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Looks like we're going to get a ruling this year.

Audio files after the link
http://nbcpolitics.msnbc.msn.com/_news/2012/03/26/10866512-court-signals-it-will-decide-constitutionality-of-health-care-mandate

QuoteBy Tom Curry, msnbc.com National Affairs Writer

Updated at 3:10 pm ET:  After the first day of oral arguments in challenges to the landmark 2010 health care law, it seems clear that Supreme Court will not let a procedural tax issue stand in the way of deciding the constitutionality of the law.

"If there were any members of the court who were looking for an off ramp – who did not want to decide this case now during an election year, this would have been the way to go," said NBC's Pete Williams after hearing the first day's arguments. But "none of them seem to want to take that," he said.

At issue Monday was a law called the Anti-Injunction Act. Does that law require that those who challenge the penalty for failing to buy insurance actually pay the penalty first? That won't occur until 2015, after the insurance purchase requirement takes effect.

The question hinged on the justices accepting the contention that the penalty is effectively a tax.


After hearing Monday's argument, Williams reported that "there didn't seem to be a single member of the Supreme Court that bought that argument."

"I don't believe there's a single justice on the court who believes that it's a tax. End of that question. So we're obviously going to go on to the main event which is the individual mandate which will be argued tomorrow," Williams said.

Monday's argument was the prelude for the main event: Tuesday's two hours of argument over whether Congress has the power to require that almost every American purchase health insurance.

Solicitor General Donald Verrilli told the justices, "This case presents issues of great moment, and the Anti-Injunction Act does not bar the Court's consideration of those issues."

Read the transcript of Monday's oral argument

One justice, Samuel Alito, focused on the apparent inconsistency in the government's argument that the penalty is not a tax, under the terms of the Anti-Injunction Act -- and yet the government also will claim in Tuesday's oral argument that when Congress created the individual mandate and the penalty for failing to buy insurance, it was acting under its constitutional power to tax.

Verrilli said, "Congress has authority under the taxing power to enact a measure not labeled as a tax ... ."

In a question to Verrilli, Alito said, "Today you are arguing that the penalty is not a tax. Tomorrow you are going to be back and you will be arguing that the penalty is a tax. Has the Court ever held that something that is a tax for purposes of the taxing power under the Constitution is not a tax under the Anti-Injunction Act?"

Verrilli replied, "No, Justice Alito, but the Court has held... that something can be a constitutional exercise of the taxing power whether or not it is called a tax."

Click here to listen to that exchange between Verrilli and Justice Alito

He said, "the nature of the inquiry that we will conduct tomorrow is different from the nature of the inquiry that we will conduct today. Tomorrow the question is whether Congress has the authority under the taxing power to enact it" and the precise words used in the law don't have a crucial effect on that question.

At least two justices, Stephen Breyer and Ruth Bader Ginsburg, seemed to accept the government's contention that the penalty was not a tax, with Ginsburg saying "this is not a revenue-raising measure, because, if it's successful, they won't -- nobody will pay the penalty and there will be no revenue to raise"

Since the plaintiffs challenging the ACA had not made the Anti-Injunction Act argument, the justices appointed lawyer Robert Long to argue for the position that no one can file suit against the ACA's individual insurance mandate until after the penalty on those who fail to buy insurance has been assessed.

As soon as President Barack Obama signed the ACA into law, several states and private organization filed suits to overturn it, arguing that the Constitution gave Congress no power to force people to buy insurance.

Long pointed out in his brief that the text of the ACA says the penalty imposed on people who don't purchase health insurance shall be "assessed and collected in the same manner as taxes" -- so it is effectively a tax.

Long also said if Congress had wanted to create an exception to the Anti-Injunction Act in this case it would have done so when it passed the ACA in 2010.

Related: Individual mandate will be in Supreme Court spotlight

He argued that for the Supreme Court to decide now on the constitutionality of the ACA "would be contrary to the policy that courts avoid deciding constitutional issues unless it is necessary to so do."

nd it would premature, he said, for the court to act since it's possible that Congress "could amend or repeal the Affordable Care Act at some point before penalties are assessed and collected, beginning in 2015. An amendment (to the law) could avoid the need for this Court to decide the constitutional issue presented in this case."

But despite those arguments there's tremendous pressure on the high court to resolve the uncertainty over the health care overhaul now -- since many of the provisions of the law are interrelated and the court itself has created the expectation that it will finally settle the constitutional issue.

Recommended: Health care ruling could send fight back to Congress

Arguing the case on Monday for 90 minutes were Long, Verrilli, and former Assistant Attorney General Gregory Katsas, now in private practice, representing the state of Florida and other states and the National Federation of Independent Business.

NBC's Pete Williams contributed to this report.

Two-thirds (67%) of Americans want the Supreme Court to overturn some or all of the health care law, according to a poll released today by The New York Times and CBS News.

http://www.nytimes.com/2012/03/27/us/most-americans-want-health-care-law-overturned-or-changed-poll-finds.html (http://www.nytimes.com/2012/03/27/us/most-americans-want-health-care-law-overturned-or-changed-poll-finds.html)

QuoteAt the heart of the opposition is the individual mandate requiring Americans to obtain health insurance, the least popular part of the bill and a crucial piece at the center of the court arguments, which began Monday and will turn to the mandate on Tuesday.
...
Keeping the law intact is preferred by a mere quarter of those surveyed, largely Democrats, reflecting the deep partisan divide within the overall findings that has persisted since President Obama signed the Affordable Care Act just two years ago.

(https://languish.org/forums/proxy.php?request=http%3A%2F%2Fgraphics8.nytimes.com%2Fimages%2F2012%2F03%2F27%2Fus%2FPOLL%2FPOLL-popup.jpg&hash=b726d12542b4ee398860fbfc912d142c86661058)

"Nice smile, teeth of iron??"  WTF?

Yeah, the individual mandate is horseshit.  Single-payer is the only way to do health care.

Concur with Neil.  Individual mandate is stupid.  Why is it so hard?  It wasn't in Canada, the UK, Australia, France, Germany, Austria, probably Poland (FFS).

Quote from: Admiral Yi on March 26, 2012, 08:22:45 PM
"Nice smile, teeth of iron??"  WTF?

FORCED to Buy (https://languish.org/forums/proxy.php?request=http%3A%2F%2Fforum.backupot.com%2FSmileys%2Fclassic%2Ffd59oj.gif&hash=a146ebdf981ebc55d06d736f20a958f18f9f9cff)

Quote from: Phillip V on March 26, 2012, 08:19:46 PM
Two-thirds (67%) of Americans want the Supreme Court to overturn some or all of the health care law, according to a poll released today by The New York Times and CBS News.

The Supremes had better watch themselves, or they'll get voted out of office.

Quote from: Phillip V on March 26, 2012, 08:19:46 PM
Two-thirds (67%) of Americans want the Supreme Court to overturn some or all of the health care law, according to a poll released today by The New York Times and CBS News.

http://www.nytimes.com/2012/03/27/us/most-americans-want-health-care-law-overturned-or-changed-poll-finds.html (http://www.nytimes.com/2012/03/27/us/most-americans-want-health-care-law-overturned-or-changed-poll-finds.html)

QuoteAt the heart of the opposition is the individual mandate requiring Americans to obtain health insurance, the least popular part of the bill and a crucial piece at the center of the court arguments, which began Monday and will turn to the mandate on Tuesday.
...
Keeping the law intact is preferred by a mere quarter of those surveyed, largely Democrats, reflecting the deep partisan divide within the overall findings that has persisted since President Obama signed the Affordable Care Act just two years ago.

(https://languish.org/forums/proxy.php?request=http%3A%2F%2Fgraphics8.nytimes.com%2Fimages%2F2012%2F03%2F27%2Fus%2FPOLL%2FPOLL-popup.jpg&hash=b726d12542b4ee398860fbfc912d142c86661058)

:frusty:  Wanting to repeal the mandate while keeping the rest of the law is like wanting to defund NASA and have it launch missions to the Moon.

Or cutting taxes and expecting tax revenues to increase dramatically.

Quote from: Razgovory on March 26, 2012, 09:03:25 PM
Or cutting taxes and expecting tax revenues to increase dramatically.

They do.

I like how there's no punishment for not paying the penalty.  Who's the legislative genius that came up with this shit?

I didn't think there were free rider activists, but I guess they're out there.

I keep seeing Pat Boone on TV telling me to harass my senator over this because of the death panels.  I thought Pat Boone was dead.  Damn Hollywood media elites, telling me what to do.

Quote from: Ideologue on March 26, 2012, 08:24:57 PM
Why is it so hard?  It wasn't in Canada, the UK, Australia, France, Germany, Austria, probably Poland (FFS).

Two party system would be my guess.  When the first 49.5% are fighting the other 49.5% to the death in culture wars, the 1%ers can be the kingmakers, even if their economic policies only benefit themselves, and actively hurt the other 99%.

Quote from: Ideologue on March 26, 2012, 08:24:57 PM
Concur with Neil.  Individual mandate is stupid.  Why is it so hard?  It wasn't in Canada, the UK, Australia, France, Germany, Austria, probably Poland (FFS).

At this late a date, politically impossible short of catastrophe.  FDR might have been able to do it, had he survived.

Quote from: Razgovory on March 26, 2012, 09:19:08 PM
I keep seeing Pat Boone on TV telling me to harass my senator over this because of the death panels.  I thought Pat Boone was dead.  Damn Hollywood media elites, telling me what to do.

Pat Boone.   :glare:

Quote from: Ideologue on March 26, 2012, 08:24:57 PM
Concur with Neil.  Individual mandate is stupid.  Why is it so hard?  It wasn't in Canada, the UK, Australia, France, Germany, Austria, probably Poland (FFS).

Australia's got an element of individual mandate in their system.  I think the Dutch and Swiss do too.  The Swiss have the highest healthcare costs in Europe (though still lower than the US for most things), the Dutch system's newly private so it's too soon to tell.  The government's quite an active regulator, but there's some suggestions that competition has reduced costs.

Wait, there's somebody out there who still buys the death panels claptrap?

Quote from: DontSayBanana on March 26, 2012, 10:02:12 PM
Wait, there's somebody out there who still buys the death panels claptrap?

I like how pulling somebody off government entitlements is a death sentence.  Who knew?

Quote from: Tonitrus on March 26, 2012, 09:58:37 PM

Quote from: Ideologue on March 26, 2012, 08:24:57 PM
Concur with Neil.  Individual mandate is stupid.  Why is it so hard?  It wasn't in Canada, the UK, Australia, France, Germany, Austria, probably Poland (FFS).

At this late a date, politically impossible short of catastrophe.  FDR might have been able to do it, had he survived.

It could have been done under LBJ or Nixon.

Quote from: jimmy olsen on March 26, 2012, 10:50:21 PM

Quote from: Tonitrus on March 26, 2012, 09:58:37 PM

Quote from: Ideologue on March 26, 2012, 08:24:57 PM
Concur with Neil.  Individual mandate is stupid.  Why is it so hard?  It wasn't in Canada, the UK, Australia, France, Germany, Austria, probably Poland (FFS).

At this late a date, politically impossible short of catastrophe.  FDR might have been able to do it, had he survived.

It could have been done under LBJ or Nixon.

Nixon was in favor?

Quote from: Tonitrus on March 26, 2012, 10:54:19 PM

Quote from: jimmy olsen on March 26, 2012, 10:50:21 PM

Quote from: Tonitrus on March 26, 2012, 09:58:37 PM

Quote from: Ideologue on March 26, 2012, 08:24:57 PM
Concur with Neil.  Individual mandate is stupid.  Why is it so hard?  It wasn't in Canada, the UK, Australia, France, Germany, Austria, probably Poland (FFS).

At this late a date, politically impossible short of catastrophe.  FDR might have been able to do it, had he survived.

It could have been done under LBJ or Nixon.

Nixon was in favor?

Wasn't his plan substantially more socialist than the current system? Teddy really regretted letting that opportunity go.

The resentment of the Democrats against their better meant that they would stop at nothing to destroy Nixon.

While nowadays, I tend to favor a system more like Canada's, I know that once our public-employee unions get their foot in the door, it will become a monster.

Not to mention the bureaucracy, that is one more thing that America does second to none.

Quote from: jimmy olsen on March 26, 2012, 10:56:16 PMWasn't his plan substantially more socialist than the current system? Teddy really regretted letting that opportunity go.

I think Nixon's proposal was basically Hillarycare.  The Republican Senate proposal in the 90s is, largely, Obamacare.

Quote from: Tonitrus on March 26, 2012, 11:00:58 PM
Not to mention the bureaucracy, that is one more thing that America does second to none.

I'm still convinced Americans are suspicious of government because they're really, really bad at it :lol:

Quote from: Sheilbh on March 26, 2012, 11:07:57 PM

Quote from: Tonitrus on March 26, 2012, 11:00:58 PM
Not to mention the bureaucracy, that is one more thing that America does second to none.

I'm still convinced Americans are suspicious of government because they're really, really bad at it :lol:

"Yes Minister" has taught me that the British are no better.  :blurgh: :P

But seriously, we'd probably end up trying to run it like we do public schools, most of the administration done at the state level, with the same hilarious results.

Quote from: Tonitrus on March 26, 2012, 11:13:04 PM
"Yes Minister" has taught me that the British are no better.  :blurgh: :P

Well that depends on who the government is.  I'd say it's the contrary and that 'Yes Minister' suggests our government's very good and just let down by our politicians :lol:

Though truthfully, we have a single-payer system, it's just half-assed.  Those on Medicare already use it.

And as the saying goes, one shouldn't half-ass two different things.  Better to whole-ass on one thing.

Quote from: Tonitrus on March 26, 2012, 09:58:37 PM

Quote from: Ideologue on March 26, 2012, 08:24:57 PM
Concur with Neil.  Individual mandate is stupid.  Why is it so hard?  It wasn't in Canada, the UK, Australia, France, Germany, Austria, probably Poland (FFS).

At this late a date, politically impossible short of catastrophe.  FDR might have been able to do it, had he survived.

I'd love to watch him run over Romney's feet and nominate twenty Joan Robinsons for every Scalia currently sitting.

Quote from: Sheilbh on March 26, 2012, 11:07:57 PM

Quote from: Tonitrus on March 26, 2012, 11:00:58 PM
Not to mention the bureaucracy, that is one more thing that America does second to none.

I'm still convinced Americans are suspicious of government because they're really, really bad at it :lol:

:lol:

Quote from: Sheilbh on March 26, 2012, 11:07:57 PM

Quote from: Tonitrus on March 26, 2012, 11:00:58 PM
Not to mention the bureaucracy, that is one more thing that America does second to none.

I'm still convinced Americans are suspicious of government because they're really, really bad at it :lol:

Blame Hollywood.  Too many decades of the Federal government portrayed as sinister agents wielding unconscionable technological power with black helicopters and making people disappear, when really, it's all just the DMV with better dental.

Quote from: Tonitrus on March 26, 2012, 11:14:19 PM
But seriously, we'd probably end up trying to run it like we do public schools, most of the administration done at the state level, with the same hilarious results.

At Creation Hospital, evolution is just a theory, antibiotics are unregulated, HIV tests require only a simple questionnaire, and we package your stillborn infant tastefully for the ride home.

Quote from: Ideologue on March 26, 2012, 08:24:57 PM
Concur with Neil.  Individual mandate is stupid.  Why is it so hard?  It wasn't in Canada, the UK, Australia, France, Germany, Austria, probably Poland (FFS).

We have an individual mandate in Germany. I am not sure what  the penalty is for not buying insurance.

Quote from: Zanza on March 27, 2012, 12:01:27 AM
We have an individual mandate in Germany. I am not sure what  the penalty is for not buying insurance.

Sent to the Eastern Front?

Quote from: CountDeMoney on March 26, 2012, 11:42:54 PM

Quote from: Sheilbh on March 26, 2012, 11:07:57 PM

Quote from: Tonitrus on March 26, 2012, 11:00:58 PM
Not to mention the bureaucracy, that is one more thing that America does second to none.

I'm still convinced Americans are suspicious of government because they're really, really bad at it :lol:

Blame Hollywood.  Too many decades of the Federal government portrayed as sinister agents wielding unconscionable technological power with black helicopters and making people disappear, when really, it's all just the DMV with better dental.

I've never had any problem with the DMV.  I remember Hans predicting that new Healthcare bill would be like the DMV.  I thought that wasn't so bad.  I get in and out in 15 minutes and they have free fresh popcorn in the back.  Costs me 20 bucks.  Much better then current situation with healthcare with a whole bunch of different confusing policies that sometimes cover me and sometimes don't, and is extremely expensive and abused by doctors and hospitals.

People want the government to be bad so they blame their own failings on it.  People also like to distance themselves from government rather then accept that government failings are so often rooted in decisions that the public wants.  We cut taxes and increased spending, and now the deficit is out of control.  How did that happen?  People need to accept that culpability in what the government does.  The problem isn't that government isn't listening to the people, it's that it's listening a little to much.

Quote from: Valmy on March 27, 2012, 12:14:25 AM

Quote from: Zanza on March 27, 2012, 12:01:27 AM
We have an individual mandate in Germany. I am not sure what  the penalty is for not buying insurance.

Sent to the Eastern Front?

(https://languish.org/forums/proxy.php?request=http%3A%2F%2Fwww.sitcomsonline.com%2Fphotopost%2Fdata%2F770%2Fla5.JPG&hash=190dacf161d5431dd08ea2b3d792026de7c5301b)

The way we do it is we set up a semi-independent Hospital Authority to run the hospitals.  The government is only responsible for funding and supervision.  This way the HA can bypass all the government internal regulations and they don't have to use the civil service pay scale.  In other words they can pay their surgeons more and security guards less. 

Quote from: Valmy on March 27, 2012, 12:14:25 AM

Quote from: Zanza on March 27, 2012, 12:01:27 AM
We have an individual mandate in Germany. I am not sure what  the penalty is for not buying insurance.

Sent to the Eastern Front?

Possible.

But I can't find out what the penalty is exactly. But apparently just about 0.05% of the population isn't insured at all, so it's not a big deal.

Doesn't matter;  court's going to shut it down.  Scalia will make something up as he goes along like usual, and Clarence's wife will tell him how to rule.

Quote from: Valmy on March 26, 2012, 10:08:05 PM

Quote from: DontSayBanana on March 26, 2012, 10:02:12 PM
Wait, there's somebody out there who still buys the death panels claptrap?

I like how pulling somebody off government entitlements is a death sentence.  Who knew?

Really.  The same way not giving someone free birth control equates to denying them any access to it.  Or even worse, a War on Women :o

Health insurance from an employer = Free medicine?

Audio and transcript of today's argument are available at: http://www.supremecourt.gov/oral_arguments/argument_audio_detail.aspx?argument=11-398-Tuesday

So what happens when the individual mandate is struck down? Will America finally be a democracy again?

After today's arguments before the US Supreme Court, CNN legal correspondent says health law 'looks like it's going to be struck down'.

http://www.politico.com/politico44/2012/03/toobin-health-law-looks-like-its-going-to-be-struck-118811.html (http://www.politico.com/politico44/2012/03/toobin-health-law-looks-like-its-going-to-be-struck-118811.html)

If it is that is hilarious.  Congress looks like a bunch of morons again.

Quote from: Phillip V on March 27, 2012, 01:47:54 PM
After today's arguments before the US Supreme Court, CNN legal correspondent says health law 'looks like it's going to be struck down'.

Oh yeah, Scalia was in rare form.

Quote from: Razgovory on March 27, 2012, 10:52:20 AM
Health insurance from an employer = Free medicine?

Yes, at least according to one of your side's spokeswomen:

http://www.mrctv.org/videos/romney-heckler-if-youre-looking-free-stuff-vote-obama

So will it go in whole or just the mandate?

I WANT MAH OBAMA BUCKS

Quote from: Valmy on March 27, 2012, 01:49:30 PM
If it is that is hilarious.  Congress looks like a bunch of morons again.

The congress that passed it, anyway.

Quote from: CountDeMoney on March 27, 2012, 01:55:13 PM
I WANT MAH OBAMA BUCKS

Line forms somewhere in Detroit, IIRC.

Quote from: derspiess on March 27, 2012, 01:56:13 PM

Quote from: Valmy on March 27, 2012, 01:49:30 PM
If it is that is hilarious.  Congress looks like a bunch of morons again.

The congress that passed it, anyway.

Nice try with the illegitimacy angle.  Doesn't work with the President, won't work with the Congress.

Quote from: CountDeMoney on March 27, 2012, 02:01:34 PM

Quote from: derspiess on March 27, 2012, 01:56:13 PM

Quote from: Valmy on March 27, 2012, 01:49:30 PM
If it is that is hilarious.  Congress looks like a bunch of morons again.

The congress that passed it, anyway.

Nice try with the illegitimacy angle.  Doesn't work with the President, won't work with the Congress.

:huh:

Quote from: derspiess on March 27, 2012, 01:56:13 PM
The congress that passed it, anyway.

Yeah because horribly written laws of questionable Constitutionality are limited to this one instance.  :lol:

Quote from: Valmy on March 27, 2012, 02:14:28 PM

Quote from: derspiess on March 27, 2012, 01:56:13 PM
The congress that passed it, anyway.

Yeah because horribly written laws of questionable Constitutionality are limited to this one instance.  :lol:

No, because Obamacare is the big news story today. 

Quote from: derspiess on March 27, 2012, 02:23:21 PM
No, because Obamacare is the big news story today. 

Ok I have not the slightest idea WTF you are trying to say.  English please.

Claiming they look like morons AGAIN is sayng exactly they are looking foolish today.

Quote from: Valmy on March 27, 2012, 02:26:43 PM

Quote from: derspiess on March 27, 2012, 02:23:21 PM
No, because Obamacare is the big news story today. 

Ok I have not the slightest idea WTF you are trying to say.  English please.

Claiming they look like morons AGAIN is sayng exactly they are looking foolish today.

Settle down, Throbby Jr. :rolleyes:

I'm saying that this being struck down would make the previous Congress look foolish.  I'm not sure how it should taint the current or other Congresses prior to the 111th.  I think it's a big enough issue that it would be looked at on its own, and not as part of a continuum of bad laws spanning many years, as you seem to think it will. 

And that's not because I disagree about congress having a habit of making bad laws, btw.

Quote from: derspiess on March 27, 2012, 02:35:13 PM

Quote from: Valmy on March 27, 2012, 02:26:43 PM

Quote from: derspiess on March 27, 2012, 02:23:21 PM
No, because Obamacare is the big news story today. 

Ok I have not the slightest idea WTF you are trying to say.  English please.

Claiming they look like morons AGAIN is sayng exactly they are looking foolish today.

Settle down, Throbby Jr. :rolleyes:

I'm saying that this being struck down would make the previous Congress look foolish.  I'm not sure how it should taint the current or other Congresses prior to the 111th.  I think it's a big enough issue that it would be looked at on its own, and not as part of a continuum of bad laws spanning many years, as you seem to think it will. 

And that's not because I disagree about congress having a habit of making bad laws, btw.

No, just that some Congresses are more legitimate than others, i.e., ones that pass legislation you approve of, versus those that don't.

Quote from: CountDeMoney on March 27, 2012, 02:44:24 PM
No, just that some Congresses are more legitimate than others, i.e., ones that pass legislation you approve of, versus those that don't.

I don't get the "legitimacy" thing you keep harping on.  I don't think I ever questioned the legitimacy of the 111th congress, nor of the Obama presidency.

Quote from: derspiess on March 27, 2012, 01:54:31 PM

Quote from: Razgovory on March 27, 2012, 10:52:20 AM
Health insurance from an employer = Free medicine?

Yes, at least according to one of your side's spokeswomen:

http://www.mrctv.org/videos/romney-heckler-if-youre-looking-free-stuff-vote-obama

Is that the way it works in real life?

Anyway, it's nice to know that random people in the crowd can be considered "Spokesman".  I'll be sure to use that as a future.

Quote from: Valmy on March 27, 2012, 01:49:30 PM
If it is that is hilarious.  Congress looks like a bunch of morons again.

Win the presidency, the house with a big margin, and a filibuster proof majority in the senate? Forget any major reform ideas, what really matters is you don't have a majority on the USSC. It's like how Al Gore looked like a moron for trying to become president when 5 guys on the USSC were republicans.

Quote from: Razgovory on March 27, 2012, 03:22:47 PM
Anyway, it's nice to know that random people in the crowd can be considered "Spokesman".  I'll be sure to use that as a future.

It was a joke, Howdy.

Quote from: derspiess on March 27, 2012, 03:07:37 PM
I don't get the "legitimacy" thing you keep harping on.  I don't think I ever questioned the legitimacy of the 111th congress, nor of the Obama presidency.

Does that mean you have questioned the legitimacy of the 112th, which is the one we're currently on? :contract:

Quote from: MadImmortalMan on March 27, 2012, 01:54:49 PM
So will it go in whole or just the mandate?

No mandate = an extremely screwed up law. The mandate is the lynchpin for a sizeable chunk of it.

Quote from: DontSayBanana on March 27, 2012, 03:24:31 PM

Quote from: derspiess on March 27, 2012, 03:07:37 PM
I don't get the "legitimacy" thing you keep harping on.  I don't think I ever questioned the legitimacy of the 111th congress, nor of the Obama presidency.

Does that mean you have questioned the legitimacy of the 112th, which is the one we're currently on? :contract:

No.  I don't believe I've questioned the legitimacy of any Congress :unsure:

Eh, I don't even know where to stand on the mandate.  It seems kinda ham-fisted, but that might be my part-time, minimum-wage employment talking, since there's no way I could afford even an "affordable" healthcare package.

I question the legitimacy of the 28th Congress.

Quote from: stjaba on March 27, 2012, 12:53:23 PM
Audio and transcript of today's argument are available at: http://www.supremecourt.gov/oral_arguments/argument_audio_detail.aspx?argument=11-398-Tuesday

Maybe it's the nature of SC oral arguments, but I'm a couple pages in and that Vermicelli dude sounds like a 7th grader.

Quote from: Habbaku on March 27, 2012, 03:37:47 PM
I question the legitimacy of the 28th Congress.

Hey!  Best.  Congress.  Ever.

Quote from: Admiral Yi on March 27, 2012, 04:09:55 PM
Maybe it's the nature of SC oral arguments, but I'm a couple pages in and that Vermicelli dude sounds like a 7th grader.

You go to the Supreme Court with the Solicitor-General you have.

Now I'm at page 15 and Ginsberg, Breyer, and Sotomayor are making Verrilli's arguments for him.

We had a link not too far back about some famous case in which the ineptitude of one of the solicitors was demonstrated by the sympathetic justices helping him make his arguments.

Is this my bias or does the transcript show Verrilli making a hash of things?

Quote from: derspiess on March 27, 2012, 03:07:37 PM

Quote from: CountDeMoney on March 27, 2012, 02:44:24 PM
No, just that some Congresses are more legitimate than others, i.e., ones that pass legislation you approve of, versus those that don't.

I don't get the "legitimacy" thing you keep harping on.  I don't think I ever questioned the legitimacy of the 111th congress, nor of the Obama presidency.

No, just "the congress that passed it, anyway"; "that" Congress, as opposed to, say, "this" Congress.  "That" President.

Quote from: alfred russel on March 27, 2012, 03:23:55 PM

Quote from: Valmy on March 27, 2012, 01:49:30 PM
If it is that is hilarious.  Congress looks like a bunch of morons again.

Win the presidency, the house with a big margin, and a filibuster proof majority in the senate? Forget any major reform ideas, what really matters is you don't have a majority on the USSC. It's like how Al Gore looked like a moron for trying to become president when 5 guys on the USSC were republicans.

Reagan wins in the afterlife.

Sotomayor coming across very well.  Probably the best so far of the lefties.

Anyone else reading/listening to the arguments?

Quote from: Admiral Yi on March 27, 2012, 04:52:35 PM
Anyone else reading/listening to the arguments?

Why? We already know the final score:  5-4.

Quote from: CountDeMoney on March 27, 2012, 05:23:50 PM
Why?

Learn something new?  Gain insights into the Constitutional arguments?

Now I'm into Carvin arguing against, and all of a sudden the conservative justices seem more sympathetic to the yes side.

The liberal justices keep raising Social Security as a supporting argument for mandated activity and neither of the no guys is doing a very good job of knocking it down.

At page 105 Kennedy starts tipping his hand for a possible uphold vote. :ph34r:

Man, this is seriously gripping shit.

Quote from: Admiral Yi on March 27, 2012, 05:52:34 PM
At page 105 Kennedy starts tipping his hand for a possible uphold vote. :ph34r:

Man, this is seriously gripping shit.

Seriously?

I'm a goddamn lawyer, and even my eyes glaze over at reading 100+ page SCC decisions.

Quote from: Admiral Yi on March 27, 2012, 04:52:35 PM
Sotomayor coming across very well.  Probably the best so far of the lefties.

Anyone else reading/listening to the arguments?

Got a link?

Quote from: Barrister on March 27, 2012, 05:54:29 PM
Seriously?

I'm a goddamn lawyer, and even my eyes glaze over at reading 100+ page SCC decisions.

Seriously.  This is not a decision, it's a tribal council meeting around the fire.  Great drama.

I like the fact that the only currency is brute reason.


Yakie:  look on the previous page at St. Jibber Jabber's post for alink.

:cheers:

Quote from: Barrister on March 27, 2012, 05:54:29 PM
I'm a goddamn lawyer, and even my eyes glaze over at reading 100+ page SCC decisions.

Man are you in the wrong business.  These are the submissions.  You know the stuff you are supposed to live for.

Does anyone know if the provisions in question are severable from the rest of the healthcare law?

Here's a good page for analysis:
http://www.scotusblog.com/

QuoteDoes anyone know if the provisions in question are severable from the rest of the healthcare law?

The Court'll hear about that tomorrow:

QuoteWEDNESDAY: "SEVERABILITY"

Question: If the individual mandate falls, must the rest of the law fall too? The court will devote 90 minutes to this argument.

Background: The mandate is the most prominent piece of Mr Obama's health reform. However the law is gargantuan. Its 2,700 pages cover everything from calorie counts on menus to drug rebates for the elderly.

Mr Obama's argument: Should the mandate be overturned, only two other provisions should fall with it. The reform requires insurers to cover those with pre-existing conditions and bars them from hiking fees for the ill. Mr Obama's lawyers concede that the mandate is necessary for these requirements to work—without the mandate, individuals would simply wait until they got sick to buy insurance. This would prove disastrous for insurers. However the rest of the law should stand. The states may not fight provisions of the health law that do not apply to them.

Challengers' argument: Health reform sought to achieve near universal health coverage without increasing the deficit. The mandate was the main way to do this, but the entire law served this goal. If the mandate falls, the entire law should fall, too.

Court-appointed lawyer's argument: The Supreme Court appointed an impartial lawyer, Bartow Farr, to argue that the rest of the law should remain if the mandate falls. Mr Farr contends that the provisions outside of the mandate are "perfectly lawful". Congress would rather have the law without the mandate than no health law at all.

Analysis: The insurance industry supported the law because of the mandate. The requirement that individuals buy insurance balanced the myriad, onerous rules on insurers. The Eleventh Circuit's ruling was insurers' worst nightmare. The appellate court struck down the mandate but upheld every other part of the law.

Quote from: Admiral Yi on March 27, 2012, 05:43:00 PM
The liberal justices keep raising Social Security as a supporting argument for mandated activity and neither of the no guys is doing a very good job of knocking it down.

Payments into the Social Security system are taxes, though (even if the law was crafted to make it look like they aren't), and only a few nuts question the power of the government to levy taxes, at least post-Sixteenth Amendment.

Quote from: dps on March 27, 2012, 06:24:43 PM
Payments into the Social Security system are taxes, though (even if the law was crafted to make it look like they aren't), and only a few nuts question the power of the government to levy taxes, at least post-Sixteenth Amendment.

Claro, which is why I was puzzled by the inability of shysters to make that argument.

Striking down only the mandate would be the worst of all possible worlds, wouldn't it? Would Congress/the President have the balls to repeal the popular elements (like prohibiting discrimination against those with preexisting conditions) that the mandate was meant to finance?

Quote from: dps on March 27, 2012, 06:24:43 PM

Quote from: Admiral Yi on March 27, 2012, 05:43:00 PM
The liberal justices keep raising Social Security as a supporting argument for mandated activity and neither of the no guys is doing a very good job of knocking it down.

Payments into the Social Security system are taxes, though (even if the law was crafted to make it look like they aren't), and only a few nuts question the power of the government to levy taxes, at least post-Sixteenth Amendment.

How are payments into the Health Security system different, such that they are not taxes?

Quote from: Kleves on March 27, 2012, 06:28:18 PMStriking down only the mandate would be the worst of all possible worlds, wouldn't it? Would Congress/the President have the balls to repeal the popular elements (like prohibiting discrimination against those with preexisting conditions) that the mandate was meant to finance?

Alternately, could they fund it with some sort of tax?

Quote from: Jacob on March 27, 2012, 06:29:27 PM
Alternately, could they fund it with some sort of tax?

With this Congress? In an election year? I don't think so.

Quote from: Kleves on March 27, 2012, 06:30:48 PMWith this Congress? In an election year? I don't think so.

... but maybe after the election (assuming an appropriate set of majorities, which is probably a bit assumption)?

Though that, of course, raises the question of how they'll get to the end of the year.

Quote from: Admiral Yi on March 27, 2012, 06:26:32 PM
Claro, which is why I was puzzled by the inability of shysters to make that argument.

Yesterday's argument dealt with whether it was a tax or not.  If it was a tax, under the Anti-Injunction Act, the Court can't rule on it until it's come into force (2015 at the earliest).  The Administration said the penalty isn't intended as a tax under the AIA, the challengers say it's a 'penalty' not a tax and it's not that they're challenging, but the mandate itself and the AIA only applies to individuals not to states.  The Court appointed a lawyer to argue that they shouldn't rule on a constitutional matter until compelled to do so, so after a tax has been levied.

Quote from: Jacob on March 27, 2012, 06:28:43 PM
How are payments into the Health Security system different, such that they are not taxes?

It appears that if taxes are only levied on a subset of the population then they are a "direct tax" and therefore verbotten.

Quote from: Admiral Yi on March 27, 2012, 06:39:17 PM

Quote from: Jacob on March 27, 2012, 06:28:43 PM
How are payments into the Health Security system different, such that they are not taxes?

It appears that if taxes are only levied on a subset of the population then they are a "direct tax" and therefore verbotten.

I see.

Heh... I kind of think it a thing of beauty if the mandates got struck down and then Obama went with "alright, fine. No mandates. The government will pay the premiums, and here's a corresponding tax increase."

Of course, he probably won't be able to pull that off even if he wanted to.

(By the way, I agree... the transcript is interesting reading for sure).

Quote from: Habbaku on March 27, 2012, 03:37:47 PM
I question the legitimacy of the 28th Congress.

The 1st Congress and all the other ones were illegitimate.

Quote from: Admiral Yi on March 27, 2012, 06:39:17 PM

Quote from: Jacob on March 27, 2012, 06:28:43 PM
How are payments into the Health Security system different, such that they are not taxes?

It appears that if taxes are only levied on a subset of the population then they are a "direct tax" and therefore verbotten.

No, that's not it.  Payments into the Social Security system are paid to the government, just like any other tax.  Payments for health care premiums under would still be to private insurance companies for most people. 

Now, the government in most US states does require you to purchase auto insurance in order to operate a motor vehicle, so that's a precedent of a sort, but there are a couple of differences.  First, the states have a general police power that the federal government in theory isn't supposed to have.  Second, you aren't legally required to own or operate an automobile, so if you don't want to buy auto insurance, you can legally avoid doing so by not owning or driving a car.  It the court upholds the individual mandate, there'd be no way you could avoid either buying health insurance or paying a penalty.  It would be almost as if the states not only required you to have auto insurance, but also required you to buy a car.

Quote from: dps on March 27, 2012, 07:15:48 PM
No, that's not it.  Payments into the Social Security system are paid to the government, just like any other tax.  Payments for health care premiums under would still be to private insurance companies for most people. 

I was talking about the fine, not the premium.

Quote from: Admiral Yi on March 27, 2012, 07:18:00 PM

Quote from: dps on March 27, 2012, 07:15:48 PM
No, that's not it.  Payments into the Social Security system are paid to the government, just like any other tax.  Payments for health care premiums under would still be to private insurance companies for most people. 

I was talking about the fine, not the premium.

Fine, but I think Jacob was asking about the premiums.

Yeah, I was.

What's the penalty for not paying your Social Security premiums?

Quote from: Jacob on March 27, 2012, 07:21:35 PM
Yeah, I was.

What's the penalty for not paying your Social Security premiums?

Same as any other kind of tax avoidance I would guess.

Quote from: Admiral Yi on March 27, 2012, 04:21:36 PM
Is this my bias or does the transcript show Verrilli making a hash of things?

That seems to be the press and liberals verdict on it.  On the other hand, from SCOTUS Blog, there's this:

QuoteA tale of two great arguments
Having now had a chance to take a breath from thinking about the substance, I wanted to step back and comment on the advocates.  I really only heard a couple of minutes of Michael Carvin's argument, but I was there for almost the entirety of Don Verrilli's and Paul Clement's.  Paul told me that Don was terrific, and I'm sure Don would say the reverse. I certainly think that both were tremendous.  We'll have the consolidated version of the argument tape up soon, but I thought I'd give a couple of examples now.

General Verrilli had one stumble out of the gate as he had to get a drink of water and then restart, but immediately got his footing.  I thought all of his answers were clear and straight to the point.  The most impressive thing about it is that – even if the Government wins – it had the much harder case to argue.  The plaintiffs have very clear, bumper sticker points.  The Government has to answer a lot of very difficult hypotheticals.  The Solicitor General has the especially hard job of defending not just this statute but Congress's prerogative to enact almost any law in the future.  And finally the Court's more conservative Justices are on the whole more effective questioners than the left.

But none of those phased Verrilli, who brought to the argument his status as really one of the small handful of lawyers the Justices genuinely trust after decades of hearing him argue.  For example, Verrilli stood his ground against the plaintiff's efforts to recharacterize the mandate.  Responding to Justice Kennedy, he immediately disavowed any power to "create commerce," explaining that the government's position was that the financing of health care "is economic activity with substantial effects on interstate commerce."  Tr. 5.  In a point that the Chief Justice later cited, he focused on the fact that "virtually everybody" is "either in that market or will be in that market and the distinguishing feature is that they cannot – people cannot generally control when they enter that market or what they need when they enter that market."  Id.

Under sustained fire from the Court's conservatives, Verrilli also kept at the theme that the plaintiffs had conceded the government could impose a mandate at the time an individual receives health care, so that the mandate merely raises a question of timing.  And Verrilli carefully planted the seeds several times – including in his rebuttal – for one or more Justices to rule in the government's favor under the taxing power.  It was a tremendous argument.

As good as Don Verrilli was, Paul Clement was even better.  It was the best argument I've ever heard.  Paul had a bunch of natural advantages that I mention above.  But even without that, he was extraordinary.  His ability to parry difficult questions and press forward the heart of his argument was astonishing.

Clement succinctly made the point that the mandate is not just about timing because it applies to many people each year "who don't want to purchase health insurance and also have no plans of using health care services in the near term."  Tr. 56.  When Justice Kennedy – obviously a critical vote – articulated the government's argument that individuals who do not purchase health care have a significant effect on the market as a result, Clement effectively countered (in a point that Kennedy later repeated) that one of the things Congress sought to do "was to force individuals into the insurance market to subsidize those that are already in it to lower the rates."  Tr. 57.  And throughout, Clement articulately pressed the government's weakest point – it's inability to identify a clear limiting principle on its reading of the Commerce Clause.

I commend the entire argument to anyone who is interested in great oral advocacy.

This analysis, which I found interesting, says he was generally good but not as clear or crisp as he should have been on one key point:
http://www.scotusblog.com/2012/03/argument-recap-it-is-kennedys-call/

I thought Verrili could have done a much better job of articulating his nascent "regulation of inevitable future commerce" argument.

He also completely muffed it by not offering the justices any kind of test that would prevent the creation of police powers.  Or plenary powers, whichever it is.

Quote from: Jacob on March 27, 2012, 06:44:14 PM

Quote from: Admiral Yi on March 27, 2012, 06:39:17 PM

Quote from: Jacob on March 27, 2012, 06:28:43 PM
How are payments into the Health Security system different, such that they are not taxes?

It appears that if taxes are only levied on a subset of the population then they are a "direct tax" and therefore verbotten.

I see.

Heh... I kind of think it a thing of beauty if the mandates got struck down and then Obama went with "alright, fine. No mandates. The government will pay the premiums, and here's a corresponding tax increase."

Of course, he probably won't be able to pull that off even if he wanted to.

(By the way, I agree... the transcript is interesting reading for sure).

When health care passed, the Democrats controlled the House of Representatives by a huge margin, and had a supermajority in the senate. And it was still a 6 month struggle that passed by the skin of its teeth. There is no way Obama can go back and make any sort of change like that now.

Intrade has a 55% chance the individual mandate is overturned by  the end of the year. That is up 17% today.

Kennedy could clean up if he had an account.

Quote from: alfred russel on March 27, 2012, 08:11:14 PM

When health care passed, the Democrats controlled the House of Representatives by a huge margin, and had a supermajority in the senate. And it was still a 6 month struggle that passed by the skin of its teeth. There is no way Obama can go back and make any sort of change like that now.

The health care system needs some big changes though. Some of Obama care is certainly good, but some of it scares me, especially regarding the costs. The CBO just doubling its cost estimates; we can probably triple that at least. Other stuff. But rather than get into the details of that plan, US health care needs big change. But I tend to agree with you - just won't happen. However, if Obamacare goes down, maybe, hopefully, our legislators can begin to make some smaller changes, including some of Obamacare that they can agree on.

Quote from: alfred russel on March 27, 2012, 08:22:43 PM
Intrade has a 55% chance the individual mandate is overturned by  the end of the year. That is up 17% today.

Kennedy could clean up if he had an account.

So yesterday 62% chance it would stand.  That's interesting.

The problem is that if you want an overhaul, you have to start with the Obama plan. The core idea of Obama's plan makes sense, even if the some of the details could use work. Obama won't be able to get through another major overhaul in the next 5 years. It is this or nothing. And after all the beating Romney has taken for basically being the the guy who came up with Obamacare, he wouldn't dare bring up a major health care overhaul.

Quote from: Admiral Yi on March 27, 2012, 08:35:18 PM
So yesterday 62% chance it would stand.  That's interesting.

It will be interesting to see if it starts to converge to either 0% or 100% as a decision nears.

Quote from: alfred russel on March 27, 2012, 08:37:53 PM
It will be interesting to see if it starts to converge to either 0% or 100% as a decision nears.

Why should it?  After oral arguments (i.e. right now) we don't get any further market information before the decision.

Quote from: Admiral Yi on March 27, 2012, 08:40:02 PM

Quote from: alfred russel on March 27, 2012, 08:37:53 PM
It will be interesting to see if it starts to converge to either 0% or 100% as a decision nears.

Why should it?  After oral arguments (i.e. right now) we don't get any further market information before the decision.

The justices will talk with each other, and their clerks, and possibly others.

Apparently a few days before Saddam was taken out, the market for catching Saddam spiked. Someone was acting on inside info.

Quote from: alfred russel on March 27, 2012, 08:42:19 PM
The justices will talk with each other, and their clerks, and possibly others.

Apparently a few days before Saddam was taken out, the market for catching Saddam spiked. Someone was acting on inside info.

Wanna make it interesting Fredo?

Quote from: Admiral Yi on March 27, 2012, 08:43:45 PM
Wanna make it interesting Fredo?

No, I can't be sure you aren't clerking for Kennedy.  :P

Quote from: alfred russel on March 27, 2012, 08:36:34 PM
The problem is that if you want an overhaul, you have to start with the Obama plan. The core idea of Obama's plan makes sense, even if the some of the details could use work. Obama won't be able to get through another major overhaul in the next 5 years. It is this or nothing. And after all the beating Romney has taken for basically being the the guy who came up with Obamacare, he wouldn't dare bring up a major health care overhaul.

Yeah, it's too bad too. I tend to mostly like the Massachusetts plan. Given the problems with health care, it's too bad these guys couldn't come up with fixes if Obamacare goes down. Too funny, after beating each other over the head about it, they'd be unlikely to come up with fixes/changes. But maybe instead they'd be spurred to make changes if it does go down or is severely impacted by a SC decision.

Quote from: alfred russel on March 27, 2012, 08:45:14 PM
No, I can't be sure you aren't clerking for Kennedy.  :P

Gentleman's bet then: 25 and 75 are pushes, I get the middle band, you get the outsides.

Quote from: Admiral Yi on March 27, 2012, 08:43:45 PM

Quote from: alfred russel on March 27, 2012, 08:42:19 PM
The justices will talk with each other, and their clerks, and possibly others.

Apparently a few days before Saddam was taken out, the market for catching Saddam spiked. Someone was acting on inside info.

Wanna make it interesting Fredo?

Yi, if you keep this up, you'll get Languish seized by the Justice Department.

Quote from: DGuller on March 27, 2012, 08:51:38 PM
Yi, if you keep this up, you'll get Languish seized by the Justice Department.

3-1 says I don't.

Quote from: Admiral Yi on March 27, 2012, 08:50:09 PM

Quote from: alfred russel on March 27, 2012, 08:45:14 PM
No, I can't be sure you aren't clerking for Kennedy.  :P

Gentleman's bet then: 25 and 75 are pushes, I get the middle band, you get the outsides.

You need to define the timeline.  Obviously it's going to be 0 or 100 once the 5-4 decision is officially made public.

Quote from: Admiral Yi on March 27, 2012, 08:52:26 PM

Quote from: DGuller on March 27, 2012, 08:51:38 PM
Yi, if you keep this up, you'll get Languish seized by the Justice Department.

3-1 says I don't.

:lol:

Quote from: DGuller on March 27, 2012, 08:53:00 PM
You need to define the timeline.  Obviously it's going to be 0 or 100 once the 5-4 decision is officially made public.

Only if some schmuck places a trade after the decision airs.

Quote from: Admiral Yi on March 27, 2012, 08:55:15 PM

Quote from: DGuller on March 27, 2012, 08:53:00 PM
You need to define the timeline.  Obviously it's going to be 0 or 100 once the 5-4 decision is officially made public.

Only if some schmuck places a trade after the decision airs.

So if I bet on the extreme values, I win as long as there is at least one point in time that the price is in the extreme range (>75 or <25)?

Quote from: DGuller on March 27, 2012, 09:00:46 PM
So if I bet on the extreme values, I win as long as there is at least one point in time that the price is in the extreme range (>75 or <25)?

Good point, it would have to be last day of trading.  God you people are good with numbers.

Quote from: Admiral Yi on March 27, 2012, 09:07:15 PM

Quote from: DGuller on March 27, 2012, 09:00:46 PM
So if I bet on the extreme values, I win as long as there is at least one point in time that the price is in the extreme range (>75 or <25)?

Good point, it would have to be last day of trading.  God you people are good with numbers.

Ok, so if the price hits the extreme band in the period of 12 hours before the ruling and 12 hours after the ruling, he who bets on the extreme end wins?

Quote from: DGuller on March 27, 2012, 09:09:40 PM
Ok, so if the price hits the extreme band in the period of 12 hours before the ruling and 12 hours after the ruling, he who bets on the extreme end wins?

How is the price going to move after the ruling?

The bet is not that it hits one of the bands in the 12 hours prior to, it's dependent on the very last price traded before the ruling.

BTW have you (or anyone else) ever played on Intrade?

Quote from: Admiral Yi on March 27, 2012, 09:12:41 PM

Quote from: DGuller on March 27, 2012, 09:09:40 PM
Ok, so if the price hits the extreme band in the period of 12 hours before the ruling and 12 hours after the ruling, he who bets on the extreme end wins?

How is the price going to move after the ruling?

The bet is not that it hits one of the bands in the 12 hours prior to, it's dependent on the very last price traded before the ruling.

BTW have you (or anyone else) ever played on Intrade?

I played on the play money Intrade run by Rasmussen (and was in 8th place out of 20,000 users when they folded it).  Err, let me correct myself, I have no idea what I'm talking about. :whistle:

I don't get the point behind pretending that you didn't really do well on fake Intrade. :unsure:

Quote from: Admiral Yi on March 27, 2012, 09:20:19 PM
I don't get the point behind pretending that you didn't really do well on fake Intrade. :unsure:

It's called hustling.  Err, actually, there was no point to that. :whistle:

Quote from: Admiral Yi on March 27, 2012, 08:52:26 PM

Quote from: DGuller on March 27, 2012, 08:51:38 PM
Yi, if you keep this up, you'll get Languish seized by the Justice Department.

3-1 says I don't.

:lol:

Quote from: Admiral Yi on March 27, 2012, 08:50:09 PM

Quote from: alfred russel on March 27, 2012, 08:45:14 PM
No, I can't be sure you aren't clerking for Kennedy.  :P

Gentleman's bet then: 25 and 75 are pushes, I get the middle band, you get the outsides.

I'm not saying I think the info is going to leak into the market, I'm just saying will be interesting to see if it does.  :D

Quote from: DGuller on March 27, 2012, 09:14:25 PM
I played on the play money Intrade run by Rasmussen (and was in 8th place out of 20,000 users when they folded it).  Err, let me correct myself, I have no idea what I'm talking about. :whistle:

In 2008 I did well in the primary election with real money on intrade, primarily betting the extreme election results (for example, against Ron Paul, against candidates down ~20 points in the polls). I probably made a little over 10% over a few months. I was going to do it again this time, I think the extreme values are there again, but I realized, "holy shit you actually sent cash to some random offshore gambling site"? What really decided it for me was when I saw they have a market on whether intrade is able to stay in business.  :D

You guys are crazy to bet on this.  You might as well just flip coins.

It's going to be 6-3 in favor of the liberals. Republicans won't let insurance companies start going belly up. Then we'll really be forced into single payer. Otherwise everyone could just wait to buy insurance until they're diagnosed with an expensive chronic illness.

Ah, that sounds like a good idea.

Quote from: Ideologue on March 27, 2012, 10:22:55 PM
You guys are crazy to bet on this.  You might as well just flip coins.

I bet 2-1 that I can flip a head.  You in?

Quote from: alfred russel on March 27, 2012, 08:36:34 PM
And after all the beating Romney has taken for basically being the the guy who came up with Obamacare, he wouldn't dare bring up a major health care overhaul.

Romney has taken a beating for Romneycare in the Republican primaries. After he gets elected, I doubt he will care about his past beatings, just like he worked with his past nemesis Senator Kennedy to bring universal healthcare to Massachusetts less than six years ago.

He wont get elected.

I keep hearing people say that Obamacare cannot work without the mandate.

Now, if that is true or not, is it at all relevant to whether or not the mandate is Constitutional? If we assume that it is true, for example, that doesn't make it acceptable, right? The Constitutional restriction of limited government powers is not simply removed or set aside because some law won't work if we don't give the federal government powers otherwise not enumerated to it.

I don't really understand that argument's applicability to the question.

Quote from: Phillip V on March 28, 2012, 04:37:20 AM
Romney has taken a beating for Romneycare in the Republican primaries. After he gets elected, I doubt he will care about his past beatings, just like he worked with his past nemesis Senator Kennedy to bring universal healthcare to Massachusetts less than six years ago.

Because he is going to win a hypothetical reelection in 2016 after alienating team republican?

It wouldn't be like Massachusetts because national republicans are more conservative and also can win elections without running pseudo democrats. Also, democrats will tolerate a liberal republican governor a lot more than a president. There are too many patronage positions in the federal government, too many jobs requiring you to scream at republicans, and too much money to be raised by hating on the other side. The outrage cycle demands the other guy to be outrageous, no matter what he does.

Quote from: Berkut on March 28, 2012, 08:15:21 AM
I keep hearing people say that Obamacare cannot work without the mandate.

Now, if that is true or not, is it at all relevant to whether or not the mandate is Constitutional? If we assume that it is true, for example, that doesn't make it acceptable, right? The Constitutional restriction of limited government powers is not simply removed or set aside because some law won't work if we don't give the federal government powers otherwise not enumerated to it.

I don't really understand that argument's applicability to the question.

It does get a little annoying how expediency is supposed to influence decisions like this.  "How can we fight terrorism with the 4th amendment" or whatever.  Um the Constitution was not made to be convenient.

Quote from: Berkut on March 28, 2012, 08:15:21 AM
I keep hearing people say that Obamacare cannot work without the mandate.

Now, if that is true or not, is it at all relevant to whether or not the mandate is Constitutional? If we assume that it is true, for example, that doesn't make it acceptable, right? The Constitutional restriction of limited government powers is not simply removed or set aside because some law won't work if we don't give the federal government powers otherwise not enumerated to it.

I don't really understand that argument's applicability to the question.

No, it's not relevant.  Is anyone saying that it is relevant, in regard to constitutionality?

Quote from: Berkut on March 28, 2012, 08:15:21 AM
I keep hearing people say that Obamacare cannot work without the mandate.

Now, if that is true or not, is it at all relevant to whether or not the mandate is Constitutional? If we assume that it is true, for example, that doesn't make it acceptable, right? The Constitutional restriction of limited government powers is not simply removed or set aside because some law won't work if we don't give the federal government powers otherwise not enumerated to it.

I don't really understand that argument's applicability to the question.

At least up here if you are challenging the constitutional validity of a section, looking at how it is connected to both the intended purpose of the legislation, and whether it is necessary to meet that purpose, would very much be a part of the analysis.

Quote from: Berkut on March 28, 2012, 08:15:21 AM
I keep hearing people say that Obamacare cannot work without the mandate.

Now, if that is true or not, is it at all relevant to whether or not the mandate is Constitutional? If we assume that it is true, for example, that doesn't make it acceptable, right? The Constitutional restriction of limited government powers is not simply removed or set aside because some law won't work if we don't give the federal government powers otherwise not enumerated to it.

I don't really understand that argument's applicability to the question.

I don't get the fetish regarding this stuff. The Constitution is a document written in the 18th century and is ambiguous on a bunch of stuff, including this.

We certainly don't interpret the constitution as it was applied when it was written. I understand about the time the first amendment was passed congress was printing bibles to help convert the indians. All sorts of nasty things existed that we want no part of.

We certainly don't interpret the constitution based strictly on the wording. I brought this up a while back, regarding the prohibition on "cruel and unusual" punishment. The conjunctive phrase is "and". As such, just based on the wording so long as a punishment is universal (say death for shoplifting) it would seem to pass this test.

If we look to the constitition as a living document, why can't it evolve to allow Obamacare? If it is an aspirational document, why can't we aspire to have universal health care?

Quote from: alfred russel on March 28, 2012, 09:15:46 AM
We certainly don't interpret the constitution based strictly on the wording.

There's four on the bench that think otherwise.

Quote from: CountDeMoney on March 28, 2012, 09:24:48 AM

Quote from: alfred russel on March 28, 2012, 09:15:46 AM
We certainly don't interpret the constitution based strictly on the wording.

There's four on the bench that think otherwise.

There's four on the bench that think otherwise when it suits their purposes, imo.

Quote from: alfred russel on March 28, 2012, 09:26:49 AM

Quote from: CountDeMoney on March 28, 2012, 09:24:48 AM

Quote from: alfred russel on March 28, 2012, 09:15:46 AM
We certainly don't interpret the constitution based strictly on the wording.

There's four on the bench that think otherwise.

There's four on the bench that think otherwise when it suits their purposes, imo.

And this week just happens to be one of them.

Quote from: alfred russel on March 28, 2012, 09:15:46 AM

If we look to the constitition as a living document, why can't it evolve to allow Obamacare? If it is an aspirational document, why can't we aspire to have universal health care?

I am far from a strict literalist when it comes to the Constitution. But at some point it has to mean SOMETHING, right? Otherwise why even have it?

And fundamentally, the very basic purpose of the thing is to define what the government can and cannot do, and what powers the federal government has - surely *mandating* that people engage in a particular activity very much gets to the fundamentals of what the Constitution has to say about our government. This is not a vague interpretation issue about what some particular words mean under some context. This is a debate about whether the federal government does in fact have the power to force people to act in a particular manner.

This is as fundamental as it gets - if the Constitution is "soft" enough that we can say the federal government has powers that are not enumerated in it, then we are saying we don't have a Constitution at all. Now, I do think you can make some arguments that the Constitution as it exists now (and that includes its implicit modification via previous rulings) does in fact include the power to madate this via the Commerce clause. Personally, I fucking hate that damn thing, since apparently it seems to mean that Congress can do anything they want as long as someone somewhere steps over a state line, but at least the argument can be made.

What I don't accept is the implication that since Obamacare requires a mandate, that should somehow be considered in whether the USSC should find it constitutional. That only speaks to whether the law in question is necessary, not whether it is proper.

Quote from: Berkut on March 28, 2012, 08:15:21 AM
I keep hearing people say that Obamacare cannot work without the mandate.

Now, if that is true or not, is it at all relevant to whether or not the mandate is Constitutional? If we assume that it is true, for example, that doesn't make it acceptable, right? The Constitutional restriction of limited government powers is not simply removed or set aside because some law won't work if we don't give the federal government powers otherwise not enumerated to it.

That was a question addressed a very long time ago in McCulloch v. Maryland by Marshall:

QuoteAmong the enumerated powers, we do not find that of establishing a bank or creating a corporation. But there is no phrase in the instrument which, like the articles of confederation, excludes incidental or implied powers; and which requires that everything granted shall be expressly and minutely described . . .Although, among the enumerated powers of government, we do not find the word "bank" or "incorporation," we find the great powers, to lay and collect taxes; to borrow money; to regulate commerce . . .  The government which has a right to do an act, and has imposed on it, the duty of performing that act, must, according to the dictates of reason, be allowed *to select the [*410 means; and those who contend that it may not select any appropriate means, that one particular mode of effecting the object is excepted, take upon themselves the burden of establishing that exception  . . . [T] the sound construction of the constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution . . .  Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.

Over 150 years later in Hodel v. Indiana, the Supreme Court in a opinion signed on to by 8 justices, echoed the McCulloch rationale in addressing this very issue:

QuoteA complex regulatory program such as established by the Act can survive a Commerce Clause challenge without a showing that every single facet of the program is independently and directly related to a valid congressional goal. It is enough that the challenged provisions are an integral part of the regulatory program and that the regulatory scheme when considered as a whole satisfies this test.

With that in mind, I would turn your question on its face.  There is no question that taken as a whole, the ACCA constitutes a regulation of interstate commerce under any possible rational post-1934 construction of that term.  Given that fact, why should it be a valid procedure to carve out and cherry pick individual pieces of a single comprehensive piece of legislation and test them under the Commerce Clause requirement as though they were free-standing and independent laws?  The simple fact is that the mandate is not free-standing and independent. It is an integral part of a single regulatory scheme and its specific purpose is to make that scheme work as designed.  To use the terms of McCulloch, it is the means employed to achieve a legitimate regulatory end, and one necessary and proper to that end.

Quote from: Berkut on March 28, 2012, 09:51:41 AM
I am far from a strict literalist when it comes to the Constitution. But at some point it has to mean SOMETHING, right? Otherwise why even have it?

And fundamentally, the very basic purpose of the thing is to define what the government can and cannot do, and what powers the federal government has - surely *mandating* that people engage in a particular activity very much gets to the fundamentals of what the Constitution has to say about our government...

It is conceded that the government has the power to take money from me in order to buy me insurance.

This is about whether rather taking the money from me to get me insurance, they direct me to spend it on a variety of options they preapprove and heavily regulate.

From my lay point of view, this is an angels on the head of the pin argument.

So... what will happen if the SC strikes down the mandates? What then?

Quote from: Jacob on March 28, 2012, 12:00:57 PM
So... what will happen if the SC strikes down the mandates? What then?

Freedom wins

Quote from: Jacob on March 28, 2012, 12:00:57 PM
So... what will happen if the SC strikes down the mandates? What then?

I would think it would depend a lot of how much they strike down.  Do they strike down the mandate only, the mandate and the underwriting/pricing restrictions, or the whole law?  First one would be a disaster, second one would be bad, and the third one would be between the two.

Quote from: PDH on March 28, 2012, 12:04:40 PM

Quote from: Jacob on March 28, 2012, 12:00:57 PM
So... what will happen if the SC strikes down the mandates? What then?

Freedom wins

And Liberty.  You forgot Liberty, too.

Quote from: alfred russel on March 28, 2012, 09:15:46 AM
I don't get the fetish regarding this stuff.

You remember your Democrat talking points well. 

Quote from: CountDeMoney on March 28, 2012, 12:09:18 PM

Quote from: PDH on March 28, 2012, 12:04:40 PM

Quote from: Jacob on March 28, 2012, 12:00:57 PM
So... what will happen if the SC strikes down the mandates? What then?

Freedom wins

And Liberty.  You forgot Liberty, too.

Dammit. I knew I was forgetting something.

Quote from: The Minsky Moment on March 28, 2012, 10:28:24 AM

With that in mind, I would turn your question on its face.  There is no question that taken as a whole, the ACCA constitutes a regulation of interstate commerce under any possible rational post-1934 construction of that term.  Given that fact, why should it be a valid procedure to carve out and cherry pick individual pieces of a single comprehensive piece of legislation and test them under the Commerce Clause requirement as though they were free-standing and independent laws?  The simple fact is that the mandate is not free-standing and independent. It is an integral part of a single regulatory scheme and its specific purpose is to make that scheme work as designed.  To use the terms of McCulloch, it is the means employed to achieve a legitimate regulatory end, and one necessary and proper to that end.

Honest question:

OK, so if I understand this correctly, the argument here is that Obamacare is necessary and proper (assumed), and therefore it is not relevant whether or not particular portions are necessary and proper under the Constitution? As long as the whole is deemed so, the constituent parts are not separately contestable?

Quote from: DGuller on March 28, 2012, 12:07:25 PM

Quote from: Jacob on March 28, 2012, 12:00:57 PM
So... what will happen if the SC strikes down the mandates? What then?

I would think it would depend a lot of how much they strike down.  Do they strike down the mandate only, the mandate and the underwriting/pricing restrictions, or the whole law?  First one would be a disaster, second one would be bad, and the third one would be between the two.

Elaborate a bit, if you don't mind...

If they strike down the mandate only, it's a disaster... for whom? The insurance companies? Poor people who won't be covered anymore? Everybody who needs health care? Obama's election chances? The Federal budget?

In the case of striking down the mandate, the mandate and the underwriting/ pricing restrictions, or the whole law; where does disaster strike? Who's set to suffer? And what, if any, feasible actions could be taken to mitigate the disaster for the affected parties? Are the disasters so big that it would be political suicide not to respond, or does it make sense to let the disaster wreak havoc for certain parties? What are there likely Republican and Democratic responses or likely fixes to the problems/ disasters that will come in the wake of any of the three repeal scenarios you mention?

Quote from: derspiess on March 28, 2012, 12:11:48 PM

Quote from: alfred russel on March 28, 2012, 09:15:46 AM
I don't get the fetish regarding this stuff.

You remember your Democrat talking points well.

Well let's talk about GOP talking points then.
One of the principal conservative mantras about the Courts is the need to reign in "judicial activism."  And under most definitions of judicial activism, the high point in terms of activist deployment of judicial powers is the use of judicial review to strike down legislation enacted by the other two (democratically elected) branches of government.  There is even judicial recognition of that concept in the presumption of constitutionality that attaches to legislative acts.

Yet here we have a case where even severe critics admit that the indentical ends could have been achieved through constitutional means but nonetheless object that Congress failed to use the correct "magic words" to achive those objectives.  A semantic failure is being deployed to try to take down a carefully negotiated and devishly complex act of legislation that took months if not years to devise.  That IMO is not a posture that evinces much respect for Congress or displays much restraint in judicial action.

We also have a case where critics - such as Justice Scalia - appear to be conceding that while the mandate may be "necessary" to an otherwise constitutional regulation of interstate commerce, it nonetheless is not "proper".  But since McCullough, any means selected by Congress is proper unless it contravenes some other constitutional limitation on federal power.  Yet in the argument, Scalia could not identify any applicable constitutional limitation other than the general principle that the federal government is a government of enumerated powers - which is irrelevant to a case in which the challenged action is concededly enacted as a means for effectuating one of those enumerated powers.

the giveaway in the argument was the odd phenomenon of supposedly conservative justices like Alito and Scalia getting in the weeds of discussing the substantive merits of the law  as policy - eg the point where Alito questioned the cost-shifting efficacy and the degree of subsidization.  Or the point where Scalia argued that the "problem" was "self-created" and could be solved by "simply not requiring the insurance company to sell it to somebody" [with pre-existing conditions].  That starts to look a lot like the Supreme Court saying that the Necessary and Proper Clause can't be deployed if there is some alternative policy choice that the Justices prefer that wouldn't require the need to invoke the Clause.  Whatever was meant, it certainly doesn't look much like judicial restraint.

That's not what I think of when someone bleats about judicial activism. I think of courts finding powers not stated and finding laws constitutional on those grounds.

Quote from: MadImmortalMan on March 28, 2012, 01:29:14 PM
That's not what I think of when someone bleats about judicial activism. I think of courts finding powers not stated and finding laws constitutional on those grounds.

This is absolutely what someone means when they talk about judicial activism - striking down laws that were validly passed by elected politicians on narrow or dubious grounds.

Quote from: Barrister on March 28, 2012, 01:33:00 PM

Quote from: MadImmortalMan on March 28, 2012, 01:29:14 PM
That's not what I think of when someone bleats about judicial activism. I think of courts finding powers not stated and finding laws constitutional on those grounds.

This is absolutely what someone means when they talk about judicial activism - striking down laws that were validly passed by elected politicians on narrow or dubious grounds.

Uhhh, no, not really.

The grounds here are not dubious or narrow - they go straight to the basic question of what power the federal government has over the states and their citizens.

The power to FORCE someone to purchase health care is not assumed such that questioning it is "narrow or dubious". I can see the argument that this is in fact within the rather amazingly expanded scope of what the feds routinely do now, but I can see the counter argument as well, that is is not the same at all.

I see a *valid* bitch about judicial activism (and it is rather funny that when conservatives bitch about it Minsky and such argue that it is NOT, but now argue that it IS - I get the idea of the argument to point out that they are being hypocritical, but by definition if you accept that they were right enough such that NOT complaining now is hypocritical, you are also admitting that you are being just as hypocritical) as being the idea that a judge decides they don't like a law for whatever reason (like they are against abortion) that has nothing to do with its constitutionality and then fabricating something to strike it down.

Personally, I think it is a largely bullshit bitch about 99.5% of the time it is leveled, including this time. I think that while there is no doubt that justices have personal opinions that often line up with political ideologies, I think most of them operate in good faith as best they can.

Quote from: Berkut on March 28, 2012, 01:12:33 PM
Honest question:

OK, so if I understand this correctly, the argument here is that Obamacare is necessary and proper (assumed), and therefore it is not relevant whether or not particular portions are necessary and proper under the Constitution? As long as the whole is deemed so, the constituent parts are not separately contestable?

The argument is that Obamacare is a whole is a regulation of interstate commerce.  In particular the provisions relating preclusion of discrimination for pre-existing conditions, guaranteed issuance and community rating fall into that category.  The argument then is that regardless of whether the individual mandate is constitutional in itself as regulation of commerce, it is nonetheless still constitutional because it is necessary and proper to effectuate the rest of ACCA; i.e. absent the mandate, these other provisions will be ineffective or even counter-productive and would thwart the commercial regulatory objective of Congress.

Going back to McCullough, it's the same reasoning.  The objection in McCullough was that Congress didn't have the power to charter a banking corporation under state law, since the simple act of chatering a corporation under state law was not in itself a regulation of interstate commerce.  But Marshall pointed out that Congress' overall objective was to regulate interstate commerce  doing things like issuing standardized bank notes that would circulate across state lines, and facilitate the transfer of federal revenues across sate lines.  Chartering the bank under state law, while perhaps not itself interstate commerce, was an action designed to facilitate those objectives.  It may not have been the only means, or the best means, or even a particularly wise choice of means, so long as it was "appropriate"  and "plainly adapted" to the end objectives.  The policy analysis he left to the judgment of Congress.

The McCullough principle has very sweeping ramifications, especially when mated to the broadened concept of what can constitute "interstate commerce" in the wake of the New Deal and the vast expansion of interstate commercial activity over the course of the 20th and 21st centuries.  IMO part of what is going on here is people reacting with surprise to the practical application of those principles.  One doesn't need to start talking about "living" or adaptable constitutions to get to a recognition of a very wide breadth of federal power.  It is simply a function of the reality that commercial activity in the US has evolved in way perhaps not anticipated by the Founders, who lived their lives in an era where the vast majority of economic activity was conducted within the confines of a local community (much less beyond the boundaries on an entire state) and had little if any impact beyond it.

Quote from: Jacob on March 28, 2012, 01:15:15 PM

Quote from: DGuller on March 28, 2012, 12:07:25 PM

Quote from: Jacob on March 28, 2012, 12:00:57 PM
So... what will happen if the SC strikes down the mandates? What then?

I would think it would depend a lot of how much they strike down.  Do they strike down the mandate only, the mandate and the underwriting/pricing restrictions, or the whole law?  First one would be a disaster, second one would be bad, and the third one would be between the two.

Elaborate a bit, if you don't mind...

If they strike down the mandate only, it's a disaster... for whom? The insurance companies? Poor people who won't be covered anymore? Everybody who needs health care? Obama's election chances? The Federal budget?

In the case of striking down the mandate, the mandate and the underwriting/ pricing restrictions, or the whole law; where does disaster strike? Who's set to suffer? And what, if any, feasible actions could be taken to mitigate the disaster for the affected parties? Are the disasters so big that it would be political suicide not to respond, or does it make sense to let the disaster wreak havoc for certain parties? What are there likely Republican and Democratic responses or likely fixes to the problems/ disasters that will come in the wake of any of the three repeal scenarios you mention?

That's a lot of questions, and a lot of them are beyond my area of expertise, so I'm not speaking as a professional here.  Here is the executive summary:

1)  Only mandate repealed:

Individual health insurance market disappears.  Everyone who can't get covered by employers or the government is SOL.  Literally no one wins in this scenario.  Group health insurance provided by employers probably survives, but it's slowly disappearing on its own, as the increasing costs put pressure on employers.  This can be such a sudden disaster for the 9% currently insured by individual plans that it can force some political action.

2)  Mandate and underwriting restrictiosn repealed:

There are other useful parts to Obamacare, like for example insuring college graduates who lives with their parents and can't find a job.  However, the main goal of Obamacare would be destroyed.

3)  The whole law repealed:

We're back to status quo that is slowly but surely reaching epic fail status.  Something is going to give eventually, despite the best efforts of Republicans to convince their voters to vote against their interests, but the process of giving is going to be extremely painful.

Quote from: The Minsky Moment on March 28, 2012, 01:42:24 PM

Quote from: Berkut on March 28, 2012, 01:12:33 PM
Honest question:

OK, so if I understand this correctly, the argument here is that Obamacare is necessary and proper (assumed), and therefore it is not relevant whether or not particular portions are necessary and proper under the Constitution? As long as the whole is deemed so, the constituent parts are not separately contestable?

The argument is that Obamacare is a whole is a regulation of interstate commerce.  In particular the provisions relating preclusion of discrimination for pre-existing conditions, guaranteed issuance and community rating fall into that category.  The argument then is that regardless of whether the individual mandate is constitutional in itself as regulation of commerce, it is nonetheless still constitutional because it is necessary and proper to effectuate the rest of ACCA; i.e. absent the mandate, these other provisions will be ineffective or even counter-productive and would thwart the commercial regulatory objective of Congress.

So if in fact the entire thing being valid then justifies ignoring any potential constitutional issue with the parts and pieces, why does it matter if in fact the piece is even necessary? Why is it ok if the piece is necessary, but not proper?

If Congress decided that in order for Obamacare to work, it would be necessary for people to give up their right to freedom of speech, would that then be acceptable? It seems like this "principle" means that as long as Congress can argue that a particular item is needed, then literally anything goes. And the Court doesn't even have the right to argue that it isn't really needed at all, or there is a better way - "The policy analysis he left to the judgment of Congress."

How does this principle apply to other actions taken by the other branches of government that do not fall under the Commerce Clause? Why would it not apply to any exercise of power where the overall goal is necessary and proper, and hence the individual elements are no longer contestable?

What if they said "Well, we don't even know if it is necessary, but who cares? The pieces are not individually contestable as long as the whole is necessary and proper, so tough shit". Why should it have to be appropriate or plainly adapted? Why is the "necessary" part of necessary and proper still in play, but not the proper part?

Now that is an oversimplification worthy of note

Quote from: Berkut on March 28, 2012, 01:53:47 PM
If Congress decided that in order for Obamacare to work, it would be necessary for people to give up their right to freedom of speech, would that then be acceptable? It seems like this "principle" means that as long as Congress can argue that a particular item is needed, then literally anything goes. And the Court doesn't even have the right to argue that it isn't really needed at all, or there is a better way - "The policy analysis he left to the judgment of Congress."

At least up here, division of powers questions are treated very differently than Charter of Right questions, to the point that if you made this analogy with respect to a SCC decision it would be Marty-like.

Quote from: crazy canuck on March 28, 2012, 02:01:55 PM
Now that is an oversimplification worthy of note

How so?

Am I missing something important in the justification here?

It seems pretty simple to me - as long as Obamacare in its entirety is a valid expression of Congresses power to regulate Interstate Commerce, then at a minimum they have the power to violate any and all Constitutional limitations on their power as long as they can claim that is is necessary in order to achieve the overall goal. And it doesn't even have to be a good means of doing so, or the only means  just "a" means.

That seems rather alarming to me - it sounds like that effectively means there is no check on Congressional power, as long as they can come up with a token justification as it being about interstate Commerce. Now, that has been a problem for some time, and I guess at this point from a practical matter we simply do not enjoy Constitutional protection any longer, but simply hope for the best based on democratic protection. Which perhaps is what Minsky meant when he said people are concerned because they haven't fully understood the implications of this interpretation, even though it has been around for some time.

If that is the case, then I would fully support any Justice willing to use whatever means are within their power to change that interpretation, or at least limit its scope.

Quote from: Berkut on March 28, 2012, 02:08:43 PM

Quote from: crazy canuck on March 28, 2012, 02:01:55 PM
Now that is an oversimplification worthy of note

How so?

Am I missing something important in the justification here?

I believe so Berk.

As I understand it this is what we would call a "division of powers" issue.  It's not that governments can not mandate health insurance, its just a question of which level.

That's fundamentally different (and goes through a completely different analysis) than a violation of the Bill of Rights.

Quote from: Barrister on March 28, 2012, 02:06:14 PM

Quote from: Berkut on March 28, 2012, 01:53:47 PM
If Congress decided that in order for Obamacare to work, it would be necessary for people to give up their right to freedom of speech, would that then be acceptable? It seems like this "principle" means that as long as Congress can argue that a particular item is needed, then literally anything goes. And the Court doesn't even have the right to argue that it isn't really needed at all, or there is a better way - "The policy analysis he left to the judgment of Congress."

At least up here, division of powers questions are treated very differently than Charter of Right questions, to the point that if you made this analogy with respect to a SCC decision it would be Marty-like.

I think in the US the issue is that the two seems to be kind of mixed up.

Personally, I've always (right or wrong) considered the basic concept of limited government and individual rights to be of more fundamental value than questions of the powers of Congress (or the Executive or the Judicial). Since it seems clear to me that the primary purpose of the Consitution is to limit the power of the federal government, any argument that some law must be allowed to violate some individuals rights, or to give the government more power than that enumerated because otherwise they cannot expres the powers that ARE enumerated in the fashion they would like is met with pretty extreme skepticism.

After all, if that basic argument is valid, it kind of kills any real concept of a government of enumerated powers at all, right? You cannot say the government can only do X, Y, and Z, and *specifically* state that anything not enumerated is NOT in their power, if you then say "Oh, by the way, as long as they make a token claim that A, B, and C are kinda sorta necessary to achieve X, Y, and Z, then they can do anything they like...". And since we don't differentiate between the federal government taking on powers not enumerated to them and them violating basic civil rights, they can do the latter as easily as the former.

Quote from: MadImmortalMan on March 28, 2012, 01:29:14 PM
That's not what I think of when someone bleats about judicial activism. I think of courts finding powers not stated and finding laws constitutional on those grounds.

This.

Courts overturning legislation is not activism, it's their job.

Quote from: Barrister on March 28, 2012, 02:12:02 PM

Quote from: Berkut on March 28, 2012, 02:08:43 PM

Quote from: crazy canuck on March 28, 2012, 02:01:55 PM
Now that is an oversimplification worthy of note

How so?

Am I missing something important in the justification here?

I believe so Berk.

As I understand it this is what we would call a "division of powers" issue.  It's not that governments can not mandate health insurance, its just a question of which level.

That's fundamentally different (and goes through a completely different analysis) than a violation of the Bill of Rights.

But the argument here is that a mandate might not be in and of itself constitutional,but since it is a part of a otherwise consitutional law, it cannot be challenged on its own.

There is no division in the US between Bill of Rights issues and powers - they are all derived from the same document. And if you can violate the COnsitution in the particular in regards to taking on powers you don't have in order to further some overall goal, then you can most certainly choose to ignore the Bill of Rights in the particular as well.

I think.

In other words, if you can Constitutionally force me to buy insurance as long as you argue that it is necessary in order to regulate the health industry, then you can Constitutionally force me to testify against myself, or throw me in jail if I speak out against your health care plan, as long as you make the case that doing so is necessary in order to make your otherwise COnsitutional plan work.

And according to MM, you don't even have to argue that it is a good idea, or the best way, or even necessary - just that it is "plainly applicable".

Now, I don't think those things are going to happen...really. Because we are protected from them by a political process as well. But it does mean that if that is correct, then we no longer enjoy Constitutional protection - only political. Which I suppose one can (and plenty of people have) argued for a long time that that is exactly what has happened since what - the Civil War?

I've always been on the other side of that argument mostly, but now I wonder if in fact I was mistaken.

I heard Kennedy make a statement that surprised me. He said something to the effect that they are supposed to assume a law is constitutional by default when examining a case. My admittedly proletarian reading of the constitution would assume the opposite--that all laws carry with them the burden of positively asserting constitutionality. Where does this come from and why am I wrong?

Quote from: Berkut on March 28, 2012, 02:17:14 PM
And since we don't differentiate between the federal government taking on powers not enumerated to them and them violating basic civil rights, they can do the latter as easily as the former.

I find that assertion to be highly dubious, but US constituional law is not my area of expertise so I'll let it go at that.

As I said - in Canada they are treated very differently.

Quote from: Berkut on March 28, 2012, 02:08:43 PM

Quote from: crazy canuck on March 28, 2012, 02:01:55 PM
Now that is an oversimplification worthy of note

How so?

Am I missing something important in the justification here?

Yes,

I will repeat what Minsky has already said in a couple of ways but this one part should answer your question.

QuoteIt may not have been the only means, or the best means, or even a particularly wise choice of means, so long as it was "appropriate"  and "plainly adapted" to the end objectives.  The policy analysis he left to the judgment of Congress.

In other words your fear that "the Court doesn't even have the right to argue that it isn't really needed at all, or there is a better way" is not well founded.

On the authorities JR cited it appears the party opposing would always have the ability to argue that a particular provision was not appropriate and plainly adapted to the end objectives.
What you are missing is that the Court will not, or should not, go further and inquire whether it was the best method.  That is a policy decision that should be left to the government.  The analysis is not all different from the division of powers type argument you would find here which BB has explained.

Quote from: Admiral Yi on March 28, 2012, 02:20:21 PM

Quote from: MadImmortalMan on March 28, 2012, 01:29:14 PM
That's not what I think of when someone bleats about judicial activism. I think of courts finding powers not stated and finding laws constitutional on those grounds.

This.

Courts overturning legislation is not activism, it's their job.

There could be no better battle cry for the forces of judicial activism.  The job of the Court is to apply the law, not overturn it. :P

Quote from: Admiral Yi on March 28, 2012, 02:20:21 PM
Courts overturning legislation is not activism, it's their job.

That isn't quite accurate as a blanket statement.  The job of courts is to decide cases and interpret the law.  If you totalled up all the case filings in the federal court system and looked at the number of cases where challenging constitutionality of legislation was even raised, it would be a lot less then 1 percent.  Even at the Supreme Court level, only a fraction of docket involves constitutional challenges to the validity of legislation; statutory interpretation is more common.  The power of judicial review is and always has been the subject of controversy.  There are legal scholars and commentators today who question the validity of Marbury and the power, and even more that advocate its limitation. 

Personally I think Marbury is sound, and I don't have a problem with judicial review but traditionally the principle that courts should exercise restraint in exercising that power and give due deference to the constitutional views of coordinate braches is a key component of the critique of "activism".

Quote from: Berkut on March 28, 2012, 02:23:50 PM
In other words, if you can Constitutionally force me to buy insurance as long as you argue that it is necessary in order to regulate the health industry, then you can Constitutionally force me to testify against myself, or throw me in jail if I speak out against your health care plan, as long as you make the case that doing so is necessary in order to make your otherwise COnsitutional plan work.

No you couldn't.  Even if Congress could come up with some rationale for why forcing people to testify against themselves is a "necessary" means for achieving some regulatory purpose within the scope of federal enumerated powers, it wouldn't be "proper" because the 5th Amendment forbids it.   That's a big reason why we have a Bill of Rights, because even the founding generation understood that simply putting limits on enumerated powers might not be sufficient to protect key rights.

Quote from: MadImmortalMan on March 28, 2012, 02:24:10 PM
I heard Kennedy make a statement that surprised me. He said something to the effect that they are supposed to assume a law is constitutional by default when examining a case. My admittedly proletarian reading of the constitution would assume the opposite--that all laws carry with them the burden of positively asserting constitutionality. Where does this come from and why am I wrong?

I can't answer definitively, but I would think out of simple deference to the other branches of government.  No level is supposed to be superior to an other, so it makes sense the starting assumption is that either the legislature or executive is operating constitutionally unless shown otherwise.

I do know in Canada that if you assert a law is unconstitutional it is up to the party making that assertion to prove it.  However, if it has been found that a law violates a part of the constitution, the burden then shifts to the government to demonstrate whether it can be "saved" by reference to other constitutional principles.

Quote from: The Minsky Moment on March 28, 2012, 02:37:42 PM
That isn't quite accurate as a blanket statement.

It isn't at all accurate if you interpret "it's their job" as "it's their sole job."

Quote from: The Minsky Moment on March 28, 2012, 02:44:29 PM

Quote from: Berkut on March 28, 2012, 02:23:50 PM
In other words, if you can Constitutionally force me to buy insurance as long as you argue that it is necessary in order to regulate the health industry, then you can Constitutionally force me to testify against myself, or throw me in jail if I speak out against your health care plan, as long as you make the case that doing so is necessary in order to make your otherwise COnsitutional plan work.

No you couldn't.  Even if Congress could come up with some rationale for why forcing people to testify against themselves is a "necessary" means for achieving some regulatory purpose within the scope of federal enumerated powers, it wouldn't be "proper" because the 5th Amendment forbids it.   That's a big reason why we have a Bill of Rights, because even the founding generation understood that simply putting limits on enumerated powers might not be sufficient to protect key rights.

But you said that it doesn't matter if it is proper, as long as it is only a part of an overall larger goal that IS proper.

Isn't this exactly what is being argued here - that the mandate portion is not proper?

I am definitely confused now - I thought your argument was that it didn't matter if some part was proper as long as the whole was proper and that part was deemed necessary to the whole.

Quote from: Berkut on March 28, 2012, 02:52:41 PM
I am definitely confused now -

Sounds like you're qualified to become Solicitor General then.  :lol:

Quote from: Admiral Yi on March 28, 2012, 02:50:42 PM

Quote from: The Minsky Moment on March 28, 2012, 02:37:42 PM
That isn't quite accurate as a blanket statement.

It isn't at all accurate if you interpret "it's their job" as "it's their sole job."

It's a small part of their job and there has been controversy about whether it should be part of the job at all.  Questioning whether judicial review can be deemed activism because courts in fact do it begs the questions of whether they should be in the business of doing it in the first place and whether if they are in that business, they should approach it in a conservative, restrained manner.

Quote from: CountDeMoney on March 28, 2012, 02:54:17 PM
Sounds like you're qualified to become Solicitor General then.  :lol:

Sounds like someone read the transcript after their FIVETOFOURFIVEFOUR ACORNACORN rant. :ph34r:

Quote from: Admiral Yi on March 28, 2012, 02:56:21 PM

Quote from: CountDeMoney on March 28, 2012, 02:54:17 PM
Sounds like you're qualified to become Solicitor General then.  :lol:

Sounds like someone read the transcript after their FIVETOFOURFIVEFOUR ACORNACORN rant. :ph34r:

:unsure:  :ph34r:

Quote from: The Minsky Moment on March 28, 2012, 02:44:29 PM

Quote from: Berkut on March 28, 2012, 02:23:50 PM
In other words, if you can Constitutionally force me to buy insurance as long as you argue that it is necessary in order to regulate the health industry, then you can Constitutionally force me to testify against myself, or throw me in jail if I speak out against your health care plan, as long as you make the case that doing so is necessary in order to make your otherwise COnsitutional plan work.

No you couldn't.  Even if Congress could come up with some rationale for why forcing people to testify against themselves is a "necessary" means for achieving some regulatory purpose within the scope of federal enumerated powers, it wouldn't be "proper" because the 5th Amendment forbids it.   That's a big reason why we have a Bill of Rights, because even the founding generation understood that simply putting limits on enumerated powers might not be sufficient to protect key rights.

So just a few posts above Berkut said:

QuoteAnd since we don't differentiate between the federal government taking on powers not enumerated to them and them violating basic civil rights, they can do the latter as easily as the former.

to which I expressed my scepticism.

Minsky appears to confirm my skepticism by saying that you do in fact differentiate between debates on enumerated powers, and debates on basic civil rights.

Quote from: CountDeMoney on March 28, 2012, 02:54:17 PM

Quote from: Berkut on March 28, 2012, 02:52:41 PM
I am definitely confused now -

Sounds like you're qualified to become Solicitor General then.  :lol:

:D

Quote from: Barrister on March 28, 2012, 02:59:24 PM

Quote from: The Minsky Moment on March 28, 2012, 02:44:29 PM

Quote from: Berkut on March 28, 2012, 02:23:50 PM
In other words, if you can Constitutionally force me to buy insurance as long as you argue that it is necessary in order to regulate the health industry, then you can Constitutionally force me to testify against myself, or throw me in jail if I speak out against your health care plan, as long as you make the case that doing so is necessary in order to make your otherwise COnsitutional plan work.

No you couldn't.  Even if Congress could come up with some rationale for why forcing people to testify against themselves is a "necessary" means for achieving some regulatory purpose within the scope of federal enumerated powers, it wouldn't be "proper" because the 5th Amendment forbids it.   That's a big reason why we have a Bill of Rights, because even the founding generation understood that simply putting limits on enumerated powers might not be sufficient to protect key rights.

So just a few posts above Berkut said:

QuoteAnd since we don't differentiate between the federal government taking on powers not enumerated to them and them violating basic civil rights, they can do the latter as easily as the former.

to which I expressed my scepticism.

Minsky appears to confirm my skepticism by saying that you do in fact differentiate between debates on enumerated powers, and debates on basic civil rights.

But just a few posts above that Minsky said:

QuoteThe argument then is that regardless of whether the individual mandate is constitutional in itself as regulation of commerce, it is nonetheless still constitutional because it is necessary and proper to effectuate the rest of ACC

Can we not replace "individual mandate" with "force to testify against yourself" in his statement?

Saying that "it is different' doesn't make it so. The Bill of Rights does not say that the 5th is somehow more special than the 10th.

Quote from: Berkut on March 28, 2012, 02:52:41 PM
But you said that it doesn't matter if it is proper, as long as it is only a part of an overall larger goal that IS proper.

Isn't this exactly what is being argued here - that the mandate portion is not proper?

I am definitely confused now - I thought your argument was that it didn't matter if some part was proper as long as the whole was proper and that part was deemed necessary to the whole.

"Necessary" means that the measure in question is reasonably oriented towards achieving the objective set forth by Congress, and the objective has to be within enumerated powers (like regulation of IC)

"Proper" means that the measure in question doesn't otherwise violate the Constitution.

Using the McCullough example - the act of chartering a state law corporation may not in itself be interstate commerce, but it is "necessary" in that it facilitates the objective of regulating interstate commerce.  It is "proper" because the act of chartering a corporation does not otherwise violate any constitutional prohibition. 

Now let's imagine a hypothetical where Congress in 1816 decided to effectuate the interstate transfer of federal revenues by enacting legislation permitting federal officers to commandeer and seize private conveyances without compensation to carry specie or notes across state lines.  Now that would still be "necessary" in the McCullough sense of being enacted for the purpose of effectuating a valid Congressional purpose.  But it would not be proper because uncompensated takings of private property are forbidden by the 5th amendment.

Isn't the current question whether or not the mandate is proper? I thought you were arguing that it did not matter if it was or not. That it could in fact be unconstitutional on its own, (ie not proper) but as long as it was necessary, then it did not matter.

The argument being made is that the state does not have the power to mandate that private citizens purchase health coverage - that it is not in fact proper. I can understand the argument that it is in fact proper, I do not understand the argument that it isn't even a valid question to be raised.

I appreciate your helping explain this, btw. I don't think CC and Beebs understand the point either though - I don't think this has anything to do with there being a difference in how the Court does or should treat one Bill of Right vice another.

Marshall's famous formulation actually sets that out elegantly if you parse it out.  ". Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional"

So, the requirements for an act to be constitutional are:
1.  The ultimate "end" or objective must be within the scope of the enumerated powers under the Constitution,
2.  The means selected by Congress must be "plainly adapted to that end," and
3.  The means selected by Congress are not otherwise prohibited by the Constitution.

Satisfy all 3 and you are clear.  So the "testify against yourself law" wouldn't work because even if it somehow satisfied 1 and 2, it would fail 3.

Quote from: The Minsky Moment on March 28, 2012, 03:18:15 PM
Marshall's famous formulation actually sets that out elegantly if you parse it out.  ". Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional"

So, the requirements for an act to be constitutional are:
1.  The ultimate "end" or objective must be within the scope of the enumerated powers under the Constitution,
2.  The means selected by Congress must be "plainly adapted to that end," and
3.  The means selected by Congress are not otherwise prohibited by the Constitution.

Satisfy all 3 and you are clear.  So the "testify against yourself law" wouldn't work because even if it somehow satisfied 1 and 2, it would fail 3.

OK, I get that.

That is how I thought it always worked.

So why is there an argument, put forth by you (I thought) that the current debate is not legitimate, because it did not matter if the mandate was unconstitutional - that effectively 3 does not apply?

"The argument then is that regardless of whether the individual mandate is constitutional in itself as regulation of commerce, it is nonetheless still constitutional because it is necessary and proper to effectuate the rest of ACC..."

Just checked Intrade, latest price is 63.9 (+8.9).  Does the price equate to a straight percentage, or do you need to do some kind of transformation to derive a percentage chance?

Quote from: Admiral Yi on March 28, 2012, 03:29:40 PM
Just checked Intrade, latest price is 63.9 (+8.9).  Does the price equate to a straight percentage, or do you need to do some kind of transformation to derive a percentage chance?

Yes, the price as you state it is equal to the odds.  If it's in dollars, then you have to multiply by 10 (since one share is $10, not $100).

Quote from: MadImmortalMan on March 28, 2012, 02:24:10 PM
My admittedly proletarian reading of the constitution would assume the opposite--that all laws carry with them the burden of positively asserting constitutionality. Where does this come from and why am I wrong?

You would have a very odd system indeed if the presumption was that all law was invalid until a court found otherwise.  The presumption is the other way around.

Quote from: Berkut on March 28, 2012, 03:16:54 PM
Isn't the current question whether or not the mandate is proper?

Proper is being used in the thread in two senses.  In a common English language sense, one can ask whether the mandate is "proper" in the sense of whether it is constitutional - in that sense it addresses the ultimate question.

"Proper" is also being used in the narrower sense of what is entailed by the specific clause of the Constitution that gives Congress the power to enact any measure "Necessary and Proper" to achieve its other specifically enumerated powers.  McCullough holds that "Proper" in this sense is just a limitation on trying to use the N&P clause to end run around other prohibitions like the Bill of Rights.

Quote from: Berkut on March 28, 2012, 03:24:31 PM
So why is there an argument, put forth by you (I thought) that the current debate is not legitimate, because it did not matter if the mandate was unconstitutional - that effectively 3 does not apply?

"The argument then is that regardless of whether the individual mandate is constitutional in itself as regulation of commerce, it is nonetheless still constitutional because it is necessary and proper to effectuate the rest of ACC..."

I apologize for the ambiguity in the statement.
What I meant is that even if the individual mandate in itself is not a regulation of commerce, it still can be within the power of Congress to enact if doing so is"plainly adapted" to effectuate the other parts of the law which are in themselves regulations of commerce.  And that statement would not be true if there were another part of the Constitution that forbid it.

OK, thanks for the clarification.

So Joan, would it be fair to say that in your view the only real limit on Congress' power under the Commerce Clause is the Bill of Rights?

Quote from: Admiral Yi on March 28, 2012, 04:16:34 PM
So Joan, would it be fair to say that in your view the only real limit on Congress' power under the Commerce Clause is the Bill of Rights?

I wouldn't go that far.  The Supreme Court struck down laws on a Commerce Clause challenge in both Lopez and Morrison - namely that there has to be substantial and not attenuated effects on interstate commerce (as opposed to local).  The limitations that those cases impose on Congressional action would not be undone by upholding the mandate - to the extent the mandate is a regulation of commerce or Necessary and Proper to such regulation, the effects on interstate commerce are enormous and not attenuated.

On the flip side, I would present to you the following language:

QuoteAs we implicitly acknowledged in Lopez, however, Congress's authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws directed against economic activities that have a substantial effect on interstate commerce. Though the conduct in Lopez was not economic, the Court nevertheless recognized that it could be regulated as "an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated."  . . . [A]s the passage from Lopez quoted above suggests, Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce. See Lopez, supra, at 561. The relevant question is simply whether the means chosen are "reasonably adapted" to the attainment of a legitimate end under the commerce power. See Darby, supra, at 121.

That passage would fit quite nicely in a brief defending the mandate.

In fact it is a direct quotation of the concurring opinion of Justice Scalia in Gonzales v. Raich

OK.  Although I would like to point out that that test would serve to amplify rather than limit power.  Congress can regulate behavior, but only on the big things.

Quote from: crazy canuck on March 28, 2012, 03:43:27 PM

Quote from: MadImmortalMan on March 28, 2012, 02:24:10 PM
My admittedly proletarian reading of the constitution would assume the opposite--that all laws carry with them the burden of positively asserting constitutionality. Where does this come from and why am I wrong?

You would have a very odd system indeed if the presumption was that all law was invalid until a court found otherwise.  The presumption is the other way around.

Yeah.  It would make every law somehow doubtful until a court had ruled that it was valid.  It would make the courts the predominant branch of the government.

One thing I was thinking today - and I know nothing about the US Constitution and the law - but if they rule that it's unconstitutional would it open up lots of other questions under the commerce clause?  Would it effect just this law or would there, in effect, be a new limit under the commerce clause for the Court to explain? :mellow:

I think the assertion is that the purchase requirement is something never done before and unprecedented, so I'd say there is little chance of it affecting any earlier legislation.

That's the way I see it.

Quote from: Sheilbh on March 28, 2012, 05:33:19 PM
Would it effect just this law or would there, in effect, be a new limit under the commerce clause for the Court to explain? :mellow:

If they strike it down, they will have to articulate why they struck it down. Their reasoning may or may not implicate other legislation.

Quote from: MadImmortalMan on March 28, 2012, 05:46:48 PM
I think the assertion is that the purchase requirement is something never done before and unprecedented, so I'd say there is little chance of it affecting any earlier legislation.

Again I could be wrong but my understanding was that the orthodox constitutional view was that the commerce clause more or less allowed the Federal government to regulate any economic or social activity.  For example I understand that the Civil Rights Act involved a commerce clause argument and was upheld.  So the Federal government was allowed to dictate what individuals could do with their private property.  Similarly I believe consumer rights and environmental laws are underpinned by it.

So the argument against Obamacare isn't entirely that the requirement to purchase is a novel extension of the commerce clause, but that it's the Federal government creating an economic market to regulate.  It's not regulating economic or social activity, but inactivity, which is novel (that's what I got from a couple of the points Kennedy made anyway). 

Given that and the raft of rulings and regulations upheld and supported by the commerce clause I'm just unsure what the effect would be.  Presumably the Court would want to have quite a narrow ruling to minimise the chances of opening the floodgates and putting lots of legislation in doubt, but is that possible?  But it would still seem to leave a fair amount of room for challenges, which would then depend on lower courts' interpretations of the ruling in this case.  Is there a possibility this could start to limit the commerce clause a bit more generally?

I'm not saying this is a reason the Court should rule one way or the other.  I don't have an opinion and they should clearly rule in the way they believe to be constitutional, I'm just curious what the consequences would be beyond Obamacare itself.

What we're all saying Shelf is that there isn't any precedent for regulating inactivity so nothing to challenge if it is found that inactivity cannot be regulated under the Commerce Clause.

Quote from: Admiral Yi on March 28, 2012, 07:16:03 PM
What we're all saying Shelf is that there isn't any precedent for regulating inactivity so nothing to challenge if it is found that inactivity cannot be regulated under the Commerce Clause.

Shelbh mentioned the civil rights legislation, upheld on commerce clause grounds in Heart of Altanta Motel.  That was a regulation of refusing to engage in a commercial act.

Quote from: The Minsky Moment on March 28, 2012, 07:20:52 PM
Shelbh mentioned the civil rights legislation, upheld on commerce clause grounds in Heart of Altanta Motel.  That was a regulation of refusing to engage in a commercial act.

Running a motel is commercial activity.

Choosing to not open a motel would be inactivity.

Quote from: Admiral Yi on March 28, 2012, 07:23:49 PM

Quote from: The Minsky Moment on March 28, 2012, 07:20:52 PM
Shelbh mentioned the civil rights legislation, upheld on commerce clause grounds in Heart of Altanta Motel.  That was a regulation of refusing to engage in a commercial act.

Running a motel is commercial activity.

Choosing to not open a motel would be inactivity.

Couldn't you say that using health care is a commercial activity, and since everyone uses health care over the course of their life it falls within the Commerce Clause?

There's no one who uses no health care in their entire life. Thus everyone is engaging in the commercial activity, and it's perfectly fine for the government to regulate how they do so.

It was nice to read this thread, lots of good information and none of the usual bullshit and silliness that are so common here to ruin it .  I learned quite a bit.

Quote from: Berkut on March 28, 2012, 08:15:21 AM
I keep hearing people say that Obamacare cannot work without the mandate.

Now, if that is true or not, is it at all relevant to whether or not the mandate is Constitutional? If we assume that it is true, for example, that doesn't make it acceptable, right? The Constitutional restriction of limited government powers is not simply removed or set aside because some law won't work if we don't give the federal government powers otherwise not enumerated to it.

I don't really understand that argument's applicability to the question.

Isn't it more of a "can we just strike down the mandate or do we have to ice the whole thing as well" more than "we can't strike down just the mandate because that  will ruin the whole program. 

Quote from: Jacob on March 28, 2012, 07:29:46 PM
Couldn't you say that using health care is a commercial activity, and since everyone uses health care over the course of their life it falls within the Commerce Clause?

There's no one who uses no health care in their entire life. Thus everyone is engaging in the commercial activity, and it's perfectly fine for the government to regulate how they do so.

You could.  Earlier in this thread I stated that inevitable future activity is an argument I thought the yes guy should have a done a better job of elaborating.

To answer one of my own previous questions I think the yes guy could have proposed a Commerce Clause limitation test built around the unique moral hazard of hospital emergency rooms.

Quote from: Admiral Yi on March 28, 2012, 07:16:03 PM
What we're all saying Shelf is that there isn't any precedent for regulating inactivity so nothing to challenge if it is found that inactivity cannot be regulated under the Commerce Clause.

Okay, I thought you were saying about the purchase requirement which is different.

So Congress has, for example, made it illegal for someone to allow another person to use their phone to make harassing calls.  That seems like regulating inactivity.  Similarly prohibiting a restaurant from not serving minority customers, or requiring certain vaccinations, or bring goods to market, or laws related to possessing (not buying) pot seem to me to regulate inactivity.

If you are allowed to make laws that prohibit inactivity and are not constitutionally forbidden then why should that not apply to the commerce clause under the necessary and proper thing that MM explained.  That it's unprecedented doesn't necessarily mean a great deal, if it's not prohibited.

I think you could have a ruling that says Congress can regulate inactivity, it has in other spheres, and it's necessary and proper but there are limits to or problems with a requirement to buy which are different.  That seems the implication in one of Kennedy's questions that if you accept that no-one is outside the healthcare market then you're really asking what sorts of regulations are permissible.

Obviously again I'm ignorant of US law including your constitution and foreign ways.

QuoteCouldn't you say that using health care is a commercial activity, and since everyone uses health care over the course of their life it falls within the Commerce Clause?

There's no one who uses no health care in their entire life. Thus everyone is engaging in the commercial activity, and it's perfectly fine for the government to regulate how they do so.

That's the government's argument.

But then I wonder how wide that is.  Surely the same argument could be used to justify a lot of environmental regulations?

Quote from: sbr on March 28, 2012, 07:38:09 PM
It was nice to read this thread, lots of good information and none of the usual bullshit and silliness that are so common here to ruin it .  I learned quite a bit.

On this subject I think this is the least partisan 'yoo-bah' thread on the internet :lol:

I don't see how the things you listed qualify as inactivity Shelf.

edit: Except vaccinations.  Which I think fall under state law but that's a guess.  Anyone know?

Quote from: sbr on March 28, 2012, 07:38:09 PM
It was nice to read this thread, lots of good information and none of the usual bullshit and silliness that are so common here to ruin it .  I learned quite a bit.

Pft.  I don't post in a thread and it gets rave reviews. <_<

Quote from: Berkut on March 28, 2012, 03:07:38 PM


Saying that "it is different' doesn't make it so. The Bill of Rights does not say that the 5th is somehow more special than the 10th.

Hasn't the 10th been treated like that for a long time? When was the last time there was a successful constitutional challenge of a law on 10th amendment grounds?

Quote from: Berkut on March 28, 2012, 02:23:50 PM
But it does mean that if that is correct, then we no longer enjoy Constitutional protection - only political.

The president and congress take oaths of office to uphold the constitution, in addition to the USSC. If we moved to the older french model without judicial review of legislative acts, we wouldn't lose constitutional protections. Only rather than 4 checks on constitutionality (house, senate, president, courts) we would only have 3.

Quote from: Admiral Yi on March 28, 2012, 08:01:30 PM
I don't see how the things you listed qualify as inactivity Shelf.

How so? 

Another example would be the draft.

Quoteedit: Except vaccinations.  Which I think fall under state law but that's a guess.  Anyone know?

I'd guess so, but probably not in a national emergency.

QuoteBut it does mean that if that is correct, then we no longer enjoy Constitutional protection - only political.

You'd be like Britain.  Welcome :hug: :P

Quote from: Sheilbh on March 28, 2012, 08:29:33 PM
How so? 

Because they all involve action verbs?

QuoteAnother example would be the draft.

Better.  I think the counterargument here is the specific language of the Commerce Clause.

When's the ruling expected? A matter of days? Months? Tomorrow?

Quote from: Jacob on March 28, 2012, 11:56:30 PM
When's the ruling expected? A matter of days? Months? Tomorrow?

I think it's expected by the end of this Court term.  So June-ish.

Quote from: Admiral Yi on March 28, 2012, 08:34:27 PM

Quote from: Sheilbh on March 28, 2012, 08:29:33 PM
How so? 

Because they all involve action verbs?

QuoteAnother example would be the draft.

Better.  I think the counterargument here is the specific language of the Commerce Clause.

I think Yi's right. After all in the first two, the person would be actively making harassing calls and the store owner would be actively discriminating against minorities.

Quote from: Sheilbh on March 29, 2012, 12:45:23 AM

Quote from: Jacob on March 28, 2012, 11:56:30 PM
When's the ruling expected? A matter of days? Months? Tomorrow?

I think it's expected by the end of this Court term.  So June-ish.

More like July.

It takes them that long to count to five and four? :rolleyes:

Quote from: Sheilbh on March 28, 2012, 07:55:06 PM

Quote from: sbr on March 28, 2012, 07:38:09 PM
It was nice to read this thread, lots of good information and none of the usual bullshit and silliness that are so common here to ruin it .  I learned quite a bit.

On this subject I think this is the least partisan 'yoo-bah' thread on the internet :lol:

I think most of the conservatives here are smart enough to realize that if this does get struck down then there's really no plan for fixing anything in the health care system, and most of the liberals here are smart enough to have grave reservations about the stupider elements of the law.

Quote from: DGuller on March 29, 2012, 08:05:24 AM
It takes them that long to count to five and four? :rolleyes:

Nah, they vote practically immediately; the written decision doesn't come out until June or July.

Quote from: CountDeMoney on March 29, 2012, 08:16:54 AM

Quote from: DGuller on March 29, 2012, 08:05:24 AM
It takes them that long to count to five and four? :rolleyes:

Nah, they vote practically immediately; the written decision doesn't come out until June or July.

Yeah, they vote 5-4 now, and then spend the next few months thinking of the reasons.

Quote from: Admiral Yi on March 28, 2012, 08:01:30 PM
I don't see how the things you listed qualify as inactivity Shelf.

edit: Except vaccinations.  Which I think fall under state law but that's a guess.  Anyone know?

I don't, but another case occurred to me which is Wickard v. Fillburn, where the Court upheld a regulation that applied a penalty to growing excess wheat (over quota amounts) even though the farmer in question didn't seek to sell the wheat, but use it for consumption on the farm.  The Court upheld the regulation on the grounds that wheat consumed on the farm could nonetheless ultiamtely have a causal impact on the larger market for wheat (by reducing the demand that otherwise would exist in the absence of that wheat).

Quote from: garbon on March 29, 2012, 07:56:47 AMI think Yi's right. After all in the first two, the person would be actively making harassing calls and the store owner would be actively discriminating against minorities.

The first one isn't making the calls, they're allowing their phone to be used for the call to be made.  It doesn't have to be actively granting permission, just failing to stop the calls being made which is criminal.  That's precisely the novelty Kennedy points out.  Generally you're under no duty to stop a blind man walking off a cliff, assuming the principles are the same in criminal law you generally can't be prosecuted for not doing something.

There are exceptions though which do require activity - such as the telephone law.

Quote from: Sheilbh on March 29, 2012, 12:05:31 PM

Quote from: garbon on March 29, 2012, 07:56:47 AMI think Yi's right. After all in the first two, the person would be actively making harassing calls and the store owner would be actively discriminating against minorities.

The first one isn't making the calls, they're allowing their phone to be used for the call to be made.  It doesn't have to be actively granting permission, just failing to stop the calls being made which is criminal.  That's precisely the novelty Kennedy points out.  Generally you're under no duty to stop a blind man walking off a cliff, assuming the principles are the same in criminal law you generally can't be prosecuted for not doing something.

There are exceptions though which do require activity - such as the telephone law.

Aiding and abetting by knowingly providing access to a phone?

Quote from: The Minsky Moment on March 29, 2012, 11:47:39 AM
I don't, but another case occurred to me which is Wickard v. Fillburn, where the Court upheld a regulation that applied a penalty to growing excess wheat (over quota amounts) even though the farmer in question didn't seek to sell the wheat, but use it for consumption on the farm.  The Court upheld the regulation on the grounds that wheat consumed on the farm could nonetheless ultiamtely have a causal impact on the larger market for wheat (by reducing the demand that otherwise would exist in the absence of that wheat).

This one was mentioned during oral arguments.  (BTW have you read it?)  This falls in the same pattern as your motel.  Growing wheat is a commercial activity.

Makes me wonder how the wheat case itself came to exist. Did they have wheat nazis going around counting farmers bales or something?   :P

Quote from: Admiral Yi on March 29, 2012, 02:29:51 PM
Growing wheat is a commercial activity.

Growing wheat is not any more a commercial activity in itself than my growing flowers in my backyard.  It's only a commercial activity if the wheat enters into commerce.

Quote from: The Minsky Moment on March 29, 2012, 02:45:47 PM
Growing wheat is not any more a commercial activity in itself than my growing flowers in my backyard.  It's only a commercial activity if the wheat enters into commerce.

And I doubt the case would have been judged the same way if McCullough had been growing wheat only for personal use.

Quote from: garbon on March 29, 2012, 12:09:25 PM
Aiding and abetting by knowingly providing access to a phone?

That's not the crime though.  This is a point made on the Volokh Conspiracy blog, which is run by law professors - most of them seem fairly libertarian and generally seem of the view that Obamacare's unconstitutional - and always worth reading.

One of them cites a a Federal telecom harassment statute - which has been upheld under the commerce clause - and it largely regulates sending obscene images, or harassing people over state boundaries.  But it also has a section that prohibits 'permit[ing] any telephone facility under such person's control to be used for an activity prohibited'.

That section has no intent requirement, there's no knowledge requirement (another section prohibits 'knowingly permitting') and the 'act' is not intervening to stop someone from doing something.  The crime isn't doing something but failing to stop someone else from doing something, it has no intent requirement.  That to me looks like regulating inactivity. 

I can't see the difference between not buying health insurance and not stopping someone from doing something.  I agree with MM's point on the farmer growing for personal consumption, I don't see the distinction between him not being allowed to do that and someone with a smallholding not being allowed to do it.

Quote from: Sheilbh on March 29, 2012, 03:08:07 PM

Quote from: garbon on March 29, 2012, 12:09:25 PM
Aiding and abetting by knowingly providing access to a phone?

That's not the crime though.  This is a point made on the Volokh Conspiracy blog, which is run by law professors - most of them seem fairly libertarian and generally seem of the view that Obamacare's unconstitutional - and always worth reading.

One of them cites a a Federal telecom harassment statute - which has been upheld under the commerce clause - and it largely regulates sending obscene images, or harassing people over state boundaries.  But it also has a section that prohibits 'permit[ing] any telephone facility under such person's control to be used for an activity prohibited'.

That section has no intent requirement, there's no knowledge requirement (another section prohibits 'knowingly permitting') and the 'act' is not intervening to stop someone from doing something.  The crime isn't doing something but failing to stop someone else from doing something, it has no intent requirement.  That to me looks like regulating inactivity. 

I can't see the difference between not buying health insurance and not stopping someone from doing something.  I agree with MM's point on the farmer growing for personal consumption, I don't see the distinction between him not being allowed to do that and someone with a smallholding not being allowed to do it.

You missed the bit that the section is suboordinated too. Bold font is mine.

http://www.law.cornell.edu/uscode/text/47/223

Quote(1) Whoever knowingly—
(A) within the United States, by means of telephone, makes (directly or by recording device) any obscene communication for commercial purposes to any person, regardless of whether the maker of such communication placed the call; or
(B) permits any telephone facility under such person's control to be used for an activity prohibited by subparagraph (A),

edit: do you have a version that doesn't show the knowingly bit?

No, sorry you're quite right (and the thing I was reading said as much).  It does require knowledge but not intent - that's another bit (' knowingly permits any telecommunications facility under his control to be used for any activity prohibited by paragraph (1) with the intent that it be used for such activity').  But even so the crime is still a failure to act.  The point he makes is that if the decision not to buy health insurance is inactivity then surely the decision not to stop a person from harassing someone is also inactivity?

Quote from: Admiral Yi on March 29, 2012, 02:55:50 PM

Quote from: The Minsky Moment on March 29, 2012, 02:45:47 PM
Growing wheat is not any more a commercial activity in itself than my growing flowers in my backyard.  It's only a commercial activity if the wheat enters into commerce.

And I doubt the case would have been judged the same way if McCullough had been growing wheat only for personal use.

That' shouldn't make a difference, at least based on recent supreme court precedent. The modern version of the Wickard (what) case is the Reich case, which involved the legality of the law criminalizing frowing marijuana. In Reich, the Court said it was constitutional to criminalize the growing of marijuana even for personal consumption because the choice to grow one's own marijauna still affects the national marijuana market.

Quote from: stjaba on March 29, 2012, 03:31:39 PM
That' shouldn't make a difference, at least based on recent supreme court precedent. The modern version of the Wickard (what) case is the Reich case, which involved the legality of the law criminalizing frowing marijuana. In Reich, the Court said it was constitutional to criminalize the growing of marijuana even for personal consumption because the choice to grow one's own marijauna still affects the national marijuana market.

OK.  Wonder why that case wasn't cited in oral arguments.  Maybe because Virreli was higher than Willie Nelson.

Makes me think another line Virreli could have pursued is that the choice to not buy health insurance is de facto a choice to self-insure.

(Intrade around 64 today.)

As a general question, do most federal criminal laws on things like carjacking, kidnapping, etc., fall under the Commerce Clause?

Quote from: Admiral Yi on March 29, 2012, 03:43:55 PM
As a general question, do most federal criminal laws on things like carjacking, kidnapping, etc., fall under the Commerce Clause?

Yes.  Most contain some explicit requirement of a link to interstate commerce.  For example the kidnapping statute requires transport across state lines, or use of the mails or other instrumentality of interstate commerce.

They put up the Christmas tree on the WH lawn under the commerce clause too.

Quote from: Sheilbh on March 29, 2012, 03:27:56 PM
No, sorry you're quite right (and the thing I was reading said as much).  It does require knowledge but not intent - that's another bit (' knowingly permits any telecommunications facility under his control to be used for any activity prohibited by paragraph (1) with the intent that it be used for such activity').  But even so the crime is still a failure to act.  The point he makes is that if the decision not to buy health insurance is inactivity then surely the decision not to stop a person from harassing someone is also inactivity?

I don't understand why that's not facilitation. You provided the means for the crime and allowed it to occur.

I think you would have a point if the law allowed an individual who just witnessed threatening calls being made to be charged with a crime for not reporting/stopping it.

Quote from: garbon on March 29, 2012, 06:15:36 PM
I don't understand why that's not facilitation. You provided the means for the crime and allowed it to occur.

Providing the means is far more active than this, that would be like giving someone a knife or in this case giving them the phone.  Here they're just using it and you're allowing it to occur.  In general terms allowing it to occur, certainly in England, is not a crime.  The general rule is that you cannot be liable for failing to prevent a crime with a few exceptions.  It's similar to the idea Kennedy mentioned that there's no duty to stop a blind man walking off a cliff.  But here a legal duty is imposed on you that you must stop a crime from happening.

Let's say you share a flat with someone who smokes a lot of pot.  You know he does.  He uses your lighter and your Rizla maybe your tobacco, but you have them because you're a smoker.  If the same principles were applied you'd be under a duty to stop him smoking in those circumstances, or you'd be liable.  In English law that's not allowed it would go against principle and you'd need to show something else to justify that duty to intervene.  Otherwise you're convicting someone for their thoughts and the fact of their presence with no physical act. 

That's why it seems like it's regulating inactivity.

Quote from: Admiral Yi on March 29, 2012, 03:43:55 PM
OK.  Wonder why that case wasn't cited in oral arguments.

It featured prominently in the briefing.  The Solicitor General probably realized that the justices didn't need elaborate explanation because most the justices were on the Court when it was decided.

The hard reality is that there are certain justices who are likely to be more sympathetic to a federal law enforcement effort to control marijuana use than what some might characterize as a hubristic exercise in social engineering.

Quote from: The Minsky Moment on March 29, 2012, 06:33:28 PM
The hard reality is that there are certain justices who are likely to be more sympathetic to a federal law enforcement effort to control marijuana use than what some might characterize as a hubristic exercise in social engineering.

But that's one of the beauties of the system: sympathies have to be justified.

I skimmed this thread and saw nothing on this, so I'll go ahead and ask it. How is it unconstitutional to require health insurance, but not unconstitutional to require car insurance? Is it because that's done state-by-state, or am I missing something else entirely? :unsure:

Quote from: merithyn on March 29, 2012, 09:06:46 PM
I skimmed this thread and saw nothing on this, so I'll go ahead and ask it. How is it unconstitutional to require health insurance, but not unconstitutional to require car insurance? Is it because that's done state-by-state, or am I missing something else entirely? :unsure:

STATEZ WIGHTS.

(https://languish.org/forums/proxy.php?request=http%3A%2F%2Fupload.wikimedia.org%2Fwikipedia%2Fcommons%2Fthumb%2F2%2F2a%2FBattle_flag_of_the_US_Confederacy.svg%2F200px-Battle_flag_of_the_US_Confederacy.svg.png&hash=1225f34ad711c9314a634eac0bf710734dec21b2)

Quote from: merithyn on March 29, 2012, 09:06:46 PM
I skimmed this thread and saw nothing on this, so I'll go ahead and ask it. How is it unconstitutional to require health insurance, but not unconstitutional to require car insurance? Is it because that's done state-by-state, or am I missing something else entirely? :unsure:

You have the choice to not own a car, as impractical as that seems here.

EDIT: And the fact that it is done by states.

Quote from: sbr on March 29, 2012, 09:09:06 PM

Quote from: merithyn on March 29, 2012, 09:06:46 PM
I skimmed this thread and saw nothing on this, so I'll go ahead and ask it. How is it unconstitutional to require health insurance, but not unconstitutional to require car insurance? Is it because that's done state-by-state, or am I missing something else entirely? :unsure:

You have the choice to not own a car, as impractical as that seems here.

EDIT: And the fact that it is done by states.

Okay, so the Supreme Court should amend the Obamacare to give GOPtards an option of never utilizing an emergency room without insurance and we can let them die in the waiting room when they show up anyway.  Win-win!  :licklips:

Quote from: merithyn on March 29, 2012, 09:06:46 PM
I skimmed this thread and saw nothing on this, so I'll go ahead and ask it. How is it unconstitutional to require health insurance, but not unconstitutional to require car insurance? Is it because that's done state-by-state, or am I missing something else entirely? :unsure:

Because you voluntarily choose to purchase a car and enter into the regulated sector.

Quote from: DontSayBanana on March 29, 2012, 10:42:34 PM

Quote from: merithyn on March 29, 2012, 09:06:46 PM
I skimmed this thread and saw nothing on this, so I'll go ahead and ask it. How is it unconstitutional to require health insurance, but not unconstitutional to require car insurance? Is it because that's done state-by-state, or am I missing something else entirely? :unsure:

Because you voluntarily choose to purchase a car and enter into the regulated sector.

Not quite.

First asnwer is, as mentioned, that car insurance is a state matter.

But even then you have the option to own a car, yet not have insurance.  You 'merely' can't use it on any public road or highway.

What about that sailor thingy that Grumbler was on about?

Quote from: Barrister on March 29, 2012, 10:45:22 PM
Not quite.

First asnwer is, as mentioned, that car insurance is a state matter.

But even then you have the option to own a car, yet not have insurance.  You 'merely' can't use it on any public road or highway.

Fair enough.

Quote from: Fate on March 29, 2012, 09:08:33 PM

Quote from: merithyn on March 29, 2012, 09:06:46 PM
I skimmed this thread and saw nothing on this, so I'll go ahead and ask it. How is it unconstitutional to require health insurance, but not unconstitutional to require car insurance? Is it because that's done state-by-state, or am I missing something else entirely? :unsure:

STATEZ WIGHTS.

(https://languish.org/forums/proxy.php?request=http%3A%2F%2Fupload.wikimedia.org%2Fwikipedia%2Fcommons%2Fthumb%2F2%2F2a%2FBattle_flag_of_the_US_Confederacy.svg%2F200px-Battle_flag_of_the_US_Confederacy.svg.png&hash=1225f34ad711c9314a634eac0bf710734dec21b2)

The North Shall Rise Again!

(https://languish.org/forums/proxy.php?request=http%3A%2F%2Foyster.ignimgs.com%2Fmediawiki%2Fwiki-api.ign.com%2Fgame-of-thrones%2Fthumb%2Ff%2Ff3%2FGame-Of-Thrones-White-Walkers2.jpg%2F417px-Game-Of-Thrones-White-Walkers2.jpg&hash=bd8bd6cf50f6756fd5ce9b56a0e343385a67a0a3)

Quote from: Fate on March 29, 2012, 10:20:37 PM
Okay, so the Supreme Court should amend the Obamacare to give GOPtards an option of never utilizing an emergency room without insurance and we can let them die in the waiting room when they show up anyway.  Win-win!  :licklips:

You still have the problem in this scenario of no mandated premiums to subsidize pre-existing conditions.

Quote from: Admiral Yi on March 29, 2012, 06:50:18 PM
But that's one of the beauties of the system: sympathies have to be justified.

But justifications are not hard to come by for people who reached their position in life in part by being very, very good at concocting reasons to support a position (and yes, I realize I am echoing the same berkutian sentiment I criticized in the other thread).

Quote from: The Minsky Moment on March 30, 2012, 08:27:19 AM

Quote from: Admiral Yi on March 29, 2012, 06:50:18 PM
But that's one of the beauties of the system: sympathies have to be justified.

But justifications are not hard to come by for people who reached their position in life in part by being very, very good at concocting reasons to support a position (and yes, I realize I am echoing the same berkutian sentiment I criticized in the other thread).

Hey yeah, wait just one damn minute here!

The RNC apparently is now running on ad attacking Obamacare that features a doctored version of the opening of the Solicitor General's argument:

http://go.bloomberg.com/health-care-supreme-court/2012-03-29/gop-ad-uses-doctored-scotus-audio/

All class, all the way.  <_<

Quote from: Admiral Yi on March 29, 2012, 03:43:55 PM


As a general question, do most federal criminal laws on things like carjacking, kidnapping, etc., fall under the Commerce Clause?

As JR mentioned, yes. Even the felon in possession of firearm law is justified under the Commerce Clause. The statute requires that the firearm traveled through interstate commerce. As a result, when those cases go to trial, the government has to produce an expert (typically an ATF or FBI agent) who specializes in identifying where firearms are manufactured to prove that the firearm actually do move through interstate commerce.

Quote from: The Minsky Moment on March 29, 2012, 06:33:28 PM

Quote from: Admiral Yi on March 29, 2012, 03:43:55 PM
OK.  Wonder why that case wasn't cited in oral arguments.

It featured prominently in the briefing.  The Solicitor General probably realized that the justices didn't need elaborate explanation because most the justices were on the Court when it was decided.

The hard reality is that there are certain justices who are likely to be more sympathetic to a federal law enforcement effort to control marijuana use than what some might characterize as a hubristic exercise in social engineering.

While it's easy to be cynical, in Raich, three conservatives (O'Connor, Rehnquist, and Thomas) all dissented.

Quote from: Admiral Yi on March 29, 2012, 11:27:57 PM

Quote from: Fate on March 29, 2012, 10:20:37 PM
Okay, so the Supreme Court should amend the Obamacare to give GOPtards an option of never utilizing an emergency room without insurance and we can let them die in the waiting room when they show up anyway.  Win-win!  :licklips:

You still have the problem in this scenario of no mandated premiums to subsidize pre-existing conditions.

Actually, you wouldn't.  People would generally buy insurance of they knew the consequence for not having it and needing it was death.  Those who decide not to get insurance right now do so because they know that there is a "safety net" that will catch them even if they leave themselves no way to actually afford the care they need.

The free rider problem goes away when the penalty for free riding is death. 

Quote from: grumbler on March 30, 2012, 12:11:37 PM
The free rider problem goes away when the penalty for free riding is death. 

I think quite a few people would ignore that-- or would lazily assume they'd still get emergency treatment somehow, somewhere. 

Quote from: stjaba on March 30, 2012, 10:44:21 AM
While it's easy to be cynical, in Raich, three conservatives (O'Connor, Rehnquist, and Thomas) all dissented.

But Kennedy voted yes.  And Scalia concurred, and gave a very broad reading of the N&P clause to uphold the law.  IMO that puts him in an impossible position from a principled perspective.

Some of my comments in this thread have been harsh.  In truth, I do think there is something about the mandate that just seems over-reaching.  It doesn't feel like a government of limited powers should be able to go that far in terms of telling people what to do.

But constitutional interpretation isn't supposed to be about what "seem" or "feels" right, particularly for those more inclined to "conservative" or restrained jurisprudential principles.  And the problem for opponents is that if one takes McCulloch and the Raich concurrence seriously, there doesn't seem any valid textual basis to strike down this law, regardless of how one resolves the theological question of whether a purchase mandate is Commerce.  The obsessive search for "Limiting Principles" is not driven by the Constitutional text, but by the preoccupations of a particular man, by the name of Anthony Kennedy.  It might very well by true that in the 21st century, where virtually every activity that a person engages in has both an interstate and commercial nexus, that the combination of the Commerce Power with the N&P Clause leaves precious little area beyond the scope of possible federal action (beyond the explicit prohibitions of the Bill of Rights etc)  If that is so, and it is considered a negative development, then it seems to me the only solution is either to amend the Constitution, or confront the problem openly and start overruling or severely limiting vast swaths of the Court's well-established precedents, including McCulloch and the New Deal era commerce cases.

That's not going to happen, so what's left for those who would strike the law down is sleight of hand.  Take the McCulloch/Raich analysis: the ACCA taken as a whole falls easily within the Commerce power (not contested) and the mandate is a measure "plainly adapted" to effectuate it (also uncontestable and indeed trumpeted by Clement in the severability phase of the argument).  So the mandate can only be struck down if it is "improper" (i.e. otherwise violating some other constitutional prohibition) but there is nothing in the constitutional text that anyone can point to that affirmatively prohibits it.  What is left is to grasp onto some inconsistency with what Marshall referred to in McCulloch as the "spirit of the constitution".   And sure enough, Justice Scalia tipped that hand quite in oral argument, suggesting the mandate is improper because it offends the "constitituional principle that the Federal government is a government of enumerated powers."  But that principle is effectuated in the text by the actual enumeration of power, and using Scalia's own analysis in Raich, the mandate is a valid means for carrying out an enumerated power.  So it seems all that is left is the argument that nonetheless the mandate offends the "spirit" of the notion of limited government.

My question then is: where is the limiting principle in that?  Striking down a concrete law by referencing a broad over-arching principle smacks of the kind of penumbral reasoning like the Warren court used to engage in that drove conservatives batty.  Or on the flip side, Lochner era substantive due process.  Why exactly is the mandate such an unforgivable offense to fundamental principles of federalism and limited federal power, while having the FBI muscle out state law enforcement to police some guy growing a bit of weed in window planter perfectly OK?  What exactly is the test for determining when Congress has gone too far against the "spirit" of the principle of limited federal government?  Perhaps the Court will provide clear and precise answers in their opinion.  But I ain't holding my breath.

From a common sense perspective, Clive Crook makes this point very well, it does seem odd that a taxpayer funded national health service probably would be constitutional (like Social Security, Medicare and Medicaid) but that the more liberal, less statist alternative isn't.  It particularly seems odd that that's somehow a consequence of limited Federal power. 

Quote from: Sheilbh on March 30, 2012, 01:54:00 PM
From a common sense perspective, Clive Crook makes this point very well, it does seem odd that a taxpayer funded national health service probably would be constitutional (like Social Security, Medicare and Medicaid) but that the more liberal, less statist alternative isn't.  It particularly seems odd that that's somehow a consequence of limited Federal power. 

I was just going to post this as well. I wonder whether the push to litigate against Obamacare would have gotten as much support if the Democrats had retained a strong majority in Congress.

Quote from: stjaba on March 30, 2012, 02:04:56 PM
I wonder whether the push to litigate against Obamacare would have gotten as much support if the Democrats had retained a strong majority in Congress.

No, I don't think that would've mattered in challenging it before the courts.

Quote from: Sheilbh on March 30, 2012, 01:54:00 PM
From a common sense perspective, Clive Crook makes this point very well, it does seem odd that a taxpayer funded national health service probably would be constitutional (like Social Security, Medicare and Medicaid) but that the more liberal, less statist alternative isn't.  It particularly seems odd that that's somehow a consequence of limited Federal power. 

I don't understand this objection at all.

The means matter. Just because you can imagine some alternative that would not violate this particular issue, but could be considered more generally "less liberal", doesn't make this particular violation any less of a violation.

And that is precisely what the Administration should do - come up with a way of doing this without violating the Constitution. If it can be done in s manner that is NOT a violation, then do so.

Quote from: Berkut on March 30, 2012, 02:35:31 PM

Quote from: Sheilbh on March 30, 2012, 01:54:00 PM
From a common sense perspective, Clive Crook makes this point very well, it does seem odd that a taxpayer funded national health service probably would be constitutional (like Social Security, Medicare and Medicaid) but that the more liberal, less statist alternative isn't.  It particularly seems odd that that's somehow a consequence of limited Federal power. 

I don't understand this objection at all.

The means matter. Just because you can imagine some alternative that would not violate this particular issue, but could be considered more generally "less liberal", doesn't make this particular violation any less of a violation.

And that is precisely what the Administration should do - come up with a way of doing this without violating the Constitution. If it can be done in s manner that is NOT a violation, then do so.

From a legal perspective you're correct. But the reason why the constitution listed enumerated powers for the federal government was to limit its power. It's an odd result that the means giving MORE power to the federal government is constitutional while the less statist option isn't.

Quote from: stjaba on March 30, 2012, 02:49:22 PM

Quote from: Berkut on March 30, 2012, 02:35:31 PM

Quote from: Sheilbh on March 30, 2012, 01:54:00 PM
From a common sense perspective, Clive Crook makes this point very well, it does seem odd that a taxpayer funded national health service probably would be constitutional (like Social Security, Medicare and Medicaid) but that the more liberal, less statist alternative isn't.  It particularly seems odd that that's somehow a consequence of limited Federal power. 

I don't understand this objection at all.

The means matter. Just because you can imagine some alternative that would not violate this particular issue, but could be considered more generally "less liberal", doesn't make this particular violation any less of a violation.

And that is precisely what the Administration should do - come up with a way of doing this without violating the Constitution. If it can be done in s manner that is NOT a violation, then do so.

From a legal perspective you're correct. But the reason why the constitution listed enumerated powers for the federal government was to limit its power. It's an odd result that the means giving MORE power to the federal government is constitutional while the less statist option isn't.

Well, that is because long ago the idea that enumerated powers were strict and explicit was ditched in favor of it being rather vague and, to be honest, meaningless. The alternative to a mandate and this structure is seen as single player, where the federal government just taxes everyone and uses the funds. That is pretty arguably not remotely within the enumerated powers either, but that argument was made and lost a long time ago.

Quote from: Berkut on March 30, 2012, 02:35:31 PMI don't understand this objection at all.

The means matter. Just because you can imagine some alternative that would not violate this particular issue, but could be considered more generally "less liberal", doesn't make this particular violation any less of a violation.

And that is precisely what the Administration should do - come up with a way of doing this without violating the Constitution. If it can be done in s manner that is NOT a violation, then do so.

Yeah you're right, if that's the way the case goes, in legal terms.  It just seems very odd that the consequence of 'limiting' Federal power is that the government has to go all or nothing on any social welfare programmes.  Whatever your view I think it's fair that a private insurance basis for healthcare, albeit with a mandate, is less intrusive and more liberal than a system run by the state.  So in legal terms the court may be restricting the powers of the Federal government, in pure political terms the consequence will probably be a larger role for the Federal government in years to come.

Would private account social security pass muster?

Quote from: derspiess on March 30, 2012, 12:24:08 PM

Quote from: grumbler on March 30, 2012, 12:11:37 PM
The free rider problem goes away when the penalty for free riding is death. 

I think quite a few people would ignore that-- or would lazily assume they'd still get emergency treatment somehow, somewhere.

Or may not have enough money to buy it.

Quote from: Sheilbh on March 30, 2012, 03:20:40 PM

Would private account social security pass muster?

If 5 justices say so, anything goes.

Quote from: Berkut on March 30, 2012, 03:07:51 PM
Well, that is because long ago the idea that enumerated powers were strict and explicit was ditched in favor of it being rather vague and, to be honest, meaningless. The alternative to a mandate and this structure is seen as single player, where the federal government just taxes everyone and uses the funds. That is pretty arguably not remotely within the enumerated powers either, but that argument was made and lost a long time ago.

That the point Crook goes on to make:

QuoteNow of course you can ask whether the Court has been right over the years to use the Commerce Clause to turn the Constitution inside out and dissolve the limits on the economic power of the federal government. That's not an easy question but on the whole I think it has in fact been right. The world has changed, and what we expect of the government has changed. The Constitution had to change as well, and that could be done either by amending it explicitly or having the Court draw on all its reserves of ingenuity and rewrite it judgement by judgement. In America, the Constitution is a quasi-religious document. Its constancy is an inviolable national myth. Changing it therefore falls to the Court and must be done by stealth, with a certain suspension of disbelief on the part of the citizenry. The big disadvantage of amendment by jurisprudence is that it takes an unavoidably political task out of politics and gives it to unelected judges. Obviously, that's also its big advantage.

Whether we like the way the Constitution has been rewritten is beside the point. The thing is, it has been. The Court has all but erased the limits on the economic power of the federal government. So let's not pretend that striking down the mandate would be a victory of principle rather than just a huge embarrassment for the White House, or that upholding it would mark a big new advance of government power. Politically, it matters. Constitutionally, it's a tremendous fuss about not very much.

Joan: it's really a stretch to call limitation of the enumerated powers analogous to the Warren court's discovery of uterine privacy.  Just because successive decisions have tended to push out the borders of the Commerce Clause doesn't mean that there is not nor should be a limit on their scope.  We've also got the reinforcing language of the 10th Amendment, Timmy's personal favorite.

Quote from: Razgovory on March 30, 2012, 03:40:20 PM

Quote from: derspiess on March 30, 2012, 12:24:08 PM

Quote from: grumbler on March 30, 2012, 12:11:37 PM
The free rider problem goes away when the penalty for free riding is death. 

I think quite a few people would ignore that-- or would lazily assume they'd still get emergency treatment somehow, somewhere.

Or may not have enough money to buy it.

Which, from a policy (as opposed to Constitutional) perspective, is one of the main problems with the mandate.  People who supposedly can't afford health insurance now are going to be compelled to purchase health insurance or pay a penalty, but aren't being provided with any additional means with which to make the purchase.

Quote from: Admiral Yi on March 31, 2012, 01:54:54 PM
Joan: it's really a stretch to call limitation of the enumerated powers analogous to the Warren court's discovery of uterine privacy.  Just because successive decisions have tended to push out the borders of the Commerce Clause doesn't mean that there is not nor should be a limit on their scope. We've also got the reinforcing language of the 10th Amendment, Timmy's personal favorite.

What? :huh:

Quote from: dps on March 31, 2012, 07:49:53 PM
Which, from a policy (as opposed to Constitutional) perspective, is one of the main problems with the mandate.  People who supposedly can't afford health insurance now are going to be compelled to purchase health insurance or pay a penalty, but aren't being provided with any additional means with which to make the purchase.

I'm pretty sure the law includes subsides for low income people.

Quote from: Admiral Yi on March 31, 2012, 01:54:54 PM
Joan: it's really a stretch to call limitation of the enumerated powers analogous to the Warren court's discovery of uterine privacy.  Just because successive decisions have tended to push out the borders of the Commerce Clause doesn't mean that there is not nor should be a limit on their scope.  We've also got the reinforcing language of the 10th Amendment, Timmy's personal favorite.

If the commerce clause decisions have gone "too far" then the solution is to overrule them.  But my question to kennedy and Scalia would then be: why all the concern now when you had no problem with the same concepts a few years ago in Raich?

The 10th doesn't have reinforcing language, if the powers in question are within the scope of enumerated federal power, then the 10th doesn't come into play.

Quote from: The Minsky Moment on March 31, 2012, 09:05:53 PM
If the commerce clause decisions have gone "too far" then the solution is to overrule them.  But my question to kennedy and Scalia would then be: why all the concern now when you had no problem with the same concepts a few years ago in Raich?

I thought you said Scalia concurred on Raich.  Did I get that wrong?  (D'oh, never mind.)

But the answer seems pretty simple to me: regulating the growing of pot for personal use is a different concept than regulating existence.

QuoteThe 10th doesn't have reinforcing language, if the powers in question are within the scope of enumerated federal power, then the 10th doesn't come into play.

Exactly. IF it's within the scope.  Whereas before you were claiming that limitations on the scope were a "broad over-arching principle" analogous in the degree to which they derive directly from the text to Roe v. Wade.

Quote from: Sheilbh on March 30, 2012, 03:20:40 PM

Quote from: Berkut on March 30, 2012, 02:35:31 PMI don't understand this objection at all.

The means matter. Just because you can imagine some alternative that would not violate this particular issue, but could be considered more generally "less liberal", doesn't make this particular violation any less of a violation.

And that is precisely what the Administration should do - come up with a way of doing this without violating the Constitution. If it can be done in s manner that is NOT a violation, then do so.

Yeah you're right, if that's the way the case goes, in legal terms.  It just seems very odd that the consequence of 'limiting' Federal power is that the government has to go all or nothing on any social welfare programmes.  Whatever your view I think it's fair that a private insurance basis for healthcare, albeit with a mandate, is less intrusive and more liberal than a system run by the state.  So in legal terms the court may be restricting the powers of the Federal government, in pure political terms the consequence will probably be a larger role for the Federal government in years to come.

Hm.

Death to Obamacare.

I've got time.  I can wait.

Quote from: Admiral Yi on March 31, 2012, 01:54:54 PM
the Warren court's discovery of uterine privacy.

Burger Court's.   :sleep:

Meat is murder, dude.

Quote from: Ideologue on April 01, 2012, 12:04:12 AM
Meat is murder, dude.

Delicious, tasty murder. :mmm:

There's a Justice Frankfurter too.  Unfortunately they were not contemporaries. :(

Quote from: Ideologue on April 01, 2012, 12:04:12 AM
Meat is murder, dude.

I didn't think murder was really problem with you.  Would meat be more acceptable if it was slaughter humanely by a B-52 bomber?

Quote from: Admiral Yi on March 31, 2012, 09:16:15 PM
But the answer seems pretty simple to me: regulating the growing of pot for personal use is a different concept than regulating existence.

You've could have made it as a lawyer.   ;)  You've got down the first move when legal precedent is against you - argue that the factual circumstances differ.  Of course they do (they always do) but the question is whether they differ in a way that is material with respect to the legal categories at issue.  In Raich growing of pot for personal use was deemed to be within the Commerce Power not because the act of growing could iteself be characterized as commerce, but because of the effects of that practice on the broader interstate trafficking in drugs (though its alleged effect on overall demand) - thus "When Congress decides that the  'total incidence'  of a practice poses a threat to a national market, it may regulate the entire class."  On this rationale, it isn't clear how the mandate can be meaningfully distinguished factually, because clearly the practice at which it aims (refusal of certain categories to purchase health insurance) has clear and very significant effects on the national market.

The weakness of the distinction is even more apparent when one turns to the second rationale for constitutionality - under the Necessary & Proper clause.  Because to be N&P all that needs to be shown is that the measure facilitates some other valid regulation of commerce.  Here it seems the case for the mandate is much stronger than the case for the drug regulation in Raich.  Because while regulating growing small amounts for purely personal use may be a useful adjunct to a broader anti-drug policy, it is easy to imagine a workable set of anti-trafficking measures without that kind of rule.  On the other hand, there seems to be agreement that the community rating and access provisions of the ACA would be rendered counter-productive without the mandate.   

Did the Raich decision provide a limiting test?

Quote from: Admiral Yi on April 02, 2012, 12:06:42 PM
Did the Raich decision provide a limiting test?

In the majority opinion, the only limiting principle was the reaffirmance of the Lopez-Morrison line of cases where the laws related to local conduct that did not have any "any connection to past interstate activity or a predictable impact on future commercial activity."

In the Scalia concurrence relating to the Necessary & Proper clause, the limiting principle was that there had to be a direct causal relationship between the means selected by Congress and the impact on interstate commerce, i.e. " it does not permit the Court to 'pile inference upon inference' in order to establish that noneconomic activity has a substantial effect on interstate commerce."

What is striking about the mandate is that its likely effect on interstate commerce is enormous, which explains why many legal scholars handicapping the case at the outset expected that it would be upheld based on all the prior precendents.  The activity vs. inactivity distinction has no grounding in prior rulings of the Court; indeed, the strongest argument in favor of the distinction is precisely the absence of clear precedent about it either way.

Re: judicial activism and its competing partisan definitions.

CNN had a righty talking head on to argue with CNN's house Jew* lawyer about the propriety of Obama's comments on the SC and judicial activism.

It seems to me a problem with the left's definition of judicial activism is that it's invoked very selectively.  The cases that came to mind were the Texas dick sucking law and the various gay marriage overturns.

* I don't know for a fact that he's Jewish.  He could play one on TV though.

Are the right's complaints about judicial activism less selective?

Quote from: Jacob on April 04, 2012, 07:11:17 PM
Are the right's complaints about judicial activism less selective?

They appear so to me but I'm willing to be enlightened.

Quote from: Admiral Yi on April 04, 2012, 07:14:40 PMThey appear so to me but I'm willing to be enlightened.

I dunno... they don't seem to be up in arms about this particular batch of potential judicial activism.

Quote from: Jacob on April 04, 2012, 07:17:37 PM
I dunno... they don't seem to be up in arms about this particular batch of potential judicial activism.

Lefty definition: overturning legislation.

Righty definition: making up stuff not in the Constitution.

Quote from: Admiral Yi on April 04, 2012, 07:19:33 PMLefty definition: overturning legislation.

Righty definition: making up stuff not in the Constitution.

Seems pretty consistent in both cases, no?

Quote from: Jacob on April 04, 2012, 07:21:02 PM
Seems pretty consistent in both cases, no?

I don't understand.

Quote from: Admiral Yi on April 04, 2012, 07:23:13 PM

Quote from: Jacob on April 04, 2012, 07:21:02 PM
Seems pretty consistent in both cases, no?

I don't understand.

You're the one who said it.

The left definition of judicial activism: overturning legislation (when the legislation is legitimate and is congruent with left goals)
The right definition judicial activism: applying the constitution creatively (except when the constitution can be interpreted to agree with right goals)

Seems like a consistent line on both sides. Not particularly selective in either case, even if mutually divergent.

The model for righties of judicial activism is Roe v. Wade.  If a decision were to come along that created a new right to the same extent that Roe v. Wade did, and conservative opponents of judicial activism failed to object, they definitely could be accused of inconsistency.

Quote from: Jacob on April 04, 2012, 07:21:02 PM

Quote from: Admiral Yi on April 04, 2012, 07:19:33 PMLefty definition: overturning legislation.

Righty definition: making up stuff not in the Constitution.

Seems pretty consistent in both cases, no?

RvW overturned state law right?

Quote from: crazy canuck on March 28, 2012, 03:43:27 PM

Quote from: MadImmortalMan on March 28, 2012, 02:24:10 PM
My admittedly proletarian reading of the constitution would assume the opposite--that all laws carry with them the burden of positively asserting constitutionality. Where does this come from and why am I wrong?

You would have a very odd system indeed if the presumption was that all law was invalid until a court found otherwise.  The presumption is the other way around.

Forgive my re-hashing. So, if a law were passed doing something that everyone could agree was not an enumerated or implied power in the constitution, the court would still assume it were constitutional unless...what? At what point does it become appropriate for the court to question the constitutionality of the law? Assume I'm talking about a thing that is unconstitutional for the reason of not being enumerated or implied, not a thing that is expressly forbidden in the BoR or whatever.

I don't see how they could ever overturn anything legitimately unless it were slavery or something similarly expressly forbidden. There has to be some point, even if short and cursory, where the government's counsel has to state the empowering language supporting the power being exercised in the law in question.

Quote from: MadImmortalMan on April 04, 2012, 10:05:58 PM
So, if a law were passed doing something that everyone could agree was not an enumerated or implied power in the constitution...

That's exactly the problem.  That's one of the rarest beasts in law.  On one hand, you've got "strict construction", and on the other hand, you've got the "living document" crowd.

Quote from: Admiral Yi on April 04, 2012, 07:36:52 PM
The model for righties of judicial activism is Roe v. Wade.  If a decision were to come along that created a new right to the same extent that Roe v. Wade did, and conservative opponents of judicial activism failed to object, they definitely could be accused of inconsistency.

Didn't create a new right.  Recognized that the right to privacy extended, shockingly enough, to a woman's womb.

Quote from: Admiral Yi on April 04, 2012, 07:36:52 PM
The model for righties of judicial activism is Roe v. Wade.  If a decision were to come along that created a new right to the same extent that Roe v. Wade did, and conservative opponents of judicial activism failed to object, they definitely could be accused of inconsistency.

No one's arguing that the rightist view of activist judges is inconsistent, least of all I. It seems very consistent to me.

What I'm arguing is that the leftist view of activist judges is equally consistent, but based on a different consistency-test than that used by the rightist judges.

I think "judicial activism" is a phrase you dudes are giving too much thought to.  It means nothing; the important part is that Dems are finally playing by the rules of the game, which is to make wild, unsupportable accusations in the form of sound bytes so as to erode support amongst his enemies with the rubes that elect our officials.

I hope next Obama accuses Santorum of religious fundamentalism not unlike that of a September 11th bomber and Romney of being a Cylon.

Quote from: Ideologue on April 04, 2012, 11:31:25 PM
Didn't create a new right.  Recognized that the right to privacy extended, shockingly enough, to a woman's womb.

Which amendment safeguards the right to privacy?

Quote from: Jacob on April 04, 2012, 11:49:46 PM
No one's arguing that the rightist view of activist judges is inconsistent, least of all I. It seems very consistent to me.

What I'm arguing is that the leftist view of activist judges is equally consistent, but based on a different consistency-test than that used by the rightist judges.

And I'm arguing that the leftist view is patently inconsistent.  There are numerous cases of legislation being overturned that our ostensible defenders of judicial restraint didn't raise a peep about.

The Fourteenth.  It says so like eighty times in the opinion. :P  Also, about six other amendments give rise to such a right, as does the common law.  I don't think you can realistically argue there is no right to privacy in the U.S., or that prohibiting a woman to do things to her own body does not involve her right to privacy, which is why the state interest must be compelling.  (Which is why only straight-up embryonic/fetal personhood arguments are viable, if, as I've come to conclude after many years, they are not compelling enough. [Although interestingly enough by the relevant metrics reasonably swift postpartum infanticide should not be much more troublesome, yet it is.])

I mean, can they outlaw miscegenation (Loving), contraception (Griswold), and sodomy (Lawrence) too, since if you do a word search of the constitution it doesn't return anything for "privacy"?

Quote from: MadImmortalMan on April 04, 2012, 10:05:58 PMAt what point does it become appropriate for the court to question the constitutionality of the law?

When its constitutionality is challenged in the Court.  Congress and the Executive are sworn to uphold the Constitution it would be very odd indeed if they weren't given the benefit of the doubt that that's what they were doing.  I imagine there's probably some preamble to most bills or acts of Congress that refer to the Constitution in some way.

And if you look at what would happen without the presumption you see the problem.  If the starting assumption is that legislation isn't constitutional until it's demonstrated otherwise then that puts the Courts in an enormous position of power, subordinates the other two branches of government and puts the Executive in a very odd position.  The Court's role changes from being adjudicating potential transgressions against the Constitution into certifying whether law (every law) made by the elected branches of government is legitimate or not. 

What should the Executive or an individual do with a law passed by Congress and signed into law by the President but not yet ruled on by the Court?  If it's not within the Constitution then surely the President shouldn't try and enforce it and a good argument could be made that individuals or state officials should disobey it - until it gets approved by the Court. 

Quote from: Sheilbh on April 05, 2012, 02:58:17 AM
And if you look at what would happen without the presumption you see the problem.  If the starting assumption is that legislation isn't constitutional until it's demonstrated otherwise then that puts the Courts in an enormous position of power, subordinates the other two branches of government and puts the Executive in a very odd position.  The Court's role changes from being adjudicating potential transgressions against the Constitution into certifying whether law (every law) made by the elected branches of government is legitimate or not. 

The bigger problem is that the Court could pocket-veto any legislation whose validity they could not deny by an open decision.

Logically, also, if the actions of the legislature were presumed unconstitutional until approved by the courts, so too could the actions of the executive.  Imagine the difficulties that that would create!  :lol:

Quote from: Admiral Yi on April 04, 2012, 06:51:59 PM
It seems to me a problem with the left's definition of judicial activism is that it's invoked very selectively.  The cases that came to mind were the Texas dick sucking law and the various gay marriage overturns.

All accusations of activism are selective because activism is in the eye of the beholder. 
Upholding the mandate could be activist because it would endorse intrusive federal power; striking down is activist because departs from prior precedent to nullify an act of the legislature.

On gay marriage, the pro-gay marriage opinions are activist for striking down state laws; the anti-opinions are activist for refusing to apply simple Equal Protection principles.

Quote from: MadImmortalMan on April 04, 2012, 10:05:58 PM
Forgive my re-hashing. So, if a law were passed doing something that everyone could agree was not an enumerated or implied power in the constitution, the court would still assume it were constitutional unless...what? At what point does it become appropriate for the court to question the constitutionality of the law?

In law-speak, when there is a "Case or Controversy" brought by someone who has "standing".  In plain English, this happens when the law is applied (or in some cases threatened to be applied) to some one or some group who will be harmed.  At that point, the affected party can sue and the Court can decide on it.  If no one is offended, the law may stay on the books for a long time.

I see. That makes sense. So who has the burden of proof when someone makes a complaint of unconstitutionality? Is it up to the claimant to prove why it's not constitutional or does it then pass to the government to show where it derived the power in question?

Quote from: MadImmortalMan on April 05, 2012, 11:19:26 AM
I see. That makes sense. So who has the burden of proof when someone makes a complaint of unconstitutionality? Is it up to the claimant to prove why it's not constitutional or does it then pass to the government to show where it derived the power in question?

The burden of proof is on the claimant, for reasons mentioned earlier: the purpose of judicial review is to prune unconstitutional laws, not certify ones that are "right and proper."

Quote from: DontSayBanana on April 05, 2012, 11:22:41 AM
The burden of proof is on the claimant, for reasons mentioned earlier: the purpose of judicial review is to prune unconstitutional laws, not certify ones that are "right and proper."

The standard is "necessary and proper," IIRC, which is a bit different than "right and proper" in logical terms.  It would be difficult to show that a provision or law was not "right" but it is possible to show that a provision or law is not necessary.

Quote from: grumbler on April 05, 2012, 11:26:46 AM

Quote from: DontSayBanana on April 05, 2012, 11:22:41 AM
The burden of proof is on the claimant, for reasons mentioned earlier: the purpose of judicial review is to prune unconstitutional laws, not certify ones that are "right and proper."

The standard is "necessary and proper," IIRC, which is a bit different than "right and proper" in logical terms.  It would be difficult to show that a provision or law was not "right" but it is possible to show that a provision or law is not necessary.

Yeah, you're right, there.  The "necessary" part was what got Prop 8 in hot water, IIRC- the pro- crowd was never able to prove a purpose that wasn't simply discriminatory.

Does the US have a process for the Federal government referring constitutional questions directly the the Supreme Court

Quote from: crazy canuck on April 05, 2012, 12:08:38 PM
Does the US have a process for the Federal government referring constitutional questions directly the the Supreme Court

Not really.  SCOTUS functions solely as an appellate court, only considers constitutionality (any federal judge is capable of addressing constitutional questions), and even having a constitutional question  doesn't guarantee that SCOTUS will grant certiorari- they typically only hear ~100 cases a year.

Again, look at Prop 8.  Prop 8 was a change to the state constitution, so the only questions to be considered were questions of US constitutionality, but it still wended its way up the federal court system.

The only exception that I know of is if a state's supreme court has spoken on an issue, the appeal is an automatic request for certiorari to SCOTUS.

Quote from: The Minsky Moment on April 05, 2012, 08:51:47 AM
All accusations of activism are selective because activism is in the eye of the beholder. 
Upholding the mandate could be activist because it would endorse intrusive federal power; striking down is activist because departs from prior precedent to nullify an act of the legislature.

On gay marriage, the pro-gay marriage opinions are activist for striking down state laws; the anti-opinions are activist for refusing to apply simple Equal Protection principles.

The difference is that conservatives use a narrow definition of activism that has greater or lesser applicability depending on the situation, whereas liberals use a universal definition that is either applied universally or it's meaningless.  There are arguments for and against gay marriage deriving from equal protection.  But there are no arguments for or against it overturning legislation; it's a statement of fact.

Quote from: Admiral Yi on April 05, 2012, 06:42:00 PM
The difference is that conservatives use a narrow definition of activism that has greater or lesser applicability depending on the situation, whereas liberals use a universal definition that is either applied universally or it's meaningless.  There are arguments for and against gay marriage deriving from equal protection.  But there are no arguments for or against it overturning legislation; it's a statement of fact.

I think you probably want to investigate what "conservatives" want from the courts, or "liberals," before making such sweeping generalizations.  Not having a horse in the race, I don't recognize either of your characterizations from what I see and read from self-proclaimed liberals and conservatives.

I'll get right on it.

Quote from: Admiral Yi on April 05, 2012, 06:50:03 PM
I'll get right on it.

You're such a keener  :bowler:

Quote from: Admiral Yi on April 05, 2012, 06:42:00 PM
The difference is that conservatives use a narrow definition of activism that has greater or lesser applicability depending on the situation

Not in my experience.  The defintion that conservatives use is the same as everyone else - to refer to those cases whose outcome they don't like.  Or put another way "activism" just means "whatever the Warren Court did."

Quote from: The Minsky Moment on April 05, 2012, 08:21:20 PM
Not in my experience.  The defintion that conservatives use is the same as everyone else - to refer to those cases whose outcome they don't like.  Or put another way "activism" just means "whatever the Warren Court did."

Come now Joan.  You yourself have previously expressed reservations about the strict interpretation of the written word in Roe v. Wade.

Leaving the conservative definition aside for a moment, how do you defend yourself against the charge of inconsistency in using the liberal definition?

Quote from: The Minsky Moment on April 05, 2012, 08:21:20 PM
Or put another way "activism" just means "whatever the Warren Court did."

Shame we don't have access to the years of Languish archives, so we could do a search for judicial activism, and see who bitched about it more.

Meh, they'd all pop up under Hansmeister anyway.

Quote from: DontSayBanana on April 05, 2012, 01:03:10 PM
SCOTUS functions solely as an appellate court

That's not entirely accurate.  From Article 3, Section 2 of the Constitution:  "In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction".  Granted, such cases are only a small part of the Courts work.

Saw this editorial in the Seattle Times:

QuoteWASHINGTON — How dare President Barack Obama brush back the Supreme Court like that?

Has this former constitutional law instructor no respect for our venerable system of checks and balances?

Nah. And why should he?

This court, cosseted behind white marble pillars, out of reach of TV, accountable to no one once they give the last word, is well on its way to becoming one of the most divisive in modern U.S. history.

It has squandered even the semi-illusion that it is the unbiased, honest guardian of the Constitution. It is run by hacks dressed up in black robes.

All the fancy diplomas of the conservative majority cannot disguise the fact that its reasoning on the most important decisions affecting Americans seems shaped more by a political handbook than a legal brief.

Obama never should have waded into the health care thicket back when the economy was teetering. He should have listened to David Axelrod and Rahm Emanuel and not Michelle.

His failure from the start to sell his plan or even explain it is bizarre and self-destructive. And certainly he needs a more persuasive solicitor general.

Still, it was stunning to hear Antonin Scalia talking like a Senate whip during oral arguments last week on the constitutionality of the health care law. He mused on how difficult it would be to get 60 votes to repeal parts of the act, explaining why the court may just throw out the whole thing. And, sounding like a campaign's oppo-research guy, he batted around politically charged terms like "Cornhusker Kickback," referring to a sweetheart deal that isn't even in the law.

If he's so brilliant, why is he drawing a risible parallel between buying health care and buying broccoli?

The justices want to be above it all, beyond reproach or criticism. But why should they be?

In 2000, the Republican majority put aside its professed disdain of judicial activism and helped to purloin the election for W., who went on to heedlessly invade Iraq and callously ignore Katrina.

As Anthony Lewis wrote in The Times back then, "Deciding a case of this magnitude with such disregard for reason invites people to treat the court's aura of reason as an illusion."

The 2010 House takeover by Republicans and the GOP presidential primary have shown what a fiasco the Citizens United decision is, with self-interested sugar daddies and wealthy cronies overwhelming the democratic process.

On Monday, the court astoundingly ruled — five Republican appointees to four Democratic appointees — to give police carte blanche on strip-searches, even for minor offenses such as driving without a license or violating a leash law. Justice Stephen Breyer's warning that wholesale strip-searches were "a serious affront to human dignity and to individual privacy" fell on deaf ears. So much for the conservatives' obsession with "liberty."

The Supreme Court mirrors the setup on Fox News: There are liberals who make arguments, but they are weak foils, relegated to the background and trying to get in a few words before the commercials.

Just as in the Senate's shameful Anita Hill-Clarence Thomas hearings, the liberals on the court focus on process and the conservatives focus on results. John Roberts Jr.'s benign beige facade is deceiving; he's a crimson partisan, simply more cloaked than the ideologically rigid and often venomous Scalia.

Just as Scalia voted to bypass that little thing called democracy and crown W. president, so he expressed ennui at the idea that, even if parts of the health care law are struck down, some provisions could be saved: "You really want us to go through these 2,700 pages?" he asked, adding: "Is this not totally unrealistic?"

Inexplicably mute 20 years after he lied his way onto the court, Clarence Thomas didn't ask a single question during oral arguments for one of the biggest cases in the court's history.

When the Supreme Court building across from the Capitol opened in 1935, the architect, Cass Gilbert, played up the pomp, wanting to reflect the court's role as "the national ideal of justice."

With conservatives on that court trying to block FDR, and with Roosevelt prepared to pack the court, The New Yorker columnist Howard Brubaker noted that the new citadel had "fine big windows to throw the New Deal out of."

Now conservative justices may throw Obama's hard-won law out of those fine big windows. They've already been playing Twister, turning precedents into pretzels to achieve their political objective. In 2005, Scalia was endorsing a broad interpretation of the commerce clause and the necessary and proper clause, the clauses now coming under scrutiny from the majority, including the swing vote, Justice Anthony Kennedy. (Could the dream of expanded health care die at the hands of a Kennedy?)

Scalia, Roberts, Thomas and the insufferable Samuel Alito were nurtured in the conservative Federalist Society, which asserts that "it is emphatically the province and duty of the judiciary to say what the law is, not what it should be."

But it isn't conservative to overturn a major law passed by Congress in the middle of an election. The majority's political motives are as naked as a strip-search.

Maureen Dowd is a regular columnist for The New York Times.

Maureen Dowd.  :lol:

Quote from: Admiral Yi on April 05, 2012, 09:11:53 PM
Maureen Dowd.  :lol:

No kidding.  Don't do The Good Guys(tm) any favors, Kleves.

Oh, I guess that was a rhetorical question.  GLAD I SPENT TWENTY MINUTES LOOKING SOME SHIT UP.

Quote from: Admiral Yi on April 05, 2012, 08:40:52 PM
Leaving the conservative definition aside for a moment, how do you defend yourself against the charge of inconsistency in using the liberal definition?

Where's the inconsistency?  I raised the issue of activism only because it seems like some of the most vociferous critics of activism (e.g. when in the form of Boumediene  v. Bush) line up behind the idea that the mandate should be struck down.  That does seem inconsistent.

My problem with the anti-mandate position is not that it would judicial activism to overturn it but that it would conflict pretty strongly with prior precedent.

My problem with both the mandate and anti-mandate positions is that they're bad public policy.

I've read most of it now.  My suspicion is that it'll be upheld, but I could be wrong.

Quote from: Sheilbh on April 10, 2012, 03:24:01 AM
I've read most of it now.  My suspicion is that it'll be upheld, but I could be wrong.

as much as i wish it will be upheld, i don't think with this course that it will be. that's only an opinion, and i dearly hope i'm wrong

Quote from: Neil on April 09, 2012, 07:43:53 PM
My problem with both the mandate and anti-mandate positions is that they're bad public policy.

True, but I think that the mandate-for-insurance policy has to be shown to be a failure before the majority will accept the truth that market forces have limited leverage in the health care field.

Quote from: grumbler on April 10, 2012, 06:42:48 AM

Quote from: Neil on April 09, 2012, 07:43:53 PM
My problem with both the mandate and anti-mandate positions is that they're bad public policy.

True, but I think that the mandate-for-insurance policy has to be shown to be a failure before the majority will accept the truth that market forces have limited leverage in the health care field.

Perhaps.  The again, it seems like a majority of Americans would want it to fail anyways, because business as usual is better than any alternative where someone attempts to improve things.

Quote from: The Minsky Moment on April 09, 2012, 05:53:01 PM

Quote from: Admiral Yi on April 05, 2012, 08:40:52 PM
Leaving the conservative definition aside for a moment, how do you defend yourself against the charge of inconsistency in using the liberal definition?

Where's the inconsistency?  I raised the issue of activism only because it seems like some of the most vociferous critics of activism (e.g. when in the form of Boumediene  v. Bush) line up behind the idea that the mandate should be struck down.  That does seem inconsistent.

My problem with the anti-mandate position is not that it would judicial activism to overturn it but that it would conflict pretty strongly with prior precedent.

That last part doesn't really matter to those that have always thought that the prior precedents were poor decisions, i.e., that the Court interpreted the commerce clause too broadly in the past.

Quote from: dps on April 10, 2012, 08:11:30 AM
That last part doesn't really matter to those that have always thought that the prior precedents were poor decisions, i.e., that the Court interpreted the commerce clause too broadly in the past.

Sure.  But at risk of banging the same drum again, the "past" with respect to broad Court interpretations of the commerce clause (and the N&P clause) includes the Gonzales v. Raich case, and includes Kennedy and Scalia doing that intrepretation. 

Quote from: Neil on April 09, 2012, 07:43:53 PM
My problem with both the mandate and anti-mandate positions is that they're bad public policy.

The good policy options are off the table, so what's left is selecting the brand name of the poison to drink.

Quote from: The Minsky Moment on April 09, 2012, 05:53:01 PM
My problem with the anti-mandate position is not that it would judicial activism to overturn it but that it would conflict pretty strongly with prior precedent.

You've made some statements in this thread that smelled very much like a preference for judicial deference to the legislature.

Quote from: Admiral Yi on April 10, 2012, 06:00:15 PM

Quote from: The Minsky Moment on April 09, 2012, 05:53:01 PM
My problem with the anti-mandate position is not that it would judicial activism to overturn it but that it would conflict pretty strongly with prior precedent.

You've made some statements in this thread that smelled very much like a preference for judicial deference to the legislature.

I agree with the presumption of constitutionality, that is true.  But that presumption is rebuttable. 

It would be "judicial activism" to NOT overturn it.


JA is bullshit, but let's be honest about it.

Quote from: MadImmortalMan on April 11, 2012, 12:00:54 PM
It would be "judicial activism" to NOT overturn it.

Wait, are you saying that inaction can treated as action in some cases?  :P

Quote from: The Minsky Moment on April 10, 2012, 03:56:14 PM

Quote from: Neil on April 09, 2012, 07:43:53 PM
My problem with both the mandate and anti-mandate positions is that they're bad public policy.

The good policy options are off the table, so what's left is selecting the brand name of the poison to drink.

The problem is when the mandated system does really work the Goptards will want to go back to the bad old days.  What are the chances that real reform will ever become viable?

Quote from: Admiral Yi on April 10, 2012, 06:00:15 PM
You've made some statements in this thread that smelled very much like a preference for judicial deference to the legislature.

That just means JR is sane and understood constitutional law in law school.  The Court presumes constitionality at the outset.  The point of a constitutional challenge is to demonstrate the presumption is incorrect and that the legislation is, as a matter of law, unconstitutional.

Quote from: crazy canuck on April 11, 2012, 12:48:09 PM

The problem is when the mandated system does really work the Goptards will want to go back to the bad old days.  What are the chances that real reform will ever become viable?

At some point we'll either begin completely ignoring the constitution entirely or make a shit ton of amendments that make the stuff we already do kosher. There is no going back, no matter what the GOP thinks.

Quote from: crazy canuck on April 11, 2012, 12:48:09 PM

Quote from: The Minsky Moment on April 10, 2012, 03:56:14 PM

Quote from: Neil on April 09, 2012, 07:43:53 PM
My problem with both the mandate and anti-mandate positions is that they're bad public policy.

The good policy options are off the table, so what's left is selecting the brand name of the poison to drink.

The problem is when the mandated system does really work the Goptards will want to go back to the bad old days.  What are the chances that real reform will ever become viable?

Well, if things get bad enough, it'll eventually start to overcome American nationalism.