Fear & Trembling

by JASmius

[With apologies to William Butler Yeats]

Turning and turning in the widening gyre
The justices cannot hear the respondent;
Things fall apart; the left cannot hold;
Tea Party anarchy is loosed upon the world,
The blood-dimmed tide is loosed, and everywhere

The ceremony of dependence is drowned;
The best lack all conviction, while the worst
Are full of passionate intensity.

Surely some revelation is at hand;
Surely the Second Term is at hand.
The Second Term! Hardly are those words out
When a vast image out of Olympus
Troubles my sight: a waste of desert sand;
A shape with Fred Flinstone's body and the sardonic Eyebrows,
A gaze blank and pitiless as the sun,
Is moving its slow thighs, while all about it
Wind shadows of the irresolute Justice Kennedy.

The darkness drops again but now I know
That ten months of arm-twisting and log-rolling
Were vexed to nightmare by unprecedented activism,
And what rough beast, its hour come round at last,
Slouches from Massachusetts or Michigan (depending upon which Cadillac was available) to be born?

~ ~ ~

Maybe Justice (and ex-Obama Solictor General) Blubberstopholes leaked the preliminary O-Care vote to him, maybe she didn't; but either way, this is a man that needs twin pallets of deodorant and Depends:

I'm not sure why it's taken me this long to get to The One's first tantrum of the week; yeah, it was a busy week, but then all my weeks are nightmares of obligation and toil. Hard to believe, given my long-awaited return to the pixels, that something this juicy could fall between the cracks, but then y'all haven't seen me eat, either.

Where to begin? The SCOTUS overturning a law passed by Congress and signed into law by POTUS (which is how EVERY law becomes, law, regardless of the margin of passage) is "unprecedented and extraordinary" how, exactly? It's happened frequently over the course of American history going all the way back to Marberry vs. Madison, including cases involving the venerated, defenestrated Commerce Clause. Or maybe he means it's "unprecedented and extraordinary" that the Justices would knock down HIS corrupt, unconstitutional usurpation and core vehicle for overthrowing constitutional government once and for all. As in "effrontery and insubordination."

That underlying thought is bolstered by his followup suddenly embracing the concept of "judicial restraint," by which he did NOT mean "restraint from writing law from the bench," but "I'm warning you, you better not strike down my masterpiece, or else!!!" What else could he have meant when he said that "the Justices have to understand...." And they do; everything he came to Washington to do has failed, his presidency hangs by an unraveling thread, and HIS "Trojan Horse" of radical Marxist "transformation" is now on the High Court's chopping block, awaiting the guillitoine blade's fall. So they simply have to understand that this is all about HIM, dammit! It's not fair that ObamaCare might get consigned to the outer darkness! It's not fair, it's not fair, it's not fair!

The four anti-constitutionalist justices will march in lock-step to carry out his orders; the four constitutionalist justices plus Swingin' Tony Kennedy (God willing) will do what the Founders would require of them.

See, the thing we have to understand is the L'il President's psyche. This is man who has never, in all his life, been told, "No!". He's never lost to an ideological foe. He was groomed from the cradle to be the real-life Manchurian Candidate, had the road to power paved for him, had his head pumped full of radical leftwing extremist poison, had his ego stroked to the point where he really does believe himself to be "some kind of a god" - or at least the American Castro, entitled to cowering deference from any and every other American, in the government or out. And now, it's, well, "all falling apart." His center - ObamaCare - looks likely to fall, and he just doesn't know how to handle it. This was not the way Mom, Dad, Grandma, Grandpa, Uncle Bill and Uncle Jeremiah said it would go. This is, in his disintegrating mind, his own personal Gesthemane. And he doesn't know how to handle it, because nothing in his pampered, overprivileged life has ever prepared him for the one thing he's never before encountered: complete, comprehensive defeat.

So he lashes out, he threatens, he bullies, he intimidates, he takes a verbal sledghammer to the separation of powers, all of it as impotent as Bob Dole after the Viagra runs out.

Well, Olympus, of course, maintained its regal silence, but not every federal judge was willing to take this final straw:

The [Fifth Circuit Court of Appeals] panel is hearing a separate challenge to the health care law by physician-owned hospitals. The issue arose when a lawyer for the Justice Department began arguing before the judges. Appeals Court Judge Jerry Smith immediately interrupted, asking if DOJ agreed that the judiciary could strike down an unconstitutional law.

The DOJ lawyer, Dana Lydia Kaersvang, answered yes -- and mentioned Marbury v. Madison, the landmark case that firmly established the principle of judicial review more than 200 years ago, according to the lawyer in the courtroom.

Smith then became "very stern," the source said, telling the lawyers arguing the case it was not clear to "many of us" whether the president believes such a right exists. The other two judges on the panel, Emilio Garza and Leslie Southwick-both Republican appointees-remained silent, the source said.

Smith, a Reagan appointee, went on to say that comments from the president and others in the Executive Branch indicate they believe judges don't have the power to review laws and strike those that are unconstitutional, specifically referencing Mr. Obama's comments yesterday about judges being an "unelected group of people."

Judge Smith then ordered the Department of Injustice & Revenge to submit by Thursday a minimum three-page, single-spaced essay stating its position on judicial review, or I guess The One or Eric The Red would have had to miss recess or something.

That might have oversold the point. But leave it to the Regime to take a situation inadvertently turning in their PR favor and swat it back like a Jimmy Connors return of serve:

The longstanding, historical position of the United States regarding judicial review of the constitutionality of federal legislation has not changed and was accurately stated by counsel for the government at oral argument in this case a few days ago. The Department has not in this litigation, nor in any other litigation of which I am aware, ever asked this or any other Court to reconsider or limit long-established precedent concerning judicial review of the constitutionality of federal legislation...

The question posed by the Court regarding judicial review does not concern any argument made in the government's brief or at oral argument in this case, and this letter should not be regarded as a supplemental brief.

In considering such challenges, Acts of Congress are "presumptively constitutional," Turner Broadcasting System, Inc. v. FCC, 507 U.S. 1301, 1301 (1993), and the Supreme Com1 has stressed that the presumption of constitutionality accorded to Acts of Congress is "strong." United States v. Five Gambling Devices Labeled in Part .. Mills," and Bearing Serial Nos. 593-221,346 U.S . 441 , 449 (1953); see, e.g., Gonzales v. Raich, 545 U.S. 1, 28 (2005) (noting that the "congressional judgment" at issue was "entitled to a strong presumption of validity"). The Supreme Court has explained: "This is not a mere polite gesture. It is a deference due to deliberate judgment by constitutional majorities of the two Houses of Congress that an Act is within their delegated power or is necessary and proper to execution of that power." Five Gambling Devices Labeled in Part .. Mills," and Bearing Serial Nos. 593-22i, 346 U.S. at 449.

In light of the presumption of constitutionality, it falls to the party seeking to overturn a federal law to show that it is clearly unconstitutional. See, e.g., Salazar v. Buono, 130 S. Ct. 1803, 1820 (20 1 0) ("Respect for a coordinate branch of Government forbids striking down an Act of Congress except upon a clear showing of unconstitutionality."); Beach Communications, Inc., 508 U.S. at314-15.

Roughly translated, Eric The Red's response distills down to this: "Sit down, shut up, and stop wasting our time. Barack Obama is your ruler and he has given you your orders. Your job is to rubber-stamp ObamaCare just like the 'democratically-elected' 111th Congress did, and if you don't, there will be severe consequences." Leastways, that's how I interpret the "unprecedented, extraordinary" argument that Supreme Court Justices are obligated to bow to the expressed will of a Congress that was cashiered a year and a half ago for foisting this monstrosity on the American people against their vehemently-expressed will, and whose replacements in the House have already voted to repeal it.

It's more arrogance, of course; but it's also more fear. These people know that their greatest creation is about to be hoisted on the "judicial review" petard their ilk has used for decades to write their wacko agenda into the law extra-democratically. Rarely (if Justice Kennedy screws his head on right) will irony and justice have collaborated this deliciously.

I just wish I could see the look on Red Barry's face a couple of months from now.

[cross-posted @ Hard Starboard]