Which Justices Will Vote Down ObamaCare? & a Preview of the Arguments to Come.

[Publius1787]

Which Justices Will Vote Aginst the Constitutionality of Obamacare?

In this poll I ask all of you which justices will vote against the Affordable Care Act? Don’t take the poll too literally. In other words, with respect to the poll lets not get in to the weeds of whether a portion of the Bill will be struck down or the whole thing. Assume a portion of the Bill being struck down is a vote against the act itself as, let’s face it, Obamacare cannot function without the individual mandate.

Furthermore, I have posted three debates which include some of today’s greatest legal minds, both from the left and the right. For all of you who are curious of how the debates in the Supreme Court will be argued, you can be rest assured that these are the very same arguments that will be presented before the court, and then some. Furthermore, the briefs submitted to the Supreme Court by both sides can be found here.

The Oyez Project is a website where you can look up all of the past and future Supreme Court cases, listen to the oral arguments, and see how the justices voted. Of course, a few cases are missing as this website is a work in progress. However, you can bet that they will have the oral argument of the Affordable care Act quickly after its release from the Supreme Court. They have quickly done so for all of the other recent cases.

Finally, and back to the posted media, whether you’re a Liberal or Conservative, these videos will enhance your knowledge of our Constitution and how it is applied to modern jurisprudence. Enjoy!

SOME OF THESE VIDEOS MAY BE IN PARTS. I haven’t seen them in a while. Each of them are a different debate.
[ame=http://www.youtube.com/watch?v=JDwWvGXsPa8]Is Health Care Reform Constitutional? - YouTube[/ame]

[ame=http://www.youtube.com/watch?v=VOTLt9KtUG8&feature=relmfu]Debating the Constitutionality of the Federal Health Care Legislation 11-18-10 - YouTube[/ame]

[ame=http://www.youtube.com/watch?v=4ZvaSrztrY8]Is the Obama Health Care Reform Constitutional? - YouTube[/ame]

 

[Polk]

I hedged in this thread and said the four most conservative justices would vote to strike it down.

 

[Publius1787]

I hedged in this thread and said the four most conservative justices would vote to strike it down.

I can’t find anything in Kennedy’s past to suggest anything but a narrow reading of the commerce clause. He's a famous wildcard and both sides think him to be susceptible to vote the way they prefer. However, he usually votes with conservatives on everything economic and regulatory and with liberals on everything social.

 

[Polk]

I agree with your analysis of Kennedy (he's far more conservative than many think he is), but overturning the ACA would roll back a lot of precedent. I still think Gonzales v. Raich is the most important case concerning the current justices' thinking, and Kennedy was part of the majority that upheld the ban (which would be a broader reading). The difference between the ACA case and some of the other commerce clause revival cases (Lopez and Morrison) is that the ACA is addressing a clear interstate commerce issue, while Lopez and Morrison both dealt with Congress passing what was basically general laws and tacking on the commerce clause as a justification of authority.

 

[Publius1787]

I agree with your analysis of Kennedy (he's far more conservative than many think he is), but overturning the ACA would roll back a lot of precedent. I still think Gonzales v. Raich is the most important case concerning the current justices' thinking, and Kennedy was part of the majority that upheld the ban (which would be a broader reading). The difference between the ACA case and some of the other commerce clause revival cases (Lopez and Morrison) is that the ACA is addressing a clear interstate commerce issue, while Lopez and Morrison both dealt with Congress passing what was basically general laws and tacking on the commerce clause as a justification of authority.

I still don’t understand what the comparison is. They were growing pot. They were engaged in, to a certain degree, an economic activity ie commerce. To compel someone to enter in to economic activity, or commerce, would be the equivalent of telling them that they must grow pot, or if you were to use the precedent of Wickard v. Filburn, forcing someone to grow wheat. Thats what the ACA does. It doesent regulate existing commerce but compels it as a condition of citizenship. Of course, I never thought that the federal government had the authority to tell people what drugs they may or may not use or grow, however, such a belief in this day and age is moot from the get go, and thus, has no relevancy for our purposes. What is the core reasoning behind citing these cases and how do the merits of those opinions justify ACA? I cant make it out.

By the way, Randy Barnett argued Gonzoles v. Raich and is featured in the latter two videos.

 

[LockeJaw]

I notice it's the same two brothers arguing this topic with the most ferocity(all be it civil, I enjoy that). Are both of y'all lawyers? Just curious. You both post the most interesting stuff on this issue.

 

[Publius1787]

I notice it's the same two brothers arguing this topic with the most ferocity(all be it civil, I enjoy that). Are both of y'all lawyers? Just curious. You both post the most interesting stuff on this issue.

The same two? Well I haven’t posted here for over a year but nevertheless I think that we both are excited about the upcoming case. There are legal and SCOTUS junkies out there and you’ve found two of them who are on opposing sides. Unlike most who think that an argument consists of making unjustified claims that contradict the previous statement of the other, I think we have come to the conclusion that properly arguing topic on its merits using factual propositions to support our claims is much more fun and instructive. Nothing can be more of a beautiful sight to a SCOTUS junkie than someone who credibly disagrees with him.

You will find that the arguments in this forum are not arguments by definition. As I cannot post my favorite argument video from YouTube, I think I have enough videos in this thread at present, I would suggest you look up Monty Pythons Argument Clinic video. Oh, and lawyers don’t have the time to post in a political forum. Although when I was in college I often used online political forums to look up articles for me to cite in papers, heh, heh. This especially helped in my argumentative based research class. If I was a lawyer I suppose I could use the contentious nature here to build an argument.

 

[ladyliberal]

There are a number of things the court would have to do to strike the law in its entirety

1) They would have to find that the individual mandate could not be severed from the rest of the law (or that some other part of the law was both unconstitutional and inseverable).
2) They would have to find that the fine from the individual mandate was not a tax.
3) They would have to find that despite the essentially universal possibility of needing sudden, expensive treatment that the decision to not arrange in advance to pay for it was less an interstate commercial act than was growing and smoking marijuana (since this court won't strike Raich)
4) They would have to find that the case was "ripe" even though no one has been fined.

It's possible that the court could do all these things, but I think they probably won't.

 

[Zander]

All of 'em. It's bad law.

 

[Publius1787]

There are a number of things the court would have to do to strike the law in its entirety

1) They would have to find that the individual mandate could not be severed from the rest of the law (or that some other part of the law was both unconstitutional and inseverable).
2) They would have to find that the fine from the individual mandate was not a tax.
3) They would have to find that despite the essentially universal possibility of needing sudden, expensive treatment that the decision to not arrange in advance to pay for it was less an interstate commercial act than was growing and smoking marijuana (since this court won't strike Raich)
4) They would have to find that the case was "ripe" even though no one has been fined.

It's possible that the court could do all these things, but I think they probably won't.

Fully supporting my notion that people dont ever read the thread before they comment on it.

 

[FA_Q2]

I notice it's the same two brothers arguing this topic with the most ferocity(all be it civil, I enjoy that). Are both of y'all lawyers? Just curious. You both post the most interesting stuff on this issue.

The same two? Well I haven’t posted here for over a year but nevertheless I think that we both are excited about the upcoming case. There are legal and SCOTUS junkies out there and you’ve found two of them who are on opposing sides. Unlike most who think that an argument consists of making unjustified claims that contradict the previous statement of the other, I think we have come to the conclusion that properly arguing topic on its merits using factual propositions to support our claims is much more fun and instructive. Nothing can be more of a beautiful sight to a SCOTUS junkie than someone who credibly disagrees with him.

You will find that the arguments in this forum are not arguments by definition. As I cannot post my favorite argument video from YouTube, I think I have enough videos in this thread at present, I would suggest you look up Monty Pythons Argument Clinic video. Oh, and lawyers don’t have the time to post in a political forum. Although when I was in college I often used online political forums to look up articles for me to cite in papers, heh, heh. This especially helped in my argumentative based research class. If I was a lawyer I suppose I could use the contentious nature here to build an argument.

Clay and George claim to be lawyers and from what they have posted I have no reason to doubt them. Apparently lawyers DO have time to bitch and complain just like the rest of us do

 

[Sallow]

Oddly enough..I think Scalia may vote to keep the law intact.

 

[Polk]

I notice it's the same two brothers arguing this topic with the most ferocity(all be it civil, I enjoy that). Are both of y'all lawyers? Just curious. You both post the most interesting stuff on this issue.

Not yet, but I will be soon enough.

I agree with what Publius said. It's great to be able to come at this discussion, even though we're on different sides of the issue, and have a mature debate about it.

 

[Polk]

There are a number of things the court would have to do to strike the law in its entirety

1) They would have to find that the individual mandate could not be severed from the rest of the law (or that some other part of the law was both unconstitutional and inseverable).
2) They would have to find that the fine from the individual mandate was not a tax.
3) They would have to find that despite the essentially universal possibility of needing sudden, expensive treatment that the decision to not arrange in advance to pay for it was less an interstate commercial act than was growing and smoking marijuana (since this court won't strike Raich)
4) They would have to find that the case was "ripe" even though no one has been fined.

It's possible that the court could do all these things, but I think they probably won't.

I actually think 2 is very likely to happen (which makes 4 irrelevant). That wouldn't bring down the law though, as it can still be justified under the commerce clause.

 

[Publius1787]

I see there is someone who thinks the liberal justices are going to, in some way, vote in the negative against the ACA. Not a chance in Hades!

 

[Publius1787]

There are a number of things the court would have to do to strike the law in its entirety

1) They would have to find that the individual mandate could not be severed from the rest of the law (or that some other part of the law was both unconstitutional and inseverable).
2) They would have to find that the fine from the individual mandate was not a tax.
3) They would have to find that despite the essentially universal possibility of needing sudden, expensive treatment that the decision to not arrange in advance to pay for it was less an interstate commercial act than was growing and smoking marijuana (since this court won't strike Raich)
4) They would have to find that the case was "ripe" even though no one has been fined.

It's possible that the court could do all these things, but I think they probably won't.

I actually think 2 is very likely to happen (which makes 4 irrelevant). That wouldn't bring down the law though, as it can still be justified under the commerce clause.

I do not think the court will strike down the law in its entirety. However, I don’t think the law can be fiscally sound without the individual mandate. Of course, the law isn’t fiscally sound as it stands, the CBO nearly doubling the estimated cost after all the gimmicks were taken out. Yet at the same time, why have a severability clause at all if the courts don’t require it? I guess we will find out.

I’m still curious about those cases you cited earlier here. I’m assuming you either got tired of posting and put it off until later or are having the same hard time understanding it as I.

 

[Polk]

I think removing the mandate would have bad results, but there is no constitutional requirement Congress pass policies that will have good results. I feel odd saying that, but it's true.

I won't dive in to the cost issue, because I feel like that's been well-hashed in other threads and I don't want to drag this one down that rabbit hole.

As for those other cases:

Lopez dealt with a statute banning guns in school zones. Congress said that school violence was a harm to interstate commerce, so they had this authority under the commerce clause. SCOTUS disagreed.
Morrison dealt the creation of a civil cause of action from the Violence Against Women Act. The court struck this down as also being too removed from interstate commerce.

Both of these involve Congress trying to pass general regulation, while using the Commerce Clause as a loincloth.

Raich and Wickard both show that laws that have a very narrow impact under the circumstances are still constitutional if Congress can show it is reasonably related to the exercise of their power. The idea that not buying health insurance doesn't count as an activity is pretty weak. If you're critically ill, you are still able to go to the ER and receive stabilizing treatment. That alone shows the "inactivity" of not buying insurance has a very real impact on the health care market.

 

[Liability]

There is a huge difference between what they should do and what they will do.

Making predictions about what they WILL do is silly.

Just like Pelousy would find out what was in the law after it got passed, so too we will find out what the Constitution supposedly has to say about ObamaCare after the SCOTUS tells us what they are willing to claim about that topic.

ladylib said something interesting. She argues that in order for the Court to strike ObamaCare as Constitutionally invalid:

1) They would have to find that the individual mandate could not be severed from the rest of the law (or that some other part of the law was both unconstitutional and inseverable).

I am not so sure that's true. I can't recall (with certainty) if the ObamaCare Act contained the usual "severability" clause. But my recollection is that it does not. Thus, if the mandate violates the Constitution, then the entire Act could fall.

2) They would have to find that the fine from the individual mandate was not a tax.

That might be difficult. The Administration argued BOTH sides of that point to get the crap passed.

3) They would have to find that despite the essentially universal possibility of needing sudden, expensive treatment that the decision to not arrange in advance to pay for it was less an interstate commercial act than was growing and smoking marijuana (since this court won't strike Raich)

The universality of a "need" to pay for health matters doesn't convert it into a matter of interstate commerce. That is not now and never was the test. Whether pot has an impact on interstate commerce is an unrelated (albeit debatable) proposition.

4) They would have to find that the case was "ripe" even though no one has been fined.

It is plenty ripe for injunctive relief -- such as a declaration of UnConstitutionality -- since the "fine" is an imminent threat. Plus, the myriad thousands of business decisions necessary to implement the fiasco of an Act is very real already.

 

[Polk]

It does not contain a severability clause, but such a clause is not strictly necessary.

 

[Liability]

It does not contain a severability clause, but such a clause is not strictly necessary.

I agree. It is not strictly necessary.

But the lack of one does open some doors.