Interesting article in the Chicago Sun-Times that brings into focus my doubts about the Teabagger movement conservatives' current push to re-fight the New Deal legal battles.
Frankly, for political extremes of all stripes, going to the courts for what you couldn't get at the polls is an iffy proposition at best... for instance, the Right set up nearly 30 years of almost uninterrupted progressive Stare Decisis on Roe and Griswold and women's reproductive rights in general.
Fortuantely, Progressives have learned that the courts are not a replacement for hard won victories at the ballot box... for the most part.
Anyway, you might remember that a couple of weeks back I put up a post on what I regarded as the importance of Republicans grilling Supreme Court nominee Elena Kagan on her position of the Commerce Clause of the Constitution (the bit that allows Congress to regulate interstate commerce).
It appears that the battle may be over before the American Enterprise Institute and the Club for Growth can file their Amicus Briefs:
Aziz Huq told a gathering of lawyers at the Mayer Brown law firm Friday that the U.S. vs. Comstock case should give supporters of the health-care bill hope because seven of the nine justices ruled in this case that the federal government can exercise power not specifically spelled out in the Constitution.
In the Comstock case, argued by Supreme Court nominee Elena Kagan, the Obama administration maintained that the federal government had the right to indefinitely detain sex offenders who had finished serving their sentences.
A North Carolina federal court said none of the federal government's "enumerated powers" in the Constitution covers civil detention of offenders who have finished serving their sentences.
But Kagan argued that Congress' power "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers" (also known as the "elastic clause") covered it, and seven of the nine justices to varying degrees bought that.
Sound kind of thin? Yeah... most things in real court are. But go back and take a look at Comstock and you can see that the entirety of the Court's reasoning revolves around the Elasticity Clause.
The only hitch I can see is the Court's (and in particular Justice Kennedy) repeatedly talking about a narrowly tailored legislation "[that] is rationally related to the implementation of a constitutionally enumerated power," as Justice Breyer put it.
Reading the tea leaves for how the Supreme Court is going to act in any given instance is at best a dubious enterprise. But this decision, I think, gives a good indication that this court – even a couple of the conservatives – are going to take an expansive view of the Commerce and Elasticity clauses to the Constitution...
mojo sends
