I would imagine that one might surmise from a heading that alludes to a big mistake and contains the names Kagan and Sotomayor, that what follows is a hatchet job on the junior Justices of the United States Supreme Court. How could I do such a thing to those who have not had a chance to carve out their niche on the high court? To all of that, I declare, “not so fast my friends.”
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It has been an active few weeks for the Federal government’s”other branch.” As previously chronicled, the Affordable Care Act and its controversial mandate were argued. Its chief litigant, apparently Ruth Bader Ginsburg, noted during the proceedings “a major, major point of your (the Administration’s) argument was that the people who don’t participate in this market are making it much more expensive for the people who do.” It is a core argument in favor of the law; however, these core arguments usually originate from counsel’s side of the bench.
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Fast forward to this week, and Arizona’s controversial immigration law SB 1070 was contested. In this case, the Administration was on the plaintiff’s side of the suit. Arizona seeks to grant itself authority on immigration matters that does not exceed Federal statute. This position does not sit well with the Administration, which claims that the Federal law pre-empts the State law.
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While Federal law trumps State law via the supremacy clause of the United States Constitution, the ninth and tenth amendments to the Constitution grant individuals and States those rights that are not specifically retained by the Federal government. So long as the State of Arizona does not act with authority beyond that claimed by the Federal government, is not infringing upon the sovereignty of another State, and does not infringe upon the rights of citizens, the supremacy clause should not be invoked.
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Let’s turn the pre-emption argument on its ear. The Federal minimum wage is $7.25 per hour. Should the Federal government sue those States who mandate a minimum wage greater than the one prescribed by the FMWA? Arizona’s $7.65 minimum wage,Washington’s $9.04 wage, and the other fifteen States with higher than Federal standards all exceed their authority if the supremacy clause is to be used in such absolute terms. For that matter, Nancy Pelosi’s Congressional district has a minimum wage rate of $10.24 per hour. Can California sue the City of San Francisco?
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Let’s also apply this logic to the Affordable Care Act, and make the major assumption that all 2,700 pages will pass muster. What if the IRS decides in 2015 that it just does not possess the manpower to enforce the insurance mandate? Could the Federal government sue the State of Massachusetts if it decides to continue enforcement of its mandate? See, this is the slippery slope we travel when we use the supremacy clause as a means of declaring “what the government must do on your behalf.” (see last week)
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As the Supreme Court heard the various arguments over whether a State law mirroring Federal law violates the Constitution, the comments from the bench given the most weight came from Justice Sonia Sotomayor. This should come as little surprise. Sotomayor, while of Puerto Rican descent (by extension always a US citizen), can empathize with those who are considered prospective victims of SB1070. While she made some comments in that vein as a hat tip to the liberal wing of the court, the line that may wind up being the most memorable was when Justice Sotomayor told the Solicitor General, “You can see it’s not selling very well. Why don’t you try to come up with something else?” With Justice Kagan already having recused herself in this case, the Administration is in a position where it has to<i>gain</i> a Justice, not lose one who is naturally sympathetic.
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So what is the common thread in these Supreme Court setbacks for the administration? Both cases were argued by Solicitor General Donald Verrilli Jr. Verrilli earned a battlefield promotion when former Solicitor General Elena Kagan was tapped by President Obama to be the next Supreme Court Associate Justice. While nothing that Justice Kagan has done on the bench should make someone question her capacity to perform the job, her former role as Solicitor General makes her duty-bound to recuse herself on certain cases, thus making the court 4-4 at best (from the Administration’s perspective).
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If Justice Kagan were still in the Solicitor’s office, would the Administration see better days during oral arguments? All of this seems like a harsh filleting of the Solicitor General Verrilli. It is only natural to suggest that B happens after A, so A must be the cause. But let us not forget, Mr. Verrilli could not have attained his position by being bad at arguing in court. Certainly he hasn’t forgotten how to do it. If Verrilli is reliant upon sympathetic Justices to restate the core arguments he is being tasked to make, could it be the case that he does not have the Administration’s agenda in his heart? If that is the case, then President Obama may have learned the hard way that there are elements of the Judiciary that are lawyer’s first, politicians second.
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<b>KCBR update:</b> The Chestertown Elks (9-10 minor division) began the Babe Ruth season Thursday with a heartbreaking 5-4 loss to the Millington Big Dogs at Lions Field in Millington. The Elks tied the game with a two out, two RBI single in the top of the sixth. The Big Dogs came up in the bottom half of the inning to score the winning run with some good aggressive base running.
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The KCBR All-Star games will be May 19th at WortonPark. Members of the community should show up and cheer on the players. A small community’s baseball league is one of its greatest assets.
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If you want Troup’s Corner to publish your scores and synopses,contact the publisher for contact info.
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<b>Hooray For Trees!</b> I recently stopped by Town Hall and picked up a sapling which will one day (hopefully) cover a bare spot of Troup’s yard. It was easily planted. All I had to was remove it from its (needle scratch) plastic bag!
Stephan Sonn says
Second guessingand the risidual mayham is almost unavoidable I was dissapointed that presentations you mention were so intellectually timid. Conservative court or not there was room for neuance and they picked the wrong person to attempt to court. Scaleia just amused himself whereas I think Roberts could have his mined opened, not to socialism, but to pragmatic reality.
Stephan Sonn says
Micheal I am trying to figure out by what mutation you turn out to be an antagonist when your mind works in such nuance rich fashion. I think it actually takes a liberal to understand this last symphony of syntax you wrote here. You do a detailed time line roll back that takes second guessing to to Zen level. Absolute conservatism is such a stark place for such a rush of lush consciousness. Loping off mountain tops and painting the slopes green roots you to conservatism, but it is not a good fit. It is not about converting to liberalism, or politely revering the other side. It is about getting out of Plato’s cave and into the sunlight. Of course it is none of my business and this vehicle is far from an epiphany workshop but who knows?