Thom Hartmann: Why does SCOTUS have power to strike down passed laws signed by the Prez?

[thomhartmann]

Congressman Dennis Kucinich (D-OH, 10th District) joins Thom Hartmann. The Supreme Court began hearing arguments today to determine the constitutionality of Obamacare. How does the most corrupt Supreme Court in history have the power to decide what healthcare Americans can get? All eyes are on the Supreme Court - as today kicked off three straight days of oral arguments to determine the constitutionality of Obamacare. The issue at hand is whether or not the "individual mandate" - also the core of "Romneycare" - is constitutional

The Big Picture with Thom Hartmann on RT TV & FSTV "live" 9pm and 11pm check www.thomhartmann.com/tv for local listings

[elleng]

1. 'In the United States,

federal and state courts (at all levels, both appellate and trial) are able to review and declare the "constitutionality", or agreement with the Constitution (or lack thereof) of legislation that is relevant to any case properly within their jurisdiction. In American legal language, "judicial review" refers primarily to the adjudication of constitutionality of statutes, especially by the Supreme Court of the United States. This is commonly held to have been established in the case of Marbury v. Madison, which was argued before the Supreme Court in 1803. A number of other countries whose constitutions provide for a review of the compatibility of primary legislation with the constitution have established special constitutional courts with authority to deal with this issue. In these systems, other courts are not competent to question the constitutionality of primary legislation.'

http://en.wikipedia.org/wiki/Judicial_review

[marshall]

2. Nixon said it best...

When the president does this, that means it is not illegal.

[Lars77]

3. The buck needs to stop somewhere

There were plenty of things the founders did not anticipate. In a functioning democracy, the supreme court is not corrupt and therefore would be competent to handle things like this.

[Speck Tater]

4. It's called balance of power. Three co-equal branches. In theory. nt

[longship]

5. This is an idiotic question

Sorry to be a bit of a curmudgeon, but I recommend that you read the Constitution for your answer.

It's about checks and balances!

If you're being sarcastic, I apologize. I don't have bandwidth here to view videos so I have no idea of what Hartmann is saying.

[Canuckistanian]

6. That's true

The SCOTUS basically rules on the constitutionality of laws. And presidents don't have veto power over that.

Nor should they.

[longship]

7. Love the Max Headroom

Jus' sayin'

[Canuckistanian]

8. So do I

He's my hero... when I can figure out what he's saying.

[SidDithers]

9. Kicking with the video reply to this thread...

He's calling out DU'ers who replied in this thread by name.

Sid

[Poll_Blind]

10. Nice, thanks for the link! I wouldn't have caught it otherwise.

Thom Rocks and he knows his stuff!



PB

[stevenleser]

11. The problem for Mr. Hartmann is Article 3, Sections 1 & 2 of the Constitution

. U.S. Constitution
main pageannotations.Article III
Section 1.
The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.

Section 2.
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.
-----------------------------------------------------------------
The Federal courts judicial power thus extends to the laws of the United States. Its in the first sentence of Section 2.

The meaning of this part of the Constitution was settled in Marbury v. Madison http://www.law.cornell.edu/supct/html/historics/USSC_CR_0005_0137_ZS.html

whose decision in part reads:

It is emphatically the province and duty of the Judicial Department [the judicial branch] to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.

So, if a law [e.g., a statute or treaty] be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.

Those, then, who controvert the principle that the Constitution is to be considered in court as a paramount law are reduced to the necessity of maintaining that courts must close their eyes on the Constitution, and see only the law [e.g., the statute or treaty].

This doctrine would subvert the very foundation of all written constitutions.
-----------------------------------------
It is this decision, which clarifies what Article 3, section 2 already said, that is the basis for judicial review in the United States.

[Motown_Johnny]

12. Article III

http://www.house.gov/house/Constitution/Constitution.html

^snip^


Section. 1.

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

Section. 2.

Clause 1: 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; (See Note 10)--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.

Clause 2: 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.

Clause 3: The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.



The power of the court clearly extends to the laws of the United States and even to the Constitution itself. Did you not read this part of the Constitution?


Your attacks on other DUers on your radio show was in poor taste. You first state that this video of yours "showed up on DU" and then you use your soap box to attack those of us who responded to the video. Well the video showed up here because you posted it here. I think if you post something here you should expect responses and taking them public the way you did is reprehensible. Please keep the discussion here unless someone specifically gives you permission to quote them.

Also, quoting letters from Jefferson and notes from Madison is a very old trick. These things do not have the power of law and never will have. It doesn't matter what these people thought, it matters what was passed in Congress. If you can't quote law then you have no evidence to support your opinion. Simply quoting the opinions of others, no matter who they may be, is not presenting evidence.


I lost a lot of respect for you today.

[shellinaya]

14. Article III exactly

I just read Article III. It's clear as day.

Why would we want Congress to be the final authority on questions of constitutional law?? Members of Congress are not all lawyers or even well educated people. They might be elected, but some of them are as dumb as stumps. Even Joe the Plumber is running for Congress. Obviously, if you're a judge on the Supreme Court you are a constitutional lawyer and scholar, unlike Thom Hartmann.

Finally, Hartmann is nearly un-listenable on this issue lately. He sounds manic, argumentative, and accusatory. People call in to disagree and he accuses them of being PAID Republican shills. It's offensive to listen to his drivel. It's pathetic. He needs to take a long vacation, at the very least, and then think about how rudely he treats his callers, and how manic and hysterical he sounds on this issue, especially since he's dead wrong.

And I'm sure that he'd call me a paid Republican shill too, because I don't like the mandate either. And that would also be offensive.

But I'm a Dem. Socialist Lib, which is waaaaaay farther left than TH is. I'll be taking a break from his show until he drops the rude hysteria about this stupid mandate.

[lumberjack_jeff]

13. "Congress shall make no law..."

First five words of the first amendment. Reasonable people (which the authors of Marbury vs Madison undoubtedly were) would say that this implies an "or else".

In fact, there are no valid reasons for writing a bill of rights in the absence of a court to enforce them.

"The Government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right." - Justice John Marshall

[Douglas Carpenter]

15. money has the value because everyone accepts that it does

The Trinity is not in the Bible either - but it has become such a part of accepted Christian cannon that almost all Christians believe it is and only heretics disagree.

Yes the written constitution does not give nor did the authors of the constitution for the most part- envision the courts having the power to strike down laws. But they do have the power to strike down laws - perhaps not granted by the written constitution but so universally accepted - the point is now purely academic. . Nowhere does the constitution say that the Electoral College must or even should vote the way of the states they represent – nor was this the role the founders of the Republic envisioned for the Electoral College. But nonetheless, it has been established by tradition and precedence just as the authority of the courts to strike down laws has been established by tradition and precedence. If the courts had not by tradition and precedence acquired these powers - there would have been no affective challenge to the alien and sedition act and numerous other free speech issues. There would have certainly been no "Brown versus Board of Education" and numerous other court decisions which consigned Jim Crow to the dustbin of history. Certainly there would have been no” Roe Wade” and numerous other laws that extended basic rights to women, minorities, gay people and countless others with unpopular beliefs, practices or opinions. If it was up to the legislative bodies to decide what is constitutional and what is not - I dare say that we simply would not have many rights that are now sacrosanct. Even when legislative actions did enshrine basic human rights – quite frequently it came in response to actions all ready taken by the courts and it is highly doubtful that legislatures would have done it on their own. Of course in these days of the courts being increasingly dominated by right-wing extremist one could argue the courts are no longer defenders of basic constitutional rights. But all of this is academic now – because the courts do strike down laws they deem to be unconstitutional regardless what the original intent of the founders may have been or what the written constitution may actually say. They have that right nonetheless – because the entire system and popular opinion assumes they have that right just as money has the value because everyone accepts that it does and any authority only has authority to the extent that consensus whether by coercion or choice grants them that authority.

[james_madison]

16. Federalist Papers Support the Court

Federalist 78

Alexander Hamilton notes -

There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.

We used to call this common sense.

[ellisonz]

17. Oy Vey

Judicial Review