Obama’s law professor: If the Supreme Court strikes down the mandate, they must be biased political hacks

posted at 10:12 pm on February 8, 2011 by Allahpundit

One of the most pitiful, relentlessly irritating op-eds about O-Care that I’ve read since our long national nightmare began in summer ’09. To understand what makes it so grating, you need to know that the author, Laurence Tribe, is not only a Harvard Law prof who taught Obama but a bona fide titan of constitutional jurisprudence on the left. He wrote a famous treatise on the subject and was, in his younger days, a perennial candidate for the Supreme Court when Democrats were in the White House. You might also remember him as the guy who sneered, amusingly, in a letter to Obama that Sotomayor isn’t nearly as smart as she thinks she is, and who endorsed Kagan because he thought she’d be better able to keep Anthony Kennedy from “drifting” towards the right.

You need all of that as background for two reasons. One: If, per his credentials, you’re expecting an argument for the mandate here that’s novel or unusually penetrating, you’re mistaken. His points about the Commerce Clause and Congress’s taxing power are as pedestrian as it gets, stuff you’ve read in a hundred different permutations from liberals over the past 18 months. Two, and more importantly: The point of this op-ed isn’t to make legal arguments at all. Ann Althouse has been destroying Tribe all day long, in three separate posts, on the nuts and bolts of his argument, but taking him seriously enough to respond to him might actually give him too much credit, I think. His goal here isn’t to persuade Times readers that he’s correct on the legal merits; his goal is to persuade Times readers that if the Supreme Court disagrees with him, it is, must, and can only be because they’re right-wing hacks with no regard for the Constitution or for precedent. It’s transparent narrative-building for liberal bien-pensants, a way of moving the Overton window so that any unfavorable ruling, notwithstanding the legal novelty of the mandate or the reasoning of the majority opinion, must be illegitimate. Which is to say, it’s a nakedly political argument dressed up as a plea to keep politics out of law.

The justices aren’t likely to be misled by the reasoning that prompted two of the four federal courts that have ruled on this legislation to invalidate it on the theory that Congress is entitled to regulate only economic “activity,” not “inactivity,” like the decision not to purchase insurance. This distinction is illusory. Individuals who don’t purchase insurance they can afford have made a choice to take a free ride on the health care system. They know that if they need emergency-room care that they can’t pay for, the public will pick up the tab. This conscious choice carries serious economic consequences for the national health care market, which makes it a proper subject for federal regulation…

Given the clear case for the law’s constitutionality, it’s distressing that many assume its fate will be decided by a partisan, closely divided Supreme Court. Justice Antonin Scalia, whom some count as a certain vote against the law, upheld in 2005 Congress’s power to punish those growing marijuana for their own medical use; a ban on homegrown marijuana, he reasoned, might be deemed “necessary and proper” to effectively enforce broader federal regulation of nationwide drug markets. To imagine Justice Scalia would abandon that fundamental understanding of the Constitution’s necessary and proper clause because he was appointed by a Republican president is to insult both his intellect and his integrity

Only a crude prediction that justices will vote based on politics rather than principle would lead anybody to imagine that Chief Justice John Roberts or Justice Samuel Alito would agree with the judges in Florida and Virginia who have ruled against the health care law. Those judges made the confused assertion that what is at stake here is a matter of personal liberty — the right not to purchase what one wishes not to purchase — rather than the reach of national legislative power in a world where no man is an island.

I can tolerate him spoon-feeding talking points to the left about the Court’s supposed illegitimacy, but please, in the name of decency, spare us the condescending, backhanded, surely-they’re-better-than-that tone. John Yoo, who accuses Tribe of coming across “as a teacher instructing the Justices not to disappoint him,” wonders why it shouldn’t also be the case on a matter of first impression like the mandate that Breyer, Ginsburg, Sotomayor, Kagan are left-wing Democratic hacks if they vote to uphold the law — which, let’s face it, they surely will. The votes of Republican appointees like Kennedy, Roberts, Alito, and even Scalia are in doubt here, but there’s no doubt which way our four liberal all-stars will tilt, never mind what further expansion of the Commerce Clause might mean for a government of allegedly limited powers. Exit quotation from one of InstaGlenn’s law-prof correspondents: “[I]t seems to me that the arguments against constitutionality are making supporters sufficiently nervous that they’re doing some battlefield preparation…”


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No wonder Obama has no understanding of the constitution.

Vegi on February 8, 2011 at 10:14 PM

“[I]t seems to me that the arguments against constitutionality are making supporters sufficiently nervous that they’re doing some battlefield preparation…”

This is exactly what i said in the headline post…

Setting up the “bias” card already. Laying the groundwork for the assault on the Constitutional side of the court. It’s what the left does best. Fertilizing the soil for the seeds of discontent and slander.

katy on February 8, 2011 at 10:16 PM

Which Constitution did he teach? And which did Obama study?

publiuspen on February 8, 2011 at 10:17 PM

No wonder Obama has no understanding of the constitution.

Vegi on February 8, 2011 at 10:14 PM

Well, it does help to have actually read it…

steebo77 on February 8, 2011 at 10:17 PM

Nevertheless, Republicans should find some other arguments which might work in courts. precisely because this case gives the SC authority to expand the commerce clause powers infinitely we shouldn’t give Kagan and Sotomayer that chance.

promachus on February 8, 2011 at 10:18 PM

Taranto has a lot of fun at Tribe’s expense in today’s “Best of the Web.”

onlineanalyst on February 8, 2011 at 10:19 PM

Yep they are getting nervous. Heck look at Crr and PR’s reactions to these stories. They know there is a good change they lose.

CWforFreedom on February 8, 2011 at 10:19 PM

And the NYT is attacking the conservative SCOTUS justices…

d1carter on February 8, 2011 at 10:19 PM

From Angelo Codevilla’s “The Ruling Class”:

“If, for example, you are Laurence Tribe in 1984, Harvard professor of law, leftist pillar of the establishment, you can “write” your magnum opus by using the products of your student assistant, Ron Klain. A decade later, after Klain admits to having written some parts of the book, and the other parts are found to be verbatim or paraphrases of a book published in 1974, you can claim (perhaps correctly) that your plagiarism was “inadvertent,” and you can count on the Law School’s dean, Elena Kagan, to appoint a committee including former and future Harvard president Derek Bok that issues a secret report that “closes” the incident. Incidentally, Kagan ends up a justice of the Supreme Court. Not one of these people did their jobs: the professor did not write the book himself, the assistant plagiarized instead of researching, the dean and the committee did not hold the professor accountable, and all ended up rewarded.”

So much for this discredited slut.

It’s the Left, Jake.

rrpjr on February 8, 2011 at 10:20 PM

katy on February 8, 2011 at 10:16 PM

It goes further than that. They are getting their troops ready for anarchy. It’s obvious in that they are fully, before our eyes, ignoring the balance of powers which the judge in Florida has tipped the scales back to netural.

SouthernGent on February 8, 2011 at 10:20 PM

Obama and his thugs already have a history of disrespecting the Court, which is an equal branch of government.

I can see this ending very badly for Obama. Like a 9-0 or maybe an 8-1 decision AGAINST him.

You’ll have one or two vote against him out of spite.

Keep talking trash Larry boy.

gary4205 on February 8, 2011 at 10:21 PM

Sounds like they’re trying to lay the groundwork of excuses for why the mandate gets stricken. Hopefully that’s a good sign.

amerpundit on February 8, 2011 at 10:22 PM

Overton window

Okay, that’s like the 4th or 5th time you’ve used that in the past month. Did you read Beck’s book, or are you trotting out the lingo ’cause it sounds snappy?

Aquateen Hungerforce on February 8, 2011 at 10:22 PM

Beyond the Constitutionality question, why have so many leftist groups asked for and been granted waivers from ObamaCare? Greatest invention since the wheel and they want an exemption?

Bishop on February 8, 2011 at 10:22 PM

Well we’ve seen the “results” of Laurence Tribe’s tutelage, haven’t we?

What’s next Larry, the “Race Card”?

GarandFan on February 8, 2011 at 10:22 PM

great rundown AP. I agree with the exit quote; it’s defensive fire on the retreating divisions exposed flank. They are very worried.

ted c on February 8, 2011 at 10:23 PM

Oh, I know, you’re taking poli-sci courses at the learning annex. :P

Aquateen Hungerforce on February 8, 2011 at 10:23 PM

Many on the left say they don’t like Big Brother but they LOVE Big Brother.

CWforFreedom on February 8, 2011 at 10:24 PM

Which Constitution did he teach? And which did Obama study?

publiuspen on February 8, 2011 at 10:17 PM

publiuspen:
===============

Barack Obama Lectures on Constituonal Law

To: Students in Con. Law III
From: Barack Obama
Re: The Exam
*************

http://www.scribd.com/doc/13516100/Barack-Obama-Lectures-on-Constituonal-Law

canopfor on February 8, 2011 at 10:25 PM

My inactivity of buying electricity off the grid by producing it myself must be effecting interstate commerce. It’s not just me, but if others like me do the same….

Electrongod on February 8, 2011 at 10:25 PM

” Laurence Tribe, is not only a Harvard Law prof who taught Obama…”

Sorry…

… I’m going to need a little proof here.

Grades please…!

Seven Percent Solution on February 8, 2011 at 10:26 PM

: The point of this op-ed isn’t to make legal arguments at all.

This is obviously correct, which is why it’s hilarious Althouse went batsh*t over it.

crr6 on February 8, 2011 at 10:26 PM

Will having your toes chopped off and force fed to you be covered under ObamaCare? If so then call me a supporter.

Bishop on February 8, 2011 at 10:28 PM

SouthernGent on February 8, 2011 at 10:20 PM

I’ll buy that. They’re looking for the match to ignite the flame. The voiding of their signature piece of fundamental transformation would do it.

katy on February 8, 2011 at 10:29 PM

Isn’t Tribe the guy who lost Bush v Gore? I’ll bet he was disappointed then too…

What a putz.

beatcanvas on February 8, 2011 at 10:29 PM

I heart Ann Althouse. She has a way of cutting through people’s crep.

terryannonline on February 8, 2011 at 10:29 PM

AP, if you found this op-ed annoying, you should read Akhil Amar’s piece (highlighted at Volokh: http://volokh.com/2011/02/07/akhil-amars-defense-of-the-individual-mandate/) where he compares Vinson’s decision with Dred Scott. oy veh:

In 1857, another judge named Roger distorted the Constitution, disregarded precedent, disrespected Congress and proclaimed that the basic platform of one of America’s two major political parties was unconstitutional. The case was Dred Scott vs. Sanford, involving a slave who sued for his freedom because he had lived with his master in places where Congress had banned slavery. In an opinion by Chief Justice Roger Taney, the court not only ruled against Scott, saying that even free blacks were not citizens and therefore had no right to sue; it also declared the Missouri Compromise, which had outlawed slavery in Northern territories, unconstitutional.

Firefly_76 on February 8, 2011 at 10:30 PM

I reject the fallacious notion that there is any redeeming quality surrounding Harvard Law School. For every good graduate, there are a helluva lot of miscreants that outweigh them and cause trouble. John Adams would be disappointed.

ted c on February 8, 2011 at 10:30 PM

Will the SCOTUS overturn the whole enchilada? Op-Eds like this make me think so. What happens when you are found in contempt of the supreme court?

Mord on February 8, 2011 at 10:31 PM

What happens when you are found in contempt of the supreme court?

Mord on February 8, 2011 at 10:31 PM

Depends on who are you are in Obamaland.

katy on February 8, 2011 at 10:34 PM

I’ll buy that. They’re looking for the match to ignite the flame. The voiding of their signature piece of fundamental transformation would do it.
katy on February 8, 2011 at 10:29 PM

One of the leftist rags did run that frothing screed about desiring that the American people “rise up” as the Greeks did recently. Liberal human garbage need something to keep them occupied, it’s a human right.

Bishop on February 8, 2011 at 10:34 PM

Something has got to give here. Who in the devil, instructed this person?

betsyz on February 8, 2011 at 10:34 PM

Yep they are getting nervous. Heck look at Crr and PR’s reactions to these stories. They know there is a good change they lose.

CWforFreedom on February 8, 2011 at 10:19 PM

Count it!

malclave on February 8, 2011 at 10:35 PM

Just because you do not buy insurance you can afford does not mean you have chosen a free ride especially when lesser expensive plans are eliminated and govt. intrusion creates unnecessary regulation that drives up the price.
A hospital is like any company when their bills are not being paid.
They go after that person just like a credit card company or a bank.
To imply that people can just walk away from their bill is untrue as your credit rating will be destroyed and will haunt you for years.

They come looking for that money believe me.

NeoKong on February 8, 2011 at 10:36 PM

March 30, 2008
Was Barack Obama a “law professor”?
***********************************

This seems to be the issue of the day, and, being a law professor blogger, I feel compelled to pay attention. So, first, the Hillary Clinton campaign — stinging from the ridiculous Bosnian sniper fire lie/mistake — put out a press release that listed 10 items under the heading “embellishments and misstatements.” Item #1 was:

http://althouse.blogspot.com/2008/03/was-barack-obama-law-professor.html

canopfor on February 8, 2011 at 10:36 PM

Okay, that’s like the 4th or 5th time you’ve used that in the past month. Did you read Beck’s book, or are you trotting out the lingo ’cause it sounds snappy?

Aquateen Hungerforce on February 8, 2011 at 10:22 PM

Actually, the “Overton Window” was named for the author of the white paper that first described it, Joseph P. Overton. Years before Glenn Beck wrote the book, Overton worked for the Mackinac Center for Public Policy, and his eponymous “window” is an apt description of how public perception is a fundamental tool in shaping policy.

Any other questions?

gryphon202 on February 8, 2011 at 10:36 PM

Tribe wrote a book title “The Invisible Constitution.” Yikes!

terryannonline on February 8, 2011 at 10:36 PM

If this is the best they can do against Kinson’s reasoned ruling, they are in trouble.

John the Libertarian on February 8, 2011 at 10:37 PM

AP,

Just how do we know that this clown, Tribe, was Obozo’s professor? We haven’t seen any transcript or public record of Obozo ever going to any institute of higher learning.

I trust this guy, but I’d like to verify that Obozo was actually in one of his classes…transcript please!

belad on February 8, 2011 at 10:37 PM

I]t seems to me that the arguments against constitutionality are making supporters sufficiently nervous that they’re doing some battlefield preparation…”

If anything, it’s not the arguments that are making proponents of the law nervous. Most, if not all of the actual arguments against the PPACA border on frivolous. Respected lawyers on both side of the spectrum agree on that.

The point is that you guys have done a terrific job of running a PR campaign by running op ed after op ed, and by filing legal challenges in ultra-conservative districts. Those efforts are starting to bear fruit, in that you’ve gotten a Reagan appointee and a Bush appointee to ignore precedent and strike down the law.

It’s time that proponents of the law start playing the same PR game. That’s what Tribe is doing here.

crr6 on February 8, 2011 at 10:38 PM

Abortion
Pedophilia
Loading Down our Children with Debt

Child-Hate is coiled like a serpent around the liberal brain.

jaime on February 8, 2011 at 10:38 PM

What happens when you are found in contempt of the supreme court?

Mord on February 8, 2011 at 10:31 PM

I hear there is a waiver for that….

ted c on February 8, 2011 at 10:38 PM

Those efforts are starting to bear fruit, in that you’ve gotten a Reagan appointee and a Bush appointee to ignore precedent and strike down the law.

It’s time that proponents of the law start playing the same PR game. That’s what Tribe is doing here.

crr6 on February 8, 2011 at 10:38 PM

ignoring precedent? The US Constitution predates all of the ‘constitutional law’ and cases decided in its wake.

precedence.

ted c on February 8, 2011 at 10:40 PM

Bishop on February 8, 2011 at 10:34 PM

We won’t see an Egypt. We still have too much order and respect…and our majorities are still employed.
What we will see are students, college campuses, city halls and state houses surrounded and chaos in various areas.

The working people are stocking up on essentials and will take turns on armed neighborhood watch duty.

katy on February 8, 2011 at 10:40 PM

crr6 on February 8, 2011 at 10:38 PM

What if it’s not p.r. and some people really believe it’s unconstitutional?

terryannonline on February 8, 2011 at 10:40 PM

Laurence Tribe on Revising the U.S. Constitution

http://www.youtube.com/watch?v=5z0Krpe0wzI

canopfor on February 8, 2011 at 10:41 PM

The point is that you guys have done a terrific job of running a PR campaign by running op ed after op ed, and by filing legal challenges in ultra-conservative districts. Those efforts are starting to bear fruit, in that you’ve gotten a Reagan appointee and a Bush appointee to ignore precedent and strike down the law.

crr6 on February 8, 2011 at 10:38 PM

Well hmm…there’s an interesting choice. Ignore “precedent,” or the constitution…”precedent,” or the constitution…

I think I’ll take the constitution over some stodgy old judge’s legal opinion. It still is considered a legal “opinion,” right?

gryphon202 on February 8, 2011 at 10:41 PM

What happens when you are found in contempt of the supreme court?

Mord on February 8, 2011 at 10:31 PM

Ask Larry Flynt.

crr6 on February 8, 2011 at 10:41 PM

to ignore precedent and strike down the law.

Once again you go claiming precedent where none exists.

The individual mandate is “unprecedented”. As stated even by the CBO.

ButterflyDragon on February 8, 2011 at 10:42 PM

What if it’s not p.r. and some people really believe it’s unconstitutional?

terryannonline on February 8, 2011 at 10:40 PM

I don’t need a judge to tell me that Congress and Obama overstepped clear-cut constitutional boundaries. That bastard-child of a health care reform bill is unconsitutional, and the states don’t need anyone’s permission to summarily ignore it.

gryphon202 on February 8, 2011 at 10:42 PM

Abortion
Pedophilia
Loading Down our Children with Debt

Child-Hate is coiled like a serpent around the liberal brain.

jaime

back under your rock.

audiculous on February 8, 2011 at 10:44 PM

Well hmm…there’s an interesting choice. Ignore “precedent,” or the constitution…”precedent,” or the constitution…

gryphon202 on February 8, 2011 at 10:41 PM

A lower court judge’s duty is to apply SCOTUS precedent. If he disagrees with the precedent he should have written an opinion disagreeing with the precedent (while still dismissing the case), or resigned. Simple as that.

crr6 on February 8, 2011 at 10:44 PM

and the states don’t need anyone’s permission to summarily ignore it.

gryphon202

you’re just whistling ‘Dixie’ there.

audiculous on February 8, 2011 at 10:45 PM

canopfor on February 8, 2011 at 10:36 PM

He was, nor never has been, a law professor…only a law adjunct, not only, was late to class, but,hardly ever showed up, Ice cream scooper he was, but gave away cones to “friends”,…that was his forte, to fly in the night, “friends”…. I think he’s never had a friend in his entire life. Still trying to find out how he, or did he obtain driver’s license, pass test, etc.

betsyz on February 8, 2011 at 10:46 PM

A lower court judge’s duty is to apply SCOTUS precedent. If he disagrees with the precedent he should have written an opinion disagreeing with the precedent (while still dismissing the case), or resigned. Simple as that.

crr6 on February 8, 2011 at 10:44 PM

Okay. I still don’t see where “precedence” is a defense for the unconstitutional. That pesky supremacy clause, along with its “…in pursuance thereof…” language seems a little bit more binding to me than any notion of “precedence.”

gryphon202 on February 8, 2011 at 10:47 PM

With law professors like this who needs clowns?

Lily on February 8, 2011 at 10:47 PM

katy on February 8, 2011 at 10:40 PM

To be honest, I’m not all that worried about it. The leftist garbage who crap all over everything when they get mad never have the staying power to see things through; either they break when confronted or dribble away out of boredom.

Most of them are relatively harmless morons screaming “revolution!” before heading home in the BMW they got from the parents. It’s the molotov terrorists that scare me.

Bishop on February 8, 2011 at 10:47 PM

Once again you go claiming precedent where none exists.

That’s a little game your side plays so that you can rule based on your personal whims. “WOOPS there’s no case like this so I’m just gonna make up law and strike it down.”

It’s covered under CC precedent, and it’s covered even more clearly by NPC precedent. The judge ignored or distorted both.

The individual mandate is “unprecedented”. As stated even by the CBO.

ButterflyDragon on February 8, 2011 at 10:42 PM

A law can be novel, and still be covered by legal precedent. Like I said before, nearly every new law is different from every previous law in some way.

crr6 on February 8, 2011 at 10:48 PM

audiculous on February 8, 2011 at 10:44 PM

liberal

jaime on February 8, 2011 at 10:48 PM

you’re just whistling ‘Dixie’ there.

audiculous on February 8, 2011 at 10:45 PM

We’ll see about that. My beliefs are one thing. It remains yet to be seen if we are a nation of laws and bravery, or a nation of cowards and expedience.

gryphon202 on February 8, 2011 at 10:49 PM

He and obama study the constitution in order to find ways to tear it down.

tinkerthinker on February 8, 2011 at 10:49 PM

canopfor on February 8, 2011 at 10:36 PM

betsyz on February 8, 2011 at 10:46 PM

betsyz:So much for being qualified for what,I don’t know!:)

canopfor on February 8, 2011 at 10:49 PM

audiculous on February 8, 2011 at 10:44 PM

liberal

jaime on February 8, 2011 at 10:48 PM

jaime:Progressive!

canopfor on February 8, 2011 at 10:50 PM

My overwhelming belief when I read Tribe earlier today on the Times website is that he wasn’t writing for me or any other loser. He was writing for the Supreme Court justices themselves. He was warning the liberals not to get cute and buy conservative lies and warning the conservatives that they would be attacked without mercy until the end of their lives if they held ObamaCare to be unconstitutional. He hardly bothered to argue the case itself. It was all about laying down a marker for all the justices to see.

I further note that the Times ran an attack piece on Sunday against Scalia and Thomas. I posted a comment on the Times website that day saying that that editorial was the beginning of many attack pieces to “soften the battlefield” and push the Supreme justices toward the Times’ position on ObamaCare. Tribe’s piece then followed on the heels of the Times’ own piece. You can expect many, many more attack and warning pieces as the case proceeds toward the high court. All editorials should be pitched in the trash.

BillCarson on February 8, 2011 at 10:50 PM

A lower court judge’s duty is to apply SCOTUS precedent. If he disagrees with the precedent he should have written an opinion disagreeing with the precedent (while still dismissing the case), or resigned. Simple as that.

crr6 on February 8, 2011 at 10:44 PM

Horsesh1t.

In your world anything can be made law just by piling inference upon inference.

You think the Constitution is like a game of telephone, by the time it rolls around to it’s umpteenth iteration it bears no resemblance whatsoever to the original.

ButterflyDragon on February 8, 2011 at 10:50 PM

crr6 on February 8, 2011 at 10:48 PM
audiculous on February 8, 2011 at 10:45 PM

nothing like a threat to the liberals power over people to get the liberal trolls out from their cages…

the only they get more worked up about is a threat to their holy communion of killing babies.

right4life on February 8, 2011 at 10:50 PM

A law can be novel, and still be covered by legal precedent. Like I said before, nearly every new law is different from every previous law in some way.

crr6 on February 8, 2011 at 10:48 PM

“Laws” are not covered by legal precedence, law student. “Laws” stand on their own. “Legal precedence” is binding in the formation of legal opinions, and stare decisis is not absolute. There is NO LAW on the books before Obamacare that forces people to buy something, so you can take your “precedence” and shove it firmly up your tailpipe — we’re treading entirely new ground here and you know it.

gryphon202 on February 8, 2011 at 10:51 PM

That’s a little game your side plays so that you can rule based on your personal whims. “WOOPS there’s no case like this so I’m just gonna make up law and strike it down.”

projection, irony, or just idiocy?

right4life on February 8, 2011 at 10:52 PM

It’s the molotov terrorists that scare me.

Bishop on February 8, 2011 at 10:47 PM

True.

An Armed community will keep them away. Unlike in any other country, we have a last line of defense against the violent.

katy on February 8, 2011 at 10:52 PM

Okay. I still don’t see where “precedence”

It’s “precedents” not “precedence.” Jesus. Aren’t you the “chapter and verse” guy too?

is a defense for the unconstitutional.

I don’t care if a USDC judge thinks a law is unconstitutional. It’s not his job to ignore or overturn SCOTUS case law.

? That pesky supremacy clause, along with its “…in pursuance thereof…” language seems a little bit more binding to me than any notion of “precedence.”

gryphon202 on February 8, 2011 at 10:47 PM

Do you have any idea how our legal system works? A SCOTUS decision interpreting the Constitution is federal law.

crr6 on February 8, 2011 at 10:53 PM

crr6 on February 8, 2011 at 10:38 PM

You are beyond beyond any belief or sensibility. I know, plenty of people here have give you the benefit, just to toy with you, or somehow think you can be educated. I’ve never, however thought for a moment that you have any grasp of reality, just like that Dave Drywall something. Just won’t happen, never will.

betsyz on February 8, 2011 at 10:53 PM

A law can be novel, and still be covered by legal precedent. Like I said before, nearly every new law is different from every previous law in some way.

crr6 on February 8, 2011 at 10:48 PM

and, in this case, it is different from every previous law and the Constitution.

you walked into it.

ted c on February 8, 2011 at 10:54 PM

projection, irony, or just idiocy?

right4life on February 8, 2011 at 10:52 PM

D: All of the above.

The liberal assumption is that a judge’s opinion on a law’s constitutionality is binding. That is, a judge’s opinion determines a law’s innate constitutionality. That is wrong on so many levels, I’m not even sure where to start deconstructing it all.

gryphon202 on February 8, 2011 at 10:54 PM

projection, irony, or just idiocy?

right4life on February 8, 2011 at 10:52 PM

I’m voting idiocy. It doesn’t even make sense to say someone is “making up law” to strike down a law.

A statement like that makes me think crr6 doesn’t understand the basic separation of powers within our government and the actual role of the Judicial Branch.

ButterflyDragon on February 8, 2011 at 10:54 PM

Do you have any idea how our legal system works? A SCOTUS decision interpreting the Constitution is federal law.

crr6 on February 8, 2011 at 10:53 PM

I know how it works. I also know how it is supposed to work according to the enumerated powers of the judiciary in the constitution. The contrast is stark, and I am absolutely for overturning the status quo.

gryphon202 on February 8, 2011 at 10:55 PM

Horsesh1t.
ButterflyDragon on February 8, 2011 at 10:50 PM

That’s not horsesh*t. It’s how the federal court system works. USDC judges are bound by vertical stare decisis to follow the decisions of the appellate judges in their Circuit, and SCOTUS.

You think the Constitution is like a game of telephone, by the time it rolls around to it’s umpteenth iteration it bears no resemblance whatsoever to the original.

ButterflyDragon on February 8, 2011 at 10:50 PM

We’re a common law nation. If you prefer a different system, I suggest you move to continental Europe.

crr6 on February 8, 2011 at 10:55 PM

jaime:Progressive!

canopfor on February 8, 2011 at 10:50 PM

It’s interesting that liberals now want to use the term “progressive”, which is the same usage that the chinese communists were trying to popularize for communism in the 1950s. You’d think that liberals could come up with something better than recycled 50′s experiments in language.

jaime on February 8, 2011 at 10:56 PM

I don’t care if a USDC judge thinks a law is unconstitutional. It’s not his job to ignore or overturn SCOTUS case law.

Since we’re on to the subject of jobs and the judiciary, it’s not the judiciary’s responsibility to create law where none has existed either. The door swings both ways tootsie. You better buy some kleenex, ya’ll are going down on this one.

ted c on February 8, 2011 at 10:56 PM

We’re a common law nation. If you prefer a different system, I suggest you move to continental Europe.

crr6 on February 8, 2011 at 10:55 PM

No we’re not. If you believe that, you don’t belong in law school.

gryphon202 on February 8, 2011 at 10:57 PM

I’m voting idiocy. It doesn’t even make sense to say someone is “making up law” to strike down a law.

ButterflyDragon on February 8, 2011 at 10:54 PM

….

Seriously?

If a USDC judge completely made up a legal doctrine (let’s call it, the “Butterfly Dragon doctrine”) and struck down a law based on it, wouldn’t they be “making up law” to strike down a law? Remember, common law is “law” too.

crr6 on February 8, 2011 at 10:57 PM

Most of them are relatively harmless morons screaming “revolution!” before heading home in the BMW they got from the parents. It’s the molotov terrorists that scare me.

Bishop on February 8, 2011 at 10:47 PM

Bishop:You get a break,the Molotov Anarchists,are in Egypt,
teaching the other Community Organizers,how to make,
and proper throwing etiquette of said gasoline bott
les!(sarc):)

canopfor on February 8, 2011 at 10:57 PM

Remember, common law is “law” too.

crr6 on February 8, 2011 at 10:57 PM

No it’s not.

gryphon202 on February 8, 2011 at 10:58 PM

We’re a common law nation.
crr6 on February 8, 2011 at 10:55 PM

No we’re not.

gryphon202 on February 8, 2011 at 10:57 PM

LOL.

I know how it works. I also know how I think it is supposed to work according to the enumerated powers of the judiciary in the constitution.

gryphon202 on February 8, 2011 at 10:55 PM

Hey, that’s great.

crr6 on February 8, 2011 at 10:59 PM

canopfor on February 8, 2011 at 10:50 PM
===================================
It’s interesting that liberals now want to use the term “progressive”, which is the same usage that the chinese communists were trying to popularize for communism in the 1950s. You’d think that liberals could come up with something better than recycled 50′s experiments in language.

jaime on February 8, 2011 at 10:56 PM

jaime: Yup,Yes We Can…MMM MMM MMM!!

canopfor on February 8, 2011 at 10:59 PM

I reject the fallacious notion that there is any redeeming quality surrounding Harvard Law School. For every good graduate, there are a helluva lot of miscreants that outweigh them and cause trouble. John Adams would be disappointed.

ted c on February 8, 2011 at 10:30 PM

I agree, of the top companies that got bailed out I want to say that Harvard graduates were controlling the majority of them with the others also being ivy league. Go figure!

bluemarlin on February 8, 2011 at 10:59 PM

nothing like a threat to the liberals power over people to get the liberal trolls out from their cages…

Wait until the threat is made real when ObamaCare is stuffed, one way or another, back into the fetid tomb from which is was taken.

Union jacknoodles parading on the front lawn of a bank executive will be thought of as the good ol’ days when things were easy going.

Bishop on February 8, 2011 at 10:59 PM

Here’s what I think. Not that it matters what I think, but I’m gonna post it anyways.

I think that when the SCOTUS takes up this case there will actually be 2 separate rulings. One on the constitutionality of the mandate and one on whether or not to toss the entire law.

Now perhaps I am a bit too optimistic about the mandate ruling, but I think it will be a 6-3 or 7-2 vote ruling it unconstitutional. I think one or two of the ostensibly leftist justices will realize just how outrageous this congressional overreach is. I think the ruling to toss the entire law will be 4-5 or 5-4 in favor of doing so.

Maybe my faith is a bit misplaced. But I am hoping that even jurists who believe in a “living” constitution do at some point recognize there is a limit on congressional authority.

So if things go the way I predict where does that leave Lawrence Tribe and this editorial? Does it mean that almost the entire court is packed with a bunch of right wing crazies?

NotCoach on February 8, 2011 at 11:00 PM

We’re a common law nation. If you prefer a different system, I suggest you move to continental Europe.

crr6 on February 8, 2011 at 10:55 PM

ccr6:(common law nation)Thats Common Sense right there!!

canopfor on February 8, 2011 at 11:00 PM

Remember, common law is “law” too.

crr6 on February 8, 2011 at 10:57 PM

No it’s not.

gryphon202 on February 8, 2011 at 10:58 PM

LOL.

Well on that note, I’m going to depart to do some reading on the business judgment doctrine, which according to gryphon, is not actually law.

crr6 on February 8, 2011 at 11:01 PM

The nut doesn’t fall far from the tree.

hawkman on February 8, 2011 at 11:02 PM

canopfor on February 8, 2011 at 10:57 PM

Those terrorist scum were here too, they planned to strike in Minneapolis during the 2008 RNC convention. Sadly, I think similar acts will appear when ObamaCare is thrown down; leftists don’t like it when their utopian visions are rejected.

Bishop on February 8, 2011 at 11:04 PM

Race baiting: the shameless variety

BHO Jonestown on February 8, 2011 at 11:05 PM

Canopfor…

The love of my life….not to be exotic nor erotic. YOU make me ashamed, not only with your wide breathe, worldwide knowledge of history, but YOU are so up-to-date. I am shocked. I am embarrassed by the width of ignorance that encompasses this once great nation of individualism and thinkers. I often feel you are carrying-on a one-man band of sentimentality of what once was admired, but now scorned. I feel beneath you. You care so much and have such a wide range of knowledge. I adore you.

betsyz on February 8, 2011 at 11:08 PM

It’s “precedents” not “precedence.” Jesus.

crr6 on February 8, 2011 at 10:53 PM

You lose.

MadisonConservative on February 8, 2011 at 11:08 PM

What’s the most distressing is how far squirrel, Marxian professors have gone.

If the country has any chance for a return to sanity the education system has to be restocked.

Speakup on February 8, 2011 at 11:08 PM

BillCarson on February 8, 2011 at 10:50 PM

Dead right. That is entirely what it’s about.

rrpjr on February 8, 2011 at 11:10 PM

c

rr6 on February 8, 2011 at 10:57 PM

If you feel so confident in your position that the SC could only find that O-care is constitutional under with existing CC of NPC precedent, then why exactly are you here? Surely the nine wise men and women of the SC will see it your way in the end if what you say is correct. So again I ask, why do you come here to argue what, at least in your mind, is a lost effort to overturn what must surely come down on the side of settled law?

Does the fact that you’re a T14 attendee not provide you with enough of an ego boost that you feel the need to slum around here in order to further inflate – what must surely be on overly inflated – ego? As someone in the know, I would advise you to spend less time on message boards among the unwashed heathens and maybe a bit more time considering how to conceal your unchecked ego when in the presence of your future employer. Nothing is more dangerous to unsuspecting clients as a newly minted attorney and few things are more annoying that a noob with an attitude.

volnation on February 8, 2011 at 11:15 PM

crr6

I don’t know the game here, but what is the deal with EVEN ONE WAIVER? Explain.

betsyz on February 8, 2011 at 11:18 PM

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