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Health Care Reform Gearing Up - Page 49

post #2401 of 2685

I nervous.

post #2402 of 2685
Quote:
Originally Posted by Spook View Post

Forget about Thomas (and Alito to an extent).  The game here is Scalia.  If you get Scalia, you get Roberts and Kennedy. 

 

I think we can honestly say that Scalia is intellectually honest (for the most part, with some exceptions with respect to personal morality where he goes overboard).  Scalia is an ardent defender of the rights of criminal defendants with respect to due process and confrontation of accusers.  Scalia may be a conservative individual, but he's not a party hack--certainly not a Republican party hack.

 

I think you have to have faith that SCOTUS will be a neutral arbiter in this.  As a lawyer, I certainly have faith in that.  Citizens United was a bad decision and the Court knows it--especially Kennedy.  The Justices are all too isolated and cloistered, which is why they didn't anticipate the consequences of that decision.  They're students of history and, hopefully, most of them know that the Court usually has been on the wrong side of history in striking down major pieces of federal legislation. 

 

That's really all we can hope for.


good info to chew on....

if I could armchair quarterback the CU decision...I think the excuse that the Justices are 'too isolated and cloistered' is a little to simplistic. I'm not saying they need to be all-seeing, all-knowing prescient 'Guardians of the Universe' but there were many, many warnings about how bad the decision would be to allow Corporations to be "people".

 

IMO, something as simple as a couple of hours extrapolating the possibilities of what would happen should CU be passed should have been enough to have the Justices 'slam on the brakes' regarding the decision.

I haven't studied law but even I was smart enough to realize it was a really bad decision especially given human nature and the seemingly huge lack of morality that exists in much of corporate America these days.

 

As it stands now, the political funding genie is out of the bottle and it's going to be tough to get it back in.  

 

post #2403 of 2685
Quote:
Originally Posted by VTRan View Post


good info to chew on....

if I could armchair quarterback the CU decision...I think the excuse that the Justices are 'too isolated and cloistered' is a little to simplistic. I'm not saying they need to be all-seeing, all-knowing prescient 'Guardians of the Universe' but there were many, many warnings about how bad the decision would be to allow Corporations to be "people".

 

IMO, something as simple as a couple of hours extrapolating the possibilities of what would happen should CU be passed should have been enough to have the Justices 'slam on the brakes' regarding the decision.

I haven't studied law but even I was smart enough to realize it was a really bad decision especially given human nature and the seemingly huge lack of morality that exists in much of corporate America these days.

 

As it stands now, the political funding genie is out of the bottle and it's going to be tough to get it back in.  

 

 

Sometimes empirical facts about the consequences of a given policy are important in interpreting how to rule on a matter, but you have to understand that the Supreme Court makes decisions based on how they interpret the law.  If they think the Constitution implies that money = speech, well, then that's what they'll say, consequences be damned.

I have to respectfully disagree with Spook on the constitutionality of the mandate being so cut and dry.  I absolutely support the ACA, but I sympathize with the constitutional critiques.  I do not think the commerce clause as it has been understood, even post FDR and post civil rights legislation can sustain the interpretation the mandate requires.  I view it through the lens of: either the SC is going to acquiesce to an expansion of Congress authority to regulate commerce, or they are going to draw a line in the sand.

post #2404 of 2685
Quote:
Originally Posted by VTRan View Post


good info to chew on....

if I could armchair quarterback the CU decision...I think the excuse that the Justices are 'too isolated and cloistered' is a little to simplistic. I'm not saying they need to be all-seeing, all-knowing prescient 'Guardians of the Universe' but there were many, many warnings about how bad the decision would be to allow Corporations to be "people".

 

IMO, something as simple as a couple of hours extrapolating the possibilities of what would happen should CU be passed should have been enough to have the Justices 'slam on the brakes' regarding the decision.

I haven't studied law but even I was smart enough to realize it was a really bad decision especially given human nature and the seemingly huge lack of morality that exists in much of corporate America these days.

 

As it stands now, the political funding genie is out of the bottle and it's going to be tough to get it back in.  

 


I forget where I read this, but there was a good critique of CU (I'll try to find it) about this point.  The thrust of it was that Kennedy made a factual finding (fancy way of saying he thought X was true as a matter of fact) with respect to the fact that independent spending doesn't influence politicians where he should have instead made a legal finding (fancy way of saying that the law is X).  This is what he said:

 

 

Quote:
The majority opinion in Citizens United, authored by Justice Kennedy, concluded that “independent expenditures do not lead to, or create the appearance of, quid pro quo corruption” and that “there is only scant evidence that independent expenditures even ingratiate.” But, thanks to a procedural quirk, the case shot up to the Supreme Court before anyone in the case could engage in any real fact-finding. So, Kennedy’s conclusion was little more than an untested hypothesis, not supported by any hard evidence.
 

 

The problem here is that SCOTUS isn't equipped, as a judicial body, to make factual findings because it is so far removed from where facts are developed (at the trial court level).  I think SCOTUS made that mistake because the Justices are so far removed from the political process (none of them have ever run for office) that they entertain this notion that politicians can be independent from individuals and entities that donate money to their campaigns for decision making purposes because elected judges, for the most part, behave that way.  I know it's hard to accept that, but having known and worked for (and with) federal judges, this is actually really close to the truth.

 

My short career as a lawyer has taught me that you shouldn't assume a conspiracy where lack of common sense is the simplest explanation for the result.

 

Which leads us back to ACA.  My hope is that reason prevails and the Court realizes that the mandate is the only way to make the health care reform law work--people are stupid and don't want to buy insurance until it's too late.  Yes, it's paternalistic, but so what.  The Constitution, as a document, is paternalistic.  If we could all get along, why would we have to put it in writing?

post #2405 of 2685

 I saw on msn.com that the SCOTUS may strike down the law. Those assholes! First off these are the same people who gave us Bush as President. Haven't they done enough damage?! Just like Bush v Gore, Thomas shouldn't be on this case. In 2000, because his wife was a member of Bush's transition team. He should do it this time because now she is part of some Tea Party group.

post #2406 of 2685

Wouldn't it be nice if we lived in a country that cared more about keeping citizens healthy than protecting their rights to do each other harm with guns?

post #2407 of 2685

oh, Romney.....<face palm>

 

Quote:

 

Republican presidential candidate Mitt Romney on Tuesday insisted that President Barack Obama’s health care reform law should be overturned and that people with preexisting conditions should be denied coverage if they had never had insurance before.

 

During an appearance on NBC’s Tonight Show, host Jay Leno told Romney that he knew people that had never been able to get insurance before “Obamacare” was passed.

“It seems to me like children and people with preexisting conditions should be covered,” Leno noted.

 

“People with preexisting conditions — as long as they’ve been insured before, they’re going to continue to have insurance,” Romney explained.

 

“Suppose they were never insured?” Leno asked.

 

“Well, if they’re 45 years old, and they show up, and they say, I want insurance, because I’ve got a heart disease, it’s like, `Hey guys, we can’t play the game like that. You’ve got to get insurance when you’re well, and if you get ill, then you’re going to be covered,’” Romney replied.

 

“I know guys that work in the auto industry and they’re just not covered because they work in brake dust,” Leno pressed. “And then they get to be 30, 35, and were never able to get insurance before. Now they have it. That seems like a good thing.”

 

“But people who have had the chance to be insured — if you’re working in an auto business for instance, the companies carry insurance, they insure all their employees — you look at the circumstances that exist,” the candidate explained. “But you don’t want everyone saying, `I’m going to sit back until I get sick and then go buy insurance.’ That doesn’t make sense. But you have to find rules that get people in that are playing by the rules.”

 

The Washington Post‘s Greg Sargent pointed out that by passing health insurance mandates in Massachusetts, Romney had acknowledged that people should get coverage when they are well, but he had since moved further to the right in an effort to win the GOP presidential primary.

“So he’s forced to give a nonsensical answer to the core policy and moral question that’s left behind if we do away with Obamacare: What should the federal government do about those who can’t get insurance covarge, thanks to preexisting conditions?” Sargent wrote.

“Until Romney details otherwise, his answer, for all practical purposes, is: Nothing.”

 

http://www.rawstory.com/rs/2012/03/28/romney-uninsured-with-preexisting-conditions-should-be-denied-coverage/

 

I'd like to propose that we replace the term "flip-flopper" with "Romneying"

post #2408 of 2685

 

 

Quote:
I think we can honestly say that Scalia is intellectually honest (for the most part, with some exceptions with respect to personal morality where he goes overboard).  Scalia is an ardent defender of the rights of criminal defendants with respect to due process and confrontation of accusers.  Scalia may be a conservative individual, but he's not a party hack--certainly not a Republican party hack.

Yes, his intellectually honest justification of torture by citing an episode of 24 oozed integrity.

post #2409 of 2685

220px-Antonin_Scalia,_SCOTUS_photo_portrait.jpg

 

On Scalia's Wiki profile, his jpg photo is embedded with the comment "A heavyset, middle-aged balding man wears the black robes of a judge. He looks towards the camera, almost smiling". Well played, Wikipedia.

post #2410 of 2685
Quote:
Originally Posted by Mangy View Post

 

 

Yes, his intellectually honest justification of torture by citing an episode of 24 oozed integrity.



I'm not saying these people are perfect, and I'm pretty sure he was speaking half in jest--to other judges--to make a point about extenuating circumstances in criminal cases, but saying that Scalia is an idiot or a loon is patently false.  You may not agree with the man, but he's brilliant and has been, aside from Oliver Wendell Holmes, the only American jurist in the last 100 years to articulate a consistent and workable theory of constitutional interpretation.

 

Again, you may not like the results of his theories regarding the Constitution, but the man knows what he's talking about.

 

Back on topic: the prediction markets put the chances of SCOTUS invalidating the mandate at 64%.  I have to say, despite my prior optimism, I'm beginning to lose hope as well.

post #2411 of 2685

If Scalia is an originalist, where does Bush v. Gore fit in? 

 

ETA: I'm not debating his intellect; clearly he's extremely smart.  I just don't think he's as consistent as he gets credit for being.

post #2412 of 2685
Quote:
Originally Posted by yt View Post

 

ETA: I'm not debating his intellect; clearly he's extremely smart.  I just don't think he's as consistent as he gets credit for being.



Case in point.

post #2413 of 2685

Also:

Scalia: Is Partisanship at work in Health Care Challenge?

Gee, ya THINK?

 

Of course he's probably going to use that as evidence that all Democrats are wrong. But whatevs!

post #2414 of 2685


 

Quote:
Originally Posted by yt View Post

If Scalia is an originalist, where does Bush v. Gore fit in? 

 

ETA: I'm not debating his intellect; clearly he's extremely smart.  I just don't think he's as consistent as he gets credit for being.

 

I don't understand the question.  How does Bush v. Gore conflict with originalism? 

 

I agree that Bush v. Gore was a terrible decision--forget about putting Bush in the White House.  The fact that the Court said, in the opinion, "please don't cite this again" is revealing, but it was a per curiam opinion, meaning that all nine Justices held that Florida's vote counting methods were a violation of the 14th Amendment.  From Wikipedia:

 

Quote:
In a per curiam decision, the Court ruled that the Florida Supreme Court's method for recounting ballots was a violation of the Equal Protection Clause of the Fourteenth Amendment. The Court also ruled that no alternative method could be established within the time limits set by the State of Florida. Three concurring justices also asserted that the Florida Supreme Court had violated Article II, § 1, cl. 2 of the Constitution, by misinterpreting Florida election law that had been enacted by the Florida Legislature.

 

The concurring Justices were Rehnquist, Scalia, and Thomas.

 

Back on point: I think the Raich (the homegrown medical marijuana case) may eventually win the day.  The Justices attitudes at oral argument have little to no bearing on how they'll vote.  There have been arguments where the Justices have been extremely hostile to one side, but then decided in favor of that same side.  This isn't as clear cut as the media is portraying it.  But the government is really bungling the defense of ACA as well.  The Solicitor General needs to give the Court a limiting principle that it can craft into precedent.  Otherwise, the government could, conceivably, force everyone to buy a specific product under the guise of regulating interstate commerce.  That's not an unreasonable request of the Solicitor.

 

I think the limiting principle that the government has come up with--that health insurance is different than most other commercial products, given that people will always need health care but they don't know when, and, on top of that, an individual's decision not to purchase health insurance increases the cost structure of everyone else because the tax payer is eventually saddled with paying for that person's care, when that person needs it but can't afford it--is workable.  In essence, if the purpose of the regulation requiring citizens to buy a product that they otherwise wouldn't buy (or wouldn't buy at the time the government requires them) is to solve a collective action problem, then the government can require such of citizens.  You don't see this in, for instance, requiring people to purchase food or cell phones because people's cognitive biases don't distort such purchases.

 

But Verrilli needs to go to the mat on this and he hasn't.  Otherwise, he'll lose Kennedy.

 

post #2415 of 2685

Consider my mind blown that Leno actually asked a thoughtful and worthwhile question.

Also: fuck the SCROTUS. This court is a disgrace, the Affordable Care Act is going down in flames, and its complete bullshit.

post #2416 of 2685
Quote:
Originally Posted by Spook View Post



 

I don't understand the question.  How does Bush v. Gore conflict with originalism? 

I agree that Bush v. Gore was a terrible decision--forget about putting Bush in the White House.  The fact that the Court said, in the opinion, "please don't cite this again" is revealing, but it was a per curiam opinion, meaning that all nine Justices held that Florida's vote counting methods were a violation of the 14th Amendment.  From Wikipedia:


The concurring Justices were Rehnquist, Scalia, and Thomas.

Back on point: I think the Raich (the homegrown medical marijuana case) may eventually win the day.  The Justices attitudes at oral argument have little to no bearing on how they'll vote.  There have been arguments where the Justices have been extremely hostile to one side, but then decided in favor of that same side.  This isn't as clear cut as the media is portraying it.  But the government is really bungling the defense of ACA as well.  The Solicitor General needs to give the Court a limiting principle that it can craft into precedent.  Otherwise, the government could, conceivably, force everyone to buy a specific product under the guise of regulating interstate commerce.  That's not an unreasonable request of the Solicitor.

I think the limiting principle that the government has come up with--that health insurance is different than most other commercial products, given that people will always need health care but they don't know when, and, on top of that, an individual's decision not to purchase health insurance increases the cost structure of everyone else because the tax payer is eventually saddled with paying for that person's care, when that person needs it but can't afford it--is workable.  In essence, if the purpose of the regulation requiring citizens to buy a product that they otherwise wouldn't buy (or wouldn't buy at the time the government requires them) is to solve a collective action problem, then the government can require such of citizens.  You don't see this in, for instance, requiring people to purchase food or cell phones because people's cognitive biases don't distort such purchases.

But Verrilli needs to go to the mat on this and he hasn't.  Otherwise, he'll lose Kennedy.

Does it really matter though so long as one of the liberal justices does it for him (verilli)? It's not like this discussion won't continue to play itself out behind closed doors. People need to stop reading all this bullshit arm chair analysis and just let the process play itself out.
post #2417 of 2685
Quote:
Originally Posted by JuddL View Post


Does it really matter though so long as one of the liberal justices does it for him (verilli)? It's not like this discussion won't continue to play itself out behind closed doors. People need to stop reading all this bullshit arm chair analysis and just let the process play itself out.


Kennedy was begging for one.  And I don't know if Kennedy will go out on a limb if Verrilli can't articulate one.

 

ETA: fuck it.  I sound so pedantic and who am I kidding.  They'll just fuck this up for the rest of us on some bullshit principle.


Edited by Spook - 3/28/12 at 6:00pm
post #2418 of 2685

If it gets struck down, I want every conservative sheep who goes bankrupt from medical bills in the next several decades to remember that they wanted it this way.

post #2419 of 2685

post #2420 of 2685

really...?

 

is it too much to ask that on a decision that is as important as this one, the people making the decision know the material very, very, VERY well ? 

 

 

Quote:

Scalia Says Court Can’t Be Bothered To Read Obamacare: ‘You Really Want Us To Go Through These 2,700 Pages?’

 

During the last day of Supreme Court hearings about the Affordable Care Act, the justices covered whether or not the entire law could stand if the individual mandate was struck down and the law’s expansion of Medicaid. But Justice Antonin Scalia seemed surprised that someone would have expected the justices to read the text of the health care reform law before the hearings:

 

JUSTICE SCALIA: Mr. Kneedler, what happened to the Eighth Amendment? You really want us to go through these 2,700 pages? (Laughter.) And do you really expect the Court to do that? Or do you expect us to — to give this function to our law clerks? Is this not totally unrealistic? That we are going to go through this enormous bill item by item and decide each one?

 

Maybe Scalia should have read the bill before he brought up the Cornhusker kickback during the hearing. As Dave Weigel notes, the plan Scalia brought up — a special deal added that would have funded Nebraska’s Medicaid expansion in perpetuity — was not in the final version of the Affordable Care Act that Congress passed.

 

To be clear, the Affordable Care Act is a very long bill, and it includes far more than just a provision requiring people to buy insurance. It has expanded insurance coverage for millions of people by allowing young adults to stay on their parents’ insurance plans until 26, and it prevents insurance companies from denying someone coverage because of a pre-existing condition. Scalia is brushing off a bill that could dramatically expand affordable health insurance to the 50 million Americans who are currently uninsured — that is, so long as the Supreme Court does not strike down the entire law.

 

post #2421 of 2685
Quote:
Originally Posted by bigbrother View Post

If it gets struck down, I want every conservative sheep who goes bankrupt from medical bills in the next several decades to remember that they wanted it this way.



The lead plaintiff actually declared bankruptcy due to medical bills.

post #2422 of 2685
Quote:
Originally Posted by VTRan View Post

really...?

 

is it too much to ask that on a decision that is as important as this one, the people making the decision know the material very, very, VERY well ? 

 

 

 



Why? The people who wrote it and passed it into law hadn't.

post #2423 of 2685
Quote:
Originally Posted by Dr Vivisector View Post



Why? The people who wrote it and passed it into law hadn't.


 

point taken....but 2 negatives don't make a positive :)

 

I agree that congress should read and be intimately familiar with the legislation they pass just as the SCOTUS should be as familiar with the material they are making decisions about.

post #2424 of 2685

I just saw the clip of Romney talking about health care on Leno. What an asshole.

post #2425 of 2685

I feel like the kid in the Twilight Zone movie. I want to wish all this shit away. 

post #2426 of 2685

There are a lot of people I'd like to see you wish into that corn field.

post #2427 of 2685
Quote:
Originally Posted by Spook View Post


 

 

I don't understand the question.  How does Bush v. Gore conflict with originalism? 

 

I agree that Bush v. Gore was a terrible decision--forget about putting Bush in the White House.  The fact that the Court said, in the opinion, "please don't cite this again" is revealing, but it was a per curiam opinion, meaning that all nine Justices held that Florida's vote counting methods were a violation of the 14th Amendment.  From Wikipedia:

 

 

The concurring Justices were Rehnquist, Scalia, and Thomas.

 

Back on point: I think the Raich (the homegrown medical marijuana case) may eventually win the day.  The Justices attitudes at oral argument have little to no bearing on how they'll vote.  There have been arguments where the Justices have been extremely hostile to one side, but then decided in favor of that same side.  This isn't as clear cut as the media is portraying it.  But the government is really bungling the defense of ACA as well.  The Solicitor General needs to give the Court a limiting principle that it can craft into precedent.  Otherwise, the government could, conceivably, force everyone to buy a specific product under the guise of regulating interstate commerce.  That's not an unreasonable request of the Solicitor.

 

I think the limiting principle that the government has come up with--that health insurance is different than most other commercial products, given that people will always need health care but they don't know when, and, on top of that, an individual's decision not to purchase health insurance increases the cost structure of everyone else because the tax payer is eventually saddled with paying for that person's care, when that person needs it but can't afford it--is workable.  In essence, if the purpose of the regulation requiring citizens to buy a product that they otherwise wouldn't buy (or wouldn't buy at the time the government requires them) is to solve a collective action problem, then the government can require such of citizens.  You don't see this in, for instance, requiring people to purchase food or cell phones because people's cognitive biases don't distort such purchases.

 

But Verrilli needs to go to the mat on this and he hasn't.  Otherwise, he'll lose Kennedy.

 


I'm not a lawyer but the decision seems to take a dump on state sovereignty.
post #2428 of 2685
Quote:
Originally Posted by yt View Post


I'm not a lawyer but the decision seems to take a dump on state sovereignty.


There is no state sovereignty when it comes to the 14th Amendment.  The Federal government has taken a dump on state sovereignty ever since it began.  That was sort of the whole point.

post #2429 of 2685
Quote:
Originally Posted by Spook View Post
There is no state sovereignty when it comes to the 14th Amendment.  The Federal government has taken a dump on state sovereignty ever since it began.  That was sort of the whole point.


What I'm saying is that in the Constitution there's reference to the division between federal power and state sovereignty, and that in overriding, essentially, Florida's legislature and state supreme court, the Bush v. Gore decision goes out of its way to overstep SCOTUS's constitutional powers.  This is what the dissenters wrote at length about.  I haven't read it in a while, so I will find those passages when I have a second. 

 

post #2430 of 2685
Thread Starter 

Someone explain to a poor Canadian: is it possible they'll strike down the mandate and keep the rest? And wouldn't that be a pretty good thing?

post #2431 of 2685
Quote:
Originally Posted by The Prankster View Post

Someone explain to a poor Canadian: is it possible they'll strike down the mandate and keep the rest? And wouldn't that be a pretty good thing?


It's possible, but not a good thing at all.  The mandate is the lynchpin that makes all the other provisions workable.  Sure, the federal government could require insurers to cover pre-existing conditions, but then every insurance company goes bankrupt if young healthy citizens don't buy insurance to subsidize them.  If the mandate goes, pretty much everything else worthwhile has to go too.

post #2432 of 2685

Just watched this and thought it was a good breakdown despite some awkward logsitics: http://www.youtube.com/watch?v=vfFAexzqUME&feature=player_embedded

post #2433 of 2685

I hope you realize that Scalia isn't balking at the task of simply reading the ACA.  The Court was discussing the issue of severability.  In other words, if the mandate were struck down as unconstitutional, does the whole law go down, or can the mandate be removed while leaving the rest of it in place?  If you try to sever the unconstitutional part, what parts need to go with it because they are intimately tied to the mandate and don't work without it?  Ginsberg said that it would be a more conservative course for the Supreme Court, if it were to strike down the mandate, to try to preserve as much of the rest of the bill as possible.  But again, this would require the justices to go through each provision of the 2,700 page bill to determine what can stand on its own and what needs to be thrown out with the mandate.  This is when Scalia voiced his objection to having the Court go through this huge bill line by line to decide what can stay and what has to go.  That's what he meant when said they Court shouldn't be expected to go through each provision and "decide each one".  Every provision wasn't being challenged as exceeding Congress's Constitutional authority.   But taking Ginsberg's salvaging approach would require the Court to now consider each and every provision instead of the few provisions out of thousands that were being challenged. 

 

Making it more complicated is the fact that the Senate removed the severability clause from the ACA that the House had originally included.  Such a clause would have made it easier for the Court to just strike down any single portion of the bill it found to be unconstitutional.  But what was ultimately passed as the ACA came as an all-or-nothing bill with no guidance to the Court as to what provisions were intimately tied to the mandate and what provisions could stand on their own.  So, the Court would either need to toss it all out or try to determine Legislative intent on each and every provision on its own.  Not only is this a gargantuan task for the Court, the end result would be a completely different piece of legislation than what was debated on, passed and signed by the elected branches of government.  And let's face it.  If the government is going to substantially rework the way almost 20% of our economy functions, would you rather have that legislation done by 5 unelected judges with lifetime tenure, or the elected representatives who must answer to the people they represent every 2, 4, or 6 years?   

post #2434 of 2685

Well said, jvc.

 

This is such a mess.

post #2435 of 2685

What is Bachmann up to nowdays?

 

Quote:
She continued: “And the premise was made that people don’t buy insurance because they can’t afford it. That’s not true. There are people who just decide they want to roll the dice and take their chances that they won’t need insurance.”

 

Oh.  Of Course.  Insurance is NEVER too expensive.  Gotcha.

post #2436 of 2685
Quote:
Originally Posted by MrBananaGrabber View Post

What is Bachmann up to nowdays?

 

 

Oh.  Of Course.  Insurance is NEVER too expensive.  Gotcha.



Well, in her world, poor people are only poor because of laziness and they deserve to be poor.

 

post #2437 of 2685
Quote:
Originally Posted by jvc View Post

I hope you realize that Scalia isn't balking at the task of simply reading the ACA.  The Court was discussing the issue of severability.  In other words, if the mandate were struck down as unconstitutional, does the whole law go down, or can the mandate be removed while leaving the rest of it in place?  If you try to sever the unconstitutional part, what parts need to go with it because they are intimately tied to the mandate and don't work without it?  Ginsberg said that it would be a more conservative course for the Supreme Court, if it were to strike down the mandate, to try to preserve as much of the rest of the bill as possible.  But again, this would require the justices to go through each provision of the 2,700 page bill to determine what can stand on its own and what needs to be thrown out with the mandate.  This is when Scalia voiced his objection to having the Court go through this huge bill line by line to decide what can stay and what has to go.  That's what he meant when said they Court shouldn't be expected to go through each provision and "decide each one".  Every provision wasn't being challenged as exceeding Congress's Constitutional authority.   But taking Ginsberg's salvaging approach would require the Court to now consider each and every provision instead of the few provisions out of thousands that were being challenged. 

 

Making it more complicated is the fact that the Senate removed the severability clause from the ACA that the House had originally included.  Such a clause would have made it easier for the Court to just strike down any single portion of the bill it found to be unconstitutional.  But what was ultimately passed as the ACA came as an all-or-nothing bill with no guidance to the Court as to what provisions were intimately tied to the mandate and what provisions could stand on their own.  So, the Court would either need to toss it all out or try to determine Legislative intent on each and every provision on its own.  Not only is this a gargantuan task for the Court, the end result would be a completely different piece of legislation than what was debated on, passed and signed by the elected branches of government.  And let's face it.  If the government is going to substantially rework the way almost 20% of our economy functions, would you rather have that legislation done by 5 unelected judges with lifetime tenure, or the elected representatives who must answer to the people they represent every 2, 4, or 6 years?   

 

I think you're missing the forest for the trees.  Whether the Court strikes down just the mandate, or the law as a whole, we are back to square one.  Assume for a moment that only the mandate is struck down, and Congress has to think up an alternative mechanism to make the rest of the legislation work.  How does that get passed in a Congress where the GOP is still hell-bent on repealing the rest of the law, especially with whatever newfound political capital they will raise from such a decision?

Practically speaking, both outcomes look the same to me.  What am I missing? 

post #2438 of 2685
Quote:
Originally Posted by JuddL View Post

 

I think you're missing the forest for the trees.  Whether the Court strikes down just the mandate, or the law as a whole, we are back to square one.  Assume for a moment that only the mandate is struck down, and Congress has to think up an alternative mechanism to make the rest of the legislation work.  How does that get passed in a Congress where the GOP is still hell-bent on repealing the rest of the law, especially with whatever newfound political capital they will raise from such a decision?

Practically speaking, both outcomes look the same to me.  What am I missing? 


 

You're talking policy and politics.  I'm talking the Constitutional issues in front of the Court and the extent of the Court's authority.  They overlap to some extent, I guess.   

 

Having said that, I agree with you.  If the Court strikes it down in its entirety, we are back to square one.  If the Court tries to salvage the law after striking down the mandate (and whatever provisions it feels can't stand without the mandate), what's left wouldn't satisfy either side and could possibly cause more harm than good.  The Democrats would want to fix it and/or bolster it and the Republicans would want to repeal what's left and replace it with something else.  So, essentially square one.  The realistic best case scenario electorally for the Democratic Party leaves the Republican Party with a slight majority in the House and 40+ seats in the Senate next year.  Best realistic case for the Republicans is taking the White House and a slim majority in the Senate.  Come 2013, neither party will have the power to push through exactly what it wants.  A Republican House and 40+ Republican Senate could stop anything the White House and Democratic Senate want to do.  And a 45+ Democratic Senate could easily filibuster any Republican efforts.  So, bipartisanship once again becomes the cause of and solution to all of our problems.  If the Supreme Court leaves half a bill, the Democrats would have more leverage, even if the Republicans gain back control of the Senate and White House.  There would still be some good measures the Democrats could insist stay in place under threat of continual filibuster in the Senate of any repeal/replace efforts by Republicans.       

post #2439 of 2685
post #2440 of 2685

Random thought: Wouldn't striking down the mandate put the kibosh on GOP designs to privatize Social Security?  At least there'd be that.

post #2441 of 2685
Quote:
Originally Posted by JuddL View Post

Random thought: Wouldn't striking down the mandate put the kibosh on GOP designs to privatize Social Security?  At least there'd be that.


 

No, just this version.  They'll never give up on that. 

post #2442 of 2685

They probably forgot that their last proposal to privatize SS included.....wait for it......a mandate forcing people to pay into the private accounts.

 

Socialists!  The lot of them!

post #2443 of 2685
Quote:
Originally Posted by jvc View Post


.  The Democrats would want to fix it and/or bolster it and the Republicans would want to repeal what's left and replace it with something else.


Respectfully, the GOP does not want to replace it with anything.

 

post #2444 of 2685

I think Republicans want to replace it with more yachts for the .01%. 

post #2445 of 2685
Relative Value Update Committee

 

Anyone here ever hear about this 'OPEC' of medical coverage?

 

this was on 'Marketplace/NPR" the other day...

 

 

Quote:

The secret world of health-care pricing

 

Kai Ryssdal: We're down to counting mere days 'til the Supreme Court shares its thoughts on the healthcare reform law. The ruling will talk about constitutionality and the individual mandate and the Commerce Clause. And maybe about the rising cost of health care in this country. So to that end... who do you suppose sets the price of individual medical procedures? If you said insurance companies or the government, you're only half right. Because the prices your insurance company pays are based on a set of values listed in a phone-book sized directory of billing codes. Those codes are pretty much the economic hierarchy of modern medicine. They say what's costs more: a colonoscopy or a CT scan or chemotherapy? And those values are set by a closed-door committee of the American Medical Association.

 

At the Marketplace Health Desk at WHYY, Gregory Warner has been trying to figure out how that committee works.

 


Gregory Warner: It's called the Relative Value Update Committee, but everyone knows it as the RUC. It's a committee of the AMA. It meets every four months in a hotel conference room. And right here -- this being a radio story -- is where I'd play you the sound of one of those meetings. You might hear heated debates between some three dozen doctors over which procedures should be worth and which ones Medicare should pay higher prices for.

 

But I can't play you that sound because RUC meetings are invitation only. Observers are sworn to secrecy. Even the names of the doctors on this private committee were -- until recently -- kept confidential. For those who have been before the RUC, it's a powerful experience.

 

<cont.>

post #2446 of 2685

Oh great, another small, shadowy group of people controlling a very important aspect of all of our lives.

 

THAT ALWAYS WORKS OUT SO WELL!

post #2447 of 2685

dum dum DUM....

 

Health Care Law: Supreme Court Decision Looming

 

 

Quote:

Obamacare Is On Trial. So Is the Supreme Court.

 

Before this week, the well-being of tens of millions of Americans was at stake in the lawsuits challenging the Affordable Care Act.

Now something else is at stake, too: The legitimacy of the Supreme Court.

 

 

this got me wondering...

 

Can a US Supreme Court justice be impeached and removed from office?

I know that the executive, legislative and judicial branches of government are supposed to be considered equal in their power, but seeing as the appointments to the SCOTUS are for life and it is incredibly difficult to remove a member, it would seem to me that the power of the judicial branch could easily trump that of the legislative and executive branches.


Edited by VTRan - 6/24/12 at 10:39pm
post #2448 of 2685

Well, Scalia is being awesome about immigration:

 

http://yfiles.tumblr.com/post/25864802172/the-craziest-thing-youll-read-today

 

 

 

Quote:
Notwithstanding “[t]he myth of an era of unrestricted immigration” in the first 100 years of the Republic, the States enacted numerous laws restricting the immigration of certain classes of aliens, including convicted criminals, indigents, persons with contagious diseases, and (in Southern States) freed blacks. Neuman, The Lost Century of American Immigration (1776–1875), 93 Colum. L. Rev. 1833, 1835, 1841–1880 (1993). State laws not only provided for the removal of unwanted immigrants but also imposed penalties on unlawfully present aliens and those who aided their immigration.
post #2449 of 2685
Quote:
Originally Posted by MrBananaGrabber View Post

Well, Scalia is being awesome about immigration:

 

http://yfiles.tumblr.com/post/25864802172/the-craziest-thing-youll-read-today

 

 

 

 

The issue involved in Arizona is whether a state can pass its own immigration laws to expel those it deems do not have a right to be there or whether that is the exclusive responsibility of the Federal Government.  Scalia almost always runs through the history of a dispute.  He does so here by starting with the pre-Articles of Confederation times in the colonies and continuing through today in showing when and to what extent states have had and attempted to exercise rights to exclude unwanted immigrants.  The quote above is part of the statement of that history.  There is nothing there to state or imply that Scalia is making a positive value judgment about Southern states excluding freed slaves.  

 

In fact, Scalia goes on in his opinion to state, "I accept as a given that State regulation is excluded by the Constitution when (1) it has been prohibited by a valid federal law, or (2) it conflicts with federal regulation—when, for example, it admits those whom federal regulation would exclude, or excludes those whom federal regulation would admit."   He argues states can exercise authority in the area of immigration, or exclusion of unwanted immigrants, so long as it does not violate either instance he cites.  So clearly, a law excluding freed slaves from a state would run afoul of both instances and would be excluded by the Constitution.  Scalia goes on to state that there is no express, valid federal law prohibiting Arizona's action to exclude those who have entered the US and the State of Arizona in violation of federal law, so no problem with the first instance.  And the Arizona law neither includes those who federal law would exclude nor excludes those who federal law would include.  In fact, it uses federal immigration law to determine who should be included or excluded.  So no problems with the second instance.

 

That's my quick take on that portion of Scalia's dissenting/concurring opinion.  I don't find it to be as persuasive as the opinion from the majority, which I think decided the case properly.  But in no way is it fair for that blog to pull a factually correct and value-neutral quote completely out of context to imply Scalia is pining for the days when states could kick out all the black people.  That's just plain-old bad faith.

 

Here's the Arizona opinion if anyone wants to read it:

http://www.supremecourt.gov/opinions/11pdf/11-182b5e1.pdf

post #2450 of 2685
Quote:
Originally Posted by VTRan View Post

dum dum DUM....

 

Health Care Law: Supreme Court Decision Looming

 

 

 

 

this got me wondering...

 

Can a US Supreme Court justice be impeached and removed from office?

I know that the executive, legislative and judicial branches of government are supposed to be considered equal in their power, but seeing as the appointments to the SCOTUS are for life and it is incredibly difficult to remove a member, it would seem to me that the power of the judicial branch could easily trump that of the legislative and executive branches.

 

At this moment when the fate of Obamacare lies in the hands of 9 folks wearing black dresses, it probably seems like the Supreme Court has outsized power.  But it's the other two branches who determine the make-up of the Court through nomination and confirmation.  And once the Supreme Court makes a ruling, the legislative branch gets unlimited opportunities to legislate around the ruling.  The other two branches can address any topic they want.  The judicial branch is limited to controversies that are brought before it by parties, who also can limit the scope of the controversy in they way they present it to the Court.  Congress can declare war and the president can dispatch troops for up to 60 days.  Congress controls the budget and the executive decides which laws are to be enforced and how.  Congress has its own power to hold hearings, subpoena witnesses and documents, and hold people in contempt.  The president can commute sentences and even fully pardon anyone the Courts find guilty of a crime.  And lastly, if the Supreme Court declares an action unconstitutional, the other two branches can, by amendment or convention, change the Constitution to validate the action.  All-in-all, I think the Supreme Court is theoretically well checked under the Constitution by the other two branches.  How it actually works in practice, though... you have a pretty valid point.   

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