Skip to comments.What if Kagan had Recused Herself?
Posted on 06/29/2012 7:34:52 AM PDT by Sopater
What would have happened if the voter were tied 4-4 if Kagan has recused herself from the case?
A tie would have allowed the Law to stand as is which would have validated the mandate under the Commerce Clause in lieu of it being labled a Tax.
There were conflicting lower court rulings. Wouldn’t that have left the entire issue “undecided”?
Only the case appealed to the SCOTUS pertains. It would be remanded to the court which made the decision being appealed.
Would it have been thrown out 4-3-1. At that point Roberts might have flipped to be 5-3.
As you had 4 for total repeal, 3 for commerce clause is groovy, and Roberts as for it but not the commerce clause.
Thank you for the clarification.
Ha, as if. She was appointed for a reason. It wasn’t just happenstance. She did her job as she was told.
First of all, it wouldn’t have been called a case of the court proving its neutrality, and second of all, one of the other conservative justices would have crossed the aisle in the name of neutrality, and teaching the American people a lesson in representative Democracy. That’s their job these days.
No, Kennedy would have had a visit from Soros thugs and it still would have been upheld.
Right. There was never any question of her recusing herself.
Could someone please correct me if I’m wrong, but I believe CJ Roberts could have asked her to recuse herself. Then had he voted in the majority the Constitution could have been upheld with a nice 5-3 vote.
(CNSNews.com) - When the Supreme Court on Monday began hearing oral arguments in the cases challenging the constitutionality of the Patient Protection and Affordable Care ActAKA ObamacareSupreme Court Justice Elena Kagan showed up to hear the arguments and gave no indication she would recuse herself from judging the cases even though she had cheered enactment of Obamacare as an Obama political appointee and had personally assigned her top deputy in the Obama Justice Department to defend the law in federal court.
A federal law, 28 USC 455, says a Supreme Court justice must recuse from any proceeding in which his impartiality might reasonably be questioned or anytime he has expressed an opinion concerning the merits of the particular case in controversy while he served in governmental employment.
Laws? We don’t need no steenkin’ laws!
Roberts said he had confidence that Kagan would know whether to recuse herself or not. She inoculated herself further by recusing on the Arizona case.
What would have happened if McCain and Palin had won?
Veto,one would assume.One might also assume that he would have lobbied against the law during debate.But with McLame you can't even be sure of that.
Still seems as if that’s playing into his leftist ‘coming out’ over the past two weeks.
Agreed. I couldn’t figure out why he’d leave recusal up to Kagan. Now we know.
If this thing is founded upon a tax or taxes to be accurate, is it Constitutionally allowed that little barry bastard commie can unilaterally exempt groups from this legally passed tax?
Has the Oval Office stinker just given himself unenumerated powers? And what the hell can the Congress do about it?
I am telling them I am am 27. Back me up. Other than that, I had a fabulous week. How about those Red Sox?
I think that the power of the president to grant exemptions to the law to anyone is likely a violation of the Equal Protection Clause of the XIV Amendment which reads:
nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Although this clause only refers to the states, the courts have ruled that this clause does apply to the federal government as well, owing to the Fifth Amendment's due process clause which says that no one may be deprived of life liberty, or property, without due process of law.
Consequently, granting an exemption from a tax to some people, but not granting an exemption to others is a totally arbitrary act of the executive branch that deprives every citizen who is not granted a waiver a right to due process when they are deprived both of their property (i.e. money) as well as equal protection (since others were granted waivers and were thus arbitrarily protected from the tax while others were not) .
It is not permissible to allow some citizens to be taxed while others with political connections to the president are allowed to get exemptions by executive branch decree. It appears that the SCOTUS has given unlimited power to the president through the tax clause of Article I. Hopefully, this decision is overturned.
Unfortunately, Congress can't do much. They can repeal Obamacare, but SCOTUS precedent still says Congress has unlimited power so they can simply reinstate Obamacare or something worse later if it wants to. One path Congress could take would be to hold hearings to investigate SCOTUS decision. Congress could investigate Kagan for improper behavior for not recusing herself even though she was involved with Obamacare while serving in the Obama Administration. If the evidence indicates guilt she should be impeached and the Obamacare decision should be overturned since she was not qualified to vote in the decision. This would invalidate the Obamacare decision as a binding national legal precedent. The House should also investigate the other justices in the Majority for abuse of power, violation of their oaths. This would discourage SCOTUS from going rogue again.
Congress could propose amendments to the Constitution, but success in this is very unlikely which makes it a less attractive option. Another possibility is that Congress could defund enforcement of unconstitutional provisions of Obamacare or propose a law making executive use of unenumerated powers an explicitly impeachable offense. Such provisions could be tacked into Reconciliation bills or must pass Omnibus bills, making it difficult to veto them. They aren't the ideal solution, but they help to mitigate some of the damage that Roberts and his thugs inflicted on the constitution.
Thanks very much for the response to my questions. ALL of this stuff would be easier to deal with if the media were not now the fifth column enemy of We The People. I happen to believe Barry has committed impeachable offense in several acts, but the granting of ‘waivers’ on a legitimately passed tax bill is beyond the pale because it makes it possible for him to regulate the nation into permanent divisions of friends and enemies using taxation as a punative tool. It is my opinion that if Congress allows this criminal lying sonofabitch to continue doing this with the ‘healthcare bill taxation’ the end is at hand for the Republic.
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