Obamacare and the Supreme Court

[Maximus]

No. It is not.

How isnt it? The mandate was proposed by republicans.

[ERCougar]

That's principally because liberals have co-opted the term, with some success.

Huh?
As a layperson, in my lifetime--or at least since I've been paying nominal attention--this phrase has been used by Republicans far more often than Democrats.
Still, I would think a constitutional law professor would have more self-respect than to play this card in the typical political way.

[UtahDan]

That's principally because liberals have co-opted the term, with some success.

There is no way declaring any law unconstitutional--whether passed by R's or D's--is judicial activism. The whole point of the Supreme Court (assuming you believe in judicial review) is to determine fidelity to the constitution. Now, you or I may disagree with their interpretation, but it isn't "activist."

"Activism" as a conservative would define it is the judiciary creating new (and often extra-constitutional) rights or expanding government by fiat, something totally different.

I agree with this part, which is why I said 95% and not 100%.

[Jeff Lebowski]

Huh?
As a layperson, in my lifetime--or at least since I've been paying nominal attention--this phrase has been used by Republicans far more often than Democrats.
Still, I would think a constitutional law professor would have more self-respect than to play this card in the typical political way.

I read a bio about Karl Rove. He is the one who is generally credited with inventing the whole "activist judges" concept as a political wedge issue. Love him or hate him, the guy is very good at what he does.

[dabrockster]

How isnt it? The mandate was proposed by republicans.

Do you have any information to back this up? I tried to look for it but was unable to find anything. I find it hard to believe the GOP had ANY involvement in writing that piece of legislature let alone supporting any of it at all.. It would of been political suicide for that person..

I remember when it first came out many people posed the question. "Who wrote this thing"..

[Tex]

Huh?
As a layperson, in my lifetime--or at least since I've been paying nominal attention--this phrase has been used by Republicans far more often than Democrats.

It's not a matter of who's using it, it's a matter of what it's being applied to. Liberals (Democrats) like to apply it to issues that are not activist (see: Obamacare being overturned) to confuse the issue in the mind of the public.

The day Obamacare is overturned, I promise you will hear major caterwauling on the airwaves about how activist the decision is, and about how hypocritical Republicans are for not agreeing. It's baloney.

By the way, here's another genius article to go with SoCalCoug's: "Impeach the Supreme Court! Jefferson did it!"

You think the idea is laughable? Thomas Jefferson disagreed with you.

Jefferson believed Supreme Court justices who undermine the principles of the Constitution ought to be impeached, and that wasn’t just idle talk. During his presidency, Jefferson led the effort to oust Justice Salmon Chase, arguing that Chase was improperly seizing power. The Senate acquitted Chase in 1805, and no Justice has been impeached since, but as the Supreme Court threatens to nullify the health-care law, Jefferson’s idea is worth revisiting.

[Moliere]

I think what Obama did just makes him look weak. It's petty and should be beneath him. It's like a kid begging for candy, or maybe an adult son being lectured by a father. He'd have been much better served to wait it out and if/when the law is upheld he could just say "I told you so!" Now if the law is upheld he'll look more like he dodged a bullet.

This made him look weak and having the court overturn it now could really hurt him.

[Maximus]

Do you have any information to back this up? I tried to look for it but was unable to find anything. I find it hard to believe the GOP had ANY involvement in writing that piece of legislature let alone supporting any of it at all.. It would of been political suicide for that person..

I remember when it first came out many people posed the question. "Who wrote this thing"..

Im not talking about this piece of legislation, but personal mandates was touted as a good way to tackle health care by Heritage and many others.

[Jacob]

How isnt it? The mandate was proposed by republicans.

No, it was not. As has been pointed out, Obamacare was written entirely by democrats, and I don't think a single Republican voted for it. Here is the question I responded to:

Isn't the part of the health care act that is under fire by the Supreme Court a compromise provision that was actually proposed by the Republicans?

Was it a compromise position? No, there was no compromise. And quite contrary to it's being a compromise position, it is the lynchpin of the law. Obamacare prohibits insurance companies form A) discriminating based on pre-existing conditions and B) discriminating based on risk factors like age, health, disease, etc. So, the only way Obamacare can force insurance companies to do this is to force everybody to purchase the insurance. They chose to do this by means of a mandate and a penalty rather than by other, less questionable constitutional means.

So, no. It wasn't a compromise, it is the linchpin of the whole scheme.

Was it proposed by republicans? Certainly not. If it was, by which one? Obviously none, as none supported the bill or helped write it.

It is a fact that a form of a mandate has been supported by certain republicans at the federal level in the past (Bob Bennett of Utah) and by other republicans at the state level (which doesn't have the constitutional concerns). But it is a blatant misrepresentation to claim that the provision of Obamacare currently at question in the Supreme Court was a "compromise position proposed by Republicans." Nothing could be further from the truth. Republicans fought tooth and nail against it.

Although it may be accurate to describe it as a compromise between democrats and big insurance and proposed by big insurance.

[Color Me Badd Fan]

Obama is right now in the same rut he was in during the summer and fall of 2010. He overestimates his persuasive skills and thinks that he can shift public opinion to the left if he just gives enough speeches. All that accomplished in 2010 was massive losses in the Congress and in state legislatures across the country. I hope he continues to rip on Paul Ryan's budget while his own budget couldn't get a single vote in either house of Congress and every Republican and a majority independents understand quite clearly that his own fiscal record is reckless and utterly without restraint. He's essentially handed the fiscal responsibility mantel back to the GOP. Quite a task to achieve after 8 years of W.

[SoCalCoug]

There is no way declaring any law unconstitutional--whether passed by R's or D's--is judicial activism.

Does this include a ruling overturning Prop. 8? Or the decision by the California Supreme Court in the In re Marriage cases?

Because I've heard those called judicial activism many times around here and on CB.

[Jacob]

Does this include a ruling overturning Prop. 8? Or the decision by the California Supreme Court in the In re Marriage cases?

Because I've heard those called judicial activism many times around here and on CB.

I think you are missing his point. Yes, those are classic cases of what has historically been described as judicial activism i.e. the court made up a new law or "right" that nobody ever thought existed before. There is a right to "gay marriage."

[SoCalCoug]

No, it was not. As has been pointed out, Obamacare was written entirely by democrats, and I don't think a single Republican voted for it. Here is the question I responded to:


Was it a compromise position? No, there was no compromise. And quite contrary to it's being a compromise position, it is the lynchpin of the law. Obamacare prohibits insurance companies form A) discriminating based on pre-existing conditions and B) discriminating based on risk factors like age, health, disease, etc. So, the only way Obamacare can force insurance companies to do this is to force everybody to purchase the insurance. They chose to do this by means of a mandate and a penalty rather than by other, less questionable constitutional means.

So, no. It wasn't a compromise, it is the linchpin of the whole scheme.

Was it proposed by republicans? Certainly not. If it was, by which one? Obviously none, as none supported the bill or helped write it.

It is a fact that a form of a mandate has been supported by certain republicans at the federal level in the past (Bob Bennett of Utah) and by other republicans at the state level (which doesn't have the constitutional concerns). But it is a blatant misrepresentation to claim that the provision of Obamacare currently at question in the Supreme Court was a "compromise position proposed by Republicans." Nothing could be further from the truth. Republicans fought tooth and nail against it.

Although it may be accurate to describe it as a compromise between democrats and big insurance and proposed by big insurance.

Senator Grassley, ranking Republican on the senate Finance Committee, is calling you a liar:

[YOUTUBE]luEKDNns27w[/YOUTUBE]

[Jacob]

Senator Grassley, ranking Republican on the senate Finance Committee, is calling you a liar:

[YOUTUBE]luEKDNns27w[/YOUTUBE]

You apparently didn't read my post, because nothing in that video contradicts what I wrote.

Are you claiming that Grassley proposed the mandate and that democrats hadn't thought of including it on their own? Are you claiming that Grassley voted for Obamacare? In what way does the video show that the Obamacare mandate was a "compromise" proposed by republicans?

[Color Me Badd Fan]

Does this include a ruling overturning Prop. 8? Or the decision by the California Supreme Court in the In re Marriage cases?

Because I've heard those called judicial activism many times around here and on CB.

Apparently that would be judicial activism under Obama's rubric announced on Monday.

The distinction between Obamacare and, say, US v. Miranda, is quite clear, at least to me. Obamacare was passed under an enumerated power of the Congress and the Supreme Court has been asked to decide if the law exceeded the scope of that power. Miranda v. Arizona required the Court to essentially draw up a new law/right under a creative interpretation of the 5th and 6th amendments.

The states' lawyers in the Obamacare case aren't asking the Supreme Court to create a new right/law/procedure, they're asking the Court to interpret whether the Congress overstepped the bounds of the Commerce Clause. The result of Miranda was to force law enforcement officers to affirmatively apprise citizens of their rights when they arrest them -- essentially creating a new right/procedure.

In my mind, the issue isn't one of judicial activism. I simply don't think the Obamacare inquiry and possible overruling of the legislation is judicial activism for the reasons stated above. The question instead is whether those cases of judicial activism (where a new affirmative law/procedure is set in place) is good or bad. Many of the civil rights cases were instances of judicial activism -- does anyone want to say those cases were bad for the country?