"Executive branch implementations and Legislation branch laws must rarely be addressed by judicial branch. I believe our Founders envisioned this quite firmly. However, the Elite Left has been quite successful in securing many high level judicial positions bringing in their judicial activism. As a result, in addition to the Left, even some conservatives seek court intervention when they should not. Best immediate policy is for Trump to continue filling judicial openings with strict Constitutional lawyers/judges." – Economics 501 responding to the last post that featured my letter published in the WSJ that showed how the elected branches of both major parties have given up their turf over the years in favor of the courts providing cover regarding contentious political issues they have no business being in.
Now I have first hand experience regarding the most disastrous time in my memory where conservatives sought a court solution to a problem best handled through the court of public opinion known as elections. I have documented over the years that nothing good comes when the elected branches take their political problems to the judiciary for a solution.
It was early June 2012 & Carol & I were attending a seminar in NYC where Leonard Leo, Executive Vice President of the Federalist Society, was a major speaker. The topic was the Supreme Court case brought by 26 states & individual plaintiffs Kaj Ahburg & Mary Brown who were trying to overturn ObamaCare by claiming it was unconstitutional. Oral arguments had been heard in March, 2012 & a decision was expected before the end of June 2012.
The Federalist Society is a nationwide organization of conservative lawyers that can exercise enormous influence in Washington without playing a direct role. In particular, Leonard Leo, is in effect responsible for one third of the justices of the Supreme Court having played a crucial part in the nominations of John Roberts & Sam Alito, & of course most recently preparing the list of 19 judges & lawyers that President Trump used in selecting Neil Gorsuch as his first nominee to the Supreme Court.
Mr. Leo's presentation @ the seminar made it clear that he had played a similar influential role in bringing the aforementioned case against ObamaCare.
So here I was sitting in the middle of a room filled with people, most of whom I didn't know, who believed ObamaCare was going to be found unconstitutional by the SCOTUS in just a few weeks.
Nevertheless, I raised my hand @ just about the most triumphant part of the presentation, & when acknowledged I told Mr. Leo that I thought he had made a mistake bringing the case & that the Supreme Court had made a mistake accepting it. I explained that I too thought the conservatives would win this one but my larger point was that asking the courts to decide matters like the constitutionality of ObamaCare was a treacherous dicey approach to solving problems resulting from loses @ the ballot box – like when BO won the presidency in 2008 & had control of the House for his first two years & control of a filibuster-proof Senate for just enough time to pass ObamaCare with 60 all-Democrat votes. It is easier to go to the SCOTUS than to win such majorities @ the ballot box – but you get a real crapshoot @ the SCOTUS that results in the loss of liberty while establishing judicial tyranny.
Before the seminar adjourned @ least half the class told me they agreed we should scrap the lawsuits & fight to change laws @ the polls.
When the SCOTUS ruled later that month that ObamaCare was constitutional no one was more surprised than me. To my horror the fear that I expressed to Leonard Leo & the class had happened – ObamaCare was still the law of the land, as it would have been if no case had been brought, but now in addition to the ObamaCare law being on the books we also have another dangerous new legal precedent as if we needed another new dangerous legal precedent to help bring down our Republic.
Chief Justice John Roberts had gone out of his way to find ObamaCare constitutional. BO's attorneys had argued that the penalty for not buying ObamaCare policies on the exchanges was not a tax but a penalty. Roberts found that ObamaCare's requirement that most Americans obtain healthcare insurance or pay a penalty was authorized by Congress's power to levy taxes.
Republicans had campaigned for seven years to repeal ObamaCare & then worked fruitlessly for all of 2017 to repeal, repeal & replace, or repair ObamaCare before finally being able to weaken it with the passing of the GOP tax bill last December that eliminated the individual mandate penalty (tax) provision starting in 2019 – thereby highlighting the point of this post; namely, it is less work for politicians to bring a case to the judiciary than it is to try to win their points through elections.
But the decision to want a handful of people, unelected judges, including justices on the Supreme Court, that no one every heard of or could identify if their life depended on it, to overrule our elected representatives, is fraught with danger to our liberty, our prosperity, & uncertainty for many parts of our lives.
Very compelling story, thank you for sharing. It turned out you were right .
ReplyDeleteDoug
ReplyDeleteExcellent example. SCOTUS interventions are to be more narrow - such as with constitutional disputes that were not legislated. The Bush-Gore 2000 election is an example we can all agree required SCOTUS.
Doug - I am sure you are aware of the fact that justice and the U.S. legal system have nothing to do with each other.
ReplyDeleteHi Doug,
ReplyDeleteSo...Let’s say Congress passes a law that requires all guns to be confiscated. Or, let’s say that Congress passes a law that requires Jews to wear a gold star.
Do we have to wait for the next election and hope that election results in a remedy in some future date, perhaps years later? Do the courts have any role here?
Furthermore, what do you think would happen if strict constructionists were asked whether a sitting President can take funds approved by Congress for our troops and use the money to construct a border wall?
Are you opposed to our third branch of the government having any judicial review powers? If you do see a need for judicial review, but want it limited, then what do you propose?
We must recognize that it is inevitable that our system will continue to disappoint all sides at various times and that is when we know it is truly working.
As an aside, I find it interesting that you are so obviously opposed to the ACA and still you appear to advocate here for eliminating it when the majority of Americans support it. Labeling it Obamacare was a publicity stunt that failed in the long run to change public opinion. All that did was cause confusion as evidenced when people applied for and received health insurance through ACA but expressed their disdain for Obamacare! The struggle in Congress this past year should work to drive that point home.
What happened to respecting the will of the people? That’s where I would like to start in our Return to Excellence.
Doug, you astound me. I hate when something I hope will not happen does - like Obama Care being found constitutional. There still are several very hostile sisters toward Trump - however, some no longer feed into it, so for me that is a good sign. My sister said, just as they won’t change you, you won’t change them.
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