gallantwarrior
Gold Member
No. Its not to big to fail.
Neither were the banks or GM, but the regime still extorted our money to pay them off.
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No. Its not to big to fail.
I have heard the same argument but I think it's far more likely that if they feel it's unconstitutional they will scrap the whole thing rather than let it stand anyhow. I mean can you imagine the reaction if they were to say "ok we think it's unconstitutional but we're going to leave it be regardless".
I can't remember where I heard it - whether it was a commentator or a clip from one of the justices - but someone suggested that the justices might not want to upend it because it was just too big. They might think it was already affecting too many people for it to be practical to undo it.
So they might swallow the constitutional question and more or less reward the law's authors for making it so huge and complicated.
I highly doubt it. I have heard the same argument but I think it's far more likely that if they feel it's unconstitutional they will scrap the whole thing rather than let it stand anyhow. I mean can you imagine the reaction if they were to say "ok we think it's unconstitutional but we're going to leave it be regardless". Christ almighty. The SCOTUS has a collective ego remember. It's far more within their personality to say to Congress "you guys really fucked this up so we're going to toss it out to teach you a lesson. Do it right next time" rather than "well it's a mess but we're too lazy to screw with it"
I have heard the same argument but I think it's far more likely that if they feel it's unconstitutional they will scrap the whole thing rather than let it stand anyhow. I mean can you imagine the reaction if they were to say "ok we think it's unconstitutional but we're going to leave it be regardless".
If five of them believe the individual mandate to be unconstitutional, they can do exactly what the Eleventh Circuit did: strike the mandate and leave the rest of the statute intact.
They don't have to pick and choose what stays, everything but the offending section should stay.
But if anyone (Kennedy or Roberts) is on the borderline, maybe thoughts of all the people affected would make them tip toward the idea that yes, perhaps health care is unique enough of a market that ... yada yada yada.
So then that's how they would write up the decision - that the government had make a persuasive case that this was a unique market and that this decision would not be the slippery slope that would lead to a complete nullification of individual and states' rights.
BluePhantom said:They don't have to pick and choose what stays, everything but the offending section should stay.
What you and I feel should or should not stay is irrelevant. The SCOTUS has a habit of deciding for itself what should or should not happen.
BluePhantom said:They don't have to pick and choose what stays, everything but the offending section should stay.
What you and I feel should or should not stay is irrelevant. The SCOTUS has a habit of deciding for itself what should or should not happen.
Of course they do. But I'm speaking as a citizen of the United States, not a courtwatcher. If they throw out pieces of the legislation with no logical, policy, of functional relationship to the individual mandate (i.e 99% of the legislation), you're correct that they'll be doing it simply to satisfy a "collective ego" and to "teach Congress a lesson."
Given the gravity of the subject matter, particularly the pieces already in operation, as well as those in various stages of implementation, I'd prefer not to see them play games with this. And frankly, hearing justices talking about filibuster abuse and the political climate as a rationale for an act of judicial activism (i.e. political gridlock means we should assume functions rightly belonging to the legislative branch) with enormous policy import and little justification is disturbing.
Might the justices rule that the ACA should stand, mandate and all, because dismantling it would be too complicated?
Might the justices rule that the ACA should stand, mandate and all, because dismantling it would be too complicated?
No.
And theres only one justice deciding this: Kennedy, who has clearly indicated the ACA will be struck down in its entirety.