Yesterday, acting on behalf of the Supremes, she stayed the bankruptcy of Chrysler without comment. A more important development could hardly have occurred. The Obama administration argued that the US Supreme Court has no right to do so.
The particular suit that she acted on, and there are several, was brought by the pension fund manager for the State of Indiana, who argued that this was an unprecedented government taking that violated 150 years of American property law. He argued, further, that it was extra-legal, because the clear intent of the TARP as established by Congress was to buy up “troubled assets” to bail out struggling financial institutions, so that GMAC would be included, but not GM itself, for instance. And of this there is no doubt. Additionally, the settlement forced on creditors violated all established rules of priority. Once again, I don’t think there’s any doubt that that’s true.
Union reps, whose businesses stand to make the most from the ad hoc deal, were predictably outraged, slamming the suit as politically motivated, despite the duty of trust that the Indiana pension official clearly has to the shareholders in his state, who would be among the losers.
It is simply most outrageous, though, that an administration lawyer would have the cojones to argue that the Court has no jurisdiction in the matter at all. I’m not interested in flagellating those who cry Constitutional protection ought to extend to enemy combatants, but think that Geithner and company should have the right to ram through whatever they believe ought to be done and leave no legal recourse, and I’m certain that there are some who are just as appalled by this audacious power grab as I am. At the moment, I’m just grateful to Ginsberg for standing up and asserting the right. Perhaps this will cause the MSM to have to explain what has been happening, and perhaps that will cause people to understand how wrong it is.
At least, that is what I hope.
Related is this story from Bob Reed, covering Scalia’s recent comments about originalism vs. the “living Constitution.”
Here is Daniel Politi, from Slate:
USA Today and the New York Times lead with, while everyone else fronts, the surprising move by the Supreme Court to temporarily block the sale of Chrysler to Fiat while it considers whether to hear an appeal of the deal. In a 53-word order, Justice Ruth Bader Ginsburg gave no hints as to whether the court will hear an appeal by three Indiana pension funds that said they were being treated unfairly in the automaker’s bankruptcy plan. By delaying the sale of Chrysler “pending further order,” the Court could just be saying it needs more time to consider documents filed over the weekend. A long delay could be catastrophic to Chrysler. Fiat has the right to walk away if no deal is reached by Monday, and that could mean Chrysler might be forced to liquidate. But Fiat’s CEO said yesterday he “would never walk away” from the Chrysler deal, even if it’s not completed by Monday.
This characterization is, frankly, insane. Only someone who believes in a Unitary Executive could find the decision “surprising.”
UPDATE: Hollow bluff that Supremes MUST call him on. Obama tells SCOTUS Chrysler will go out of business next week if they hold up deal.
I never thought I would say this, thank you Ginsburg. Hopefully this gets a hearing before the full court.
“By delaying the sale of Chrysler “pending further order,†the Court could just be saying it needs more time to consider documents filed over the weekend.”
My guess is she’s holding it till conference can decide whether to grant cert. I guess this happens with death sentences too.
“Related is this story from Bob Reed, covering Scalia’s recent comments about originalism vs. the “living Constitution.—
http://www.prospect.org/cs/articles?article=scalia_and_thomas_originalist_sinners
“Consider the case of Adarand v. Pena, in which Scalia and Thomas found a blanket constitutional prohibition on federal affirmative action. The problem for originalism here is even more grave, because the 14th Amendment doesn’t apply to the federal government. And if it’s a stretch to say that the equal protection clause was originally understood as prohibiting all racial classifications, it is absolutely farcical to read this principle into the due process clause of the 5th Amendment, which was ratified when the Constitution protected slavery. Whatever its independent merits, then, the Scalia/Thomas position on affirmative action has nothing whatsoever to do with originalism.”
Let me ask you this, meya: what does “equal protection” mean to you?
2
I know responding to you is pointless but wtf did that have to do with Dan’s post?
PS Dan I am not familiar with the inner workings of the court but is there any conventional wisdom in whether or not this will come up before the full court? I would hope that 150 years of property law would at least get a hearing before being thrown out of the window.
Mr. Pink, if you want the “conventional wisdom” of the MSM, it’s shock, SHOCK! that the SCOTUS thinks it can meddle in Obama’s Czars’ affairs. If you want the “conventional wisdom” of people whose opinions are informed, I would suggest you go to Volokh and see what they’re saying about it there.
Let me ask you this, meya: what does “equal protection†mean to you?
All for me, none for thee.
RE: Chrysler,
There must be some ‘there’ there, if RBG woke up long enough to say, “HAY! Wait a minute there, sport.”
I just hope someone can change what this muppet is trying to do.
O/T: Too bad mine was not one the many many jobs O! has saved. Perhaps HE will create me one.
Let me ask you this, meya: what does “equal protection†mean to you?
“Pay my student loans, peon!”
5
Thanks I will head over to read there after I grab some breakfast.
“I’m not interested in flagellating those who cry Constitutional protection ought to extend to enemy combatants”
Did you hear the first one of these scumbags arrived today in NY to face trial?
Despite that, I do know the words “equal protection†are not in the fifth amendment
They are in the Fourteenth Amendment, liebot.
And this is a federal action, liebot, so no argument about the extent of incorporation could possibly apply.
But Dan, there is no god higher than Obamagod?
“This characterization is, frankly, insane. Only someone who believes in a Unitary Executive could find the decision ‘surprising.’”
Which explains clearly why Obama administration lawyers argued that the court has no right to stay the sale to Fiat…
Maybe the O!ne would feel better about the stay if Justice Ginsberg told him she was doing it in the interest of social justice…
Or, that she was concerned that the wealth just wasn’t being spread around equitably…
Or maybe, just maybe, regardless of how living she thinks the Constitution to be, realizes that she can’t simply allow the courts to rubberstamp a deal, one that effectively ignores all cumulative legal inertia regarding bankruptcy law, concocted by executive fiat…
(sorry about the pun, but I couldn’t help it…)
Like many here, I never thought I’d be so enthusiastic about an action of Justice Ginsberg. But just as with Obama, or any official of our government, when they do the right thing, perform admiriably, or otherwise serve our nation beneficially, I will applaud their action-regardless of party affiliation…
Because that’s what Patriots do…
This characterization is, frankly, insane. Only someone who believes in a Unitary Executive could find the decision “surprising.”
Yes, I was on the road and heard ABC radio news quickly state that the stay made the disposition of Chrysler ~”more messy” and ~”threatened the existence of the whole U.S. auto industry”.
Say what?
Apparently before the stay, I heard ABC[?] report that the deadline for enacting a stay had expired so that there was no stay! Hey, “that’s entertainment”.
Kudos to Justice Ginsberg.
Again, my favorite metric, can you imagine the absolute outrage had President Bush done this?
I once saw a book chapter titled “the meaning of equal protection.†It was several hundred pages long. On this, I’ll defer to the more learned.
It cannot even state its own opinion when presented with a direct inquiry. It reflexively reaches for an appeal to some undefined authority, dismisses the question and goes back to its original programming.
I had such high hopes for the A.L.P.H.I.E. program, but I see now that it has made precious little progress in the past couple of years.
“I once saw a book” … That is about the depth that meya shows on any given topic.
meya,
No offense meant, but you must be truly ignorant of history to be making the comments you are regarding originalism and the equal protection clause…
At the time of it’s writing and ratification, the issue of slavery was a divisive one that threatened the very establisment of the union. Much of the document was written with an eye towards outlawing the process, and in fact contributing authors realized the disconnect between their enlightenment priciples and the practice of slavery; Jefferson would admit as much later in life…
And, just as with other episodes in our nations history that you would choose to mischaracterize or use in improper scale or context, such as the treatment of immigrants at Ellis island, the trail of tears(that my ancestors endured), or even Gitmo and waterboarding 3 prisoners, these actions were undertaken in the name of the greater good; and based on the knowledge at that time were considered prudent, precautionary, and necessary…
So too at the time of the Constitutional convention did the issue of slavery get deferred, for many reasons. One was ideological, in the aristoi assembled to construct the document wished to defer to the wishes of the people, since at that time there were no carreer politicians protecting their phony-baloney jobs-and they truly believed in givernance by the people. But another very real reason was that it would be a deal breaker for the southern colonies, and too for some of the northern ones had it been explicitly codified in the document. So, in the interest of shedding the yoke of British monarchal rule, a system they considered tyranny, they chose to put off the decision on the first congress instead…
A practice that instead festered until it was finally settled by force of arms, and a decision that in some ways haunts us today…
I hope that I’ve been able to augment your understandong of that whole complicated manner. Knowing the actual circumstances, I can’t see how you could continue to argue with either Scalia’s or Thomas’ reading of the equal protection clause vis-a-vis affirmative action; especially in light of the later amendments that outlaw discrimination based on race, or that denied citizenship to those deemed as slaves or descendants of…
And if you did understand these things and were simply trying to twist the history to fit your political agenda so as to score cheap points..?
If so I ask, would it have been preferable to have not ratified the Constitution, and remained a British colony..? Do you disagree with the fact that the fourteenth amendment overturned the Dred Scott decision, and invested the full rights of citizenship in people who were formerly slaves..? Does the equal protection clause apply today, that is to say, can there be one statute of limitations for minorities and another for the majority..?
Equal protection has applied to all citizens since the Constitutions ratification. Regardless of the obfuscation of the 3/5ths person rule for congressional districting, slaves-being chattel-were by definition non-citizens, and is the only reason the 5th amendment did not apply to them. Once the 14th amendment changed that, legally, there was no further question…
Thomas and Scalia correctly interpreted the original intent of the Constitution. Just as Justice Ginsberg may have too, in the case Dan has posted about…
with all due respect
Lacks the dimension gene, Bob.
Same blog. Same comment thread even!
With all due respect … heh.
Harrumph.
I wouldn’t get all misty-eyed over Ginsberg. She just happened to be in the room when a slam-dunk case was presented.
And if you did understand these things and were simply trying to twist the history to fit your political agenda so as to score cheap points..?
But of course, it’s meya. Sophistry just comes naturally.
Comment by BL: Thank you Justic Ginsburg. Perhaps we can go forth with the Chrysler bankruptcy according to the LAW, not the heavy handed Chicago mob tactics of the Obama administration.
I like the way someone described this whole mess as a money laundering scheme to pay off political debts, i.e. to the unions.
Well, the union bosses, really.
With trillions of dollars in play and practically no oversight or accountability, it’s a certainty that someone, somewhere has/is/will game the system and end up very rich at the expense of the US taxpayer. Most likely the union bosses and their ilk.
But I wouldn’t count Wall Street out. Those guys have got game too.
And of course, Obie and Emmie will make out like bandits.
How about these words, meya, ring any bells?
Amendment IV
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The first time in my life that I’ve agreed with Ginsburg.
Surely the Apocalypse is nigh. Or something. Pigs flying, maybe?
IIRC, you wouldn’t be proceeding with a Equal Protection argument under the 14th Amendment, but rather a Due Process argument under the 5th Amendment. The gist of the Substantive Due Process argument is that no person is to be deprived of life, liberty, or property through arbitrary action; that the laws are not only to be fair in content, but also in application.
The 5th Amendment will apply to the actions of the federal government whereas the 14th Amendment applies to state action. Bankruptcy, of course, is under federal law.
The Obama administration argued that the US Supreme Court has no right to do so.
Then let them back that up by action, Jackson style. They can simply ignore the courts if they choose to; do it.
Here’s an old Latin legal phrase:
Cui Bono?
It’s kind of scary to hear administration lawyers arguing that the court has no jurisdiction in the Chrysler case considering that the USSC has original jurisdiction involving cases between a state and the fed. Either the administration has no clue about what powers the various branches do have or they are lying.
I would love to have President Obama set recent precedent by simply ignoring a Supreme Court ruling. It would make it harder for later Republican presidents to be criticized for doing the same thing.
Latin for “follow the money”.
Regards,
Ric
Also Cui malo? since the O! boys work both the carrot and the stick side.
Game over.
A lot of folks wish their in-laws had that long of a “stay”.
Great. So now we’re going to have a new family of American cars that have hairy wheel-arches and 5 reverse gears.
I’d say buy Ford stock, if I were to give stock tips. But I don’t; even though the feeling is there.
Well, God knows I’ve bought all the GM stock I’m ever going to buy, and not by choice. Chrysler? Fiat can have it.
No, citizenship was being defered, equal protection was there from the start.
The founders unfortunately assumed a level of literacy that our educational system has not maintained. The fact that they didn’t specifically mention equal protection as such does not mean it wasn’t implicit in the very fiber of the document.
Which only expands on the previous intent, it doesn’t define it.
It seems like you’ve recently learned just enough about “incorporation†to be wrong about it.
It seems that you’re a spinning, lying crapweasel.
But we all knew that already, didn’t we?
The snaildarter of Chysler just got flooded out.
…they didn’t get equal protection “implicit in the very fiber of the document.
For instance?
It’s equal protection under the law, meya, and there is not now nor has there ever been a right to vote. You also seem to have a problem differentiating State laws from Federal laws, that was a much larger distinction back then. As for this,
At a certain point of investigating what actually was happening at the time of the founding, we come to realize that whatever equality was implicit back then, it can’t be stretched to include a prohibition on race-based affirmative action.
Is that really as clear as you can make that? Because I haven’t a clue as to your point.
“It’s equal protection under the law,”
That’s the words they used in the 1860’s. If you’re going get pedantic about what the words actually were, I’ll just have to resort to pointing out that neither “equal protection” nor “equal protection under hte law” were actually used.
“meya, and there is not now nor has there ever been a right to vote. ”
But there are laws about who can vote. Equal protection as written in the 1860’s is under the law, not just “under constitutional rights.”
“Is that really as clear as you can make that? Because I haven’t a clue as to your point.”
You’re trying to find some equality in 1789 so that you can say that equal protection is originalist, despite all the problems with that — not the least of which is the failure to actually use those words — but lets say those aren’t necesary, because we can just find something “implcit.” Whatever implicit equality you find in 1789 won’t be very strong. It wont be strong enough to overcome race based affirmative action. Which is the point made in comment #2 which bob reed takes issue.
If you’re going get pedantic about what the words actually were…
If I’m going to get pedantic? Are you fucking high?
Do you understand what is generally meant by the phrase “the rule of law”? The whole concept is based on the idea of all being equal in the eyes of the law, you know, that whole justice is blind thing. Was the execution perfect in the Eighteenth Century? No, not even close. But to deny that was the ideal is just stupid.
“But to deny that was the ideal is just stupid.”
Having an ideal is fine. It’s great. It’s part of how things become enforced. It’s just that when its not what is originally in the constitution, applying that ideal isn’t ‘originalism.’
It’s just that when its not what is originally in the constitution, applying that ideal isn’t ‘originalism.’
Not if you are a disingenuous, pedantic twit. But those of us honestly interested in original intent, who read not only the Constitution, but the Federalist Papers and the personal correspondences of the primary authors, see a much different, more nuanced if you will, document than that.
Our Constitutional right are being ignored, but the sad truth is we don’t know it. We don’t know our rights, and some just don’t care. That is why we are where we are.
http://animal-farm.us/change/all-hail-king-obama-460
It’s just that when its not what is originally in the constitution
That is a lie and you are a liar.
Just wanted to point that out, in case you hadn’t noticed.
Meya is again mendoucheous. And water is wet.
On every question of construction [of the Constitution] let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or intended against it, conform to the probable one in which it was passed.
— Thomas Jefferson
Do not separate text from historical background. If you do, you will have perverted and subverted the Constitution, which can only end in a distorted, bastardized form of illegitimate government.
— James Madison
You are a liar, and that is a lie Meya.
– Makewi
Fuck it, meya. If you think that is what I am saying you are retarded. Otherwise you are as big a liar as accused. I am done with you.
B Moe – this one can work up some alphie-esque idiocy.
Those are great points makewi. That’s exactly why we can’t say that there was racial or gender equality in the original constitution. Not just because its not in the text. But because that’s not what those dudes were doing! Bob Reed sort of got it up above: they were deferring on that!
“Fuck it, meya. If you think that is what I am saying you are retarded. ”
I get it. You’re not Scalia originalists. That’s sort of obvious. You barely know what that means. The bigger point is that neither is Scalia.
I get it. You’re not Scalia originalists. That’s sort of obvious. You barely know what that means
I get it.
You’re a liar.
A bad one.
Again, what the fuck do you get out of your bullshit act, SFAG?
What, you think that one of these days we’re all going to see the light and acknowledge your brilliance? Surely not even YOU could be THAT stupid.
I’m afraid that mental illness is the only answer that makes sense at this stage.
Get help. Seriously.
So spies, you think there was equal protection at the time of the founding? Or you need that big wall of catch phrases to make sure you don’t have to think about that? Its a rather simple, and interesting point. I don’t know why people fight it so.
So spies, you think there was equal protection at the time of the founding?
I think you are a mendacious liar who isn’t capable of an honest debate, so let’s not pretend that you are.
I also think you have psychological issues of some sort.
How’s that?
It is just performance art.
Except without the art.
Or the performance.
You gotta mouse in your pocket?
“I also think you have psychological issues of some sort.
How’s that?”
I guess its time to take the panic pills.
I guess its time to take the panic pills.
If you’re supposed to be taking pills, I suggest that you do so.
I also notice that you didn’t answer my question, but then you never answer questions unless you can spin, lie, or deflect, do you?
Here, let me repeat it in simpler terms:
Just what the fuck do you think you’re accomplishing here?
Clearly no one is buying your act, and no one is EVER going to buy your act, so you’re essentially just wasting your time, right?
Do you REALLY feel like you’ve “won” something when you come up with one of your halfwitted spin jobs? Surely not.
Surely not.
No answer, meya?
No spins?
No lies?
No deflections?
No transparent attempts to change the subjects?
No tortured parsing of individual words on a Clintonesque scale?
“It were doubtless to be wished, that the power of prohibiting the importation of slaves had not been postponed until the year 1808, or rather that it had been suffered to have immediate operation. But it is not difficult to account, either for this restriction on the general government, or for the manner in which the whole clause is expressed. It ought to be considered as a great point gained in favor of humanity, that a period of twenty years may terminate forever, within these States, a traffic which has so long and so loudly upbraided the barbarism of modern policy; that within that period, it will receive a considerable discouragement from the federal government, and may be totally abolished, by a concurrence of the few States which continue the unnatural traffic, in the prohibitory example which has been given by so great a majority of the Union. Happy would it be for the unfortunate Africans, if an equal prospect lay before them of being redeemed from the oppressions of their European brethren!”
— James Madison, Federalist Paper No. 42
“[The Convention] thought it wrong to admit in the Constitution the idea that there could be property in men.”
— James Madison, Records of the Convention, August 25, 1787
“We have seen the mere distinction of color made in the most enlightened period of time, a ground of the most oppressive dominion ever exercised by man over man.”
— James Madison, speech at the Constitutional Convention, June 6, 1787
But then he was just the author of the Constitution, and these quotes were just taken from the time period in which he was writing the document. But hey, let’s just ignore that and say “but he owned slaves!”
— Makewi, 3:12pm today
“Just what the fuck do you think you’re accomplishing here?”
We’re having a pleasant exchange about the founders and how to interpret the constitution. Apparently people think that the constitution ratified a prohibition on racial inequality. I’m sure those southern states that ratified it would be VERY surprised to know that.
Very nice makewi. Now how do you even begin to transform that to an actual constitutional mandate of racial equality? I mean, they said nice things about free speech — and then they went ahead and put that in the constitution. Doesn’t that mean there’s a difference in the two? Does the actual text they wrote and ratified not matter ?
Lying moron. No one said or implied any such thing.
Of course. Free speech cost nothing to grant, and was acceptable to all the signers. Freeing the slaves and granting them equal rights immediately would have not been possible, politically, economically or socially, as I have explained to you before.
The founders were smart enough not to let the good be destroyed by demanding perfection.
Of course it matters, now does their intention matter? The little deals and compromises, the history, that the founders asked us to consider when finding the meaning behind their words?
I mean I realize that my first set of quotes which had the founders asking us to do just that was around 30 whole minutes ago, but perhaps you could put the 2 ideas together and visualize what I am trying to say. Or else just go have a cold one. Up to you really, I’m not picky.
It would be a damn miracle if she could just get one idea straight, putting two together is shooting for the moon, dude.
“Lying moron. No one said or implied any such thing.”
Hello? Bob Reed said: “Equal protection has applied to all citizens since the Constitutions ratification. ” I mean, you read the thing i posted up in #2 right? Scalia thinks it did.
“Freeing the slaves and granting them equal rights immediately would have not been possible, politically, economically or socially, as I have explained to you before.”
I know this. That’s exactly why an originalist can’t claim to find equal protection in the fifth amendment. Because the words aren’t there, they couldn’t be there, and we can’t imply that they were there. That’s the point i’ve been making. But apparently makewi thinks otherwise.
Apparently people think that the constitution ratified a prohibition on racial inequality.
Take your medication, liebot.
Hello? Bob Reed said: “Equal protection has applied to all citizens since the Constitutions ratification.
Slaves weren’t citizens, liebot, hence the first sentence in the Fourteenth Amendment.
Going to answer my question without attempting to deflect it, liebot?
I didn’t think so.
One last time. Equal protection was there for citizens, slaves weren’t citizens… yet. The writings of Madison quoted above and many other founders were very plain spoken in their desire to eventually get this and other deficiencies rectified, and it was. This is why we speak of original INTENT. I notice you conveniently leave the intent thing out of your comments. The Constitution wasn’t considered a finished product when it was ratified, hence the inclusion of an Amendment process. The key is, there was a process for change, and an inherent philosophical INTENT. Those are the things I think we should focus on, I can’t speak for Scalia.
Going to answer my question without attempting to deflect it, liebot?
So that would be a “no”, then.
Snicker.
#71
#71
So that would be a “no”, then.
Snicker.
This is why we speak of original INTENT. I notice you conveniently leave the intent thing out of your comments. The Constitution wasn’t considered a finished product when it was ratified, hence the inclusion of an Amendment process. The key is, there was a process for change, and an inherent philosophical INTENT.
Yet you keep bringing it up. How long would it take you to figure out Scalia isn’t arguing here?
Do you think that has anything to do with the intent of the authors?
Only if you are stupid.
Or a disingenuous weasel.
Or both.
That is Protein Wisdom in a nutshell, meya. You say the readers get to define the text, we say the author does.
What?
What the ratifiers thought they were ratifying, involves a thing called “interpretation.” Responsible interpreters look to the intent of the authors as a starting point.
If a law’s authors want it to ban discrimination against people with big toes shorter than second toes, and a state’s legislators ratify it under the misapprehension that it permits such discrimination, then the legislators have screwed up and are bound by the true meaning of a law they misinterpreted — not by their misinterpretation of that law.
If they say otherwise, they get invaded, their property gets confiscated and their crops get burned.
Which, that’s pretty much what happened.