Kavanaugh ... now what?

POSTED BY: SIGNYM
UPDATED: Sunday, September 21, 2025 18:38
VIEWED: 6831
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SECOND

Saturday, October 6, 2018 6:49 PM

Quote:
Originally posted by SIGNYM:

Quote:
The conservative justices's basic worldview is that Congress lacks the power to decide for itself what subjects impact interstate commerce or how to set up regulatory agencies, the agencies themselves lack the power to decide how to enforce the rules, and American citizens lack enforceable rights to have their votes counted.
Can you provide some examples? Have they said so? What rulings have they made? I have no idea what you're trying to say.

Signym, you said a few things about Justice Clarence Thomas.

An excellent example is Thomas's opinion on the 1995 case of United States v. Lopez, which featured a defendant challenging the Gun-Free School Zones Act. This was, interestingly, not a Second Amendment case that attempted to argue that prohibiting guns near schools violated an individual’s rights to keep and bear arms. Rather, a 5 Republicans to 4 Democrats decision invalidated the law on federalism grounds — saying that Congress simply lacked the authority to regulate the matter.

This turned out not to be a huge deal in practice because Congress was able to come back later and rewrite the law with a specific stipulation that it only related to guns that were shipped across states.

It was, however, a shot across the bow that the Republicans on the Supreme Court were no longer going to allow the people’s elected representatives to decide for themselves what steps were and were not useful exercises of congressional authority to regulate the national economy.

The decision left a serious question as to how far the Court planned to take that new doctrine, and as long as Republican Sandra Day O’Connor was around, the answer turned out to be “not particularly far.”

But in an influential concurrence that proved to offer important hints of the shape of things to come, Clarence Thomas argued that the majority decision was written far too narrowly. The Democratic Justices who dissented from the Lopez case, Republican Thomas argued, were basically correct that the fundamental question at issue here was not so different from the one posed by lots of other federal issues. The difference is that he thought the Court should toss out the entire set of New Deal judicial decisions that held that Congress has broad authority to regulate the national economy and return to the Gilded Era doctrine that the Constitution essentially prohibits economic regulation.

Kavanaugh is the next Clarence Thomas.

Clarence Thomas opinion on United States v. Lopez : https://docs.google.com/document/d/1tXmY2Q_bJt-q8NdKr0uDZ7j5h72XpomjVX
l6jgLL0VY/pub

The Joss Whedon script for Serenity, where Wash lives, is Serenity-190pages.pdf at www.mediafire.com/folder/1uwh75oa407q8/Firefly

SIGNYM

Saturday, October 6, 2018 10:14 PM

Quote:
It was, however, a shot across the bow that the Republicans on the Supreme Court were no longer going to allow the people’s elected representatives* to decide for themselves what steps were and were not useful exercises of congressional authority to regulate the national economy.

The decision left a serious question as to how far the Court planned to take that new doctrine, and as long as Republican Sandra Day O’Connor was around, the answer turned out to be “not particularly far.”

But in an influential concurrence that proved to offer important hints of the shape of things to come, Clarence Thomas argued that the majority decision was written far too narrowly. The Democratic Justices who dissented from the Lopez case, Republican Thomas argued, were basically correct that the fundamental question at issue here was not so different from the one posed by lots of other federal issues.

Okay, I see what you're saying.

I think what they're relying on is the section in the Constitution that says that any powers not specifically mentioned as belonging to the Federal government belongs to he states. That is the Tenth Amendment, which seems pretty clear:

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 have sometimes wondered how the Federal government was able to erect such large regulatory and benefits superstructures in the face of the tenth amendment, but I think that was all based on various Congressional laws (such as the Clean Air Act) which, I'm sure, were challenged at the SC level and survived. I see a situation where some of the same old arguments may have to be re-argued all over again. I'm not sure what arguments were made the first time, but I would imagine that matters like air pollution, water pollution, banking, telecommunication etc are INTERSTATE matters which allow Federal regulation. (If these matters were devolved to the states they would wind up having to appeal to the Federal government for conflict resolution again, or would have to create their own interstate agreements to manage things.)

Kavanaugh's appointment could be troubling, but it's not that it takes away the power to regulate from our elected representatives, but shifts it to our STATE representatives instead of our Federal ones.

I would have to go back and see how programs like the Clean Air Act survived their day in court to see if the argument sounds durable enough to be "settled law". Also, to see if Kavanaugh really would be another Thomas; not sure of his previous rulings. If the programs seem shaky, the question is: Now what?

This could be solvable by amending the Tenth Amendment. In other words, there is a Congressional solution to the problem. In practice, not likely to happen.

Definitely worth keeping an eye on.

-----------
Pity would be no more,
If we did not MAKE men poor - William Blake

"The messy American environment, where most people don't agree, is perfect for people like me. I CAN DO AS I PLEASE." - SECOND

America is an oligarchy http://www.fireflyfans.net/mthread.aspx?tid=57876

JEWELSTAITEFAN

Saturday, October 6, 2018 10:21 PM

Quote:
Originally posted by 1kiki:
Quote:
Originally posted by JEWELSTAITEFAN:
You really believe Dems will erase a 43 Seat majority of the GoP?
There have been far more dramatic House flips! I don't have a whole lot of belief in anything, but historically, it's well within the realm of possibility.

http://history.house.gov/Institution/Party-Divisions/Party-Divisions/
111th (2009–2011) D257 R178
112th (2011–2013) D193 R242

You are thinking the Revulsion the Tea Party had for Obamination is a suitable template for those same voters rebelling against Tea Party Lite Trump, the first responsible President (or candidate) since the Tea Party coalesced?

Maybe your (irrational) bias is blinding your (rational) logic.

JEWELSTAITEFAN

Saturday, October 6, 2018 10:38 PM

Quote:
Originally posted by SIGNYM:
Quote:
Party discipline was non-existent, and worse, they didn't have a message about what they stood for, and that they were there for us.- KIKI

I don't know HOW we got so "blessed" by being on the (apparently) permanent list of who gets a DNC survey every two-three months, but if the questions that they ask are any indication, the DNC STILL hasn't figured out what went wrong.

I wish I had that survey here so I could refer to it, but I just mailed it off, making liberal use of the "other" option and any blank spaces I could find.

According to the survey, the DNC is concerned with ... or assumes that WE'RE concerned with ... or is trying to elevate the issues of ...

Social Security and Medicare
universal health insurance
global warming
free education
additional assistance programs
Trump and the GOP
Social issues (LGBTQ rights)
minimum wage
raising taxes
reforming Wall Street (how, not sure)

I wish I could remember the rest, but nowhere did they mention

ending our endless wars
cutting the Pentagon budget
reviving our manufacturing sector
restoring our environment
balancing our Federal and trade budgets
jobs, jobs, jobs, jobs
improving our infrastructure
restoring our Bill of Rights

They asked What is it about the Republican Party policy that you disagree with? and What is it about the Trump Presidency that disturbs you? one of the answers to that is Russia.

Next time I get one of those surveys I'll post what they contain so you can get a view of what they seem to be focusing on.

I think the thing that disturbs me ... aside from the fact that Dems seem to be as war-mongering as Repubs, if not more so ... is that they seem to have lost focus that in order to pay for all of the goodies that they want, you need a robust economy, which means production and jobs. It's not enuf to "tax the rich" because the money that the rich have was created out of thin air, it means nothing and can disappear in an instant in a financial meltdown.

You are supposed to send in money with those robo-mailer surveys. The survey part goes in the Circular File, the money is the purpose of those mailings. The topics they bring up are supposed to be the hot-button issues which spur monied Liberals to throw more cash at those issues. Because you are a Dry Hole (you don't send money), they will not include the topics which pique you.

Speaking of money, you almost got to the conclusion of the point that Fiscal Conservatives focus upon: if the entire wealth of America's wealthiest 1% were confiscated (taxed at 100%), those funds would not be enough to eliminate the Federal Debt, let alone sustain the Federal Budget for another year - and meanwhile there would no longer be an Economy, no Jobs, no Productivity, no services, and no reserves to restart any of that. Illiterate Liberals believe that is the solution to Nanny State Spending.

1KIKI

Sunday, October 7, 2018 1:57 AM

Quote:
Originally posted by JEWELSTAITEFAN:
You are thinking the Revulsion the Tea Party had for Obamination is a suitable template for those same voters rebelling against Tea Party Lite Trump, the first responsible President (or candidate) since the Tea Party coalesced?

Maybe your (irrational) bias is blinding your (rational) logic.

For some reason the link to the search results doesn't work. http://history.house.gov/Institution/Party-Divisions/Party-Divisions/ But if you were to go to the home link http://history.house.gov and search, you'd see even more dramatic historic reversals, outside of your narrow partisan view.

For example:

53rd (1893-1895) D218 R124 (Populists (11), Independent Democrats (2), Silver (1))
54th (1895-1897) D93 R254 (Populists (9), Silver (1))

or

67th (1921-1923) D131 R302 (Independent Republican (1), Socialist (1))
68th (1923-1925) D207 R225 (Farmer-Labor (2), Socialist (1))

SIGNYM

Sunday, October 7, 2018 1:59 AM

So, SECOND, just OOC I did a search for Kavanaugh plus Tenth Amendment. I found NOTHING relating them to each other.

Apparently Clarence Thomas is all by his lonesome in his interpretation.

-----------
Pity would be no more,
If we did not MAKE men poor - William Blake

"The messy American environment, where most people don't agree, is perfect for people like me. I CAN DO AS I PLEASE." - SECOND

America is an oligarchy http://www.fireflyfans.net/mthread.aspx?tid=57876

SIGNYM

Sunday, October 7, 2018 2:37 AM

Quote:
You are supposed to send in money with those robo-mailer surveys.

Oh, that's what I've been doing wrong! I've done the exact opposite by COSTING them money ... sometimes I just tear up the survey form and send it back to them, tagging them with the postage.

Quote:
Speaking of money, you almost got to the conclusion of the point that Fiscal Conservatives focus upon: if the entire wealth of America's wealthiest 1% were confiscated (taxed at 100%), those funds would not be enough to eliminate the Federal Debt, let alone sustain the Federal Budget for another year - and meanwhile there would no longer be an Economy, no Jobs, no Productivity, no services, and no reserves to restart any of that.

I totally disagree with that.

-----------
Pity would be no more,
If we did not MAKE men poor - William Blake

"The messy American environment, where most people don't agree, is perfect for people like me. I CAN DO AS I PLEASE." - SECOND

America is an oligarchy http://www.fireflyfans.net/mthread.aspx?tid=57876

SECOND

Sunday, October 7, 2018 7:05 AM

Quote:
Originally posted by SIGNYM:
So, SECOND, just OOC I did a search for Kavanaugh plus Tenth Amendment. I found NOTHING relating them to each other.

Apparently Clarence Thomas is all by his lonesome in his interpretation.

-----------
Pity would be no more,
If we did not MAKE men poor - William Blake

"The messy American environment, where most people don't agree, is perfect for people like me. I CAN DO AS I PLEASE." - SECOND

A reminder to casual readers of the text for 10th Amendment: "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."

Kavanaugh (same as Clarence Thomas would have if he had been writing the opinions) struck down several government rules. When the 10th is convenient, he uses that, but he always, without fail, finds a reason to strike down a rule using whatever tool is handiest to beat the rule to death. Federal government never, ever, has sufficient authority from either the Constitution or Congress, according to Kavanaugh, to justify anything it regulates at present. Kavanaugh's method for writing opinions is very convenient for business owners who don't wish to be regulated.

Federal regulations writ large: Kavanaugh’s net neutrality dissent also suggested he’s skeptical about the Supreme Court’s so-called Chevron doctrine, a 1984 precedent that said courts should tend to defer to federal agencies’ regulatory decisions when the agencies are interpreting ambiguous statutes. A move by conservative justices to overturn Chevron could lead to far tighter restrictions on federal regulatory powers.

Environment and climate change: Kavanaugh has weighed in on dozens of environmental cases because of his seat on the D.C. Circuit Court of Appeals — and he's widely seen as critical of many Obama-era rules from the EPA. In 2012, for example, Kavanaugh wrote a decision that rejected EPA's attempt to curb air pollution that crosses state lines. He has often leaned toward restricting the EPA’s powers when he believed the agency lacked specific authorization from Congress, including in courtroom comments surrounding the Obama administration’s climate rules for power plants.

"On the policy, I understand, it's laudable, and the Earth is warming, and humans are contributing," Kavanaugh said at the time. But, he added, "under our system of separation of powers ... Congress is supposed to make the decision." The D.C. Circuit never issued its ruling in the case, which has been on hold while President Donald Trump's EPA reformulates the Obama regulation.

And in a 2014 ruling over an EPA rule on toxic mercury from power plants, Kavanaugh wrote in a dissent that EPA had acted wrongly in not weighing costs when it first decided to write a regulation. A year later, a 5-4 Supreme Court propelled Kavanaugh's reasoning into the majority.

Taxes: The IRS doesn't have the power to regulate paid tax preparers, Kavanaugh wrote in a 2014 opinion. Such oversight could make sense, he said, but "that is a decision for Congress and the President to make if they wish by enacting new legislation."

Financial regulations: Kavanaugh delivered a huge victory to conservatives in October 2016 when he wrote an opinion declaring the structure of the Consumer Financial Protection Bureau — a powerful banking industry watchdog first envisioned by Elizabeth Warren — to be unconstitutional. Writing for a three-judge panel, Kavanaugh said the 2010 Dodd-Frank law had wrongly placed “enormous executive power” in the CFPB’s single director, which Republicans and the banking industry want to replace with a multi-member commission. Supporters of the CFPB accused Kavanaugh of acting as a partisan activist, and the constitutionality of the CFPB's structure was later upheld.

More at www.politico.com/story/2018/07/09/brett-kavanaugh-track-record-675294

The Jo

JEWELSTAITEFAN

Sunday, October 7, 2018 10:22 AM

Quote:
Originally posted by SIGNYM:
Quote:
It was, however, a shot across the bow that the Republicans on the Supreme Court were no longer going to allow the people’s elected representatives* to decide for themselves what steps were and were not useful exercises of congressional authority to regulate the national economy.

The decision left a serious question as to how far the Court planned to take that new doctrine, and as long as Republican Sandra Day O’Connor was around, the answer turned out to be “not particularly far.”

But in an influential concurrence that proved to offer important hints of the shape of things to come, Clarence Thomas argued that the majority decision was written far too narrowly. The Democratic Justices who dissented from the Lopez case, Republican Thomas argued, were basically correct that the fundamental question at issue here was not so different from the one posed by lots of other federal issues.
Okay, I see what you're saying.

I think what they're relying on is the section in the Constitution that says that any powers not specifically mentioned as belonging to the Federal government belongs to he states. That is the Tenth Amendment, which seems pretty clear:
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 have sometimes wondered how the Federal government was able to erect such large regulatory and benefits superstructures in the face of the tenth amendment, but I think that was all based on various Congressional laws (such as the Clean Air Act) which, I'm sure, were challenged at the SC level and survived. I see a situation where some of the same old arguments may have to be re-argued all over again. I'm not sure what arguments were made the first time, but I would imagine that matters like air pollution, water pollution, banking, telecommunication etc are INTERSTATE matters which allow Federal regulation. (If these matters were devolved to the states they would wind up having to appeal to the Federal government for conflict resolution again, or would have to create their own interstate agreements to manage things.)

Kavanaugh's appointment could be troubling, but it's not that it takes away the power to regulate from our elected representatives, but shifts it to our STATE representatives instead of our Federal ones.

I would have to go back and see how programs like the Clean Air Act survived their day in court to see if the argument sounds durable enough to be "settled law". Also, to see if Kavanaugh really would be another Thomas; not sure of his previous rulings. If the programs seem shaky, the question is: Now what?

This could be solvable by amending the Tenth Amendment. In other words, there is a Congressional solution to the problem. In practice, not likely to happen.

Definitely worth keeping an eye on.

I can see now why you 2 both dislike Kavanaugh. You 2 both hate America, because it is structured upon The Constitution, and that Constitution is the ultimate Enemy of all Liberals. You have ignored this shared fundamental despise that you both have for The Constitution while squabbling about different facets arising from this same source.

Neither of you have brought up what most Patriotic Americans are opposed to. You support Congress enacting Unconstitutional Laws in order to prove they can do so again. The Constitution protected the States, and the Individuals, from the overburdensome and omnipotent Federal Government, and it's minions, the Beureaucrats. Having unrestrained unelected creations like IRS, FBI, CIA, EPA are what you cheer for, and you wish that these, unrecognized by The Constitution, could shred the Founding Documents by overruling Officers Recognized by The Constitution such as The President.

That you cheer on the likes of Rosenstein and his wife, Lois Lerner, Susan Rice, John Brennan, James Clapper, James Comey, Mueller,

JEWELSTAITEFAN

Sunday, October 7, 2018 10:53 AM

Quote:
Originally posted by SIGNYM:
Quote:
You are supposed to send in money with those robo-mailer surveys.
Oh, that's what I've been doing wrong! I've done the exact opposite by COSTING them money ... sometimes I just tear up the survey form and send it back to them, tagging them with the postage.

Quote:
Speaking of money, you almost got to the conclusion of the point that Fiscal Conservatives focus upon: if the entire wealth of America's wealthiest 1% were confiscated (taxed at 100%), those funds would not be enough to eliminate the Federal Debt, let alone sustain the Federal Budget for another year - and meanwhile there would no longer be an Economy, no Jobs, no Productivity, no services, and no reserves to restart any of that.
I totally disagree with that.

???
You disagree with Facts?
You rely solely upon Libtard Maths?

What?

Forbes reports the wealthiest 400 for 2018 are only worth a combined $2.88 Trillion.
The remaining 206 Billionaires rack up approximately another $280 Billion, for a subtotal of $3.16 Trillion for the top 606.
BLS reports the Civilian Population under 260 Million. 1% would be 2.6 Million. All except the top 606 with less than a Billion.
About 910,000 (top 0.35%) would add another $10 Trillion approximately. Subtotal of about $13 Trillion.
Another 1.7 million Millionaires add about $8 Trillion of total Wealth.
For a total of $21 Trillion.
And that is contributing over $2 Trillion to Federal Revenues each year.

But Obama's bloated Spending Spree has already pushed the Federal Debt over $21 Trillion before 2018.
So then, striving for complete collapse, the Federal Budget would have a $2 Trillion deficit each year, just from the elimination of wealth which the Economy runs on.
With everybody out of a job (or working for peanuts), there would be no other Revenues, either.

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