SCOTUS to rule on Obamacare mandate next week

[cheguevara]

Sadly Obama will suffer a huge blow next week. I say sadly because I think barry meant well, and we do need better healthcare but he fucked up. he didn't really read the Constitution or maybe had really bad law advisers. The Individual mandate will be struck down. You heard it first from El Che

Your thoughts? Do you disagree? If struck down, how will this affect Obama and his re-election chances?

IMO it will be an upppercut to the ribcage to Obama's re-election campaign. i mean the guy's most revolutionary accomplishment turned out to be unconstitutional :(

[cheguevara]

then again, plenty of unconstitutional laws are still alive today. but this one just got too much spotlight on it.

[JoeChalupa]

Yeah, I've heard some say that it will be held up as constitutional and some that say it won't. Even if it is it will still keep something like 14-15 million additional with coverage instead of the 20 some million.

[boutons_deux]

Give a decision or simply here the arguments for 3 days?

[boutons_deux]

one way or the other, it will very probably be 5-4.

[cheguevara]

Give a decision or simply here the arguments for 3 days?

sorry my bad. we'lll have to wait until end of June for the decision. what timing.

[George Gervin's Afro]

The SC is relaible wing of the GOP ..we know that so it will be a 5-4 decision

The Robert's court will be rmemebred as the 5-4 group.

[boutons_deux]

Report Proves Health Reform Is Here To Stay: 49 States Have Already Taken Action Supporting Its Implementation

– 12 states: Connecticut, Hawaii, Iowa, Maine, Maryland, Nebraska, New York, North Carolina, North Dakota, South Dakota, Vermont, and Virginia—passed new legislation or issued new regulations that addressed all 10 of the reforms: expanding dependent coverage for young adults up to age 26, prohibiting lifetime limits on health benefits, phasing out annual dollar limits on health benefits, prohibiting preexisting condition exclusions for children under age 19, prohibiting rescissions (cancelling insurance, except in cases of fraud or intentional misrepresentation), covering preventive services without cost-sharing, expanding coverage of emergency services, allowing choice of primary care provider, allowing choice of pediatrician, and allowing access to obstetricians and gynecologists without a referral.

– The District of Columbia and 11 states: California, Delaware, Indiana, Louisiana, Michigan, New Hampshire, New Jersey, Oregon, Utah, Washington, and Wisconsin—passed a new law or issued a new regulation on at least one early market reform.

– 15 states: Alabama, Arkansas, Colorado, Florida, Georgia, Illinois, Kentucky, Massachusetts, Minnesota, Missouri, Montana, New Mexico, Pennsylvania, South Carolina, and Texas—issued new subregulatory guidance, such as a bulletin to advise insurers of the reforms.

– 11 states: Alaska, Idaho, Kansas, Mississippi, Nevada, Ohio, Oklahoma, Rhode Island, Tennessee, West Virginia, and Wyoming—reported that regulators were actively reviewing insurer filings for compliance with the reforms even though the state had not otherwise passed a new law or issued new regulations or other guidance.

– Only Arizona had taken no action.

http://thinkprogress.org/health/2012/03/22/449687/report-proves-health-reform-is-here-to-stay-49-states-have-already-taken-action-supporting-its-implementation/

====

AZ, figgers, what a shithole book-burning, racist state.

[boutons_deux]

More Legal Experts Believe Roberts Will Uphold Affordable Care Act Than Kennedy

The experts ABA surveyed were unanimous in predicting that the four liberal justices (Stephen Breyer, Elena Kagan, Sonia Sotomayor, Ruth Bader Ginsburg) would vote to uphold and that Clarence Thomas would vote to strike it down. Fifty-three percent said Anthony Kennedy would join the liberals, but a higher proportion, 69 percent, thought Chief Justice John Roberts would join the majority. Majorities of about 60 percent predicted that the other two conservatives, Samuel Alito and Antonin Scalia, would determine the law is unconstitutional.

http://thinkprogress.org/justice/2012/03/22/449767/more-legal-experts-believe-roberts-will-uphold-affordable-care-act-than-kennedy/

[CosmicCowboy]

It is certainly not a slam dunk. There is plenty of precedent addressing interstate commerce that has muddied the water.

[boutons_deux]

At Heart of Health Law Clash, a 1942 Case of a Farmer’s Wheat

If the Obama administration persuades the Supreme Court to uphold its health care overhaul law, it will be in large part thanks to a 70-year-old precedent involving an Ohio farmer named Roscoe C. Filburn.

Mr. Filburn sued to overturn a 1938 federal law that told him how much wheat he could grow on his family farm and made him pay a penalty for every extra bushel.

The 1942 decision against him, Wickard v. Filburn, is the basis for the Supreme Court’s modern understanding of the scope of federal power. It is the contested ground on which the health care case has been fought in the lower courts and in the parties’ briefs. And it is likely to be crucial to the votes of Justices Anthony M. Kennedy and Antonin Scalia, who are widely seen as open to persuasion by either side.

“Wickard has become so foundational for generations of lawyers that any plausible understanding of the commerce power must come to terms with it,” said Bradley W. Joondeph, a law professor at Santa Clara University.

Both supporters and opponents of the health care law say the decision helps their side, and for three days starting next Monday, it will be at the center of the arguments before the Supreme Court about the law’s constitutionality.

To hear the Obama administration tell it, the Filburn decision illustrates just how much leeway the federal government has under the Constitution’s commerce clause to regulate the choices individuals make in matters affecting the national economy. If the government can make farmers choose between growing crops on their own land and paying a penalty, the administration’s lawyers have said, it can surely tell people that they must obtain health insurance or pay a penalty.


http://truth-out.org/news/item/8001-at-heart-of-health-law-clash-a-1942-case-of-a-farmers-wheat

[George Gervin's Afro]

It is certainly not a slam dunk. There is plenty of precedent addressing interstate commerce that has muddied the water.

This court has proven that they are affected by thier own politcial dispositions.. have no fear they will find a way to strike it down..

[boutons_deux]

I approve of no insurance mandate, but ONLY IF the uninsured are refused when they show up at a taxpayer-funded medical facility.

[JoeChalupa]

Asked if he's confident SCOTUS will rule against Health Care Law Speaker Boehner says "I have no idea what the Supreme Court's going to do".

[boutons_deux]

Right-wing Attorney General Ken Cuccinelli (R-VA) does not like the Affordable Care Act. In addition to his challenge to the law in federal court, he told a Politico reporter earlier this month that there was little the federal government could do to states if they refused to implement the law.

The Washington Post quoted the interview:

In a brief interview at the Republican Attorneys General Association meeting, Cuccinelli said it would be “contrary to the law” not to implement it. But he pointed out that it might not be easy for the federal government to force states to comply if they continued to resist. “It’s not like there’s criminal penalties out there — it becomes a power struggle,” he said. Cuccinelli noted that it would not be the first time that states have tried to obstruct federal laws, pointing out that states resisted complying with the Alien and Sedition Acts and fugitive slave laws. “There have been periods of time when states have just thrown their hands up and said, ‘We’re not going to do this,’” he said. “It’s still possible, but it’s outside the expected legal structure.

But when pressed on this subject yesterday, the Virginia Organizing Project caught him striking a rather different tone — saying “I expect everyone to obey the law,” if it is upheld by the Supreme Court.

http://thinkprogress.org/health/2012/03/22/449843/ken-cuccinelli-backtracks-on-ignoring-affordable-care-act/

[Viva Las Espuelas]

http://cbo.gov/publication/43080

[boutons_deux]

Health Insurers: We'll Deny Coverage for Pre-Existing Conditions if Health Mandate Is Repealed

Health insurers and supporters of the Obama administration's health-care reform law are currently in the midst of drawing up possible contingency plans in case the Supreme Court overturns the Affordable Care Act's individual mandate.

The insurance industry argues that premiums are likely to skyrocket without the individual mandate in place to aid in pushing millions of new enrollees into the marketplace, as healthy people will be less likely to buy insurance, while insurers will still be required to sell policies to all applicants. In fact, a repeal of the individual mandate would increase insurance premiums by 25 percent, according to a study released by the Robert Wood Johnson Foundation.

"The insurance reforms would have to change if the mandate were struck," said Justine Handelman, vice president of legislative and regulatory policy for the Blue Cross and Blue Shield Association trade group.

Health-insurance officials say that if the mandate is repealed, "their first priority would be persuading members of Congress to repeal two of the law's major insurance changes: a requirement to cover everyone regardless of his or her medical history, and limits on how much insurers can vary premiums based on age." Their next step would be to "set rewards for people who purchase insurance voluntarily and sanction those who don't."

Other possible alternatives to the individual mandate that insurers are weighing:

- Penalize those who enroll outside of short annual windows; deny treatment for specific conditions, especially right after a policy is purchased

- Reward certain insurance buyers, such as offering much lower premiums for younger and healthier people

- Expand employers' role in automatically enrolling employees for health insurance

- Urge credit-rating firms to use health-insurance status as a factor in determining individuals' ratings

Although the mandate has been upheld in two appeals courts, it was struck down in a third. The Supreme Court hearings are scheduled to begin March 26, and an official ruling is expected to be delivered in June.


http://truth-out.org/news/item/8013-health-insurers-well-deny-coverage-for-pre-existing-conditions-if-health-mandate-is-repealed

[Spurminator]

Careful what you wish for if you're against nationalized health care. If this gets repealed, the proponents of a public option are going to have a nice PR campaign fall into their laps with the many people who have suddenly lost coverage.

[George Gervin's Afro]

Health Insurers: We'll Deny Coverage for Pre-Existing Conditions if Health Mandate Is Repealed

Health insurers and supporters of the Obama administration's health-care reform law are currently in the midst of drawing up possible contingency plans in case the Supreme Court overturns the Affordable Care Act's individual mandate.

The insurance industry argues that premiums are likely to skyrocket without the individual mandate in place to aid in pushing millions of new enrollees into the marketplace, as healthy people will be less likely to buy insurance, while insurers will still be required to sell policies to all applicants. In fact, a repeal of the individual mandate would increase insurance premiums by 25 percent, according to a study released by the Robert Wood Johnson Foundation.

"The insurance reforms would have to change if the mandate were struck," said Justine Handelman, vice president of legislative and regulatory policy for the Blue Cross and Blue Shield Association trade group.

Health-insurance officials say that if the mandate is repealed, "their first priority would be persuading members of Congress to repeal two of the law's major insurance changes: a requirement to cover everyone regardless of his or her medical history, and limits on how much insurers can vary premiums based on age." Their next step would be to "set rewards for people who purchase insurance voluntarily and sanction those who don't."

Other possible alternatives to the individual mandate that insurers are weighing:

- Penalize those who enroll outside of short annual windows; deny treatment for specific conditions, especially right after a policy is purchased

- Reward certain insurance buyers, such as offering much lower premiums for younger and healthier people

- Expand employers' role in automatically enrolling employees for health insurance

- Urge credit-rating firms to use health-insurance status as a factor in determining individuals' ratings

Although the mandate has been upheld in two appeals courts, it was struck down in a third. The Supreme Court hearings are scheduled to begin March 26, and an official ruling is expected to be delivered in June.


http://truth-out.org/news/item/8013-health-insurers-well-deny-coverage-for-pre-existing-conditions-if-health-mandate-is-repealed

It's a win for freedom though!

[boutons_deux]

public option is the BEST WAY to control costs, putting the govt insurance option in direct competition with the gouging commercial insurers.

and public option will be financed by payroll/income deductions, similar to SS deduction.

[TeyshaBlue]

^^^^^This^^^^^

[ChumpDumper]

It's all just a matter of time. Twenty years from now, people are going to wonder what the fuss was all about.

[TheProfessor]

Justice Scalia voted in favor of the government in Gonzales v. Raich, which upheld federal authority to regulate intrastate marijuana production for medicinal purposes, due to its overall effect on interstate commerce (consistent with Wickard v. Filburn, mentioned in one of boutons' articles above). People think that he and Justice Thomas (who dissented in Raich) vote lock-stock with each other, but it's not necessarily true. Not sure how Justice Scalia could vote against the mandate and still square that with Raich, when the mandate covers interstate activities in an economic market.

[boutons_deux]

and if the med facilities and docs refuse to accept PO patients (like they are refusing medicare/medicaid patients), the US then finances med educations in return for 20 years of full time govt employment as a SALARIED GOVT doctor at taxpayer med facilities.

[SA210]

i mean the guy's most revolutionary accomplishment turned out to be unconstitutional :(

As with the rest of his policies.

[elbamba]

The SC is relaible wing of the GOP ..we know that so it will be a 5-4 decision

The Robert's court will be rmemebred as the 5-4 group.

Not really. This article from 5 years ago seems to disagree.

http://writ.news.findlaw.com/lazarus/20060525.html

Most cases carry a strong majority 6-3 or better. However, the hotly contested social cases do tend to be 5-4. Each justice tending to break along party lines.

You probably would not refer to the court as the reliable wing of the Democrats if they carried the 5 majority. Not that it really matters.

[TeyshaBlue]

You probably would not refer to the court as the reliable wing of the Democrats if they carried the 5 majority. Not that it really matters.

Of course not. It would transmorgify to the "reasonable wing for the Democrats". :lol

[elbamba]

http://www.calbarjournal.com/August2010/TopHeadlines/TH4.aspx

Here are some more recent numbers.

[Wild Cobra]

Sadly Obama will suffer a huge blow next week. I say sadly because I think barry meant well, and we do need better healthcare but he fucked up. he didn't really read the Constitution or maybe had really bad law advisers. The Individual mandate will be struck down. You heard it first from El Che
LOL...

I thought he was suppose to be a constitutional law expert. Should we start calling him Barack "D-Student" Obama?

Maybe he didn't read the bill, because he didn't want to know what was in it till after it was passed.

I think his adviser was Nancy Pelosi.

[ChumpDumper]

Eh, the Heritage Foundation and Newt Gingrich thought the mandate would be constitutional when they were pimping it.

Good enough for me.

[boutons_deux]

Analysis: Why Supreme Court may uphold healthcare law


Conventional political wisdom holds that the Supreme Court, scheduled to hear a challenge to President Barack Obama's healthcare law beginning on Monday, is likely to strike it down on partisan lines. The court's Republican appointees enjoy a 5-4 majority.

But a review of lower court rulings by conservative judges, subtle signals from individual justices, and interviews with professors and judges across the ideological spectrum suggest that presumption is wrong - and that the court will uphold the law.

Not that conservative court-watchers like to broadcast such a view in this combustible atmosphere.

"It's almost like they're confessing to some secret vice when they say they don't think (the law) should be struck down," said former U.S. Court of Appeals Judge Michael McConnell, a George W. Bush appointee who now teaches at Stanford Law School, referring to some fellow conservatives.

Several legal experts who do not necessarily favor the law, but bet it will survive, point to the decisions of two leading conservative federal appellate judges who already have sided with the Obama administration. The core of its healthcare law is a requirement that most people in the United States buy insurance by 2014.

In decisions upholding that so-called individual mandate last year, those judges stressed the classical conservative regard for judicial restraint and deference to Congress. While they wrote that the healthcare law might be flawed as a policy matter, they said decisions on how to reform the system were best left to legislators.

By contrast, three conservative judges who rejected the law took what some critics said was a more activist approach and said they were compelled to strike down the law because it exceeded congressional power. One invoked the 18th-century Boston Tea Party, in a decision widely viewed as a salute to the modern-day Tea Party movement's advocacy of less government involvement in people's lives.

In an interview, U.S. Appeals Court Judge J. Harvie Wilkinson, who was appointed to the 4th Circuit in Richmond, Virginia, by President Ronald Reagan, spoke of the philosophical division among Republican appointees to the federal bench.

"There's a real tension now in conservative ranks between those who want to use (the Constitution) to limit the scope and size of federal government," Wilkinson said, "and those of a more traditional strain of conservatism that believes that these epic battles should be left to the political branches to fight out."

Wilkinson, who was on George W. Bush's short list for the Supreme Court, has not presided over any of the challenges to the healthcare law that have made their way through U.S. courts.

But he suggested in a recent book on constitutional theory that the law was valid, subject to Congress' power to regulate commerce in the states: "The idea that Congress is constitutionally disabled under the commerce power from regulating activity affecting one-sixth of the national economy strikes me as a heavy lift." Healthcare spending totals more than 17 percent of U.S. gross domestic product.

TWO LIKELY CANDIDATES

If the four liberal justices vote to uphold the law, as legal analysts overwhelmingly predict, only one of the conservatives would be needed to make a majority. One likely candidate is Chief Justice John Roberts, who is generally seen as a more traditional conservative.

A 2005 appointee of George W. Bush, Roberts has often deferred to Congress. Most notably, he voted with liberals in a 2010 decision that endorsed congressional authority to require "sexually dangerous" prisoners to remain in state custody after completing their sentences. That decision in United States v. Comstock is among the cases the Obama administration relies on to defend the individual mandate.

Another conservative justice who could defy political-based assumptions is Anthony Kennedy. More than any current member of the court, he has straddled the middle and been the swing vote when the liberal wing has prevailed. That was seen as recently as Wednesday, when he joined the four liberals and wrote the decision extending the constitutional guarantee of effective legal assistance to defendants at the plea-bargain stage, not just at trial.

Kennedy's decisions relating to Congress' power to regulate interstate commerce - which will be key to the healthcare case - have been mixed. But in recent years, he has ruled for broader federal authority. In 2005, for example, Kennedy with four liberal justices - and conservative Antonin Scalia - declared that federal law trumped state policy allowing the cultivation of marijuana for medical use. That decision expansively interpreted federal commerce power and has become a major component of the Obama administration's legal defense of the healthcare law.

The Obama administration highlights that ruling, Gonzales v. Raich. In what some court watchers see as an attempt to speak to Kennedy, administration lawyers even quote him in a separate case where he voted to strike down the federal law at issue - banning guns at local schools - but stressed in his opinion that Congress had great regulatory power in national markets "to build a stable national economy."

CHALLENGING A MANDATE

At the heart of the healthcare law signed by Obama in March 2010 is the mandate that people buy insurance or face a tax penalty. That requirement is intended to bring more healthy people into the U.S. medical system, to share costs and offset the burden the uninsured put on the system when needing emergency care.

The challengers, 26 states and the National Federation of Independent Business, say such a mandate wrongly forces people who have opted out of the insurance market to spend money for a policy and, as a constitutional matter, exceeds Congress' power to regulate interstate commerce.

The Constitution gives Congress authority to regulate commerce "among the several states" and the Supreme Court has expansively interpreted that over the years to cover a range of local activities that affect a broader national market.

After the Supreme Court agreed to take up the healthcare litigation last November, many political commentators predicted the law was doomed, based partly on the makeup of the bench.

The nine justices often divide along ideological and even partisan lines, particularly in cases involving social policy questions such as racial discrimination, abortion rights and campaign finance. On the conservative side are five Republican appointees, Roberts and Justices Kennedy, Scalia, Clarence Thomas and Samuel Alito. On the liberal wing are four Democratic appointees, Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan.

Unlike the 5-4 social policy cases, the healthcare dispute involves a structural question of the Constitution's grant of federal power.

The decisions of the two lower court judges who sided with the administration could provide a roadmap. Both Jeffrey Sutton, of the Cincinnati-based 6th U.S. Circuit Court of Appeals, Circuit, and Laurence Silberman, of the U.S. Court of Appeals for the Washington, D.C., Circuit, are highly respected conservatives who have worked closely in the past with current justices.

In separate rulings last year, Sutton and Silberman found that Congress' power to regulate interstate commerce could cover the individual insurance mandate. Most people will eventually enter or affect the insurance market, they observed.

Sutton, a former law clerk to Scalia and Ohio solicitor general appointed to the bench by President George W. Bush, wrote that "time assuredly will bring to light the policy strengths and weaknesses of using the individual mandate as part of this national legislation" and that any determination on whether it stands should be left to Americans' "political representatives, rather than their judges."

Silberman, a Reagan appointee who was a colleague to four of the current justices when they were on the D.C. Circuit, stressed that judges must "presume that acts of Congress are constitutional" and he cited opinions by Roberts and Kennedy in his decision upholding the individual mandate.

The conservative judges who voted against the law, on the other hand, were more ardent in their analysis and language.

In his decision invoking the Boston Tea Party, a forerunner to the American Revolution, U.S. District Judge Roger Vinson, based in Florida, wrote: "It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place."

U.S. District Judges Henry Hudson in Richmond, Virginia, and James Graham, sitting with the 6th Circuit appeals panel, called the healthcare law "legally stillborn."

AVOIDING CONTROVERSY

Other considerations suggest Roberts as chief justice might be inclined to uphold the law. He has spoken generally about the benefit of avoiding split decisions that could hurt the court's reputation and legacy in the American mind. In an interview with C-SPAN soon after he was appointed, Roberts said, "I think the most important thing for the public to understand is that we are not a political branch of government."

Roberts "seems sensitive to how he and the court are perceived," said Lawrence Baum, an Ohio State University political science professor who has studied judicial behavior.

Baum said Roberts and his fellow conservatives were likely aware of lingering criticism from the 2000 Bush v. Gore decision, ending the recounts in the Florida presidential election dispute, and in the 2010 Citizens United v. Federal Election Commission, lifting restrictions on corporate and labor money in elections.

"Given the decisions in which the court favored what are perceived as Republican interests," he said, "I think that at least some of the conservative justices welcome opportunities to appear to be above partisanship."

Several legal analysts also suggested that Roberts and Kennedy would seek to avoid a confrontation over a sitting president's signature domestic achievement. Law professors note that the Supreme Court has rarely voided a central plank of the president's agenda, the major exception being the early years of President Franklin Roosevelt's New Deal.

"This is not an ordinary law," said Akhil Amar, a law professor at Yale University who believes the healthcare law to be valid. This is a trademark piece of legislation."

http://www.reuters.com/article/2012/03/23/us-usa-healthcare-court-analysis-idUSBRE82M0IJ20120323?feedType=RSS&feedName=healthNews&utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+reuters%2FhealthNews+%28News+ %2F+US+%2F+Health+News%29&utm_content=Google+Reader

[boutons_deux]

The truth about healthcare reform

Provisions of the 2010 healthcare reform have already changed the lives of millions of Americans for the better. It has brought insurance coverage to more than 2.6 million previously uninsured young adults, cut prescription costs by a total of $3 billion for millions of seniors, eliminated co-pays on preventive services such as child immunizations and cancer screenings and eliminated annual and lifetime claims caps for more than 80 million policyholders.

When its broadest provisions are triggered in 2014, millions more Americans will be relieved of the threat that their insurer can dump them or jack up their premium to unaffordable heights just because they've fallen ill or been injured.

"No longer will people be bankrupted because they have a bad gene or a bad traffic accident," says Jonathan Gruber, a health economist at MIT who helped fashion the pioneering healthcare reform act in Massachusetts.

Did you know any of that? If so, you're in the minority. Only 39% of respondents to a Kaiser Family Foundation poll released this month thought they had enough information to understand how the law would affect them personally — and that figure had declined over the last year. Only 1 in 4 respondents knew that the act already has eliminated co-pays for preventive care and lowered prescription costs for Medicare members.

http://www.latimes.com/business/la-fi-hiltzik-20120322,0,901197.column

======

The Repugs/Fox/right-wing-hate-media ENDLESSLY REPEATED LIES about health care have been effective. Repugs/Fox/etc value political/financial victory for themselves (defaeating Hussein/Dems) way above advancement for Human-Americans.

[CosmicCowboy]

Obama Lawyer Laughed at In Supreme Court



On the first day of health care reform arguments before the Supreme Court, two justices needled a top Obama lawyer for simultaneously calling the fine that will be paid under the law for not purchasing insurance a “penalty” and a “tax.”

The confusion arises because of the administration’s argument that the power to enforce the individual mandate is rooted in Congress’ taxing power — but that the mechanism itself is designed to be a penalty, not a revenue-generating policy.

The narrow but important distinction created a communication challenge for the lawyer representing the Obama administration.

U.S. Solicitor General Donald Verrilli used the phrase “tax penalty” multiple times to describe the individual mandate’s backstop. He portrayed the fee as a penalty by design, but one that functions as a tax because it’s collected through the tax code.

“General Verrilli, 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,” said Justice Samuel Alito, in one of the few laugh lines throughout the 90 minutes of argument Monday.

The remark underscores the fine line the White House is walking in its argument. On one hand, it says the backstop is not a tax, because that could subject it to the Anti-Injunction Act — the focal point of Monday’s arguments — and delay a ruling to at least 2015. On the other, they claim that the power to impose a penalty derives from Congress’ broad taxing power. That’s in part because calling it a tax makes defending the mandate easier — Congress’ power to levy taxes is less in question than its power to require people to do things.

Justice Elena Kagan asked whether refusing to buy insurance would constitute breaking the law, to which Verrilli responded that if people “pay the tax, then they are in compliance with the law.” That caught the attention of Justice Stephen Breyer.

“Why do you keep saying tax?” Breyer interjected, to more laughs.

The justices, particularly the four Democratic-appointees, and Justice Antonin Scalia, appeared skeptical that the fine constitutes a tax.

The distinction is nuanced, but key to one of the administration’s arguments.

Alito to Verrilli: Is it a tax or isn't it?

[ElNono]

http://swampland.time.com/2012/03/26/on-day-1-of-health-reform-arguments-justices-sound-skeptical-that-challenge-is-premature/

[cheguevara]

ouch

[fraga]

So what's the verdict...

[cheguevara]

So what's the verdict...

gona have to wait until June for that

[CosmicCowboy]

I can tell you it's not good when they laugh out loud at your legal argument...

[Winehole23]

Yesterday’s decision by Judge Roger Vinson has once again revived the ongoing legal battle over the constitutionality of the individual health insurance mandate. In that regard, it’s worth taking note that a concurring opinion by one of the Supreme Court’s most conservative justices may end up being the argument that saves Obamacare: (http://articles.latimes.com/2010/mar/27/nation/la-na-constitutionality27-2010mar27)

Lawsuits from 14 states challenging the constitutionality of the new national healthcare law face an uphill battle, largely due to a far-reaching Supreme Court ruling in 2005 that upheld federal restrictions on home-grown marijuana in California.
At issue in that case — just like in the upcoming challenges to the healthcare overhaul — was the reach of the federal government’s power.
Conservative Justices Antonin Scalia and Anthony M. Kennedy joined a 6-3 ruling that said Congress could regulate marijuana that was neither bought nor sold on the market but rather grown at home legally for sick patients.
They said the Constitution gave Congress nearly unlimited power to regulate the marketplace as part of its authority “to regulate commerce.”
Even “noneconomic local activity” can come under federal regulation if it is “a necessary part of a more general regulation of interstate commerce,” Scalia wrote.
It’s worth quoting at length from Scalia’s concurrence (http://www.law.cornell.edu/supct/html/03-1454.ZC.html) in that case, Gonzalez v. Raich:

The authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws governing intrastate activities that substantially affect interstate commerce. Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce.
(…)
Our cases show that the regulation of intrastate activities may be necessary to and proper for the regulation of interstate commerce in two general circumstances. Most directly, the commerce power permits Congress not only to devise rules for the governance of commerce between States but also to facilitate interstate commerce by eliminating potential obstructions, and to restrict it by eliminating potential stimulants. See NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (http://www.law.cornell.edu/supct-cgi/get-us-cite?301+1), 36—37 (1937). That is why the Court has repeatedly sustained congressional legislation on the ground that the regulated activities had a substantial effect on interstate commerce. See, e.g., Hodel, supra, at 281 (surface coal mining); Katzenbach, supra, at 300 (discrimination by restaurants); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (http://www.law.cornell.edu/supct-cgi/get-us-cite?379+241), 258 (1964) (discrimination by hotels); Mandeville Island Farms v. American Crystal Sugar Co., 334 U.S. 219 (http://www.law.cornell.edu/supct-cgi/get-us-cite?334+219), 237 (1948) (intrastate price-fixing); Board of Trade of Chicago v. Olsen, 262 U.S. 1 (http://www.law.cornell.edu/supct-cgi/get-us-cite?262+1), 40 (1923) (activities of a local grain exchange); Stafford v. Wallace, 258 U.S. 495 (http://www.law.cornell.edu/supct-cgi/get-us-cite?258+495), 517, 524—525 (1922) (intrastate transactions at stockyard). Lopez and Morrison recognized the expansive scope of Congress’s authority in this regard: “[T]he pattern is clear. Where economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained.” Lopez, supra, at 560; Morrison, supra, at 610 (same).
(…)
The regulation of an intrastate activity may be essential to a comprehensive regulation of interstate commerce even though the intrastate activity does not itself “substantially affect” interstate commerce. Moreover, as the passage from Lopez quoted abovesuggests, 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.
Applying that reasoning to the individual mandate would give a Justice a very easy way to find something that is seemingly not authorized by the Constitution to be completely acceptable:

Legislators argued that the “individual mandate” was necessary because it would undercut the insurance market if individuals could just opt out of having health insurance. Freeloaders could wait until they were hurt in an accident or contracted a disease and then demand insurance coverage for their “preexisting condition.”
The court’s ruling in the 2005 case, Gonzales vs. Raich, “is an enormous problem” for those who contend that the healthcare mandate is unconstitutional, said Simon Lazarus, a lawyer for the Washington, D.C.-based National Senior Citizens Law Center.
“It clearly says Congress has vast regulatory authority over interstate commerce,” he said.
Some what wondered whether Scalia will be able to square a ruling against the mandate with his concurrence in Raich, but even if he can the reasoning stands as as powerful argument for a Justice like Anthony Kennedy to hang their argument on if they wished to uphold the mandate.And we’d have the most conservative “originalist” on the Court to thank for it.
http://www.outsidethebeltway.com/how-antonin-scalia-may-save-the-individual-mandate/

[boutons_deux]

Rachel Maddow absolutely destroys the Repugs by videos of many of them from 1993 strongly supporting the "individual mandate" for health insurance, and they say it would be "Constitutional", and just like the individual mandate for auto insurance, individuals forced to buy, under pain of penalty, from a for-profit corporation.

http://www.msnbc.msn.com/id/26315908/#46862948

proves the Repgs don't GAF about Human-Americans and America, but only about obstructive/destructive/polarizing All Politics All The Time.

[boutons_deux]

Are the GOP Justices Political Hacks? Part One

Exclusive: The “Obamacare” debate will test whether the U.S. Supreme Court’s five Republican justices are political hacks. After all, a right-wing think tank devised the individual mandate, which was embraced by GOP front-runner Mitt Romney, but it’s now anathema because it was passed by a Democratic president, Robert Parry writes.

By Robert Parry

Does anyone doubt that if a Republican president had enacted the Affordable Care Act – with its individual mandate devised by the right-wing Heritage Foundation and with Mitt Romney denouncing “free riders” not paying their share of health care costs – the U.S. Supreme Court’s Republican majority would be lining up to declare it constitutional?

Indeed, if the Heritage Foundation, which did dream up the individual mandate, were submitting supportive friend-of-the-court briefs – instead of denouncing its own idea – and if Romney were still deriding those “free riders” who palm off the costs for their emergency health care on others, the odds would be that the Court would vote overwhelmingly for the constitutionality of the health reform law.

U.S. Supreme Court

After all, the Commerce Clause – upon which the Affordable Care Act is based – represents a virtually unlimited authority for Congress to enact laws to regulate interstate commerce, a power which can require individuals and companies to either do something or not do something.

For instance, in a Nov. 8, 2011, legal opinion affirming the constitutionality of the Affordable Care Act, conservative U.S. Appeals Court senior judge Laurence Silberman recognized this legal reality (even though he might not politically like “Obamacare”).

Silberman, an appointee of President Ronald Reagan but a serious constitutional scholar, explained how the law – including its most controversial feature, the individual mandate requiring the purchase of health insurance coverage – fits with the Commerce Clause.

“We look first to the text of the Constitution,” Silberman wrote in his opinion. “Article I, § 8, cl. 3, states: ‘The Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.’ (Emphasis added by Silberman).

“At the time the Constitution was fashioned, to ‘regulate’ meant, as it does now, ‘[t]o adjust by rule or method,’ as well as ‘[t]o direct.’ To ‘direct,’ in turn, included ‘[t]o prescribe certain measure[s]; to mark out a certain course,’ and ‘[t]o order; to command.’

“In other words, to ‘regulate’ can mean to require action, and nothing in the definition appears to limit that power only to those already active in relation to an interstate market. Nor was the term ‘commerce’ limited to only existing commerce. There is therefore no textual support for appellants’ argument” that mandating the purchase of health insurance is unconstitutional.

Silberman’s last point bears repeating: There is “no textual support” in the Constitution for people challenging the Affordable Care Act’s individual mandate.

So, for “strict constructionists” – as the Republican justices claim to be – it would seem to be a simple case. The Constitution grants Congress the power to regulate interstate commerce; health insurance has a substantial impact on interstate commerce; ergo, a legally enacted congressional statute regulating the sale and purchase of health insurance fits within the Constitution.

However, almost no one expects the bloc of five partisan Republicans to abide by their purported principles of judicial restraint and strict construction when the Affordable Care Act is debated before them this week. The reason for that skepticism is the recent history of these justices making a mockery of their judicial philosophies when they collide with GOP partisan needs.

Hitting Obama

And, even though the individual mandate was initially a conservative Republican idea – an alternative to Democratic plans that would have required employer-supplied insurance or a single-payer system run by the government – the GOP and the conservative movement have now turned against their own concept en masse. Not a single Republican voted for “Obamacare.”

Therefore, at least some of the five Republicans – John Roberts, Antonin Scalia, Clarence Thomas, Samuel Alito and Anthony Kennedy – are expected to find some legal argument that they can use as judicial cover to strike a blow at the Democratic president, Barack Obama.

To do that – in essence to overturn the legal reasoning of Appeals Court Judge Silberman – the GOP justices will have to intuit some unstated right in the Constitution on behalf of Americans who simply don’t want to buy health insurance.

Such creative legal reasoning is exactly what the right-wing justices typically condemn. After all, the phrase “strict construction” is supposed to mean following the precise language of the Constitution and not “legislating from the bench.” But it is already clear that some of the Republican justices, such as Clarence Thomas whose wife is publicly campaigning against the law, will find whatever excuse is necessary to vote no.

For anyone who thinks that such a suspicion is overly cynical, you should think back on the unprincipled behavior of Justice Scalia, who was a prime mover in the U.S. Supreme Court shutting down a Florida state recount of the presidential vote in 2000 with the explicit intent of protecting George W. Bush’s “legitimacy” once the Court decided to hand him the White House.

In Bush v. Gore, Republican partisans on the Court, then including Chief Justice William Rehnquist and Justice Sandra Day O’Connor (who was considering retirement to care for her ailing husband), assembled a 5-4 majority on the key issue of rejecting the Florida recount standards and preventing them from being fixed.

It didn’t seem to matter that the Court’s intervention violated many of the supposed principles that the justices claimed to embrace, such as judicial restraint, respect for state privileges and refusal to divine meanings in constitutional provisions not explicitly stated by the Framers.

The five GOP partisans applied the 14th Amendment’s requirement of “equal protection” under the law, essentially turning this important post-Civil War principle on its head. After all, the recount was an effort to recover legitimate ballots cast on antiquated voting machines mostly by poor and minority citizens while voters from richer and whiter precincts had their ballots counted in a higher proportion on state-of-the-art equipment.

But the GOP Five didn’t mind perverting the 14th Amendment because they were looking toward a political higher cause: an excuse to “elect” Bush and thus give him the power to appoint future federal judges. What really mattered was continued Republican control of the Supreme Court, so the Constitution was treated as a malleable weapon for partisan purposes.

Scalia’s Turnabout

Though O’Connor may have had the most pressing concern about Bush’s appointment power – so she could leave her seat to another Republican – the hypocrisy was perhaps most striking for Justice Scalia, an advocate for an “originalist” interpretation of the Constitution, i.e. that the courts must follow the original intent of the Founders or those who approved constitutional amendments.

Thus, Scalia has argued that the 14th Amendment could only apply to black males because in 1868, when the amendment was passed, it was intended to grant full citizenship to black males who were recently freed from slavery.

However, the amendment’s language is much broader. It states: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

During the 20th Century, courts increasingly interpreted the clear wording to guarantee fairness for women, gays and other people facing legal discrimination. However, Scalia has ridiculed such rulings as violating the “original intent.”

“In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don’t think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation,” Scalia said in an interview with the legal magazine California Lawyer. “So does that mean that we’ve gone off in error by applying the 14th Amendment to both? Yes, yes. Sorry, to tell you that.”

However, if the “original intent” of the amendment’s drafters was so determinative – that the 14th Amendment supposedly was only meant to apply to black men at the end of slavery – it might be safe to assume that the drafters weren’t thinking about protecting a white plutocrat like George W. Bush from possibly losing an election in Florida in 2000.

Yet, the 14th Amendment was precisely what Scalia and four other partisan Republicans on the Supreme Court cited to justify shutting down the Florida recount and handing the White House to Bush, despite the fact that he lost the national popular vote and apparently would have come out on the short end of the Florida recount if all legally cast ballots were counted.

In other words, Scalia and other right-wing justices operate with a situational ethic when it comes to “originalism” and “strict construction.” If their partisan and ideological interests require the abandoning of those precepts, the principles are unceremoniously dumped overboard.

No Politics?

Of course, after the Court’s Bush v. Gore ruling — and Al Gore’s gracious-but-pained concession speech the next day — Justice Thomas insisted that politics played “zero” role in the court’s decisions. Later, asked whether Thomas’s assessment was accurate, then-Chief Justice Rehnquist answered, “Absolutely.”

In later comments about the Court’s role in the case, Rehnquist seemed unfazed by the inconsistency of the Court’s logic. His overriding rationale seemed to be that he viewed Bush’s election as good for the country – whether most voters thought so or not.

In a speech on Jan. 7, 2001, Rehnquist said sometimes the U.S. Supreme Court needed to intervene in politics to extricate the nation from a crisis. His remarks were made in the context of the Hayes-Tilden race in 1876, when another popular vote loser, Rutherford B. Hayes, was awarded the presidency after justices participated in a special election commission.

“The political processes of the country had worked, admittedly in a rather unusual way, to avoid a serious crisis,” Rehnquist said. Scholars interpreted Rehnquist’s remarks as shedding light on his thinking during the Bush v. Gore case as well. [For more details, see Consortiumnews.com's "So Bush Did Steal the White House" or the book, Neck Deep.]

A thankful Bush then used his authority over appointment of federal judges to further stack the Judiciary with right-wing ideologues, including later replacing Chief Justice Rehnquist with John Roberts and Sandra Day O’Connor with Samuel Alito.

So, with the presidential appointment power at stake again in 2012, the current Republican bloc of Roberts, Scalia, Thomas, Alito and Kennedy can be expected to be tempted once more with not just legislating from the bench but trying to tilt the political balance to the GOP.

For instance, their 2010 ruling on the Citizens United case – allowing billionaires to pour unlimited money into negative campaign commercials – was viewed as an advantage to Republicans and was condemned by Obama. Now, the same justices have a chance to deliver a body blow to the President who spent enormous political capital pushing through the Affordable Care Act.

Since many Americans still view the Supreme Court as the impartial arbiter of what’s legal, they are likely to react to a judgment striking down “Obamacare” as reinforcement of the belief that Obama had wasted a year of the country’s time getting the law passed.

Extracting a New Right

The expectation on the Right is that the five GOP justices will extract from the Tenth Amendment some previously unidentified “right” of a citizen not to have to submit to the broad congressional power embedded in the Commerce Clause.

On its face, the Tenth Amendment would seem to be irrelevant to the issue since it simply reserves for the states and individuals “the powers not delegated to the United States by the Constitution.” Because the Constitution does grant Congress power to regulate interstate commerce, the five Republicans would have to first conclude that the Commerce Clause does not cover regulation of the health insurance market despite its obvious significance to interstate commerce.

As Solicitor General Donald B. Verrilli Jr. noted in the U.S. government’s court brief, uninsured Americans consumed about $116 billion in health-care services in 2008, meaning that those costs were either paid by health providers or passed on in higher premiums to other consumers, adding up to about $1,000 per family.

Given this undeniable impact on national commerce by uninsured Americans, the only serious legal issue remaining would seem to relate to the novelty of the solution, i.e. the individual mandate. Judge Silberman’s ruling also addressed that point, concluding again that the law appeared to fall within constitutional precedents.

“Today, the only recognized limitations are that (1) Congress may not regulate non-economic behavior based solely on an attenuated link to interstate commerce, and (2) Congress may not regulate intrastate economic behavior if its aggregate impact on interstate commerce is negligible,” Silberman wrote.

Neither limitation applied to the health-care law, Silberman noted, because medical insurance was clearly an economic activity and surely had sizable interstate implications.

As for the claim that people had a constitutional right not to participate in the purchase of health insurance, Silberman was not persuaded. For instance, he cited a Supreme Court precedent that a farmer who wished to raise wheat for his own consumption could still face federal restrictions because his production (and that of other likeminded farmers) could affect the overall supply of wheat and thus undermine federal policy regarding the wheat market.


=========

SHORT ANSWER: YES

[boutons_deux]

Are the GOP Justices Political Hacks? Part Deux


Congressional Powers

Silberman also recognized Congress’s power to address difficult national problems, like the tens of millions of Americans who lack health insurance but whose eventual use of medical services would inevitably shift billions of dollars in costs onto Americans who must pay higher insurance rates as a result, what courts have described as “substantial effects.”

“The shift to the ‘substantial effects’ doctrine in the early twentieth century recognized the reality that national economic problems are often the result of millions of individuals engaging in behavior that, in isolation, is seemingly unrelated to interstate commerce,” Silberman wrote.

“Its very premise is that the magnitude of any one individual’s actions is irrelevant; the only thing that matters is whether the national problem Congress has identified is one that substantially affects interstate commerce. …

“It is irrelevant that an indeterminate number of healthy, uninsured persons will never consume health care, and will therefore never affect the interstate market. Broad regulation is an inherent feature of Congress’s constitutional authority in this area; to regulate complex, nationwide economic problems is to necessarily deal in generalities.

“Congress reasonably determined that as a class, the uninsured create market failures; thus, the lack of harm attributable to any particular uninsured individual, like their lack of overt participation in a market, is of no consequence.”

Silberman wrote that “Congress, which would, in our minds, clearly have the power to impose insurance purchase conditions on persons who appeared at a hospital for medical services – as rather useless as that would be – is merely imposing the mandate in reasonable anticipation of virtually inevitable future transactions in interstate commerce.”

He noted that since those challenging the health-care law “cannot find real support for their proposed rule in either the text of the Constitution or Supreme Court precedent, they emphasize both the novelty of the [individual] mandate and the lack of a limiting principle,” i.e. some example of when the government could not require citizens to purchase a specific product.

Silberman acknowledged that “the Supreme Court occasionally has treated a particular legislative device’s lack of historical pedigree as evidence that the device may exceed Congress’s constitutional bounds,” but added that “we are obliged – and this might well be our most important consideration – to presume that acts of Congress are constitutional” absent “a clear showing to the contrary.”

Silberman also addressed the core political objection to the health-reform law, its supposed intrusion on individual liberty. He wrote: “That a direct requirement for most Americans to purchase any product or service seems an intrusive exercise of legislative power surely explains why Congress has not used this authority before – but that seems to us a political judgment rather than a recognition of constitutional limitations.”

He added: “It certainly is an encroachment on individual liberty, but it is no more so than a command that restaurants or hotels are obliged to serve all customers regardless of race, that gravely ill individuals cannot use a substance their doctors described as the only effective palliative for excruciating pain, or that a farmer cannot grow enough wheat to support his own family.

“The right to be free from federal regulation is not absolute, and yields to the imperative that Congress be free to forge national solutions to national problems, no matter how local – or seemingly passive – their individual origins.”

So, even a very conservative legal scholar examining the Constitution and precedents could not find a convincing argument to overturn “Obamacare” – and that is because the Founders intentionally and broadly empowered Congress to address national economic problems through the Commerce Clause.

Among the principal advocates of the Commerce Clause were James Madison, the architect of the Constitution, and George Washington, who presided over the Constitutional Convention in Philadelphia in 1787. [See Consortiumnews.com’s “Madison: Father of the Commerce Clause.”]

Partisan Agenda

But it appears that constitutional principles will have less to do with how the Republican partisans on the Supreme Court rule than the perceived need to advance an ideological and political agenda.

These opponents of the health-care law surely will muster some impressive “lawyering” with lots of high-brow references to various articles and clauses – just as they did in the Bush v. Gore ruling. But that will mostly be window-dressing to impress those who still believe in the integrity of this Supreme Court.

Of course, it is still possible that one or more of the Republican partisans will overlook their political loyalty to the GOP and their ideological commitment to the anti-government Right – and agree with Judge Silberman that the Affordable Care Act is constitutional.

Such a justice might even think back on how the individual mandate began as a right-wing idea and thus refuse to behave as a political hack who simply switches constitutional principles based on whose name is associated with a law.

For instance, here is a Q and A by the magazine, This Week:

“Who first proposed making health insurance compulsory?

“The Heritage Foundation, a conservative think tank. In the late 1980s, when Democrats were pushing to require employers to provide health insurance, the foundation started thinking about ways to achieve universal coverage without placing a heavy burden on business. Its experts soon encountered the ‘free rider’ problem: In a system where insurers are barred from refusing applicants with pre-existing conditions, many people — especially the young and healthy — would only buy a policy when illness struck.

“But if only sick people bought coverage, insurers would pay out more in doctors’ bills than they received in premiums, and quickly go bust. To overcome this death spiral, the Heritage Foundation suggested that every American be required to buy health insurance, a requirement known as the individual mandate.

“Which politicians took up that idea?

“Many Republicans did in the early 1990s, after President [Bill] Clinton introduced a plan that would have forced companies to cover employees. ‘I am for people, individuals — exactly like automobile insurance — having health insurance and being required to have health insurance,’ said Newt Gingrich, then House minority whip, in 1993.

“When the Clinton plan collapsed in 1994, talk of the individual mandate died with it. But a decade later, Mitt Romney, then the governor of Massachusetts, resurrected the concept for his state health-care plan, which requires residents to buy health insurance or pay up to $1,212 in annual penalties.

“‘It’s a Republican way of reforming the market,’ Romney said when the law debuted, in 2006. ‘[To have] people show up [at a hospital] when they get sick, and expect someone else to pay, that’s a Democratic approach.’”

During Campaign 2008, Obama opposed the idea of an individual mandate while Hillary Clinton supported it. After taking office, Obama changed his mind because he judged that adopting the Republican approach was the only way to win passage of a health-care bill. He also favored a “public option” as an alternative to private insurance.

However, with every Republican now voting against health reform, Obama had to jettison the “public option” to secure the 60 votes needed in the Senate to stop a GOP filibuster. When the bill was signed into law two years ago, Republican state officials immediately began filing legal challenges and the Right rallied Tea Partiers and other Americans against the law’s supposed intrusion on their “liberties.”

It quickly became an article of faith on the Right that the law was “unconstitutional.” However, the law will likely only be judged so if the five Republican justices do what a similar bloc of GOP justices did in December 2000 – put their political interests ahead of the law.

http://consortiumnews.com/2012/03/25/are-the-gop-justices-political-hacks/

[fraga]

Republican idea...greatest thing since sliced bread...Democratic idea...unconstitutional...

[JoeChalupa]

From what I'm hearing the Affordable Care Act is in trouble.

[FromWayDowntown]

From what I'm hearing the Affordable Care Act is in trouble.

SCOTUSBlog, for one, is suggesting pretty strongly that Justice Kennedy will (as usual) end up deciding this dispute and that there's a reasonable chance that if he can find a limiting principle -- something that will allow this law to withstand constitutional muster without opening the floodgates to broad regulation -- there might be a unique facet to this sort of market that justifies upholding the law.

It's difficult to ever discern what judges mean by their questions/statements during oral argument; some have an idea and use their questioning time to test the logic of it, offering seemingly hostile questions to an advocate to see what someone else thinks of it.

It's also rarely true that anything said at oral argument will ultimately change the position of a justice (other than, perhaps, how counsel deals with devil's advocate questions). Good briefing wins and bad briefing loses. That may prove to be a fortunate thing for the Government, since the Solicitor General did not -- apparently -- distinguish himself in his oral argument this morning.

[CosmicCowboy]

OK, report and transcript for today are out...

http://www.usatoday.com/news/washington/judicial/story/2012-03-27/supreme-court-health-mandate/53801274/1

[Sec24Row7]

Looking forward to the ruling after todays arguments...

[CosmicCowboy]

Once you're into interstate commerce and can regulate it, pretty much all bets are off," Roberts said. Added Justice Antonin Scalia: "What is left? If the government can do this, what else can it not do?"

[Wild Cobra]

Once you're into interstate commerce and can regulate it, pretty much all bets are off," Roberts said. Added Justice Antonin Scalia: "What is left? If the government can do this, what else can it not do?"
Yes, we need to have Obamacare struck down to place limits on what the government calls interstate commerce.

I think our founding fathers are all turning in their graves over what the government does under the commerce clause. It does far too much.

[boutons_deux]

"If the government can do this, what else can it not do?"

asshole, anything regulating interstate commerce. Read the Constitution "strictly".

an individual mandate "to eat broccoli" is a silly, spurious, and partisan as you are a troll and shill for the VRWC.

[boutons_deux]

The Constitution was meant to provide a stronger central govt, since the Articles of Confederation had the states going in too many contrary directions.

[boutons_deux]

The Constitution was meant to provide a stronger central govt, since the Articles of Confederation had the states going in too many contrary directions.

[TeyshaBlue]

The Constitution was meant to provide a stronger central govt, since the Articles of Confederation had the states going in too many contrary directions.

A good point times deux.:lol

[elbamba]

So I got through 3/4 of the transcript. Today has been total waste of my work time between reading this transcript and posting in the Martin/Zimmerman thread. I can honestly say I have no clue which way the court is coming down. My guess, based on some of the questions Kennedy asked, he was leaning towards ruling that the mandate was unconstitutional. But I really don't know. I am confident that Scalia and Roberts will be against the mandate. Between forcing people to buy cell phones and gym memberships.

[elbamba]

President Obama preemptively slammed the Supreme Court as a bunch of "unelected group of people" who will have turned to "judicial activism or a lack of judicial restraint" if they decide to strike down his signature legislative achievement, the healthcare reform act.

Obama was speaking at a trilateral event with the Prime Minister of Canada and President of Mexico.

Obama touted the Affordable Care Act, or Obamacare, as "a law that was passed by a strong majority of a democratically-elected Congress."

"I am confident the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically-elected congress," President Obama said at a White House event in the Rose Garden today.

"I just remind conservative commentators that for years we have heard the biggest problem on the bench was judicial activism or a lack of judicial restraint. That an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example and I am pretty confident that this Court will recognize that and not take that step," Obama said to the White House press.

"As I said, we are confident this will be over -- this will be upheld. I am confident this will be upheld because it should be upheld. And again, that is not just my opinion. That is the opinion of a whole lot of constitutional law professors and academics and judges and lawyers who have examined this law, even if they're not particularly sympathetic to this piece of legislation or my presidency," he said.

http://www.realclearpolitics.com/video/2012/04/02/obama_supreme_court_striking_down_obamacare_would_ be_judicial_activism.html

Starting to heat up.

[Th'Pusher]

Umpire of liberty
In addition to its polarised Congress, America has a polarised Supreme Court
Mar 31st 2012 | from the print edition


AT FIRST blush it is magnificent. Behind the neoclassical columns of the Supreme Court this week, the nine supreme justices of a nation of laws—not men, you understand—convened for a solemn hearing of the arguments for and against striking down the most far-reaching social legislation Congress has enacted for decades. A main provision of the Patient Protection and Affordable Care Act, nicknamed “Obamacare”, obliges Americans, on pain of a fine, to buy health insurance. But this, remember, is America. By what right does the federal government impose such a requirement on free people in states with their own administrations? Where does the constitution empower mere legislators to compel citizens to buy something they do not want?

And what better way, when such questions arise, than to entrust the answer to nine upstanding judges, appointed for life and therefore impervious to subornation or political interference? These, moreover, are modest men and women—or so the present chief justice, John Roberts, told the Senate at his appointment hearing in 2005. He had no “agenda” or “platform”, he said. Judges were not politicians, “who can promise to do certain things in exchange for votes”. They were like umpires, applying rules they did not make themselves. It was a vital role, but a limited one: “Nobody ever went to a ball game to see the umpire.”


Such is the conceit that undergirds not only the Supreme Court but also, by extension, the doctrine of the separation of powers upon which the American polity stands. What a pity that it is mostly fiction. These judges are far from being humble umpires applying simple rules. Sometimes they have to work out whether a rule exists at all, and what it means if it does. Nor are they desiccated calculating machines, meting out dispassionate justice uninfluenced by political ideas. Since they are made of flesh and blood, one judge’s “jurisprudence” is another’s “bias”. That is why appointing a sympathetic judge to the Supreme Court for life has long been the surest way for a president to leave a lasting imprint on America.

The judges themselves are often willing accomplices in the politicisation of the court. Consider the retirement in 2010 of Justice John Paul Stevens, at the age of 90. He did not go because he wanted to play more tennis. By all accounts his legal brain remained as sharp as a pin. But by retiring when he did he gave a president he happened to admire a chance to replace him with a like-minded successor. Barack Obama duly did so by appointing Elena Kagan. She joined his previous appointee, Sonia Sotomayor, and two other judges, Stephen Breyer and Ruth Bader Ginsburg, who form the liberal wing of the court. Opposite them on the conservative wing are Antonin Scalia, Clarence Thomas, Samuel Alito and Chief Justice Roberts himself.

Is it fair to apply such crude labels as “liberal” and “conservative” to subtle legal minds whose owners claim to be weighing each case on its merits? Alas, yes. Academic studies confirm that when the court is divided, the liberal or conservative predisposition the judges is a fair indicator of how their votes will go.

Sometimes, admittedly, judges move along the spectrum during their career. Mr Stevens ended up a liberal but was appointed by Gerald Ford, a Republican, at a time when he thought of himself as a Republican too. Although she was appointed by Ronald Reagan, Sandra Day O’Connor, the first woman on the court, turned out to be a more flexible Republican than some conservatives wanted. Her willingness to side with the liberals on social issues made her the court’s swing voter until she retired in 2006.


The swing voter on the present court is Anthony Kennedy, also a Reagan appointee, but one who sometimes votes with the liberal wing, so prompting fans to enthuse about his open mind and critics to grumble about his inconsistency. This flexibility gives him special influence—so much so that Justice Roberts’s court is often called the “Kennedy court”, to reflect the importance of the tie-breaker. How he will vote on Mr Obama’s health-care bill nobody can say, though this has not deterred a flock of pundits from embarking on a feverish dissection of his previous opinions and his questions this week in search of clues. Justice Roberts was wrong to say that nobody ever went to a ball game to see the umpire. The crowds who thronged the court this week acted just like game fans, chanting for their rival teams.

Umpires indeed. The Roberts court is conservative and continues to change America according to the balance of ideology on the bench, much as the activist court of Earl Warren pushed in the opposite direction half a century ago. In the Citizens United ruling two years ago, the court made a broad decision in a narrow case, freeing corporations and unions to spend unlimited amounts of money in elections. It has declared gun-control laws in Chicago and the District of Columbia unconstitutional.

Yet a decision to strike down Obamacare could have far more momentous consequences. When the Supreme Court intervened 11 years ago to settle the presidential election of 2000, this column noted that the public’s confidence in the court was not something to be taken for granted. The court has fallen into controversy many times before, not least when a conservative court tried to thwart Roosevelt’s New Deal.

In the case of Obamacare, it now looks unwise of the Democrats to have pushed such ambitious—and unpopular—legislation through Congress without a single Republican vote. What, though, if the flagship achievement of a Democratic president is now to be struck down by the casting vote of a single judge, in a case where legal opinion is finely divided? Magnificent, in its way, but not the most harmonious way to run a country already asking whether its governing institutions are still up to the job.

http://www.economist.com/node/21551477

[boutons_deux]

polarized SCOTUS?

the more accurate term is POLITICIZED SCOTUS, with the Repug appointees being nothing but political hacks ruling for the VRWC/wealthy/MIC/UCA and against Human-Americans.

[boutons_deux]

What SCOTUS Conservatives Might Do to Health Care—and Why It Could Dismantle Congressional Power

"A decision in the challengers\' favor ... would lead to probably an array of attacks on different parts of the federal regulatory state because for the first time, you have five justices who are going to take very seriously limits on Congressional power," Tom Goldstein, publisher of SCOTUSblog, said at a POLITICO Pro briefing just before last week\'s oral arguments....

If the health care law goes down, [Simon] Lazarus [of the National Senior Citizens Law Center] said Superfund legislation imposing cleanup of environmental contamination and statutes aimed at preventing employment discrimination could be next in the cross hairs....

An "expansive" ruling could jeopardize laws including the Endangered Species Act and the Clean Water Act and might even rein in federal regulation of the labor market, Tushnet said....

After Citizens United, I think it\'s quite reasonable to imagine that the Federalist-Four-plus-Kennedy-as-useful-idiot might put 75 years of settled law back on the table. They clearly don\'t care how much chaos they cause, if oil billionaires are pleased.
But they\'ll overturn these precedents as soon as it suits them. They\'ll declare limits on federal control of commerce now, then, if a GOP president and Congress make it illegal to ban fracking, say, via local zoning, they\'ll do a 180 and say that\'s constitutional.
They don\'t care. That\'s why they need to be stopped. At the very least, they need to be made part of a permanent minority on the Court, which is all the reason you need to vote Obama in November.

http://www.alternet.org/module/printversion/newsandviews/875451

[Spurminator]

Obama touted the Affordable Care Act, or Obamacare, as "a law that was passed by a strong majority of a democratically-elected Congress."

"I am confident the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically-elected congress," President Obama said at a White House event in the Rose Garden today.

Fundamentally irrelevant.

[ElNono]

President Obama preemptively slammed the Supreme Court as a bunch of "unelected group of people" who will have turned to "judicial activism or a lack of judicial restraint" if they decide to strike down his signature legislative achievement, the healthcare reform act.

Obama was speaking at a trilateral event with the Prime Minister of Canada and President of Mexico.

Obama touted the Affordable Care Act, or Obamacare, as "a law that was passed by a strong majority of a democratically-elected Congress."

"I am confident the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically-elected congress," President Obama said at a White House event in the Rose Garden today.

"I just remind conservative commentators that for years we have heard the biggest problem on the bench was judicial activism or a lack of judicial restraint. That an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example and I am pretty confident that this Court will recognize that and not take that step," Obama said to the White House press.

"As I said, we are confident this will be over -- this will be upheld. I am confident this will be upheld because it should be upheld. And again, that is not just my opinion. That is the opinion of a whole lot of constitutional law professors and academics and judges and lawyers who have examined this law, even if they're not particularly sympathetic to this piece of legislation or my presidency," he said.

http://www.realclearpolitics.com/video/2012/04/02/obama_supreme_court_striking_down_obamacare_would_ be_judicial_activism.html

Starting to heat up.

Terrible...

[Winehole23]

what say you, debt hawks?

http://www.gao.gov/assets/590/589835.pdf

[Winehole23]

#crickets