June 30, 2011

Sixth Circuit Was More of a Split Decision Than First Advertised
— Ace

The ruling was 2-1, two upholding, one dissenting, and urging the law be struck as unconstitutional.

But within that 2, the two judges were not of the same mind. The Democrat appointed judge thought the mandate was just peachy.

The Republican appointee who joined with him in the ruling, but wrote separately in a concurrence, seems ambivalent. His own concurrence seems to say that given the current ultra-liberal, virtually-no-limits jurisprudence on the Commerce Clause, this new power grab would probably pass muster.

But, he writes: perhaps it's time for a reconsideration of that "virtually no limits" reading of it.

That brings me to the lingering intuition — shared by most Americans, I suspect — that Congress should not be able to compel citizens to buy products they do not want. If Congress can require Americans to buy medical insurance today, what of tomorrow? Could it compel individuals to buy health care itself in the form of an annual check-up or for that matter a health-club membership? Could it require computer companies to sell medical-insurance policies in the open market in order to widen the asset pool available to pay insurance claims? And if Congress can do this in the health-care field, what of other fields of commerce and other products?

I suppose this just means, as we've always known, that the Supreme Court will have to rule on this.

One thing for Justice Switch-Hitter to consider is the untrammeled breadth of the claim of federal power offered by those supporting ObamaCare.

They are offering Kennedy a stark decision: Either bless this and confess there are virtually no limits on federal power whatsoever, at least according to those who supposedly interpret the Constitution, or start imposing some limits.

More... Critical Condition has more quotes.

More from Sutton's ambivalent "concurrence."

At one level, past is precedent, and one tilts at hopeless causes in proposing new categorical limits on the commerce power. But there is another way to look at these precedents—that the Court either should stop saying that a meaningful limit on Congress’s commerce powers exists or prove that it is so. The stakes of identifying such a limit are high.

I love that. Either stop pretending there are limits, or announce the limits.


Ilya Somin calls this "an exercise in overzealous judicial deference." That is, Sutton is very nearly screaming "This makes no damn sense and is offensive to the Constitution," but then says, "But these are my marching orders, from both Congress and the muddled mess of past court decisions, so march I shall."

If it's unconstitutional a judge is supposed to say so.

Conservatives favor judicial deference, sure -- but they are not supposed to favor it when doing so would result in reading out virtually all limits on Congressional power, a posture which is clearly unconstitutional and hence owed no deference or respect.

Update: I edited out another quote by Sutton, which is a bit of a jumble. But see the link for the quote.


Posted by: Ace at 09:25 AM | Comments (109)
Post contains 519 words, total size 4 kb.

1 People like this vacillating Republican appointee judge will get a lot of us killed.

People need to sh_t or get off the pot

Posted by: SantaRosaStan, , petering out at June 30, 2011 09:28 AM (UqKQV)

2

Shep Smith mocked the whole "Individual Mandate unconstitutional" argument yesterday.

For a dick, he's really a douche bag.

Posted by: Hussein the Plumber at June 30, 2011 09:29 AM (jx2j9)

3 Suckas...

Posted by: Elena Kagan at June 30, 2011 09:29 AM (e2VMT)

4 If I'm concerned about something, I act accordingly, I don't pass the fucking buck.

Posted by: Dr Spank at June 30, 2011 09:30 AM (k0TKJ)

5 For a dick, he's really a douche bag. Can I use that?

Posted by: Mark Halperin at June 30, 2011 09:33 AM (FcR7P)

6 That a Republican Appointee did this is not surprising.  The GOP has treated the appointment of judges as a threat to comity while the left has recognized it is a means to legislate.


Posted by: Bevel Lemelisk at June 30, 2011 09:33 AM (FkKjr)

7 It's time for a 'reconsideration' of Many Things.   Many, many things.....

Communism fails, after murdering millions of their own citizens.

Socialism fails, after bankrupting and gelding most of their citizens

==Govt-regulated capitalism prospers, until the government and regulation become too powerful and intrusive.

therefore...........if communists and their socialist aschleckers try to take over a govt-regulated capitalist system, they should be stopped--by any means necessary


Posted by: SantaRosaStan, , petering out at June 30, 2011 09:34 AM (UqKQV)

8 That brings me to the lingering intuition — shared by most Americans, I suspect — that Congress should not be able to compel citizens to buy products they do not want. Fucking read the Constitution. All you have left is a "lingering intuition" from your education?

Posted by: t-bird at June 30, 2011 09:36 AM (FcR7P)

9 I'm sure I *should* know the answer to this question, but I don't, so I hope someone smarter than I am can tell me.  What does the 6th Circuit's decision mean in regards to the 11th Circuit's hearing on Obamacare?  Will it impact it at all, or will the 11th Circuit decide on it's own regardless of what the 6th Circuit ruled?

Posted by: Call me Clueless at June 30, 2011 09:36 AM (SCwaH)

10 I've said it before and I'll say it again: "Stare decisis" is Latin for "perpetuating stupidity."

These idiot judges have too much respect for other idiot judges.  Here's a clue: The Warren court got a lot of things wrong -- yes, even with good intentions. They left a lot of time-bombs in the law.  Defuse them, don't keep setting them off.

Posted by: AmishDude at June 30, 2011 09:36 AM (T0NGe)

11 --His own concurrence seems to say that given the current ultra-liberal, virtually-no-limits jurisprudence on the Commerce Clause, this new power grab would probably pass muster.

So ... he's saying that the Constitution has been ruled obsolete (as a document detailing the limits of central government is useless in a nation with an unlimited central government) and therefore he has to go along and agree that it's obsolete and meaningless ... but we should think about reinterpreting it back to having a smidgeon of meaning.

Weak tea, by me.

Posted by: progressoverpeace at June 30, 2011 09:37 AM (G/MYk)

12 They'll probably call for a en banc decision before going to the Supremes unless the Suprmes go with the other cases first.

When I saw this I thought what is this a libtard court but I saw 2-1 decision and thought yeah, 2 Clinton appointees but I guess not.

Posted by: Vic at June 30, 2011 09:37 AM (M9Ie6)

13 In the future, everyone will be anally violated by the Commerce Clause for 15 minutes.

Posted by: Andy Warhol at June 30, 2011 09:37 AM (GGEUV)

14 So now Liberty's torch is in Anthony Kennedy's hands? Hey, good game, America. Way to hustle out there. We'll get 'em next time. ***pats America on ass***

Posted by: Empire of Jeff at June 30, 2011 09:37 AM (lbo6/)

15

14 So now Liberty's torch is in Anthony Kennedy's hands?

The Universe yet again plays a cruel joke on humanity. 

Posted by: Kratos (Ghost of Sparta) at June 30, 2011 09:39 AM (9hSKh)

16 You will bow down to me.

Posted by: The Commerce Clause at June 30, 2011 09:39 AM (FkKjr)

17 I've said it before and I'll say it again: "Stare decisis" is Latin for "perpetuating stupidity."

More than that, it was NEVER intended to apply to Con Law. Stare Decisis was developed for The Common Law where no written law existed. It was not originally supposed to apply to any "written" law at  all.

Just one more thing Ted Kennedy preached about constantly and was wrong.

Posted by: Vic at June 30, 2011 09:39 AM (M9Ie6)

18 or will the 11th Circuit decide on it's own regardless of what the 6th Circuit ruled?

Posted by: Call me Clueless at June 30, 2011 02:36 PM (SCwaH)

yes and no.  Their written opinion will likely be a masterpiece of obfuscation

Posted by: SantaRosaStan, , petering out at June 30, 2011 09:40 AM (UqKQV)

19 16 You will bow down to me.   *insert General Zod clip here*   *or this little clip from the Oscar-worthy film Masters of the Universe*
 

Posted by: Kratos (Ghost of Sparta) at June 30, 2011 09:42 AM (9hSKh)

20 Either bless this and confess there are virtually no limits on federal power whatsoever, at least according to those who supposedly interpret the Constitution, or start imposing some limits.

I don't think this requires imposing limits, just recognizing the ones they've been ignoring for so long

Posted by: Edgar Bergen at June 30, 2011 09:43 AM (MMC8r)

21 Limits on Federal power?

Posted by: Charlie Gibson at June 30, 2011 09:43 AM (FcR7P)

22 The 11th Circuit is not at all bound by the 6th. So, the 11th will do its' own thing. If it differs from the 6th's decision, then one of the primary rationales for Supreme Court jurisdiction kicks in--a split among the circuits. Yet, even if the 11th goes along with the 6th, the Supremes can still take up the decisions and render their own opinion.

Posted by: Dave at June 30, 2011 09:43 AM (Xm1aB)

23

14 So now Liberty's torch is in Anthony Kennedy's hands?

The Universe yet again plays a cruel joke on humanity.

Posted by: Kratos (Ghost of Sparta) at June 30, 2011 02:39 PM (9hSKh)

Yeah, makes about as much sense as the North Koreans being in charge of the UN DisArmament Council...

And Libya being head of the Human Rights Coucil...

And a Known Tax Cheat being charge of the IRS...

sometimes, you just can't make this stupid shit up...

Posted by: Romeo13 at June 30, 2011 09:44 AM (NtXW4)

24 *insert General Zod clip here*

KNEEL BEFORE CLAUSE!

Posted by: The Commerce Clause at June 30, 2011 09:44 AM (FkKjr)

25
dicks acting stupidly

Posted by: Dr. Varno at June 30, 2011 09:44 AM (QMtmy)

26 Oh, it will be some sweet irony and long, deserved justice if the Obamacare case leads to reconsideration of underlying precedent on the Commerce Clause. That's a fantasy that smells like butterscotch pudding in the end.

Posted by: Jean at June 30, 2011 09:44 AM (WkuV6)

27

This is about the time I start rooting for President Rubio/Bachmann/Cain/Perry/Genuine Constitutional Conservative of your choice to pack the court with true conservative justices who can actually read the plain wording of the document and properly interpret its meaning, aided by a veto-proof Congress to be elected in 2012.

This shit has gone on long enough. When the SCOTUS ruled against the very simple language of the Fourteenth Amendment, we were screwed. It's been downhill ever since.

Posted by: BackwardsBoy at June 30, 2011 09:44 AM (d0Tfm)

28 I think it would be acgood idea if the GOP congress passed a series of silly laws like the mandate in order to draw attention to this... For example... make it a law that all Americans spend 20 minutes a day meditating .

Posted by: Serious Cat at June 30, 2011 09:45 AM (nwCkr)

29 He's a modern republican, or post-modern or whatever.  Make conservative sounding noises while voting for liberal bullshit.

Posted by: Bob Saget at June 30, 2011 09:47 AM (F/4zf)

30 This is why the repeal of ObamaCare MUST be attached to any raising of the debt limit.  MUST.  There is nothing even nearly as important.

Posted by: progressoverpeace at June 30, 2011 09:47 AM (G/MYk)

31 Kennedy will be the seventh vote for the mandate, not the fifth.

Posted by: oblig. at June 30, 2011 09:48 AM (xvZW9)

32

...make it a law that all Americans spend 20 minutes a day meditating .

Mandatory Valu-Rite consumption. 8 oz./day.

Straight up, no chaser.

Posted by: BackwardsBoy at June 30, 2011 09:49 AM (d0Tfm)

33 Way to kick the can up to the Supreme Court, Justice Dithers.

Posted by: logprof at June 30, 2011 09:51 AM (BP6Z1)

34 see update; there's another juicy quote.

Posted by: ace at June 30, 2011 09:53 AM (nj1bB)

35

see update

 

No, thanks.

Posted by: garrett at June 30, 2011 09:54 AM (XOK/H)

36 If it's unconstitutional a judge is supposed to say so.


That's above my pay grade.

Posted by: Judge Sutton at June 30, 2011 09:55 AM (BP6Z1)

37 see update; there's another juicy quote.

It's almost like he's challenging the SCOTUS to rein this shit in...

Posted by: nickless at June 30, 2011 09:55 AM (MMC8r)

38

Hate to say it, but this Judge DID rule based on prior Precedent...

When the Supremes rule that a Farmer cannot grow feed, for his OWN chickens, on his OWN Land, without somehow falling under the INTERSTATE Commerce Clause, then it is all encompassing according to that Precedent.

After all, they WERE controlling his LACK of Commerce in that case.

Its is however, a very flawed Precedent.

Posted by: Romeo13 at June 30, 2011 09:55 AM (NtXW4)

39 You know, as a judge, when you start disagreeing with your own concurrences *as you make them*, it's time to hang up the robe.

Seriously.

Posted by: Merovign, Dark Lord of the Sith at June 30, 2011 09:55 AM (bxiXv)

40 @35 Upon further consideration, this judge knows that Supreme Court review of Obamacare is going to happen. He has brilliantly placed the core issue right in the Supreme's lap. They will not be allowed to now squirm away from the issue.

Posted by: Dave at June 30, 2011 09:56 AM (Xm1aB)

41 @37 I agree.

Posted by: Dave at June 30, 2011 09:56 AM (Xm1aB)

42

But aren't Federal Judges supposed to follow what the Supreme Court put down?

In other words, he's saying "Hey the Supreme Court has basically shown there is no limit at all to the Commerce Clause. So I'm going to say that this passes muster because MY BOSSES have told me so."

Isn't that what Federal Judges are supposed to do? Follow what they believe the Supreme Court has told them?

Posted by: BoB at June 30, 2011 09:56 AM (+c0cJ)

43 ..make it a law that all Americans spend 20 minutes a day meditating . Mao had his Little Red Book. Obama is as accomplished an author as he is a President. Can't wait to get my own copy of "Obama's Stumbling Fucksterisms".

Posted by: t-bird at June 30, 2011 09:57 AM (FcR7P)

44 They will not be allowed to now squirm away from the issue.

Posted by: Dave at June 30, 2011 02:56 PM (Xm1aB)

Hah!  We could flip a coin on C-Span to make our decision and we'd face no consequences.

Posted by: The Supreme Court at June 30, 2011 09:57 AM (FkKjr)

45 If it's unconstitutional a judge is supposed to say so.

Yeah, pretty much.  Plain language and original intent say it is.  Besides, the 10th amendment supercedes the interstate commerce clause, so there's that.

There is way too much fecklessness here. It's like he never wants to ever declare anything to be unconstitutional.

But this shows the poison of law schools and precedents.  These dumb judges can't think for themselves, they need somebody else to think for them.

Posted by: AmishDude at June 30, 2011 09:58 AM (T0NGe)

46

You know, as a judge, when you start disagreeing with your own concurrences *as you make them*, it's time to hang up the robe.

If a thing can't possibly be done, then it must be done impossibly.

The question is, how?

Posted by: garrett paraphrasing Dirk Gently at June 30, 2011 09:58 AM (XOK/H)

47

Don't you all just love living in a country where the media decides which are the details we need not concern our pretty little heads with?

I hope Palin's movie is a signal that she is going to jump in and run a Kick-the-MSM-in-the-Balls campaign, because I have the feeling that there is a vast reservoir of resentment against the media that is bigger then even we imagine.  Mine is already so bad that I can barely avoid going Tourettesville when I read the newspaper.

Posted by: sherlock at June 30, 2011 09:58 AM (U+goV)

48 Perhaps he's taking the position that only the SCOTUS can overrule bad law from past SCOTUS's.

Posted by: nickless at June 30, 2011 09:59 AM (MMC8r)

49 OT, TCM has a movie coming on at 4:30 called "Border Incident", 1949, about U.S. and Mexican border setting out to smash a vicious illegal immigration ring. Huh, movie industry sure has changed.

Posted by: nerdygirl at June 30, 2011 09:59 AM (R/hMr)

50

@7: "if communists and their socialist aschleckers try to take over a govt-regulated capitalist system, they should be stopped--by any means necessary"

Oooooh....I'm gonna have to go ahead and ahhhhhh....disagree with you there.  See, ahhhhhhh....most of us here on the Right are basically cool with socialism, 'kay? Yeah.  So, while we do allow tepid voting to slow its implementation, we don't really actually do anything to stop it.

Besides, we can't ahhhhhhh....sink to their level.  We know they are impressed with our manners and politesse.  And when they ahhhhhhh....kill us in the extermination camps, we will die holding the moral high ground.  Soooooo, yeah.

Oh, and remember: next Friday... is Hawaiian shirt day. So, you know, if you want to, go ahead and wear a Hawaiian shirt and jeans.

Posted by: Bill Lumbergh at June 30, 2011 09:59 AM (xy9wk)

51

Posted by: Bill Lumbergh at June 30, 2011 02:59 PM (xy9wk)

And besides.... Socialists put on the BEST Cocktail parties... but you have to be kewl to get invited...

Posted by: Meaghan McCain at June 30, 2011 10:01 AM (NtXW4)

52 Hate to say it, but this Judge DID rule based on prior Precedent... Sounds more like he searched for any previous rulings that seemed to support this one. Couldn't he have easily done the same for rulings that did NOT support unlimited power? Wouldn't it be easier to read the Constitution and see for yourself if there is a simple, original answer?

Posted by: t-bird at June 30, 2011 10:01 AM (FcR7P)

53 Ace, I question your use of the word "juicy." New categorical limits on the commerce power? What the fuck is this asshole on about? That's twice he's said "Wow. This individual mandate is one fucked-up power grab. If only there was someone with the authority to strike it down... Oh, sweet! Gaga's on Leno! I'm Audi 5000, y'all."

Posted by: Empire of Jeff at June 30, 2011 10:02 AM (lbo6/)

54 Pretend for a second that 99% of the American public will never read this ruling from the Sixth Circuit.

OK, now what bearing does this have on anything exactly?

Posted by: ASK-21 at June 30, 2011 10:03 AM (19p8d)

55 Hate to say it, but this Judge DID rule based on prior Precedent...

Precedent is crap.  It's turtles upon turtles.  Fruit from the poisoned judge.  If plain language or original intent is informative, that needs to be used first.

Posted by: AmishDude at June 30, 2011 10:03 AM (T0NGe)

56

When the Supremes rule that a Farmer cannot grow feed, for his OWN chickens, on his OWN Land, without somehow falling under the INTERSTATE Commerce Clause, then it is all encompassing according to that Precedent.

After all, they WERE controlling his LACK of Commerce in that case.

Its is however, a very flawed Precedent.

Posted by: Romeo13 at June 30, 2011 02:55 PM (NtXW4)

I have to disagree.  The individual mandate even far exceeded that ruling in scope.  The essence of the individual mandate argument came down to:

The government can force hospitals to treat all people.  This causes people to not get insurance, since they have no worry about getting treatment.  For young, healthy people, this generally a very good bet to make.  But, the government wants to expand the government-funded treatment of the lower to middle classes, so it needs to suck money out of these young people and others (who might rationally choose not to waste money on health insurance, as the odds are very much in their favor) in order to fund its own un-Constitutional expenditures on individual health insurance and wants to force every American to buy from only one of the government's own certified insurance programs (providing lots of crap that people don;t need, in order to get more money into the insurance companies to waste on Medicaid - indirectly, of course, through pricing and remittance levels ... all to be handled in regulations).

Because of this Rube Goldberg machine, this court has come to the decision that people being forced to buy insurance to support this un-Constitutional federal program is Constitutional. 

You have to get 8 layers into this shit before the Commerce Clause is even applicable.

Posted by: progressoverpeace at June 30, 2011 10:03 AM (G/MYk)

57 The government can force hospitals to treat all people.  This causes people to not get insurance, since they have no worry about getting treatment.  For young, healthy people, this generally a very good bet to make.  But, the government wants to expand the government-funded treatment of the lower to middle classes, so it needs to suck money out of these young people and others (who might rationally choose not to waste money on health insurance, as the odds are very much in their favor) in order to fund its own un-Constitutional expenditures on individual health insurance and wants to force every American to buy from only one of the government's own certified insurance programs (providing lots of crap that people don;t need, in order to get more money into the insurance companies to waste on Medicaid - indirectly, of course, through pricing and remittance levels ... all to be handled in regulations).

and it's regulated by...Kevin Bacon!

Posted by: AmishDude at June 30, 2011 10:05 AM (T0NGe)

58 Shep Smith mocked the whole "Individual Mandate unconstitutional" argument yesterday.

I call that bold talk, from a one eyed bellhead.

Posted by: Chariots of Toast at June 30, 2011 10:05 AM (XyjRQ)

59
Dick in a box song?

Obama in a box.

Posted by: soothie at June 30, 2011 10:05 AM (sqkOB)

60 I like Rubio -- a lot!!

But he is not a natural born citizen.  Do we have laws in this country?  You know, ones that matter?

Posted by: elspeth at June 30, 2011 10:05 AM (0AkWH)

61 OT, breaking news: Greg Gutfeld takes over Beck's slot.  Sort of:

http://tinyurl.com/3wjan28

Posted by: AmishDude at June 30, 2011 10:07 AM (T0NGe)

62 Oh, #61 is a hat tip to @andylevy

Posted by: AmishDude at June 30, 2011 10:08 AM (T0NGe)

63 I like Rubio -- a lot!!

But he is not a natural born citizen.  Do we have laws in this country?  You know, ones that matter?

Posted by: elspeth at June 30, 2011 03:05 PM (0AkWH)

Umm...what?  He was born in Miami.

Posted by: Tami at June 30, 2011 10:08 AM (X6akg)

64

Posted by: progressoverpeace at June 30, 2011 03:03 PM (G/MYk)

The key question though, in this case, is can the Federal Governemnt force you to buy somthing.

The Supremes told a Farmer, that he must destroy his home grown Chicken feed, and thus BUY it off the market, because under Commerce clause, his not buying it would affect prices, and quotas, which the US Congress had mandated UNDER their Commerce Clause power.

Thus, they Forced said Farmer into Buying somthing... AND illegaly took his property (destroyed the feed) without due compensation.

As I said... REALLY bad law and precedent... but that is what the Supremes did, so that is what this Judge had to work with.

Posted by: Meaghan McCain at June 30, 2011 10:08 AM (NtXW4)

65

Posted by: progressoverpeace at June 30, 2011 03:03 PM (G/MYk)

 

New House Rules:

you MUST play at the Blackjack Table.

 It doesn't matter what you are holding or what the dealer is showing -

you MUST double down.

Try not to Win. 

We would find it, upsetting.

Good Luck! and Enjoy your stay.

 

Posted by: Welcome to Uncle Sam's Casino at June 30, 2011 10:09 AM (XOK/H)

66 60 I like Rubio -- a lot!!

But he is not a natural born citizen.

Yes he is.  That bullshit that birthers (full disclosure, I was an "Obama is an ass for not releasing it and has something to hide"-style birther) were pulling to try to move the goalposts was just crap.  A "natural born citizen" is one who does not need to be naturalized.  Period.  End of discussion.  WorldNetDaily is not a controlling legal authority.

Posted by: AmishDude at June 30, 2011 10:10 AM (T0NGe)

67 WND is the National Enquirer before they got good at busting Horney politicians.

Posted by: Oldsailor's poet at June 30, 2011 10:11 AM (NtTkA)

68 64

Small difference, though.  That farmer could have sold his chickens, too.  He was not required to buy feed.

The Mandate requires purchase or penalty for all people just for being alive.

Posted by: nickless at June 30, 2011 10:12 AM (MMC8r)

69

The Mandate requires purchase or penalty for all people just for being alive.

 

Wonder how they'll feel about home births if this thing sticks.

Posted by: garrett at June 30, 2011 10:14 AM (XOK/H)

70 In the future you will be required to purchase: Mao type bicycles for transportation. Tickets to government diversity training seminars 50% of food purchase to be organic Burial insurance Anime porn just because

Posted by: Alabaster Jones at June 30, 2011 10:17 AM (GIeoW)

71 The Mandate requires purchase or penalty for all people just for being alive.

Posted by: nickless at June 30, 2011 03:12 PM (MMC8r)

Unless you have an exemption, or are Mormon, or 7th day Advent, or Moslem, or... (have to read up, but there are many who do not fall under the mandate).

And Actualy, I'd use THAT argument to further destroy the mandate... its a STARK case of the Congress passing a law which favors one relgion, over another.

Posted by: Romeo13 at June 30, 2011 10:17 AM (NtXW4)

72 Perhaps he's taking the position that only the SCOTUS can overrule bad law from past SCOTUS's.

Well, since Marbury v Madison that is true. Or at least they say so.

Posted by: Vic at June 30, 2011 10:17 AM (M9Ie6)

73 The Framers took the word "compel" quite literally and used it sparingly. I can't remember the exact reference but even in Madison's notes the word compel is somewhat equated with a tyrannical act except when associated with loyalty to the basic union of our Republic.

They (the Framers) never intended any citizen to be compelled to purchase anything and it's about time the judiciary stopped making things up to suit their political views and serve their political masters. They have invented rights and laws far outside the intent of our Founders wildest dreams.

The role of the judiciary in the Constitution in practically zero for a reason. And that reason is their tyrannical usurpation and corruption of democratic process was easily and rightly predicted. They are an unelected branch and don't serve the people, they serve themselves like the kings our Founders resoundingly despised.

This nonsense that the Framers knew changes to laws and rights by the judiciary was a natural progression necessary for our country's survival is pure bunk. They created a specific process for amending the Constitution which ensures a majority approves of such changes. But it has been obfuscated by a minority that seeks to impose their tyrannical ideology upon us without our consent or approval. And this latest intrusion by Obama is proof their intent is malicious and destructive. It also exposes liberal judges for what they really are; kings in robes that want to rule whimsically by fiat and force of hand.

When will we say- enough?

Posted by: Marcus at June 30, 2011 10:18 AM (CHrmZ)

74 Forget it, Amish. It's BirtherTown.

Posted by: ace at June 30, 2011 10:22 AM (nj1bB)

75 OT, breaking news: Greg Gutfeld takes over Beck's slot.  Sort of:

Juan Williams? Better than Shep I suppose.

Posted by: Retread at June 30, 2011 10:24 AM (G+7cD)

76

Thus, they Forced said Farmer into Buying somthing... AND illegaly took his property (destroyed the feed) without due compensation.

As I said... REALLY bad law and precedent... but that is what the Supremes did, so that is what this Judge had to work with.

Posted by: [Romeo13] at June 30, 2011 03:08 PM (NtXW4)

There's a difference.  The government disallowed the private growing.  They didn't actually FORCE him to buy anything, just prohibited him from supplying himself with it.

For the individual mandate people are actually FORCED to buy health insurance (and mostly bloated, cadillac type feral government approved insurance) or be charged and investigated by the IRS.

Posted by: progressoverpeace at June 30, 2011 10:24 AM (G/MYk)

77 Ace, the link is to a piece by Ilya Shapiro, not Ilya Somin. You're welcome.

Posted by: nick at June 30, 2011 10:26 AM (mX+Ab)

78 Forget it, Amish. It's BirtherTown.

Posted by: ace at June 30, 2011 03:22 PM (nj1bB)

Like it or not, the question of what constitutes a Natural Born Citizen, with respect to dual citizenship and parental extra-citizenship issues has not been resolved.  

Given the prevalence of such Americans, one would thinkt here would be an interest in having the Court rule one way or another on it, or a Constitutional amendment detailing exactly what the story is ... but, until then it's an open question that many of us have pretty firm ideas about and those on the other side never seem to want to have the problem actually resolved, just waving it off, instead.

Posted by: progressoverpeace at June 30, 2011 10:27 AM (G/MYk)

79 Looks like a new amendment is needed to explain to the 'tards in .gov what the limits to that article are.

Weights and measures, and forbidding intra-state tariffs and restrictions ( like California's border fruit police ) come to mind as a correct implentation of federal laws.

Forbidding federal meddling once a good is inside a state and stays there is another ( no more regulation of locally sold raw milk, or farmers who raise their own pig feed, for example ).

Any suggestions for a good bulletproof wording?

Posted by: Kristopher at June 30, 2011 10:27 AM (JLIMw)

80 74 Forget it, Amish. It's BirtherTown.

Posted by: ace at June 30, 2011 03:22 PM (nj1bB)

She's your foreign-born mother, your American-born sister, your foreign-born mother...

Posted by: AmishDude at June 30, 2011 10:28 AM (T0NGe)

81

She's your foreign-born mother, your American-born sister, your foreign-born mother...

Posted by: AmishDude at June 30, 2011 03:28 PM (T0NGe)

*SLAP*

Posted by: Tami at June 30, 2011 10:30 AM (X6akg)

82

She's your foreign-born mother, your American-born sister, your foreign-born mother...

Posted by: AmishDude at June 30, 2011 03:28 PM (T0NGe)

Foreign-born parents are not the issue.  Whether they were American citizens at the time of birth of the child is the issue, along with ancillary problems concerning dual-citizenship of parents at the time of birth of the child (though naturalized American parents would not have this problem since they would have had to renounce any outstanding citizenships, etc. before becoming an American).

Posted by: progressoverpeace at June 30, 2011 10:31 AM (G/MYk)

83 66 60 I like Rubio -- a lot!!

A "natural born citizen" is one who does not need to be naturalized.  Period.  End of discussion.  WorldNetDaily is not a controlling legal authority.

But...but...you don't understand!  Rubio's parents weren't naturalized when he was born here, ERGO he has a "dual allegiance" to the US and Cuba.  NEVER MIND that his family fled Cuba and the Castro regime.   

(to believe that nonsense you need to be crazy as a rat in a Harlan county meth lab)

Posted by: Jim Sonweed at June 30, 2011 10:34 AM (FVhEi)

84 (to believe that nonsense you need to be crazy as a rat in a Harlan county meth lab)

Posted by: Jim Sonweed at June 30, 2011 03:34 PM (FVhEi)

So ... Chester Arthur was as crazy as a rat in a Harlan county meth lab?  Is that your point?

It's only recently that American dual citizenship has even been accepted.  It was a non-existent category at the time of the Constitution and the writing of "natural born citizen", but you think the new category automatically fits right in, there, even as the Founders had tried to hammer home the dangers of foreign influence in the Executive, over the army and the idiocy of dual alliegance?

You're a bright one.


John Jay, in his July 1787 letter to George Washington,

Dear Sir,

Permit me to hint whether it would not be wise and seasonable to provide a strong check to the admission of foreigners into the administration of our national government ; and to declare expressly that the command in chief of the American army shall not be given to, nor devolve on any but a natural born citizen.

I remain, dear sir,

Your faithful friend and servant,

John Jay

Posted by: progressoverpeace at June 30, 2011 10:40 AM (G/MYk)

85

@42: "Isn't that what Federal Judges are supposed to do? Follow what they believe the Supreme Court has told them?"

Yes.  Inferior courts have to follow the rulings of superior courts.

Posted by: Fa Cube Itches at June 30, 2011 10:58 AM (xy9wk)

86 Progress: McCain was born on Panamanian territory to two American citizens.   Therefore he had "dual allegiance" at birth.   Why was he eligible to run for POTUS (as proclaimed in a non-binding Senate resolution) but Rubio, who was born here, is not?

Please address that question!!!!!

Face it: your claim is nothing more than an idiosyncratic application of reasoning that applied 200 years ago, when we were a new country fearful of foreigners coming here to subvert it.    We've had fifty million people emigrate to the US since, and we pride ourselves as being a "nation of immigrants". So the fears of the late 18th/early 19th centuries are well behind us, and---as you say yourself---dual citizenship is common today.  

AND there is absolutely no American case law (as opposed to the vague wording of the Constitution) to support your position.   If McCain was eligible, with his "dual allegiance" and birth on foreign soil, so his Rubio, who I'm sure has no "allegiance" to Castro or Cuba.

(If you want to make the "Manchurian Candidate" argument, go right ahead.)

btw:  Chester A Arthur remained president, did he not?  Or was he impeached for being ineligible?  Were the bills he signed into law invalidated? 

Posted by: Jim Sonweed at June 30, 2011 10:58 AM (FVhEi)

87

@73: "When will we say- enough?"

How's the Twelth of Never look on your calendar?

Posted by: Fa Cube Itches at June 30, 2011 11:03 AM (xy9wk)

88 The real question is this:

If Justice Weathervane decides the federal government has all the power the current wielders claim it has, will you comply?

Posted by: Ken at June 30, 2011 11:04 AM (fFh95)

89 Progress: McCain was born on Panamanian territory to two American citizens.   Therefore he had "dual allegiance" at birth.   Why was he eligible to run for POTUS (as proclaimed in a non-binding Senate resolution) but Rubio, who was born here, is not?

Please address that question!!!!!

I have addressed the McCain issue many times, as I have been a pretty active participant in these eligibility threads for a very long time (since the very beginning over at HotAir).  McCain's Constitutional eligibility should have been hashed out in court.  To McCain's credit, he supplied any and all information and documentation that was asked of him, in a timely manner, and not just slimy photoshopped images of supposed documents - which is such a raft of shit that I can't believe people accept that crap, regardless of whether they accept what is claimed on the images.

--Face it: your claim is nothing more than an idiosyncratic application of reasoning that applied 200 years ago, when we were a new country fearful of foreigners coming here to subvert it.    We've had fifty million people emigrate to the US since, and we pride ourselves as being a "nation of immigrants". So the fears of the late 18th/early 19th centuries are well behind us, and---as you say yourself---dual citizenship is common today.  

You have just made my point for me.  Thank you.

--AND there is absolutely no American case law (as opposed to the vague wording of the Constitution) to support your position.   If McCain was eligible, with his "dual allegiance" and birth on foreign soil, so his Rubio, who I'm sure has no "allegiance" to Castro or Cuba.

Let it all be officially established, so that we have some actual rules we can follow.  Until then, "natural born citizen" today means what it meant when it was written, someone who has has been an American, and only an American, from birth to the present.

--(If you want to make the "Manchurian Candidate" argument, go right ahead.)

btw:  Chester A Arthur remained president, did he not?  Or was he impeached for being ineligible?  Were the bills he signed into law invalidated? 

Posted by: Jim Sonweed at June 30, 2011 03:58 PM (FVhEi)

Chester Arthur hid/destroyed as much of his documentation as he was able.  Because of this, the rumor got around that he was actually born in Canada.  The truth was that his father was a Brit when he was born.  That was only finally discovered now, with all the hoopla surrounding the Indonesian, I believe.

BTW, Roger Claero was on the ballot for President in something like 6 states and he isn't even an American citizen!  He's Nicaraguan.  He had a green card, though ...

Posted by: progressoverpeace at June 30, 2011 11:11 AM (G/MYk)

90 The Republican appointee who joined with him in the ruling, but wrote separately in a concurrence, seems ambivalent. His own concurrence seems to say that given the current ultra-liberal, virtually-no-limits jurisprudence on the Commerce Clause, this new power grab would probably pass muster.

He did exactly as he was supposed to do. Rule in accordance with current precedent from SCOTUS, which, considering the whole "You can't grow corn on your own property for your own use because, you know, interstate commerce and all" would indicate that congress has essentially unfettered power in the commerce clause.

While simultaneously writing an opinion in concurrence stating that this is the logical conclusion to the line of thinking SCOTUS used in that decision. And given that conclusion, now both inarguable and obvious regarding abuse of government power, perhaps SCOTUS should revisit that thinking and propose a more limiting standard as to what "regulate interstate commerce" really is intended to mean.

Because that was the states argument in the whole corn feed debacle, that the Citizen growing his own corn allowed him to *NOT* participate in interstate commerce and buy feed. That change in participation was an effect, and therefore congress could regulate and control it. And Congress could make laws preventing someone from *NOT* participating. And that is what this is, congress making a law stating you cannot *NOT* participate.

On a personal note if SCOTUS upholds Obamacare, I will personally consider federalism and the Constitution dead, the social contract willfully broken by the Federal Government, and this and all following law pursuant to the regulation of private lives at the federal level as openly subjecting me and my follow citizens. Our system of checks and balances will have, in my mind ,officially and irrevocably failed.

Posted by: MikeTheMoose at June 30, 2011 11:12 AM (0q2P7)

91

Minor v. Happersett – wherein the Supreme Court stated:

The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their [88 U.S. 162, 168] parents. As to this class there have been doubts, but never as to the first. For the purposes of this case it is not necessary to solve these doubts.

 

So, to paraphrase, the Supreme Court, in this decision, said there was reason to 'doubt' if a person born of Foreign Nationals, on American soil, was a "Natural Born Citizen", but did not feel the need to clarify it IN THIS CASE.

And those doubts, as far as I can tell, have never been adjudicated.

As to McCain?  The Senate did weigh in, with a NON BINDING Resolution in his case... but did not even bother to pass an actual law about it... and IF it had ever gone to court, it would have been an interesting case...

IMO we had the First Ever Presidential Election, where we had not ONE, not TWO, but THREE Non Natural Born folks running for President... (there was a guy on the ballot for some Socialist Party who was not even born anywhere near America who was on some ballots).

Posted by: Romeo13 at June 30, 2011 11:12 AM (NtXW4)

92 Any country can grant you Citizenship at any time for any reason. If you never accept or acknowledge that Citizenship you have no dual loyalty. If you could be disqualified for merely being eligible to be a dual Citizen at some point in life, any country could disqualify any candidate by simply awarding Citizenship to them. But in reality Citizenship is not just bestowed it must also be claimed.

Posted by: MikeTheMoose at June 30, 2011 11:24 AM (asIUv)

93 Posted by: MikeTheMoose at June 30, 2011 04:24 PM (asIUv)

Oh ... come on.  That's not how it works.  There are foreign claims of citizenship that we accept, since we make the same.  Outside of that, it would require an action or declaration by the individual to accept what our government would not automatically.

I mean, come on.  That was a weak objection you had.  The idea of marriage, and what we accept from foreigners and foreign nations can be a simple template for you to follow.  Any other nation can declare me married to anyone or anything.  That doesn't mean that I'm married in the eyes of my government.  If I accept that nation's declaration fo my marriage, or I actually applied for it, then my government most certainly WOULD recognicze that marriage (unless it was something insane, like same sex or with four women or something).

By your reasoning, any country can make me a bigamist by declaring me married to someone or two people.  Think about it.

Posted by: progressoverpeace at June 30, 2011 12:00 PM (G/MYk)

94 But first, you will blow me.

Posted by: The 2nd Ammendment at June 30, 2011 12:03 PM (GTbGH)

95 By your reasoning, any country can make me a bigamist by declaring me married to someone or two people.  Think about it.

That was in fact my point. That McCain even if he was eligible to be a dual citizen since he was born in Panama never was by virtue of the fact that he never claimed to be anything other than a Citizen of the US. My broader point was that if you were born a US citizen even if you are eligible to be a dual citizen, you can still be "naturally born" if you never claim an alternate citizenship. Because Citizenship is an affirmative status that must be declared like marriage. Not a passive one that can be merely conferred by a sovereign.

Posted by: MikeTheMoose at June 30, 2011 12:51 PM (0q2P7)

96 Not a passive one that can be merely conferred by a sovereign. 

Posted by: MikeTheMoose at June 30, 2011 05:51 PM (0q2P7)

It is a passive transfer when ones parents hold foreign citizenship - a transfer that we accept.  That's why the oath of citizenship required naturalizing Americans to "absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of whom or which I have heretofore been a subject or citizen;" ... so that there would be no passive transfer of a now non-existent foreign citizenship, in the eyes of our government.


The McCain issue was never adequately addressed and resolved.  The Senate action on it was a total waste, as it meant nothing.  Congress cannot define "natural born citizen".  That can only be done by the Court's interpretation (sadly) or by specification by amendment.  At least McCain didn't ignore challenges to his status and provided anything anyone requested of him.  Still, his case needed to go to court before he should have been allowed on the ballot.  And it should have happened long before the primary really got rolling.  But, America has gotten pretty fat and lazy about these ... details.  They don't want to be bothered.

Posted by: progressoverpeace at June 30, 2011 12:58 PM (G/MYk)

97 Congress cannot define "natural born citizen".  That can only be done by the Court's interpretation (sadly) or by specification by amendment.

Posted by: progressoverpeace at June 30, 2011 05:58 PM (G/MYk)

Let me rephrase that:


Congress cannot declare someone a "natural born citizen".  It also does not have the power to redefine the Constitutional phrase, but the operative barrier in the McCain case was that the determination of whether an individual is a 'natural born citizen' does not fall to Congress and they cannot make anyone a 'natural born citizen' by specific legislation.

The phrase "natural born citizen" is subject to the Court's interpretation because it is base level Constitutional language - a phrase that was generally understood at the time to describe the limits of a well-defined class of citizens - and cannot be changed legislatively.  It is not the Court's prerogative to redefine it (though no one can stop them from doing that, if they so choose) but to lay down what the operative definition of it is, given the class it described when it was written (having not since been affected, the phrase "natural born citizen" by amendment or ruling).

Posted by: progressoverpeace at June 30, 2011 01:14 PM (G/MYk)

98 It is a passive transfer when ones parents hold foreign citizenship - a transfer that we accept.

That transfer is not passive and requires declaration. Your parents must stand up for you and declare you a Citizen by birth.

Posted by: MikeTheMoose at June 30, 2011 01:27 PM (0q2P7)

99

Given the prevalence of such Americans, one would think here would be an interest in having the Court rule one way or another on it, or a Constitutional amendment detailing exactly what the story is ... but, until then it's an open question that many of us have pretty firm ideas about and those on the other side never seem to want to have the problem actually resolved, just waving it off, instead.

Posted by: progressoverpeace

-----------------

That's far different than asserting that the matter is clear and settled, as you and the birthers have done.

This issue will be resolved  via (a) a constitutional amendment clearly defining the qualifications for POTUS, or (b) a Supreme Court decision based on an actual "case or controversy".   The Supremes do not issue advisory opinions, so someone would have to sue to keep Rubio, or Barack, or Jindal or whoever off state presidential ballots on the basis of their ineligibility.

The politics of the latter would be hugely  bad for  the GOP .

If  the Court decided, as I think it would, that "natural-born" must NOW encompass the millions born here to legal immigrants, at least, the birthers would have unnecessarily alienated millions of immigrant voters and their native-born citizen offspring 

Face it:  ain't gonna fly.








Posted by: Mohammed Atta at June 30, 2011 01:44 PM (FVhEi)

100 Fracking sock!  I denounce myself!

Posted by: Jim Sonweed at June 30, 2011 01:46 PM (FVhEi)

101 Posted by: MikeTheMoose at June 30, 2011 06:27 PM (0q2P7)

That's not what the Indonesian had on his own stopthesmears web site (now called fightthesmears), where he had pasted the quote from factcheck:

“When Barack Obama Jr. was born on Aug. 4,1961, in Honolulu, Kenya was a British colony, still part of the United Kingdom’s dwindling empire. As a Kenyan native, Barack Obama Sr. was a British subject whose citizenship status was governed by The British Nationality Act of 1948. That same act governed the status of Obama Sr.‘s children.

Since Sen. Obama has neither renounced his U.S. citizenship nor sworn an oath of allegiance to Kenya, his Kenyan citizenship automatically expired on Aug. 4,1982.”

Go tell the Indonesian that he's smearing himself on his fightthesmear web site.  (The Kenyan citizenship part came a couple of years later, with their independence).  But none of this really matters much, anyway, because no one has ever seen any relevant documents about any of this.  We also know nothing about his nationality status while growing up in Indonesia, being registered at a school that it appears one had to be an Indonesian citizen to attend (registered as a muslim, which was always skipped over, too).

You and I can disagree over the definitions and scopes of these issues, but it is all a waste of time in this case, because the Indonesian never showed any relevant documentation, or even answered simple inquiries to any degree, that would help one to make a determination.  And this is a guy who is infamous for being the most transparent, ridiculous, blatant liar most people have ever seen in national politics - and certainly in the White House.  He lies about everything.  And stupid, obvious lies.  But, people are so quick to take his word on what are very serious and important issues that he has lied about before.  His "own" books were a bunch of fabrications.

Posted by: King Barry The Magnaniminimous at June 30, 2011 01:48 PM (G/MYk)

102 "The McCain issue was never adequately addressed and resolved.  The Senate action on it was a total waste, as it meant nothing.  Congress cannot define "natural born citizen".  That can only be done by the Court's interpretation (sadly) or by specification by amendment. "

-------------------

The problem for you is that McCain provides a hefty counter to your opinion.

His case is not legal precedent, but it's historical precedent, as was the case of Chester A. Arthur.

You  think the Supremes will issue a holding that invalidates McCain's candidacy, as well as Barack's presidency, because both held this "dual allegiance" you keep yammering about?

Lemme boil it down for you:

Barack: born in the US with one immigrant parent,

McCain:  born outside the US, with two citizen parents

You would apparently disqualify both.

Good frackin' luck.


Posted by: Jim Sonweed at June 30, 2011 01:53 PM (FVhEi)

103 That's far different than asserting that the matter is clear and settled, as you and the birthers have done.

Posted by: Jim Sonweed at June 30, 2011 06:46 PM (FVhEi)

No, we haven't.  If you have folowed any of the eligibility threads over the years (here and at most conservative blogs) you would have found that we wanted this eligibility question resolved in court, where it should have been.  That is all.  We have given our opinions that he is ineligible - which is my view on the subject - but it needs the court to rule.  Still.

It was the refusal of the courts to even allow the cases to make their way through - almost all on the bullshit lack of standing arguments (which was insane, given the standing we've allowed for all sorts of discrimination cases wtihout direct harm, class actions of such, etc.).  Even some of the lefty lawyers, liek Jonathan Turley (or whatever his name is) said that the courts were putting people's faith in them at risk by not taking and disposing of at least one eligibility case.  There was no risk.  The courts (or Court) could have easily come to the conclusion that being a "natural born citizen" involves nothing but being born with American citizenship, in any way shape or form, if they wanted to.  But they didn't ... Instead, they ran and hid and we still have the issue totally unresolved.

My sock mishap was worse than yours, here.  Damn I hate these socks, sometimes.

Posted by: progressoverpeace at June 30, 2011 02:00 PM (G/MYk)

104 That is useful information and its quite easy to come a croper if you are not vigilant.

Posted by: Buried Secrets AudioBook at June 30, 2011 03:27 PM (hc7H2)

105 I just cant stop reading this. Its so cool, so full of information that I just didnt know. Im glad to see that people are actually writing about this issue in such a smart way, showing us all different sides to it. Youre a great blogger. Please keep it up. I cant wait to read whats next.

Posted by: Sexy corsets at June 30, 2011 03:41 PM (2g7zz)

106 Progressive, I get your point.  We've got vague constitutional language.  We've got a vastly changed country with a huge immigrant population now.  And we've got state and federal courts that won't touch the issue.

For someone like me, who agrees with Vic that if you're born here, you're natural - born (except for the children of embassy officials and the like, as set forth in the 14th amendment), the issue is not really that important today.   Is there really a valid concern today that Bobby Jindal, for example, would have conflicts of "dual allegiance" to India?   If you think that, then you should push for a constitutional amendment requiring dual citizens to renounce their other citizenship before they can become POTUS or VPOTUS.  Then let the electorate decide if they are really "straws", "running horses" (as the chicoms used to say) or "Manchurian Candidates.

Right now, at least, most would agree that as a country we have far bigger fish to fry.


Posted by: Jim Sonweed at June 30, 2011 06:46 PM (FVhEi)

107 So, big deal -- some RINO judge has the Emperor has clothes virus.  

What could possibly go wrong stating such a milk toast vision? 

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108 I am so lucky to read your post!thank you!

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