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Author Topic: Issues in the American Creed (Constitutional Law and related matters)  (Read 198339 times)
Crafty_Dog
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« Reply #1250 on: June 22, 2015, 02:54:48 PM »

http://www.theday.com/local/20150621/for-lead-plaintiff-what-they-did-was-wrong-then-and-its-still-wrong-today
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DougMacG
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« Reply #1251 on: June 23, 2015, 09:24:01 AM »


Yes, still wrong.  Another good article on the same topic below.  Worst Supreme Court decision since Dred Scott or Roe v. Wade?  It is salt in the ironic wounds that the liberals sided with Big Pharma and then the company left the city when the preferential tax subsidies ran out.  What have we learned?  For most, NOTHING.  Along with no respect for the sanctity of life or right of privacy (see healthcare), we don't respect property rights anymore.  The Court upheld the action of a City with acted with openly preferential treatment in favor of the largest company in town and took the pink house by the water from a woman who did nothing wrong for no reason other than financial gain, and it is symbolic of nearly all that is wrong with our country and government today.  A woman's house was not her castle.  I would ask, where are the women's rights advocates when you take their income, take their home or take their right to be left alone and not have to hire lawyers to oppose the government on its every power grabbing whim?  Nowhere to be seen.



Kelo v. City of New London Ten Years... by RICHARD EPSTEIN  There has been some progress, but much is left to do. Ten years ago, on June 23, 2005, the United States Supreme Court dropped a judicial thunderbolt in Kelo v. City of New London. By a narrow five-to-four margin it rejected a spirited challenge that Susette Kelo and her neighboring landowners had raised against the ambitious land-use development plan put forward by the City of New London, Ct. The formulaic account of the holding is that a local government does not violate the “public use” component of the Constitution’s takings clause — “nor shall private property be taken for public use, without just compensation” — when it condemns property that will be turned over to a private developer for private development. Under the logic of Justice John Paul Stevens, so long as there is an indirect promised public benefit from the development process, the public-use inquiry is at an end, and Ms. Kelo can be driven out of her pink house by the water.

Ten years later, my reaction is the same as it was at the time: truly horrible. Justice Stevens and the Supreme Court were tone-deaf as to what moves people in dealing with property. Of all the cases decided since the year 2000, Kelo may not be the most important; ironically, it certainly was not the most controversial. But hands down, it was the decision that got more people indignant than any other. The bipartisan coalition in opposition was, and is, easy to identify. On the right, there are folks who think that a person’s home is his castle, and thus resent any forced displacement of individuals for the benefit of some supposed social good. And that anger doubles because of the crackpot and visionary nature of the particular plan at issue in Kelo. The communitarians on the left were upset that Pfizer, the company that was going to use the seized land for a research facility, should flex its muscles in ways that prey on individual people.

Anyone who wants to get a sense of the process would be well-advised to real Ilya Somin’s new book, The Grasping Hand, which offers a painful blow-by-blow account of how good intentions for redevelopment were so badly misdirected that ten years later the seized property remains empty. Perhaps the only nice feature about the case is that Ms. Kelo’s pink house was whisked away to another site, so that the newly vacant land can be used to collect debris that washes up on the shore. Yes, the grandiose development plans for the Fort Trumbull neighborhood never got to first base. As it turned out, New London was too slow off the mark, other communities built the ancillary facilities that Pfizer wanted, and the company pulled out of New London once the tax subsidies ran out.

 Truth be told, however, this bipartisan form of indignation cut too broadly for its own good. The same fierce objections could also be used to attack the destruction of homes to make way for a public hospital or public road. The public-use clause looks only at the purpose for which property is taken, but ordinary people also look at the other side of the equation and ask about the purpose that is deprived. Indeed, the fierce reaction to Kelo prompted lots of people to reexamine the use of eminent domain even in cases where the government’s public use, narrowly conceived, was incontrovertible. And they are right. The Constitution should not be the only restriction on the use of the takings power. It is one thing to knock someone out of a home, and quite another to tell a landlord that he is duty-bound to transfer his interest to his tenant in possession in an exchange that the state will enforce only after the tenant ponies up the cash to the state to work the condemnation. Yet this blatant violation of the public-use clause received its judicial blessing in Hawaiian Housing Authority v. Midkiff, a muddy 1984 decision in which Justice Sandra Day O’Connor concocted an indirect benefit that justified the coerced transfer — the need to eliminate supposed “oligarchy” in the Hawaiian housing market, which could have been done quite easily by opening up more restricted agricultural land to urban development. Doctrinally Midkiff was no better or no worse than Kelo, and to her credit, Justice O’Connor backed away from Midkiff in her Kelo dissent.

Yet back in 1984 the public yawned. Taking land from the Bishop Estate, a charitable trust, was, for many populists at least, a delicious prospect. The Left/Right coalition that formed in Kelo could not coalesce around the earlier case, which did not resonate with the public at large. So what should have been done in Kelo? Here the deep irony is that Justice Stevens did not have to tempt the devil. In general, my own view is that master plans are often too ambitious for their own good, much like those vaunted Soviet-style five-year plans. But often the ingredients are there. Such was evident in Kelo, where the introduction of a major $73 million subsidy from the state to the city had to be spent lest it be lost. So the impulse is to move first and think later, which is what the city did when it condemned the entire 90-acre Fort Trumbull development site before any concrete plans were in place. Remove the subsidy and perhaps New London would have been content to plan today and condemn tomorrow, when matters got closer to realization.

On the facts of that case, a possible halfway house would have been to condemn the land at the center of the development site immediately and leave the peripheral takings until later. Judicially, that is what the Connecticut trial judge decided when he spared Ms. Kelo’s plot because it was not in the path of any planned development. But hubris is in far greater supply as one moves through the court system, so that the Connecticut Supreme Court had such confidence in the city’s planners that it thought maximum flexibility was needed for effective planning. Had that court simply affirmed the decision below, Kelo would never have reached the U.S. Supreme Court and the entire incident would have faded away. Some state courts, and some state legislatures, have tried to clip the wings of the decision, but even that has been a hard battle. Yet, once it was decided, the outrage did not subside. Since that time, the Supreme Court has ducked the issue, even though some local governments have done things just as foolish and unnecessary as what the city of New London did. Some state courts, and some state legislatures, have tried to clip the wings of the decision, but even that has been a hard battle. It is difficult to get anyone to attack general planning for economic development, because sometimes in blighted communities it actually works. But “blight” can easily become a term of art, so that weeds in the garden may trigger a government takeover.

All this is not to deny that Kelo has had its effect, for surely it has, but chiefly through the medium of public opinion, which has tended to make it politically more costly for governments to condemn the property of their own citizens. It is so much easier politically to get local governments to rally support to zone out people they don’t want in their communities. Kelo was a big deal, and it will remain in the consciousness of the American public for years to come. Zoning is a bigger deal, and the same misguided progressive impulses that led to the rise of central planning on steroids are still dominant in an area that needs its own Kelo-like fiasco to get the public attention that it so richly deserves.

 — Richard Epstein is the Laurence A. Tisch Professor of Law at New York University School of Law, the Peter and Kirsten Bedford Senior Fellow at the Hoover Institution, and the James Parker Hall Distinguished Service Professor of Law Emeritus and Senior Lecturer at the University of Chicago.

http://www.nationalreview.com/article/420144/kelo-eminent-domain-richard-epstein


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DougMacG
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« Reply #1252 on: June 23, 2015, 09:30:18 AM »

Big Supreme Court decisions coming very shortly, King v Burwell and the right of states to define marriage.  Predictions anyone?

I am hopeful on Burwell that the Court goes beyond merely reading the statute and strikes down all subsidies that aren't available equally to all Americans.  Is that too much to ask?

Roberts will write the Obamacare subsidy decision.  Kennedy will write the gay marriage decision.

http://www.realclearpolitics.com/articles/2015/06/22/supreme_court_bingo_how_it_might_rule.html
« Last Edit: June 23, 2015, 09:57:48 AM by DougMacG » Logged
DougMacG
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« Reply #1253 on: June 25, 2015, 01:50:29 PM »

I am sickened by Chief Justice John Roberts hypocrisy on his Obamacare rulings and by my own inability to recognize poor character before it becomes so blatantly obvious.

In the previous case, Sebelius vs America, he wrote essentially that the defects of the law could be corrected by the legislative process and therefore didn't need interference from the judicial branch.  In King v. Burwell he saw specific writing that could easily be changed by the legislative branch if they were so inclined and instead he 'fixed' it for them - making the law pretend to say what it in fact doesn't.

Roberts' drivel from his confirmation that impressed me so much at the time:

"If the Constitution says that the little guy should win, the little guy's going to win in court before me," Roberts said. "But if the Constitution says that the big guy should win, well, then the big guy's going to win, because my obligation is to the Constitution. That's the oath."

What a weasel.

Justice Scala isn't impressed either:

"We should start calling this law SCOTUScare.

The Court interprets §36B to award tax credits on both federal and state Exchanges. It accepts that the “most natural sense” of the phrase “Exchange established by the State” is an Exchange established by a State. Ante, at 11. (Understatement, thy name is an opinion on the Affordable Care Act!).

Yet the opinion continues, with no semblance of shame, that “it is also possible that the phrase refers to all Exchanges—both State and Federal.” Ante, at 13. (Impossible possibility, thy name is an opinion on the Affordable Care Act!).

I wholeheartedly agree with the Court that sound interpretation requires paying attention to the whole law, not homing in on isolated words or even isolated sections. Context always matters. Let us not forget, however, why context matters: It is a tool for understanding the terms of the law, not an excuse for rewriting them.

One begins to get the sense that the Court’s insistence on reading things in context applies to “established by the State,” but to nothing else.

On the other side of the ledger, the Court has come up with nothing more than a general provision that turns out to be controlled by a specific one, a handful of clauses that are consistent with either understanding of establishment by the State, and a resemblance between the tax-credit provision and the rest of the Tax Code. If that is all it takes to make something ambiguous, everything is ambiguous.

Perhaps sensing the dismal failure of its efforts to show that “established by the State” means “established by the State or the Federal Government,” the Court tries to palm off the pertinent statutory phrase as “inartful drafting.” Ante, at 14. This Court, however, has no free-floating power “to rescue Congress from its drafting errors.” Lamie v. United States Trustee, 540 U. S. 526, 542 (2004).

Only when it is patently obvious to a reasonable reader that a drafting mistake has occurred may a court correct the mistake. The occurrence of a misprint may be apparent from the face of the law, as it is where the Affordable Care Act “creates three separate Section 1563s.” Ante, at 14. But the Court does not pretend that there is any such indication of a drafting error on the face of §36B.

The occurrence of a misprint may also be apparent because a provision decrees an absurd result—a consequence “so monstrous, that all mankind would, without hesitation, unite in rejecting the application.” Sturges, 4 Wheat., at 203. But §36B does not come remotely close to satisfying that demanding standard. It is entirely plausible that tax credits were restricted to state Exchanges deliberately—for example, in order to encourage States to establish their own Exchanges. We therefore have no authority to dismiss the terms of the law as a drafting fumble.

Let us not forget that the term “Exchange established by the State” appears twice in §36B and five more times in other parts of the Act that mention tax credits. What are the odds, do you think, that the same slip of the pen occurred in seven separate places?

If there was a mistake here, context suggests it was a substantive mistake in designing this part of the law, not a technical mistake in transcribing it.

The Court’s decision reflects the philosophy that judges should endure whatever interpretive distortions it takes in order to correct a supposed flaw in the statutory machinery. That philosophy ignores the American people’s decision to give Congress “[a]ll legislative Powers” enumerated in the Constitution. Art. I, §1. They made Congress, not this Court, responsible for both making laws and mending them.

This Court holds only the judicial power—the power to pronounce the law as Congress has enacted it. We lack the prerogative to repair laws that do not work out in practice, just as the people lack the ability to throw us out of office if they dislike the solutions we concoct. We must always remember, therefore, that “
  • ur task is to apply the text, not to improve upon it.” Pavelic & LeFlore v. Marvel Entertainment Group, Div. of Cadence Industries Corp., 493 U. S. 120, 126 (1989).

Even less defensible, if possible, is the Court’s claim that its interpretive approach is justified because this Act “does not reflect the type of care and deliberation that one might expect of such significant legislation.” [Citation omitted] It is not our place to judge the quality of the care and deliberation that went into this or any other law. A laenacted by voice vote with no deliberation whatever is fully as binding upon us as one enacted after years of study, months of committee hearings, and weeks of debate.

Much less is it our place to make everything come out right when Congress does not do its job properly. It is up to Congress to design its laws with care, and it is up to the people to hold them to account if they fail to carry out that responsibility.

[T]he plain, obvious, and rational meaning of a statute is always to be preferred to any curious, narrow, hidden sense that nothing but the exigency of a hard case and the ingenuity and study of an acute and powerful intellect would discover.” Lynch v. Alworth-Stephens Co., 267 U. S. 364, 370 (1925).

Under all the usual rules of interpretation, in short, the Government should lose this case. But normal rules of interpretation seem always to yield to the overriding principle of the present Court: The Affordable Care Act must be saved.

Words no longer have meaning if an Exchange that is not established by a State is “established by the State.”

Today’s interpretation is not merely unnatural; it is unheard of.

[T]his Court’s two decisions on the Act will surely be remembered through the years. The somersaults of statutory interpretation they have performed (“penalty” means tax, “further [Medicaid] payments to the State” means only incremental Medicaid payments to the State, “established by the State” means not established by the State) will be cited by litigants endlessly, to the confusion of honest jurisprudence.

And the cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites."
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ccp
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« Reply #1254 on: June 26, 2015, 09:59:34 AM »

I do believe they should start putting affordable housing in the Hamptons, LI, Santa Monica, Ca, Lenox Hill, NYC, Palm Springs, Ca. and Palm Beach, Fl. and across the street from the White House, DC, and Georgetown, DC .

http://www.wsj.com/video/opinion-journal-is-housing-ruling-constitutional/B176E1A5-FEEF-4487-B735-6578DF528036.html
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Crafty_Dog
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« Reply #1255 on: June 28, 2015, 02:44:10 PM »

y Ian Hanchett27 Jun 2015506

CNN Senior Legal Analyst Jeffrey Toobin said that it wasn’t legal “to talk about gay people the way Justice Scalia used to talk about gay people” while recounting Scalia’s prior dissent in Lawrence v. Texas on Friday’s “CNN Newsroom.”

Toobin said Scalia’s dissent was “very different. And I think, if you want illustrations of how much the country has changed in the past decade or so, you need only look at Justice Scalia. Because in 2003, in the case of Lawrence v. Texas, he also dissented, another Anthony Kennedy opinion. And that was the case that said gay people could not be criminally prosecuted for having sex. And listen to this, what Justice Scalia wrote in 2003. He said,

‘Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.’
(MARC: What about this point?)

 I mean, really, just outward bigotry against gay people. Now, today Justice Scalia begins his dissenting opinion by saying this issue is of no particular importance to me, and the only real issue here is the democratic process, who makes the decisions, should it be the courts? Or should it be the people? Even Justice Scalia, who is the biggest social conservative on the court, he cannot talk the way he used to talk about gay people because culturally, politically, even legally, it’s simply not appropriate, and even legal in many — in ways to talk about gay people the way Justice Scalia used to talk about gay people.”

Later, during the afternoon broadcast, he stated of Scalia, “Well, you know, he has become the ‘get off my lawn’ justice. He is so angry all the time, you would think he lost every case when, in fact, the conservatives on the court, of whom he is a senior member, usually win most cases. But the healthcare case yesterday and the marriage case today have really set him off, and today, it was not so much the rhetoric about the issue, but it was the attacks on Justice Kennedy personally…was really a kind of breach of decorum that, even in the spirited dissenting opinions that the justices are known to write, was really kind of over the top.


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Crafty_Dog
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« Reply #1256 on: June 30, 2015, 11:17:14 AM »

e 29, 2015 6:49 p.m. ET
159 COMMENTS

A miserable Supreme Court term got worse on Monday when another 5-4 majority decided to rewrite the Constitution’s Elections Clause to limit legislative redistricting. We’ve deplored legislative gerrymanders as much as anyone, but that doesn’t mean our policy preference should trump the Constitution.

In 2000 Arizona voters approved a ballot measure to amend the state constitution and give a five-member commission the power to draw the map for Congressional districts. The idea was to take redistricting away from politicians who invariably use it for partisan advantage.

Good intention, but the Elections Clause says the “times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof.” And the legislature didn’t sanction the referendum.

Justice Ruth Bader Ginsburg nonetheless writes for the liberals and Anthony Kennedy that when the Framers wrote the word “legislature” they didn’t mean “legislature.” They meant it loosely because “the people themselves are the originating source of all the powers of government.”

The Founders weren’t perfect but they were more precise wordsmiths than the average Supreme Court Justice. For example, when they meant “the people,” they wrote “the people.” So when they wrote “the legislature,” confidence is high that they meant “the legislature.”

The majority’s ruling has “no basis in the text, structure, or history of the Constitution, and it contradicts precedents from both Congress and this Court,” Chief Justice John Roberts writes in withering dissent. The Constitution, he notes, uses the word legislature in 17 instances where it cannot possibly be interpreted to mean “the people,” and Supreme Court precedents have specified that in the Elections Clause the word legislature means “the representative body which ma[kes] the laws of the people.”

When the Constitution was written, state legislatures were given the power to choose the Senators the states sent to Washington, D.C. It took decades, and the Seventeenth Amendment, to give that power directly to voters. “What chumps!” Chief Justice Roberts writes, “Didn’t they realize that all they had to do was interpret the constitutional term ‘the Legislature’ to mean ‘the people’?”

The position of the four liberal Justices isn’t all that surprising because taking redistricting away from legislatures has become fashionable on the left now that Republicans hold the House. But Justice Kennedy’s vote rankles in particular because he has shown good judgment on election law in previous cases including 2008’s Crawford v. Marion County (upholding Indiana’s voter ID requirement), 2013’s Shelby County v. Holder (striking down the Voting Rights Act’s preclearance requirement) and 2010’s Citizens United v. FEC (invalidating a ban on corporate and union independent expenditures).

Partisan gerrymanders deserve criticism, but Justice Ginsburg’s opinion is an act of judicial invention. Like so many other rulings this term, it subordinates the Constitution’s plain language and the Court’s own precedents to a policy agenda. That does more damage to constitutional democracy than any redistricting can.
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DougMacG
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« Reply #1257 on: July 01, 2015, 08:26:59 AM »

"Chumps" is putting it nicely.
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ccp
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« Reply #1258 on: July 18, 2015, 10:30:50 AM »

http://www.jewishworldreview.com/cols/will071115.php3
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ccp
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« Reply #1259 on: July 20, 2015, 08:23:12 AM »


Justice Alito: Judicial Restraint Amidst The Court's 'Postmodern' Activism


8:04 AM, Jul 20, 2015 • By ADAM J. WHITE




 

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The liberals on the Supreme Court could not be any more obviously political than this.  Just like the DNC they share talking points and come out in synchrony:

****Justice Ruth Bader Ginsburg made news recently, when she said—bragged, it seemed—that she and her fellow liberals on the Court were going out of their way to stifle their individual voices in high-profile cases. When the liberals find themselves on the losing side of a case, she explained, they strive to sign a single dissenting opinion instead of each justice writing his or her own.

"If you want to make sure you're read, you do it together, and you do it short," she told NPR's Nina Totenberg, a longtime friend. When Totenberg asked Ginsburg why the Court's conservatives don't take a single approach, Ginsburg quipped, "next term I think you'll see some of my colleagues will be more disciplined."

Maybe the conservative justices would score more political points with such an approach. But our country would be all the worse off for it. For as things currently stand, the Court's conservative or libertarian justices are writing in such distinct voices—with such distinct principles, presumptions, and prudential judgments—that our nation's constitutional debates hardly suffer from hearing each of the conservative and libertarian justices speaking for themselves as much as possible. We all benefit from them. ****
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