Supreme Court

Judge Roger Vinson

After federal Judge Roger Vinson declared Obamacare unconstitutional on Monday, Florida Governor Rick Scott has announced that Florida will not waste any more time and money on further implementing any parts of Obamacare. Good for Florida.

Meanwhile the Obama administration is planning to continue implementing the law in direct violation of the judge’s order. Imagine the media outrage if George Bush had ignored a federal court ruling.

Judge Vinson chose to use the original tea party to illustrate the absurdity of claiming that our constitution grants the government the right to force people to buy health insurance:

It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place. If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain for it would be “difficult to perceive any limitation on federal power” [Lopez, supra, 514 U.S. at 564], and we would have a Constitution in name only. Surely this is not what the Founding Fathers could have intended.

The full text of the ruling can be found here.

The judge also referred to a Reason TV debate between conservative law professor John Eastman and liberal professor Erwin Chemerinsky on the individual mandate and the Commerce Clause. Watch “Wheat, Weed and Obamacare” to understand why a federal ruling finally putting a limit on what Congress can do under the Commerce Clause is so important if we want to preserve any limits on the power of the federal government. It is well worth investing ten minutes to watch this debate:

Judge Vinson’s ruling will eventually go to the Supreme Court possibly in 2012 just before the election. It is likely that a 5-4 majority will either uphold or overturn this ruling. Let’s hope that Justice Anthony Kennedy, the swing vote on the Court, sides with Judge Vinson and the Constitution.


On Tuesday President Obama will give the State of the Union address. The current silliness in Washington is the idea that sitting with members of the opposite party is going to achieve anything lasting. Many senators and representatives are trying to find a “date” from the opposite party to sit with on Tuesday night.

They clearly have not asked George Will about the significance of the State of the Union speech. Maybe they should.

The transcript (via The Daily Caller):

“A, they’re overrated — the next morning, the country is still a complex continental country with muscular interests in politics as its own momentum. Between Jefferson and Woodrow Wilson, no one delivered this in person. They sent the report to Congress in writing. But, now we’ve turned this into this panorama. In which in an interminable speech, every president, regardless of party — tries to stroke every erogenous zone in the electorate and it becomes a political pep rally, to use the phrase of Chief Justice Roberts last year. If it’s going to be a pep rally with the president’s supporters of whatever party standing up and bringing approval and histrionic pouting on the part of the other, then it’s no place for the judiciary, no place for the uniformed military, and no place for non-adolescent legislators.”

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In 1995, Supreme Court nominee Elena Kagan wrote a 25-page Law Review paper criticizing Supreme Court nomination hearings since Robert Bork was defeated in 1986 for giving frank answers:

Now watch this exchange with Senator Jeff Sessions on whether Kagan is a “legal progessive”:

She doesn’t know what a legal progessive is? Unfortunately, Kagan isn’t sticking with her 1995 view on nomination hearings and is giving us another performance in evasiveness.

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The confirmation hearing of Supreme Court nominee Elena Kagan consists of long speeches from senators and Kagan working hard on saying nothing.

But here is a rare moment of interest. Senator Coburn asks Kagan if it would be unconstitutional for the government to mandate that Americans have to eat “three vegetables and three fruits every day”. Incredibly, Kagan is unwilling to say that it is unconstitutional to “tell the people what we have to eat every day.”

For most of the rest of the hearing, we find ourselves in the strange position of sympathizing with failed humorist and Minnesota senator, Al Franken, who has trouble staying awake.

More interesting insights into our next Supreme Court Justice: Supreme Court Nominee Kagan: Its Fine if The Law Bans Books Because Government Won’t Really Enforce It

It is time to change the expectations for Supreme Court nomination hearings and demand that nominees who will be on the Court for the rest of their lives actually tell us about their judicial philosophy.

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The nomination hearings for Supreme Court nominee Elena Kagan have started today. Expect endless speeches by senators, but don’t expect senators to ask the interesting questions George Will suggests.

Here is a revealing exchange on free speech and the government’s power to regulate it in which Solicitor General Kagan representing the Obama administration argued in front of the Supreme Court:

Kagan is comfortable defending laws that give government sweeping powers to regulate political speech and her only defense is “but the government has never used the law to ban books”. Asides from the fact that the distinctions she draws between different types of media are becoming increasingly blurred in the age of the internet, why would we want to give the government any power to restrict political speech? The First Amendment’s free speech clause was meant to categorically protect political speech.

Kagan lost the argument in the Citizens United case. The Supreme Court ruled 5 – 4 against the government. Kagan will be replacing John Paul Stevens, one of the four who condoned government restrictions on free speech.

Kagan will most likely be confirmed. Senate Republicans are not united in blocking her confirmation. But the question remains: Why should we continue to condone putting people on the Supreme Court who do not support the basic rights guaranteed in the Constitution?