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"Why is this case any different from that point of view?"

Going by the analysis in CU, the justices there argued that Stevens avoidance was not possible. You seem to be providing a veiled disagreement here on the merits.

Also, there the tie in effect goes to the challengers given the speech overbreadth doctrine. As noted by the headnotes, to summarize: "this case cannot be resolved on a narrower ground without chilling political speech."

Speech is special here given long precedent. But, let's say we evenly apply constitutional concerns to non-speech issues. The tie should still go against the challengers since their argument would -- as noted by other comments on this blog -- raise federalism concerns of constitutional moment.

Your personal position on current doctrine regarding avoidance doesn't suggest to me that they should pick this case to suddenly change it. If Kennedy isn't quite sure, following precedent, he can decide that the balance of things warrants upholding the law.

As to standing, there were a few interesting comments made on how at least one person likely has standing, including regarding the vet. It could have been dealt better below, but really don't see much there. One person probably has standing.


 

Well, they said it wasn't possible in Citizens United, but that was just a conclusion. They could say that it's not possible here. My point is that there is no standard by which you can measure these things.
 

Lol. It was 'a conclusion' based on argument. Clearly, the conclusion wasn't obvious -- the justices and everyone else split over it. So, it's a matter of judgment.

Determining this all is just arbitrary & shouldn't be done is one way to go. But, that would upturn a lot more than Robert Court precedents, especially in the 1A area. Stevens et. al. surely agreed in various other cases that a narrower reading couldn't save a statute struck down on 1A grounds, for example.
 

I am unsure why the Obamacare defenders are hanging their hat on Justice Kennedy.

Kennedy read the plain English of the provision limiting subsidies to exchanges established by the states and correctly views the provision as Congress attempting to blackmail the states into building insurance exchanges.

While the blackmail bothers him, Kennedy does not appear to believe that the Court can rewrite the provision. After Scalia and Carvin noted that there is no precedent for the Court to rewrite clear statutory provisions to make them constitutional, Kennedy conceded the point:

JUSTICE KENNEDY: It may well be that you're
correct as to these words, and there's nothing we can do. I understand that.

If the blackmail is unconstitutional, then Kennedy could well argue to his colleges that the entire subsidy provision is unconstitutional. No subsidies for any state. I doubt he is willing to go that far, so I suspect that he will simply offer some dicta directed at Congress in a separate opinion, if he is not assigned the court's opinion.

Later, Kennedy suggested to the government that Chevron does not grant IRS the power to rewrite statutory provisions it finds ambiguous, which suggests he is even more skeptical of the power to do so when the provision is clear.

JUSTICE KENNEDY: Well, if it's ­­ if it's ambiguous, then we think about Chevron. But it seems to me a drastic step for us to say that the Department of Internal Revenue and its director can make this call one way or the other when there are, what, billions of dollars of subsidies involved here? Hundreds of millions?

Drastic is an understatement. A ruling for the government in this case would essentially grant the bureaucracy the power to rewrite perfectly clear, statutory provisions it considers to be unworkable.

The proper term for that is dictatorship.

Let's see if the Court is prepared to go that far.
 

Yes, I agree that Kennedy could go against the Government. The Chief Justice--who knows.
 

It's unfortunate that De Palma makes reasoned discussion here impossible.
 

Two weeks ago, five justices (including Roberts and Alito) decided that a fish is not a tangible object, based on context. The argument is much stronger that in this statute, by includes in, based on context.

The only reason to conclude otherwise is the court's obvious politically-motivated animosity to the ACA. And when an unelected body starts to make decisions based on political considerations, we have a dictatorship.
 

"JUSTICE KENNEDY: Well, if it's ­­ if it's ambiguous, then we think about Chevron. But it seems to me a drastic step for us to say that the Department of Internal Revenue and its director can make this call one way or the other when there are, what, billions of dollars of subsidies involved here? Hundreds of millions?"

So we don't give Chevron deference for "really important" regulations?

"perfectly clear, statutory provision"

The problem is that while the provision in question might seem 'perfectly clear' taken alone it's not quite so clear given the entire context (other language elsewhere in the same act). I think Kagan's law clerk hypothetical illustrates that idea quite well.
 

Mr. W:

Carvin appeared to make short work of Kagan's clerk analogy.

Kennedy is not buying that the subsidy provision is somehow ambiguous.

I agree with Gerard. The suddenly silent chief justice is the wild card in this case.

Roberts already caved once under pressure in the prior Obamacare case. Has he grown a spine since then?


 

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Kennedy read the plain English of the provision limiting subsidies to exchanges established by the states and correctly views the provision as Congress attempting to blackmail the states into building insurance exchanges.

[...]

Kennedy is not buying that the subsidy provision is somehow ambiguous.

I'm not sure what your evidence of this is. That he said "it may well be" that the other conservatives are right that the language is so clear as unavoidable?

That sounds to me like he is thinking about trying to find ways to conclude it isn't.

And ways abound: he could look at how the phrase works with other provisions in the Act. He could consider the broader purposes of the Act as given within it and in the Congressional record.

Above, he could look to Pennhurst to find that if this particular thing was Congress' intent ("balckmail"), then their statutory language communicating the "blackmail" needs to absolutely unambiguous so as to provide notice.

Kennedy to me sounds like is trying to find a way around conceding Scalia & Alito's point about the clarity of the language laying out a blackmail threat.

He'll be able to do so.
 

Regarding plain language I'm pretty sure every single justice has written an Antitrust opinion that recognizes the Sherman Act's plain meaning absurd on its face. The argument is and should be that even if it is the only reading on the word "by" that the result isn't plainly absurd.


 

"Has he grown a spine since then?"

Unfortunately, people don't tend to grow spines after losing them. So I would not put much hope in the Chief Justice. He's likely at the moment desperately trying to figure out how to uphold what the administration has done without finishing off what little remains of his reputation.
 

Brett speaks of "spines" with his background as a self-proclaimed anarcho-libertarian AND a 2nd A absolutist, displaying that he is spineless without his arsenal.
 

On an earlier thread of a Gerard post recently archived, our own Mr. Myth referred to his being "unsure" of why Kennedy is being supported by Obamacare supporters. I responded there with this:

"Is our own Mr. Myth also "unsure" of why Michael Carvin, counsel for the Petitioners indicated in substance this to the Wall Street Journal before oral arguments?

***
Carvin argued that the difference between this lawsuit and the one in 2012 is that unlike the 2012 challenge, the argument on Wednesday is on "a statute that was written three years ago, not by dead white men but by living white women and minorities."

***

"Does the quoted portion suggest a frame of mind on counsel's part towards both Obamacare and Obama?"
# posted by Shag from Brookline : 3:05 PM

And once again our own Mr. Myth references "dictatorship" in his Dick-Tater state of mind.

 

JB's post addresses reality especially with justice Scalia's suggested congressional fixes, an LOL moment. Apparently both Justices Scalia and Alito (aka, respectively, Justices Etna and Vesuvius) are unaware of Congress' political dysfunction. Conservative Republicans have had a HO since the New Deal with Social Security followed by Medicare and Medicaid, and now with Obamacare as part of the Democratic brand, especially now fearful because of the changing demographics. The solution for the current Republican controlled Congress is to come up with a single payer system to substitute for Obamacare as a means of establishing a Republican brand that may oblige the changing demographics. But there may be a fear of an Obama veto. But I think Obama would promptly sign on to a 21st century single payer bill, noting in a signing statement that this was his "plan" all along.
 

Shag:

The Constitution does not even permit the bureaucracy, nevertheless grant it or the courts the power to rewrite statutes, even when the current Congress is unlikely to do so.

The proper spelling for the argument claiming they can is dictatorship.

You know what is truly scary? The fact that nearly all the lawyers here, sworn to support the constitution and the law, have absolutely no problem ignoring both.
 

Reading "Madison's Gift," a new book recommended by Prof. Magliocca. History is a useful antidote to originalism.

The book not only shows the various conflicting and undeveloped constitutional views of the era, but criticized a take by Madison -- reliance on state ratifying conventions. How to judge that? Determine what a majority of them understood? But, the conventions themselves didn't have an opinion. Individual people did and we don't have much there in various cases. We can make arguable assumptions, e.g., of why $20 was chosen in the 7A, e.g., but that is of limited value. "Is" and "maybe so" are quite different things.

Also, Madison in effect changed his mind on various matters when he saw how the Constitution would operate. This included changing his views on the bank from the 1790s to the 1810s. Hamilton's argument that we should rely on a broad understanding of the text, even if it would not be what the original people involved would necessary expect comes off as practical.

And, the use of "The Federalist," of questionable importance at that time, a series of advocacy briefs that at times did not truly express the beliefs of the writers is again shown to be something we should take with a grain of salt. Putting aside the two primary writers eventually clashed on what the Constitution meant.

To refer to one of his friends, it is best to trust the Constitution to the living, with the test of experience, current knowledge and current people applying the text.

As to congressional fixes, ideally those should be possible, just as ideally Republicans should let, after a year & sixty votes the first time around etc. etc. Democrats to clean up legislation. And, the reverse is true when Republicans lead Congress.

But, putting aside current realities, the system is set up so that passing legislation is difficult. Even in better times, fixing ideologically tinged legislation, or even simple legislation, is difficult. The justices are b.s. artists if they don't realize this. This also applied to the Shelby ruling.
 

ETA: And, even w/o cleaning up, as has been discussed on this blog by others -- in a way that GM never really refuted -- the government's position is correct. That we are left to worrying about the 'spine' of one justice here is sad. It shouldn't be a close question.

Note, the "I'm not a robot" button is pointless - I don't need to use it. That's good, since it was determined Shag is a robot, so he would have to lie.
 

What's really scary is our own Mr. Myth's more frequent references to his revolution alternative if things don't go the way he wishes. (I'm assuming that our own Mr. Myth is influential in the libertarian community, at least the anarcho branch.) Our own Mr. Myth is also an officer of the court, having taken an oath to support the Constitution. Is his revolution alternative merely the frustrated hyperbole of a small mountaintop DUI criminal defense attorney or is he really serious? Personally, I think it's the former, as he has long indicated at this Blog that he is a real Dick-Tater.
 

With respect to Joe's Shelby comment, the impact of that decision demonstrated the res gestae "step on a cat's tail and it instantly screams" regarding the immediate actions taken by several states in implementing the myopic failure of the conservative-5 to anticipate the reactions to their decision. OOPS! Or was that what they intended?
 

Shag:

Here is some homework.

If you consider the bureaucracy rewriting laws of Congress to be a problem requiring a remedy, what remedy do you offer as an effective option?

1) Congress and the President enacting a law reversing the rewrite?

2) Congress impeaching a President who ordered the rewrite and/or is defending it with a veto?

3) The Supreme Court enforcing the law and reversing the rewrite?

4) The states calling for a constitutional convention to amend the constitution to strip the bureaucracy of legislative and judicial powers?

5) Peaceful or armed revolution?

Try to be serious for once and objectively answer the question.
 

There is no constitutional principle that requires any judge to interpret a law in a way that's blatantly absurd. There's no possible doubt regarding the purpose of the contested provision. It's the height of judicial activism/legislating to rule in favor of the petitioners. Of course, Scalia, Thomas and Alito have absolutely no compunctions about engaging in absurd interpretations and never hesitate to legislate from the bench. Kennedy and Roberts are only marginally better than their 3 right-wing colleagues.
 

"If you consider the bureaucracy rewriting laws of Congress to be a problem requiring a remedy, what remedy do you offer as an effective option?"

How about, when the time comes, elect a new President? The new President puts in a new head of the department who changes the regulatory scheme.

"The Constitution does not even permit the bureaucracy"

??? If it's not talking about a federal bureaucracy then what's this part of Art. II talking about: "Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."
 

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BD: "If you consider the bureaucracy rewriting laws of Congress to be a problem requiring a remedy, what remedy do you offer as an effective option?"

Mr. W: How about, when the time comes, elect a new President? The new President puts in a new head of the department who changes the regulatory scheme.

Good addition to the options.

The problem is that progressives will sue to preserve the rewrite on the grounds that the President is attempting to inject politics into the administrative process and that the courts should defer to the administrative interpretation of the statute. Dubya tried to reverse or moderate a series of regulations the bureaucracy imposed at the end of the Clinton administration and lost in the courts.

Even if it worked, this is sort of like changing the dictators and hoping the next one is less onerous.

BD: "The Constitution does not even permit the bureaucracy"

Mr. W: ??? If it's not talking about a federal bureaucracy then what's this part of Art. II talking about: "Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."

I am referring to the regulatory bureaucracy employing legislative and judicial power.

And I am well aware of the progressive court cases extra-constitutionally upholding the regulatory bureaucracy.
 

"Dubya tried to reverse or moderate a series of regulations the bureaucracy imposed at the end of the Clinton administration and lost in the courts."

Because the courts found that the regulatory rewrites by W ran afoul of the law the Congress had passed, so see, bureaucracy must bow to legislature after all.
 

Mr. W: "Because the courts found that the regulatory rewrites by W ran afoul of the law the Congress had passed, so see, bureaucracy must bow to legislature after all."

The statute as interpreted by the Clinton bureaucracy before the attempted reversals. The statutory language is very broad and nowhere required the Clinton administration regulations or barred the reversals.

In sum, the courts sided with the bureaucracy's interpretation of the law over that of the elected president.
 

Tushnet: "My interest here is in a different question, posed by many. It goes something like this: "Why was the Secretary of State [Hillary Clinton] communicating with people on an e-mail account that could be hacked?"

That was also my first thought, except I took it a step further.

Providing classified materials (the emails themselves containing classified information) and storing them at an unauthorized location (the email provider’s servers) violates 18 U.S.C. §1924, which states in pertinent part:

(a) Whoever, being an officer, employee, contractor, or consultant of the United States, and, by virtue of his office, employment, position, or contract, becomes possessed of documents or materials containing classified information of the United States, knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location shall be fined under this title or imprisoned for not more than one year, or both.

Each such email is a felony crime.

https://thecitizenpamphleteer.wordpress.com/2015/03/04/did-hillary-clinton-hide-classified-information-from-congress-by-giving-it-to-our-enemies/

Ruh roh!
 

[without comment]

Reading Law: The Interpretation of Legal Texts

U.S. Supreme Court Justice Antonin Scalia and Professor Bryan A. Garner will discuss [today] their latest book, Reading Law: Interpretation of Legal Texts.

The book examines the time-honored and sometimes conflicting principles for interpreting constitutional provisions, statutes, and contracts. Their lively discussion, which draws upon illustrations from a wide array of sources, reveals how the selection of interpretive principles affects the resolution of ambiguity in the law.

- See more at: http://www.newseum.org/event/supreme-court-fellows-program-annual-lecture/#sthash.zTPJ5IBp.dpuf
 

Bart, are you moving the goalposts here? Your initial complaint is that 'the bureaucracy' has assumed dictatorial powers by 'rewriting the laws of Congress.' But you yourself have offered an example of a bureaucracy's interpretations being slapped down by Courts as contrary to the Congressional law authorizing the regulations. This seems to be the proof that bureaucratic overreach beyond Congressional language and intent is policed by our courts. Certainly you're not discounting this evidence because it happened to be interpretations from the most recent GOP administration that were struck down, right?
 

Mr. W: But you yourself have offered an example of a bureaucracy's interpretations being slapped down by Courts as contrary to the Congressional law authorizing the regulations.

Huh?

I provided an example of the courts siding with the bureaucracy's interpretation of the law over that of a subsequent president to illustrate why it would be problematic to rely upon a change of presidents to reverse bureaucratic rewrites of the law.
 

Bart, Congress passes a law which authorizes and directs (with an intelligible principle at least) an agency to make and enforce regulations to administer the law. Different administrations can give different interpretations to some parts of some laws and still be in compliance with the text and intent of their Congressional mandate. But not all interpretations, some can be challenged and found by the courts to have gone so far or below what the law requires that they have, to use your language, 'rewritten' the law, and when that happens the courts can strike down the regulations and order the agency to promulgate ones that will be in compliance with the law.

You gave as an example the many times that Bush administration agencies' interpretations of laws were so struck down. This seems to show that our bureaucracy is not dictatorially 'rewriting' laws over the language and intent of Congress.
 

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"If you consider the bureaucracy rewriting laws of Congress to be a problem requiring a remedy, what remedy do you offer as an effective option?"

To clarify, it seems to me we have ready evidence of a remedy: if the bureaucracy has rewritten the laws of Congress you go first to the courts. We know, from the example of the Bush administration having its rewrites struck down, that the Courts can and do police bureaucratic interpretations of laws as impermissible 'rewrites.' And currently our Courts are engaged in reviewing this alleged ACA 'rewrite' among others.

That the courts don't always find every interpretation that you think amounts to a 'rewrite' to be one doesn't mean we have a dictatorship, it could mean that you're wrong about it being a rewrite and the court is right (or vice versa). Either way, we know the courts will and have recently struck down agency interpretations as impermissible 'rewrites.' Doesn't sound like much of a dictatorship to me...
 

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Mr. W:

Under the progressive theory of the administrative state, the regulatory bureaucracy fills the details into Congress's broad enabling statutes by imposing regulations.

In King, the IRS bureaucracy went fundamentally further by rewriting an express provision of the statute that it deemed unworkable.

I am referring to the latter act when I am discussing the bureaucracy rewriting the law.

You suggested that we can remedy the latter problem by electing a new president some years later, who will appoint a new civilian head of the bureaucracy and reverse the rewrite.

I observed that progressive courts have sided with the bureaucracy's interpretation of the law over a subsequent President in the past. Thus, your proposed remedy is problematic.

Admittedly, my example concerned an earlier bureaucracy enacting regulations to fill in the blanks of an enabling statute. Perhaps, the courts considering a presidential revision of a bureaucratic rewrite might rule for the presidential reversal. Given the lower court history in the King case, I have no faith the progressive courts will do so.

That is why it is absolutely critical that the Supreme Court rules against the IRS rewrite of the unambiguous subsidy provision and categorically forbids the bureaucracy from doing (and the lower courts from rubber stamping) anything remotely like this in the future,

If not, the rule of law will be rendered optional and the only real remedies left are 4 and 5 on my list.
 

The flaw in our own Mr. Myth's question is that regarding King v. Burwell, the subject at hand, there has been no determination that the bureaucracy has rewritten Obamacare which was passed by Congress and signed into law by President Obama. I'm not prepared to get into a full blown discussion on the Administrative State that has been established starting in the late 19th century, and which has continued to date with significant modifications, including reforms of salarization, civil service and public participation, all via acts of Congress, signed into law by presidents of both parties, including the APA, with testings by the judiciary, including by SCOTUS.

Our Own Mr. Myth wants me to be serious. But he has been a Chicken Little since Obama's inauguration with his cries for impeachment and now revolution. Our own Mr. Myth is trapped by his hyperbole. Note the variation in his final listing of alternatives to his flawed question:

"5) Peaceful or armed revolution?"

Our own Mr. Myth, hoist by his own petard, throws in "peaceful" which indicates some concern on his part that he may have stepped over the line.

All I can do is await the decision of the Court in King v. Burwell. Perhaps our own Mr. Myth thinks, in his CO Mile High (state of mind), that as the top DUI legal defense counsel in his small mountaintop community that he can convince certain potentially straying conservative members of the Court on King v. Burwell to back the petitioners. Alas, our own Mr. Myth is a NOAGN* in the scheme of things. Remember, it was our own Mr. Myth who said revolution was the only alternative if .... He said nothing of "peaceful." (Query: How effective are peaceful revolutions, assuming such can be fairly precisely defined?

The Administrative State is here to stay. It can and should be improved. But it requires action first by Congress. But Congress is politically dysfunctional. With King v. Burwell the ball is in the Court's court. Let's wait for the decision. Of course there's nothing wrong with thoughtful commentary, applylng precedents of the Court. But our own Mr. Myth's hyperbole is, to put it politely, Chicken Little.

As I noted in earlier comments on other threads at this Blog on related topic, when SCOTUS 5-4 "elected" George W with its last Bush v. Gore decision, there was no revolution, not even a peaceful one. And America survived - but just barely - as the Bush/Cheney Administration went down in flames with its 2007-8 Great Recession (not to mention two wars, etc).

 

OOPS! Our own Mr. Myth has modified, again, in his recent response to Mr. W with this:

"If not, the rule of law will be rendered optional and the only real remedies left are 4 and 5 on my list."

Mr. W accused our own Mr. Myth of moving the goalposts earlier, so what does our own Mr. Myth do? Why, move the goalposts once again.
 

"went fundamentally further by rewriting an express provision of the statute that it deemed unworkable.

I am referring to the latter act when I am discussing the bureaucracy rewriting the law."

Yes, whether they went 'fundamentally further' is what is now being deciding by the courts.

"You suggested that we can remedy the latter problem by electing a new president some years later, who will appoint a new civilian head of the bureaucracy and reverse the rewrite."

Yes, that's one remedy, the other going to the courts.

"I observed that progressive courts have sided with the bureaucracy's interpretation of the law over a subsequent President in the past."

Here's the disconnect I think: another way to describe what happened was that the Courts felt that the Clinton administration's bureaucracies' interpretations were within the law and that the subsequent Bush administration bureaucracies' different interpretation went 'fundamentally further' beyond what the law required/allowed, and so they struck them down.

Of course while a subsequent Presidental administration can change a preceding administration's regulations, they cannot, and should not, be allwed to change them to one that goes 'fundamentally further' than what the law allows.

Again, another way of saying this is that the Courts never found the Clinton regulations to go 'fundamentally further' than the law allowed but did so find that the Bush ones did.

So, what's the upshot of all this? It seems to me that it is this:

1. Executive administrations can interpret laws they are tasked with differently (such that one remedy for an interpretation you don't like is to elect a different one who will change the interpretation)

2. No executive can interpret the laws in a way that goes 'fundamentally further (or shorter)' than the law allows/requires. We saw that when the Court struck down many Bush interpretations.

That looks like two very real checks on the executive bureaucracy to me. If Ceasar could have been voted out or had his decrees struck down by an independent court his title of 'dictator' wouldn't be very frightening these days.


 

1. Executive administrations can interpret laws they are tasked with differently (such that one remedy for an interpretation you don't like is to elect a different one who will change the interpretation)

2. No executive can interpret the laws in a way that goes 'fundamentally further (or shorter)' than the law allows/requires. We saw that when the Court struck down many Bush interpretations.

Once again, the enabling laws were extremely broad and did not require or prohibit either the Clinton or Bush rules.

I am unaware of any court which has upheld a president's decision to reverse a regulation without the bureaucracy going through an entirely new rule making process, often taking years.

Simply replacing the president is not an effective remedy for either the bureaucracy issuing bad regulation or rewriting the laws of Congress. You always return to court, which is remedy three on my list.

 

Shag:

Care to participate?

If you consider the bureaucracy rewriting laws of Congress to be a problem requiring a remedy, what remedy do you offer as an effective option?

1) Congress and the President enacting a law reversing the rewrite?

2) Congress impeaching a President who ordered the rewrite and/or is defending it with a veto?

3) The Supreme Court enforcing the law and reversing the rewrite?

4) The states calling for a constitutional convention to amend the constitution to strip the bureaucracy of legislative and judicial powers?

5) Peaceful or armed revolution?

BTW, you can have both peaceful and armed revolutions which succeed in achieving regime change.
 

Our own Mr. Myth repeats himself with the same basic flaw. For that reason I again decline to participate in what is apparently a gastric problem for him. But note his closing:

"BTW, you can have both peaceful and armed revolutions which succeed in achieving regime change."

for which he fails to provide alternative;y failure of such. Perhaps he is the designated leader of libertarianism, at least the anarcho variety, in case of such of his suggested revolutions. But I don't think that even libertarians are lemmings.

Take some Pepto-Bismal for your chronic repetitions, "Dick-Tater.
 

Shag:

You are correct. Revolutions often fail, which is why they are my last remedy.

Assuming you wanted to reverse a bureaucratic rewrite of a statute, what remedy would you pursue and why?
 

A comment reminds that "small mountain" is "Monticello" in Italian.
 

Our own Mr. Myth's admission:

"You are correct. Revolutions often fail, which is why they are my last remedy."

suggests he is a revolutionary. Why would I want to get into a "trickle down" contest with a revolutionary, especially one who takes the position that the Administrative State violates the Constitution and that America's best days were The Gilded Age, which preceded the Administrative State. Our own Mr. Myth has a long history at this Blog of being irrelevant to reality, venting venom and vitriol, including with his specious claims of dictatorship. I have politely referred to him as a Dick-Tater. I frequently state that in the scheme of things our own Mr. Myth is a mere NOAGN.* The last time I did, I neglected a note of explanation. I don't know if Joe's "Monticello" comment was triggered by that failure or by my aka references to Justice Etna and Justice Vesuvius in an earlier comment of mine or perhaps to my reference to our Mr. Myth being legal king of the hill at his small mountaintop community, or perhaps unrelated to any comments by me but to the book he's reading on Madison. Whatever, I got a chuckle from it. But lest I forget again:

*NIT ON A GNAT'S NUT
 

"Simply replacing the president is not an effective remedy for either the bureaucracy issuing bad regulation or rewriting the laws of Congress."

You yourself have offered up a recent example: President Clinton came in and his administration changed the interpretations of the previous administration.

Now, you think their rewrite, which was upheld, was 'bad regulation' and Bush's subsequent rewrite, which was struck down by the courts as 'bad regulation,' was not. But that's just your disagreement with the Courts over what is an instance of 'bad regulation' in violation of Congressional law. What we do know is that Courts will allow administrations to change previous administration's regulations (and therefore my example of electing a different President if you don't like a specific rewrite stands) AND that courts will police and strike down any rewrites they think are 'bad regulation' (Bush's).

Your claim of dictatorship seems to rest on a foundation of 'the courts allow regulations Bart doesn't like but strike down regulations he thinks are OK'.
 

With respect to accountability at the hands of voters in 2016 elections, I was amused by Trip Gabriel's NYTimes article "Republicans Set Up Shop in Iowa, Where Few Will Prosper." It may be that the Republican candidates for presidential nomination may somewhat emulate "March Madness," with "Sweet Sixteen" vying for 2016. Instead of the Clown Car, a stretch limo would be in order. Is it a coincidence that Ringling Bros. is dropping its iconic elephants by 2018? Tusk, tusk. But the GOP Clowns continue on.
 

I personally tired of all the King v. Burwell stuff & not a bit depressed it should be this close. But as GM does at Concurring Opinions, I can move on for now. The audio is available though.

More briefs will are available at the SCOTUS website (front page linkage) for the same sex marriage cases. Probably reflecting general interest, it also will release the audio on the same day. They seem to do this one every year or so.

The briefs by now have a certain repetition, but I like the choir amicus brief with its "miscellaneous" list of authorities. Song lyrics, such as the "West Side Story" lyrics it uses to end the brief.

It put a smile on my face after a depressing listen to the audio.
 

BD: "Simply replacing the president is not an effective remedy for either the bureaucracy issuing bad regulation or rewriting the laws of Congress."

Mr. W: You yourself have offered up a recent example: President Clinton came in and his administration changed the interpretations of the previous administration.

You have completely lost me.

You raised the side issue of the Clinton bureaucracy issuing "midnight regulations" in the waning days of his administration.

I never claimed that Clinton changed "the interpretations of the previous administration." His bureaucracy simply added another layer of regulation, largely out of public view.

"Now, you think their rewrite..."

What rewrite? The Clinton bureaucracy did not rewrite a hardwired provision of one of the enabling laws like the Obama IRS did in this case.

Your claim of dictatorship seems to rest on a foundation of 'the courts allow regulations Bart doesn't like but strike down regulations he thinks are OK'.

Among other things, dictators waive the laws of the legislature and impose their own by decree.

The fact of the Obama dictatorship is proven by his and his bureaucracy's many, many acts waiving the laws of Congress and decreeing their own. This case is just one example.

The courts provide a possible remedy to this dictatorship. Their decision one way or another does not change the fact of the dictatorship.
 

Our own Mr. Myth concludes his most recent rant with this:

"The courts provide a possible remedy to this dictatorship. Their decision one way or another does not change the fact of the dictatorship."

So is our own Mr. Myth suggesting a revolution to address this alleged dictatorship, even if the Court rules in favor of the petitioners in King v. Burwell?

That closing was preceded with his:

"The fact of the Obama dictatorship is proven by his and his bureaucracy's many, many acts waiving the laws of Congress and decreeing their own. This case is just one example."

Apparently our own Mr. Myth is both the judge and the jury in determining such proof claimed by him.

Our Dick-Tater's-Ship is taking on a lot of water with his Chicken Little cries of "dictatorship, dictatorship, dictatorship" as if his repetition will make it so. Earlier there came from his lips:

"You are correct. Revolutions often fail, which is why they are my last remedy."

But how would failure be a remedy? Let's hear from our Dick-Tater's followers.
 

"You have completely lost me."

The Clinton administration did what nearly ever administration does: they came in and changed the regulations authorized under the mandate of statutes. Then the Bush administration came in and changed them, but in this case the courts said they went too far beyond/below what the law allows/requires. The fact that the Clinton administration could change things shows that change of administration can mean change of bureaucratic rule; the fact that Bush W's administration had their proposed change struck down shows that the Courts are willing and able to strike down changes they see as contrary to the laws enabling them.

"The fact of the Obama dictatorship is proven by his and his bureaucracy's many, many acts waiving the laws of Congress and decreeing their own."

Every administration makes changes in regulations and enforcements, and every administration has some of them challenged as having gone 'too far.' It's not different here, the courts are looking at several Obama administration 'rewrites.' The fact that every administration tries to change regulations is not proof of dictatorship, it's the opposite, it's one of the remedies we've been discussing (one way to overcome a regulation is elect a new executive who will change it). And the fact that the Courts sometimes strike rewrites you think are correct and sometimes uphold ones you think are wrong does not prove dictatorship, unless the measure of dictatorship is what Bart thinks is a dictatorship is a dictatorship.
 

Shag: "So is our own Mr. Myth suggesting a revolution to address this alleged dictatorship, even if the Court rules in favor of the petitioners in King v. Burwell?"

I am writing a book suggesting constitutional reform of our progressive political economy, the first amendment of which will strip the bureaucracy of all legislative and judicial power and grants Congress the power to provide a vote of no confidence in the president for failing to follow the law followed by an election.

Hopefully, this would reverse our gathering progressive dictatorship.
 

And if our own Mr. Myth's:

"Hopefully, this would reverse our gathering progressive dictatorship."

book-wish doesn't result in such reversal, then his suggested revolution?

Of course with his first book, he was able to convince many from buying it. Will he be a two-time loser?
 

Over the past several days of reading our own Mr. Myth's rants on revolution as the alternative for what he perceives as unconstitutional and on dictatorship, I have been reading Jared A. Goldstein's "To Kill and Die for the Constitution: How Devotion to the Constitution Leads to Violence." It can be downloaded via:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2570893

(A direct link is available at Larry Solum's Legal Theory Blog. Solum did not provide any editorial comments or recommendation. But of interest to followers of this Blog is the author's note with acknowledgements of Mark Graber, Sandy Levinson and Jack Balkin (as well as others), including a May 2, 2014 post by Jack at this Blog that I shall search for in the archives.)

The article is 46 pages in length, single spaced. It is worthwhile taking the time to read as it focuses upon the Posse Comitatus Movement of the 1970s, the Militia Movement of the 1990s, to how much of this has infected the current conservative mainstream especially with the election of President Obama in 2008. The author's Conclusion closes with this:

"For today's insurrectionary constitutional nationalists, drawing on the prevailing ideology of constitutional devotion, those who disagree with their view of the Constitution are not merely wrong, they are un-American and must be defeated to protect the nation and its Constitution by force if necessary."

That's enough of a tease. This is a sobering article that demonstrates potential results of the current political dysfunction.
 

CORRECTION: The May 2, 2014 post referenced in my preceding comment was not posted by Jack Balkin but by Jared A. Goldstein with the title: "The New Militia Moment." Go to the archives for May, 2014, and scroll down to May 2, 2014. That post had to do with mr. Bundy.:



 

Looked at the article -- interesting and insightful warning on the continuing problem with "faith" of all types, religious or constitutional, possibly leading to violence.

It provides counsel for some moderation, even when there is some call for distrust. The problems of such distrust and the violence it results in is discussed here:

http://www.theatlantic.com/politics/archive/2015/03/The-Gangsters-Of-Ferguson/386893/

It might be argued that our own revolution was a failure of the times. Anyway, we live in society, a republic with liberty and not license. Various people on different sides point (often in conflicting fashion) to serious wrongs.

The inanity of the litigation here might be on some level be seen in an optimistic light. Litigation is war by other means; war is not a good thing, but this is better than the other kind.
 

The author's acknowledgement in particular of Sandy brings to mind, again, Sandy's recent views on nullification and secession, perhaps results of political dysfunction. How serious is the threat of violence? Repetitions of tyranny, dictatorship, 2nd A rights of insurrection, etc, abound currently among conservatives. SCOTUS has contributed to this, at least indirectly, with the conservative-5 Roberts Court on Heller, McDonald, Citizens United, Shelby County, among other decisions. Compare the article's " ...today's insurrectionary constitutional nationalists ... by force, if necessary" with the civil rights movement's non-violence efforts. White supremacy and anger with the civil rights movement were part of the core of the posse comitatus movement of the 1970s and the militia movement of the 1990s; and such is reflected even currently with some in mainstream conservatism (although some of the mainstream support of Bundy evaporated following Bundy's subsequent racial remarks).
 

This comment has been removed by the author.
 

This comment has been removed by the author.
 

Shag:

Re: Jared A. Goldstein's "To Kill and Die for the Constitution: How Devotion to the Constitution Leads to Violence."

Constitutional nationalism teaches Americans that they should love the nation because it
cherishes a set of constitutional values and that these values are worth dying for.

"Constitutional nationalism" is a contradiction in terms.

Nationalism is the worship of the nation state. My team, right or wrong.

Our Constitution is instead about an idea. American was established upon the principles that we all enjoy a natural right to liberty and the government's job is to protect that right. The Constitution was drafted to put those principles into practice.

Unlike in other countries where the citizenry swears allegiance to a leader, state or nation, our elected leaders, the judiciary and the military who fights our wars all swear to support the Constitution and its guarantees of liberty.

Then Goldstein descends into the standard progressive guilt by association syllogism:

1) These various racists and fascists claim to be defending the Constitution.

2) The Tea Party movement and Republicans claim to be defending the Constitution.

3) Therefore, the Tea Party movement and Republicans are racists and fascists.

Or is it that supporting the Constitution makes you a violent racist or fascist?

Its hard to tell because the diatribe borders on incoherence.
 

In previous rants at this Blog in this and other threads, our own Mr. Myth has denigrated "elites." Was the Constitutional Convention in 1787 a gathering of egalitarians? Or were they, to put it colorfully, the creme de la creme of those times, i.e., men (not one a woman) of property, with many of their balance sheets listing chattel slaves? (The same was true with respect to the earlier Declaration of Independence.)

While our own Mr. Myth rants at "elites," he falls back on the Founders/Framers as ordinary people just like himself. Alas, our own Mr. Myth has flunked American history over and over again.

Reread what he said in his recent comment:

"Our Constitution is instead about an idea. American was established upon the principles that we all enjoy a natural right to liberty and the government's job is to protect that right. The Constitution was drafted to put those principles into practice."

Back then, what about all - women, slaves, Nativists enjoying "a natural right to liberty ..."? Of course it took a Civil War and amendments to the Constitution into the 20th century to bring such natural rights at least to former slaves and their progeny and to women (at least in principle if not in practice). But of course there was Jim Crow for many decades after the Civil War Amendments - what did the government do to protect the rights of African-Americans even to this day?

Now I'm assuming that our own Mr. Myth actually read Goldstein's although I'm not so sure he understood it. Note our own Mr. Myth's "Silly-gism" that he closes with. Note that it doesn't mention violence that is central to Goldstein's article as the remedy of our own Mr. Myth and his ilk to defend the Constitution as they understand the Constitution. Recall that it was our own Mr. Myth who came up with "revolution" as the only alternative to what he and his ilk determine to be unconstitutional. (Perhaps our own Mr. Myth should take a look at how the white propertied Framers addressed concerns with Shay's Rebellion in the Constitution.)

As I read Goldstein's article over several days, of course our own Mr. Myth came to mind, with his repetitious Chicken Little cries of "tyranny, revolution, elites, progressives" etc as pejoratives. Perhaps he should try clicking his heels together.

This latest rant of our own Mr. Myth comes after the 50th anniversary of the "Bloody Sunday" episode in Selma where the force, the violence against peaceful marchers under the banner of the 1st, 13th, 14th and 15th Amendments to that Constitution via the government of the State of Alabama. Yes, the federal government took steps to correct this. But Goldstein's article is a reminder of the posse comitatus movement of the 1970s and of the militia movement of the 1990s agitating against the civil rights movement following Brown v. Bd. of Educ. and the Civil rights Acts of the mid-1960s. As I noted in an earlier comment, compare the non-violence of the civil rights movement with the movements described in Goldstein's article.

By the Bybee [expletives deleted], what side was our own Mr. Myth cheering for on that 50th anniversary of "Bloody Sunday"?
 

Shag:

Most of the Founders were middle class farmers, merchants and professionals. The Revolution and the following stagflation under the initial confederation destroyed almost a quarter of the colonies' pre-war GDP. There was no plutocratic elite.

In defense of Goldstein's guilt by association logical fallacy, you are offering your own favorite logical fallacy. The fact that the Constitution did not originally extend liberty far enough does not mean that it was not designed to extend liberty.

If you can identify a coherent thesis underlying Goldstein's diatribe, please feel free to enlighten the rest of us.
 

Our own Mr. Myth's latest rant closes with this:

"If you can identify a coherent thesis underlying Goldstein's diatribe, please feel free to enlighten the rest of us."

It's impossible for all practical purposes to enlighten our own Mr. Myth with his "diatribe" reference. But my hope is that others will read Goldstein's article and come to their own conclusions.

Note that our own Mr. Myth does not follow up with respect to "violence" points I raised in earlier comments. The article provides details on the posse comitatus movement's "armed insurrection" means of what it considered was required to enforce the Constitution from what that movement claimed was unconstitutional. . At page 20 of the article:

"The Constitution thus provided the standard for when the Posse deemed violence appropriate-when the federal government violates the Constitution-and it also provided the authority for using violence through the insurrectionary theory of the Second Amendment."

In the section of the article on the militia movement of the 1990s, reference is made to "popular constitutionalism" made popular by Larry Kramer in his book. The movement picked up on this theme. Here's what the article says at page 28:

"Critics of popular constitutionalism have asked how the theory could be put into practice, what mechanisms the American people can use to enforce their constitutional understandings. Reviewing Kramer's book, Larry Alexander and Lawrence Solum state, 'The obvious question to robust popular constitutionalism is "How?" How can the people themselves interpret and enforce the Constitution through direct action?'

"The militia movement offered the obvious answer: Through violence.

"The militia movement was based on the philosophy that the people could force the government to accept its constitutional views under threat of violence."

Both the posse comitatus and militia movements in addition to claiming white supremacy, expressed anti-semetic views, claiming that America was founded as a white Christian nation, all supported by these movements' views of the Constitution.

The article is not going back to pre-Civil War America, rather focusing on the posse comitatus movement of the 1970s and the militia movement of the 1990s, concluding with how current mainstream conservatism has been infected by such movements.

Keep in mind our own Mr. Myth's revolution alternative expressed in this thread. Revolution connotes actual violence, not only the threat of violence. Our own Mr. Myth and his ilk proclaim themselves as judge and jury on what the Constitution provides, what is and is not constitutional.
 

Regarding the delegates to the Constitutional Convention, check out this website:

http://law2.umkc.edu/faculty/projects/ftrials/conlaw/convention1787.html

that includes this:

***

Who were the the 55 Delegates to the Convention?
The delegates to the Constitutional Convention did not represent a cross-section of 1787 America. The Convention included no women, no slaves, no Native Americans or racial minorites, no laborers. As one historian noted, it was a "Convention of the well-bred, the well-fed, the well-read, and the well-wed." The delegates included some very well-known figures from American history, such as George Washington, James Madison, Benjamin Franklin, and Alexander Hamilton. Other prominent Americans of the time, who might be expected to have been in Philadelphia, did not attend for various reasons. Prominent non-attendees include John Adams and Thomas Jefferson. The links below offer more information on the delegates.

***

Compare this with our own Mr. Myth's effort to deny the "elite" label to the Convention delegates with this:

"There was no plutocratic elite."

That adjective is BULLS**T!
 

John Oliver covered "why U.S. territories don’t have full voters."

http://www.washingtonpost.com/blogs/the-fix/wp/2015/03/09/john-oliver-on-why-u-s-territories-dont-have-full-voting-rights/?wprss=rss_politics

It was a revealing segment though it did not quite accurately address how the Constitution treats the voting rights of non-states. D.C. is a telling case -- it took an amendment for its residents to be able to take part in the election of the President. And, even then, it limits it to that of the least populous state.

The segment referred to the "Insular Cases," but overturning them completely would not really give Puerto Rico a voting representative in Congress (unless it becomes a state). Residents of American Samoa only being "nationals" as compared to "citizens" very well might be addressed though.

Territories also arose in the King v. Burwell case:

http://www.acslaw.org/acsblog/the-false-analogy-of-territorial-exchanges-in-king-v-burwell
 

BD: "If you can identify a coherent thesis underlying Goldstein's diatribe, please feel free to enlighten the rest of us."

Shag: It's impossible for all practical purposes to enlighten our own Mr. Myth with his "diatribe" reference. But my hope is that others will read Goldstein's article and come to their own conclusions.

In short, you can't identify a coherent thesis either. No worries because there is none.

Goldstein offered nothing of substance concerning the origins, rhetoric or goals of the various militia movements. Instead, he cherry picks a handful of violent episodes to support his guilt by association syllogism.

Any group which simply uses the Constitution as a rhetorical applause line and proposes policies which contradict the guarantees of the Constitution are not in any way, shape or form supporters of the Constitution and they are not acting to protect it. This includes your KKK and fascist terrorists.

That being said, many joined the sagebrush rebellion out here in the west and various militia movements over the past generation because of government violations of the Second Amendment and various property rights. The FBI and ATF threw gasoline onto that fire with their killings at Ruby Ridge and Waco.

The latest confrontation at the Bundy Ranch is a good example of one of these flare ups. The Bundy family has been ranching this land for around a century, long before BLM was formed and started charging grazing fees. The man read the Constitution and has a very reasonable complaint that the document nowhere grants the federal government the power to own and charge fees for open range that is not used for a government purpose.

There are millions of people out here in the West who make their living in or surrounded by federally controlled lands who have similar complaints.

At the movies, everyone cheers Robin Hood when he keeps the sheriff from hanging a peasant for daring to hunt on the king's land to feed his family. The militia who gathered to defend the Bundy Ranch see themselves very similarly.

The delegates to the Constitutional Convention did not represent a cross-section of 1787 America.

Never said they did.

What part of "most of the Founders were middle class farmers, merchants and professionals" did you not understand?

There was no plutocratic elite in America at that time. The young USA was in the middle of a depression and generally impoverished. Many of those founders had their position in the community and not much more.
 

Our own Mr. Myth continues to ignore the violene. Now he praises Bundy, even well knowing Bundy's racial view. Perhaps Our own Mr. Myth shares Bundy's racial views. And Many comply with BLM payment requirements. Bundy is a free rider. Perhaps our own Mr. Myth like conservative, racist free riders like Bundy. Federal lands are to be managed for the benefit of all. Bundy has been a freeloader. Here's our own Mr. Myth's defense of Bund:

"The man read the Constitution and has a very reasonable complaint that the document nowhere grants the federal government the power to own and charge fees for open range that is not used for a government purpose."

As our own Mr. Myth should well know (after all he is his small mountaintop community's top legal defense counsel) that the Constitution is not a Code. Perhaps he questions the government's right of ownership of public lands.

Perhaps our own Mr. Myth openly sympathizes with the posse comitatus movement of the 1970s and with the militia movement of the 1990s, including their anti-seetism and claims that America is a white Christian nation embedded in the D of I and the Constitution. Perhaps he is even a member of a non-state militia in his CO Mile High State (of mind).

Our own Mr. Myth is incoherency personified. Does he answer the "How?" question with violence, with himself as the judge and jury of what is or is not constitutional? Is this consistent with being a member of the CO bar? How representative is our own Mr. Myth of libertarianism?

By the Bybee [expletives deleted], how many of those "middle class farmers" at the Convention were slaveowners? And how was "middle class" defined back then?

Perhaps with his rants our own Mr. Myth thinks he can discourage others from reading Goldstein's article, perhaps with not so subtle threats of his "Come the Revolution!"
 

Shag:

I was wondering how long it would take you to offer a red herring concerning Bundy's viewpoints that have nothing to do with his property dispute with the federal government. You made it all the way to your second sentence.

I was also wondering how long it would take you to employ Goldstein's guilt by association smear. You waited until your third paragraph to dump that sludge.

I do not see where the Constitution grants the federal government the power to own property other than that required for government operations. See Art. I, sec. 8, cl. 17 read in para materia with Art. IV, sec. 3, cl. 2. Until the progressive era, the federal government turned over control of territorial land to each state as it was created.

If the Constitution does not grant the federal government the power to own property for other than government purposes, then Bundy is hardly being a free rider by not paying the government for its use. This land was free range for about a century before the feds started charging fees.

Bundy has a valid textual point.
 

Perhaps our own Mr. Myth with his constitutional expertise might seek to represent in a class action (if in any sense our own Mr. Myth has any class) those who have been "damaged" by complying with BLM rules and regulations that Bundy "lawfully" evaded. Our own Mr. Myth should pursue Mr. Bundy's alleged valid textual point as it may be more challenging - and rewarding - than addressing problems of alleged DUIs.

Many conservative pundits who had glorified Bundy's cause dropped him like a hot potato when Bundy released his torrent of racial epithets. But not our own Mr. Myth, who declines to reveal his views apparently on several views that the referenced posse comitatus and militia movements members had.

But the real point of Bundy is the threat of violence he brought to bear.

Today's NYTimes features Manny Fernandez's "Secede? 'Republic' Claims Texas Never Joined U.S." that is somewhat related although the "Republic" doesn't seem to deal in violence. It's amusing and at the same time disturbing. If former TX Gov. Rick Perry fails to get the GOP nod for 2016, perhaps the "Republic" can be his fall-back position with his ranch as its Capitol. (Now what's the name of that ranch?)
 

Here's another snippet from Goldstein's article (pages 30-1):

"President Clinton declared that the militia' threats of force were the very definition of lawlessness. Relying on the Second Amendment, militias countered that they were constitutionally entitled to use force to resist government tyranny. Yet if the Second Amendment enshrines a right to use force to resist government tyranny, how is it to be decided when tyranny is present, and who gets to make the decision? Proponents of insurrectionist theory have argued that armed resistance under the Second Amendment is reserved for extreme circumstances. That assertion does not, however, provide guidance on when such circumstances occur or who gets to decide when violence is justified."

Apply this to our own Mr. Myth's revolution as the only alternative expressed in this thread if he is dissatisfied with the decision of the Court in King v. Burwell. Would our own Mr. Myth act as judge and jury?
 

Shag: "Many conservative pundits who had glorified Bundy's cause dropped him like a hot potato when Bundy released his torrent of racial epithets."

Your abuse of the race card has never scared me.

Bundy can hate half the human race and still be correct on the merits of the dispute.
 

Our own Mr. Myth pulls this from his derriere:

"Your abuse of the race card has never scared me."

Why would I try to scare our own Mr. Mr. Myth when I only seek to scar him. It is well known at this Blog that our own Mr. Myth's vileness and venomous diatribes regarding America's first African-American President began even before his inauguration in January of 2009. Our own Mr. Myth has served as a troll at this Blog with constant attacks, culminating in his current "revolution" mode. No need to scare our own Mr. Myth but only to expose him for being so ridiculous. Our own Mr. Myth may think his race card games are subtle but he is a dog whistler.

 

May we expect from our own Mr. Myth a call for "revolution as the only alternative ... " regarding the recent virtually unanimous SCOTUS decision in Department of Transportation v. Association of American Railroads?
 

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