Supreme Court
April 4, 2012 — John Hinderaker
The debate over Obamacare has prompted a long-overdue focus on the Commerce Clause. The Commerce Clause is just one constitutional provision among many, but ridiculously broad interpretations of it over a period of decades have threatened to undo the foundations of the republic as set out in the remainder of the Constitution. The Commerce Clause, by its terms, does not purport to extend federal authority over virtually every facet of
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April 3, 2012 — John Hinderaker
Yesterday Barack Obama launched an attack on the Supreme Court that bordered on the bizarre. Apparently unaware of the most basic principles of constitutional law, going back to Marbury v. Madison in 1803, he said: I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress. And I —
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April 3, 2012 — Steven Hayward
I’m grateful for the favor Obama did for us yesterday of exposing his extreme constitutional ignorance, with his comments on how it would be “unprecedented” for the Court to strike down a law passed by a “strong majority” in Congress. (As if a House margin of seven votes is a “strong” majority.) True, he walked back the comment today, but surely because his statement was not merely indefensible but outright
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April 3, 2012 — Steven Hayward
Richard Epstein points to Justice Anthony Kennedy’s killer question in the oral arguments over the Obamacare mandate last week: “Can you create commerce in order to regulate it?” Where have we heard something like that before? That’s right—in Citizens United. Prior to the prospect raised last week of the Supreme Court striking down Obamacare, Citizens United is the modern case that gets the most ire from the Left. “This is
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March 31, 2012 — Steven Hayward
Former Speaker Nancy Pelosi’s haughty dismissal in 2009 of the question of the constitutionality of Obamacare is getting widely recycled, and this week she was reduced to incoherence, as this RealClearPolitics video shows. Excerpt: “I’m a supporter of judicial review, I honor the Constitution in that regard,” Pelosi said to reporters. “That’s why we wrote our bill in a way that was Constitutional. I still feel pretty confident about it.
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March 30, 2012 — Scott Johnson
Reading the transcript and listening to the audio of day 2 of the Obamacare argument, I was struck by the sheer intellectual laziness and complacency of Justice Breyer. To liken him to a rodeo clown would be to credit him with too much energy. Referring to the key New Deal Commerce Clause case of Wickard v. Filburn, Breyer asked, for example: “Didn’t they make that man growing his own wheat
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March 30, 2012 — Steven Hayward
There is no shortage of learned commentary about the course of argument over Obamacare at the Supreme Court this week, so I won’t add to the pile of legal analysis. Instead, let’s just look at some political factors, and I’ll offer a couple of predictions and suggestions. Let’s start with Justice Kennedy, thought to be the swing vote. Lots of people think Justice Kennedy is swayed by elite opinion, or
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March 29, 2012 — John Hinderaker
Some liberals have comforted themselves with the idea that if Obamacare is ruled unconstitutional, it may speed the adoption of the liberals’ real goal, socialized medicine, on the theory that “single payer” will then be the only alternative to the status quo. Such thinking is understandable, as it has generally been assumed that whether or not socialized medicine is a good idea, if Congress were to adopt it, it would
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March 28, 2012 — John Hinderaker
Our former colleague Paul Mirengoff provides his impressions of today’s oral argument in Department of Health and Human Services v. Florida: When all was said and done, it seemed to me that we are where most people outside of the wishful thinking liberal commentariat thought we’d be – with the fate of Obamacare riding on a conflicted Justice Kennedy. To be sure, Chief Justice Roberts did not fully tip his
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March 27, 2012 — John Hinderaker
Obamacare has run into a buzz saw at the Supreme Court. That isn’t really a surprise, and, as countless commentators have pointed out, you can’t necessarily predict a judge’s opinion from the tenor of his questions during oral argument. Still, Justice Kennedy, a moderate liberal, is likely the decisive vote, so the fact that he explicitly recognized that Obamacare is unprecedented is heartening to conservatives: Kennedy: [H]ere the government is
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March 27, 2012 — Steven Hayward
While we wait for Day Two of the Obamacare argument at the Supreme Court, let’s take a detour for the moment to acknowledge what I am certain is going to be regarded as one of the most significant books about the Constitution of our time—a book that will have long shelf life among legal academics and people serious about understanding the Constitution: it’s Michael Greve’s The Upside-Down Constitution, just out
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March 26, 2012 — Steven Hayward
Why get your news and analysis from the bubbleheads of the media when you can get it from the bobble heads of Power Line? Herewith a 90 second video recap and preview of current topics in the news offered by Power Line’s own bobble head staff. (And if you haven’t yet ordered your copy of The Politically Incorrect Guide to the Presidents, why not?)
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March 22, 2012 — Steven Hayward
I’m running behind today on reading the newspaper and everything else, chiefly because I’m finishing a piece for the Weekly Standard that was due yesterday on gasoline issues. (I hope Bill Kristol isn’t reading Power Line today, or he’ll wonder why I’m not getting the piece nailed down. . .) But I just now noticed the front page story in the Post about yesterday’s Supreme Court decision that says criminal
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February 1, 2012 — John Hinderaker
In the course of Justice Elena Kagan’s nomination to the Supreme Court, emails came to light suggesting that she had worked on behalf of Obamacare when she was in the Department of Justice. Under normal conflict of interest principles, she would not be able to sit as a judge on a case where the issue is the constitutionality of a statute that she supported as a lawyer. So Congressional Republicans
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January 18, 2012 — Steven Hayward
Our friends at the Volokh Conspiracy have some new competition in the legal blogspace (but being market-oriented I know they won’t mind) from our mutual liberty-loving friends at the Liberty Fund, who have started the new site LibertyLawBlog. It features as its chief contributors Michael Rappaport of the University of San Diego Law School, and my AEI colleague Michael Greve, whose new book, The Upside Down Constitution (forthcoming from Harvard
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November 14, 2011 — Steven Hayward
The news out today that the Supreme Court will hear the Obamacare case this term is not a big surprise (they might have punted on “ripeness” grounds, as more than one lower court judge argued), but Ilya Shapiro of the Cato Institute points out why this is no ordinary case–it’s beyond even an extraordinarycase: What was unexpected — and unprecedented in modern times — is that it set aside five-and-a-half
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October 21, 2011 — Scott Johnson
I’m still kicking myself for having swallowed whole the Progressive critique dished out in law school and elsewhere over the years about the Supreme Court’s decision in Lochner v. New York (1905), frequently derided as one of the Supreme Court’s all-time worst decisions. In Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform, law professor and Volokh Conspiracy contributor David Bernstein establishes that everything we were ever taught about Lochner is
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