I’ve long been a loud critic, within the unpaid progressive legal semi-pundit blogger community, of the Obama Administration’s decision to ground its right to impose a health insurance mandate in the Commerce Clause (aided by the Necessary and Proper Clause) rather than in the Taxing and Spending Clause. Under the latter justification, PPACA (the Patient Protection and Affordable Care Act) would almost surely be considered constitutional.
Why did the Administration do this? Partly, it might be that it did not want to be perceived as imposing a new tax — especially when the new tax would very likely end up saving people money. (Under a PPACA) Possibly, it just thought that the Commerce Clause power was more appropriate, especially as it was deeply wedded to a neoliberal ideology favoring market solutions. Regardless, it did not take seriously the notion that this was not a straightforward use of Commerce Clause power seriously — even after legal scholar Randy Barnett came up with the idea (which I certainly hadn’t foreseen) that PPACA’s mandate could be an expansion of the Commerce Clause because it forced people to engage in commerce and then regulated them as a result of that action. This has sometimes been known as the “regulating inactivity” or as “forced purchase of private goods” or similar names.
My liberal friends in law have been distressingly complacent about believing that this was an absurd argument because the federal government has many times forced people to purchase things from private vendors: health insurance itself for merchant seamen during the John Adams Administration, requiring those drafted to purchase certain items, driver’s licenses, etc. (Note: driver’s licenses are required by state governments, not the federal government, but the Taxing and Spending authority has been long accepted to allow the federal government to act in areas involving health, welfare, etc. That’s why, for example, we have Medicare.) What they apparently couldn’t get their heads around was that what their opponents were arguing that this represented an expansion if done through the Commerce power rather than through the Taxation power (or through other explicit powers, such as forming an Army and Navy, or implied powers attendant to those explicit ones.)
Now the Supreme Court is hinting that it wants not only to toss out the mandate, but to use that provision — which should have been unambiguously constitutional but was mislabeled in its justification — as the anchor whose rope is wrapped around the legs of the rest of the bill, so that when tossed overboard it drags the rest of the bill to its watery death.
I’ve published this essay elsewhere and sent it to a few brilliant constitutional lawyers I know. I’m publishing it here because — well, we need a new story and this is what I have handy. (Plus it might be of interest to some of you. If this makes your eyes glaze over, don’t worry; that’s probably the most common effect it will have on people.) Here we go — it was written last night starting at 1 a.m., which explains the time references.
Could President Obama snatch victory from the jaws of defeat by issuing an Executive Order? (I’m “thinking out loud” here, late at night, so please bear with me.) Let’s fancifully call this order the “Order Blocking Activation of Mandate Authority Under PPACA, Soliciting Enactment of Taxing and Spending Clause Obligation Undergirding Regulatory Treatment, or OBAMA UPSETS COURT. (And lets call that “OUC” for short.)
Such an order, which has the force of law and is based on the President’s power to Faithfully Execute the Laws, might say roughly this:
The mandate in the PPACA that most citizens who are not otherwise covered by medical insurance, which invokes the Commerce Clause and the Necessary and Proper Clause, has raised constitutional questions about the degree of possible expansion of federal powers under those Clauses. In deference to that concern, and based on my belief that the mandate would unquestionably be a lawful exercise of federal power under the Taxation and Spending Clause and the Necessary and Proper Clause, I therefore issue the following Executive Order:(1) The Executive Branch of the Federal Government will not enforce the provisions of PPACA mandating participation in the program until and unless one or more of the following occurs:
(a) A statute is enacted stating that the federal authority for issuing the mandates is grounded in the Taxing and Spending Clauses and the Necessary and Proper Clause rather than the Commerce Clause.
(b) A statute is enacted providing those covered by the mandate the option to purchase private health insurance offered through the Federal Government rather than by private entities.
(c) The Supreme Court declares the current operation of the mandate under the Commerce Clause (and N&P Clause) to be constitutional.
The President could then announce that a petition was being filed to the Supreme Court stating that the case at bar was either moot or not ripe based on the promulgation of “OUC,” the above Executive Order.
I have very little idea of whether “OUC” would work, although in additional to publishing it here I’m going to pass it along to some Con Law professors I know who will have a better idea of whether it would. My reasoning is this:
(1) If the problem is that PPACA presents an uncabined potential expansion of the Commerce Clause, this “OUC” Executive Order would strike that dead. The Commerce Clause (bolstered by the Necessary and Proper Clause) would no longer be the basis of the mandate as altered by the Executive Order. The concern about forcing people into commerce with private entities so that they would be regulated by private entities goes away.
(2) What also goes away, of course, is the regulatory scheme of market expansion that undergirds the plan — but let’s be frank: the fact that that system provided no penalties for noncompliance means that insurers couldn’t be assured that they would actually get all of those new customers to expand the regulated market anyway. (To the extent that getting people to sign up depending simply on moral suasion and appeals to patriotism, it still would.) What this means is that insurance companies would freak out and start screaming. However, there are fixes provided for in the very executive order itself — and their screaming could be for implementing one.
(3) Does this mean that Congress is being betrayed by the Executive Order? No. The President’s responsibility is to enforce the laws and respect the constitution. If a part of the law isn’t enforceable, he can’t enforce it. This is not the sort of Executive Order that Rick Perry was talking about, which could wipe away the duly enacted law based on his antipathy for it alone. This would represent a proper exercise of the President’s executive power, eliminating only unconstitutional provisions, even if it arguably leaves us with a bill that would not have passed in the first place. (That’s the gamble a legislature takes!) Essentially, what it does is to insert the severability clause (regarding this requirement) that was missing from the bill itself.
(4) Congress is now in a tough spot. The insurers are in substantial trouble if the don’t pass the proper justification for the bill (with or without a public option to avoid the “making people take part in the market and then engage in private commerce” issue entirely.) At this point, the Supreme Court can’t save them. The case is either moot (as there is no potential for “abusive” and uncabined extension of Commerce Clause powers) or not ripe (as, for now, no one would be subject to the mandate.) The question of whether the Taxing and Spending authority would justify the mandate is not now before the Supreme Court. My guess is that Congress has no real choice but to save the insurance industry by passing this alternative authorization for PPACA. If it doesn’t — well, let it argue with insurers.
(5) [note: added here, not in the original] The Supreme Court might still decide that it can and should declare that the mandate provision of PPACA is unconstitutional, because an Executive Order could be repealed at any time. (I think that this would be a mistaken deployment of the “capable of repetition yet evading review” basis for finding a live “case or controversy” — this was originally used in abortion rights cases where the plaintiffs were allowed to continue with a case regardless of whether they had given birth, miscarried, or had an abortion, because the case might stretch on longer than the time during which an abortion was safe.) However, even if they did so, I don’t think that this would allow them, by any reasonable stretch of legal reasoning, to go after the rest of the bill. The state of play after the order would be that Obama would, within his rights as Chief Executive, be refusing to enforce the provision. They can kill that provision dead, but at that point it’s already severed from the policy being considered.
I can imagine various arguments against the President’s ability to do this, but so far I am not impressed with any of them. It may seem like “dirty pool,” but he can do it — and, in fact, arguably has to do it to if a severable portion is unconstitutional. This is always a problem when one has a severability provision in a contract or a law — can one live with the remainder if one portion is found to be void? By preempting the Court’s actions, Obama would leave the Court without a live controversy.
An interesting metaphor occurred to me just now. Justice Scalia said that if the heart — in his metaphor, the Commerce-Clause-justified mandate — is taken out, then the whole body dies. But that, as Dick Cheney’s recent experience reminds us, is simply not so. Cheney’s heart was taken out, and a new heart — in my metaphor, the Taxing-and-Spending-Clause-justified mandate — was transplanted in. And, if Congress refuses to play along at all, the “patient” with an otherwise healthy circulatory system may still be able to be kept alive indefinitely on a heart-lung machine — metaphorically, the operation of PPACA without the mandate — for a long time.
Like I said — it’s very late here and I don’t know if I’m overlooking something major. But the mere possibility of an OBAMA UPSETS COURT Executive Order, until someone points out compelling flaws in it — is what will help me sleep soundly tonight.
UPDATE: I’m happy to provide space for a contrasting viewpoint. If you’d like to read a traditional Democratic neoliberal defense of PPACA, you’ll find a good one here. This is brilliant and arrogant legal scholar Akhil Reed Amar writing in Slate about what he would have said to the Supreme Court had he been Donald Verrili. It shows what happens when you start with the question “is this a valid economic regulation” rather than the question “upon what sort of slippery slope does this set us?” I agree and disagree with various parts of it, some of which strikes me as handwaving and brazen assertions of doom to reputation — he just flat out dismisses the idea of there being a slippery slope here as unthinkable — but it shows you how the arguments would be made. (Why Verilli fell short of this, I do not know.) I do agree very much with his final Q&A:
Q: Are there any middle positions that might generate a broader consensus on the Court?
A: One possibility, perhaps, might build on various comments by Chief Justice Roberts and Justices Sotomayor, Kagan, Breyer, and others, at oral argument. The “mandate” should not be understood as free-floating requirement but simply as connected to the tax-penalty. In turn, the penalty can be upheld as a genuine revenue measure designed to bend down the cost curve. If the relevant statutory section needs in effect to be “reworded” to achieve this result, a judicial re-writing/re-reading of this section would be in keeping with various earlier cases, including the 2005 sentencing guidelines case ofU.S. v. Booker and the 2009 Voting Rights Act case of NAMUNDO v. Holder. Both cases, in turn, can be seen as rooted in principles of judicial restraint and charitable interpretation famously put forth by Justice Brandeis in his concurrence in the 1936 Ashwander v. TVAopinion. With all due respect, several other possible approaches are also sketched out in an essay I wrote last summer for the Yale Law Journal online.
Keep an eye on this spot for more legal theory fun!
“I have very little idea of whether “OUC” would work ..”
I think that it would work well to get BHO either impeached (my first choice) or not re-elected. Either way Obamacare goes down in flames and BHO along with it – Yea!
Why would this executive order even possibly be a basis for impeachment? Take as many hallucinogens as necessary before you answer.
How mant peyote buttons did you pop in drafting this nonsense?
That’s what I thought — no answer to the actual question.
I congratulate you, though, on your knowledge of hallucinogens.
Now: whyyyyyy impeachable?
“This is always a problem when one has a severability provision in a contract or a law ..”
Problem – Obamacare as passed by the Senate and then passed by the House and signed into law does not have a severability clause.
skally, I know that you’re neither a contract lawyer nor a constitutional lawyer, but let me ask you: is it your impression that the presence of a severability clause is necessary, either in contracts or in statutory analysis, for voided provisions?
Would it shock you to know that there are rules of interpretation and procedures for guidance already in place for such situations?
Severability is not likely to be upheld as it was intentionally left out of the bill.
It wasn’t disclaimed in the bill, so that’s not conclusive. At any rate, it was left out at least in part because of the technical difficulties created by the non-amendable reconciliation process.
It was left out & not likely to be inserted by Justices who have an aversion to inserting themselves into the legislative process. I would say no effen chance of that happening.
Is it your impression that judicial precedent makes scuttling an entire law if it lacks a severability clause preferable to figuring out how to best honor the actual intentions of those who enacted the legislation? Why would you assume that that’s less “inserting themselves into the legislative process” than a more minor fix — especially if the mistake was simply that they grounded the mandate in the wrong constitutional power?
Hint: it’s not. I’m always amazed by how non-lawyers think about law.
Oh, Greg, you and all your fancy, schmancy lawyer talk.
I resent that. “Fancy,” yes, but “schmancy”? Well, maybe.
you guys are missing the point. regardless of the outcome, there will be litigation for years over a variety of issues stemming from this quagmire. lawyers are going to continue to get rich and be able to pay for their health insurance. as long as the lawyers can pay to protect themselves, life will go on
Once it’s determined to be constitutional, not so much. And the government lawyers working on the case are on salary, not hourly billables.
@willie – nah, I think that the SCOTUS is going to squish this thing like a bug. And Brryer is going to take part in the squishing.
Your executive order idea simply looks like a boatload of political maneuvering…and the majority of Americans will look on something like this as too cute by half.
The majority of Americans will not understand the legal reasoning behind it it at all. All they’ll understand is that they still can’t be denied insurance due to pre-existing conditions and that the threat of a governmental broccoli-buying mandate is over.
You’re right…they won’t understand the legal reasoning. That’s because the raw politics of it would obscure all that.
How about the raw politics on the other side?
People don’t like the mandate. Get rid of the mandate, unless Republicans sign on, and I don’t think that the public will freak.
Well, we’ll have to agree to disagree, sir. I think you COMPLETELY underestimate the fallout from those kinds of moves, regardless of which party executes them, in today’s hyper-partisan, hyper-sensational media and political environments.
“The majority of Americans will not understand ..”
How much more condecending can you get Mr. Diamond?
How much more condescending? I could assert that the majority of Americans wouldn’t understand how to calculate the physics of a moon launch, or would know how to put a G-I tube down a patient’s throat, or fix an anti-lock-brake system malfunction, or compose a passable twelve-tone composition,, or any number of other things that require technical training. That would be really condescending, huh?
Why you think that law is different from engineering, medicine, or auto mechanics in this respect is very odd. You’re a smart guy and you’re showing in every comment that you don’t understand how courts approach this. And I’m pretty sure you’re above average.
gawdddd – Diamond, occasionally courts do exhibit a modicum of common sense – and I am fairly certain that SCOTUS will do so In this case.
Law is different from engineering because law is subjective and actually is political – except that Breyer will save the face of the SCOTUS in this case.
Subjective? We actually have a guideline for how lawyers analyzing a contract — or judges analyzing a statute — are supposed to proceed in the absence of a severability clause. It’s not just “common sense”; you have to know the legal rules. And — you don’t. That sort of thing is not supposed to be political — although in this case, the conservative majority do show signs of ignoring it.
One of the Justices alluded to it. I don’t recall which.
I think that you are way overstating the power of Executive Authority. What you are describing is more like dictatorial authority.
Not enforcing something widely believe to be unconstitutional because they cited the wrong section to justify it, until they cite the right section, is dictatorial?
Absa-fukin-lutely!
Wow. If that’s dictatorial, why was it that you didn’t burn down Washington DC after Bush v. Gore?
SCOTUS – dictatorial? I don’t think so.
There’s a book called “The Least Dangerous Branch” about SCOTUS. The title was intended ironically.
Mark my words about Breyer – he will coming out of the Dark Side.
Use the Force, Stephen!
“Fear is the path to the dark side. Fear leads to anger. Anger leads to hate. Hate leads to suffering.”
Yoda
REALITY!! And A Fix for Unemployment, Homelessness and Hunger
In addition to fixing healthcare the right way we need a NewDeal. We need a permanent and updated FDR WPA (Works Progress Administration). A Full employment act requiring the government to provide a job for everyone able to work that wants to work at a living wage or better. At safe, meaningful work where they live. Guaranteed by the US government. With free or very affordable excellent healthcare and free or very affordable education and training for advancement or just personal enrichment.
( http://my.firedoglake.com/iflizwerequeen/2011/05/16/how-about-a-little-truth-about-what-the-majority-want-for-health-care/ )
( Gov. Peter Shumlin: Real Healthcare reform — http://www.youtube.com/watch?v=8yFUbkVCsZ4 )
( Health Care Budget Deficit Calculator — http://www.cepr.net/calculators/hc/hc-calculator.html )
( Briefing: Dean Baker on Boosting the Economy by Saving Healthcare http://t.co/fmVz8nM )
START NOW!
As you all know. Had congress passed a single-payer or government-run robust Public Option CHOICE! available to everyone on day one, our economy and jobs would have taken off like a rocket. And still will. Single-payer would be best. But a government-run robust Public Option CHOICE! that can lead to a single-payer system is the least you can accept. It’s not about competing with for-profit healthcare and for-profit health insurance. It’s about replacing it with Universal Healthcare Assurance. Everyone knows this now.
The message from the midterm elections was clear. The American people want real healthcare reform. They want that individual mandate requiring them to buy private health insurance abolished. And they want a government-run robust public option CHOICE! available to everyone on day one. And they want it now.
They want Drug re-importation, and abolishment, or strong restrictions on patents for biologic and prescription drugs. And government controlled and negotiated drug and medical cost. They want back control of their healthcare system from the Medical Industrial Complex. And they want it NOW!
THE AMERICAN PEOPLE WILL NOT, AND MUST NOT, ALLOW AN INDIVIDUAL MANDATE TO STAND WITHOUT A STRONG GOVERNMENT-RUN PUBLIC OPTION CHOICE! AVAILABLE TO EVERYONE.
For-profit health insurance is extremely unethical, and morally repugnant. It’s as morally repugnant as slavery was. And few if any decent Americans are going to allow them-self to be compelled to support such an unethical and immoral crime against humanity.
This is a matter of National and Global security. There can be NO MORE EXCUSES.
Further, we want that corrupt, undemocratic filibuster abolished. Whats the point of an election if one corrupt member of congress can block the will of the people, and any legislation the majority wants. And do it in secret. Give me a break people.
Also, unemployment healthcare benefits are critically needed. But they should be provided through the Medicare program at cost, less the 65% government premium subsidy provided now to private for profit health insurance.
Congress should stop wasting hundreds of millions of dollars of taxpayer money on private for profit health insurance subsidies. Subsidies that cost the taxpayer 10x as much or more than Medicare does. Private for profit health insurance plans cost more. But provide dangerous and poorer quality patient care.
Republicans: GET RID OF THE INDIVIDUAL MANDATE.
Democrats: ADD A ROBUST GOVERNMENT-RUN PUBLIC OPTION TO HEALTHCARE REFORM.
This is what the American people are shouting at you. Both parties have just enough power now to do what the American people want. GET! IT! DONE! NOW!
If congress does not abolish the individual mandate. And establish a government-run public option CHOICE! before the end of 2011. EVERY! member of congress up for reelection in 2012 will face strong progressive pro public option, and anti-individual mandate replacement candidates.
Strong progressive pro “PUBLIC OPTION” CHOICE! and anti-individual mandate volunteer candidates should begin now. And start the process of replacing any and all members of congress that obstruct, or fail to add a government-run robust PUBLIC OPTION CHOICE! before the end of 2011.
We need two or three very strong progressive volunteer candidates for every member of congress that will be up for reelection in 2012. You should be fully prepared to politically EVISCERATE EVERY INCUMBENT that fails or obstructs “THE PUBLIC OPTION”. And you should be willing to step aside and support the strongest pro “PUBLIC OPTION” candidate if the need arises.
ASSUME CONGRESS WILL FAIL and SELLOUT again. So start preparing now to CUT THEIR POLITICAL THROATS. You can always step aside if they succeed. But only if they succeed. We didn’t have much time to prepare before these past midterm elections. So the American people had to use a political shotgun approach. But by 2012 you will have a scalpel.
Congress could have passed a robust government-run public option during it’s lame duck session. They knew what the American people wanted. They already had several bills on record. And the house had already passed a public option. Departing members could have left with a truly great accomplishment. And the rest of you could have solidified your job before the 2012 elections.
President Obama, you promised the American people a strong public option available to everyone. And the American people overwhelmingly supported you for it. Maybe it just wasn’t possible before. But it is now.
Knock heads. Threaten people. Or do whatever you have to. We will support you. But get us that robust public option CHOICE! available to everyone on day one before the end of 2011. Or We The People Of The United States will make the past midterm election look like a cake walk in 2012. And it will include you.
We still have a healthcare crisis in America. With hundreds of thousands dieing needlessly every year in America. And a for profit medical industrial complex that threatens the security and health of the entire world. They have already attacked the world with H1N1 killing thousands, and injuring millions. And more attacks are planned for profit, and to feed their greed.
Spread the word people.
Progressives, prepare the American peoples scalpels. It’s time to remove some politically diseased tissues.
God Bless You my fellow human beings. I’m proud to be one of you. You did good.
See you on the battle field.
Sincerely
jacksmith – WorkingClass 🙂
“Knock heads. Threaten people. Or do whatever you have to. We will support you. But get us that robust public option CHOICE! available to everyone on day one before the end of 2011. Or We The People Of The United States will make the past midterm election look like a cake walk in 2012. And it will include you.”
Please tell me this is satire or does this guy needs me to send him some “special” bakery treats.
Hm.. I’m afraid this guy has been posting the same thing, on healthcare-related stories, for a while. I should probably start treating it as spam, even though I agree with much of it.
“President Obama, you promised the American people a strong public option available to everyone. And the American people overwhelmingly supported you for it. Maybe it just wasn’t possible before. But it is now.”
With a Republican controlled House and no super majority in the Senate? Not likely – no effen chance.
I think this guy is already on the ganja.
No, that would be the aftereffects of prescription meds or alcohol. Or maybe he needs some meds. The use of cannabis does not cause outbursts like this. Trust me, I should know.
“.. you have to know the legal rules. And — you don’t.”
The Keepers of Knowledge …….. give me a break!
I have seen enough of the our system of justice to know that it is not perfect – it is malleable. However, I will take the justice we have over so-called “social justice.”
And look at “Mr. Rule of Law” Diamond – hah!
And the Republican war on knowledge continues.
It’s like I’m arguing that if you’re a doctor you have to know physiology and you’re saying “You elitist! Physiology is biased!”
I am saying that an attorney can talk out of several orifices and argue multiple sides of any law. Engineering or physiology have extremely limited subjectivity, whereas there are different ways to look at any law, depending on your point of view or political outlook. Take the death penalty for example …… or the stand your ground law in Florida …..
Besides, nobody tells jokes like this about physicists:
After five years of toil at a Wall Street law firm, an associate was burning the midnight oil at his office. Suddenly, there was a flash of light, and a tower of smoke burst from the floor. Satan stepped out of the smoke, and addressed the lawyer:
“I understand you’d give absolutely anything to make partner,” said the devil, “So I’ve come here to make you an offer. I’ll make you a partner, but in return I will take the souls of your wife, your parents, your children, your grandchildren, and all of your friends.”
The lawyer looked strangely puzzled, and thought hard for several minutes. Finally, he turned to Satan and asked, “What’s the catch?”
If lawyering is so “cut and dry” – with cookie cutter answers – what is there for the SCOTUS to debate and disagree about?
The Supreme Court is getting ready to just ignore its own rules, as Justice Ginsburg pointed out, if it tosses out the whole statute over something that can be readily fixed. That’s what there is to debate and disagree about.
I thought you said that the practice of law was like physics and engineering – all straight forward and all that shit. Nothing to disagree about – right?
No, it’s like them in being a profession where learning certain things that most people don’t know is a requirement for practice.
It’s charming that you think that physicists and engineers don’t disagree with one another, though. The truth is, in all such enterprises there are things about which everyone agrees and things in which they don’t. The notion that you don’t just automatically chuck out a whole huge law due to one flaw just because of the lack of a severability clause is one thing that lawyers and judges are all supposed to know.
“The Keepers of Knowledge …….. give me a break!”
For some reason, when you said “The Keepers of Knowledge,” I recalled that scene from “Planet of the Apes” with Dr. Zaius and the other two orangutans doing the “see no evil, hear no evil, speak no evil” thing while Dr. Zira was trying to convince them that humans could possibly talk. That Dr. Zaius was one sick tyrant.
Diamond – How do you figure that SCOTUS is about to ignore it’s own rules? I thought that it was all “living and breathing” – including the Constitution.
Yeah, the Constitution was not intended to be complete fixed in amber, offering a 1789 perspective for eternity. The Framers understood that (hence the Ninth Amendment.) And yet there are rules to follow. It may shock you that there is a middle ground between ossification and anarchy, but that’s exactly where the legal system (SCOTUS included) is supposed to be.
“And yet there are rules to follow.”
Exactly! The main rules being The Constitution of the United States.
I hate having to go back to basics, but: The Constitution includes a mix of items, everything from firm and clear rules that require no interpretation to more general guidelines, which are often ambiguous (and sometimes intentionally so, as a result of the political processes that generated it.) Saying “the main rules being the Constitution” is almost meaningless, because the rules don’t unpack themselves; they require interpretation.
Like many areas of life, constitutional law is very simple if you oversimplify it.
BHO said: “.. I’d just remind conservative commentators that for years what we’ve heard is the biggest problem on the bench was judicial activism or a lack of judicial restraint,”
The President of the United States is lowering himself to debate with commentators – pretty disgusting.
“.. the rules (Constituion) don’t unpack themselves; they require interpretation.”
Exactly! That is why we have 9 Justices to interpret those rules. It is amazing that we agree on so much Mr.D.
Those Justices should not be insulted and attempt made to intimidate them, as BHO has done. He will pay a price for that.
So you’re saying that nothing the Justices do should invite criticism.
I suspect that we’re of comparable ages, skally — did you LIVE through the Warren Court and the reactions to it?
“So you’re saying that nothing the Justices do should invite criticism.”
No – I am saying that the President of the USA should not insult and attempt to intimidate Supreme Court Justices. It’s bad form and will be counter-productive to Obama’s ends.
Did the President insult and intimidate the SCOTUS during the Warren Court? I don’t think so.
I remember Agnew doing it; I think Nixon probably did too.
By the way: what “intimidation”? Is he threatening to take away their robes? Strip-search them before they enter the chambers?
I got the same impression Mr. Fawkes.
At least you are clear in your beliefs skally, unlike the forked tongue Diamond.
“unlike the forked tongue Diamond”………. Hmmmmm
LOL
I should add, no Antisemitism please!