Don’t forget one more point:
If all nine justices vote, that means that Elena Kagan must be impeached for not recusing herself as the law requires.
And if that fails to happen, we’ll have somewhere close to a hundred senators to reject over the next three Novembers, and a couple hundred congressmen too.
Failing to impeach Elena Kagan for failure to recuse herself from this case is, in my opinion, an impeachable offense for any legislator. The case is simply too clear; there’s no question about it.
H/T to the Drudge Report.
It is truly sad that such a simple thing can be so complicated by this court. Law is black and white.
1. Is the foundation of our constitution founded on the rights of the individual? Yes or no. The answer is yes.
2. Is an individual who does not buy insurance participating in interstate commerce? The answer is no.
Note: Is the effect of the person not buying insurance felt at an intestate level? The answer here is that it is an irrelevant question. You can’t use the butterfly effect to give the FedGov the right to do ANYTHING.
3. Is the mandate, therefore, unconstitutional? Answer is yes.
Regarding severability:
When part of a contract or law is stricken down and the law has a severability clause, is the whole law stricken down? The answer is no.
When part of a contract or law is stricken down and the law has no severability clause, is the whole law stricken down? The answer is yes.
Does this law have a severability clause? No.
Is the whole law stricken down? Yes.
These should all be 9-0 decisions, if we have rational, thinking adults on the court that are familiar with the constitution of the united states.
It is literally that simple.
If there were a conservative party in the United States, it would be proposing an Amendment to the Constitution to restrict the use of the Commerce Clause by the federal government since our modern jurists and representatives perceive it has infinite elasticity. Given that Congress is likely to be unwilling to restrict its own behavior, this change will need to occur via petition from the states for a convention.
Unfortunately, there is no conservative party and there is no organized effort to return to Constitutional law. Both Republicans and Democrats in Congress, the Executive Branch, and the Judiciary benefit from the current approach to governing using a “living” constitution.
“Ok, so seeing as we’re not architects, how can we remove the entire ground floor from this high-rise building without affecting other floors?”
“Ok, so seeing as we’re not doctors, how can we remove the patient’s heart but keep him alive and get him back to work?”
“Ok, so seeing as we’re not cooks, how can we remove meat from the menu but keep this Brazilian steakhouse popular?”
Pray very hard for the health of the other 5, at least until the end of the year.
Question, can SCOTUS appointments be done as recess appointments?
From Volokh Conspiracy via Instapundit
IGNORANCE IN OFFICE: Democratic Congressman and Senators on Constitutional Authority for ObamaCare:
Most of us know that when then-Speaker Pelosi was asked where the Constitution gives Congress the power to enact an “individual mandate,” she replied with a mocking “are you serious? Are you serious?”
Here are a few more pearls of constitutional wisdom from our elected representatives.
Rep. Conyers cited the “Good and Welfare Clause” as the source of Congress’s authority [there is no such clause].
Rep. Stark responded, “the federal government can do most anything in this country.”
Rep. Clyburn replied, “There’s nothing in the Constitution that says the federal government has anything to do with most of the stuff we do. How about [you] show me where in the Constitution it prohibits the federal government from doing this?”
Rep. Hare said “I don’t worry about the Constitution on this, to be honest [...] It doesn’t matter to me.” When asked, “Where in the Constitution does it give you the authority …?” He replied, “I don’t know.”
Sen. Akaka said he “not aware” of which Constitutional provision authorizes the healthcare bill.
Sen. Leahy added, “We have plenty of authority. Are you saying there’s no authority?”
Sen. Landrieu told a questioner, “I’ll leave that up to the constitutional lawyers on our staff.”
Something to keep in mind when someone argues that the Supreme Court should defer to the constitutional wisdom of its coequal branches.
Kakistocracy. Plus, from the comments: “The salient point is the fact that few members of Congress even read the 2700-page bill; yet some argue still that the Supreme Court should give Congress the presumption of Constitutionality in the bills it passes? Worse than ridiculous, such a contention is a call for judicial abdication of responsibility. And it is quite blatant. It is a call to abandon checks and balances, the very underpinning of our form of government. It is a call to tyranny.”
Posted at 4:49 pm by Glenn Reynolds