The Glade 4.0

RangerDave:

You really didn't pay attention to the cases around Obama's eligibility. Individual citizens no longer have standing to challenge ANYTHING the Federal government does. Federal courts vacated the Redress Clause in the 1st Amendment.

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If that's really what you think those cases did, Khross, then I can understand why you've been so worked up about things lately, but let me assure you that such a view of the cases is wildly mistaken. The ability of individual citizens to challenge the Constitutionality of federal statutes is still very much intact.

Those cases declared a citizen doesn't have ability to make sure those running for or holding office meet the explicit listed requirements for doing so.

Exactly how then can any citizen bring suit on something thats already been ruled irrelevant (10th amendment) or has been expanded to be ALL inclusive (interstate trade clause re Raich)?

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"...but there exists also in the human heart a depraved taste for equality, which impels the weak to attempt to lower the powerful to their own level and reduces men to prefer equality in slavery to inequality with freedom." - De Tocqueville

That's an overstatement, but yes, the gist was that one of the well-established requirements for standing is that the plaintiff must show he's suffered a direct and particular harm rather than just some diffuse harm as a member of the general public, so on the issue of a candidate's eligibility for office, random citizens do not have standing to bring suit. The cases didn't establish any new legal concepts, extend existing concepts to a novel situation, or say anything at all about challenges to statutes by people who are harmed by them. If you can make a credible showing of personal harm resulting from a statute, then you'll have standing, just as you would have before the Obama citizenship cases. In short, those cases changed nothing at all about the law.



Again, these are huge overstatements. The 10th has not been ruled irrelevant, and neither Raich nor any other case has declared the Commerce Clause power to be all inclusive. I don't have time to get into the details, but as broad as Federal power has become under Supreme Court precedent in the last 75 years, it is not limitless. And besides, none of that has anything to do with whether or not a citizen can challenge the law in court. If you want to argue on 10th Amendment or Commerce Clause grounds, you might lose, but you will get to make your argument.

I would call being defrauded harm. RD - the courts disagree but we were over that when it was going on.

Bah you and I both know the 10th has been effetively removed with the 14th.

I dare you to name one interaction that cannot fall under interstate trade according to the reasoning in Raich.

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"...but there exists also in the human heart a depraved taste for equality, which impels the weak to attempt to lower the powerful to their own level and reduces men to prefer equality in slavery to inequality with freedom." - De Tocqueville

Well, I actually think it's possible (not likely, but possible) that the individual mandate under HCR will be found to go too far. Raich basically said that the Feds can only regulate intra-state economic activity and non-economic activity under the Commerce Clause if doing so is necessary to make a legitimate regulation of inter-state economic activity workable. However, there's a definite distinction between regulating an existing activity (the purchase of health insurance) and requiring that activity in the first place. The courts may choose to make that distinction and rule the individual mandate unConstitutional.

It's also worth noting that many observers (myself included) think part of the reason the Court held as it did in Raich was that the regulation involved was of (omg!) drugs, and "everyone" knows drugs are a serious problem that only the government can save us from (!!111eleventy1! and so forth). I'm guessing the consensus on that logic is a lot less uniform when it comes to health insurance, so a distinction from Raich is at least plausible.

I dunno, was wheat such a horrible thing that only the government can save us from in Wickard which Raich simply extended?

I think thats just an easy way to make excuses for not wanting to correct bad precident. Oh wait, Thomas wanted to go back and smack Wickard upside the head in his dissent.

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"...but there exists also in the human heart a depraved taste for equality, which impels the weak to attempt to lower the powerful to their own level and reduces men to prefer equality in slavery to inequality with freedom." - De Tocqueville

Which is why Thomas doesn't actually accomplish much as a Justice. The law usually changes one distinction and exception at a time. Sweeping invalidation of precedent and legislation rarely happens, and that, in my opinion, is as it should be. Judges should generally (though not always) act more like referees than rules committees. In truth, you'd be hard-pressed to find a more conservative (as opposed to radical) bunch than lawyers and judges.

The thing is, there really are huge distinctions between Wickard (regulating intrastate economic activity), Raich (regulating non-economic activity), and HCR (requiring economic activity). Each of those distinctions provides the Court with an opportunity to nudge the law in one direction or another without being overly "activist" and invalidating big swaths of legislation.

RD do you agree with Thomas in his view on the Raich ruling?

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"...but there exists also in the human heart a depraved taste for equality, which impels the weak to attempt to lower the powerful to their own level and reduces men to prefer equality in slavery to inequality with freedom." - De Tocqueville

Total tangent, but if the Republican Party, Fox News, talk radio, etc. can keep their current populist fury thing going, it'd be interesting to see if they could get 2/3 of the State Legislatures to demand a Constitutional Convention to propose Amendments. There's no way an Amendment could get through Congress these days, but maybe through the legislatures.

I agree with Thomas. If you are unwilling to disregard or correct precedent, then the high law of the land becomes constitutional law instead of the constitution itself, and once that is achieved you no longer have rule of law. You are simply left with rule of lawyer.

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Ezekiel 23:19-20 

I don't agree with all of his reasoning (e.g. I think Wickard is valid, as long is it's narrowly construed), but yeah, I do think Raich was wrongly decided. And as a general matter, I do think that Federal Commerce Clause powers have been interpreted too broadly. I'm all for a little retrenchment from the Supreme Court in the coming years, though we're not likely to get it after Obama's appointment(s).

Correcting and overturning precedent should always be an option, but generally speaking, I see the risk you're pointing out going the other way. Deference to precedent (not complete submission to it) is what gives the law continuity and predictability. If individual Justices are willing to casually discard precedent based on their own, fallible and unavoidably biased, interpretations of the Constitution, then you're left with the rule of judges rather than the rule of law.

I think my philosophy would steer the court away from the whims of political bias, as it would remove more than 200 years of political swamp-ass from the conversation. Congressional confirmation hearings would almost certainly become more useful, and less political as well. And in regard to continuity and predictibility, I really don't see how law was less fluid in 1800 than it is now.

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Ezekiel 23:19-20 

Precedent has its place mostly to ensure equal treatment under the law. The danger of a rapidly functioning legal system in terms leads to uncertantiy in the population as to how to obey a law.

However there is much more danger in ruling that the words declared in the law mean something distinct from what is written. This causes the population who can read andis confident that they know the law be subject to another's view of what the law should be as opposed to what the Law is. This creates not only confusion but discordence and lack of respect.

My friends in law school and lawyers always try to impress on me the dangers of the first and seem to be absent the consideration of the second.

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"...but there exists also in the human heart a depraved taste for equality, which impels the weak to attempt to lower the powerful to their own level and reduces men to prefer equality in slavery to inequality with freedom." - De Tocqueville

I'm not wildly mistaken at all. The precedent to vacate the Redress Clause has already been established. It's simply a matter of time before lawyers start arguing that the Eligibility Cases apply to general public grievances as well.

That said, it would appear you are quite wrong on whether or not the States have actual standing. The Obamacare Bill freezes the percentage of State budgets that must be directed toward Medicaid and prevents them from ending any programs such as PeachCare in Georgia that provides insurance to the economically underprivileged (which is not covered by any Federal funding). Incidentally, Medicaid funding is handled almost entirely through state taxes and revenues, with only nominal Federal funds for administrative costs.

So, curiously enough, this bill is EVERY BIT as sinister, evil, and wrong headed as the "fringe" right said it would be.

But, since I'm absolutely certain the 14th and succeeding 150 years of jurisprudence vacated the Tenth Amendment, we'll see exactly how much the government wants to consolidate power. American liberals have elected a fascist; maybe you guys should have listened to my history lessons and read the translations of the Fascist Manifesto I gave you. Because the proof is in the pudding, and Obama's the one driving hard to nationalize private business, corporations, and private service industries.

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I don't recall seeing this. Can you re-post it?

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The Dude abides.

Sorry, I should have specified that I was referring to the suits challenging the individual mandate. I agree that the States should have standing to challenge the aspects of the law requiring/limiting actions by the States themselves. Indeed, that angle could bring up a whole other line of cases about federal law "commandeering" the states - see, e.g. Printz v. United States and New York v. United States. Basically, the anti-commandeering doctrine articulated in those cases provides that the principle of federalism generally and the protection of the 10th Amendment specifically (see, I told you it's not totally defunct!) prohibit the Federal government from "commandeering" the State governments and using them to carry out federal policies. The Feds can still bribe the States into doing things by attaching strings to Federal spending, but they can't just flat out require the States to essentially perform the functions of a federal agency.

At any rate, though, I do agree that there are issues on which the States can clear the standing bar. I just think it's unlikely the individual mandate is one of those issues.

RangerDave:

Nothing is going to be granted standing unless 5 Justices on the Supreme Court agree to grant it standing. There's not a Circuit or District judge who will risk their career and office to grant standing.

And, no, the states really don't have standing. And this isn't even addressing the Constitutionality of severability clauses, which inundate this bill. The Court isn't going to protect us from this monstrosity.

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Informative debate among law profs about the Constitutionality of the current health care reforms:

http://roomfordebate.blogs.nytimes.com/ ... more-33589

Too long to quote effectively, so just have to click through if you're interested.

Thanks RD. I hope I can get around to reading it.

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"...but there exists also in the human heart a depraved taste for equality, which impels the weak to attempt to lower the powerful to their own level and reduces men to prefer equality in slavery to inequality with freedom." - De Tocqueville