Tag Archive for 'SCOTUS'

The politics of the Supreme Court

By now, you know that one of the great Supreme Court justices in the history of our country passed away unexpectedly. Even those who disagreed with almost every decision Antonin Scalia ever cast had immense regard for him and his work. Indeed, Scalia and his liberal alter ego on the court, Justice Ginsberg, had been best friends for decades, even before they were on the nation’s highest court.

In our online poll this week, we asked you to weigh in on the debate about the process for replacing him. Here were the responses and my comments:

20% - The president should nominate a replacement and the Senate confirm this year.
23% - They should start the process to see if a replacement can be confirmed this year.
16% - The president should not nominate a replacement in his last year in office.
41% - Even if a replacement is nominated, the Senate should not confirm this year.

Only one-in-five of respondents to our first option think the president and Senate should just get along together and do their business this year. But there are circumstances that complicate this logical and Constitutional scenario, like ideological balance of the bench and the impending election to replace the sitting president. Kumbayah will not be part of this scenario

I kinda like the second group, representing almost one-fourth of our sample, because they’re saying, regardless of the politics, both parties should just give it their best shot in the process of doing their job. Everyone knows the president is going to nominate and the Senate is likely going to reject. So quit jawboning and get to work.

The third group is the smallest, with 16%, who think the president should just stand down on this issue, since he’s out the door in less than a year. But even though he likely knows he’s not going to get a nominee confirmed, he will at least be able to use the rejection to help his party. It’s politics, and any president of either party would do it.

The largest group, at 41%, is the most troubled by the imbalance of the Supreme Court. They’re counting on a party change in the White House next year, and maintaining the majority party in the Senate. For now this group, and the Senate, are in the catbird seat.

Just when you thought the political season couldn’t get any weirder or more complicated, with a socialist and a billionaire running for president, the arch-conservative Justice on a tightly divided Court dies, leaving his replacement up to a president who is his polar opposite politically. As I’ve written before, we continue to live the Chinese Curse: May you live in interesting times.

To take this week’s poll on the US economy and your small business sales in Q1, click here.

Gobsmacked!

Gobsmacked!

That’s how I felt when I heard the news about the Supreme Court ruling on Obamacare. It’s not that I believed the law would be found constitutional - I gave up trying to predict the high court a long time ago.

And it wasn’t even that Chief Justice Roberts, not Justice Kennedy, was the swing vote. Grace-Marie Turner, president of the Galen Institute, health care policy expert and frequent guest on my radio show had warned us more than once not to be surprised if this happened.

The part that gobsmacked me, and basically everyone else, was the method that Roberts used in order to find a way to render Obamacare constitutional, which was nothing short of contrived (I promise, I’m using this word as the best way to describe his decision, not to be pejorative). Writing for the majority, Roberts divined that the individual mandate, the financial linchpin of the law and the most controversial element, is a tax. And since the Constitution gives Congress the power to tax citizens, the mandate is constitutional.

All of this would be well and good, except that for three years, the namesake of Obamacare and all of its other proponents vociferously argued that the individual mandate is a penalty, and absolutely NOT a tax. In fact, the high court ruling actually included that Congress does not have the right to expand the interpretation of the Commerce Clause (Article I, Section 8, Clause 3, of the U.S. Constitution) to include penalizing a citizen for not buying a product or service. (And that’s good news as a precedent for the future.)

So, based on that decision, Obamacare would not be constitutional if it were considered as written, passed by Congress and signed by the President. But since Justice Roberts - and the four so-called, “liberal” judges making up the majority - transmogrified the penalty in front of them into a tax, that allowed Obamacare to be rendered constitutional.

Some say Roberts made his decision to prevent his court from being perceived as partisan, the way the Rehnquist court was after the 2000 Bush v Gore decision. Some say - and a part of his written opinion actually intimates this - that Roberts felt the future of Obamacare should ultimately rest in the hands of the electorate, which he knew would be possible in barely more than four months.

By voting with the liberal wing of the court, Chief Justice Roberts declared his independence and demonstrated intellectual honesty; both are traits I admire very much. But, alas, I fear the contrived method he used - turning a penalty into a tax - to produce this particular ruling may go down in history as not the finest hour of this chief justice.

Finally, here’s a political observation: The Roberts’ ruling on Obamacare was a gift to Republicans, but not the way many pundits are saying. I think it will result in longer coattails for Mitt Romney on November 6 with the down-ballot candidates, like the House and Senate, to a degree that he would not have been able to achieve on his own.

We continue to live the Chinese curse: “May you live in interesting times.”

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Since last week’s Supreme Court ruling on the Patient Protection and Affordable Care Act, I have talked with several experts on my radio program, including Michael Reagan, Barbara Weltman, Grace-Marie Turner and Rich Galen, on what will happen now - from the potential costs and implementation of the bill to the politics and possibility of repeal. Click here to see the list of guests and listen or download any of our conversations.

Check out more great SBA content HERE!

Small Business Advocate Poll: Where do you stand in regard to ObamaCare?

The Question:
On the 2nd anniversary of the Patients Protection and Affordability Act (ObamaCare),
where do you stand on this law?

12% - I like it and think it will be good for America.

78% - I don’t like it and think it should be repealed.

10% - Undecided

Commentary:
In an ironic coincidence you can’t make up, during the week of the second birthday of Obamacare, the Supreme Court heard more than six hours of arguments - for and against - as it considers challenges to the constitutionality of ObamaCare.

During this momentous week we wanted to know the attitude of small businesses - Main Street’s court - on Obamacare, so we asked our audience this question: “On the 2nd anniversary of the Patients Protection and Affordability Act (ObamaCare), where do you stand on this law?”

A little more than one-in-ten of respondents to our unscientific, online poll said, “I like it and think it will be good for America.” Those who said, “I don’t like it and think it should be repealed,” came in at a resounding 78%. And those who were “Undecided,” represented 10% of our sample.

We will find out in June if SCOTUS agrees with small businesses.

Check out more great SBA content HERE!

Take this week’s poll HERE!




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