The Decline of Supreme Court Deference to the President

[jbird4049]

A simple way to prove this is to look back on the big ACA case, whatever it was called. Every pundit had his prediction as to which clause would be used to uphold/strike, and the decision ultimately rested on Congress' power to tax -- a justification that no one was predicting.

I did. If the DCF still existed I could point back at my posts when the individual mandate was first raised explaining that the only possible Constitutional justification for it was to call it a tax. People told me at the time "well the President says that is isn't a tax", and I told them that it didn't matter what the President said, it was either unconstitutional or it was a tax. The fact that mass media reporters missed this obvious fact has always been something that is strange to me. Congress doesn't have the constitutional right to make me buy an umbrella, but they do have the right to charge me a tax for not owning one. It was the only way that the mandate could rationally avoid being found unconstitutional.

I'll have to go search some of those archive tools to see if I can find the posts... Anyone who was around willing to vouch for me here?

No need to search, you have high credibility (well, at least with me).

Why did the MSM miss the obvious fact? Too busy cupping obama's balls re: not a tax?

They're too busy looking at the short goal of healthcare reform instead of the long term consequences of the loss of legitimacy.

[clubgop]

A simple way to prove this is to look back on the big ACA case, whatever it was called. Every pundit had his prediction as to which clause would be used to uphold/strike, and the decision ultimately rested on Congress' power to tax -- a justification that no one was predicting.

I did. If the DCF still existed I could point back at my posts when the individual mandate was first raised explaining that the only possible Constitutional justification for it was to call it a tax. People told me at the time "well the President says that is isn't a tax", and I told them that it didn't matter what the President said, it was either unconstitutional or it was a tax. The fact that mass media reporters missed this obvious fact has always been something that is strange to me. Congress doesn't have the constitutional right to make me buy an umbrella, but they do have the right to charge me a tax for not owning one. It was the only way that the mandate could rationally avoid being found unconstitutional.

I'll have to go search some of those archive tools to see if I can find the posts... Anyone who was around willing to vouch for me here?

I cant vouch for you but plenty of people predicted that. It was the Obama's admin argument!

[Okeefenokee]

I didn't think that view was controversial.

It is. I have been walking around stating to people for several years now that the Supreme Court is the closest thing we have to a king, and nobody agrees. But the Supreme Court justices are non elected positions which cannot be taken from the recipient. The Supreme Court can literally decide that ANYTHING is "unconstitutional" and nobody can tell them they are wrong. The only way to block such behavior in a legal way would be to increase the number of justices, something the Congress is allowed to do at will. Sure we have a Constitution which is supposed to be the ultimate authority, but doesn't whoever gets to "interpret" the Constitution inherently have the real power?

Were you not there when I brought this up on the old forum, and the response I got was, "Well, how else would the country run if unelected attorneys couldn't make decisions against the will of the people?"

[clubgop]

I didn't think that view was controversial.

It is. I have been walking around stating to people for several years now that the Supreme Court is the closest thing we have to a king, and nobody agrees. But the Supreme Court justices are non elected positions which cannot be taken from the recipient. The Supreme Court can literally decide that ANYTHING is "unconstitutional" and nobody can tell them they are wrong. The only way to block such behavior in a legal way would be to increase the number of justices, something the Congress is allowed to do at will. Sure we have a Constitution which is supposed to be the ultimate authority, but doesn't whoever gets to "interpret" the Constitution inherently have the real power?

Were you not there when I brought this up on the old forum, and the response I got was, "Well, how else would the country run if unelected attorneys couldn't make decisions against the will of the people?"

Well they can be impeached. Plus another check is that they must wait for a case to do their will. Sure they may want to do X but they have to wait for a litigant to seek that relief.

[jbird4049]

It is. I have been walking around stating to people for several years now that the Supreme Court is the closest thing we have to a king, and nobody agrees. But the Supreme Court justices are non elected positions which cannot be taken from the recipient. The Supreme Court can literally decide that ANYTHING is "unconstitutional" and nobody can tell them they are wrong. The only way to block such behavior in a legal way would be to increase the number of justices, something the Congress is allowed to do at will. Sure we have a Constitution which is supposed to be the ultimate authority, but doesn't whoever gets to "interpret" the Constitution inherently have the real power?

Were you not there when I brought this up on the old forum, and the response I got was, "Well, how else would the country run if unelected attorneys couldn't make decisions against the will of the people?"

Well they can be impeached. Plus another check is that they must wait for a case to do their will. Sure they may want to do X but they have to wait for a litigant to seek that relief.

True, but the Courts often avoid issues they don't want to deal with, either by just not taking them ( as with the Nine), or make up b.s. like requiring standing to press a case. As in the various cases brought against our national panopticon. Even if you know that illegal surveillance has been used on you, you cannot legally prove you have been harmed, or get it to stop, without going to the courts, but if you cannot prove you have been harmed by the illegal surveillance you cannot go to court, which means the illegal surveillance keeps on happening.

[atanamis]

I didn't think that view was controversial.

It is. I have been walking around stating to people for several years now that the Supreme Court is the closest thing we have to a king, and nobody agrees. But the Supreme Court justices are non elected positions which cannot be taken from the recipient. The Supreme Court can literally decide that ANYTHING is "unconstitutional" and nobody can tell them they are wrong. The only way to block such behavior in a legal way would be to increase the number of justices, something the Congress is allowed to do at will. Sure we have a Constitution which is supposed to be the ultimate authority, but doesn't whoever gets to "interpret" the Constitution inherently have the real power?

Were you not there when I brought this up on the old forum, and the response I got was, "Well, how else would the country run if unelected attorneys couldn't make decisions against the will of the people?"

I didn't say I was opposed to this method of government. I think that the Supreme Court having lifelong appointments and being largely immune to political pressure has done a lot to ensure slow change in how our government operates (a philosophically conservative view I also support). If elected officials had all the power then we'd see much more radical swings in what happens. I don't WANT a Court that defers to the President or Congress, I want a Court that will straight up veto any law that doesn't directly implement Constitutional powers or violates Constitutional protections as written.

I would like to see a requirement that all laws passed by Congress specifically called out what Constitutional powers they rely on though, and to have a team of legal experts provide public feedback on legality of laws before they go into effect. The fact that our testing happens only after laws are in place isn't good. The Constitution is the API which any federal law needs to utilize to justify its power and mandate to do what it is doing. If something we want our government doing isn't defined there, we ought to amend the Constitution to add it. Want a federal retirement insurance program? Constitutional amendment. Want a health care plan? Amendment. Etc. Amendments allow the people to discuss what it is that they want their government doing, and to specify the rights and responsibilities that are expected. And unless there is language in the Constitution allowing any given behavior by our government, the Court should block it.