I am out traveling with limited access, but would otherwise want some of these points discussed in addition to the ones on Legal Issues.
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http://www.powerlineblog.com/archives/2012/03/justice-breyer-flunks-con-law.phpJustice Breyer flunks Con law Scott Johnson, Powerline
Reading the transcript and listening to the audio of day 2 of the Obamacare argument, I was struck by the sheer intellectual laziness and complacency of Justice Breyer. To liken him to a rodeo clown would be to credit him with too much energy. Referring to the key New Deal Commerce Clause case of Wickard v. Filburn, Breyer asked, for example: “Didn’t they make that man growing his own wheat go into the market and buy other wheat for his — for his cows?”
Well, actually, no, Justice Breyer, they didn’t. “They” — Congress in an amendment to the Agricultural Adjustment Act of 1938 — limited the amount of wheat farmer Filburn could grow on his farm under a quota set for him by the geniuses in Washington (or penalized him for exceeding the quota). “They” didn’t make him go into the market and buy wheat for his cows. That’s the point — the point Randy Barnett has argued for the past few years.
The distinction between the case vaguely recalled by Justice Breyer and the one decided by the Supreme Court in the Wickard case might be the difference between a pass or a fail on a fairly graded Con law exam in law school. It goes to the heart of the Obamacare case. Justice Breyer has apparently been pursuing other intersts over the past few months.
As Jeffrey Anderson and Conn Carroll have observed, this wasn’t necessarily Justice Breyer’s only laugh-out-loud moment during day 2 of the oral argument. And if Justice Breyer were not a party-line liberal, you would have heard about it.
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http://www.powerlineblog.com/archives/2012/04/barack-obama-constitutional-ignoramus.phpBarack Obama, Constitutional Ignoramus Steven Hayward, Powerline
I’m grateful for the favor Obama did for us yesterday of exposing his extreme constitutional ignorance, with his comments on how it would be “unprecedented” for the Court to strike down a law passed by a “strong majority” in Congress. (As if a House margin of seven votes is a “strong” majority.) True, he walked back the comment today, but surely because his statement was not merely indefensible but outright embarrassing to his media defenders.
I’ve been growing weary of hearing people mention that he’s a “constitutional scholar,” since he never published a single thing on the subject either as editor of the Harvard Law Review or as a member of the faculty at the University of Chicago Law School. But hey—he taught constitutional law, didn’t he?
Not really.
His course on constitutional law, one of several constitutional law courses on the U of C curriculum, dealt exclusively with the equal protection clause of the 14th Amendment—the favorite, all-purpose clause for liberal jurists to use to right wrongs and make us more equal by judicial fiat. There is no evidence that Obama ever taught courses that considered other aspects of constitutionalism, such as executive power, the separation of powers, the Commerce Clause, or judicial review itself.
I have a copy of one of his final exams. It is a long hypothetical involving civil rights, which begins thus:
In part, Hardsville’s racial isolation is the result of white flight and the limited economic means at the disposal of the black community. It is also well documented, however, that Hardsville’s racial isolation arose in part due to decisions by a white-controlled city government prior to the seventies that were purposely discriminatory.
So you can see what kind of “narrative” this exam question promotes, and hence the kind of answers likely to get an A from Professor Obama. One of the questions students are asked is, “What is the likelihood that the city will be held liable for violating the constitutional rights of blacks under the Equal Protection Clause. . .” There’s a second hypothetical involving potential gender discrimination under the Equal Protection Clause.
A law student in Professor Obama’s class would learn virtually nothing about the constitutionalism of the Founding, or even of John Marshall or Joseph Story.
Now, clearly Obama is hoping to intimidate the Court in the same way FDR did in 1937 with his court-packing scheme. Some time later I’ll discuss FDR’s extraordinary rhetoric attacking the Court that year, but suffice it to say for now that Obama already showed his hand with his inaccurate attack on the Citizens United decision in the State of the Union speech two years ago. As John Steele Gordon put it well, “It seems there is simply no lie President Obama will not tell in pursuit of his agenda.”
Notwithstanding the fact that Justice Alito could be seen mouthing the words, “Not true,” the Supreme Court by its traditions does not hit back at the President or Congress in these kind of brawls. But thank goodness for the Fifth Circuit Court of Appeals, which today rather tartly demanded that the Justice Department please explain, in at least three pages, within 48 hours, its understanding of judicial review. This should be interesting. Here’s a copy of the follow-up letter from the court... more at link
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http://www.powerlineblog.com/archives/2012/04/obama-walks-back-supreme-court-threat-still-gets-it-wrong.phpObama Walks Back Supreme Court Threat, Still Gets It Wrong
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http://www.powerlineblog.com/archives/2012/04/does-the-commerce-clause-negate-the-rest-of-the-constitution.phpDoes the Commerce Clause Negate the Rest of the Constitution?
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http://online.wsj.com/article/SB10001424052702303816504577321844137787970.html?mod=WSJ_Opinion_MIDDLETopOpinionThe Man Who Knew Too Little
President Obama's stunning ignorance of constitutional law.
James Tarranto WSJ, at the link