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Trapick posted:Look at the enumerated powers https://en.wikipedia.org/wiki/Enumerated_powers_(United_States) and then the 10th amendment https://en.wikipedia.org/wiki/Tenth_Amendment_to_the_United_States_Constitution - I don't think you've got a good argument for the federal government having that power. Health care is "commerce" and therefore subject to regulation under the commerce clause. Abortion is just a form of healthcare. A federal law could absolutely be passed regulating it. Virtually any economic activity is "commerce" under the various drug war cases.
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Sep 23, 2020 01:08
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Groovelord Neato posted:There's no argument here - I told you that the Supremacy Clause exists. quote:The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people I don't think any of the powers the US is granted by the Constitution could be used to legalize abortion, unfortunately (please, take a look at that list - commerce clause? Taxation?) The Supremacy Clause doesn't magically let the federal government do anything it wants. edit: very specifically, I think any Supreme Court that would overturn Roe v. Wade would also *not* uphold federal pro-abortion laws as being legit under the commerce clause, so it's kind of a moot point. There's enough wiggle room that they'd just knock it down. double edit: to be clear, I'd love it if that would work, I just think there's enough to handwave about that the conservative justices wouldn't blink. Trapick fucked around with this message at 01:11 on Sep 23, 2020 |
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Sep 23, 2020 01:08
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Trapick posted:The Supremacy Clause doesn't magically let the federal government do anything it wants. Right, the commerce clause does that.
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Sep 23, 2020 01:09
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hobbesmaster posted:Right, the commerce clause does that. Right. See, e.g., https://en.wikipedia.org/wiki/Wickard_v._Filburn quote:An Ohio farmer, Roscoe Filburn, was growing wheat to feed animals on his own farm. The US government had established limits on wheat production, based on the acreage owned by a farmer, to stabilize wheat prices and supplies. Filburn grew more than was permitted and so was ordered to pay a penalty. In response, he said that because his wheat was not sold, it could not be regulated as commerce, let alone "interstate" commerce (described in the Constitution as "Commerce... among the several states"). The Supreme Court disagreed: "Whether the subject of the regulation in question was 'production', 'consumption', or 'marketing' is, therefore, not material for purposes of deciding the question of federal power before us.... But even if appellee's activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce and this irrespective of whether such effect is what might at some earlier time have been defined as 'direct' or 'indirect.'"[2]
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Sep 23, 2020 01:10
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It might not be as simple as passing a law saying "states can't ban abortion" and calling it a day, it takes a little more effort than that, but it is doable. To pre-empt state laws the Feds would probably have to nationally regulate abortion, possibly creating a new licensing scheme for abortion providers. That would also take care of a lot of the stupid little regulations that have been whittling down abortion rights in court. If abortion becomes a federally regulated thing subject to federal law, then you can go gently caress yourself with your admitting privileges, waiting period, fetal heartbeat, etc bullshit. To get around the 10th amendment, the Feds would have to rely on the commerce clause as usual.
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Sep 23, 2020 01:10
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So could you incentivize the Dems to do this by driving up support during election periods and having enough support or elected officials to pass it?
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Sep 23, 2020 01:15
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Trapick posted:
Ok, fair, you've got a good point here. Thing is, conservative "jurisprudence" is functionally bad faith jurisprudence: they're going to rule however is necessary to achieve their policy goals, regardless of the actual law, stare decisis, the Constitution, etc. Without court packing we are fairly likely to regress 100 years to a the Lochner era where the federal government functionally has no power to regulate at all.
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Sep 23, 2020 01:15
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hobbesmaster posted:Right, the commerce clause does that.
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Sep 23, 2020 01:16
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yes, a lot of what we are saying is depending on the commerce clause not being completely gutted, which is absolutely possible with a huge conservative SCOTUS majority. Then we're back to needing court packing.
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Sep 23, 2020 01:17
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ilkhan posted:That stupidity is going to go away long before Roe. Not the clause itself, but a lot of the BS that it has been used to allow. I mean, I don't know about you, but I prefer a country that has a Food and Drug Administration.
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Sep 23, 2020 01:17
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Gatts posted:Ok, so how do we get 5 GOP Senators to comedically end up in a box shipped to Siberia and then not manage to return until after the new senate and Pres are minted. We need an elaborate scheme involving a report on the upcoming American orange harvest and frozen concentrate orange juice futures.
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Sep 23, 2020 01:46
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Eric Cantonese posted:We need an elaborate scheme involving a report on the upcoming American orange harvest and frozen concentrate orange juice futures. I think Dan Akroyd would be down for that
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Sep 23, 2020 01:53
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The Supreme Court is a reactionary institution that has thwarted progress far more often than it has advanced it. The Warren court was a blip and a distant one at that. Democrats should pack the court to such an extent that any republican attempt to go tit for tat would render it irrelevant. Either they don’t, in which case the court packing prevails, or they do, in which case the dumb institution that basically works only to write republican super laws gets dumpstered. Either is fine. The institutions created by the constitution written by slave owners do not exist to further our interests. They exist to thwart them in favor of the prerogatives of the billionaire owners of this country, our new class of plantation owners. Debase them all. If Mitch McConnell or whoever actually wants to tit for tat all the way to oblivion, fine, they have more to lose. The system was built to allow people like them to rule as a minority. gently caress four justices. Double all the courts or some similarly fuckoff number.
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Sep 23, 2020 02:20
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Trapick posted:The Tenth Amendment also exists. Just as a general FYI, what the text of any given amendment says in plain english corresponds only to a very attenuated degree with the practical force courts have given it in contemporary America, which is the result of centuries of politically motivated constitutional jurisprudence. The 10th amendment in particular stopped doing a LOT of what you would expect it to do just by reading its text after the Civil War.
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Sep 23, 2020 02:35
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Nonexistence posted:Just as a general FYI, what the text of any given amendment says in plain english corresponds only to a very attenuated degree with the practical force courts have given it in contemporary America, which is the result of centuries of politically motivated constitutional jurisprudence. The 10th amendment in particular stopped doing a LOT of what you would expect it to do just by reading its text after the Civil War. For example, the court interpreted The 15th Amendment posted:Section 2. The Congress shall have power to enforce this article by appropriate legislation. To mean "Congress has the power to enforce this article, but only if they regularly poke at and change the legislation used to do so. Leaving it alone is right out"
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Sep 23, 2020 02:44
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Kazak_Hstan posted:The Supreme Court is a reactionary institution that has thwarted progress far more often than it has advanced it Uh this is not true and a massive oversimplification. It was the Supreme Court that tried to tell Jackson to gently caress off from committing genocide (he ignored them, but they still made the correct ruling as I understand it), they legalized gay marriage nationwide and have even advanced trans rights despite being a majority conservative court; then of course Brown v. Board, Griswald, and a host of other good rulings. I feel like the (early) FDR court and the modern court are the blips in question. Kazak_Hstan posted:The institutions created by the constitution written by slave owners do not exist to further our interests. This also isn't true; there are many legitimate arguments to be had about many aspects of the American political experiment, and it living for 300 years, far longer than any other political experiment would imply that maybe in the long run there may have been a legitimate point to how the US institutions have been structured. Foxfire_ posted:For example, the court interpreted TBF, a non-deadlocked Congress could have easily re-enforced the VRA at virtually anytime, and trivially accounted for the arguments by simply extending pre-clearance nationwide. The problem is that Republicans controlled one of the chambers the whole time since then.
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Sep 23, 2020 02:46
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Raenir Salazar posted:TBF, a non-deadlocked Congress could have easily re-enforced the VRA at virtually anytime, and trivially accounted for the arguments by simply extending pre-clearance nationwide. The problem is that Republicans controlled one of the chambers the whole time since then.
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Sep 23, 2020 02:58
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Raenir Salazar posted:TBF, a non-deadlocked Congress could have easily re-enforced the VRA at virtually anytime, and trivially accounted for the arguments by simply extending pre-clearance nationwide. The problem is that Republicans controlled one of the chambers the whole time since then. It doesn't matter if a non-gridlocked Congress could have repassed it. The Supreme Court is not supposed to have the ability to pick an old law and arbitrarily cancel it unless the current Congress proactively disagrees. The text of the VRA did not sunset itself, and nothing in the 15th amendment requires Congress to have put a sunset provision in. It's just the conservative wing of the court blatantly ignoring text and making up the result they want.
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Sep 23, 2020 03:05
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Ah yes, the Supreme Court, famous for standing up for Native American rights.
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Sep 23, 2020 03:06
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Luckily, with Gorsuch it actually might start doing so. Like the one silver lining of this court
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Sep 23, 2020 03:10
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Kazak_Hstan posted:Ah yes, the Supreme Court, famous for standing up for Native American rights. Get more textualists who can't tell that you weren't supposed to actually enforce the treaties. Hmmm, come to think of it, textualists might be good for striking down the insular cases too?
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Sep 23, 2020 03:12
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Kazak_Hstan posted:Ah yes, the Supreme Court, famous for standing up for Native American rights. Unironically yes, quite a few times just recently! https://en.wikipedia.org/wiki/Washington_v._United_States (iirc I think this was a recent one?) https://en.wikipedia.org/wiki/Sharp_v._Murphy Oh heck it was this one! https://en.wikipedia.org/wiki/Herrera_v._Wyoming
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Sep 23, 2020 03:13
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Now do the part where they upheld the wholesale conquest of the continent and dispossession of indigenous people from their lands.
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Sep 23, 2020 03:16
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Kazak_Hstan posted:Now do the part where they upheld the wholesale conquest of the continent and dispossession of indigenous people from their lands. You mean the opposite right? Because they specifically didn't. https://en.wikipedia.org/wiki/Worcester_v._Georgia
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Sep 23, 2020 03:27
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Speaking of, does anyone know of any good reviews about fallout from McGirt vs. Oklahoma so far? Thinking of actual numbers of reprosecutions, releases, changes in administrative law, etc... Presumably the Cherokee Nation haven't pulled the trigger on their claimed power to tax non-tribal members across Oklahoma since that will be an enormous shitshow, but it's been long enough that littler stuff should have started happening.
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Sep 23, 2020 03:35
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Raenir Salazar posted:You mean the opposite right? Because they specifically didn't. Yeah, it's only the single most famous example of the limits of the court's powers lol. I actually do agree with view that liberals don't have a lot to lose by calling the GOP's bluff with regards to packing the court though. Right now the court is so favorable to reactionary interests that if it gets seen as being nakedly political with new justices added every time the white house changes hands? Net improvement so far as I'm concerned. If the other guy is in a tank and you're in a toyota, moving the fight to terrain that forces you both to dismount is a good move, even if it means you gotta walk in the mud.
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Sep 23, 2020 03:36
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Oh really, so we didn’t stuff them on reservations? We gave them their land back? The Supreme Court did that?
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Sep 23, 2020 03:37
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Kazak_Hstan posted:Oh really, so we didn’t stuff them on reservations? We gave them their land back? The Supreme Court did that? The supreme court essentially said that yes, tribal sovereignty had to be honored, and Andrew Jackson (and basically the state government of South Carolina) basically responded "lol fuckin' make me". Like I said, it's probably the single most famous example of the limits of the court's powers in that it can't really enforce anything and relies on the consent of other branches. This is that weird thing where people think being hyperbolicly cynical or radical or whatever is a substitute for actually knowing what you're talking about.
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Sep 23, 2020 03:46
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Kazak_Hstan posted:Oh really, so we didn’t stuff them on reservations? We gave them their land back? The Supreme Court did that? You've moved the goalposts quite a long way from: Kazak_Hstan posted:Ah yes, the Supreme Court, famous for standing up for Native American rights.
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Sep 23, 2020 03:48
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Upholding very limited rights on reservations, with the caveat that congress can change things pretty much at will (which they held in the Oklahoma case), is exactly what I’m talking about. Natives were kicked off their land and stuffed into reservations. The court basically saying, yes, respect that status quo, is not a pro-Native position, it’s an endorsement of the genocide. It’s not the most anti-Native position imaginable, but the reservations are the crime here.
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Sep 23, 2020 03:53
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Trapick posted:The Tenth Amendment also exists. The US government can regulate healthcare providers, that's beyond dispute.
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Sep 23, 2020 04:07
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Your original claim was "The Supreme Court is a reactionary institution that has thwarted progress far more often than it has advanced it" which was hyperbolic and I pointed out multiple examples in which they had been ahead of the curve in terms of American attitudes. That they lacked the authority or jurisdiction to undo the entirety of the wrongs inflicted on American natives doesn't refute or negate that assessment made in response to your statement. I also disagree with your assessment that the courts legal opinion boils down to "respect the status quo" when a large part of the case rests on the fact that the status quo was most specifically was not being respected and hardly an endorsement of genocide, your argument is so incomprehensible when you have "it's an endorsement of genocide" and "it's not the most anti-native position imaginable" in the same sentence. The case as decided probably couldn't have gone literally any better than it did.
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Sep 23, 2020 04:08
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Also, again, probably the most famous case involving natives in SCOTUS history invloves the court saying that the government had to respect tribal sovereignty, specifically brought by a guy trying to prevent them from being pushed onto reservations. I mean, I think SOCTUS as currently constructed is a bad institution. I don’t think judicial review should exist at all frankly. You don’t have to do the whole performative cynicism thing and just assume sins that aren’t there, you can find plenty of bad things in their history that actually happened. The whole Lochner thing is a pretty convincing argument against its existence alone.
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Sep 23, 2020 04:20
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Still Dismal posted:I don’t think judicial review should exist at all frankly. After having seen a state legislator say “I don’t care if this bill is unconstitutional, I’m voting for it anyway”, I highly prefer a slightly less public-answerable second opinion on that front.
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Sep 23, 2020 04:25
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He's just following the Trump style of argument : make poo poo up to suit one's fancy and dare the other party to fact check you. When you get owned by facts just make up new poo poo. One of the great tragedies of the past few years is that The Big Lie is once again a viable political tactic.
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Sep 23, 2020 04:27
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The biggest problem, procedurally, for people who hope a conservative supreme court will gut the commerce clause and take healthcare and medicine out of the federal government's hands is that at least two if not three of of the conservative justices are huge drug warriors who want an expansive commerce clause so they can keep locking people up for smoking the devilgrass. The biggest problem practically is: lmbo have you seen state governments, you want guys like Rick Snyder deciding how much rat poo poo and fertilizer can be used for fillers in your advil or your breakfast cereals? 
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Sep 23, 2020 04:30
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Still Dismal posted:I mean, I think SOCTUS as currently constructed is a bad institution. I don’t think judicial review should exist at all frankly. You don’t have to do the whole performative cynicism thing and just assume sins that aren’t there, you can find plenty of bad things in their history that actually happened. The whole Lochner thing is a pretty convincing argument against its existence alone. Or you think we should get rid of courts altogether?
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Sep 23, 2020 04:31
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Ynglaur posted:He's just following the Trump style of argument : make poo poo up to suit one's fancy and dare the other party to fact check you. When you get owned by facts just make up new poo poo. One of the great tragedies of the past few years is that The Big Lie is once again a viable political tactic. What was it not?
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Sep 23, 2020 04:32
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Uhh, most states in america don't have a functioning state goverment, without working federal oversight those states are hosed.
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Sep 23, 2020 04:33
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Don't get me wrong, politicians always lie, but in the West for the past few decades the press and other institutions have kept the worst in check. Lots of exceptions out there, but if anyone thinks the scale of someone like Trump making poo poo up is the same as, I dunno, Bush Jr playing up his military credentials then I don't know what to tell them.
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Sep 23, 2020 04:36
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