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View Diary: What's at stake: The SCOTUS and undoing The New Deal (204 comments)

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  •  The discussion of whether this is a tax (1+ / 0-)
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    is in the briefs and and the oral argument -- they do a better job than I do.  They are on the Supreme Court website.  This was a three day oral argument, and on Day 1 -- Monday -- the SG pretty much conceded that this was not a tax.  Just being collected through the Internal Revenue Service does not make it a tax.  Its purpose was not to raise revenue.  Instead, it is a penalty for not purchasing a private product mandated by the government.  There's lots of case law saying that a penalty is a type of regulation, not a tax.  So, you are back to the basic question:  Does Congress' authority to regulate interstate commerce allow Congress to force every person in the United States to enter interstate commerce?  Or -- the question the SG did not have a good answer for -- what is the constitutional limit on Congress' power under the Interstate Commerce Clause?  If Congress can do this, is there anything Congress cannot do under that Clause?  (Saying -- as some want -- that everything touches interstate commerce, so the Interstate Commerce Clause means Congress can do whatever it wants to do would fundamentally change the nature of the Constitution, which doesn't give Congress plenary power and has never been interpreted to give Congress plenary power.)  

    As for the "what do we do if the SCOTUS does something we don't like -- Congress is elected and they are not" argument, here's the way the Constitution is set up.  Remember, the Constitution is, at its heart, a democratic document -- it is in place because, and only because, the people put it there (through their elected representatives).  The job of the Courts is to interpret the Constitution -- to say what the people did, and did not, put in place when they put the Constitution, and the amendments, there.  If the people disagree with the way the Courts interpret the Constitution, the solution is to amend the Constitution.  It has happened before.  Under the Constitution as originally written, Congress did not have the authority to impose a direct income tax on people without apportioning it among the states,  and the SCOTUS so held in the Pollock case 1895.  The people decided they WANTED Congress to have the power to impose an income tax without apportioning it among the states, so they passed the 16th Amendment.  

    If the SCOTUS holds that the authority to regulate interstate commerce does not include the authority to mandate that every individual buy a private product, they are holding that, when the people (through their representatives) limited Congress to the powers enumerated in Article I, Section 8,  the people,by including the power to regulate interstate commerce, did not give Congress the power to mandate the purchase of a private product.  They are not saying the people CAN'T give Congress that power, just that they did not do it in 1789, when they wrote that list (which includes the Commerce Clause).  The solution is always in the hands of the people (through their elected representatives).  If they WANT Congress to have that power, they can always give Congress that power through Constitutional amendment.  

    •  Amending the Constitution (0+ / 0-)

      doesn't seem like the answer.  I understand what you are saying about the possibility of amending the Constitution, but as a practical matter, that would mean that whenever five people in robes decide to strike down a law, then you'd need 2/3 of Congress and 3/4 of states to amend the Constitution to overrule them.  That doesn't seem like an imbalance of power to you?  So if the SCOTUS wingers go crazy and decide a minimum wage isn't included under the Commerce Clause, then we have amend the Constitution to say, "necessary and proper, interstate commerce, and minimum wage.". Then they strike down civil rights legislation, for example, then we have to amend the Constitution to say, necessary and proper, interstate commerce, AND minimum wage AND civil rights."  That is hardly a check.

      The Constitution was written vaguely for a r eason, the founders knew they could not anticipate every future need of government and allowed Congress to exercise their discretion.  If you're suggesting that the only way we can check the SCOTUS is to amend the Constitution to explicitly authorize a specific law, then the conservatives have won once and for all.  For any time they dislike a law, they will strike it down and wait for us to amend the Constitution.

      •  Conservatives made that same argument (1+ / 0-)
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        When the SCOTUS announced that the Constitution protected a woman's right to an abortion.  They said the exact same thing -- that the SCOTUS read the Constitution wrong, that the Constitution doesn't say anything about a right to privacy much less a right to abortion, and how do they fix it short of amending the Constitution?  The answer for them is the same as now -- you have to amend the Constitution.  There has to be a final say -- somewhere -- on what the Constitution does, and does not mean, and in our system, it's the Supreme Court.  

        There is a check on the Supreme Court -- it's the Presidential appointment power, and the Senate approval.  After all, it's not like any of the conservatives on the Court hid the fact that they were conservatives, and it's not like they hid the fact that they would not approach the Constitution as you wanted them to -- with its meaning changing to adjust to the times.  All of the conservative justices made clear at their confirmation that they did not ascribe to that view of the Constitution.  That's why they were appointed in the first place. It's kind of disingenuous to say, "how horrible !  they are strict constructionalists!  They believe in original intent!  They don't want the meaning of the Constitution to adjust to the times!"  Of course that's what they believe -- that's why they were appointed in the first place, because this country elected a President that believed in that, and he appointed justices that believed in that, too.  That's built into our system.  That's the "democratic" check on the Supreme Court.  

        •  You do not know that (0+ / 0-)

          no mandate and strong limits on Congressional authority is tantamount to "original intent."  Unless you are a founding father secretly living in a cave for 200 years, you don't know what the original intent was, and neither does the SCOTUS.  

          Progressives need to pass laws to create change and succeed.  Conservatives don't want change so all they need to do is block laws to succeed.  So based on what you're saying, that Congress needs explicit authority from the Constitution for anything they want to do to avoid the possibility of SCOTUS striking their laws down, then the conservatives have won once and for all.  They can artificially restrict the reach of Congress's constitutional authority in practically all arenas.

          Of course that's what they believe -- that's why they were appointed in the first place, because this country elected a President that believed in that, and he appointed justices that believed in that, too.
          Well, that sounds awesome, only I seem to recall that in 2000, the SCOTUS gave the election to George W. Bush, who then bolstered the SCOTUS with more conservative justices.  And then that court then subsequently ruled in Citizens United to allow unlimited corporate money, which will give elections to the Adelsons and Kochs for years to come.  I consider that a problem.  
      •  cheerio - it would only take one amendment (0+ / 0-)

        to the Commerce Clause to give Congress broad powers, so your example makes no sense.  Some original intent jurists believe the purpose of the Commerce Clause was to prevent each state from erecting tariff barriers at their borders. Those people feel the federal government is restricted to actions within its enumerated powers only and if the citizens wanted the federal government to have more power they could amend the Constitution. Recall when our republic was formed it was a lot easier to amend the Constitution with only 13 states.

        "let's talk about that"

        by VClib on Tue Jun 19, 2012 at 08:19:59 PM PDT

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        •  Are you suggesting that (0+ / 0-)

          we amend the Constitution so that it says, "Congress has broad powers under the Commerce Clause"?  That makes no sense.  What does "broad powers" mean exactly?  Oh right, the SCOTUS has to interpret that again.  

          •  cheerio - that's not my suggestion at all (0+ / 0-)

            I am not a lawyer or legal wordsmith however I am certain an amendment could be drafted that would make it clear that Congress has powers beyond its enumerated authority, but not unlimited powers. Sure in time the SCOTUS would be asked to interpret them as well. The difference is that up to the New Deal the overwhelming consensus was that the Commerce Clause was very restrictive. An Amendment would at least make it clear that the areas of Congressional jurisdiction are broader than just the enumerated powers.

            "let's talk about that"

            by VClib on Wed Jun 20, 2012 at 10:51:18 AM PDT

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