Supreme Court Bound! Health Care Reform Law Unconstitutional

[CrusaderFrank]

It's a penalty! No, it's a tax! It's a penalty! No, it's a tax!

Wait a second you two, ObamaCare is a penalty AND a tax!

 

[Quantum Windbag]

Maybe it is because you do not see it when you do it, like your refusal to admit that the TSA is violating the 4th.

Both sides hate the Bill of Rights.

Sure. Not many are apt to support the Bill of Rights with respect to the TSA actions. And how many on the right support the 1st Amendment when it comes to Julian Assange?

In general, the right is less protective of the 4th amendment. The left is horrible on the 2nd amendment. Both sides are happy to curtail the 1st amendment when it suits their purposes. The right doesn't care for the 9th amendment (you hear rhetoric from the right often saying "where in the Constitution is that right?" as though the only rights we have are listed there, when the 9th clearly says otherwise). Meanwhile, the left isn't fond of the 10 amendment in many instances.

Neither side has the higher ground on individual rights. They just both use different rights (and disregard others) to get to the end result they want, and then come up with a justification for it after the fact.

I truly believe that he has every right to speak his mind. Making Illegally obtained Classified Government Documents available to the public is not a Free Speech issue. It is Theft, and I'm sure a couple of other things too. Had it been your Financial Statements or Medical Records released I'm sure you would see it differently.

Funny thing is, the courts, and the law, disagree. The New York Times has repeatedly published classified government documents, and the courts have repeatedly said that, as long as they did not commit the criminal act of stealing them themselves, or facilitating the theft, they have a 1st Amendment right to print them. That makes any argument that Assange and Wikileaks iffy at best, unless the government can prove they that he had something to do with the actual theft. They might have a case if Wikileaks paid for the information, but otherwise all they can do is damage control.

 

[Steerpike]

I truly believe that he has every right to speak his mind. Making Illegally obtained Classified Government Documents available to the public is not a Free Speech issue. It is Theft, and I'm sure a couple of other things too. Had it been your Financial Statements or Medical Records released I'm sure you would see it differently.

Not true at all. It is theft, or other crimes, by whoever leaked the documents. Once in the hands of WikiLeaks or the NY Times or others, it is protected. This is a good case in point about people being choosy about which rights they like.

 

[geauxtohell]

What?

No cries of "Judicial Activism" from the right?

 

[SFC Ollie]

I truly believe that he has every right to speak his mind. Making Illegally obtained Classified Government Documents available to the public is not a Free Speech issue. It is Theft, and I'm sure a couple of other things too. Had it been your Financial Statements or Medical Records released I'm sure you would see it differently.

Not true at all. It is theft, or other crimes, by whoever leaked the documents. Once in the hands of WikiLeaks or the NY Times or others, it is protected. This is a good case in point about people being choosy about which rights they like.

If it is stolen property, then wikileaks has received stolen property at the very least. Time to use some common sense here and protect our state secrets. And I believe that a state secret is still a secret as long as the information is contained, wikileaks is the uncontainer. There should be no 1st amendment protection to reveal classified material.

 

[goldcatt]

I truly believe that he has every right to speak his mind. Making Illegally obtained Classified Government Documents available to the public is not a Free Speech issue. It is Theft, and I'm sure a couple of other things too. Had it been your Financial Statements or Medical Records released I'm sure you would see it differently.

Not true at all. It is theft, or other crimes, by whoever leaked the documents. Once in the hands of WikiLeaks or the NY Times or others, it is protected. This is a good case in point about people being choosy about which rights they like.

If it is stolen property, then wikileaks has received stolen property at the very least. Time to use some common sense here and protect our state secrets. And I believe that a state secret is still a secret as long as the information is contained, wikileaks is the uncontainer. There should be no 1st amendment protection to reveal classified material.

Information isn't property. Passively receiving it is not an offense. Now if Assange was involved in any way in obtaining it, it's espionage. Tough call to make without more facts than we have publicly available, but IMO we have our signal the Europeans are willing to play ball in handing the guy over and keeping him out of circulation if we can just come up with evidence. He's dangerous to them too.

 

[Quantum Windbag]

Not true at all. It is theft, or other crimes, by whoever leaked the documents. Once in the hands of WikiLeaks or the NY Times or others, it is protected. This is a good case in point about people being choosy about which rights they like.

If it is stolen property, then wikileaks has received stolen property at the very least. Time to use some common sense here and protect our state secrets. And I believe that a state secret is still a secret as long as the information is contained, wikileaks is the uncontainer. There should be no 1st amendment protection to reveal classified material.

Information isn't property. Passively receiving it is not an offense. Now if Assange was involved in any way in obtaining it, it's espionage. Tough call to make without more facts than we have publicly available, but IMO we have our signal the Europeans are willing to play ball in handing the guy over and keeping him out of circulation if we can just come up with evidence. He's dangerous to them too.

His general attitude is dangerous to all governments that value secrets over transparency. Their willingness to persecute him says more about them than anything he did.

 

[Intense]

Not at all. Wickard and Gonzales are cases that hit the outer limits of the Commerce Clause. But they are, in fact, law until an unless they're overturned whether anybody likes them or not.

It's a case of first impression. Does refusal to participate in economic activity constitute economic activity in itself? Interesting question.

Are we the Property of the State? Interesting question.

Not exactly.

If Congress has the right, as it currently does, to regulate individual economic activity that has an aggregate effect on interstate commerce, does it also have the right to regulate the refusal to engage in such activity when that refusal also has an aggregate impact on interstate commerce? And, if so, does a tax on these individuals fall under the necessary and proper clause?

I'm not sure I agree with the standard of review the judge chose to use, or his pretty much out of hand dismissal of Wickard and Gonzales, I think he made a decision that's above his pay grade here - but then again, somebody has to be the first to weigh in. That will be taken up at the Circuit level.

I think the Courts have already transgressed past that point in giving the Federal Government by authority of the Commerce Clause control over what we grow in our gardens for private and personal use. I realize your livelihood is the Court's GC, so you are deeply associated with procedures and rulings everyday. The issue for me is the assumed powers and abuses against the Citizenry under an imagined intent, just because someone says so. If your position was so solid, why are so many of the Rulings so widely split? Why aren't they close to unanimous, if the principle is so pure. Jefferson was so right, claiming the dangers of the Oligarchy powers of the Judicial Branch. For you It's your job, where you see the administration of justice every day. For me the Issue is not Politics, but the growing totalitarian power over our lives. Who is kidding who?

 

[goldcatt]

If it is stolen property, then wikileaks has received stolen property at the very least. Time to use some common sense here and protect our state secrets. And I believe that a state secret is still a secret as long as the information is contained, wikileaks is the uncontainer. There should be no 1st amendment protection to reveal classified material.

Information isn't property. Passively receiving it is not an offense. Now if Assange was involved in any way in obtaining it, it's espionage. Tough call to make without more facts than we have publicly available, but IMO we have our signal the Europeans are willing to play ball in handing the guy over and keeping him out of circulation if we can just come up with evidence. He's dangerous to them too.

His general attitude is dangerous to all governments that value secrets over transparency. Their willingness to persecute him says more about them than anything he did.

There are certain secrets any government has to value above transparency, particularly where relations with other governments are concerned.

I'm a big fan of the First, but it's obvious even to me that when we assure another nation that our communications will be confidential, we have a duty to honor that commitment. We do not have a right to public access to absolutely everything for good reason.

 

[Steerpike]

If it is stolen property, then wikileaks has received stolen property at the very least. Time to use some common sense here and protect our state secrets. And I believe that a state secret is still a secret as long as the information is contained, wikileaks is the uncontainer. There should be no 1st amendment protection to reveal classified material.

Problem with this analysis is that the 1st amendment trumps laws on receipt of stolen property. The media gets information leaked to them quite often that is stolen or confidential. The person doing the stealing or breaking the confidence may have liability, but the media outlet is shielded by the 1st amendment.

As for "common sense," and other such phrases, those are throw-away words that you see quite often from both the left and the right when they want an excuse to ignore the Constitution.

 

[Steerpike]

There are certain secrets any government has to value above transparency, particularly where relations with other governments are concerned.

I'm a big fan of the First, but it's obvious even to me that when we assure another nation that our communications will be confidential, we have a duty to honor that commitment. We do not have a right to public access to absolutely everything for good reason.

There's a difference between having a right to it and being able to prosecute an outlet once the information is leaked.

You don't have a "right" to the information, which is why you couldn't get it through FOIA or other means. But if it gets leaked out by someone who has access to it, the 1st does shield the media outlet that gets it.

 

[boedicca]

It's a penalty! No, it's a tax! It's a penalty! No, it's a tax!

Wait a second you two, ObamaCare is a penalty AND a tax!

The Obama Administration is now pushing for Severability so that if the individual mandate is thrown out, the rest of ObamaCare can go forward.

Of course, the individual mandate was a key part of cooking the CBO score, but they aren't worried about paying for the program now that the law has been signed.

 

[Greenbeard]

In the final analysis, the Court will grant Plaintiff's Motion for Summary Judgment and deny Defendent's similar motion. The Court will sever Section 1501 from the balance of the ACA and deny Plaintiff's request for injunctive relief.

Ten pages and, unless I've missed it, no one has noted that the health care reform law has not been ruled unconstitutional. Not only did Hudson specifically decline to halt implementation of the law, he rejected the plaintiff's request that he rule the entire law unconstitutional. Instead, he ruled the individual mandate unconstitutional and specifically severed it from the rest of the law, which survives intact. From a court that was obviously going to rule against the ACA, this is a surprisingly favorable ruling.

I don't think the states are gonna want to set up exchanges until this is settled.

That depends on state leadership and has very little to do with this decision (even if the decision as issued stood, exchanges would still be constructed in every state). The best it can offer is political cover for governors or legislature that want to drag their feet. 48 states (and D.C.) are currently being funded to design/plan their exchanges. If some of them decide not to build exchanges, it doesn't really matter. If a state can't demonstrate in early 2013 that it will have a customized state-designed, state-run exchange operational by the end of that year, the feds will step in and build and operate one for the state. If a state doesn't mind ceding control over most of its individual insurance market to the federal government, it can sit on its hands forever, if it likes.

currently the score is 1-1 for Obama care.

Actually, the score of ACA-related suits is 5-1 in favor of the ACA. In terms of those that have actually gone far enough to rule on the constitutionality of the law/individual mandate, the score is 2-1 in favor of it being constitutional. Today's decision is actually the anomaly, though you wouldn't know it by the champagne corks popping around here. Though, as I said, even for a defeat it's remarkable positive. About 2,690 pages of the law are untouched. Which is where all of the promising stuff lies.

I'm not sure I agree with the standard of review the judge chose to use, or his pretty much out of hand dismissal of Wickard and Gonzales, I think he made a decision that's above his pay grade here - but then again, somebody has to be the first to weigh in. That will be taken up at the Circuit level.

There are bits of bad logic in there (like suggesting the necessary and proper clause doesn't apply if the commerce clause itself doesn't directly apply) but overall I'm pretty relieved by this decision. Establishing severability is about the kindest thing this judge could have done. Somebody should send this guy a cake.

 

[SFC Ollie]

There are certain secrets any government has to value above transparency, particularly where relations with other governments are concerned.

I'm a big fan of the First, but it's obvious even to me that when we assure another nation that our communications will be confidential, we have a duty to honor that commitment. We do not have a right to public access to absolutely everything for good reason.

There's a difference between having a right to it and being able to prosecute an outlet once the information is leaked.

You don't have a "right" to the information, which is why you couldn't get it through FOIA or other means. But if it gets leaked out by someone who has access to it, the 1st does shield the media outlet that gets it.

Well it shouldn't and should be changed. Simple as that.

 

[Avatar4321]

America has lost her heart, her compassion, her civic responsibility. Thankfully the supreme court didn't get any McCain selections. One can hope charity and good sense prevails as it does on occasion.

This nation is so controlled by corporate tools there would be no founders today.

"Something is profoundly wrong with the way we live today. For thirty years we have made a virtue out of the pursuit of material self-interest: indeed, this very pursuit now constitutes whatever remains of our sense of collective purpose. We know what things cost but have no idea what they are worth. We no longer ask of a judicial ruling or a legislative act: is it good? Is it fair? Is it just? Is it right? Will it help bring about a better society or a better world? Those used to be the political questions, even if they invited no easy answers. We must learn once again to pose them." Tony Judt 'Ill Fares the Land'

Imagine trying to pass SS today.

"The constitutionality of the Social Security Act was settled in a set of Supreme Court decisions issued in May 1937. The text of those decisions, with dissents, is presented here. (We also include a brief historical essay to help general readers better understand the context of the decision." Social Security Online

So we have lost our charity and compassion because we dont think forcing people to buy insurance is a good idea?

Are you serious? Or are you just trolling right now?

 

[goldcatt]

Are we the Property of the State? Interesting question.

Not exactly.

If Congress has the right, as it currently does, to regulate individual economic activity that has an aggregate effect on interstate commerce, does it also have the right to regulate the refusal to engage in such activity when that refusal also has an aggregate impact on interstate commerce? And, if so, does a tax on these individuals fall under the necessary and proper clause?

I'm not sure I agree with the standard of review the judge chose to use, or his pretty much out of hand dismissal of Wickard and Gonzales, I think he made a decision that's above his pay grade here - but then again, somebody has to be the first to weigh in. That will be taken up at the Circuit level.

I think the Courts have already transgressed past that point in giving the Federal Government by authority of the Commerce Clause control over what we grow in our gardens for private and personal use. I realize your livelihood is the Court's GC, so you are deeply associated with procedures and rulings everyday. The issue for me is the assumed powers and abuses against the Citizenry under an imagined intent, just because someone says so. If your position was so solid, why are so many of the Rulings so widely split? Why aren't they close to unanimous, if the principle is so pure. Jefferson was so right, claiming the dangers of the Oligarchy powers of the Judicial Branch. For you It's your job, where you see the administration of justice every day. For me the Issue is not Politics, but the growing totalitarian power over our lives. Who is kidding who?

We're looking at it from two different points of view here, you're right. Although I don't actively practice anymore.

Perhaps that's the problem when looking at these decisions. Some of us are looking at what the law already is, like it or not, and applying it to the question. Others are focusing on what we think the law should be, and looking at the outcome from that point of view. Of course when we're coming at it from two different directions we're not likely to agree on much if anything.

I'm actually not taking a firm position on this yet. As an issue of first impression it would take a lot more research and thought then I feel like putting into it tonight to come up with any more than a first impression. It feels a little sloppy to me, like he wanted to sever it and move it through the process as quickly as possible. But that's just a quick and dirty.

What's the final answer going to be? I'm not sure right now. I understand where you're coming from, but the issues you're looking at are much, much bigger than any single case can address, and some of it isn't judicial in scope at all.

I can tell you this though, just as on this board the judiciary is split on its opinion of how to interpret the language. There are at least a dozen different recognized mainstream legitimate interpretation schemes, and several more out on the fringes or that are subcategories of those. There are also different set standards of review, and there is a certain amount of discretion with some of those standards over which should apply in different situations. There's the role of precedent in a common law system, where everything is applicable or not based on its similarity to or differentiation from the case at hand. There are hundreds of procedural rules and many different types of decisions, all of which mean slightly different things or at least produce slightly different orders as they move through the process.

Makes it seem overly complicated, subjective and frustrating, doesn't it?

 

[Avatar4321]

Ollie, apparently!

Still reading...this judge really, really does not like a couple of SCOTUS decisions.

Glad to hear that. That means he has a brain. The SCOTUS has made some pretty crappy decisions in the past.

 

[Trajan]

I hope I don't see this healthcare bill end up being a tax.

its a fee, its a tax....no its a fee, no its a tax, no its a fee no its a tax.....shes my sister shes my daughter.... shes my sister shes my daughter....

 

[Trajan]

In the final analysis, the Court will grant Plaintiff's Motion for Summary Judgment and deny Defendent's similar motion. The Court will sever Section 1501 from the balance of the ACA and deny Plaintiff's request for injunctive relief.

Ten pages and, unless I've missed it, no one has noted that the health care reform law has not been ruled unconstitutional. Not only did Hudson specifically decline to halt implementation of the law, he rejected the plaintiff's request that he rule the entire law unconstitutional. Instead, he ruled the individual mandate unconstitutional and specifically severed it from the rest of the law, which survives intact. From a court that was obviously going to rule against the ACA, this is a surprisingly favorable ruling.

I don't think the states are gonna want to set up exchanges until this is settled.

That depends on state leadership and has very little to do with this decision (even if the decision as issued stood, exchanges would still be constructed in every state). The best it can offer is political cover for governors or legislature that want to drag their feet. 48 states (and D.C.) are currently being funded to design/plan their exchanges. If some of them decide not to build exchanges, it doesn't really matter. If a state can't demonstrate in early 2013 that it will have a customized state-designed, state-run exchange operational by the end of that year, the feds will step in and build and operate one for the state. If a state doesn't mind ceding control over most of its individual insurance market to the federal government, it can sit on its hands forever, if it likes.

currently the score is 1-1 for Obama care.

Actually, the score of ACA-related suits is 5-1 in favor of the ACA. In terms of those that have actually gone far enough to rule on the constitutionality of the law/individual mandate, the score is 2-1 in favor of it being constitutional. Today's decision is actually the anomaly, though you wouldn't know it by the champagne corks popping around here. Though, as I said, even for a defeat it's remarkable positive. About 2,690 pages of the law are untouched. Which is where all of the promising stuff lies.

I'm not sure I agree with the standard of review the judge chose to use, or his pretty much out of hand dismissal of Wickard and Gonzales, I think he made a decision that's above his pay grade here - but then again, somebody has to be the first to weigh in. That will be taken up at the Circuit level.

There are bits of bad logic in there (like suggesting the necessary and proper clause doesn't apply if the commerce clause itself doesn't directly apply) but overall I'm pretty relieved by this decision. Establishing severability is about the kindest thing this judge could have done. Somebody should send this guy a cake.

so you'll now tell us this is doable sans mandate?

 

[Avatar4321]

What?

No cries of "Judicial Activism" from the right?

It's not judicial activism to enforce the constitution. It's judicial activism to create completely new legislation and rights that the Constitution doesn't mention.