Affordable Care Act at the Supreme Court

[TrackerNeil]

FLOW, I'd like to see your take on the argument mentioned by TrackerNeil - I think it's the main argument in favor of the law's constitutionality. I know that you're against mandates, but that doesn't negate that argument.

(null)

And I hereby state that I take no responsibility if I screwed up Silberman's words. :cool4:

[Former Lord of Winterfell]

I'll respond more thoroughly later today, but in short, I think Silbermans's argument is full of gaping holes. It's the kind of argument that is persuasive only if you are trying to justify a result rather than analyzing it objectively.

In the meantime, I'd suggest any non-lawyers interested in this discussion read the wiki article on a case called wickard v filburn. It's sort of the background/foundation for much of this analysis, and has the virtue of being simple and easy to understand.

[Former Lord of Winterfell]

Hey Shryke, you didn't respond to my offer of a wager on the outcome. Given your extensive knowledge both of the U.S. Supreme Court justices, and the relevant legal issues, I figured this would be right up your alley.

So...wanna bet?

[IheartTesla]

According to some news reports, today didnt seem to be a great day for the individual mandate. I am still confused why there are 3 months left if everyone has already made up their minds, but I guess legal folk really like the sounds of their voices.

[Ken Stone]

Stupid, stupid queston. I'm sorry to ask it. Vehicle insurance is mandated in Florida. Is this a state issue?

Vehicle insurance is only mandated if you want to drive.

[Former Lord of Winterfell]

States can mandate health or auto insurance if permitted under their own constitution. The issue here is that there is nothing in the federal constitution permitting the feds to do that.

[Ser Scot A Ellison]

Well CNN's analyist thinks the Mandates have a long row to hoe based on the questions at Oral Arguments:

http://www.cnn.com/2012/03/27/justice/scotus-health-care/index.html?c=politics

From the article:

Jeffrey Toobin, CNN's senior legal analyst, said questions asked at oral arguments often show how justices are thinking, and based on what he heard Tuesday, the health care reform law could be in "grave danger."

Neither the justices nor the lawyers arguing before them mentioned "Obamacare"-- as opponents have labeled the law pushed through Congress by Democrats and President Barack Obama -- or the president by name.

But the court seemed fully aware of the landmark consequences of their eventual rulings.

"Those who don't participate in health care make it more expensive for everyone else," said Justice Ruth Bader Ginsburg, in support of the law. "It is not your free choice" to stay out of the market for life, she said.

Younger, mostly health people who would be the "subsidizers will become the subsidized" when they grow older, added Justice Elena Kagan.

However, Justice Anthony Kennedy said that the federal government "is telling an individual he has the obligation he must act" and purchase insurance.

"That threatens to change the relationship between the government and the individual in a profound way," Kennedy said.

Kennedy is the swing vote. So, anyone think they will flat out reverse the hated Wickard case?

[Ser Scot A Ellison]

Cyrano,

It's not that they like the sound of their own voices. They are hearing many cases this term and after orals are done the justices conference to discuss the cases. Once they know how thwy arw going to decide the particular issues they must write the opinion for the majority and if anyone dissents they must write up their dissent. That takes time and must happen for each case they hear. Three months is not unreasonable lag time

[WrathOfTinyKittens]

I am sure it's always been this way since the first Supreme Court, but the politics of the court bother me a lot. I don't like that we talk about a "swing vote" on the SC. I realize that there are differing interpretations (which auto-correct though should be "I ferret tips") that are related to political ideologies and that federal judges are appointed at least partly based on their ideology, but I wish that it could be a totally apolitical body.

Also, to add to this, although I personally would be happier with the presumed results of a heavily liberal court, my objection still stands in that case.

(null)

[TrackerNeil]

I am sure it's always been this way since the first Supreme Court, but the politics of the court bother me a lot. I don't like that we talk about a "swing vote" on the SC. I realize that there are differing interpretations (which auto-correct though should be "I ferret tips") that are related to political ideologies and that federal judges are appointed at least partly based on their ideology, but I wish that it could be a totally apolitical body.

Also, to add to this, although I personally would be happier with the presumed results of a heavily liberal court, my objection still stands in that case.

(null)

It always amuses me when conservatives talk about judges who only "call balls and strikes" and all that other nonsense. Judges, like all human beings, have opinions on political matters, and those opinions influence their rulings. Let's all accept that, as adults.

That being said, it would be very disappointing if we got another Bush v. Gore result here, with Republican judges voting against an idea Republicans simply don't like (but largely supported until recently). Citizens United already made the Court look like an arm of the Republican Party; if they strike down the entire ACA, they will have confirmed that impression.

[drawkcabi]

It always amuses me when conservatives talk about judges who only "call balls and strikes" and all that other nonsense. Judges, like all human beings, have opinions on political matters, and those opinions influence their rulings. Let's all accept that, as adults.

That being said, it would be very disappointing if we got another Bush v. Gore result here, with Republican judges voting against an idea Republicans simply don't like (but largely supported until recently). Citizens United already made the Court look like an arm of the Republican Party; if they strike down the entire ACA, they will have confirmed that impression.

This is the main reason for the "not letting perfect be the enemy of good" argument for sitting out the 2012 election due to Obama disappoitment. His administration may have been more moderate or even center right than we thought it would be and his nominations to the supreme court may reflect that, but if Romney gets in in November and he's on a tight GOP leash we could see the SCOTUS turned into a permanent far right conservative ruling party.

[Guest]

I've been told by a couple of people who follow law much more closely than I do that the oral arguments should be taken with a huge grain of salt.

On the other hand, if that is true, a guy like Toobin must know it, so it's not very reassuring to hear him come out of today practically saying the mandate is doomed.

If it's only the mandate that gets struck down, I think that hurts Obama much less in the short term from a political standpoint, but there would have to be alternatives proposed.

[Former Lord of Winterfell]

So if bush v. Gore, Citizens united, and this case are all 5-4, its only the five who are being "political"? Got it.

[WrathOfTinyKittens]

FLOW, it's not that the others aren't also being political, perhaps, but I think that the cases in question are perceived as more politicized by the right than the left. Maybe it's just a matter of outcomes.

ETA: I read it and I'm not clear. I mean that people see more conservative than liberal politicking in those cases.

[Ser Scot A Ellison]

WoC,

I suspect political POV may play a role in that perception.

[Former Lord of Winterfell]

Perceived as politicized by whom? People on the left think that opinions with which they disagree are "politicized", but opinions with which they agree are "nonpolitical?"

Gee, who'd have guessed?

[awesome possum]

So if bush v. Gore, Citizens united, and this case are all 5-4, its only the five who are being "political"? Got it.

Considering that the rulings in those cases harmed the country while benefiting a certain party, I'd say so.

But don't let me stop you from hurrying to defend-wank your party some more.

[Ser Scot A Ellison]

AP,

What is your opinion about the 7 member plurality from Bush v. Gore that held the different counting methods across Florida were violations of equal protection? That included members of the left side of the bench.

[awesome possum]

Scot,

What was the end result of that case? And what was the vote tally? Or like Scalia, are you trying to rewrite history as well? You know, Scalia, the guy who stopped a legal recount that saw Al Gore winning so that he could have a conservative-leaning court decide who the president would be?

Haven't you been mocked enough for your terrible attempt at lawyerly gotcha questions in the past?

[Ser Scot A Ellison]

AP,

No, I'm not defending the decision to end the recount. Ten years ago I thought that was a bad call. However, I did agree with the 7 member plurality that held the varying count standards did violate the equal protection clause of the 14th amendment. This isn't a gotcha question. I'm genuinely curious to hear your opinion.