[detbuch]

Originally Posted by mosholu

The interesting thing about the arguments in front of the SCOTUS is not whether they have the right to overturn laws that are unconstitutional. That is a given. It is the standard of review that is coming under question

What do you mean by "the standard of review"? The standard used FOR review would be the Constitution, no? The review is to determine if the law is Constitutional, no? Does the standard OF review differ? Do you mean strict scrutiny or loose scrutiny? Do you mean textual or some originalist interpretation which determines if the law is within congressional powers as enumerated, or an instrumentalist view to bring about social change regardless of constitutional authority to do so? And under whose question is the standard coming? Is the government questioning what standard the court is using, and if so, what specifically is its question? Is the government pleading that the Court MUST follow a precedent? And that precedent is that all economic activity falls under its power to regulate commerce? There may have been such an assumption on the part of Congress that it had unlimited powers to do whatever it wished under the Commerce Clause, but that was never stated as such nor assumed by the SCOTUS. And since no such power is given in the Constitution, nor was ever explicitly stated as such by the Court, there has always been a judicial assumption of limits to government power under that clause, or any other clause, no matter under what "standard of review" justices used. The plaintiffs and the "conservative" justices questioned if the limits had been reached by the mandate. The justices questioned if there was a limiting principle that would confine the government's power to require an individual to buy something only to this health care law and not apply this power to any other legislation such as mandating the purchase of broccoli or funeral insurance. The Government could not define or say what would limit it. In essence, if the Government were granted such a power by the Court, it's power would reach beyond any assumed limitation by the Commerce Clause, and it could, indeed, do anything it wished. Does that make you "uneasy" even a little bit?

and the idea that Congress as the elected voice of the people (in theory) has the right to make policy and challenges to any law passed by Congress have a heavy burden to overcome.

Congress has the right to make policy because, and only because, the Constitution grants that power. But the Constitution constrains Congress severly (in theory) to make policy ONLY within the limits enumerated. And it should be a light burden, indeed, to challenge a law passed by Congress if it goes beyond its constitutional authority. Does it not make you a bit "uneasy" to envision a Congress that oversteps its authority and the "burden" to challenge it were made "heavy"?

The conservative justices during the oral arguments felt that the weight of proof was on the Gov't to show that the legislation passed by the Congress allows the Gov't the ability to go into interstate commerce in this area.

Is it truly interstate commerce when you visit your doctor?

This would be a significant departure from Court precedent and you can argue that the Court has the right to move in whatever direction it sees fit.

This would be a "significant departure" from which Court precedent? The Court has already departed from various precedents. The precedent to which you refer, whatever it is, is probably a departure from previous precedent. The Commerce Clause jurisprudence of the past 70+ years has been an extremely significant departure from that of the previous 150 years. Precedent can be used in law as an aid, but precedent should not be binding and certainly not merely for convenience.

Forgetting about this particular law and whether you support it or not do you really want a group of judges that are appointed for life with very limited standard of review to start deciding matters of policy. I think that that would be a significant shift in the system of checks and balances we have in this country and it makes me uneasy.

No, deciding matters of policy, if that means legislating, is exactly what SCOTUS should not do. What SCOTUS should do is determine if policy is constitutional. That is the very essence of the original checks and balances. When the Court abandons its function and duty and merely steps aside to allow Congress unlimited, unconstitutional power, what, exactly is the check and balance there?