one of the supreme court's new session is jam packed with over fifty cases one case in particular is getting most of the attention president obama's affordable care act so will our nation's highest court respect precedent or turn to activism. what drives the world the fear mongering used by politicians who makes decisions didn't create through and through to people made who can you trust no one who is you view with the global machinery see where are we heading state controlled capitalism is called sackfuls when nobody dares to ask we do our tea question more.

but i'll go back to the big picture i'm starvin coming up in this half hour the supreme court is back in session with a slew of cases on the agenda clearly one that could set the tone for the two thousand and twelve presidential election what's in store for obama here and once upon a time a right wing think tank supported obamacare and now they don't really take the heritage foundation is indeed a flip flop or it comes to health care in the united states over.

they march to the start of the supreme court's new session and on the docket this year are over fifty cases that could have sweeping effects on life in america from now until june of next year the high court is expected to rule on issues concerning police tracking suspects in vehicles with secret g.p.s. devices permit of action far right immigration laws even new needed to on television person the biggest showdown with some are calling the elephant in the room this session will be a ruling expected next year on the constitutionality of president obama's affordable care act but all this info a backdrop of a twenty twelve election season and this could be one of the most significant supreme court sessions in the history of this nation for a preview of what to expect i'm joined by brian siebel director of justice programs at the alliance for justice brian welcome thank you for having me thanks for

joining us we've got affirmative action immigration health reform all this stuff on the agenda all very contentious left or right political issues do you do you are we going to see a whole bunch of five five four decisions as this always may as some of those cases are not yet officially on the docket i mean the affordable care act has not yet been taken by the court most recently of the obama administration and the state a.g.'s both filed a petition to have the oh the approachable care act heard. so and there is this case from the sixth circuit which actually went support of the law that up held the law. conservative justices there are upheld the law in a two to one decision that cases potentially before the court and this one from the eleventh circuit is florida is it unusual that the department of justice the administration would ask the court to see to hear a case so there was no i know i know that that's not unusual ready to ask but is it unusual that they would ask and the court would. not respond quickly well it's

likely because there is now a split in the circuits that the court is going to take this although there's been some talk that they'll find a way to duck it because of the election law but does it take for that for them to grant well. it depends on when it comes in there for their calendar the six circuit cases ahead of the eleventh circuit case the florida case and it's probably going to be november or december before we know for sure but given the fact that one court upheld the law and one court struck it down it's likely that the court will ultimately decide and it will decide this term can you break down this police tracking g.p.s. case i know there was a huge debate back twenty thirty years ago about whether your car was your private space that had to do with it that came before the court that had to do with police stops for dui tests when there was no presumption of guilt or nope nope no evidence

of you know driving while under the influence is this an extension of well the law you're what this case is what brought about this case is they put the g.p.s. device in the car and then tracked it for several weeks and without a warrant so essentially you know it's much more invasive than previous. government surveillance efforts and that's that's what's really at issue here can may just put a g.p.s. device on anyone's car and track you wherever you go for weeks at a time with the fourth amendment talks about you know in your person's property correct but it also i think it weighs you know the invasiveness of the search as well is the is it issue and this this case it's a much broader search that has been done in the light there be an extension from that case to cookies tracking us across the internet at some point well certainly i imagine there's already. a lot of tracking you know through the internet i don't

know yeah i just want to make its way into you know the courts yeah i think might look like the yeah no i think the stimulated all one yeah well you know a lot of people are thought of calling this the big brother case you know this is this is one thousand nine hundred four finally making its way to the supreme court and will this work is to be you know an unreasonable search and in violation of the fourth amendment right now they have fifty cases on the docket correct typically this point in time there's about seven you thought well that the overall term was going to be about eighty it's been eighty for the year in the roberts over yes so do you think that they're leaving some space for obamacare or is this not just a matter of matter of course you know the cases take time to get there they are being decided now and then you'll file the circuit to show meditates a couple of months to go through the briefing of that they do the arguments through next spring and then they closed by june so it's just a matter of normal you know like the immigration case that you mentioned in the in

the preview that case is also yet to be decided as to where they're going to take it although it's i think almost certain that they will the same thing with the affirmative action case that you mentioned these are all cases that are almost certain to get on the docket but they're not there yet today the case very big case argued today about medicaid the douglas case which we wrote a report on that case that was all about whether medicaid recipients in california could sue the state of california which had said cut the rate of medicaid below what the federal standard allows so the they basically want to sue the state of california to comply with the federal standards and the issue is not really whether the state of california violated the federal standards that's actually given the issue is whether or not the plaintiffs can use the supremacy clause to bring a suit in the first place and if they can't then essentially it would give an incentive for a. lot of states to just suddenly ignore medicaid and start cutting medicaid

benefits promised this this we use supremacy clause saying that war is supreme law of the land yes and so this is been used over and over again as a basis for suits against states that are not following federal standards. on the other hand or on the other side of the argument and the other legal side but the other kind of pop culture side is the tempers who you know kind of a lot of ignore the supremacy clause that's the problem is that frankly if you if this case were if california it were to win this case. it would allow you know this kind of know if occasion wave that's been going on in the country they would just say well we don't have to follow that our civil rights laws no more voting rights and who's going to enforce it if it's only the federal government the federal government is you know basically understaffed and you know wasn't able to at least for years and frankly the only thing that health and human services could do would

be to would drop medicaid money from california which would hurt the very people who are bringing this to the people who are essentially not going to get the same level of care the same opportunities for care if medicaid is paying out much less than private insurance would or medicare would or other service very very quick question for as were. the next my sense is that the next president is probably going to replace several justices your sense of the age and health and probability of retirement of justice as well i mean the you know justice ginsburg you have talked about because she's had health issues and conservatives on the court have been there for a very long time and it's going to swing well it's hard to know when the next justice is going to come out but certainly it's critical the presidency is critical given given that they dominated in five years of the one time for people who are in their seventy's yes brian thanks for the thank you appreciate your. you know it was

the essential question during this supreme court session will be just what kind of court does justice john roberts preside over is it to be a court that respects the legal precedent or a court that engages in judicial activism or in his confirmation hearing roberts talked about the importance of precedents. why do you think that it is a jolt to the legal system when you overrule a precedent. price that it plays an important role in promoting stability and even handedness it is not enough and the court has emphasized this on several occasions it is not enough that you may think the prior decision was wrongly decided that really doesn't yet in the citizens united decision last year the roberts court overturned a century of election law in america to affirm that money is a form of free speech and declare the corporations both domestic and foreign and spend on limited amounts of their corporate treasure chests to influence american elections so with a slew of politically charged cases on the agenda this year just how dangerous

could the roberts courts judicial activism be and so this nation and is it about time to reform how the high court does business nearly as a senior attorney with the institute for justice he joins me now to talk more about this issue of additional activism. thank you. the first well you wrote a piece for the wall street journal saying that judicial activism where you've got no judicial activism summarize that yeah if you do activism is a meaningless buzzword in terms of substance but it's a very powerful powerful we coracle device that in my opinion it's designed generally to undermine the ability of the court in the willingness of the court to say no to government we have a constitution that provides important limits on government power and it turns out actually the pick courts very rarely enforce those limits and almost never say no to government in comparison to the total amount of laws and regulations that government passes so here's the constitution can you point out to me in here where it says that the supreme court has the right to strike down a. it's unconstitutional it's not it's just

a part of our tradition that's been part of american history for almost two hundred years ok that case then can you name for me one case where the marshal core of them are marbury case you know three during the first twenty years of the existence of this country one case where the supreme court struck down laws going on there's no but i don't think that's any press that there weren't any can you name a second case in the entire thirty five years of john marshall sitting on the supreme court i mean this is a high federalist well let me ask you to the only case was margaret do you think of the supreme court saying you shouldn't be able to put a gay person in jail just for being gay in north texas they think that was an illegitimate act of judicial review i think that was a great decision i personally believe that the supreme court does not have the authority to strike down laws made by congress and passed and signed by the president and i agree with thomas jefferson on this in fact he said it first full article three section through the of the supreme court or of the constitution the supreme court shall have apologists jurisdiction both as the law in fact the subject was subject such exceptions and under such regulations as the congress

shall make. it's not time for congress to start saying to the supreme court things like you know no more political decisions or clarence thomas your wife can't be lobbying and you'd be citing cases i don't think so i think would be very dangerous because if you think about it every time a different political party got the upper hand in congress they would simply remove the court's jurisdiction from some issue they cared about that's exactly what's happened in a court. in time the court swings one way or the other you know whether it's in seventy three phyllis schlafly and i agree on that it's clear there is and there's actually a fair body of folks out there who are saying marbury was wrongly decided judicial review is wrong this is the constitution i mean if you go back to the federalist papers federalist seventy eight alexander hamilton the judiciary from the nature of its functions will always be the least dangerous of the political rights of the constitution they can make no active resolution whatsoever the simple view of the matter so. several important consequences it provides incontestably that the

judiciary is beyond comparison the weakest of the three departments of power now right now with the power to strike down laws passed by congress and the president you've got nine guys in robes who are not elected who are acting like they're the kings of america tell me what's right about that well that's your premise and i reject that premise i think that the supreme court of the finest hours of the supreme court and then when they said no to government they said no for example like in dred scott well that's not a perfect is not a civil war to reverse the result of that case but if you want i mean i saw an example of the supreme court promise a civil war well you know what brought us to civil war was the belief on the part of some people in this country that you could hold another person we then passed an amendment in thirty eight a member to say no to that do you think the supreme court civil war the right i said we then pass what you think the supreme court should not be able to force the thirteenth amendment prohibiting slavery that is beyond the state of the congress the court has no enforcement mechanism i mean this is what hamilton was talking has the force of moral seventy eight or you had a number a moral authority is not enforcement of the force of mechanism is in the executive

branch did you know that the supreme court is the most highly regarded branch of government a recent survey because the average american has no idea what do i disagree about in august the there was a poll by rasmussen that said only seventeen percent of the people in this country think that the federal government has the consent of the governed need all the supreme court polling sixty percent or better approval ratings wise and we should continue to allow the supreme court to strike down laws passed by elected representatives who are doing what we want signed by our president who we elected when they're not elected because the polling because we have a constitution that provides important limits on government of the hour and the constitution to say the supreme court in strict gun laws you're not asking the question i just read the proposition i just said it's not in you get it are you seriously saying you don't think it should be drudgery do you seriously saying i should not be judicial you think the state should be able to put a person in jail for having gay sex i think your state of play if the state of texas does that the people will rise up eventually and say no but they didn't. back

in the well but they did the they would have and the case the fact of the matter is that they did in the case of the civil war and this only rose up against the supreme court i think that's a pipe dream to be honest with you we are segregated first as it is country where all my pine tree before there wasn't there was a time in america when when the idea of not having segregated schools was a pipe dream there was a time in america when the idea of women voting was a pipe dream there was a time in america when not owning slaves was a pipe dream i think marbury was wrongly decided i think judicial review of judicial supremacy are wrong and that and that the and the supreme court should be has as hamilton wrote in seventy eight and eighty federal seventy eighty and as the constitution says subordinate to congress well listen we're just going to have to agree to disagree on that i think that one of the most important parts of our policy no serious person that i know thinks we should get rid of judicial review because of what would come with it and what we see in the past because supreme court i think they completely got it wrong when they said for example we can put japanese citizens in prison during world war two on a hunch that they might be enemy agents my wife's grandparents were in those camps

and i think it was a dark day for this country when the supreme court allowed that to happen what you're saying is that you don't trust the people in mass to court jefferson that you would rather trust nine guys who are the wiser holders because that's the law you're saying well that was the debate during the constitutional convention about judicial review which was debated at the constitutional convention i'm saying we have a constitution and it's a wonderfully listen not put into the constitution i'm saying we have a constitution that is essentially a rulebook for government in this country and just as we are not allow a constitution just as what we would not allow a pitcher to call his own balls or strikes we would never allow congress to decide the constitutionality of its own laws it would be crazy you let your next congress do that it's called elections it's the will of the people that's not the way it works ok or clerk rather we're going to leave it there thanks for dropping always a. very interesting conversation seven years after he left the presidency thomas jefferson lamented about the state of the supreme court and eight hundred sixteen letter to his. friend samuel courage of what he wrote the judiciary the judges of

the highest court started pena none but themselves and a government funded founded on the public will this principle operates in an opposite direction and against that will we have made them independent of the nation itself their irremovable but by their own body for any depravities of conduct and even by their own body for the imbecility imbecilities daughter it's time to take our supreme court judges and in fact all judges in america and make them accountable to the people just as jefferson the man who wrote the declaration of independence desire let's end the judicial monarchy in america and bring back our democracy. coming up in the high court rules on obamacare and next year the heritage foundation will likely ask the court to strike down the health care law ideally take failure by the supreme court shouldn't even bother listening to these flip flopping right wingers.

what drives the world the fear mongering used by politicians who makes decisions to break through get through if you have made who can you trust no one who is you know what you do with the global machinery to see where are we heading state controlled capitalism is called satchels when nobody dares to ask we do our tea question more.

crazy alert who put that there are scientists in yorkshire a puzzle that you're coming across a thirty foot beached whale sure beached whales are a common occurrence of nature but this one is truly bizarre considering the whale was found in the middle of a grassy field more than eight hundred yards from the shoreline even stranger this particular species of whale a sea whale is rarely ever seen as on one sea where as i see we'll say you know the last twenty years let alone seen a sea well in the middle of a grassy field eight football fields in the water some side as support for their own theories free case of high tide to a water spout that lifted the whale out of the sea and earle that out of the land didn't explain the unusual phenomenon but i subscribe to the theory that wheels are officially flying which means that herman cain might actually win the republican nomination.

during this new session the supreme court is slated to hear a number of very important cases but one in particular outweighs all the others and that's the constitutionality of president obama's affordable care act as republicans and derian lee refer to it obamacare the issue at hand is whether or not the individual mandate a provision that requires most everybody to purchase health insurance is or is not constitutional as in can the government force someone to buy health insurance or the center for american progress if all nine justices remain consistent in how

they've ruled on similar cases and there are at least seven votes in the high court in favor of president obama then again this is one of the most highly politicized supreme courts in the history of this nation and they will rule right smack dab in the middle of an election season and justice clarence thomas' wife has made over one hundred fifty thousand bucks lobbying to repeal health care reform and school it goes duck hunting with cheney who hates obama and alito has essentially call obama a liar in front of the world during the state of the union address so anything can happen but before the supreme court showdown kicks off there's already another showdown underway this one between the white house and the right wing think tank. the heritage foundation earlier this year the heritage foundation a think tank that will likely file a friend of the court brief calling for obamacare to be repealed eavis a glimpse of their position in a scathing write up on their website saying the laws individual mandate was

intended to compel all americans to enroll in a health plan to lower the nation's uninsured rate but the law not only fails to accomplish its main goal it infringes upon americans basic constitutional rights its mandate is unprecedented it is considered to be the law's most controversial provision. strong words what's curious is that the heritage foundation says that the individual mandate is unprecedented and what's curious about that is that mitt romney the republican who put in place his own individual mandate as governor of massachusetts said it was originally a heritage foundation idea but the idea for a health care plan was not applied alone the heritage foundation a great conservative think tank helped out that i'm told that newt gingrich was one of the very first people who came up with the idea of the mandate that years and years ago it was could see it was feed if they took curative idea to say you know what people have responsibility for caring for the growth that they can or you know

will jump in on this discrepancy last week white house press secretary jay carney said this about the heritage foundation's connection with the individual mandate. a former governor of massachusetts just the other day the idea for a health care plan in massachusetts was not mine alone the heritage foundation is great conservative think tank helped on that i'm told that newt gingrich one of the very first people who came up with the idea of the individual mandate did that years and years ago that's when the governor of massachusetts describing the individual mandate and it's not a policy. and that's when the heritage foundation when knotts tweeting and carney carding stop misrepresenting heritage's position on obamacare and they wrote another editorial on their website saying for our occurred and hopefully for the last time we wanted to make it crystal clear to the white house that we think obamacare is unconstitutional and very very why it's so someone

isn't telling the truth and it's a huge mitt romney in the white house or it's the heritage foundation luckily for everyone here tonight i'm going to set the record straight i'd like to submit for the record this piece of evidence of nine hundred eighty nine report written by the heritage foundation in titled assuring affordable health care for all americans and she goes on to say many states now require passengers in automobiles to wear seatbelts for their own protection but either the federal government or any state requires all households to protect themselves from the potentially catastrophic costs of a serious accident or illness under their heritage plan there would be such a requirement. it seems pretty cut and dry carriage plan but in case the jury needs a little more convincing i'd also like to submit this piece of evidence for the record from one thousand nine hundred two another report written by the heritage foundation entitled the heritage consumer choice. in it heritage wrote their

plan would require all households to purchase at least a basic package of insurance unless they're covered by medicaid medicare or other government health. report then goes on to say the heritage plan would institute reforms to smooth the transition to the consumer based national system again that's a national system not state or local but a national system heritage foundation's words not mine not only that republicans co-sponsored two pieces of legislation in a member of one nine hundred ninety three it pushed an individual mandate just as heritage laid out and when bill president bill clinton produced his own health clever care plan in one thousand nine hundred four republicans led by newt gingrich offered their counter proposal that included you guessed it the heritage foundation type of individual mandate so why is it that the heritage foundation is suddenly

declaring that an idea that they came up with is unconstitutional it's unlikely the constitution suddenly changed since one thousand nine hundred two could it be just because president obama proposed it. i don't want to put words in their mouths so all our heritage is own spokesperson set the record straight maybe has a great this is a state issue here confusing state police powers space powers with national federal powers and the question is not i've got the heritage lectures i actually have the documents that you guys put together a heritage talking points in even eighty nine they called for a national a national. mandate and so ninety two they called for a national mandate and when romney do they applauded the state. again then the heritage foundation a very clear that the individual mandate federal it was unconstitutional they followed to make is pretty if you are about that since one. it's

a great question i'm not sure of their position he is not sure unfortunately that's not going to be good enough for a jury i mean you know they were for it before they were against it. well and now there's a law for it so you can't do that anyway so so it seems to be the only reason why the heritage foundation switched from creating the individual mandate to now claiming that it's unconstitutional just because barack obama decided to take their policy. looks like the jury has finally reached a verdict the heritage foundation is a flip flopper. and that's the big picture for tonight for more information on the stories we covered visit our website to tom hartman dot com free speech dot org dot com also check out our two you tube channels the ones that are been dot com this entire show is also available as a free video podcast on i tunes and we have a free to our but i phone and i pad app in the app store and since feedback and twitter of tom underscore our friends on facebook of tom underscore our blogs message boards telephone comments on tom harkin dot com and don't forget to mark

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