I don’t know enough about legal issues to say very certainly that the Supremes will void HCR. But my guess is they strike down enough of it to make it unworkable in a 5-4 decision.
The idea that if it is struck down something better will pass seems insane to me. If it is struck down the Village will tell us that this proves we are a right-center nation and that Democrats should just give up. Does anyone really think otherwise?
cleek
nobody who considers themselves sane, i hope.
JPL
Is this a trick question?
NO NO NO
Kryptik
That’s about my impression too, Dou-er…Writer.
It’s honestly like God telling us that we were all utter dumbasses for daring to be liberal, and the current GOP crop was our Great Flood.
It’s fucking embarassing to see folks with the coherency of internet trolls not only taken seriously but rewarded day in and day out for their fucking idiocy.
Bnut
How can Republicans say that HC needs reform, and yet give no plan of their own after repealing what has already been passed? My guess is small genitalia or a stroke during early childhood development.
eemom
If you don’t know about legal issues, why would you guess this?
I reiterate my stand against ignorant prognostications of the law as stated in previous threads, and I’m disappointed to see you doing it — by which you also
undermine your second point, with which I entirely agree.
Captain Haddock
I don’t know about all that, but I do know that it will be good news for John McCain.
JPL
Kain is waiting for the trickle down health affordability act.
Mubarak is on and he’s practicing taking Becks spot.
People are violating the constitution..
Kryptik
@eemom:
Because these days, Supreme Court rulings tend to have much less to do with legal issues and much more to do with politics. And the politics say “FUCK YOU LIBS GET OUT OF OUR COUNTRY!”
jibeaux
True. But I think it changes the game a little bit for two reasons. One, the status quo ante sucks, everyone knows it sucks, it gets worse and worse every year as health care costs double every 9 years or so, and absent significant legislation that trend is going to continue. Two, if people actually did have for a period of time access to insurance without pre-existing condition exclusions, if your recent college grad son hasn’t found a job yet but thankfully can at least stay on your insurance and then he gets kicked off by the Supreme Court — you get the idea — the public dissatisfaction is compounded further. I don’t know at what stage of the game that dissatisfaction actually translates into legislators being willing to take another bite at the apple. I suspect a lot. But I do know that any cheering in the streets if the ACA is struck down will last about 15 minutes.
Dave
I don’t know about that. Kennedy isn’t necessarily going to vote with Alito and Thomas. And Scalia talked about the constitutionality of a federal mandate back in 2005. So I don’t think it is a foregone conclusion that HCR is dead.
KG
My guess is that HCR will actually be upheld by the Supremes, probably in a split decision with a few “concurring in part and dissenting in part” decisions. Despite what they say, the conservative wing of the Supreme Court does not want to go back to the Lochner era. They had the chance with the Raich case, but suddenly, when it became about legalizing pot, they found the reasoning of Wickard to be useful.
As for this:
No, I don’t see how the center-right nation stuff works when the law is struck down by the Courts. My guess is there will be talk about process and what can be done to make the law work within the confines of the decision striking the law down (which, again, I don’t think will happen).
Davis X. Machina
If something you already have is suddenly less common, it becomes more valuable, even if it doesn’t change.
A Republican is someone who can’t drive by a tree-house without fantasizing about pulling up its ladder.
Observer
@eemom: You don’t need to know about the law to predict it’s going to be a 5-4 issue.
We can pretend that certain Supremes “follow the law” to its conclusion and you need to know the law to predict which side they’ll come down on. Or we can acknowledge politically that certain Supremes on certain issues already have a conclusion and try and figure out how to frame a legal justification to cover their tracks.
5-4 all the way. Just don’t know which.
Brachiator
Yeah. Me. The Democrats need to come up with a plan to shore up health care reform, including something other than the individual mandate. Everybody knew that the attacks would come and would be relentless.
thomas Levenson
Anthony Kennedy.
This decision will come down to a 4-4-1 endgame, with the 1 actually deciding the case.
I am not reassured.
JGabriel
A Writer At Balloon-Juice @ Top:
Not me, but I just mock despairingly (‘cuz what else are ya gonna do?) from out here in the void of learned hopelessness. But I kind of suspect we’ll be better off as a movement if others do NOT join me. Even if positive change is a hopeless goal in my lifetime, at least we can leave a record that we tried. After all, how many socia1ists had to die in union crackdowns before we got an eight hour workday and ended child labor?
.
dollared
@eemom: OK, let me help Mr. Writer: Buckley v. Valeo, then Citizens United.
Legal prognostications have no meaning in any five minute span where Roberts has Kennedy alone in a room.
So quit pretending legal training has any value when assessing this Supreme Court.
thomas Levenson
Leave aside the possibility of the mass madness that would come if Scalia, say, or any of his comrades on the judicially legislating side of the Supremes, were to choke on a fishbone anytime soon.
Now that would make for some awesome comment from RS and their ilk.
A Writer At Balloon-Juice
@eemom:
Actual legal issues probably don’t matter here.
Davis X. Machina
@JGabriel:
Nowhere near enough.
These people are only interested in bringing back a world where the one-tenth are born booted, spurred, and ready to ride, and the rest are born saddled and ready to be ridden.
What’s discouraging is the sheer number of people who are falling over each other in their haste to saddle themselves.
The Moar You Know
@Brachiator: And this will happen, with the House firmly in the grip of the Tea Party, how?
JGabriel
@Dave:
We had a Republican president back then. I’m sure Scalia feels very differently about the constitutionality of federal mandates that are passed by Democratic presidents.
.
eemom
This is just ridiculous.
Even assuming the ideological bias of the conservatives on the Court, there are many reasons for them not to strike down this law. If they even TAKE the case, which it is far from certain than they will.
No fucking appellate court has yet ruled on this. Opinions by wayward trial judges don’t mean SHIT.
As noted on a previous thread, 7 of the SCt justice — all except Thomas and Scalia — recently voted to DENY cert on the very commerce clause issue that is at the heart of the wingnut challenge.
The implications for reversing a century and half of precedent on that issue are HUGE, and many of them are far from favorable to the interests a conservative justice would wish to advance.
Goddamn, I wish there’d been bloggers around in the 1980’s — I would have saved a shitload of money on law school.
Kryptik
@JGabriel:
Apparently not enough to prevent the current crop of the GOP from riding that white horse back to the Gilded Age, since they seem poised and with enough momentum to roll back all of that piddly socialistic shit and replace it with REAL ‘MERICANISM!!
Mnemosyne
In other news, Claire McCaskill can go fuck herself.
Earl in CA
what about getting thomas impeached for failing to disclose his financials? if this can happen under obama’s tenure, the court may switch and we can get a 5-4 in favor of HCR.
i know…i know….the beltway will never impeach thomas….moving on….
eemom
@A Writer At Balloon-Juice:
yes they fucking DO!
hey, you teach math, don’t you? Mind if I give a guest lecture to one of your classes on the topic of Numerology? Cuz actual mathematical principles don’t matter to that.
Kryptik
@JGabriel:
Apparently not enough to prevent the current crop of the GOP from riding that white horse back to the Gilded Age, since they seem poised and with enough momentum to roll back all of that piddly soshulistic shit and replace it with REAL ‘MERICANISM!!
jfxgillis
Doug:
I do kinda think that. Simple reason, actually. Health Care costs were killing business under the old system. Their beef with HCR wasn’t because they didn’t know the old system couldn’t work. They did know that.
Their beef was interest-based–they didn’t want to pay some of the costs of reform–and out of class solidarity with their insurance company peers. Bringing back the old system hurts every business sector except those directly profiting from health care spending, and those business for whom heath care is a cost not a profit generator won’t stand for it.
Kryptik
@eemom:
Like I said some posts up, these days these ruling are less and less about actual legal soundness and much more about politics. The Roberts court has bent over backwards to subvert enough shit for the GOP ideology of ‘Corporations Good! People Bad!!’ that I scoff at anyone who actually believes that this shit will only be ruled with law and logic.
Will
The prize for conservatives really isn’t the mandate–that actually is something they should be happy about. The mandate is protection for the private healthcare industry. That’s why Vinson went so far yesterday, further than the prior Virginia judge, in throwing out the whole thing, not just the mandate. What they really want to take out is the pre-existing conditions ban. But they can’t do that on its own, because it’s too popular. If the mandate alone is thrown out but the remainder of the law remains intact, including the pre-existing conditions ban, private healthcare would be forced to take on all of these sick people, while at the same time, healthy people would not be required to enroll. That is the nightmare scenario for the American healthcare industry, and that, in my opinion, is why if they decide to scrap anything, they’ll decide to scrap everything.
General Stuck
Right Arm, DougJ. Couldn’t have said it better.
@eemom:
And what does “legal Issues” have to do with it? The SCOTUS has the power to create it’s own legal issues out of wingnut whole cloth. Like they did with CU, and create a whole new paradigm for what they want the legal issues to be, and creating a new test for use of the CC is not exempted. One thing is assured, it will end up one of two broad ways. The ACA will remain in tact as written, and therefore fully constitutional, or it will not, in part or in whole.
eemom
whatever. I give up.
Dave
@JGabriel: Maybe…I’ll just say this. Scalia has the biggest ego of any Justice on the Court. He is, and always will be, right. He has no problem overturning established law if HE finds it wrong. But will he be able to say that HE himself was wrong just six years ago? I don’t think his ego will allow it.
General Stuck
@eemom:
LOL, you can look forward to knocking us around if and when the SCOTUS does the right legal thing. I promise to stand up straight and take it like a fake persona./
eemom
@dollared:
you’re an idiot.
taylormattd
Yes, actually. A substantial number of wackos in the “progressive” blogosphere actually believe we will get Medicare for All after this. Apparently all it takes is bullypulpitleeedership.
JGabriel
@eemom:
There are two federal court decisions upholding it, two dismantling it to different to degrees, and 12 federal dismissals of challenges to HCR.
The US Gov’t is the defendent and intends to appeal all the way up, as do the plaintiffs, which in the Vinson case includes 26 AG’s or, doing the math, more than half of the states.
It is a virtual certainty that the Supremes will be hearing this case.
.
damn good mr. jam
Despair is boring.
The Moar You Know
@Earl in CA: Please, you knew better before you started writing the post. Thomas, for many reasons, most of them racial, is absolutely and totally untouchable.
Remember “high tech lynching?” Shit, that was pre-Internet. Don’t think he wouldn’t play that card.
A Writer At Balloon-Juice
@eemom:
People talked like that before Bush v Gore.
Noonan
They’re not going to need a SC ruling to tell you that.
aimai
@jibeaux:
Sure, but I don’t think that doesn’t mean that the Supreme court won’t strike it down anyway. Because they have an anti-commerce clause agenda anyway, don’t they? So its all good. And given how hard it was to pass it the first time around, with the wind at our backs and a majority in both houses, I just don’t see any quick turnaround on getting a new version passed. What I’d like to know, if anyone has a crystal ball, is whether having an increasingly popular law struck down by the Supreme Court will redound to the Republican’s favor (the good for John McCain point up above) or whether it, along with all the other pathetic shenanigans, will destroy them as a party. Because only if we managed to somehow hold the Senate and Retake the house plus keep Obama in 2012 would we even have a crack at replacing a defeated ACA. If not, we will wallow in this hell for another two to four years and that’s a lifetime for some people who are currently hanging by a thread.
aimai
The Moar You Know
@taylormattd: Yes, but it needs a better name. Something all Congressional-like.
I’ve got it! How about the “Enabling Act”?
Then we’d finally have a use for all those “Obama as Hitler” posters the TeaTards printed up.
hueyplong
CU wasn’t decided in the context of as much long-established, on-point precedent as applies to this health care deal.
There is a reason that legal scholars have considered these lawsuits to be more sound and fury than something that will eventually invalidate the act. I think you’re going to see the actual lawyers here get a little bit contemptuous and drop out of the discussion.
If it’s all about energizing progressives the way the right-wingers are constantly thinking they’re at Stalingrad, fine. That’s how I see this being presented when I’m feeling generous in spirit. Otherwise, the “I told you the sky was falling” crap in the daily thread starter on this subject would be getting irritating.
Alex S.
To repeat myself, I would guess that the law would be upheld by 6-3.
Suffern ACE
@Bnut:
You act as if there is a problem with our current healthcare system. We spend way too much money for it not to be working.
JGabriel
@EEMom: I wrote this in a previous thread
All of the people arguing that the legal arguments don’t matter, who believe the SC will decide on political grounds? That’s a direct result of the uncertainty I diagnosed above.
Don’t blame us for believing the Supreme Court is no longer a consistent or unbiased ruling body. Blame its right wing.
.
Tsulagi
That would be my guess too. Supremes sever the mandate and leave the rest which then makes it unworkable.
Exactly. If this is struck down, R-baggers go nuts. During the election cycle next year they’ll say they didn’t vote for ACA precisely because as real Americans they knew it was un-American unconstitutional. They’ll also say they know HCR is needed. And if elected to majority control of Congress plus the presidency, they’ll deliver to make the best health care in the world even bestest. Of course detailed plans to be released later once they have that control.
For true HCR you’d then probably have to wait until once again Ds have the presidency and strong majorities in the Congress. Then hope for a lame duck session after they’ve been voted out. Dems seem to get their juices going and deliver after they’ve been fired. Whatever works.
Maude
@Mnemosyne:
What is wrong with her? People on SS are having a rough time now with the cost of food and energy. Picking on the vulnerable is immoral.
Violet
I’m glad I’ve got family in the UK and a very realistic way to go live there. It’s looking a lot more attractive every day.
Noonan
Sad irony: The part of the bill conservatives are attacking as unconstitutional is the same part of the bill the insurance companies love the most.
This is a lot more complicated than Red v. Blue and 5 v. 4 on the court. The White House/Justice Department is going to have the support of the insurance industry on this one.
JGabriel
@Maude:
Fixed for accuracy.
.
SpotWeld
Is the Supreme Court constrained to rule on the issue as it is sent to them. That is, if they are ruling on the complaint that the ACA is unconstitutional *as a whole* can they still “split the baby” as it were, and state only the mandate is unconstitutional and leave it there with a bit of legalease to the effect “sent it back when you fixed that bit and we’ll rule on the rest of it”
Ian
@Violet:
Wait and see, mind you. The ConDems are doing their level best to destroy the NHS right now…
eemom
@A Writer At Balloon-Juice:
This is different. It is also different from Citizens United. I’d explain why, but legal issues don’t matter.
Redshift
@KG:
I pretty much agree with this; even in our current degenerate media environment, SC decisions tend to be greeted with “well, that changes things” rather than declarations that it says something about the country. I guess even for our media overlords, presenting nine justices as representing the will of the people is a bit much.
It won’t necessarily be quick, but I that unless the Supremes pull a full Vinson and invalidate the whole thing, the response will be to patch it up (a la Lily Ledbetter), not to abandon it for a generation as it would have been if it hadn’t passed in the first place, nor wholesale replacement with a progressive utopian vision.
DA
This is kind of silly. Serve up a baseless, pessimistic prediction on the front page and let the commentariat wallow in despair. If the prediction turns out to be wrong, this post will just be forgotten.
But hey, as long as we’re offering up predictions without any evidence, I’ll throw in my own: the case makes it to the Supreme Court and the good guys win with 5 or 6 votes.
Zifnab
@aimai:
Simple to pass with a wind at our backs in the House maybe. In the Senate it was six long months of pulling teeth and finding ways to disappoint progressive constituents.
That said, nothing is a “quick turnaround” in the US Federal Government. But the longer the health care law stays in effect and the more comfortable people get with each phased-in provision, the harder the backlash is going to be if there’s a repeal. And backlashes do provoke action a bit harder than the slow burn that has been the current health care crisis.
I think we’ve been waiting a long time to get a government that isn’t so in-the-can for corporations. If entrenched incumbents keep getting tossed out and Congress continues to whip back and forth between Democrats and Republicans, we could very well luck out, have the stars align, and get a majority more progressive than in ’08. Of course, we could just as well get a bunch of Teahadist lunatics that want to nuke California and invade Mexico.
A health care repeal will destabilize the country further. I don’t think it’s clear on what side of the left/right spectrum we’ll eventually land.
JR
I don’t think there are five justices who think the mandate is unconstitutional, but I’m viewing the possible outcomes as clear law we can sustain v. murky law we can challenge down the line.
If the conference vote goes 5-4 to the conservatives, Roberts will want to give himself the case or will want Scalia to do it (to allow him to distinguish between Raich and HCR). But he’ll have to assign it to Kennedy just to keep him on board, and that might cause Scalia, Thomas, and maybe even Alito to file a separate concurrence, meaning the law will remain muddy. If it’s 5-4 the other way, Kennedy gets to assign the case to himself, the liberals are unlikely to concur separately, and he’ll have written the definitive Commerce Clause opinion of the century.
J.W. Hamner
I certainly can’t see any SOTU shenanigans leading to Medicare for all or some such… though how bad it would be would really depend on what they struck down. If they just toss the whole thing out then I think we’re screwed until like 2022… or whenever our next realistic shot at holding the presidency and both chambers with a super majority in the Senate is. However if they just get rid of the mandate, that means “death of private health insurance,” the forestalling of which I think would garner enough GOP support for a technocratic fix that suddenly is termed freedom incarnate.
General Stuck
My cynicism on this particular issue, comes from a general instinct that the conservative, or right wing in this country has congealed into a sort of broad state of ever more focused rebellion to any and all things status quo visa vi liberalistic. They appear to have convinced themselves of the notion they are acting as saviors of the realm, or similar nonsense, in some cases intimating divine purposes. Of course, we who remain semi sane, see it as pure self preservation as a viable political entity going into the future. But crazy is crazy, and you cannot reason with it, when it is so very afraid. And they are very afraid, as a group, of this HCR law.
eemom
@JGabriel:
I don’t disagree that the conservatives on the Court are biased. I addressed that above. I’m saying that there are reasons that their bias will NOT favor striking down this law.
But those are legal reasons, so never mind.
meh
@Maude:
she’s in an a campaign cycle – she has to swing to the right to court the Missouri Middle…seriously, why else do you think she is doing this? Because she hates old people and poor kids? If she falls do you think you are going to replace her with another Russ Feingold? Man people are delusional at times – she has to run to the middle to get another term – especially in this climate. I will take 100 pandering mccaskill budget bills that go nowhere to avoid a Missouri version of Coburn/Demint/et al.
Davis X. Machina
@SpotWeld: They’re not constrained by anything, except Anthony Kennedy’s vanity. Whichever side gets his vote, that’s where ‘justice’ resides. I recommend flattering him by insinuating that only his Solomonic powers of decision stand between us and tanks in the streets. It worked in Bush v. Gore, it should work again.
Marc
The paranoia on this issue misses the point. You’re thinking in team red vs. team blue terms. A lot of what the republicans do, however, is dictated by their corporate and wealthy owners. Those people stand to lose tons of money if the government defaults on its debt, or health care reform gets repealed, or so on.
You don’t have to think in idealistic terms to doubt that the supreme court will overthrow this. You simply have to look at the interests of the forces that matter to them – the ones with money. And those interests simply don’t favor repealing HCR.
Redshift
@jfxgillis: I agree with this, too. I was always mystified that big businesses like GM that were getting killed by healthcare costs didn’t support universal healthcare, especially since they operated in lots of countries that had it and could see the difference.
I think it was basically that avoiding the risk that comes with change (plus the general assumption that Republicans were always better for big biz) won out over those practical concerns. But since most or all of the ACA will likely be implemented by the time it reaches the Supreme Court, the risk-aversion shoe may be on the other foot.
A Writer At Balloon-Juice
@eemom:
In a decision this politically important, no, legal issues just don’t matter.
J. Michael Neal
@Tsulagi:
Keep in mind that the chances of the Supreme Court handing down a decision on this by the 2012 elections is zero. As noted elsewhere, it hasn’t even reached the circuit court level yet. I don’t see this making the SCOTUS docket until 2013. One consequence of this is that more of the law will be in effect and would be taken away by a ruling that it is unconstitutional.
A Writer At Balloon-Juice
@DA:
Who is the 6th?
JGabriel
@DA:
I hope you’re right. The problem is that, given precedents on the commerce clause, we should be certain of the outcome. That we are not is evidence that the SCOTUS is losing the faith of its citizens in its ability to be consistent and fair.
.
Will
@Noonan:
“Sad irony: The part of the bill conservatives are attacking as unconstitutional is the same part of the bill the insurance companies love the most.
This is a lot more complicated than Red v. Blue and 5 v. 4 on the court. The White House/Justice Department is going to have the support of the insurance industry on this one.”
Not if the USSC pulls a Vinson and invalidates the entire Act. That the insurance industry would be more than pleased with.
JGabriel
@A Writer At Balloon-Juice:
There’s been repeated speculation across the ‘net that Roberts is a potential sixth vote. Personally I find it laughable, but who knows? Pigs may evolve wings some day.
.
Redshift
@JGabriel: Well, it depends what is seen as the pro-corporate side of the case by the time it is decided. The one thing that has been absolutely consistent about Roberts is that he always sides with large corporations.
aimai
@General Stuck:
Yes. One hundred percent yes. I have the same feeling of doom about this that I didn’t have about Bush v. Gore–because I just hadn’t grasped how end oriented the Supreme Court and the Republican party generally have become. And when the end is no quarter and total destruction of the opposition–and remember this health care plan is itself an actual Republican plan–then we might just as well roll over and prepare to die.
aimai
aimai
@J. Michael Neal: That’s actually the cheeriest thing I’ve heard all day.
aimai
Davis X. Machina
The health insurance companies may have to take one in the shorts for the greater glory of business generally. For the effective repeal of the post-Depression regulatory state, for getting back to an age before Wickard v. Filburn, before Darby Lumber, no price is too high. UHC and Aetna and Wellpoint/Anthem are just going going to have to suck it up.
JGabriel
@eemom:
But that’s the point.
The Supreme Court’s disregard of legal precedent in Bush V. Gore and Citizens United has left us convinced that legal precedent is no longer a valid basis for analysing and predicting SCOTUS’s rulings. Instead, partisan bias seems to rule the day in any remotely politicized case — and HCR has clearly been politicized.
.
chopper
@Bnut:
oh, they have an idea all right. an idea so smart their head would explode if they even began to know what they were talking about. trust me, they have it all written up and everything.
bend
“They wouldn’t do it,” is what I think when I think of the Court, “not in a million years. They haven’t the moxy.”
I thought that once before though, about a decade ago. I guess we never do know the depths of an institution’s depravity until it is in fact too late.
Redshift
@JGabriel: But I think her point is not that they’ll respect precedent, it’s that there are a lot of conservative interests that would be adversely affected by overturning that precedent (unlike CU or Heller, for example.) I don’t know enough to know how much that is an issue, or if there’s a way to thread the needle. But if so, that doesn’t make it open-and-shut, nor does it mean that they’re not acting out of partisan bias, but it does mean that it’s more complex to guess which way that partisan bias will cut.
Ailuridae
I don’t want to get into the legal stuff at all but to Doug’s point about passing something better. That isn’t going to happen until there is an honest discussion of the drivers of health care costs – namely compensation to doctors and provider profits. I don’t mind the bill that was passed but it was really an end around to controlling costs rather than a direct attack. Sometime in the next twenty years a discussion has to start about the fact that the country is literally being bankrupted keeping doctors salaries artificially inflated and paying obscene sums to large for profit providers.
The Republicans will never talk about this and as of yet, few democrats or liberal bloggers have been willing to either. I suspect that they feel that going after doctors, even when the truth is really obvious, is a losing proposition.
If the Jane Hamshers of the world really wanted to move towards single payer (and, yes, single payer would effectively solved both halves of the problem) they would explain this in great excruciating detail. Instead the focus on an inefficient middle man that exacerbates the problem (the insurance industry) rather than the actual drivers of health care costs (doctor compensation and provider profits)
Keith G
@eemom:
I get what your are saying and tend to agree. The right wing depends on a lot of folks who need and who crave stability. Bulldozing ACA will set a new precedent that will crack the foundations of many other long established holdings – many of which are highly favorable to a conservative world view.
So eemom, is there any way that five on SCOTUS can get to a design which allows them to believe that they can pretzel out a way to strike ACA without the collateral damage?
MikeJ
@Keith G:
Hahahahahaha!
They’ll just throw in a Bush v Gore clause. “We’re doing what we want in this case, but don’t expect us to pay any attention to it if you try to hold it against us later.”
jfxgillis
@Redshift:
As MattY continually, and I believe correctly, pointed out, Big Biz resistance to HCR was about class solidarity as much as anything else.
But now, as you say, the shoe’s on the other foot. It’s the health insurance industry’s turn to get in line for the interests of their fellow Big Bizzers.
piratedan
@Keith G: aren’t they the Supremes? WTF do they have to worry about? collateral damage and repurcussions are part of the game…. sheesh, check your memos man ;-)
danimal
@Davis X. Machina: I’m not certain that there are more than 3 justices who want to return to pre-Depression jurisdiction, but if they are, then you are right: the health insurance industry is on its own.
burnspbesq
@Kryptik:
Scoff all you want. When Scalia writes the opinion for an eight-member majority, and it borrows heavily from his concurrence in Raich (which borrowed heavily from Rehnquist’s majority opinion in Lopez), e and I will be here to mock you unmercifully.
Tsulagi
@J. Michael Neal:
Might get there quicker than 2013. Maybe not.
While Vinson didn’t grant a formal injunction, he held “the award of declaratory relief is adequate and separate injunctive relief not necessary.” DOJ and the Admin probably would like that cleared up so 26 state AGs don’t feel their states can ignore ACA implementation.
For political and practical reasons could also see the Admin wanting and pushing for a SCOTUS decision sooner rather than later. The state AGs too. And you just know there are at least a couple of Supremes who’d like to dig into this on their plate. We’ll see.
Davis X. Machina
@danimal: It’s a lot cheaper to buy state regulators — it’s targeted spending.
The best way to buy federal regulators is to buy the entire executive branch (cf. the Bush era EPA, e.g,) and have it suborn your regulators — and that is expensive and uncertain — some people just insist on doing their jobs
eemom
@Keith G:
I can’t think of one. However, I’m not as much of an expert on constitutional law as most of the non-lawyers here.
Drawing upon their collective wisdom as expressed in this thread, I suppose the Court could declare its holding non-precedential, citing Bush v. Gore as authority for doing that…..which would mean it was citing Bush v. Gore as precedent…..hmm…..
Can one of you experts help me out here?
JGabriel
@burnspbesq:
Scalia has repeatedly signalled in recent dissents that he wants to narrow the commerce clause — which a lot of analysts are interpreting as hints that he wants to knock down HCR.
So color me skeptical. Even if a majority upholds HCR, it will be 6 votes at best. Thomas, Scalia, and Alito are almost certain to vote against it.
.
burnspbesq
@aimai:
“Because they have an anti-commerce clause agenda anyway, don’t they?”
Really? Explain Raich, then.
eemom
@Tsulagi:
But no appellate court has ruled — or even begun the appeal process — and nobody can push for shit until —
oh, never mind.
burnspbesq
@JGabriel:
Explain how Scalia gets around his concurrence in Raich.
eric
Can’t say much. Jammed on redline. Eemom is closest to correct. No guaratee appellate courts will be split. Plus lochner is synonym for bad decision and this soundsd like lochneer. Gonna be hard for scalia to like a lochner like decison.
Brachiator
@The Moar You Know:
What does this have to do with what the Democrats do? Is that that since the GOP controls the House, the Democrats don’t even propose new laws? Does the president wait for marching orders from the GOP, and is reduced to only vetoing what he doesn’t like?
And let’s say that the Democrats regain the House in 2012? Are they supposed to just react to Supreme Court decisions?
Also too, is the secret message of this thread that if only Obama had got Single Payer or the Public Option passed, the GOP would lie down like lambs and the courts would rubber stamp health care?
I never thought that the legislation passed would be the final word on health care. And even with all of the insane opposition to health care reform, the GOP is still being let off easy (especially by the media). They still have to show that they have an alternative that will accomplish the goals of health care reform. Or, more accurately, the Democrats have to show how anything coming from the GOP will never be anything more than protectionism for the insurance companies.
Keith G
@piratedan:
@MikeJ:
Now aren’t y’all trying to have it both ways? If the are five conservative functionaries on the court, I am thinking that they may decide to act in a way (if such notions are entertained) that hurts conservative goals the least. If SCOTUS were to strike down the mandate and eviscerate ACA, that story would only last a day as the new headlines then would be about all the other issues (some a century old) that then be up for grabs. It would not be the level of stability that corporations in a struggling economy would be looking for.
Note, I think that there are two and possibly three who wouldn’t give shit, but others would in my view.
JGabriel
@eemom:
Sure.
Scalia (imitation):
How’s my Scalia?
.
General Stuck
I will take a stab at this, and have some experience as formerly being one of the first employees hired in a brand spanking new federal regulatory agency about a thousand years ago, but one that was created via the commerce clause.
The way it was set up was state centered mandates and not industry/federal centered, like the ACA. Whereas each state, from the get go was given a period of time to create a regulatory framework and enforcement ability to meet certain mandated provisions in the new fed law. Industry was involved somewhat in this procedure, but it was state centered.
So, the SCOTUS could uphold the CC premise for HCR, but could direct congress to make it more state centered, and any mandates mandated, letting the states figure out individually, how those would be met. Of course, the big deal here is universal coverage, and how it is to be paid for without driving insurance companies out of business.
There is already an opt out clause in the HCR, but it is set forward into the future, like 2017, or something. Making it almost moot, or out of the picture, whilst the feds implement HCR. I suspect this was by design, to dissuade states from opting out. For the reason, I have read, that HC delivery and insurance is so complex in this country only an industry centered and fed centralized oversight and management and implementation will work, and not cause mass chaos.
And I would think, any tampering, even a little, of requiring even partial revisitation by congress would have a destructive effect on the delicate matrix of this law only working right as a whole.
Prognostic bloviation. It’s what’s for dinner.
JGabriel
@burnspbesq:
See above.
.
Davis X. Machina
Blowing up the post-NLRB v. Jones & Laughlin etc. regulatory state would be bad for the bottom line?
Fifty laboratories of democracy is a nice rhetorical trope — fifty permanent races to the bottom in area after area now covered by the feds is a goldmine.
J.W. Hamner
I don’t really understand why the lawyers here are so outraged that non-lawyers want to speculate on what happens if SOTUS throws out all or part of the ACA. I mean, a judge just did it. That seems reason enough to consider it, even if y’all want to throw cold water on the idea that anybody on the Roberts’ court is that crazy and that we’re all getting ourselves into a tizzy for nothing.
Tsulagi
@eemom:
Thank you for pointing that out. Yes, a stop in at least one appellate court will occur before this certainly gets to the SCOTUS. But since you’re convinced all decisions at the appellate or SCOTUS level adhere to universally accepted immutable law logic, that should only take a day or two, right? As there could only be one possible decision. Politics, individual interpretations of the law and other factors have never shaded a court ruling, amirite?
General Stuck
@J.W. Hamner:
I suspect they want to believe the actors in their chosen profession, especially lead actor SC justices act honorably within known rules. or something like that. It is perfectly reasonable and natural imo, to take such a position. But it is also reasonable to doubt , as the prime example you state. And for the reason these are not business as usual times, even for the robed gods of justice for the highest court in this country.
Elizabelle
Despair does not become us.
dollared
@eemom: Thanks. You wanna compare LSAT scores or law school grades?
I’m glad you enjoyed law school and believe that the law matters. I can’t cling to that faith.
But you could be more civil – it would project more confidence in your beliefs.
General Stuck
@Elizabelle:
I’m not despairing at all. I believe in discussing possible realities with hope, but not blind hope. As a big believer of serendipitous outcome, especially in politics. Each possible calamity, comes with a set of unexpected opportunities not previously imagined, or seriously considered.
Long as we have free and fair elections in this country, the future is not set and adjustments can be made. There may be great fuckups and pain from those fuckups, but there is hope.
Punchy
Easy. Cuz greasy smelly libs passed the bill, therefore it’s garbage and needs to be excised. When you’ve got a job for life, one doesnt need to actually rely on law, precedent, logic, or fairness. All about pissin’ off libs, my man.
Pink Snapdragon
@A Writer At Balloon-Juice: I’m another one of those pesky real life lawyers and I’m siding with eemom, marc and huey on this one. You all are talking through your hats. Legal issues and precedents do matter, even to judges owned by corporate interests. Jeese, I almost thought I was reading the comments at FDL instead of Balloon Juice. Before, you go off you might want to do some careful thinking about what corporate interests want out of this, as opposed to what the baggers think they want.
A Writer At Balloon-Juice
@Pink Snapdragon:
Then how do you explain the rulings so far?
General Stuck
@Pink Snapdragon:
But DougJ, nor I, and others are making this argument based on “corporate interests”. We are saying that pure power politics trumps whatever corporate interests the SCOTUS wingnuts may hold. And not just any power politics, but that with existential fears of disempowerment from the levers of power and control in this country, into the future. Can you not smell the right wing fear that permeates everything these folks are doing and saying right now. Maybe the SCOTUS turns out to be above that sort of thing, but they are not required to.
Davis X. Machina
@General Stuck:
I remember being reassured by a whole posse of attorneys, including a couple of people who had clerked for DC appellate judges, on the old Salon TableTalk, during the evening of 12 December 2000, that there was no way the Supreme Court would ever interject itself in such a way to decide the election. That precedent, and the very culture of the institution, made it impossible.
dollared
@Pink Snapdragon: And you’re trying to have it both ways.
“The Supremes will follow the law.”
“the Supremes will fix things for the insurance companies (regardless of the law.”
Which is it?
Easy. Ever since the Federalist Society gained control, the Supremes have consistently shown that they will take the easy path to any possible short term bitch slap of FDR. And the health care issue is the perfect Commerce Clause case.
eemom
@A Writer At Balloon-Juice:
the same way you explain a low level employee who fucks up and gets slapped down by their boss.
A federal district court judge is the lowest level of the federal judiciary. However, he/she also has lifetime tenure (barring impeachment). Therefore, they can be as batshit crazy as they want without regard to the consequences.
General Stuck
@Davis X. Machina:
It went against 100 years of clear precedent giving states wide latitude in resolving their election problems of all kinds. Allan Dershowitz called it flatly corrupt.
Chuck Butcher
@eemom:
I can understand a lawyerly response that believes that the rules count – ie precedents, established law, literature surrounding the Constitution – etc. I certainly do agree that they should count.
I’d like you to go back to the Heller decision, which outcome I agreed with, and look at the concurring opinions in relationship to all the literature surrounding the establishment of the 2nd A. I have and because I was deeply involved in a political process that was aimed at adhering to the reasoning of the 2nd as opposed to political posturing the SCOTUS opinions are horseshit despite an end that was correct.
Please explain to me how RICO has stood, if this is to be taken as an institution that is driven by law rather than results.
Punchy
And using such sound legal and precedents, Thomas once voted to allow schools to strip search, fondle, and humiliate 13-year old girls based on hearsay evidence without a warrant.
Ladies and gents, there’s your USSC Legal Eagles for ya.
A Writer At Balloon-Juice
@eemom:
Thanks.
Chuck Butcher
@eemom:
And in regard to the SCOTUS this means what? It would seem that you’re arguing that the difference is BOSS and not the rest.
Pink Snapdragon
@JGabriel: You do not understand or appreciate the significance and breadth of the commerce clause as opposed to the issues before the court in Citizens United or Bush v Gore. The commerce clause permeates economic life in this country. Focus on corporate interests and think about what the consequences would be for the questions of law involved. Hint: Deciding in favor of the bagger position would have far reaching implications for many other laws relating to the public welfare and commerce.
Also, pay attention to what the court is doing in other cases, not just the ones that the media is paying attention to. I am not in a position to cite cases here, but for anyone who is actually paying attention to what the court does on a day in day out basis, I don’t think the likely outcome is perceived to be nearly as dire as you think it will be. A Supreme Court decision is a long way off in the future. Furthermore, no one ever “knows” what the outcome will be before the decision is actually rendered. You only know the strengths and weaknesses of the arguments you are making. Just In the last week or so, the Court issued a decision in an employment discrimination case involving retaliation and who is protected under the law. The decision reached by the Court was pretty much the exact opposite of what all of you would have predicted the court would have reached. You also would be surprised by who voted for what in that decision. Yes – law and precedents do matter.
eemom
@Chuck Butcher:
no, I am arguing that an appellate court, and especially the Supreme Court, has to be cognizant of the implications of its decision for future cases, whereas a trial judge does not.
dollared
@eemom: I just really, really wish that you were right. But “Bush Wins! And this ruling has no precedential value!” pretty much explains why you are making good arguments, but IMHO (informed by decades of experience), our good Writer is correct.
Pink Snapdragon
@eemom: I never realized it could be so difficult to explain to non-lawyers how this stuff works.
General Stuck
@Pink Snapdragon:
Yes it does, and most of us here understand the potential consequences of severely limiting the CC, and it’s potential for rearanging basic life in this country. I hope you are correct, I really do. And I disagree with at least the CU verdict equating money with speech, that over time, in it’s own way, will be at least as destructive to this democracy as overturning ACA in whole, or in part.
PanurgeATL
What worries me is the assumption that if HCR is thrown out, it’ll be good for the GOP (as opposed to the interests they represent). How? Hasn’t it ever struck anyone that repeating that meme helps make it so, on issue after issue?
General Stuck
@Pink Snapdragon:
LOL, I doubt that. Unless you are stating the SCOTUS MUST uphold the ACA, and the CC in this case. Otherwise, STUFF is subject to change.
Chuck Butcher
Previous to the CU decision I spent literally years arguing with people on my own side to find other ways than more drastic laws than McCain/Fiengold to address political speech because I believed that the concepts of free association, free speech, and money = speech would win. I absolutely do not believe that big money buying elections is a good outcome but I also do not see how those concepts are going to be trumped.
I believed then and I do now that it was a mistake to concentrate on such laws and not on organizing a monetary response and I think this last election shows this. It is pretty easy to forget that these laws may meet an immediate concern but that they continue to exist and still count when they are used against our own interests.
dollared
@Pink Snapdragon: Hello, many of us who disagree with you are lawyers. It is the facts and your arguments that are failing you, not our educational backgrounds.
You see, I remember when 1) we had antitrust laws. Now we have Wal-Mart. I remember when we had labor laws. Now we have China. I remember when we had a federal elections commission. Now we have Republican commisioners who refuse to do their jobs and still get paid. I remember when securities frauds would go to jail. Now Steve Jobs is a hero after backdating hundreds of option agreements (and should I add GS front-running clients, or the dotcom CEOs, or the mutual funds allowing post-close share purchases?).
Your belief in the rule of law is unjustified by the facts in front of us. It is not about education.
mclaren
The American health care system as it currently exists is broken. It is headed for a crisis. If Obama’s HCR bill is held to be constitutional, this merely delays the crisis; if the HCR bill is held in part or in whole to be unconstitutional by the Supreme Court, this merely hastens the crisis.
If you look at this graph, you can see that there is not enough money in America to keep paying for our health care if costs continue to rise at anywhere near their current rate. Sad to say, the Democrats’ HCR bill does nothing to reduce the rate of cost increases. On the contrary: the available evidence shows that the individual-mandate system with regulation, which is modeled on the Massachusetts state health care plan, actually forces health care costs to rise faster than our previous laissez faire no-mandate-and-no-regulations-on-insurers system.
Source: “Massachusetts Shows Federal Reforms Headed For Trouble,” Kaiser Health News, 22 July 2010.
The essential problems with the American health care system are systemic. They involve some deeply embedded American practices — for example, the American tradition of heroic last-ditch intervention to save life rather than spending much smaller amounts of money for preventive care. The unhealthy American fast food diet is strongly implicated in our higher health care costs. The AMA’s corrupt monopoly restriction on the number of doctors allowed to enter medical school each year has driven up the salaries of U.S. doctors to more than twice the typical salary of a German doctor or a French doctor. American medical devicemakers routinely bribe hospitals to use their particular brand of overpriced device, while big pharma routinely bribes doctors to prescribe expensive patent medicines instead of the much cheaper generic brands. American doctors make money hand over fist by operating as businessmen to maximize their profit, which means that a routine doctor visit in America typically costs $150 compared to the $35 in France and $25 in Germany. The sky-high cost of medical school plays a big part in the high cost of American medicine, and isn’t found elsewhere in the world.
None of these factors driving up the cost of American health care will be changed in any way regardless whether the Supreme Court finds Obama’s HCR bill constitutional or unconstitutional. A crisis in American health care is coming. The court rulings represent a sideshow.
There is simply not enough money in America to continue to pay for U.S. health care if its costs keep rising at the present rate. This is what will eventually force a breakdown and total reorganization of America’s broken health care system. The court rulings may slow or quicken that eventual breakdown and reorganization, but they aren’t going to prevent it.
Source: “Health Care: The Disquieting Truth,” Dr. Arnold Relman, The New York Times Review of Books, 30 September 2010.
The numbers speak for themeslves. Crisis looms. The Supreme Court rulings remain a sideshow. At some point, costs for American health care are going to have to come down, and they’re going to have to come down radically — not by 20%, or 25%, but to European levels of cost, meaning to 1/5 or 1/7 of their current prices. There is no alternative: individual states simply cannot continue to pay for medical services at their current rate of increase, employers and employees cannot continue to pay for health insurance premiums (driven by underlying medical costs) at their current rate of increase, and the federal government’s health care entitlement programs cannot continue to pay for medical services at their current rate of increase.
America has only a very few years before the skyrocketing costs of our health care system force a complete systemic breakdown. Change will come. The supreme court rulings prove irrelevant to that change because it’s being forced by the basic math: there just isn’t enough money in the world to keep paying for American health at the current rate of increase. What form that change it will take, and how it will disrupt our present methods for delivering health care services, no one can say. But regardless of the Supreme Court’s ruling, there is simply no alternative to drastic change at some point in the near future, because the hard cold arithmetic shows that the American health care system as it currently exists is simply unsustainable.
Chuck Butcher
@eemom:
I don’t disagree with that, I also don’t disagree with the rest of the statement – either. I also don’t see how any of that has spit to do with the SCOTUS neccessarily doing good law.
Large chunks of the concurring opinions in Heller were irrelevant to the question in regard to the 2nd or flatly not even true – that is despite my agreement with with the outcome. As law it sucked and it needn’t have but it was a fucking political decision thanks to the reasoning of the decision. You are arguing that ACA won’t be the same thing and I’m not in agreement based on this Court’s own performance. This same bunch can turn right around and state that the next CC case does meet the standards that they stated this one violated. Some of you are acting as though there is no subjective analysis of meeting standards and I’m giving you a case where that is exactly what happened. It happens a lot which is one of the damn reasons we have that Court.
Chuck Butcher
Some of you may not like the Heller case as an example so I’ll offer you up the OR Assisted Suicide Law which also went to the SCOTUS and resulted in something most of you might agree with and it involved the CC and the 10th A where the Fed argued it had precedence due to the CC and abuse of prescription drugs covered under the CC and they lost.
burnspbesq
@Tsulagi:
” that should only take a day or two, right?”
Not bloody likely. More like 18-24 months.
Chuck Butcher
@burnspbesq:
I don’t remember the Bush v Gore taking that long.
burnspbesq
@dollared:
“Easy. Ever since the Federalist Society gained control, the Supremes have consistently shown that they will take the easy path to any possible short term bitch slap of FDR. And the health care issue is the perfect Commerce Clause case.”
That is pure, unadulterated, pharmaceutical-grade nonsense. If that were true, Raich would have come out the other way. So would Lopez.
I know you’re not ignorant, so why you talkin’ this bool-sheet?
Chuck Butcher
@burnspbesq:
So you’re saying that Raich involving pot had not shit to do with the CC finding? Give me a fucking break.
burnspbesq
@Pink Snapdragon:
“I never realized it could be so difficult to explain to non-lawyers how this stuff works.”
You must be new around here. Welcome aboard.
Chuck Butcher
Lopez in 1995? You’re bolstering your argument with SCOTUS 1995 and pot in Raich and what the fuck? So the CC isn’t a subjective finding based on these cases? I’ll be go to hell, I’d have judged them on their own merits as being political at the time they were made. Okeedokey, under Lopez goddam near anything is CC if it happens in a couple places scattered around the US.
burnspbesq
@Chuck Butcher:
Everything about Bush v.Gore got expedited consideration because of the need to get it resolved in time for the Electoral College to act. The Twentieth Amendment sets a pretty firm deadline for getting a new President lined up and ready to go.
There is no similar exigent circumstance here.
burnspbesq
@Chuck Butcher:
You really have no idea what you’re talking about.
Pink Snapdragon
@dollared: The “facts” you reference are the failure of regulatory agencies to carry out their mandates, no? Those regulatory agencies are part of the executive wing, not the judiciary. The discussion here is about what the Supreme Court is likely to do when the appeals make it to that level, not the failures of regulatory agencies. As an aside, my personal experience includes having spent 25 years as an attorney at the SEC. When I began at the SEC we actually enforced laws. By the time I left, there wasn’t a law that the people in charge couldn’t find a way to ignore.
Chuck Butcher
@burnspbesq:
You keep handing out subjective reasoning as an argument that it won’t happen. I know a lawyer has to be able to speak out of both sides of his mouth given circumstances but it ain’t gonna fly as an argument that it won’t happen.
It is utter and complete horseshit to offer up either of those cases as a reason the SCOTUS will hold for ACA. Where did US v OR Assisted Suicide fail the Lopez standard? You simply call out amateurs for daring to disagree with your professional opinion and won’t fucking back it up.
Chuck Butcher
@burnspbesq:
The fuck I don’t, address US v OR then.
Chuck Butcher
So, Bush v Gore was the only expedited case?
MGLoraine
It looks to me like the Supremes’ right-wing faction will be torn between two “carrots” (with no real “sticks” in sight). The legal aspects will be irrelevant except as a cover story.
They could declare the whole thing unconstitutional, which would make themselves and their fellow partisans happy for having stuck it to Obama and the Democrats.
Or they can uphold the law in order to make their corporate sponsors from AHIP happy, because, of course, they just love the mandate!
I believe that ultimately they will yield to their innermost loyalties: they will uphold the ACA mandate. Making their fellow partisans happy will only get them pats on the back from like-minded ideologues, while “servicing” the insurance lobby will put real money into their pockets.
Which would YOU choose: a big round of applause or a couple million bucks in your secret offshore account?
/dev/null
Man you guys probably have steam coming out your ears, but from the peanut gallery I just want to say: this thread is fucking entertaining as hell!
Danny
Liberal surrender monkey mentality and the worst of it.
Did you ever stop to think that conservatives, as a team, seeks to maximize their chances to get rid of the ACA by whatever means available?
Did the thought strike you that Judge Roger Vinson, percieving himself as a member of the conservative team, seeks to sow confusion and demoralize progressives, and at the same time give the conservative wing of Supreme Court political cover to strike out the ACA?
Do you see a pattern when republican AG J. B. Van Hollen of Wisconsin declares the state free of any obligations imposed by the law? Do you realize that they are waging a coordinated PR campaign?
Do you understand that you have a platform to fight back, instead of just ventilating your insecurities?
The issue here in the end will be SCOTUS (e.g. Kennedy) overturning Wickard v. Filburn (with radical and unpopular consequences – threatening civil rights, new deal, great society legislation) or finding a tortured, plainly activist way to circumvent Wickard.
Thats where the battle lines will be and that’s where you could contribute – instead of just sulking and declaring defeat.
General Stuck
@Danny:
Oh great liberal warrior. What the fuck does this mean, “contribute”? Money? Strongly worded letters? lead us to victory to conquer the mighty wingnut.
Johannes
@Pink Snapdragon: I’m a lawyer. I’ve had a case in front of the Supremes, and assisted in another as a student, back in 89. And I’ve become pretty nihilistic on the current bench. Why? As I wrote on an earlier thread, the contempt for precedent in our activist conservative justices extends beyond constitutional analysis; look at the wholesale revamping of 50+ years of precedent in Ashcroft v. Iqbal and in Bell Atlantic Corp. v. Twombly, which scrapped the uncontested reading of the standard applied to a motion to dismiss any civil case in federal court, interpreting a rule which had been approved by Congress and applied consistently since at least 1955.
The result was to make plaintiff’s cases harder to plead—from a defendant having to show no set of facts could be found supporting a plaintiff’s claim to requiring that the plaintiff “state a claim that is plausible on its face.” A dramatic shift, making it much harder to plead discrimination (as involved in Ashcroft) or indeed any claim in federal court.
General Stuck
@Johannes:
This should be obvious, even to non lawyer bloviators and small children as well.
eemom
@Danny:
you are an absolute moron if you think that a district judge’s decision gives the Supreme Court “cover” for anything.
Danny
@General Stuck
Take a look at the Corner over at NRO to see what I mean. Conservatives dont find it hard to work the system to achieve their end goals and accordingly dont regress to crying like a pussy baby and cursing god.
If you got your google armed and dangerous, you read up (check out Volokh, or here http://boards.straightdope.com/sdmb/showthread.php?t=593015, or
wherever) and get to work. Kennedy doesn’t act in a vacuum. He is succeptible to public pressure, just like anyone else. Scalia would love to overturn Wickard, but not even Scalia would dare, when it would strike out civil rights and social security.
Maybe Kennedy would personally like to circumvent Wickard and say that “regulating abscence of economic activity” is a separate case. But would he still if it had been established, in the court of public opinion, that doing so would be blatantly partisan, unprincipled, and a case of judicial activism – plain for all to see?
Those are factors contributing to the eventual outcome. Conservatives know this and they work ceaselessly to rig the game to their benefit. Thats why we have to do the same, and accordingly give some “tough love” when people on our team break under pressure, like A Writer just did, and which I reacted to….
Chuck Butcher
We’ve got lawyers in here stating that nobody knows what the hell is going one other than them.
If Lopez was held as a valid CC exercise then virtually anything anywhere in the US would fall under CC. An extremely limited occurance and headshaking idea of commerce was held to be bullshit.
Raich regarded pot and the Fed’s ability to arrest medical pot users (upheld) and has to be looked at in regard to OR’s Assisted Suicide law which also regarded Fed drug laws and a state’s regard for them (held for OR).
Using those cases as an argument that the SCOTUS won’t use subjective analysis of CC in regard to the ACA is pretty funny considering that nothing there suggests otherwise.
I don’t pretend to know how or when the SCOTUS will rule, but this ‘you don’t know shit and everything will be fine because we’re lawyers’ backed by not squat is BS. The idea that the SCOTUS will rule based on some finely defined standard is complete nonsense since that finely defined standard doesn’t exist.
Danny
@eemom
You’re clueless if you don’t think that headlines along the lines of “Court strikes down ACA as unconstitutional” in a multitude of mainstream media outlets, read by low energy “mainstream voters”, does not contribute to cover for Kennedy choosing to reach a similar conclusion down the road.
Argumentum ad populum may be a fallacy – but it’s effective and that’s why its used. There’s always an opportunity to help establishing a counter narrative, and that’s the choice you make – if you want to contribute to that, or instead sulk.
That’s my point.
Pink Snapdragon
@Johannes: For me, these decisions limiting plaintiffs ability to file suit are some of the worst things they have done. I think that the ability to file suit and be heard when you believe you have been wronged is one of the most important aspects of living in a democracy.
eemom
There is, as usual, a lack of reading comprehension going on here, at least as to what I have said.
Not gonna waste my time repeating it, other than to say that none of this is simple — and it sure as hell isn’t as simple as “how is Kennedy gonna vote.”
Idiots.
And I make no apologies for that, because anyone who is convinced that they can predict the outcome in a situation like this is, in fact, an idiot.
Danny
@eemom
“It” is never “as simple”, granted, but let’s put that aside.
What I’m saying is that Kennedy’s decision will in the end be influenced by the constitution & precedent, but also by political considerations and public pressure.
His thoughts on the former we cant influence much, and neither can the bloggers at NRO etc.
We all have to act within the realm of the possible, and my suggestion at least is that we do so, to the best of our abilities.
eemom
@Danny:
political considerations, maybe. Public pressure, no. Not a Supreme Court Justice. That is just not how they roll.
However, your attitude is certainly admirable, and I suggest you direct it towards goals that can, in fact, be realistically influenced by public pressure.
Johannes
@Pink Snapdragon: I agree strongly with you here. In addition to the terrible result, what I find stunning about these decisions is the sheer lack of interest in consistency, predictive value, and any notion of the role of the Court as interpreting statutes in accordance with their language and stare decisis. The sheer lawlessness of those decisions is a bad portent, in my opinion, for things to come.
Which is not, by the way, a prediction; just a an explanation for my lack of faith in the current court.
Danny
@eemom
Public pressure was maybe a lazy choice of words.
What I was getting at however, is that even Supreme Court Justices are succeptible to the general publics perception of concepts such as “judicial activism”, “partisanship” and whether their decision will be understood as such.
If justices only reached decisions based on the constitution, precedent and nothing else, how would you then explain the wildly different interpretations of f.e. the power of the commerce clause made by the SCOTUS through the years? The X factor influencing those decisions, I propose, is the context, the public conversation in which those decisions took place. Do you disagree?
I believe that Kennedy will be less prone to reach a decision for which he is likely to be publicly embarrassed in the years to come. Whether he will be embarassed depends on the publics reaction. You don’t think that factors in to how he chooses to roll whatsoever?
General Stuck
I don’t know what you all have against predictions. The worst that can happen is turning out wrong. Stuffy lawyers, live a little, let yer freak flags fly. It’s blogging, not brain surgery.
jcricket
The sad thing is that if the ACA is effectively (or literally) struck down, not only will it not be replaced quickly, but people will suffer and probably die for another 20 years before we get around to any kind of a replacement.
I used to scoff at my liberal friends who talked about moving to Canada. But people can say, “I’ve been fighting 1/2 my life for things to turn around, I’m not going to waste the other half” and I can no longer fault them for that.
This HCR stuff is literally life and death, as is Climate Change, and everything else Republicans are busy obstructing because it might put them in agreement with liberals.
FML.
Johannes
@General Stuck: Answered yer own question, General. Stuffy, we are.
Danny
@jcricket
Well do something constructive.
Go concern troll redstate or national review comments section about how you’re a gung ho bible toting movement conservative, but how you’re concerned that conservatives are over reaching this time and opening up for accusations of judicial activism thereby undermining the holy fight against Roe vs Wade and the rapture is coming.
Or something. But plx don’t mope. I’m so fed up with liberals moping and declaring defeat before the battle has even begun.
anon84
The legal wrangling will go on for years. If ANY part of the bill is found unconstitutional & Obama’s Administration goes forward with implimentation you can expect the next line of attack to be the fact that the bill was passed without a “severability clause”.
It’s never going to end. It gonna’ be as big as Roe v Wade!
Xenos
@eemom:
Well, they sure need some cover, in the sense of some disparate rulings in different district courts and appeals courts, in order to grant cert., right?
They don’t? Not with this crew, I suppose. But that does not make Danny and idiot – that makes the entire legal profession a bunch of partners in crime, in that we do not get out and protest the dictatorial Supreme Court the same way lawyers in Pakistan and Egypt protest their own corrupt judges.
liberal
@Pink Snapdragon:
Yes, I read that and you’re right. (IANAL, but my wife is an employment lawyer, so I follow these things.)
Yes, they do. But they’re not determining of outcomes, as Roberts has shown on more than one occasion.
(As for the health care law, I agree that we can’t predict what the outcome will be.)
liberal
@anon84:
Nah.