Great Minds Think Alike

On Monday, I mentioned that someone should educate our President on judicial review. Interestingly, a Federal Judge noticed the same remarks and came to the same conclusion I did:

In the escalating battle between the administration and the judiciary, a federal appeals court apparently is calling the president's bluff -- ordering the Justice Department to answer by Thursday whether the Obama Administration believes that the courts have the right to strike down a federal law, according to a lawyer who was in the courtroom.

 Great minds think alike. Either that or a Federal Judge is reading my blog.

So, it looks like the President just got assigned a book report on Marbury vs. Madison. You think that he would come out and say "I certainly believe in judicial review, and I hope that the Justices agree with the Solicitor's arguments and uphold the ACA. Next question." That's all he needs to say. It's not hard. But noooooo....he has to double down on stupid. Here's our President's response when asked about judicial review:

Well, first of all, let me be very specific. We have not seen a Court overturn a law that was passed by Congress on a economic issue, like health care, that I think most people would clearly consider commerce — a law like that has not been overturned at least since Lochner. Right? So we’re going back to the ’30s, pre New Deal.

He couldn't just leave it alone. His ego is way too big for that. He's got to prove that he's the smartest guy in the room. So, he finds a widely disliked case (like Lochner, Plesssy, ect.) and basically says that if you decide against the ACA, it's going to be just like Lochner. The Horror!

The problem is, the opinion in Lochner held that the Due Process Clause of the Fourteenth Amendment protects a robust right to "liberty of contract". It was subsequently overruled. Notice anything about the commerce clause? Neither did I. That's because Lochner isn't a commerce clause case. It isn't applicable to the current discussion.

So if you come across anyone who tries to tell you that holding the ACA to be unconstitutional will be a revival of Lochner, ask them if they can explain the holding. I betcha they can't. Even if they're the President.

Someone needs to tell the President about the first rule of holes.

Why This Blog Will Never Be Big

Here's why I'm not going to make it big on the blogging-world: My last post was about a basketball team running a football play (awesome, by the way), and now I'm going to talk about judicial activism.


All the really successful blogs are little niche-type blogs. You get your sports news here, you get cool military photos there, and you get daily cute puppies here. (Seriously, check out the puppies.) 


Every good blog fits into a nice little category. However, since I do this for me - I'm going to switch gears just a tiny bit. A little. I actually was going to get off the political/legal issues for awhile. However, when I hear the President say this, I want to throw something at my television:

"For years what we've heard is the biggest problem on the bench was judicial activism or a lack of judicial restraint - that an unelected group of people would somehow overturn a duly constituted and passed law," Obama said. "Well, this is a good example," he said. "And I'm pretty confident that this Court will recognize that and not take that step."

This is weapons-grade stupid on several levels, so it actually pains me that everyone things our President is so smart. Maybe since he's so smart, he should have done the oral arguments.

First,  the term "judicial activism" is whatever you don't like the Court doing. It's different for everyone. It's just a cop-out argument. People on all sides of issues use the word. If you don't like the Court's opinion, you call it "judicial activism". It's just a label, and it's almost meaningless, because it's been used to mean so many different things. All you have to know is that when you hear it, the person saying it means decision of the court = bad. So congratulations Mr. President, you have a buzzword. Kudos to you.

Second, what the hell does "duly constituted and passed law" mean? Really. Put the teleprompter down, slowly back away, and tell me what it means. I'll wait.

Think about this: "duly constituted" as opposed to what? A random guy snuck into the Capitol and put the bill into desk drawer? A guy from your bowling league gave it to you over a plate of nachos? All it means is that some Congressmen talked about it in a meeting. Which brings us to: "and passed law". It passed because Congress took a vote. Congratulations kids, you took a vote! Well that is the end of the analysis under super-duper smart President. They voted on it. End of analysis. Okey-dokey.

Congress wrote something down and then took a vote = duly constituted and passed law.

This isn't the legal standard. It can't be the legal standard. It's not even close to the legal standard. You know why? Because every law that the Supreme Court has found unconstitutional on substantive grounds  was a duly constituted and passed law. Here are two other laws that were duly constituted and passed:

The Judiciary Act of 1789 (Marbury vs. Madison)

Jim Crow Laws (culminating in Brown vs. Board of Education)

Whoa! You mean the Supreme Court doesn't just defer to laws that were duly constituted and passed! That's so crazy! Taking a vote in Congress isn't the end of the test?

If we did what our President is advocating, we don't even need a Judiciary. We can send them all home. If a legislature duly constitutes and passes a law...that's all we need under our President's theory. However, the way the Constitution is set up is that the branches of government have this relationship - checks and balances. You may have heard of it, it's kind of a big deal around here.

Someone get our President a copy of Marbury vs. Madison. Oh and highlight this part for him, in case he's not as smart as everyone says he is.

Certainly all those who have framed written Constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be that an act of the Legislature repugnant to the Constitution is void.

FYI, it's not judicial activism if the theory of striking down a law is that it is repugnant to the Constitution.

The Supreme Court: Taking Congress out behind the woodshed since 1803.

Emergency Action Message to GOP

Did Gingrich really just say he would subpoena SCOTUS Justices to have them "explain themselves" to Congress, and that the President and Congress get a "veto" of opinions they don't agree with? It sounds like the "historian" needs to read the Federalist Papers:

Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

As far as Jackson ignoring the Supreme Court is concerned: He was wrong to do so, and he later changed his mind on the issue when the politics suited him. Lincoln ignoring Ex parte Merryman  was also wrong in hindsight. Gingrich is saying really stupid sounding things, and the only think I can guess is that he's hoping to win over the "I hate the lawyers" vote. Great.

And Romney is just the guy who says anything he needs to get elected. (Sound familiar?)

Hey GOP, the Iowa caucuses are just around the corner, and you still have some things need to be taken care of.

Don't make me force you to come in to work on a Saturday.