Begin the Thawing of James McReynolds
Should the Supreme Court, as the InTrade prophets suggest, strike down the PPACA the Chamber of Commerce will have completed a perfect term at the Supreme Court. And given that among these decisions was finding a “right to work” requirement somewhere in the back of the First Amendment, we can expect to see some, ah, innovative, constitutional arguments being advanced on behalf of business interests.
Such as, for example, a specious argument that the Consumer Financial Protection Bureau violates the sacred constitutional right of Republicans to water down consumer-protection regulations into meaninglessness:
A Texas community bank and two advocacy groups are filing suit in U.S. District Court to challenge the constitutionality of the Dodd-Frank financial reform law.
In particular, the suit will contend that the Consumer Financial Protection Bureau (CFPB), created by the law, lacks sufficient checks and balances and, in the words of the CEO of State National Bank, is “simply unconstitutional.”
[...]
House Financial Services Committee Chairman Spencer Bachus (R-Ala.) used the court challenge to renew the push for a board of directors.
“There is no question the Consumer Financial Protection Bureau – by the design of Dodd-Frank Act supporters – lacks accountability and transparency,” he said in a statement. “A bipartisan commission would help ensure that CFPB rules are balanced, fair and reasonable…This is a structure that has worked well for nearly every other regulatory body in this country and will work for the CFPB.”
Maybe your copy of the Constitution doesn’t give bipartisan commissions approved by Spencer Bauchus veto power over legislation duly passed by Congress, but you lack the real Federalist Society version with the word “suckers” in it. Anyway, the “separation of powers” argument being made here is obviously specious. The CFPB doesn’t eliminate “checks and balances”; Congress is free to modify or eliminate its authority at any time, the director can be removed for cause, and judicial supervision has not been entirely eliminated. The Constitution doesn’t specify any particular form of accountability for executive agencies. And moreover, for all but followers of Ron Paul the argument proves too much; if the CFPB is unconstitutional, then the entire Federal Reserve structure is really unconstitutional.
None of which means that a bare majority of the Supreme Court won’t buy the argument, of course.
The Defense Department is also unconstitutional, because it is not headed by a bipartisan commission.
Someone should start talking about impeaching Scalia, just because you know the other side would if, say, Ginsberg were pulling legal reasoning out of her ass in the same way.
Seriously, is there a more overrated public figure in the U.S. than Scalia? Wasn’t it just a few years ago (i.e. Rehnquist’s death) that some legal pundits were talking about how elevating him to Chief Justice would result in the SC reaching the zenith of its prestige?
Yes, but all the people saying it were right-wing hacks who just wanted to see the Platonic Ideal of right-wing hacks elevated to that position.
Seriously, is there a more overrated public figure in the U.S. than Scalia?
No.
Alan Greenspan.
Yeah, I gotta go with The Maestro over Vaffanculo by ten basis points or so.
Colin Powell.
This. He brought in waverers to fight an unconstitutional, inadvisable war that murdered more than a million people.
Yeah, that’s a good one. Although Scalia’s reputation surviving his stay opinion in Bush v. Gore is pretty amazing.
I think Hank has me beat – Powell is clearly more overrated than Greenspan. But I think both beat Scalia.
“Seriously, is there a more overrated public figure in the U.S. than Scalia?
No.”
You guys spend too much time reading right wing hacks. Scalia isn’t even the most overrated in his own building. That would be Anthony Kennedy, wise man of the middle.
This is highly mistaken. Kennedy is one of the rare bullshit-”centrists” who isn’t held in high regard. Plenty of liberals seem to think that whatever you think of his philosophy Scalia is brilliant, whereas basically nobody likes Kennedy.
“Plenty of liberals seem to think that whatever you think of his philosophy Scalia is brilliant, whereas basically nobody likes Kennedy.”
I stand corrected.
They lionize Scalia because he is mean and nasty to liberals when he doesn’t agree with him.
(They may not realize that he is equally mean and nasty to conservatives when he does not agree with them — and yes, there are cases where he takes what is nominally considered the progressive side of an issue)
TL;DR: Scalia is mean and nasty to people he doesn’t agree with.
the director can be removed from cause
Sounds not only unconstitutional but downright metaphysical.
really — with a right to work in the First Amendment, there must also be a a right to fire at will and I don’t mean George FWill
Fire at him all you like. I won’t get in your way.
Given freedom of contract, ala Lochner, the freedom to just quit your job underlines that unions can require payment since if you don’t want to pay, just quit. OTOH, strikes are restraints of trade.
That is if we are going to use the wayback machine.
Well, that settles it for me. When something is that closely reasoned, who am I to withhold my consent?
Really. I mean, since it’s simple and all.
Since the Supreme Court has officially began to act as a supra-legislative guardian of laizze-faire economics than we really are in a new Gilded Age.
Erik, did the last Gilded Age include a large percentage of working and lower-middle class Americans who accepted their screwing or is this a more recent development?
Most did, but the ones that didn’t were noisier.
You said:
“None of which means that a bare majority of the Supreme Court won’t buy the argument, of course.”
But I think you meant:
“None of which means that a bare majority of the Supreme Court won’t use that as a flimsy-ass excuse to do what they would like to.”
“None of which means that a bare majority of the Supreme Court won’t buy the argument, of course.”
Just like the emperor, the Supreme Court’s majority has no clothes.
There are no specious arguments, only specious arguers (a/k/a Democrats).
scott, i assume you found fn. 8 of southern union as ironically amusing as i, a public defender, did. and that was sotomayer.
i am remaining optimistic until the end. i say they uphold the ACA. never trust a market.