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What if Kagan had Recused Herself?
Vanity | 6/29/12 | Sopater

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?


TOPICS: Government; Health/Medicine; Politics
KEYWORDS: aca; obamacare; scotus

1 posted on 06/29/2012 7:35:01 AM PDT by Sopater
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To: Sopater
Tie vote - the ruling of the lower court is upheld. 



Genuflectimus non ad principem sed ad Principem Pacis!

Listen, O isles, unto me; and hearken, ye people, from far; The LORD hath called me from the womb; from the bowels of my mother hath he made mention of my name. (Isaiah 49:1 KJV)

2 posted on 06/29/2012 7:40:37 AM PDT by ConorMacNessa (HM/2 USN, 3/5 Marines RVN 1969 - St. Michael the Archangel defend us in Battle!)
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To: Sopater

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.


3 posted on 06/29/2012 7:40:49 AM PDT by Old Retired Army Guy
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To: Old Retired Army Guy

There were conflicting lower court rulings. Wouldn’t that have left the entire issue “undecided”?


4 posted on 06/29/2012 7:51:55 AM PDT by Ingtar ("As the light begins to fade in the city on the hill")
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To: Ingtar

Only the case appealed to the SCOTUS pertains. It would be remanded to the court which made the decision being appealed.


5 posted on 06/29/2012 7:55:50 AM PDT by Sudetenland (Member of the BBB Club - Bye-Bye-Barry!!! President Barack "Down Low" Obama)
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To: Sopater

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.


6 posted on 06/29/2012 7:57:39 AM PDT by NeoCaveman ("If I had a son he'd look like B.O.'s lunch" - Rin Tin Tin)
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To: Sudetenland

Thank you for the clarification.


7 posted on 06/29/2012 7:57:39 AM PDT by Ingtar ("As the light begins to fade in the city on the hill")
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To: Sopater

Ha, as if. She was appointed for a reason. It wasn’t just happenstance. She did her job as she was told.


8 posted on 06/29/2012 7:58:57 AM PDT by bgill
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To: Sopater

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.


9 posted on 06/29/2012 7:59:39 AM PDT by pallis
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To: Sudetenland

No, Kennedy would have had a visit from Soros thugs and it still would have been upheld.


10 posted on 06/29/2012 8:02:48 AM PDT by butterdezillion
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To: bgill

Right. There was never any question of her recusing herself.


11 posted on 06/29/2012 8:09:03 AM PDT by Venturer
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To: Sopater

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.


12 posted on 06/29/2012 8:15:23 AM PDT by 9YearLurker
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To: Sopater

http://cnsnews.com/news/article/kagan-sits-judgment-obamacare-despite-cheering-its-passage-and-assigning-lawyer-defend

(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 Act—AKA “Obamacare”—Supreme 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!


13 posted on 06/29/2012 8:32:53 AM PDT by Eagles6
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To: 9YearLurker

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.


14 posted on 06/29/2012 8:57:42 AM PDT by ntnychik
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To: Sopater

What would have happened if McCain and Palin had won?


15 posted on 06/29/2012 9:14:31 AM PDT by NoLibZone (We must get down on our knees each day and thank God that McCain/Palin didn't win in '08.)
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To: NoLibZone
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.

16 posted on 06/29/2012 10:21:57 AM PDT by Gay State Conservative (Bill Ayers Was *Not* "Just Some Guy In The Neighborhood")
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To: ntnychik

Still seems as if that’s playing into his leftist ‘coming out’ over the past two weeks.


17 posted on 06/29/2012 11:35:53 AM PDT by 9YearLurker
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To: Old Retired Army Guy; Sopater
The lower court decision would have stood in the event of a tie vote at the SCOTUS. However, if that had happened, then the case would NOT have counted as a Supreme Court precedent. Only a SCOTUS majority vote can produce an precedent which is binding on the lower courts, which we no have. Historically, these precedents tend to be very difficult to overturn.
18 posted on 06/29/2012 3:53:22 PM PDT by old republic
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To: 9YearLurker

Agreed. I couldn’t figure out why he’d leave recusal up to Kagan. Now we know.


19 posted on 06/29/2012 8:19:56 PM PDT by ntnychik
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To: old republic
I have a question that so far not a single Freeper has addressed, that I've seen:
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?

20 posted on 06/29/2012 8:29:37 PM PDT by MHGinTN (Being deceived can be cured.)
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To: butterdezillion; Kaslin; David; kristinn

pingaling


21 posted on 06/29/2012 8:33:47 PM PDT by MHGinTN (Being deceived can be cured.)
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To: Kenny Bunk

pingaling


22 posted on 06/29/2012 8:34:50 PM PDT by MHGinTN (Being deceived can be cured.)
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To: MHGinTN; butterdezillion; Kaslin; David; kristinn
Using all of youse as references on on my Australian Immigration Application.

I am telling them I am am 27. Back me up. Other than that, I had a fabulous week. How about those Red Sox?

23 posted on 06/29/2012 9:04:24 PM PDT by Kenny Bunk (So, Scalia, Alito, Thomas, and FU Roberts can't figure out if Obama is a Natural Born Citizen?)
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To: MHGinTN
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 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.

24 posted on 07/02/2012 10:21:26 PM PDT by old republic
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To: old republic

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.


25 posted on 07/03/2012 6:38:22 AM PDT by MHGinTN (Being deceived can be cured.)
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