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Author Topic: WTF I agree with Scalia again!  (Read 4669 times)

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Offline VekseidTopic starter

WTF I agree with Scalia again!
« on: July 02, 2009, 04:13:51 AM »
http://www.mcclatchydc.com/251/story/70985.html

Quote
...

The 5-4 ruling by the high court was unusual. Justice Antonin Scalia, arguably the most conservative jurist, wrote the majority's opinion and was joined by the court's four liberal judges.

The five justices held that contrary to what the Bush administration had argued, states can enforce their own laws on matters such as discrimination and predatory lending, even if that crosses into areas under federal regulation.

Justice Clarence Thomas, writing for the four dissenters, argued that laws dating back to the nation's founding prevent states from meddling in federal bank regulation. He was joined by Chief Justice John G. Roberts and justices Anthony Kennedy and Samuel Alito.

The ruling angered many in the financial sector, who fear it'll lead to a patchwork of state laws that'll make it harder for banks and other financial firms to take a national approach to the marketplace.

"We are worried about the effect that this ruling could have on the markets," said Rich Whiting, general counsel for the Financial Services Roundtable, a trade group representing the nation's 100 largest financial firms, in a statement. The decision "hinders the ability of financial services firms from conducting business in the United States. Even worse, it will cause confusion for consumers, especially those who move from state to state."

Stephen Ryan, a partner at McDermott Will & Emery, said the decision "will have a significant, negative impact on the ability of a national bank to offer a financial product uniformly throughout the country."

In a statement, Ryan, who's brought suits against state enforcement, predicted "a crazy quilt of conflicting legal instructions" and a "confusing situation of shared enforcement responsibilities for financial services."

Consumer advocates were elated.

"This Supreme Court decision is a victory for taxpayers, who have suffered enormously as a result of abusive business practices in all types of lending," said the Center for Responsible Lending, a consumer advocacy organization based in Durham, N.C. "This decision will help to restore confidence in the financial services industry and the national economy."

Congress has already been studying changes to pre-emption rules as part of President Barack Obama's proposed revamp of financial regulation. Obama proposes creation of a Consumer Financial Protection Agency, which would have the power to write and enforce rules on mortgage lending practices. The proposal expressly states that these rules would be a floor nationwide, and that states could write their own tougher rules.

At issue in Cuomo v. Clearing House Association is whether the Office of the Comptroller of the Currency, the chief regulator of national banks, erred in shutting down New York's efforts to question banks about predatory lending practices.

The OCC convinced lower courts that then-New York Attorney General Eliot Spitzer had overstepped into federal territory when he sought non-public information about the lending practices of federally regulated banks. Forty-nine states joined New York in appealing the lower court ruling.

...

To be fair Scalia is a rather intelligent man. I'm not so fond of Thomas, Alito or Roberts, however.

Edit: Also, bolded text because I find it amusing that they would say forty-nine states joined in the fight rather than expressing that every state in the union objected.
« Last Edit: July 02, 2009, 04:15:02 AM by Vekseid »

Offline OldSchoolGamer

Re: WTF I agree with Scalia again!
« Reply #1 on: July 02, 2009, 05:28:34 AM »
Agreed.  Thomas is about as neo-fascist as they come.  I don't think there's a single expansion of government power (unless it would benefit poor people somehow, perhaps) that Thomas hasn't rubber-stamped.  "Quisling" would be an apt descriptor for him...

Offline Jude

Re: WTF I agree with Scalia again!
« Reply #2 on: July 02, 2009, 05:53:13 AM »
I'm not so sure this was a good move.  It may seem like one in the context of the recent financial meltdown, but opening up local governments to passing their own laws regulating financial systems heavily, well... Articles of Confederation anyone?

To be fair I think the state's right argument should be dead, and that only time the states should be given the power to govern is something that requires a different approach in different areas of the country (i.e. if one size simply can't fit all).  So I obviously have a different perspective on things.

It certainly hinders online banking across the country.
« Last Edit: July 02, 2009, 05:55:15 AM by RandomNumber »

Offline Zakharra

Re: WTF I agree with Scalia again!
« Reply #3 on: July 03, 2009, 01:52:31 AM »
I'm not so sure this was a good move.  It may seem like one in the context of the recent financial meltdown, but opening up local governments to passing their own laws regulating financial systems heavily, well... Articles of Confederation anyone?

To be fair I think the state's right argument should be dead, and that only time the states should be given the power to govern is something that requires a different approach in different areas of the country (i.e. if one size simply can't fit all).  So I obviously have a different perspective on things.

It certainly hinders online banking across the country.

  Uumm.. no. States rights are NOT and should never be a dead issue. There is a reason the federal government was controlled in the Constitution (even if it is a tattered binding nowdays with the political idiots in office[ from both main parties]). Everything not explicitly mentioned in the Constitution was strictly handed to the States to run. As it should be. The federal government should never ever run or control everything.

Offline Jude

Re: WTF I agree with Scalia again!
« Reply #4 on: July 03, 2009, 04:30:23 AM »
  Uumm.. no. States rights are NOT and should never be a dead issue. There is a reason the federal government was controlled in the Constitution (even if it is a tattered binding nowdays with the political idiots in office[ from both main parties]). Everything not explicitly mentioned in the Constitution was strictly handed to the States to run. As it should be. The federal government should never ever run or control everything.
I respect your point of view, but the majority of what you said was ideological without justification for your beliefs other than the "there's a reason the founding fathers set things up that way."  One could easily explain that reason in terms of fear of central authority (because of their experiences with England) and a lack of technology facilitating quick communication, thus making a federal government very inefficient.  You could argue both of those problems have been solved today, so a federal government which handles most responsibilities is a lot more viable today than in the past.

There are still good arguments against having a strong federal government, but you have to actually make them instead of just screaming "NO" then stating your views in a very polarized fashion if you want to come off as interested in discussion/debate and not just someone interested in bludgeoning other people over the head with your point of view.
« Last Edit: July 03, 2009, 04:44:09 AM by RandomNumber »

Offline Zakharra

Re: WTF I agree with Scalia again!
« Reply #5 on: July 03, 2009, 12:38:19 PM »
 I believe, I'll look it up later when I have the time, the Constitution says that everything that is not given to the federal government in the Constitution belongs TO the states. I'm not going off of the basis, 'there's a reason the founding fathers set things up that way', but off of an actual written part of the Constitution. A federal government that controls more isnt the best thing. As has been proven by how well it mananges things. Which are pretty abysmal.  Name one federal bureaucracy that is efficient with it's finances and services. Aside from the military which is somewhat seperate and not used in the US, mostly.

Offline Trieste

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Re: WTF I agree with Scalia again!
« Reply #6 on: July 04, 2009, 10:25:36 PM »
The US is a patchwork of people, a patchwork of states that will not learn to agree on much. The founding fathers were counting on this when they set up the system to add amendments to the Constitution - you can see that if you take a look at it. If all of our states were not various different points of view, you would not have hard-left states, and you would not have hard-right states. You would not have red states, blue states and battleground states.

As such, states should have control over their government at home. I would not want California conservatives governing my neighbor's right to marry. I would not want New Hampshire's anti-income-tax rallying around my Massachusetts property tax. And I guarantee you, you do not want Massachusetts insurance regulations botching up your car insurance (because up until recently, everyone in MA paid $2k a year for insurance... some of us still do until they straighten out the deregulation). And you shouldn't have to. This is why we have states, state government, state laws and state's rights.

Just like I have the right to choose what clothes I wear, what food I eat - Alabama has a right to undereducate its children if they really wanna, and California has the right to piss off its gay community. Just, not here.

Offline Jude

Re: WTF I agree with Scalia again!
« Reply #7 on: July 04, 2009, 11:30:15 PM »
That's one of the better arguments for states rights I've heard.  But there are some big problems in application.

For example, the truth isn't democratic.  When it comes to passing law to act on facts, different interpretations in different states means that at least part of the nation is going to be clearly in the wrong even if the majority of the nation recognizes the proper course of action (then again the same argument can be made for when the majority of the nation is wrong).

Also larger states have more "rights" than smaller ones when you really examine the situation.  Take Texas for instance.  Because they're such a large state, what Science textbook they choose to adopt affects what textbooks the entire country ends up with (I'd have to go look up the specifics to explain this particular instance, but I think you get the basics).

Obviously there are things we should leave up to the states and things that the federal government should handle.  I'm not against the states having any say, I just think it's a cop out to boil down controversial issues to "let the states decide."  It's passing the buck along and doesn't really solve anything.  If Missouri outlaws abortion and Illinois legalizes it, then Illinois' actions essentially overwrite Missouri's (since traveling between the two states is so easy).

What I meant by I feel that state's rights are a dead issue is that I'm sick of hearing it brought up like it's something really important we  should be focusing on now.  However, I'm sure if I lived during a different time, with different issues I might feel differently about it.

Offline Trieste

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Re: WTF I agree with Scalia again!
« Reply #8 on: July 05, 2009, 12:39:45 AM »
But at the same time, that's why we have free commerce between the states, and why we don't require a visitor's visa to go from Louisiana to Florida. If Illinois wants to give people the right to choose abortion, they have done that - it's not overwriting Mississippi's laws at all. What the law says is, "We do not want that here, on our soil". And that is what such a law accomplishes.

It used to be illegal to get a tattoo in Massachusetts. The law was only recently removed. What came of it? It meant that Rhode Island tattoo shops got a heck of a lot of MA customers. It didn't mean people didn't get inked, but it meant that MA did not have to deal with the regulation of health laws in tattoo parlors, and that it did not have to hire extra health officers to carry out inspections on them. Nobody in the state legislatures (I hope) is stupid/foolish/naive enough to think that the laws they pass will be effective outside their state borders (even if I sometimes wish I could bring Florida gun control laws up to Massachusetts). State's rights are inalienable.

However, whether they should persist in the current climate of globalization is another argument entirely, and that's what this article is about (do you see what I did there?). The current national banking crisis is truly awesome to behold, and the fact that the global economy is linked by globalization means that most of the world (okay, not most of it but only the parts that count, har har) enjoys REALLY GREAT UPS together - and, as we are now painfully learning, we suffer the lows together. Globalization means a migrating patchwork of locally bereft areas as large companies pull from the cheapest labor pools. It means that for ages, women in India wanted to marry a man who lived in the Western world, and now they are wanting to marry men back home, because the jobs are in India now.

It means great shifts, both good and bad, for all parts of the world that are linked, and one does wonder if tiny little states with tiny little congresses really should matter that much. I can't help but think 'yes', because while globalization has brought a whole lot of good, it also brings a loss of touch with local communities. If the US is represented by a handful of people from each state who get together in Washington, you lose some of the locality. You lose the fact that local politicians have wives, mothers, brothers, sons... and their families are falling on hard times, too. But if you have someone covering the whole state with just one person, how are they ever going to understand that while Springfield has a soaring unemployment rate, Cape Cod is doing a-ok - and adjust for that?

As far as larger states having more pull than smaller ones, well, larger countries have more pull than smaller ones. It's demographics and it's a matter of resources... The larger tribe will always be more powerful than the smaller tribe, if by way of nothing else than the ability to throw more manpower into the mix. Our laws are made in part to look out for the little guy, at least in general. You don't have to tell the 150-pound computer-nerd pipsqueak not to murder people with his bare hands. He's the one who're more likely to be the victim of the brawny guy with the big stick. (So to speak. It's an imperfect analogy, but I hope it gets my point across.)

It's when the laws stop protecting the little guy that we as a general population start to get nervous, I think... And in this particular case, the states are the pipsqueak.

Offline VekseidTopic starter

Re: WTF I agree with Scalia again!
« Reply #9 on: July 05, 2009, 03:07:48 PM »
I'm not so sure this was a good move.  It may seem like one in the context of the recent financial meltdown, but opening up local governments to passing their own laws regulating financial systems heavily, well... Articles of Confederation anyone?

Every single state in the union objected.

Every. Single. One.

It's not like there's any disunity here. This is a case of a federal deregulation being seen as disastrous by every last participant in these United States. You can make arguments for federal power, but when it goes against -everyone's- will, there is a problem.

Offline Jude

Re: WTF I agree with Scalia again!
« Reply #10 on: July 05, 2009, 03:42:02 PM »
Every single state in the union objected.

Every. Single. One.

It's not like there's any disunity here. This is a case of a federal deregulation being seen as disastrous by every last participant in these United States. You can make arguments for federal power, but when it goes against -everyone's- will, there is a problem.
If it goes against everyone's will why not have the federal government do something about it (which they were already planning to) instead of opening it up to the states before congress gets it done, which in the end will result in a big mess?  I don't even see how congress is going to pass its laws if the states pass some in the mean time.  I see some serious conflicts coming.

Offline Zakharra

Re: WTF I agree with Scalia again!
« Reply #11 on: July 06, 2009, 02:10:00 AM »
 Because the states don't trust the Congress to do the right thing. Congress looks out for 2 things and 2 things only. It's members powers/authority, and that of the federal government. Not the states. If the Congress does pass laws that all of the states object to, the Congress members are likely to suffer in the next elections. The House much more than the Senate. They are supposed to be representing their states, not tying their hands with more onerious regulations.

Offline Jude

Re: WTF I agree with Scalia again!
« Reply #12 on: July 06, 2009, 02:51:30 AM »
I think that's a very cynical point of view.  I see the congress doing things for the people all the time.  It takes quite a bit of twisting to take the point of view that they do everything to further their own political ends.  But it's not really a surprising (and is a far held) point of view in a bailout era.

What I don't understand is that if a person falls on hard times, people expect unemployment assistance (which is reasonable) until they can get back on their feet.  But when it happens in a larger scope with a business, they call foul if the business is helped.  Not only does that prevent the government needing to pay out unemployment, but if we're giving individuals safety nets, why don't we treat businesses with similar consideration?

Offline Zakharra

Re: WTF I agree with Scalia again!
« Reply #13 on: July 06, 2009, 11:22:07 AM »
 Actually, it doesn't take much twisting to see it that way, The members of congress have acted for their own interests for a very long time. To ensure that they get reelected again. This is borne out by their approval rating. Such as this;

 http://www.rasmussenreports.com/public_content/politics/mood_of_america/congressional_performance/congressional_performance

 http://www.pollingreport.com/CongJob.htm

 http://www.gallup.com/poll/121208/congress-approval-rating-drops-33.aspx

 http://congressratings.com/

 http://www.americablog.com/2009/03/congress-approval-rating-at-highest.html

 All of these show a consistant negative view of Congress, both the House and Senate. People are skeptical of Congress since the ancient phrase, 'Power corrupts, and absolute power corrupts absolutely' is as true now as it was there. People simply do not trust the Congressmen.

 People cried foul at the big businesses getting a handout because they see small businesses fail all the time. Why should a big business get more support when it was failing? It's seen as a payoff to the big buisinesses who shelled out millions to political campaigns.

Offline HairyHeretic

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Re: WTF I agree with Scalia again!
« Reply #14 on: July 06, 2009, 11:37:26 AM »
If power corrupts then surely those in State authority are equally likely to fall prey to it, if not more so, since their perspective is very much focused closer to home, as it were.

Offline Zakharra

Re: WTF I agree with Scalia again!
« Reply #15 on: July 06, 2009, 11:50:02 AM »
If power corrupts then surely those in State authority are equally likely to fall prey to it, if not more so, since their perspective is very much focused closer to home, as it were.

 *nods* It is, but they are more directly held accountable for their actions since people can see what they do in the state. Congressmen have an advantage that they move out of state to do their work.

Offline Jude

Re: WTF I agree with Scalia again!
« Reply #16 on: July 06, 2009, 11:58:43 AM »
Just because there's a consistent negative view of congress doesn't prove anything related to congressional corruption.  All it shows is that the American people have lost faith in congress' ability to effectively solve their problems.  The reasons for that are as numerous as the stars in the sky.  You don't have to take a cynical view of corruption in order to explain those numbers.

As for "absolute power corrupts absolutely," that doesn't really apply here considering that congress' power isn't absolute.  Even if it was, that statement was never true.  All-truisms rarely are.  How people handle the power they're given to them is a reflection of their character, not how much power they're given.

I'd argue Congress has a low approval rating because it's rare that you actually find a senator or representative with charisma of any sort.  Personal magnetism and force of personality seems to be the only thing that actually endears the American people for any sustained period of time.  The figureheads of the Senate and House are far from charming.  Even if you agree with them, Nancy Polosi, Harry Reid, Jon Boehner, and Mitch McConnell are about as endearing as a bulldog.

That also touches on another point, the divisiveness of the current political climate.  The only people who really seem to rise in the estimation of the American people and stay there are those who attempt to overcome the negativity.  And Congress for the longest time has been the most partisan area of governance.  That's unlikely to change anytime soon because it's the only branch of government where partisanship is both necessary and designed into the system.

Offline Trieste

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Re: WTF I agree with Scalia again!
« Reply #17 on: July 06, 2009, 12:19:19 PM »
If it goes against everyone's will why not have the federal government do something about it (which they were already planning to) instead of opening it up to the states before congress gets it done, which in the end will result in a big mess?  I don't even see how congress is going to pass its laws if the states pass some in the mean time.  I see some serious conflicts coming.

Actually, that's what Congress appears to be planning, from the article. They want to make their own legislation that requires a certain 'floor' of regulation on these companies, then let the states embellish it as they will. They want to make sure the companies can't run around willy-nilly... then the rest is up to the states. It's the sort of idealism-based marriage of fed and state that I'd like to see a lot more often.

What I don't understand is that if a person falls on hard times, people expect unemployment assistance (which is reasonable) until they can get back on their feet.  But when it happens in a larger scope with a business, they call foul if the business is helped.  Not only does that prevent the government needing to pay out unemployment, but if we're giving individuals safety nets, why don't we treat businesses with similar consideration?

I think the idea is multiple bailouts. If a company flubs something once, okay, fine. The problem is that you have multiple bailouts, and when you hear stories of companies being caught giving huge bonuses for top execs, bonuses that are worth more than my next ten years of income, it causes some concern. In short, it's not the use of bailouts, but the rampant abuse of them that we have seen lately. If you'll notice, you'll get the same reaction when you talk about the sandbagging 'welfare queen' stereotype (which is getting proven more and more false as time goes on, note) who gets a manicure every other day, has eight kids and nineteen grandbabies in a family that hasn't had a job in four generations.

Edit: Like four replies have been posted while I was typing this, so it's probably irrelevant by now, but I'm posting it anyway.

Offline Jude

Re: WTF I agree with Scalia again!
« Reply #18 on: July 06, 2009, 12:35:13 PM »
The multiple bailouts thing is a good point.  Sadly it's only a small portion of companies that have actually received multiple.  The majority of organizations have only gotten one, and a minority of those have already turned around their balance sheets and want to repay the money (the terms of which are being decided now).

My main problem is just the incredible polarization against the bailouts which partially results from ignorance.  I've talked to many people about the subject that don't even know that the money isn't just being freely given away, the companies are expected to repay it.  There's just so much misleading talk out there.

Offline RubySlippers

Re: WTF I agree with Scalia again!
« Reply #19 on: July 06, 2009, 01:23:56 PM »
I must point out states USED to under the Constitution appoint the Senators to Congress so they had in theory fair representation to the power of the elected House of Representatives. Then they made them elected as well leaving the states no say in lawmaking at the Federal level. So now they have to do this the government structure gave them no choice.

On this case since states are supposed to share power with the Federal government as I pointed out above they should have the right to make laws as they see fit. As long as they are there for a just purpose and to protect their citizens.

Offline Trieste

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Re: WTF I agree with Scalia again!
« Reply #20 on: July 06, 2009, 01:32:59 PM »
I must point out states USED to under the Constitution appoint the Senators to Congress so they had in theory fair representation to the power of the elected House of Representatives. Then they made them elected as well leaving the states no say in lawmaking at the Federal level. So now they have to do this the government structure gave them no choice.

Erm, who do you think casts the votes for Congressmen, Eddie Izzard? :P

Offline Zakharra

Re: WTF I agree with Scalia again!
« Reply #21 on: July 06, 2009, 01:57:32 PM »
The multiple bailouts thing is a good point.  Sadly it's only a small portion of companies that have actually received multiple.  The majority of organizations have only gotten one, and a minority of those have already turned around their balance sheets and want to repay the money (the terms of which are being decided now).

My main problem is just the incredible polarization against the bailouts which partially results from ignorance.  I've talked to many people about the subject that don't even know that the money isn't just being freely given away, the companies are expected to repay it.  There's just so much misleading talk out there.

 When the bailouts are handed out to entire industries wholesale such as the banking and auto, it has a negative impact on the public when billions of their tax dollars are tossed away like that. A lot of people think those businesses should have been allowed to fail and collapse.

 Also when two of the three automakers file for bankrupcy anyways, with the government holding a majority of the shares, it leaves people asking why? The we hear that there are banks able to make payments back to the givernment, but that they are being not allowed to make those payments. Again it leaves people wondering why? Many people see it as an attempt of the government to take more control over US industries. How many people trust a bureaucracy? Not that many.

Offline RubySlippers

Re: WTF I agree with Scalia again!
« Reply #22 on: July 06, 2009, 02:32:23 PM »
Erm, who do you think casts the votes for Congressmen, Eddie Izzard? :P

They were appointed and a state could remove them from office giving state legislatures and governors a place at the table. Now they don't answer to the states but to the people whoe tend to pick idiots. At least before the voters elected the state government and they could apply common sense to appoint decent people to the Congress for their terms.

And it worked pretty well everyone has a stake in the Federal government and the balance of power was maintained fairly well.

What do the states have left but the Courts to get some measure of respect.
« Last Edit: July 06, 2009, 02:33:38 PM by RubySlippers »

Offline Trieste

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Re: WTF I agree with Scalia again!
« Reply #23 on: July 06, 2009, 03:07:14 PM »
So the people who elect the congressmen are idiots, but the people who elect the governors and whatnot are okay and don't elect idiots.

Okay, got it.

Offline Indigo

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Re: WTF I agree with Scalia again!
« Reply #24 on: July 06, 2009, 04:49:17 PM »
I've always been a big believer in 'state rights'.  (of course, we know that the civil war killed many state rights, or severely restricted.  We know why (slavery) yet the states lost much of their former independance.)  I suppose it comes down to some simple things.

In a country the size of the U.S. , we cannot expect  Federal Government, which is rather huge, to be able and balance out all the issues that come into play.  This is why it is vital states are able to pass their own laws, even if in some cases, it goes against Federal Law.  Federal Law is important, of course, yet so is the ability of each seperate state to voice and fight for or against it, as they see fit.

Example, you take a city.  There is the blanket government, but within that, you have neighborhood watch, homeowners associations, school PTA, unions, etc.  The government would be doing a disservice in making decisions that effected all of the above if it did not appy fairly to them.  Say...the government decides a new factory is approved on government land...good for the union maybe, and small buisness, but bad for the homeowners and schools that use that land as 'public open space' where they can walk their dogs and let their kids play.

SO they compromise...but they all have to come to the table and negotiate it.  Ofcourse, many times people are still angry, or don't get what they believe is 'fair', but at least there is (or should be) the ability to speak out.  That, in a way, is what states do with Federal government.  Federal government can spread blanket laws...but to expect those laws to be able and appease/help/work in every single corner of the country, in every state,  no matter what, is to me, wishful thinking.  The states can then put to vote issues that, while maybe they cannot override the Federal law, they can hell at least try and make their voices heard instead of saying..."Oh well, state rights don't mean anything, so we'll all just shut up and accept it."

How this applies to the original subject...of course it does.  This is a big country, with different regions and ways of thought.  We should never think that state rights is somehow 'fluff' or 'just a dead issue' or 'a waste of time'.  I, for one, am interested in the great dance of thoughts and fights, even if I don't agree, I am glad to be able to join the war of words regarding the republic.


edit: and sorry, didn't mean to hijack beyond the original issue. 
« Last Edit: July 06, 2009, 04:54:46 PM by Indigo »