The Limiting Principle of Gov't

Discussion in 'Politics' started by Wiseacre, Apr 4, 2012.

  1. Wiseacre

    Wiseacre Retired USAF Chief Supporting Member

    Apr 8, 2011
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    San Antonio, TX
    In an April 2 op-ed in the WaPo, Charles Lane talks about the limiting principle of gov't, and contrasts the SCOTUS review of the war on terror vs ObamaCare. Obviously, these 2 issues are far apart, yet both address the same question. In each case, the question is/was how far can the gov't go in diminishing individual rights? My question is, why can't we find better ways to resolve these issues that does not sacrifice basic human rights? IMHO, political expediency is not a good enough answer; we should be demanding better solutions from our leaders, but we aren't doing it.

    The Bush administration took Sept. 11, 2001, as an opportunity to win additional national security powers for the federal government. The Obama administration saw the Great Recession as an opportunity for a New Deal-like expansion of health care and other domestic programs.
    Consequently, the court has had to decide whether to allow further growth of the national security state and the welfare state — or to push back, lest these twin leviathans smother individual freedom.
    In cases stemming from the war on terrorism, the court consistently ruled against the Bush administration, though the justices had to get around more permissive World War II-era precedents. The justices were not willing to let the government claim unlimited powers of arrest and detention, even in the name of such a good cause as national security.
    In the health-care case, the roles are reversed: Conservatives warn against growth of federal power, and liberals are defending it. Still, it’s remarkable how much the two sides’ arguments mirror each other. In the war-on-terror cases, Bush’s liberal opponents were the ones positing slippery slopes, which conservatives dismissed as far-fetched.
    The Bush administration lawyers argued that the Supreme Court could trust the executive branch not to abuse its war powers because the voters could elect a different president if it did. Last week, Verrilli argued that the Medicaid provisions of the 2010 health-reform law will not coerce the states, because “political constraints do operate to protect federalism in this area.”
    Just as the Bush administration insisted that the war on terror was a new and unique kind of war, the Obama administration assures the court that the health-care market is unlike any other.
    And now a conservative-led majority on the court may strike down Obama’s individual mandate, just as a liberal-led majority struck down Bush’s military tribunals. If so, law professor Orin Kerr wrote on the Volokh Conspiracy blog, “this will be the second consecutive presidency in which the Supreme Court imposed significant limits on the primary agenda of the sitting President in ways that were unexpected based on precedents at the time the President acted.”
    Justice Anthony M. Kennedy was in the majority when the court reined in Bush, and his questions at oral argument last week suggested that he has misgivings about the scope of the health-care-reform law, too.
    The war on terror and Obamacare: Mirror images of the same issue - The Washington Post

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