For those foolish people who believed Trump when he said that higher tariffs are not paid for by the US consumers... Trump has apparently changed his mind...
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31 comments:
People read things into the Constitution. They want to say those founders in that hot Philadelphia summer of 1787 dealt with and decided a lot of issues we are facing 240 years later. This is the fundamental assumption of "Originalism". It's not my favorite doctrine. I don't think legislative bodies have original intent when they are making laws today, let alone have an original intent that can be discerned after a couple of hundred years later. But there are things where the document is pretty clear, where it refers concepts that haven't changed over the passage of time. One of the huge motivating ideas of the American revolution, and the constitution that was enacted in its aftermath was that there should be no taxation without representation. The constitution is clear on this. It gives the authority to originate tax legislation to the house of representatives, the only body established by the constitution directly elected by the people. So why does President Trump think he can unilaterally enact taxes on his own authority?--Hiram
Apparently he rationalizes that it is a National Defense action...
The constitution gives the power to make Lawar to Congress, for what I am sure are exactly the same reasons they gave the power to tax to the legislative branch. My guess is that decisions of taxation and war were too important to be left to one individual. Were they wrong?
==Hiram
We will see what SCOTUS rules this time.
The Supreme Court justices are running scared. They knew they could be aggressive with President Biden because they understood he would accept their rulings. They don't know that with Trump. They are very aware that if Trump defies even one of their rulings in any significant way, that will be the end of their role as an effective branch of the government. And from that, there will be no going back. The power lost in the Trump administration will not be restored in any subsequent administration. This is what keeps John Roberts up at night.==Hiram
I think I disagree with that assessment. :-O
Back in the day, we used to talk about how the Supreme Court was like an umpire, calling balls and strikes without regard for who was up. That changed when Chief Justice Roberts, a political lawyer with a very specific agenda came onto the court, and we have been living with that ever since. Now we have Republican justices and Democratic justices. We have nominees to the court who openly lie during nomination hearings. We have justices who compose lengthy, erudite and dare I say it, intellectually brilliant opinion which contradict obvious truths. America has a Supreme Court problem.==Hiram
Or the SCOTUS of the past over reached?
The concern with the court has always been the Lord Acton thing about absolute power corrupting absolutely. Since Marbury v. Madison the court has crafted a lot of strategies, and done a lot of public relations to convince the public while it was powerful, it wasn't corrupt. That h elps to explain the whole balls and strikes thing. The irony of that is that it came from a guy whose legal career was entirely political, and who since coming on the bench has demonstrated a clear political agenda which he pursues with determination. Problems often carry their own solutions. Dred Scott, the classic overreach was corrected by the Civil War. How will this current era of overreaching end? With a rejection of the court altogether?==HIram
What "over reaching" do you think they are doing?
For me, the decisive turning point was the Supreme Court's intervention in health care policy. The fact is, nobody at the 1787 convention thought they were making 21st century health care policy. For another, the sheer arrogance of the decisions astounded me. Health care is an extraordinarly complex issues, and the thought that these nine inviduals who have no specific expertise at all in the subject were determining policy seemed to me the height of absurdity.==Hiram
A lot of it goes back to Gore v. Bush, another important moment in history. Federal elections are state law matters. That's in the constitution, and when you think about it, it makes a lot of basic sense. Federal elected officials shouldn't be in charge of running their own elections. Following this logic, the Supreme Court should not have reversed the Florida Supreme Court's ruling. But they did. They took a case they should have never taken, and they made a decision they should never have made. They "overreached". And you know, then and now, I have never been of the opinion that they were wrong to do so. That's because they knew that Republicans on the state and federal level were prepared to defy court rulings, which would have set in motion a constitutional crisis. So the Supremes did what they did to avoid a greater evil, but in the process, they undermined their credibility, and set themselves on the path to what I think will be another constitutional crisis, in the near future.==Hiram
In Philadelphia in 178 7, made a decision that has dominated hour history and our country since the founding. They rejected our founding document, the Declaration of Independence, in order to accept slavery, both tacitly and in explicit terms. I understand their reasons for doing this. They wanted all the states to join the union, and without accepting slavery, that would not have been possible. For some at the convention, the issue had been decided forever, for others, it was put off to the future. The result was for next 70 years, slavery was the dominant issue in our national life, and issues related to slavery have been the dominant issue in our culture to this very day. You know, there are things which as much as I try, I do not understand. The constitution, we are told is color blind. Yet the constitution generally and specifically recognizes and accepts slavery. How can a color blind constitution do that?==Hiram
None of them seem very current... "How will this current era of overreaching end? " I thought you were talking about their current rulings that sometimes go against precedant.
Republican in general don't to things. There isn't a lot they have done for the Supreme Court to review. What immediately comes to mind is this court's overturning of voter rights legislation, something CJ Roberts has a long record of opposing. Another big issue was eliminating the independence of administrative agencies.==Hiram
I guess my thought is... Was the SCOTUS that approved the Voter's Rights Act and Roe V Wade the activist court and is this the one bringing things back to the middle?
I don't know... It is just an interesting perspective.
I think I spoke here of overreaching. A court that holds legislation constitutional is neither activist nor does it overreach. The fact is, over time, the court has gone through cycles of activist and inactivity. Marbury v. Madison was both. It held an act of Congress unconstitutional which was active, but did it in such a way that it didn't come into conflict with the Jefferson administration was inactive. Marshall wanted to establish a principle but not in a way that would risk confrontation with the executive. The next time the court held a statute was unconstitutional was Dred Scott, certainly one of worst decisions of any kind in our history. There have been other activist periods. The conflict between the nine old men and FDR comes to mind. The Warren Court with Brown v. Board and the series of cases which applied the bill of rights to the states.==Hiram
I used the term "overreaching", and I use it in two different senses. The first is where the Court allocates to itself power, that it doesn't realistically have. The civil rights cases are a good example of what I mean. In Brown the court ordered the integration of schools, but the next questions are what does that mean and how can it be implemented. Basically, what the court and the rest of us learned that court orders can go only so far in directing wide ranging social change. The second way I look at it is when the court revlegislates decided issues. I am thinking here of voting rights legislation. One of the weaknesses of this court is that it is comprised mostly of people whose political experience is very limited. Indeed, for the most part, few if anyone have ever practiced law at a basic level. Unlike the legislators who passed voting rights, they don't have any idea of how people actually vote, and it really shows.==Hiram
Dobbs was mentioned. A basic thing to understand about courts, and this goes deep into the nature of Anglo Saxon law, is an understanding that the powers of courts are very limited. Quite simply it's a lot easier to order someone not to do something than it is to do something. That is why when courts got into the business of running school districts, the results tended to be so disastrous. They don't have the wisdom to do things like that and really don't have the staff. Consider how that appli ed to Roe and Dobbs. Purely from a legal point of view, Roe was very workable. Abortion could no longer be a crime. Legally, the matter was setlle, and abortion related issues mostly disappeared from law courts. It did not "Rooverreach". It did not requires the court to exercise powers it did not have. When the court overturned Roe in the Dobbs cse, that was a choice to bring the abortion issue back to the courts, where no doubt it will be an unending source of litigation and lawyers' fees for eveh the unforeseable future. My own opinion about abortion is that the pro choice forces resorted to legal options, because they lost the social argument. Despite all that preaching from pulpits, women have abortions. And the overall irony is the same. Overreaching is problematic because too often it is unenforceable. Legal solutions don't work if they aren't accepted by society. That's what's happening with abortion. The legal issue has been decided, at least for now but the social judgment has changed. The rate of abortions has quite possibly increased, particularly because of changes in abortion itself. Pro choice forces wont the legal argument but lost the issue. That is a very old story indeed.==Hiram
I think I have learned that no matter what SCOTUS does, someone will disagree... :-)
I read a substacks yesterday that argued that all the dem candidates for president in the 2028 election are going to have to support expanding the the supreme court to win support from dem voters. I will be looking for a candidate to support that wants to expand the court. If anyone is interested in this substack I can post a link.
Laurie
My own view is that at some point, a president is just going to defy a Supreme Court ruling, and that will be the end of it's role in politics. It really will become what CJ Roberts suggested he want it to be, a sort of umpire calling balls and strikes who nobody pays to watch.--Hiram
Laurie, So you want to use politics to ensure SCOTUS rules in the favor of your views? That is so interesting... It seems like something McConnell would do. :-O
With respect to politics, the Supreme Court has been changed and there is no going back. It is quite clear that justices are chosen for political reasons. in 2016, as part of his campaign, President Trump provided a list of indivdiduals he would nominate to the court. The fact that the court has been politicized is a reason why I expect, and not that uncomfortable that at some point it's authority will be defied, and it's power pretty much ended. When they chose to become politicians, the fact that they have to reckon is that they will be very poor ones.==Hiram
I am not sure if Clarence Thomas always rules "Far Right" for political reasons. Or if he simply interprets the law differently from Sonia Sotomayor who almost always rules "Far Left".
How do you determine what is is political and what is legal interpretation differences???
One way to evaluate the impact of politics on the court is to look at issues that aren't inherently political or if they are, skew in a specific way, politically. One are like that is birthright citizenship. Historically, this has not been a politicized issue. The constitution is clear on the subject and the case law settled. American law has proceeded in such a way, that birthright citizenship is assumed. You know you are a citizen if you were born here, because the constitution is clear on the subject, not because of any statute on the subject. That changed with Donald Trump. He did politicize the issue.Three justices and pretty close to a fourth justice voted to eliminate birthright citizenship, not because of any change of circumstance, but because a president wanted them to do it. That is a politicized court, comprised of people who nobody voted for.==Hiram
This one seems to agree with you... Link
https://www.brennancenter.org/our-work/analysis-opinion/supreme-court-upheld-birthright-citizenship-ruling-should-have-been
In a lot of areas the Constitution is pretty vague. The framers were very aware of the problems of setting policy for future generations with unforeseeable problems. The constitution as unamended is very much a process not policy document. A couple of things they were very specific on were issues where the policy considerations were specific to the challenges the revolutionary generation faced but are recognizable today. The founders really hated taxation without representation. They gave the power to tax to the representative branch of government, and power to initiate tax measures to the House of Representatives, the one branch of government always elected by the people. Lately, we have seen election powers challenged. The framers gave the power to run federal elections to the states. The reasons for that seem as obvious sethen as now and just as convincing. They didn't want federal officials to be the judges of their own elections. They feared someone like Trump who would try to steal them. Why is it possible for someone like Trump, someone who was caught actually trying to steal an election, to try to order otherwise without provoking universal opposition? I try to understand a lot, but I really don't understand that. Haven't these folks read the constitution? It does come in a very convenient pocket form these days.==Hiram
Probably like the Bible.. Readers choose to interpret and give emphasis to what they want it to say. And I am sure the vast majority of citizens have NO idea.
The Bible is pretty complicated. It was written over the course of a thousand years, and that's a lot of years. I watch these TV shows on the Bible, and they are pretty complicated.==Hiram
Yup. Perfect for this... "Confirmation Bias: the tendency to search for, interpret, favor, and recall information that supports one's preexisting beliefs while ignoring or dismissing contradictory evidence. "
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