(I wrote this for my old TownHall blog in August of 2012, and since I still think it's pertinent today, I repost it here. I hope you enjoy it. THC)
I read a report the day after the Supreme Court handed down its
execrable decision on the Destroying Affordable Care and Patient
Protection Act that Governor Bobby Jindal declared that Louisiana
still will not bow down to this infernal law. I hope he sticks to
his determination, and I hope the other governors follow his lead.
This decision carries no moral weight, and does not need to be
followed. I have been waiting for three days for some big-time
conservative commentor to point out why this is so, but no-one has,
so I will.
This decision is of no legal or moral force because Chief Justice
John Roberts (the new poster child for Beltway Fever) was not the
deciding vote.
B.O.'s Solicitor General Elena Kagan was.
In one of the most flagrant cases of stacking the judicial deck in
American history, Barack Obama placed his own Solicitor General on
the Supreme Court. It was a more modest strategic move than FDR's
infamous court-packing scheme in the 1930s or Jimmy Carter's federal
court expanding of the late 1970s (less famous than FDR's scheme,
this nearly doubled the number of federal court judges – all
appointed by Democrat Carter, of course). However, this scheme of
Obama's took court-packing in a new, dangerous direction, for it gave
him another solicitor in the chamber. Not only would he have his
official Solicitor General making the case for this freedom-crushing
edict, but he would also have his “former” Solicitor filling in
the gaps and correcting the mistakes in the official argument.
Anyone who heard the oral argument of the case knows that Kagan was
still representing the administration, and not impartial justice.
Several times Donald Verrilli seemed to be losing ground defending
the indefensible, and “former” Solicitor General Kagan would get
him “back onto the rails”. Many commentors claimed that it has
not been uncommon for Justices to suggest lines of argument to
attorneys arguing before the court. Perhaps, but it is not common
for the person who had been tasked with building the argument to be
presented to the court in the future to then be placed on the court
to here and rule on the argument that they themselves actually built!
I am frankly astounded that the same pundits who argued that Kagan
must recuse herself from any role in any case stemming from the
Obama-doesn't-care law because she had held the Solicitor General
post in the administration during that crucial period when the legal
strategy for defense was being formed all seem to have suddenly
forgotten her name now that the decision is here. They mainly have
targeted Chief Justice John Roberts for his seeming cringing
turnaround, and indeed there is much to be criticized in his
decision. (His decision, that is, to please the Beltway mob instead
of defend the Constitution, which is his sworn duty.) Roberts'
decision is at least apparently honestly wrought, but Kagan's very
involvement was corrupting from the start.
I urge the governors of the states that joined together to oppose
this monstrous law in open court to follow Governor Jindal's lead and
declare that since the court which decided this case was not legally
constituted to hear this particular case, due to the taint of
partiality on Justice Kagan, their states are not obligated to
respect this decision, and that they will not.
The future of America may depend on it.
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