Congressional power to compel that all Americans engage in commerce was a constitutional bridge too far.  By rewriting the law to make it a ‘tax,’ the Court has now thrown ObamaCare into the political process where the People will decide whether this so-called ‘tax’ will stand.  And the People will also decide whether future Supreme Court nominees will pledge to enforce the Constitution’s restrictions on the power of Congress.
              — Senator Mitch McConnell

 —Salvaging the idea that Congress did have the power to try to expand health care to virtually all Americans, the Supreme Court on Monday upheld the constitutionality of the crucial – and most controversial — feature of the Affordable Care Act. By a vote of 5-4, however, the Court did not sustain it as a command for Americans to buy insurance, but as a tax if they don’t. That is the way Chief Justice John G. Roberts, Jr., was willing to vote for it, and his view prevailed. The other Justices split 4-4, with four wanting to uphold it as a mandate, and four opposed to it in any form.
—Randy Barnett, Georgetown Law

The Left is Threatening The Supreme Court! by The Elephant's Child

The Obama administration has just signed a deal with Public Relations firm Porter Novelli to promote ObamaCare. The Democrats were just sure that everybody would love it once it passed and they “found out what’s in it.” The people did find out what’s in it, and want no part of it. So naturally we must be made to change our minds. It’s an election year, and another $20 million should buy some more votes for Obama.

According to the news accounts, the multimedia campaign is a way to educate the public about how to stay healthy and prevent illnesses.  No thank you. A HHS official told Roll Call that the PR effort is meant “to inform the American people about the many preventive benefits now available …as a result of the Affordable Care Act.

Wasted effort. The administration has been trying to sell it to the public relentlessly since the day it was passed. HHS pushed Congress to quadruple its public affairs budget. HHS spent $1.4 million  for an online search ad campaign designed to drive traffic to the ObamaCare website.

More than two-thirds of the public, including half of the Democrats surveyed — want the Supreme Court to kill at least the individual mandate, according to a recent IBD/TIPP poll.

The bill is a disaster. It was written with a complete lack of understanding of the American people. Americans don’t much believe in their lives being run by experts in Washington. We don’t believe in their experts, nor do we believe that they are experts. We’re an independent lot. We want to talk over our own health concerns with our own doctor. We don’t believe that our doctor should be told what treatment we can have by some faceless know-nothing bureaucrat in Washington.

Obama has been sending messages to the Supreme Court to let them know that it is not acceptable for them to rule ObamaCare unconstitutional. After all, it’s an election year. The left is trying to intimidate the Supreme Court.

Senate Judiciary Chairman Pat Leahy recently took the extraordinary step of publicly lobbying the Chief Justice after oral argument but before its ruling. “I trust that he will be a Chief Justice for all of us and that he has a strong institutional sense of the proper role of the judicial branch” the far left Democrat declared on the Senate floor. “The conservative activism of recent years has not been good for the Court.” The Senator does not seem to have a strong institutional sense of the proper role of a senator in regard to the Supreme Court.

He added that “Given the ideological challenge to the Affordable Care Act and the extensive, supportive precedent, it would be extraordinary for the Supreme Court not to defer to Congress in this matter that so clearly affects interstate commerce.” That one doesn’t pass the laugh test. How embarrassing, and how disgusting that a Chairman of the Justice Committee should forget his place and the fact that the Supreme Court is an equal branch, not subject to the partisan bullying of an old-time  liberal hack.

They are threatening John Roberts with being portrayed a radical who wants to repeal the New Deal and a century of precedent. Such attacks on the court and the Chief Justice are really appalling.


Roberts and Scalia Slam Activist Majority by American Elephant

Supreme Court of the United States of America

Welcome Political Machine readers! We hope while you’re here you’ll have a look around and tell us what you think.

Most people don’t read Supreme Court opinions, I think assuming them to be written in dry, indecipherable legal gobbledygook. The opinions of Chief Justice Roberts and Antonin Scalia are anything but. They are exceptionally eloquent and erudite. A pleasure to read — completely accessible to the little guy, like me. I wish more people knew this, because it is a great educational opportunity.

Yesterday’s decision by a bare majority of the liberal justices joined by the erratic Justice Kennedy, who authored the opinion, can be read here.

But I want to present key excerpts from Chief Justice Roberts’ and Justice Scalia’s scathing dissents, compiled by Ed Whelan at National Review’s Bench Memos .

Both make crystal clear just how activist the decision was. They point out step by step the precedent the majority ignored, the tradition they trampled, the constitutional principles they violated and the powers they usurped.

Chief Justice John Roberts

Starting with excerpts from Chief Justice Robert’s dissent (joined by Scalia, Thomas and Alito):

Today the Court strikes down as inadequate the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants. The political branches crafted these procedures amidst an ongoing military conflict, after much careful investigation and thorough debate. The Court rejects them today out of hand, without bothering to say what due process rights the detainees possess, without explaining how the statute fails to vindicate those rights, and before a single petitioner has even attempted to avail himself of the law’s operation. And to what effect? The majority merely replaces a review system designed by the people’s representatives with a set of shapeless procedures to be defined by federal courts at some future date. One cannot help but think, after surveying the modest practical results of the majority’s ambitious opinion, that this decision is not really about the detainees at all, but about control of federal policy regarding enemy combatants.

It is grossly premature to pronounce on the detainees’ right to habeas without first assessing whether the remedies the DTA system provides vindicate whatever rights petitioners may claim.

Simply put, the Court’s opinion fails on its own terms. The majority strikes down the statute because it is not an “adequate substitute” for habeas review, but fails to show what rights the detainees have that cannot be vindicated by the DTA system.

The only issue in dispute is the process the Guantanamo prisoners are entitled to use to test the legality of their detention. Hamdi concluded that American citizens detained as enemy combatants are entitled to only limited process, and that much of that process could be supplied by a military tribunal, with review to follow in an Article III court. That is precisely the system we have here. It is adequate to vindicate whatever due process rights petitioners may have.

The Court today invents a sort of reverse facial challenge and applies it with gusto: If there is any scenario in which the statute might be constitutionally infirm, the law must be struck down.

[In the majority’s view,] any interpretation of the statute that would make it an adequate substitute for habeas must be rejected, because Congress could not possibly have intended to enact an adequate substitute for habeas. The Court could have saved itself a lot of trouble if it had simply announced this Catch-22 approach at the beginning rather than the end of its opinion.

So who has won? Not the detainees. The Court’s analysis leaves them with only the prospect of further litigation to determine the content of their new habeas right, followed by further litigation to resolve their particular cases, followed by further litigation before the D. C. Circuit—where they could have started had they invoked the DTA procedure. Not Congress, whose attempt to “determine—through democratic means—how best” to balance the security of the American people with the detainees’ liberty interests, has been unceremoniously brushed aside. Not the Great Writ, whose majesty is hardly enhanced by its extension to a jurisdictionally quirky outpost, with no tangible benefit to anyone. Not the rule of law, unless by that is meant the rule of lawyers, who will now arguably have a greater role than military and intelligence officials in shaping policy for alien enemy combatants. And certainly not the American people, who today lose a bit more control over the conduct of this Nation’s foreign policy to unelected, politically unaccountable judges.

Justice Antonin Scalia

And Justice Scalia’s dissent (joined by Roberts,Thomas and Alito):

Today, for the first time in our Nation’s history, the Court confers a constitutional right to habeas corpus on alien enemies detained abroad by our military forces in the course of an ongoing war…. The writ of habeas corpus does not, and never has, run in favor of aliens abroad; the Suspension Clause thus has no application, and the Court’s intervention in this military matter is entirely ultra vires.

The game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed. That consequence would be tolerable if necessary to preserve a time-honored legal principle vital to our constitutional Republic. But it is this Court’s blatant abandonment of such a principle that produces the decision today. The President relied on our settled precedent in Johnson v. Eisentrager (1950), when he established the prison at Guantanamo Bay for enemy aliens.

[I]n response [to the Court’s 2006 ruling in Hamdan v. Rumsfeld], Congress, at the President’s request, quickly enacted the Military Commissions Act, emphatically reasserting that it did not want these prisoners filing habeas petitions. It is therefore clear that Congress and the Executive—both political branches—have determined that limiting the role of civilian courts in adjudicating whether prisoners captured abroad are properly detained is important to success in the war that some 190,000 of our men and women are now fighting….What competence does the Court have to second-guess the judgment of Congress and the President on such a point? None whatever. But the Court blunders in nonetheless. Henceforth, as today’s opinion makes unnervingly clear, how to handle enemy prisoners in this war will ultimately lie with the branch that knows least about the national security concerns that the subject entails.

What drives today’s decision is neither the meaning of the Suspension Clause, nor the principles of our precedents, but rather an inflated notion of judicial supremacy. The Court says that if the extraterritorial applicability of the Suspension Clause turned on formal notions of sovereignty, “it would be possible for the political branches to govern without legal constraint” in areas beyond the sovereign territory of the United States. That cannot be, the Court says, because it is the duty of this Court to say what the law is. It would be difficult to imagine a more question-begging analysis.… Our power “to say what the law is” is circumscribed by the limits of our statutorily and constitutionally conferred jurisdiction. And that is precisely the question in these cases: whether the Constitution confers habeas jurisdiction on federal courts to decide petitioners’ claims. It is both irrational and arrogant to say that the answer must be yes, because otherwise we would not be supreme.

Putting aside the conclusive precedent of Eisentrager, it is clear that the original understanding of the Suspension Clause was that habeas corpus was not available to aliens abroad, as Judge Randolph’s thorough opinion for the court below detailed.…It is entirely clear that, at English common law, the writ of habeas corpus did not extend beyond the sovereign territory of the Crown.

Today the Court warps our Constitution in a way that goes beyond the narrow issue of the reach of the Suspension Clause, invoking judicially brainstormed separation-of-powers principles to establish a manipulable “functional” test for the extraterritorial reach of habeas corpus (and, no doubt, for the extraterritorial reach of other constitutional protections as well). It blatantly misdescribes important precedents, most conspicuously Justice Jackson’s opinion for the Court in Johnson v. Eisentrager. It breaks a chain of precedent as old as the common law that prohibits judicial inquiry into detentions of aliens abroad absent statutory authorization. And, most tragically, it sets our military commanders the impossible task of proving to a civilian court, under whatever standards this Court devises in the future, that evidence supports the confinement of each and every enemy prisoner. The Nation will live to regret what the Court has done today.

If for no other reason, this election is essential. It is imperative to the future of the nation, to the rule of law, that we tip the balance of this court to the strict constructionists who understand judicial restraint, and believe the constitution means what it says. John McCain, despite his many flaws, has promised to appoint just such justices, and with the excellent conservative judicial advisers he has picked to work for him, I believe he will.

Any number of justices may retire during the next four years. One at least, likely two, maybe more. Justice Kennedy, the only remaining “swing” vote, might retire — and these people are all getting up there. Justice Scalia is 72, Justice Kennedy will be 72 next month. Some other members of the court are older. God forbid anything should happen to any of them, but it could.

And while some people argue that McCain wouldn’t be able to get his nominees through anyway — I think he probably can. McCain has a long-nurtured image of getting along with the other side that will buy him political capital in this regard. But even if he doesn’t get his first choices through, McCain’s second and even third choices will be far better than anyone Obama would nominate. Who knows how much damage Obama could do to the judiciary if he were there for four years, let alone eight! He will undoubtedly appoint more Ruth Bader -Ginsburgs — he has named her specifically as the type of justice he would nominate — perhaps even Hillary Clinton. One thing is for certain, Obama’s nominations would devastate judicial restraint in America in ways that would have repercussions for generations.

Remember that when you hear people say they could never vote for McCain. As distasteful as it may be to some proud conservatives, the best interests of the nation require it, don’t they?

(h/t Bench Memos)

UPDATE: John McCain has come down forcefully against the decision, calling it, appropriately, “one of the worst decisions in the history of this country.” Good. It is!

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