1817- SCOTUS stuff
As the week begins I want you to see if you can catch the narrative- the ‘new’ story that the media is going to tell.
This past week- the top story was the case of the Supreme Court hearing the arguments about the health care law [referred to as Obama Care- not the real name].
As the justices closed the last day of hearings- most observers seem to think that the law will be struck down as unconstitutional.
This came as a surprise to some in the ‘media/legal’ world- but not all.
As a brief review- the main argument against the law [there are a few] is that the federal govt. overstepped its boundaries by telling the states that their people had to by a private product- health insurance.
Now- as the year went by- some of the lower courts agreed with the President’s side- others did not.
They just about split 50-50 on it.
Some judges did indeed seem to agree with the side that said the federal govt. - under the Commerce Clause- does not have the right to make people by insurance.
Now- why would the president have constructed the law- using the Commerce Clause as the basis to make people by insurance?
He knew that to simply do a straight ‘raise a tax to pay for health care’ would not pass.
That is- would not pass congress- though there is no doubt that it would have survived the courts.
Yes- the constitution does indeed give the power to tax to the federal govt. - this is clear.
So- in my mind- when I first heard the 2 sides- I thought it was actually reasonable to conclude that the law would get struck down- because the Commerce Clause says the govt. has the right to regulate commerce [business] between the states- but not to force people to buy a product..
And the President said ‘being everybody will eventually access the system [which by the way is not true- there are some people who live- and die- without ever even going to the E.R. ]
But the Presidents side said being everyone is already doing ‘commerce’ by the fact that they will someday use the system- therefore we are just regulating it by telling people to start paying now.
To me- this was a stretch- and it seems like a majority of the court agree.
So- after the very bad week for the Presidents side- the media began spinning the story.
Nina Totenberg- NPR- a fairly liberal news lady- been around for a while.
She was on one of the morning news shows and she said that almost ‘all’ legal experts agree that this case is a hands down win for Obama.
But because the court- the 5 conservatives- are the ‘Bush Court’ [they gave the election to Bush under the Bush versus Gore ruling] that they are now basically a Tea Party court- a right wing court who either does not know the law- or is refusing to rule according to the law.
Now- the problem with this is the media are going to being spinning this- a few others have already gone down this road [Carville].
I can already hear my liberal friend- in a week or 2- saying ‘geez- can you believe these Bush justices- they are practically breaking the law by going against Obama care’.
It’s sad- and wrong- because this is not what happened at all.
There are 9 justices that make up the court- most think that 4 are liberal- 4 conservative- and that justice Kennedy plays a ‘swing vote’ role.
Why are some said to be liberal and others conservative?
It’s not a political statement to say this about the justices- but it has to do with the way they interpret their role on the court.
Conservatives believe it’s the role of the court to simply interpret the constitution.
That when they hear cases- they simply need to look at the constitution- and the way the previous courts have ruled- and that’s how the decision should be made.
The Lib’s have an idea that the constitution is a ‘living document’ [Ginsberg has said this- a liberal justice on the court]. And they believe that you should be able to make decisions based on what the founders might have thought if they were around today- don’t just limit your decisions based on the ‘static’ reading of the constitution.
Okay- because it is true that Republicans usually nominate more conservative types- and Democrat presidents nominate liberals- this does not mean in any way that the justices make rulings based on what party they belong to.
It’s really slanderous for the media to begin telling this ‘story’ this narrative that the 5 conservatives are ruling ‘politically’ because after all- their conservatives.
See how they do this?
Whatever way the court rules [they actually voted the other day- but the final ruling wont be revealed until the summer] it would be right to think that they ruled according to the way they think- that the conservatives more than likely thought the Commerce Clause did not give the federal govt. the right to mandate people to buy a product.
And the Liberal justices who will vote for it- they probably will do so because it fits more in with their legal thinking- they won’t vote for it simply because they are politically liberal [though that’s also probably true] but because that’s the view they sincerely hold to.
So get ready- you will begin hearing how the justices are either outright hostile to Obama- because they owe their allegiance to Bush- or they are really inept- sort of a picture of them being out of touch with ‘the majority’- if not all- of the ‘legal experts’.
Read- think for yourself.
My first impression- when I first heard the Commerce Clause argument- was that the argument was weak- and that to interpret a law that says ‘the federal govt. has the right to regulate commerce’ to think that means ‘we can make you buy insurance’ it just seemed like a stretch to me.
I really don’t need Totenberg- or Carville- or anybody to explain to me that ‘all’ the legal minds think the other way- besides this being not true- you can simply read the case being made- and see that the conservative argument- over this particular point- seems right.
I am not saying that there are not real issues about health care that we do need to deal with- there are.
Nor am I saying that ‘Obama care’ is a socialist takeover of the country [that’s as bad as Totenberg’s lie].
But I am saying- don’t let the media tell you how to believe- begin demonizing the 5 conservatives to a point where you believe the lie- that there is ‘no way’ true- honest- legal minds would have struck down the mandate.
The fact is- most reasonable people would probably conclude the same thing.
The majority of the American people believe the same thing about the mandate- that it is wrong.
The majority of the court seem to be saying the same thing.
But the Totenberg’s of the world- they are going to tell you ‘another story’ try- real hard- to see that it’s just ‘a story’.
Note- Do me a favor, those who read/like the posts- re-post them on other sites as well as the site you read them on. Thanks- John