Questions for Liberal Justices

1. Is the United States Federal Government a government of enumerated powers?
2. If it is not a government of enumerated powers, how do you square your view of its power with Article I, Section 8?
3. Is there any statute that the federal government cannot pass because it is beyond its enumerated powers? 
4. Example please?
5. If there is no such statute why not? Doesn't the fact that the powers are enumerate indicate that there are some areas the federal government's power cannot reach?
6. If the federal government's power is unlimited what does the Tenth Amendment mean? Doesn't the Tenth Amendment presuppose that the federal government cannot legislate in at least some realms?
7. Are limits on federal power just one of those constitutional limitations we've out grown? 
8. How do we know which constitutional limits on congressional power are effective and which ones are passe?
9. Is there any way to interpret your willingness to enforce the constitutions when it involves individual rights, but failure to enforce the structural limitations on the federal government as anything other than you enacting your personal policy preferences as constitutional law?

The Volokh Conspiracy

The Volokh Conspiracy: "My friend Tom Kaufman writes:

I think I figured out what happened. Randy Barnett made a wish on a cursed monkey’s paw that his commerce clause argument would be accepted. It explains everything, no?"

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The Volokh Conspiracy

The Volokh Conspiracy: "For those disappointed with Roberts’ opinion, it may suggest a rule for future nominations: it’s better to nominate the type of individual who is forthright in his views, and if asked about his participation in the Federalist Society, would defend the organization and his membership therein (which really tells you nothing more than that the individual in question is not on the “left”). Whether such a person is confirmable nowadays is another question."

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SCOTUS Notebook: A Minute-by-Minute Account from Inside the Courtroom on the Big Day - News - ABA Journal

SCOTUS Notebook: A Minute-by-Minute Account from Inside the Courtroom on the Big Day - News - ABA Journal: ""It is not our job to protect the people from the consequences of their political choices.""

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True. But I don't think this was the people's political choice. And I don't think anyone ever argued the law should be struck down to protect the people from their political choices. So, I'm not sure what this statement has to do with the case.

Oh, media!

Love this:

A Hollow Victory for Obamacare - Sen. Mike Lee - National Review Online

A Hollow Victory for Obamacare - Sen. Mike Lee - National Review Online: "As Justice Kennedy noted in his dissent, “imposing a tax through judicial legislation inverts the constitutional scheme, and places the power to tax in the branch of government least accountable to the citizenry.” There is simply no way that the ACA would have become law had the American public and their representatives understood the mandate as a tax."

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This seems to be the argument Roberts didn't answer.

Yglesias 1, Lizza + Frum 0 | The Daily Caller

Yglesias 1, Lizza + Frum 0 | The Daily Caller: "Frum makes it clear his position on repealability is part of a plodding Avlon-like battle to save the GOP from irresponsible wingnuts:

Truly, this is Waterloo—a Waterloo brought about by a dangerous combination of ideological frenzy, poor risk calculation, and a self-annihilating indifference to the real work of government.

You see, if only the Republicans had been more reasonable and negotiated with Obama back in 2009, Frum argues, they could have gotten the changes they now won’t be able to get in 2013! But even if they can’t get full repeal in 2013, can they really not get whatever modifications Frum would have had them make to Obamacare in 2009? If they win the White House and both Houses of Congress? I suspect Frum is being led into sophistry and,well, frenzy (“Waterloo”!)  by his Grand Repositioning Project."

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Clever?

Yglesias 1, Lizza + Frum 0 | The Daily Caller: "Who says Romney won’t be able to repeal Obamacare? Ryan Lizza and David Frum argue that a President Romney won’t be able to repeal Obamacare, in part because the GOPs won’t have a veto-proof majority in the Senate. Matt Yglesias says Lizza and Frum are wrong. I’m with Yglesias.

After all, why couldn’t Republicans use the “reconciliation” process to get around a Dem filibuster? Lizza says:

But reconciliation wouldn’t work here—the process can only be used for policies that have budgetary effects and a C.B.O. score. Much of the A.C.A., such as the insurance exchanges and subsidies, would fall under these categories. But a lot of it, including the hated individual mandate, does not. Repealing the exchanges and subsides without repealing the mandate and the other regulations and cost controls in the law would create a health-care Frankenstein that a President Romney would be rather nuts to support.

Huh? The individual mandate is a tax! The Supreme Court has now told us. Maybe the Senate parliamentarian calls it something else–but whatever you call it, it raises revenue and repealing it would have a budgetary effect, and hence be reconciliationable"

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Another Comment

Here. You'll have to go to the post for context.

 1. Maybe they didn't intend to deceive at the outset. But they barely passed this legislation, and a key part of that sales job was that it is not a tax.  

 2. Obama, like almost all politicians, promised not to raise taxes on the middle class. So you think that Obama would have campaigned on raising taxes given your more comprehensive counterfactual? I doubt he could remain silent on the topic. Or he would have just broken his campaign promise to get ACA passed? And you don't think breaking his promise would affected his ability to pass the ACA?  

 3. If it's labeled a tax, a politician can still deny it's a tax, but he will be easily refuted by the language of the statute.  

 Saying that a tax must be labeled a tax to be treated as one is not the same as saying everything labeled a tax is automatically justified by the taxing power. 

Paul Begala: Damn you, John Roberts for Upholding Obamacare - The Daily Beast

Paul Begala: Damn you, John Roberts for Upholding Obamacare - The Daily Beast: "So why do I damn the chief justice? Because it's all about me, isn't it? I was loaded for bear. I'd already drafted a bitter, bilious, bombastic broadside against the right-wing hacks on the Republican Court. (Oops, my side won, so they're the highly esteemed and completely independent Supreme Court.)"

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Yep. that's the left's logic.

The Volokh Conspiracy

The Volokh Conspiracy: "Perhaps, as Rick Hasen suggests, he’d rather save his political capital for the affirmative action and voting rights cases that are coming up, especially since he found a way to give the “right” a partial victory in his commerce clause reasoning, and to limit the Spending power."

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How does bucking the majority of Americans' wishes on this issue help Roberts save the court's political capital?

Conservatives’ Misguided Criticism of Roberts - By Richard Garnett - Bench Memos - National Review Online

Conservatives’ Misguided Criticism of Roberts - By Richard Garnett - Bench Memos - National Review Online: "But also, and more important, the Court’s decision today contains some of the most muscular enumerated-powers and constitutional-structure-matters language of any (majority) opinion in decades. Judicial conservatives, it seems me to me, should be thankful (and grateful to the chief justice) for the approach taken by a majority to the Necessary and Proper Clause and to the so-called Spending Power, and should probably see this “good” about the ACA decision as outweighing the “bad” (i.e., that, because the mandate is, contrary to the president’s earlier assurances, a “tax,” it will have to be repealed legislatively and electorally, rather than judicially). The ruling on the Medicaid expansion, in particular, is a big “win” for federalism, it seems to me."

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I don't get it. Why should we be happy because it could have been worse? Yeah, but it could have been better.

Waiting for the Supremes - The Daily Beast

Waiting for the Supremes - The Daily Beast: "Though I am pro-choice, I am not a fan of Roe, which I think was legally dubious and tactically unwise. But democracies are complicated things. No matter how much it feels like it to you, democracy doesn’t wither and die because the Supreme Court won’t let politicians enact some laws you like. It didn’t in 1973 and it won’t now."

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Right. It just withered and died with respect to one really important issue, abortion.

Instapundit

Instapundit: " I have been much amused watching people try to simultaneously defend the fruits of Franklin Delano Roosevelt’s outrageous court-bullying, while also indignantly claiming that it would be abusive, infamous, fundamentally illegitimate and also, downright mean, for conservative justices to even think about overturning long-standing precedent. Suddenly, the internet is full of Latter Day Originalists who think that the constitution was handed down by God on stone tablets—in January 1936."

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EconLog | Library of Economics and Liberty

EconLog | Library of Economics and Liberty: "If your question is, "Are Jack and Mary married?," an arbiter might exist.  After all, to be married is nothing more than to be considered married by a society.  If the people in a society accept the Grand Poobah as the arbiter of marriage, then whatever he decides about two people's marital status is their true martial status.  "

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