OBAMA/TRUMPCARE MEGATHREAD

[Jenksismyhero]

they do this all the time.

 

No, they don't. They decide if X fits into the language of law Y. They don't completely ignore what's written based on what they think Congress actually meant. Especially in a situation like this where they're debating Congressional authority.

[Balta1701]

In my best Seth Meyers/Amy Pohler voice: really, Balta, really? Deciding that corporations have 1st Amendment protections is the same as completely ignoring the text of a law and supplanting the Court's own interpretation of what the bill was REALLY meant to be? REALLY? That's the same?

 

Balta, you're a smart guy from what I can tell, but your knowledge of the law and the operation of law is just...terrible.

They literally overturned a century of precedent, something like half a dozen decisions, including the decision on the McCain/Feingold bill only a couple years beforehand. So yeah, they did exactly what you said they did, completely flipped over the constitution and an enormous number of case precedents. Exactly waht you said. In a 5-4 decision, which was only possible because O'Connor was replaced by Alito.

[Jenksismyhero]

They literally overturned a century of precedent, something like half a dozen decisions, including the decision on the McCain/Feingold bill only a couple years beforehand. So yeah, they did exactly what you said they did, completely flipped over the constitution and an enormous number of case precedents. Exactly waht you said. In a 5-4 decision, which was only possible because O'Connor was replaced by Alito.

 

No, not the same. They did not look at a bill and literally replace text with their own interpretation of what the bill was intended to be. Not sure how many times this point has to be repeated.

[Balta1701]

No, not the same. They did not look at a bill and literally replace text with their own interpretation of what the bill was intended to be. Not sure how many times this point has to be repeated.

It rewrote pretty much every campaign finance law on the books.

[Jenksismyhero]

It rewrote pretty much every campaign finance law on the books.

 

Sigh, it's not the same. And i'm not going to state why for the 30th time. Continue to believe something that's simply not true.

[NorthSideSox72]

I've read articles in a number of places in the last day or two, that seem to be indicating that on second review, they are not so sure Kennedy's questioning was indicative of him being against it. More than one author is suggesting that it seems more, in their view as legal analysts, Kennedy was looking for assurances that there was some limit to Congressional power. Just thought it was worth mentioning - this might not be as cut and dried as we think.

 

[Y2HH]

I've read articles in a number of places in the last day or two, that seem to be indicating that on second review, they are not so sure Kennedy's questioning was indicative of him being against it. More than one author is suggesting that it seems more, in their view as legal analysts, Kennedy was looking for assurances that there was some limit to Congressional power. Just thought it was worth mentioning - this might not be as cut and dried as we think.

 

I agree with Kennedy when it comes to questioning the limit to Congressional power, and if there are written assurances that this applies to nothing else, I think he'd uphold it...and I wouldn't blame him. But if there are no such assurances, this just sets future precedent for Congress to "raise taxes" without actually raising taxes. While I can't see the writing on the wall of sneaky s*** they'll do if granted such power...if it wasn't something to worry about a justice like Kennedy wouldn't be questioning that very thing.

[Balta1701]

I agree with Kennedy when it comes to questioning the limit to Congressional power, and if there are written assurances that this applies to nothing else, I think he'd uphold it...and I wouldn't blame him. But if there are no such assurances, this just sets future precedent for Congress to "raise taxes" without actually raising taxes. While I can't see the writing on the wall of sneaky s*** they'll do if granted such power...if it wasn't something to worry about a justice like Kennedy wouldn't be questioning that very thing.

It's the Supreme Court. They have the right to create that standard. The Court hasn't previously outlined any "Test" where the commerce clause's authority applies over rewarding/penalizing economic decisions. It could choose to do so in this case if it so wanted.

[StrangeSox]

Here's a pretty good article making a case for a minimalist way to uphold ACA:

 

http://balkin.blogspot.com/2012/04/bounded...uphold-aca.html

 

It's not clear why such a requirement of entering into commerce would, unlike other, more common affirmative obligations, “change the relationship of the Federal Government to the individual in a very fundamental way”; after all, the very same novel requirement did not appear to fundamentally change the relationship of Massachusetts to its citizens when Governor Romney and the Massachusetts legislature enacted it. In any event, it's not obvious that this statute implicates that concern, because the ACA does not create such a duty: If there is someone out there who does not already maintain insurance and who has a moral or other objection to "go[ing] into commerce" just yet (i.e., before that person "goes into commerce" to consume health care), section 5000A gives that person an alternative means of satisfying the legal obligation--namely, by making a "shared responsibility payment" to the government itself. (The plaintiffs argue that making such a payment does not relieve someone from the so-called legal "duty" imposed by the insurance-maintenance requirement. But that's not so. As the Solicitor General explained in the Anti-Injunction Act argument, such a payment satisfies one's legal obligation under the Act. For example, as a formal matter Congress exempted members of Indian ]ribes--who obtain their health care through the Indian Health Service--only from the "penalty" provision, not from the insurance-maintenance provision. It would be absurd, however, to conclude that all such tribal members are federal lawbreakers by virtue of the fact that they do not maintain health insurance. This and other examples make manifest Congress's obvious intent that one can equally satisfy the law by engaging in either of the two options offered in section 5000A.)

 

Indeed, at least some of the Justices appeared to acknowledge that if Congress had reworded the statute to impose the exact same choice but through a different formulation of words--for example, by inverting the order of the subsections, so that 5000A(a) required everyone to make a shared responsibility payment to the IRS, and 5000A(b) then exempted from that obligation anyone who maintains health insurance--it would be plainly constitutional.

 

It is possible, I think, to articulate a principled holding in favor of the constitutionality of section 5000A that would not commit the Court to anything like the broad ramifications that troubled Justice Kennedy, including in particular the conclusion that Congress may require the purchase of virtually any product.

 

I'll offer two such holdings, the first based on the Commerce Clause, and the second baed on the Necessary & Proper Clause. The two could, moreover, be conjoined, so that the Court's holding would be limited further still, to cover only cases in which both sets of predicates are satisfied.

 

Limited Commerce Clause Holding:

Even assuming arguendo that Congress cannot require any and every purchase of goods or services under any circumstances (but cf. Judge Silberman's "regulate"-includes-"require" argument to the contrary in Seven-Sky), Congress does have the Commerce Clause authority to control the means and timing of payment for goods and services that persons will consume, particularly so as to assure that the consumers do in fact pay for the costs of such goods or services. Thus Congress can at a minimum require everyone either (i) to maintain insurance for goods or services that virtually everyone will consume, that the government guarantees, and that many of the consumers will not otherwise be able to pay for (which would thereby shift substantial costs to the public at large); or (ii) to make a modest payment to the government (IRS) to help cover the costs the public will incur if and when the individual consumes services for which she cannot pay.

 

Limited Necessary & Proper Holding

 

If Justice Kennedy and other Justices remained concerned about the possible ramifications of a stand-alone Commerce Clause holding, they could alternatively rely upon Congress's Necessary and Proper authority, in a holding that would not have any greater precedential impact than the Court's holding in Comstock. As I explained at length in my earlier post, the Court could simply hold that section 5000A is a necessary and proper means of carrying into execution the Guaranteed Issue and Community Rating nondiscrimination provisions that are at the heart of the ACA and that all acknowledge are within Congress's article I authority.

[NorthSideSox72]

Here's a pretty good article making a case for a minimalist way to uphold ACA:

 

http://balkin.blogspot.com/2012/04/bounded...uphold-aca.html

The writer shows his hand right away with...

 

It's not clear why such a requirement of entering into commerce would, unlike other, more common affirmative obligations, “change the relationship of the Federal Government to the individual in a very fundamental way”; after all, the very same novel requirement did not appear to fundamentally change the relationship of Massachusetts to its citizens when Governor Romney and the Massachusetts legislature enacted it.

 

He/she can't be serious with this. The argument is around the FEDERAL Constitution, not the states, which is an entirely different animal for this purpose. No lawyer worth a damn would even try to make that argument in any seriousness.

 

[StrangeSox]

The passage doesn't indicate any confusion over that issue. It's meant to address Kennedy's question, not to make a legal argument in favor of Constitutionality. His contention is that the relationship to that state government wasn't fundamentally changed, so it isn't necessarily appropriate to assume that the relationship to the federal government would change, either.

 

[Y2HH]

The passage doesn't indicate any confusion over that issue. It's meant to address Kennedy's question, not to make a legal argument in favor of Constitutionality. His contention is that the relationship to that state government wasn't fundamentally changed, so it isn't necessarily appropriate to assume that the relationship to the federal government would change, either.

 

The state and federal governments don't have the same powers in any regard...so the comparison is invalid to begin with.

[StrangeSox]

The state and federal governments don't have the same powers in any regard...so the comparison is invalid to begin with.

 

It wasn't an argument for the legitimacy of the powers. It was to address Kennedy's assumption.

[Y2HH]

It wasn't an argument for the legitimacy of the powers. It was to address Kennedy's assumption.

 

Right, and I don't understand what he's talking about with Kennedy's assumption...one has to do with state powers, one does not.

[StrangeSox]

Right, and I don't understand what he's talking about with Kennedy's assumption...one has to do with state powers, one does not.

 

It has to do with whether or not a mandate suddenly changes a citizen's relationship to his or her government. When the state exercised this novel power (the state had not acted this way before, much as the federal government hadn't), did the relationship change with its citizens? It does not appear so, but this is simply something to weight against Kennedy's concerns. It was not a declaration that "no, it wouldn't change" and wasn't a complete dismissal of the idea. In fact, in the very next sentence, he beings to address Kennedy's concern from a different angle.

 

Anyway, it's a minor part of a fairly lengthy article and not central to his arguments.

[NorthSideSox72]

It has to do with whether or not a mandate suddenly changes a citizen's relationship to his or her government. When the state exercised this novel power (the state had not acted this way before, much as the federal government hadn't), did the relationship change with its citizens? It does not appear so, but this is simply something to weight against Kennedy's concerns. It was not a declaration that "no, it wouldn't change" and wasn't a complete dismissal of the idea. In fact, in the very next sentence, he beings to address Kennedy's concern from a different angle.

 

Anyway, it's a minor part of a fairly lengthy article and not central to his arguments.

And, again, this is totally irrelevant to the discussion at hand. State and Federal powers are just not comprarable enough for this to be a comparison useful in any way.

 

[Balta1701]

Not that it actually matters, but here's the President's comments on the Court case, yesterday.

"I actually continue to be confident that the Supreme Court will uphold the law. And the reason is, because in accordance with precedent out there, it's constitutional.

 

"That's not just my opinion by the way. That's the opinion of legal experts across the ideological spectrum, including two very conservative appellate court justices that said this wasn't even a close case."

 

"I think it's important -- because I watched some of the commentary last week -- to remind people that this is not an abstract argument. People's lives are affected by the lack of availability of healthcare, the inaffordability of healthcare, their inability to get healthcare because of preexisting conditions.

 

"The law that's already in place has already given 2.5 million young people healthcare that wouldn't otherwise have it. There are tens of thousands of adults with preexisting conditions who have healthcare right now because of this law. Parents don't have to worry about their children not being able to get healthcare because they can't be prevented from getting healthcare as a consequence of a preexisting condition. That is part of this law.

 

"Millions of seniors are paying less for prescription drugs because of this law. Americans all across the country have greater rights and protections with respect to the insurance companies, and are getting preventive care because of this law.

 

"So, that's just the part that's already been implemented. That doesn't speak to the 30 million people who stand to gain coverage once it's fully implemented in 2014.

 

"And I think it's important, I think the American people understand and I think the justices should understand that in the absence of an individual mandate, you cannot have a mechanism to ensure that people with preexisting conditions can actually get healthcare.

 

"So there's not only an economic element to this and a legal element to this but there's a human element to this, and I hope that's not forgotten in this political debate. Ultimately I'm confident that 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.

 

"And I'd just remind conservative commentators that for years what we've heard is 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'm pretty confident this court will recognize that and not take that step."

 

(In response to follow up question)

 

"I'm confident this will be upheld because it should be upheld. And again, that's not just my opinion, that's the opinion of a whole lot of constitutional law professors and academics and judges and lawyers who've examined this law, even if they're not particularly sympathetic to this particular piece of legislation or my presidency."

[StrangeSox]

And, again, this is totally irrelevant to the discussion at hand. State and Federal powers are just not comprarable enough for this to be a comparison useful in any way.

 

Ok.

 

What did you think of the rest of that lengthy article that wasn't those two sentences?

[StrangeSox]

Not that it actually matters, but here's the President's comments on the Court case, yesterday.

 

My guess is word got leaked that the initial vote did not go well for the Administration.

[StrangeSox]

And, again, this is totally irrelevant to the discussion at hand. State and Federal powers are just not comprarable enough for this to be a comparison useful in any way.

 

A separate thought: what powers do the states possess that make the mandate ok that the federal government doesn't possess?

[Jenksismyhero]

A separate thought: what powers do the states possess that make the mandate ok that the federal government doesn't possess?

 

Probably depends on Mass.'s constitution.

[StrangeSox]

Ezra Klein is quite pissed off by Douthat's latest column:

 

 

I can’t help feeling like Ross is forgetting something. There was some other reason Democrats adopted this policy. I’m almost sure of it. If you give me a second, I’m sure it’ll come to me. Ah, right! Because Chuck Grassley, the ranking Republican on the Senate Finance Committee, was saying things like “I believe that there is a bipartisan consensus to have individual mandates,” and “individual mandates are more apt to be accepted by a majority of the people in Congress than an employer mandate.”

 

And it wasn’t just Grassley.....The Healthy Americans Act, meanwhile, had been cosponsored by a bevy of heavy-hitting Senate Republicans, including Lamar Alexander, Mike Crapo, Bob Corker, Judd Gregg, Norm Coleman and Trent Lott.

 

....Avik Roy points out that many liberals — including candidate Barack Obama — were historically skeptical of the individual mandate. And that’s true....Roy tries to use this to draw some equivalence between the two parties. Both Democrats and Republicans changed their mind on the individual mandate, he argues. But there’s a key difference: The Democrats changed their mind in order to secure a bipartisan compromise on health-care reform. Republicans changed their mind in order to prevent one.

 

....That’s politics, I guess. But ask yourself: If Obamacare is overturned, and Obama is defeated, who will win the Democratic Party’s next fight over health care? Probably not the folks counseling compromise. Too many Democrats have seen how that goes. How much easier to propose a bill that expands Medicaid eligibility to 300 percent of the poverty line, covers every child through the Children’s Health Insurance Program, and makes Medicare availability to every American over age 50. Add in some high-risk pools, pay for the bill by slapping a surtax on rich Americans — indisputably constitutional, as even Randy Barnett will tell you — and you’ve covered most of the country’s uninsured. Oh, and you can pass the whole thing through the budget reconciliation process.

 

I don’t think that’s a particularly good future for the health-care system. And I doubt that bill will pass anytime soon. But, if Obamacare goes down, something like it will eventually be passed. And what will Republicans have to say about it? That no, this time, they really would have worked with the Democrats to reform America’s health-care system? Who will believe them?

 

via

[NorthSideSox72]

My guess is word got leaked that the initial vote did not go well for the Administration.

 

You are joking, right? There is no "initial" vote, as I understand it. This isn't like a polling system of that type. It will take weeks or months before these justices truly solidify their positions.

 

A separate thought: what powers do the states possess that make the mandate ok that the federal government doesn't possess?

 

1. The federal government's powers are limited to those enumerated, per the Constitution. All OTHER powers, as they see fit to exercise, fall to the states, and down the line.

 

2. Which leads us to...

 

Probably depends on Mass.'s constitution.

 

Exactly. The state's constitution is the test here.

 

[StrangeSox]

You are joking, right? There is no "initial" vote, as I understand it. This isn't like a polling system of that type. It will take weeks or months before these justices truly solidify their positions.

 

They held a preliminary vote on Friday.

 

It takes months to research and write the opinions and determine if they are going to write a separate dissent or concurrence.

 

1. The federal government's powers are limited to those enumerated, per the Constitution. All OTHER powers, as they see fit to exercise, fall to the states, and down the line.

 

2. Which leads us to...

 

Exactly. The state's constitution is the test here.

 

I'm asking what power the state has that the Federal government doesn't that justifies the mandate. State power is still governed by their own constitutions.

[Y2HH]

They held a preliminary vote on Friday.

 

It takes months to research and write the opinions and determine if they are going to write a separate dissent or concurrence.

 

 

 

I'm asking what power the state has that the Federal government doesn't that justifies the mandate. State power is still governed by their own constitutions.

 

You'd have to read or know that states constitution in order to answer this.