Supreme Court agrees to hear Obama healthcare law

[Dr.Traveler]

Honestly, the mandate should be struck down. Most of the rest of the legislation would fall under regulatory and interstate commerce powers and stand.

I do agree with PC and Sallow though, it'll be a 5-4 to uphold. It shouldn't be, but I'm thinking it will. That isn't necessarily bad for the GOP though. A 5-4 Uphold ruling would motivate the base big time as the Mandate is pretty unpopular on both sides of the aisle. I could see a 5-4 ruling to support the Mandate being a pretty effective October surprise if they hold the decision.

 

[Liability]

Oh yes!! There's no way we would ever want to force people to take responsibility and buy their own health coverage.

Force.

The usual required element in liberal what-passes-for-thinking.

Uh-huh. Because there is no way you new conservatives would EVER force a woman to carry a fetus to full term, force someone to die with no dignity or force families to put off allowing their unrecoverable loved ones to die (Terri Schiavo).

So don't hand me your bullshit on anybody forcing anything.

"Force a woman" to carry her fetus to full term as opposed to blithely "allowing" her to kill an innocent?

Force a person to die with no dignity? As opposed to what? What is the death with dignity thing you are commenting on? Assisted suicide, perhaps?

And as for the Terri Schiavo case, lots of conservatives disagreed with lots of other conservatives. The point was that it was NOT all that clear that Terri WAS actually beyond all hope. I kind of imagine she was. But there was other evidence and it's kind of "ok" not to presume that we know more about the marvels of the human brain than we actually DO know.

The POINT of the liberal position (on this health care issue) is that the GOVERNMENT purports now to have the Constitutional authority to TELL us what we MUST buy -- as long as it's for our own good. And yes. It IS a matter of compulsion. And yes, it is a very dubious authority that the libs lay claim to.

 

[Liability]

Looks like it'll come down to how one man votes, Kennedy I think. 5-4 split vote is highly likely, one person will make the call.

That isn't really how it should be for something like this. The dems will never agree to this, but they oughta scrap the whole damn thing and do it right this time with enougn bipartisan support to avoid a SCOTUS decision. I suppose that's asking for too much, we don't have enough pols who are willing to make a tough call that's in the best interests of the country rather than what's best for themselves or their party.

Don't forget that Kagen has to recuse herself from voting on this, because she was a part of the drafting of this law. So it will be a lock to be voted out.

What if Justice Kagan declines to recuse herself?

 

[PoliticalChic]

Oh yes!! There's no way we would ever want to force people to take responsibility and buy their own health coverage.

Force.

The usual required element in liberal what-passes-for-thinking.

Uh-huh. Because there is no way you new conservatives would EVER force a woman to carry a fetus to full term, force someone to die with no dignity or force families to put off allowing their unrecoverable loved ones to die (Terri Schiavo).

So don't hand me your bullshit on anybody forcing anything.

You certainly have a point about conservative beliefs on such issues.

But if you read my post with more care, you'll note that I didn't address conservatives.
The point was your casual interest in forcing folks to do your bidding.

 

[PoliticalChic]

Honestly, the mandate should be struck down. Most of the rest of the legislation would fall under regulatory and interstate commerce powers and stand.

I do agree with PC and Sallow though, it'll be a 5-4 to uphold. It shouldn't be, but I'm thinking it will. That isn't necessarily bad for the GOP though. A 5-4 Uphold ruling would motivate the base big time as the Mandate is pretty unpopular on both sides of the aisle. I could see a 5-4 ruling to support the Mandate being a pretty effective October surprise if they hold the decision.

You have a darned good point...rep on the way.

I saw it as an advantage for Obama if the court obviates the law....lots of folks who will vote because they hate the law might just stay home.

 

[Conservative]

Looks like it'll come down to how one man votes, Kennedy I think. 5-4 split vote is highly likely, one person will make the call.

That isn't really how it should be for something like this. The dems will never agree to this, but they oughta scrap the whole damn thing and do it right this time with enougn bipartisan support to avoid a SCOTUS decision. I suppose that's asking for too much, we don't have enough pols who are willing to make a tough call that's in the best interests of the country rather than what's best for themselves or their party.

Don't forget that Kagen has to recuse herself from voting on this, because she was a part of the drafting of this law. So it will be a lock to be voted out.

What if Justice Kagan declines to recuse herself?

I am unaware of a law or process that could force a SC justice to recuse themselves.

 

[PoliticalChic]

Force.

The usual required element in liberal what-passes-for-thinking.

Uh-huh. Because there is no way you new conservatives would EVER force a woman to carry a fetus to full term, force someone to die with no dignity or force families to put off allowing their unrecoverable loved ones to die (Terri Schiavo).

So don't hand me your bullshit on anybody forcing anything.

"Force a woman" to carry her fetus to full term as opposed to blithely "allowing" her to kill an innocent?

Force a person to die with no dignity? As opposed to what? What is the death with dignity thing you are commenting on? Assisted suicide, perhaps?

And as for the Terri Schiavo case, lots of conservatives disagreed with lots of other conservatives. The point was that it was NOT all that clear that Terri WAS actually beyond all hope. I kind of imagine she was. But there was other evidence and it's kind of "ok" not to presume that we know more about the marvels of the human brain than we actually DO know.

The POINT of the liberal position (on this health care issue) is that the GOVERNMENT purports now to have the Constitutional authority to TELL us what we MUST buy -- as long as it's for our own good. And yes. It IS a matter of compulsion. And yes, it is a very dubious authority that the libs lay claim to.

"The point was that it was NOT all that clear that Terri WAS actually beyond all hope."

1. "A car crash victim has spoken of the horror he endured for 23 years after he was misdiagnosed as being in a coma when he was conscious the whole time.
Rom Houben, trapped in his paralysed body after a car crash, described his real-life nightmare as he screamed to doctors that he could hear them - but could make no sound.
'I screamed, but there was nothing to hear,' said Mr Houben, now 46, who doctors thought was in a persistent vegatative state.
'I dreamed myself away,' he added, tapping his tale out with the aid of a computer."

Read more: Rom Houben: Patient trapped in a 23-year 'coma' was conscious all along | Mail Online

2. An Arkansas man who went into a coma after a serious car crash during his late teens has awoken nearly two decades later as a middle-aged man with an adult daughter.

Terry Wallis was 19 and newly married with a baby daughter when his truck plunged through a guard rail, falling 25 feet.

He was left paralysed and in a coma by the crash in the summer of 1984. One of his companions was killed outright.

He remained outwardly unresponsive for years, and news reports yesterday described his recovery as all the more remarkable because Mr Wallis was never given specialist care.

His father, a farmer, was reportedly too poor to afford a neurological examination and state medical insurance was reluctant to pay for a man not expected to return to the work force.

But, according to the popular legend now taking root which promises to turn Mr Wallis into a hero for the pro-life movement, the family never gave up hope. Brain Injury | Buzzle.com

 

[Liability]

Don't forget that Kagen has to recuse herself from voting on this, because she was a part of the drafting of this law. So it will be a lock to be voted out.

What if Justice Kagan declines to recuse herself?

I am unaware of a law or process that could force a SC justice to recuse themselves.

The decision is usually made by the judge using his or her sound discretion.

 

[jillian]

Don't forget that Kagen has to recuse herself from voting on this, because she was a part of the drafting of this law. So it will be a lock to be voted out.

What if Justice Kagan declines to recuse herself?

I am unaware of a law or process that could force a SC justice to recuse themselves.

Unfortunately, SCt justices aren't bound by the same rules of ethical conduct that constrain all other judges.

 

[Dr.Traveler]

Don't forget that Kagen has to recuse herself from voting on this, because she was a part of the drafting of this law. So it will be a lock to be voted out.

What if Justice Kagan declines to recuse herself?

I am unaware of a law or process that could force a SC justice to recuse themselves.

There isn't one. It's come up as an issue before in the last year. I'm trying to remember why, but I thought there were some complaints about Thomas or Alito declining to recuse themselves from a case somehow tied to their spouse. I really wish I could recall this.

 

[Liability]

How damn "thorny" is the Obamacare law in terms of Constitutional analysis?

Consider this:

Health Law Survives Test in Court of Appeals
By JOHN SCHWARTZ
Published: November 8, 2011

The decision came as the Supreme Court is about to consider whether to take up challenges to the Affordable Care Act, a milestone legislative initiative of the administration.

Of four appellate court rulings on the health care law so far, this is the third to deal with the law on the merits, and the second that upholds it.

The United States Court of Appeals for the District of Columbia Circuit in Washington issued the 37-page opinion by Judge Laurence H. Silberman. In the opinion, Judge Silberman, who was appointed by President Ronald Reagan, described the law as part of the fundamental tension between individual liberty and legislative power.

“The right to be free from federal regulation is not absolute, and yields to the imperative that Congress be free to forge national solutions to national problems, no matter how local — or seemingly passive — their individual origins,” he wrote. The fact that Congress may have never issued an individual mandate to purchase something before, a central argument for many opposing the law, “seems to us a political judgment rather than a recognition of constitutional limitations,” he wrote.

A 65-page dissent by Judge Brett M. Kavanaugh, a conservative jurist appointed by President George W. Bush, stated that the courts lack jurisdiction until the law’s tax penalties take effect in 2015. Citing the 19th-century Anti-Injunction Act, he said that the “important and long-standing” law “poses a jurisdictional bar to our deciding this case at this time.”

* * * *

http://www.nytimes.com/2011/11/09/health/policy/appeals-court-upholds-health-care-law.html

The above hyperlink takes you to the full article which is useful since the article contains additional hyperlinks to the lengthy decision and the lengthy dissent.

Thorny stuff, indeed.

 

[Sallow]

Honestly, the mandate should be struck down. Most of the rest of the legislation would fall under regulatory and interstate commerce powers and stand.

I do agree with PC and Sallow though, it'll be a 5-4 to uphold. It shouldn't be, but I'm thinking it will. That isn't necessarily bad for the GOP though. A 5-4 Uphold ruling would motivate the base big time as the Mandate is pretty unpopular on both sides of the aisle. I could see a 5-4 ruling to support the Mandate being a pretty effective October surprise if they hold the decision.

You have a darned good point...rep on the way.

I saw it as an advantage for Obama if the court obviates the law....lots of folks who will vote because they hate the law might just stay home.

You might have a point here. Many were hoping for universal health care..not this. But that position might soften once it's rolled out completely. I mean, I don't like it, but the fact that you can't get kicked for a pre-existing condition makes the indivdual mandate worth the bother.

 

[jillian]

Don't forget that Kagen has to recuse herself from voting on this, because she was a part of the drafting of this law. So it will be a lock to be voted out.

just to correct grunt (who seems never to be correct about anything) its my understanding that kagan did not "draft" the health care legislation. she worked for the DOJ at the time and it would have been her job to legally defend the law.

As for whether she should recuse... well, her relationship to the health care law, which has been upheld by most circuit courts of appeal which have heard it, is far more distant than thomas' connection was to the outcome of citizens' united, and scalia's was to bush v gore.

so given no one on the right whined about those failures to recuse, i'd say that the drone with regard to kagan is just that...

sound and fury signifying nothing.

and no one can "vote her out"... .or as i said, thomas and scalia would have been 'voted out' of the cases i referenced.

 

[Sallow]

What if Justice Kagan declines to recuse herself?

I am unaware of a law or process that could force a SC justice to recuse themselves.

There isn't one. It's come up as an issue before in the last year. I'm trying to remember why, but I thought there were some complaints about Thomas or Alito declining to recuse themselves from a case somehow tied to their spouse. I really wish I could recall this.

I think it was Thomas..

In any case..Scalia basically trampled on the whole notion of recusals. Although Roberts has shown alot of class in this regard.

 

[Navy1960]

Helvering V. Davis.

1. The Court abstains from dismissing, sua sponte, as not properly within equity jurisdiction, a bill by a shareholder to restrain his corporation from making the tax payments and the deductions from wages required by Title VIII of the Social Security Act of August 14, 1935, the bill alleging that the exactions are void and that compliance will subject the corporation and its shareholders to irreparable damage. P. 639.

The corporation acquiesced. The Collector and Commissioner of Internal Revenue intervened in the court below, defended on the merits, brought the case to this Court by certiorari, and here expressly waived a defense under R.S. ' 3224 and any objection upon the ground of adequate legal remedy, and urged that the validity of the taxes be determined.

2. The scheme of "Federal Old-Age Benefits" set up by Title II of the Social Security Act does not contravene the limitations of the Tenth Amendment. P. 640.

3. Congress may spend money in aid of the "general welfare." P. 640.

4. In drawing the line between what is "general" welfare, and what is particular, the determination of Congress must be respected by the courts, unless it be plainly arbitrary. P. 640.

5. The concept of "general welfare" is not static, but adapts itself to the crises and necessities of the times. P. 641.

Helvering v. Davis, 301 U.S. 619 (1937)

Ariticle One sec. 9



The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.
The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

No Bill of Attainder or ex post facto Law shall be passed.

No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.

Cummings v. Missouri,

"A bill of attainder, is a legislative act which inflicts punishment without judicial trial and includes any legislative act which takes away the life, liberty or property of a particular named or easily ascertainable person or group of persons because the legislature thinks them guilty of conduct which deserves punishment."

It seem's fairly clear that the section that requires a person to purchase healthcare is a "bill of attainder" and as such should be struck down. While I do not question the motives for wanting Americans to have low cost healthcare as well as make it available to all Americans, it does seem that punishing Americans is not only the unconstitutional way to go about it, it is also the wrong way. I am still of the opinion that things such as "pre-existing condition bills"can and still do have wide support among both parties as well as many other aspects of the the healthcare bill. However, the bill itself remains widely unpopular as well as an illustration of what congress should not do and the results of what happens when congress refuses to work together on matters that effect the entire nation. This habit has not changed much in congress , only the team jersey has. So it remains to be seen if the SCOTUS will overturn the entire bill, but as the court is divided as well it should prove very interesting considering this is the court that has decided corporations are now citizens, so if one is hoping for a constitutional decision on the healthcare matter, this court has a habit of going in very different directions that people think they will.

 

[California Girl]

How is a court being activist by upholding the Constitution?

Its when they ignore it and the law and make their own rules that we have activism.

Precisely...

It's amazing, the kind of twists these wingers try and do

Rightwingnuts believe anything that contradicts their fundamental beliefs is Unconstitutional

And Left Wing Whackjobs forget we have a Constitution.

See how this works?

Idiot.

 

[jillian]

Helvering V. Davis.

1. The Court abstains from dismissing, sua sponte, as not properly within equity jurisdiction, a bill by a shareholder to restrain his corporation from making the tax payments and the deductions from wages required by Title VIII of the Social Security Act of August 14, 1935, the bill alleging that the exactions are void and that compliance will subject the corporation and its shareholders to irreparable damage. P. 639.

The corporation acquiesced. The Collector and Commissioner of Internal Revenue intervened in the court below, defended on the merits, brought the case to this Court by certiorari, and here expressly waived a defense under R.S. ' 3224 and any objection upon the ground of adequate legal remedy, and urged that the validity of the taxes be determined.

2. The scheme of "Federal Old-Age Benefits" set up by Title II of the Social Security Act does not contravene the limitations of the Tenth Amendment. P. 640.

3. Congress may spend money in aid of the "general welfare." P. 640.

4. In drawing the line between what is "general" welfare, and what is particular, the determination of Congress must be respected by the courts, unless it be plainly arbitrary. P. 640.

5. The concept of "general welfare" is not static, but adapts itself to the crises and necessities of the times. P. 641.

Helvering v. Davis, 301 U.S. 619 (1937)

Ariticle One sec. 9



The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.
The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

No Bill of Attainder or ex post facto Law shall be passed.

No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.

Cummings v. Missouri,

"A bill of attainder, is a legislative act which inflicts punishment without judicial trial and includes any legislative act which takes away the life, liberty or property of a particular named or easily ascertainable person or group of persons because the legislature thinks them guilty of conduct which deserves punishment."

It seem's fairly clear that the section that requires a person to purchase healthcare is a "bill of attainder" and as such should be struck down. While I do not question the motives for wanting Americans to have low cost healthcare as well as make it available to all Americans, it does seem that punishing Americans is not only the unconstitutional way to go about it, it is also the wrong way. I am still of the opinion that things such as "pre-existing condition bills"can and still do have wide support among both parties as well as many other aspects of the the healthcare bill. However, the bill itself remains widely unpopular as well as an illustration of what congress should not do and the results of what happens when congress refuses to work together on matters that effect the entire nation. This habit has not changed much in congress , only the team jersey has. So it remains to be seen if the SCOTUS will overturn the entire bill, but as the court is divided as well it should prove very interesting considering this is the court that has decided corporations are now citizens, so if one is hoping for a constitutional decision on the healthcare matter, this court has a habit of going in very different directions that people think they will.

bingo! well, except for the part on payment for health coverage. they've already determined that you can be compelled to pay as they did with social security.

 

[jillian]

The thing that's interesting, that is pointed out in liability's link, is that opposing the health care bill is actually difficult for conservative jurists because there are two schools of "conservative" thought. one, which is the more traditional, is limited judicial review in deference to congressional action unless it is patently unconstitutional. the other is a vigorous judicial review in order to zealously defend "individual liberties".

but a conservative court overturning this law would be endangering 60 years of legislation. it is unlikely.

i wouldn't be shocked if they actually refused to upend it based on 'political question' doctrine, which would make it nonjusticeable and get them off the hook.

 

[jillian]

How is a court being activist by upholding the Constitution?

Its when they ignore it and the law and make their own rules that we have activism.

and if you actually understood what that is, it would be wonderful.

 

[jillian]

Precisely...

It's amazing, the kind of twists these wingers try and do

Rightwingnuts believe anything that contradicts their fundamental beliefs is Unconstitutional

And Left Wing Whackjobs forget we have a Constitution.

See how this works?

Idiot.

no. not really. it's more apparent that rightwingnuts lie about what it requires and what it permits because they have little understanding of the caselaw. so viewing the document in a vacuum leads them to say perverse and ignorant things.