Serious Wast's Constitutional Corner: Part One

[Tritopea]

At least one appellate court has decided the mandate is unconstitutional (see www.uscourts.gov/uscourts/courts/ca11/201111021.pdf for the 11th Circuit's opinion). Sometime soon the case will likely be heard by the Supreme Court. The case is somewhat interesting and explores the rather important question of the extent of Congress' power to regulate either through interstate commerce

Is the individual mandate justified, or is it an overreach of congressional power? Clearly Congress can regulate the insurance industry, but its ability to regulate an individual's decision to enter into commerce is less clear. Can the connection to interstate commerce be made in a way that doesn't accommodate the slippery slope of indirect links to commerce that leads to unbounded Congressional power under the commerce clause? Is it even coercion (having not read the bill itself, I'm not sure)?

I expect an orderly and intelligent debate, based on the law at hand (which includes important precedents). And thus, I say to Taijitu: OMG DEBATE.

[Corgi]

I used to believe that the Supreme Court could rise above politics and decide issues based on legal merits.
Now, they are truly just the third branch of government and just as political and just as purchased.

Damn.  I've grown cynical.

[Gulliver]

Well, unfortunately no matter how you slice it at the end of the day the justices are still humans with opinions of their own that they'll exercise in cases of ambiguity and no standing precedent.

[Tritopea]

Indeed. Unfortunately, deciding cases on legal merit alone isn't really possible - important decisions (the kind lower courts won't satisfactorily resolve) are necessarily political in some sense. I do think there's a legitimate constitutional question here, though, that the Court should clarify. Defining limits of congressional power is an important function for the Court, even if it seems unfair to override the will of the people/Congress/etc. With that said, it makes sense for the Court to give Congress great latitude in regulation (as it has in the past), so that intervention by the Court is only necessary in the most extreme of cases.

I have the feeling this is debate is meandering in the direction of a discussion on the purpose of the Supreme Court in general - and whether its necessary at all.

[Gulliver]

If we want to meander that way, I would certainly say an independent judiciary capable of judging cases and upholding the law is absolutely vital to any functional, modern society.

[Wast]

I think its time to revive this thread! Please continue discussion on the given poll.

[Gulliver]

Oh right, this is coming to the Supreme Court soon.

[Eluvatar]

I was rather amused by some reporter's discovery of a law from the 1790s which mandated gun ownership

[Wast]

Was that a state law or a federal law? I'm assuming the former.

[Bourbon Spirit]

There's a great website that not only has a summary and citations to other nonsense it also has audio of the oral arguments. Fascinating stuff.

Listening to the oral arguments it seems, from my uninitiated and amateur point of view, that the law is going to go down in flames. Of course, one can never tell.

[Eluvatar]

Was that a state law or a federal law? I'm assuming the former.

federal

[Delfos]

In Portugal our "supreme court" have more or less the same parameters as the US supreme court, since the judges in function can be nominated by parties to integrate the supreme court.  It has been pretty fair and impartial comparing to the american supreme court. Until now: The current judges were in majority to consider the cuts in summer and christmas bonus to be unconstitutional. It's going to finish mandate before a decision, the new judges that are announced by the biggest political parties are mainly in favor of such cuts and will probably allow constitutional rape of cutting those said bonuses. Nominating judges that change the will of constitutionality of such very sensitive subject is being viewed as influencing and corrupting the constitutional court. This will get heat in the following weeks until the final nominations to the supreme court in Portugal.

All in all, I lost the confidence that people could be fair and blind to political issues when having the job of defending the constitution and it's concept.

[Gulliver]

Well practically speaking it's unrealistic to expect people to ever be completely blind.

[Wast]

Okay, this thread was originally supposed to be about the health care law, but there's an interesting and more broad debate going on now. GO ON (but it now has its own thread).

[Gulliver]

I don't know what else to say. I will say I was surprised to find out in the past so many landmark decisions were unanimous, so it's clear the Court wasn't as always divided as it is now. I don't know enough to say what's been responsible for the change.