Justice Kagan Wants A Dictatorship


Kagan wants a dictator – an all-powerful executive –

“As a matter of policy, moreover, Kagan writes that she sees presidential supervision of federal agencies ‘as a mechanism to achieve progressive goals’ in areas such as environmental protection. She believes that presidential supervision can ‘jolt into action bureaucrats suffering from bureaucratic inertia in the face of unmet needs and challenges.’ She believes that it is important to render the bureaucratic sphere ‘more transparent and responsive to the public, while also better promoting important kinds of regulatory competence and dynamism.’ This is a view of presidential power that traces its lineage to Theodore Roosevelt and FDR. [NOT WHAT EITHER OF THESE PRESIDENTS SAID].” (Walter Dellinger, “Executive Power,” Slate.com, 4/16/10)

Kagan also wants a Supreme Court that legislates as long as it agrees with her progressive views. She was brought onto the court to influence Justice Kennedy and bring him to the progressive thinking.

Her comments are interesting despite the foregone conclusion that she will rule in favor of Obamacare. Hopefully, Justice Kennedy will not be swayed by her irrational arguments which have little basis in logic or the rule of law. Justice Kennedy will decide our fate.


The following is from the transcript –

The constitutionality of the Act’s massive expansion of Medicaid depends on the answer to two related questions: First is the expansion coercive and second does that coercion matter.

JUSTICE KAGAN: Mr. Clement, can I ask you just a matter of clarification? Would you be making the same argument if instead of the Federal government picked up 90 percent of the cost the Federal government picked up 100 percent of the cost.

MR. CLEMENT: Justice Kagan, if everything else in the statute remained the same, I would be making the exact same argument.

JUSTICE KAGAN: The exact same argument. So that really reduces to the question of why is a big gift from the Federal government a matter of coercion? In other words, the Federal government is here saying, we are giving you a boatload of money. There are no -­there’s no matching funds requirement, there are no extraneous conditions attached to it, it’s just a boatload of Federal money for you to take and spend on poor people’s healthcare. It doesn’t sound coercive to me, I have to tell you.

Justice Kagan, who helped write the bill and is now also judging it in a bizarre and irrational twist of fate, thinks the feds are not being coercive with regard to the expansion of Medicaid, but merely generous with their boatload of money.

The government cannot bestow gifts. The boatload of money is OUR money. The government takes money from taxpayers and decides who and how to dole it out, no matter what you think about their views, and even though it is your money. To some degree that is appropriate but there must be limits.

Kagan arguing for the government’s right to coerce an expansion to Medicaid, comparing it to controlling waste and fraud –

JUSTICE KAGAN: So on the third — on the third, suppose you had the current program and Congress wakes up tomorrow and says “we think that there’s too much fraud and abuse in the program, and we’re going to put some new conditions on how the States use this money so we can prevent fraud and abuse, and we’re going to tie it to everything that’s been there initially.”


MR. CLEMENT: No, I think that is constitutional because I think that’s something that Congress could do directly. It wouldn’t have to limit that to the spending program. And I think 18 U.S.C. 666 is — is a statute — it’s in the criminal code, it may be tied to spending, but I think that’s — that’s a provision that I don’t think it’s constitutional; I think it’s called into question.

JUSTICE KAGAN: I guess I don’t get the idea. I mean, Congress can legislate fraud and abuse restrictions in Medicaid, and Congress can legislate coverage expansions in Medicaid.

MR. CLEMENT: Well, Justice Kagan, I think there’s a difference, but if I’m wrong about that and the consequence is that Congress has to break Medicaid down into remotely manageable pieces as opposed to $3.3 trillion over 10 years before the expansion, I don’t think that would be the end of the world. But I really would ask you to focus on specifically what’s going on here, which is they take these newly eligible people — and that’s a massive change in the way the program works.

These are people who are healthy, childless adults who are not covered in many States. They say okay, we’re going to make you cover those. We’re going to have a separate program for how you get reimbursed for that. You get reimbursed differently from all the previously eligible individuals. But if you don’t take our money, we’re going to take away your participation in the program for the visually impaired and disabled.

Clement takes Kagan back to the point, which is that we are making a massive change in the way the program (Medicaid) works by adding a massive amount of healthy people not currently covered in many states.

These include many people who can work and pay for their own insurance and the fact is it will be unaffordable for many states.

In the following transcript, Kagan again tries to twist the facts about coercion.  If the Obamacare law fails, it will hopefully bring this down as well for the same reasons – coercion.

JUSTICE KAGAN: Mr. Clement, that is very confusing because the idea behind cooperative Federal/State programs was exactly a federalism idea. It was to give the States the ability to administer those programs. It was to give the States a great deal of flexibility in running those programs. And that’s exactly what Medicaid is.

MR. CLEMENT: Well, that’s exactly what Medicaid was. The question is: What will it be going forward? And I absolutely take your point, Justice Kagan. Cooperative federalism is a beautiful thing. Mandatory federalism has very little to recommend it because it poses exactly the kind of accountability –

JUSTICE KAGAN: Cooperative federalism does not mean that there are no Federal mandates and no Federal restrictions involved in a program that uses 90 percent here, 100 percent Federal money. It means there is flexibility built into the program subject to certain rules that the Federal government has about how it wishes its money to be used. It’s like giving a gift certificate. If I give you a gift certificate for one store, you can’t use it for other stores. But still you can use it for all kinds of different things.

MR. CLEMENT: I absolutely agree that if it’s cooperative federalism and the States have choices, then that is perfectly okay. But when — that’s why voluntariness and coercion is so important. Because if you force a State to participate in a Federal program, then — I mean, as long as it’s voluntary then a State official shouldn’t complain if a citizen complains to the State about the way the State’s administering a Federal program that it volunteered to participate in. But at the point it becomes coercive, then it’s not fair to tell the citizen to complain to the State official.

They had no choice.

But who do they complain at the Federal level? There’s nobody there, which would be — I’m not saying it’s the best solution to have Federal instrumentalities in every State, but it actually is better than what you get when you have mandatory federalism and you lose the accountability that is central to the federalism provisions in the Constitution.

In the aforementioned, Kagan tries to make the argument that this is federalism and it’s like giving a gift certificate (again, our money, not hers). She is not only advocating a fundamental change in the way the government interacts with the individual, but also with the states. This is an enormous intrusion on state’ rights.