OBAMA/TRUMPCARE MEGATHREAD

[Y2HH]

There really is something that seems off if the way this country is governed is grandfathered in based on which party's President was in power when 5 of the justices were appointed versus which party's president was in power when 4 of the justices were appointed.

 

(Especially if that grandfathering decides the next president, but somehow I feel like that's digressing).

 

IF that's the way it's going to be then there ought to be at least term limits on the court so that the court can shift as society shifts more readily.

 

I agree 100%...this is exactly what I was attempting to convey...but since you did it better, I'll just use this.

[StrangeSox]

It's never digressing to bring up just how terrible Bush v Gore was in a discussion of the modern court.

[Y2HH]

It's never digressing to bring up just how terrible Bush v Gore was in a discussion of the modern court.

 

That just highlights the problem. If there were 5 liberal justices on the panel, Gore would have been president...and that's JUST as wrong, IMO, as what happened.

[StrangeSox]

That just highlights the problem. If there were 5 liberal justices on the panel, Gore would have been president...and that's JUST as wrong, IMO, as what happened.

 

Not necessarily. What would have happened is that the recounts in Florida would have continued. When the decision was made it looked likely that Gore would win, but further review indicated that it wasn't as clear. However, the ruling specifically halted the recount and handed the Presidency to Bush. They could not have done the same for Gore, and they really, really had to stretch the definition of "logic" to reach the conclusions they did while admitting so at the same time.

[Y2HH]

Not necessarily. What would have happened is that the recounts in Florida would have continued. When the decision was made it looked likely that Gore would win, but further review indicated that it wasn't as clear. However, the ruling specifically halted the recount and handed the Presidency to Bush. They could not have done the same for Gore, and they really, really had to stretch the definition of "logic" to reach the conclusions they did while admitting so at the same time.

 

The point is that the recounts would have contuinued for the same politically driven reasoning if there was 5 liberals. That's still wrong, because it's politically driven determination.

[farmteam]

IF that's the way it's going to be then there ought to be at least term limits on the court so that the court can shift as society shifts more readily.

 

That would take an actual amendment, wouldn't it? All federal judges serve as long as they are in "good behavior" (aka Life), according to Art. III of the Constitution.

[Balta1701]

That would take an actual amendment, wouldn't it? All federal judges serve as long as they are in "good behavior" (aka Life), according to Art. III of the Constitution.

Correct, which of course means it'll never happen, and we're stuck with the current system, so we may as well start nominating justices when they're in their 30's to give us the best chance of them never leaving. Plus, short paper trail.

[Y2HH]

Correct, which of course means it'll never happen, and we're stuck with the current system, so we may as well start nominating justices when they're in their 30's to give us the best chance of them never leaving. Plus, short paper trail.

 

Haven't they been getting younger and younger? The system, as it's set up, is terrible. There should always be term limits for positions of vast power.

[Balta1701]

Haven't they been getting younger and younger?

I doubt it plots on a line...but sure seems that way. For exactly that reason. Roberts, Kagan, Alito, and Sotomayor were all between 50 and 55 when they were nominated. We've got those 4 there for what, 25+ years barring a genuine early retirement?

 

Let's just say this...no one is appointing a 65 year old justice at the height of his or her career any more, no matter how deserving.

[caulfield12]

http://campaignstops.blogs.nytimes.com/201...p-obama-win/?hp

 

Argument that the individual mandate being struck down will actually help Obama's re-election chances.

[knightni]

He ought to be good as the new Marlins closer.

[Balta1701]

He ought to be good as the new Marlins closer.

Ok, I actually don't get the joke?

[Y2HH]

Ok, I actually don't get the joke?

 

Me either.

[Balta1701]

So, in terms of the overall effects on governance, today's court challenge is probably equal to the level of the mandate challenge yesterday.

 

The federal government long ago started sending Medicaid money to states, but states had to meet certain conditions to get that money. The PPACA used the same approach...there were substantial reforms to both medicaid and private insurance markets, and the Medicaid funds were the stick, if states outright refused to participate, they would lose those Medicaid funds and creating a health care disaster.

 

The States are arguing effectively that once the federal government creates a mandate with funding that states can choose to accept or deny, then that line of funding has to remain mostly the same, you can do small changes to the total amounts or around the edges but you can't do a major program overhaul and use that funding as leverage to get the states involved in the overhauled program.

 

If the Supreme Court agrees with the states and creates this new law, it's going to overturn a whole lot of stuff. It effectively means that No Child Left Behind was unconstitutional, for example...same tactic, a bit more money, but a fundamental overhaul of the education requirements.

 

 

 

Oh, and there's also the debate over whether the court can strike down the mandate without striking down the rest of the law. The administration is arguing and the text of the law states that if the mandate is struck down the whole law must be struck down, to avoid the destroying-all-insurance-markets situation. Of course, the Court could simply decide it can write laws however it wants.

[NorthSideSox72]

Interestingly, analysis of the arguments from this morning seem to indicate the justices are not leaning towards scrapping the whole thing, but more focusing on just the mandate. Seems like they don't feel it is their place to decide what legislative pieces work well and don't, which would indicate an inclination to only carve out the mandate and let Congress deal with fixing the bill.

 

[knightni]

Ok, I actually don't get the joke?

 

 

Me either.

It was late last night and my tired eyes saw "Health Bill Catch All" as "Heath Bell Catch All."

 

It was an obscure joke on my own sleepiness last night.

[Balta1701]

It was late last night and my tired eyes saw "Health Bill Catch All" as "Heath Bell Catch All."

 

It was an obscure joke on my own sleepiness last night.

 

This post is funnier than the original joke could possibly have been.

[Balta1701]

Interestingly, analysis of the arguments from this morning seem to indicate the justices are not leaning towards scrapping the whole thing, but more focusing on just the mandate. Seems like they don't feel it is their place to decide what legislative pieces work well and don't, which would indicate an inclination to only carve out the mandate and let Congress deal with fixing the bill.

Of course, Congress also quite specifically indicated their wishes and said that "if this section of the bill is found unconstitutional, the whole bill must be invalidated". Thus, the Supreme Court would be creating a new standard that the Court can effectively yield a line-item veto in all cases and can override Congress's decision making on that. Some might term that an incredibly "activist" move.

[NorthSideSox72]

Of course, Congress also quite specifically indicated their wishes and said that "if this section of the bill is found unconstitutional, the whole bill must be invalidated". Thus, the Supreme Court would be creating a new standard that the Court can effectively yield a line-item veto in all cases and can override Congress's decision making on that. Some might term that an incredibly "activist" move.

"some" being you. Your interperetation is bizarre to me. I'd prefer that SCOTUS narrowly address problems in broader legislation, as opposed to trying to re-legislate, which in my view is truly "activist".

 

[Balta1701]

"some" being you. Your interperetation is bizarre to me. I'd prefer that SCOTUS narrowly address problems in broader legislation, as opposed to trying to re-legislate, which in my view is truly "activist".

Isn't "Declaring that it's unconstitutional for Congress to say that if one part of a bill goes down the whole bill must go down" basically creating new legislation? Congress passed this thing and said specifically that the mandate is not severable. I can't imagine what Constitutional standard the court could use to declare that "Congress has no right to declare that one part of the bill relies on another part".

[NorthSideSox72]

Isn't "Declaring that it's unconstitutional for Congress to say that if one part of a bill goes down the whole bill must go down" basically creating new legislation? Congress passed this thing and said specifically that the mandate is not severable. I can't imagine what Constitutional standard the court could use to declare that "Congress has no right to declare that one part of the bill relies on another part".

Wait, what? I must have missed something here. Are you saying that there are words in the legislation that SPECIFICALLY says that if the courts strike down the mandate, the rest of the legislation becomes null and void?

 

[Balta1701]

Wait, what? I must have missed something here. Are you saying that there are words in the legislation that SPECIFICALLY says that if the courts strike down the mandate, the rest of the legislation becomes null and void?

Might be a little different from what I said earlier, but here's the full text and story. The House initially passed a version including a "Severability" clause, saying that this part of the bill could be struck down without the rest of the bill going down and spelling out how that would work.

 

The Senate then actively removed that clause and the House passed that version which actively removed that clause when they passed the reconciliation bill. And it was replaced with this pair of statements directly stating:

(H) Under the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1001 et seq.), the Public Health Service Act (42 U.S.C. 201 et seq.), and this Act, the Federal Government has a significant role in regulating health insurance. The requirement is an essential part of this larger regulation of economic activity, and the absence of the requirement would undercut Federal regulation of the health insurance market.

 

(I) Under sections 2704 and 2705 of the Public Health Service Act [42 U.S.C. 300gg–3, 300gg–4] (as added by section 1201 of this Act), if there were no requirement, many individuals would wait to purchase health insurance until they needed care. By significantly increasing health insurance coverage, the requirement, together with the other provisions of this Act, will minimize this adverse selection and broaden the health insurance risk pool to include healthy individuals, which will lower health insurance premiums. The requirement is essential to creating effective health insurance markets in which improved health insurance products that are guaranteed issue and do not exclude coverage of pre-existing conditions can be sold.

The bill itself says that losing that portion would "Undercut" the bill and that the requirement is "essential".

 

If there is such a thing as legislative intent, it's right there. (More details in the full version at link).

[farmteam]

Wait, what? I must have missed something here. Are you saying that there are words in the legislation that SPECIFICALLY says that if the courts strike down the mandate, the rest of the legislation becomes null and void?

 

See Balta's post above for what the Health Care Bill actually says, but yes, in general bills can have severability clauses that specifically state "If this part is later found to be unconstitutional, the rest of the bill is still in effect [or, the rest of the bill is void as well. Both happen]." I'm not sure if it's common practice, but it's definitely not unheard of.

[farmteam]

Also, as to an earlier discussion (I think between StrangeSox and Y2HH) about whether scholars thought the Court would strike down the bill: Recent precedent (specifically Raich v. Gonzales, but the groundwork was in Wickard v. Filburn) suggested that this bill would certainly be ruled constitutional; at least, it would be constitutional on Commerce Clause/Necessary & Proper Clause grounds.

 

I basically wanted to reach through the internet and punch Scalia in the face when I listened to a bit of yesterday's oral argument. Rather, I wanted to go through the internet and read his concurring opinion in Raich back to him.

 

If anyone wants to go into more detail on that last point, there's actually an interesting blog post by Randy Barnett (lead consul in Raich, and I think he is for this health care litigation as well) about how Scalia could distinguish his opinion in Raich, but I thought it seemed a bit tenuous. Apparently the current Court disagrees with me.

Edited March 28, 2012 by farmteam

[bigruss]

A "friend" on facebook posted this:

 

stop obama care. I don't want to be paying for somebody's sex change!

 

This kid says the most ridiculous things.