quote:

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Originally posted by gotchacovered

I watched some of the proceedings the other day ago. Get this: the court was actually debating whether or not it had "jurisdiction" over this law based on whether or not this law itself said they did, which would, in turn, be based on whether or not the writing of this law fits the protection FROM the court provided to laws passed by Congress by, get this, another law (known as the Anti-Injuction Act). So, long story short, they were actually entertaining the idea that one act of Congress (a law) could bar the Supreme Court from deciding whether or not another Congressional act/law is Constitutional (which is what the Anti-Injuction apparently Act does). From what I could tell, and remember, if the legilators had worded Obamacare just a tad bit differently, and deemed it a tax, they would accept a no-jurisdiction argument. I wish I had recorded it. The stranger part was that the "independent" lawyer that they hired in to make the case for non-jurisdiction was at odds with the Solicitor General, who said he did not want to shut the case down on a no-jurisdiction claim. Scalia called him out, in a sense, saying that the reason he doesn't want to do that is because he wants to leave the door open for another strategy later, and even said something like, "today, you're claiming it's not a tax, but tomorrow, you'll be telling us it's a tax". It was ODD to say the least.

So, let me ask this question. If one of the Supreme Court's primary intended funtions is to hold Congress accountable to the Constitution by judging whether or not the laws they pass are Constitutional, then how in the world can the same Congress pass a law to OVERRIDE that power of the Supreme Court by making it illegal--excuse me, non-jurisdictional--for the Court to judge certain laws???????????

Is this the Twilight Zone?






Gotcha Covered,
Lee Strickland
Strickland Marine Insurance Agency, Inc.
https://stricklandmarine.net
843-795-1000 / 800-446-1862

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quote:

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Originally posted by Reelly Old

This case appears to include a state as a party,

Yeah, 26 states, I believe ...

__________________________

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quote:

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Originally posted by SirSpear

quote:

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Originally posted by gotchacovered

I watched some of the proceedings the other day ago. Get this: the court was actually debating whether or not it had "jurisdiction" over this law based on whether or not this law itself said they did, which would, in turn, be based on whether or not the writing of this law fits the protection FROM the court provided to laws passed by Congress by, get this, another law (known as the Anti-Injuction Act). So, long story short, they were actually entertaining the idea that one act of Congress (a law) could bar the Supreme Court from deciding whether or not another Congressional act/law is Constitutional (which is what the Anti-Injuction apparently Act does). From what I could tell, and remember, if the legilators had worded Obamacare just a tad bit differently, and deemed it a tax, they would accept a no-jurisdiction argument. I wish I had recorded it. The stranger part was that the "independent" lawyer that they hired in to make the case for non-jurisdiction was at odds with the Solicitor General, who said he did not want to shut the case down on a no-jurisdiction claim. Scalia called him out, in a sense, saying that the reason he doesn't want to do that is because he wants to leave the door open for another strategy later, and even said something like, "today, you're claiming it's not a tax, but tomorrow, you'll be telling us it's a tax". It was ODD to say the least.

So, let me ask this question. If one of the Supreme Court's primary intended funtions is to hold Congress accountable to the Constitution by judging whether or not the laws they pass are Constitutional, then how in the world can the same Congress pass a law to OVERRIDE that power of the Supreme Court by making it illegal--excuse me, non-jurisdictional--for the Court to judge certain laws???????????

Is this the Twilight Zone?






Gotcha Covered,
Lee Strickland
Strickland Marine Insurance Agency, Inc.
https://stricklandmarine.net
843-795-1000 / 800-446-1862

---

This isn't a new idea at all. It's called Jurisdiction Stripping. It comes from Article III Sec. 2, which reads:

"The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states; between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make."

A fairly literal reading of that clause implies that Congress can take away the Supreme Courts ability to have appellate jurisdiction over any case that doesn't involve an ambassador, public minister, or include a state as a party.

This case appears to include a state as a party, so I'm not sure why the jurisdiction stripping clause would apply. Also for the record, I am no fan of Congress using jurisdiction stripping to circumvent judicial review. Just pointing out that this is not a new idea; it is well established and both parties have attempted to use it over the years.

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quote:

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Originally posted by gotchacovered

SirSpear,

(Attempt at a shorter reply )

Per my hearing, the debate in the Supreme Court was not about the clause you cited, but about whether the suit is exluced from original SCOTUS jurisdiction via the the Anti-Injunction Act (AIA), which barred the court from suits on tax laws but was later re-interpreted.

If you're saying that the AIA is empowered by the clause cited, I don't know if the court has decided that, but if so, I think that's madness and disagree with the reading you cited, regardless. You're basing that reading the words, "In all cases...those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases...shall have appellate jurisdiction...". As with any document, I think that must be interpreted in light of the provision immediately preceeding it in the section, which says, "The judicial power shall extend to all cases...arising under this Constitution, the laws of the United States...to controversies to which the United States shall be a party..."

I know I'm not a judge or a lawyer, but I can read, and I think you and I agree on the moral ground that the Supreme Court was clearly meant to protect Constitutional rights from the laws of a loose-cannon Congress. The Court of Common Sense, therefore, rules that the framers of the Constitution never intended to give Congress the ability to bar the Supreme Court from determining the Constitutionality of laws. To do such would be to make Congress supreme on power--clearly not intended. Thus, suits against the United States would make sense as being included in the original jurisdiction of the Supreme Court in the clause cited. The framers were all about protecting the Constitution and were well aware of the tendency for governments to violate original intents and turn on the people. It's why they formed this nation.

From what you've said, I think you agree on this principle, regardless of anyone's reading.

Again, though, from what I heard, it was qualification for AIA protection that was being debated, not the clause you cited above.






Gotcha Covered,
Lee Strickland
Strickland Marine Insurance Agency, Inc.
https://stricklandmarine.net
843-795-1000 / 800-446-1862

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quote:

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Originally posted by SirSpear

Also, to go back to you original point, the Anti-Injunction Act (as I understand it), does not bar the SCOTUS from determining if a tax act is Constitutional. The point has more to do with concept of standing.

It has less to do with "if" the Court can review an act and more to do with "when." With tax laws, they must actually impact someone before they can sue to have the law overturned. So the point being made was that if this is in fact a tax, then the SCOTUS cannot review the tax until it goes into effect.

As I mentioned, this is akin to the notion of standing.

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quote:

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Originally posted by gotchacovered

"I don't see how you can read this...And interpret based on common sense, as anything but..."

It's funny that you say that, since you completely changed your first "reading" on the same. Now, all of a sudden, it's rock solid? LOL. Right.

You do realize that most court cases like this, there are TWO sides with attorneys taking opposite interpretations of laws, right? We'll just have to disagree, and that's cool with me.

"The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states; between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make."

Notice the words "before mentioned". The second paragraph is building on the first; thus the first is context for the second; therefore, the terms, "in which a state shall be a party" should be interpreted in light of "controversies to which the United States shall be a party". Regardless, there are several states that are parties to the suit anyway.

"And while I agree with you in principal, I do find it interesting in this case that you are willing to look to what the framer's intended instead of what they actually wrote."

I always do. Knowing what they meant by what they wrote is the key to Constitutional justice. What we twist it to mean to US is the problem.

Again, though, I think you're missing the point here. Namely, you were simply incorrect about the court debate I mentioned above being what the court was debating. It was not about that at all. It was about the AIA, not the clause you cited. This is obviously becoming a political argument for you at this point, though, so whatever.






Gotcha Covered,
Lee Strickland
Strickland Marine Insurance Agency, Inc.
https://stricklandmarine.net
843-795-1000 / 800-446-1862

---

quote:

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Originally posted by gotchacovered

I watched some of the proceedings the other day ago. Get this: the court was actually debating whether or not it had "jurisdiction" over this law based on whether or not this law itself said they did, which would, in turn, be based on whether or not the writing of this law fits the protection FROM the court provided to laws passed by Congress by, get this, another law (known as the Anti-Injuction Act). So, long story short, they were actually entertaining the idea that one act of Congress (a law) could bar the Supreme Court from deciding whether or not another Congressional act/law is Constitutional (which is what the Anti-Injuction apparently Act does). From what I could tell, and remember, if the legilators had worded Obamacare just a tad bit differently, and deemed it a tax, they would accept a no-jurisdiction argument. I wish I had recorded it. The stranger part was that the "independent" lawyer that they hired in to make the case for non-jurisdiction was at odds with the Solicitor General, who said he did not want to shut the case down on a no-jurisdiction claim. Scalia called him out, in a sense, saying that the reason he doesn't want to do that is because he wants to leave the door open for another strategy later, and even said something like, "today, you're claiming it's not a tax, but tomorrow, you'll be telling us it's a tax". It was ODD to say the least.

So, let me ask this question. If one of the Supreme Court's primary intended funtions is to hold Congress accountable to the Constitution by judging whether or not the laws they pass are Constitutional, then how in the world can the same Congress pass a law to OVERRIDE that power of the Supreme Court by making it illegal--excuse me, non-jurisdictional--for the Court to judge certain laws???????????

Is this the Twilight Zone?






Gotcha Covered,
Lee Strickland
Strickland Marine Insurance Agency, Inc.
https://stricklandmarine.net
843-795-1000 / 800-446-1862

---

quote:

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Originally posted by gotchacovered

quote:

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Originally posted by SirSpear

Also, to go back to you original point, the Anti-Injunction Act (as I understand it), does not bar the SCOTUS from determining if a tax act is Constitutional. The point has more to do with concept of standing.

It has less to do with "if" the Court can review an act and more to do with "when." With tax laws, they must actually impact someone before they can sue to have the law overturned. So the point being made was that if this is in fact a tax, then the SCOTUS cannot review the tax until it goes into effect.

As I mentioned, this is akin to the notion of standing.

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You need to read more closely. As I said in my posts above (which you seem to have overlooked), the debate in the Supreme Court that I listened to was about whether or not the Supreme Court could hear the case at this time because of the AIA. The original AIA barred the court from hearing cases that involved tax law. In the Flora versus United States case, the Supreme Court reinterpreted the AIA to mean that the SCOTUS could not hear a case until the plaintiff had first paid the subject tax, appealed to the IRS for a refund, gotten a refusal, and then filed suit. I don't know why I should have to repeat this unless you're just looking for an argument. I think maybe you were a little embarassed that you jumped the gun, thinking that the SCOTUS debate was about the clause you cited, and I corrected you by telling you it was about the AIA instead. I honestly didn't mean that as a slap or challenge. Just letting you know that it wasn't about that.






Gotcha Covered,
Lee Strickland
Strickland Marine Insurance Agency, Inc.
https://stricklandmarine.net
843-795-1000 / 800-446-1862

---

quote:

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Originally posted by gotchacovered

quote:

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Originally posted by SirSpear
This isn't a new idea at all. It's called Jurisdiction Stripping. It comes from Article III Sec. 2, which reads:

"The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states; between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make."

A fairly literal reading of that clause implies that Congress can take away the Supreme Courts ability to have appellate jurisdiction over any case that doesn't involve an ambassador, public minister, or include a state as a party.

This case appears to include a state as a party, so I'm not sure why the jurisdiction stripping clause would apply. Also for the record, I am no fan of Congress using jurisdiction stripping to circumvent judicial review. Just pointing out that this is not a new idea; it is well established and both parties have attempted to use it over the years.

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I don't think that was what they were talking about, SirSpear. There was no mention of any of that. They were specifically talking about the Anti-Injunction Act of 1867 and whether or not it applies. The entire debate was about whether or not Obamacare was intended to represent a "tax" for "revenue", whether or not its fine for non-participation represents a revenue tax, and from there, whether or not the subject law, therefore, qualified for protection from the jurisdiction of not only the Supreme Court, but ANY federal court, under the Anti-Injunction Act (AIA). The AIA presumptuously and pre-emptively bars the courts from hearing cases involving tax laws, and a later Supreme Court case (Flora v. United States) established that the court won't hear cases on tax law until after the plaintiff has paid the subject tax, filed for a refund, and been denied. Even then, in some cases, a case would first have to go through the federal court system before the Supreme Court would hear it. There was talk of this in detail. The assumption was that if the court concluded the Obamacare law or suit to be purely about a tax, then the plaintiffs would have to wait until after the law went into effect, pay the tax, file for a refund of the tax, get denied, and then file a new suit for the refund--absolute insanity. They were debating over that decision--AIA protection.

Like the nerdiest of all CF.com debates, there was much hair splitting over the silliest of semantics, to such an extent that anyone's faith in the solidarity of the highest pinnacle of our legal system should be thoroughly undermined. Common sense was like an uninvited guest who was struggling to get a word in the discussion, and the whole thing reminded me of a kid arguing, "No, Dad said, 'when you're done with that, then cut the grass', so if I choose to just spend all day sort of doing this, I don't have to cut the grass.' Forget the obvious. The only part that salvaged part of my respect consisted of the interjections by Scalia and Roberts, where they DID show some respect for common sense, but the court still--as the legal system does by norm--entertained ridiculous arguments that leaned on outlandish reaches of interpretation of single words that shouldn't really matter. Of course, this is the nature of courts, but it is just so dissappointing to see the highest court quibble for literal hours over a single word, using it as a potential excuse to not do its job of protecting the country from un-Constitutional laws. Thankfully, the court seemed to be opposed to the idea that AIA barred it from hearing the case, and to be only putting up a good show for the people that might raise that angle, so they could say, "we heard that argument and decided on it".

Perhaps, you're saying that the AIA, itself, gets its power from the clause you cited above. If so, I don't see how. I disagree with your reading. I can't find whether Flora vs. United States was heard on appeal to the Supreme Court or on original jurisdiction, but the latter would refute the reading of the clause cited. Regardless, I restate my original point that the AIA is insanity. NO LAW or suit against the state should be above the Constitutional review of the Supreme Court. What should be reigned in, however, is activism on the bench that puts political ideologies at the highest helm instead of the honest intentions of the Constitution. That is another discussion.

So, it's like the Twilight Zone to me because I think to myself, "what check-balance purpose can the Supreme Court serve over the legislature if all the legislature has to do is write laws that bar the court from superceding Congress?" If all a Congress has to bullet-proof its laws from the Supreme Court is craft the laws with the right words, then the Supreme Court could become nothing but a paper tiger, and it never really had any power in the first place. I agree that the Constitution is not in jeopardy in a case where the state is NOT a party, but when the People rise up to challenge the Constitutionality of a law, the state is always inherently a party (so says the court of common sense, anyway).







Gotcha Covered,
Lee Strickland
Strickland Marine Insurance Agency, Inc.
https://stricklandmarine.net
843-795-1000 / 800-446-1862

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quote:

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Originally posted by SirSpear

This case appears to include a state as a party, so I'm not sure why the jurisdiction stripping clause would apply.

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quote:

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Originally posted by Reelly Old

This case appears to include a state as a party,

Yeah, 26 states, I believe ...

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quote:

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Originally posted by SirSpear

Upon further investigation, that clause has been interpreted to mean it must be an issue between two states, a state and citizens of another state, or a state and a foreign person. So I guess jurisdiction stripping could apply here.

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