Obamacare Goes to Court - Page 16 - Politics and Economics

**mpethybridge** · 03-27-2012, 03:26 AM

Quote:

Originally Posted by bringmehome

For the most part, the most respected jurists and con law scholars have said the mandate is constitutional. You can call them all partisan hacks, and maybe some are motivated by politics, but a lot of these same people have crossed party lines when it comes to other issues.

If you re-read my post, I briefly say why the mandate is constitutional.

It's not that I am calling them party hacks, in that they are, for example, getting faxes of the talking points from the DNC and faithfully repeating them. It's simply that they have spent their lives being professional advocates for liberal politics in a legal framework, and it is utterly inconceivable that they would think anything other than that Obamacare is constitutional. The ubiquity of the opinion is not indicative of a broad consensus; it is indicative of a lack of diversity among people who style themselves as constitutional scholars.

Now Supreme Court justices--those are political hacks.

**mpethybridge** · 03-27-2012, 03:29 AM

Quote:

Originally Posted by bringmehome

I'm pretty sure we had this same argument like 6 months ago, not worth having it again.

It's an undeniable fact that many of the Founders were strong supporters of a large national government. If you listen to Ron Paul, he'd have you believe that all of the founders were libertarians. That's simply not true.

I'm obliging you by not having the same argument again. But the bolded statement is like poking a finger in my eye, so please admire my restraint.

awval999 · 03-27-2012, 07:36 AM

Can a mod or someone insert a poll into this thread, is it possible?

Simply, Is the Affordable Care Act constitutional?

Wynton · 03-27-2012, 10:09 AM

I enjoy tea-reading attempts to interpret every comment made during oral argument, like this discussion (http://tpmdc.talkingpointsmemo.com/2...re.php?ref=fpa), asking whether Roberts has tipped his hand:

Quote:

In an exchange with a plaintiffs attorney, Roberts suggested he’s skeptical that the mandate and its penalties can be treated separately and may have opened the door to finding that Congress’ power to impose the mandate springs from its broad taxing power.
“The idea that the mandate is something separate from whether you want to call it a penalty or tax just doesn’t seem to make much sense,” Roberts said, over strong objections from attorney Gregory Katsas. “It’s a command. A mandate is a command. If there is nothing behind the command, it’s sort of, well what happens if you don’t file the mandate? And the answer is nothing. It seems very artificial to separate the punishment from the crime. … Why would you have a requirement that is completely toothless? You know, buy insurance or else. Or else what? Or else nothing.”
That wasn’t what the challengers wanted to hear. A key feature of their argument is that the individual mandate is distinct from the fine the government will assess on people who fail to purchase insurance. They say the case isn’t about Congress’ power to tax or penalize people but rather about its power to force people to take actions they may not want to take. Roberts dismissed this distinction.
The question now is how far-reaching the implications of that dismissal are. It’s possible that Roberts was linking the mandate and its enforcement mechanism for the purpose of answering a much narrower question — that it wasn’t a tip-of-the-hand at all. But if the two measures are linked, then the court could easily conclude they both stem from the same power, and give them the green light.
“Struck me too,” said Timothy Jost, a legal scholar and supporter of the health care law, who has followed these arguments very closely. “This is a big problem for the states’ Medicaid argument and might even support the federal government’s argument that the mandate is an exercise of the taxing power.”
The states want to avoid that at all costs — the taxing power is far too broad. In a written brief, attorneys for the state respondents noted, “The federal government’s last ditch effort to abandon its earlier rhetoric and defend the mandate as a tax fails for the simple reason that, regardless of its enforcement mechanism, the mandate itself is not a tax.”
Roberts suggested Monday that distinguishing between the two might not be so easy.
Randy Barnett, a constitutional scholar and one of the architects of the legal challenge, isn’t concerned just yet. He thinks Roberts’ critique was limited to the narrower subject of Monday’s arguments over whether the court has the jurisdiction to rule on the merits of the case yet, given that nobody will be assessed a fee for violating the mandate until 2015.
“The only thing I think Chief Justice Roberts was expressing resistance to was our argument that the mandate was separate from the penalty for purposes of the [Anti-Injunction Act],” Barnett said in an email. “That is only one of the bases on which the AIA does not foreclose consideration on the merits. I don’t think he was signaling anything at all about the constitutionality of the mandate penalty, the subject of tomorrow’s argument. If he was, however, I expect to get a much better sense of that tomorrow so we won’t have to wait long to find out.”

TalkingDonkey · 03-27-2012, 11:34 AM

Kennedy and Roberts are going after the government this morning. Not sure if it's out of skepticism so much as trying to narrow their argument.

suzzer99 · 03-27-2012, 11:40 AM

Quote:

Originally Posted by mpethybridge

fyp

Who ****ing cares? The fact is that you have a group that consists primarily of liberals predicting that the pet liberal policy of a liberal president and a liberal Congress will pass constitutional muster under precedent laid down primarily by liberal supreme courts.

When someone says "most people who study constitutional law believe that X is constitutional," it is an appeal to authority. And the fact that the authority appealed to is one of the least politically diverse groups in the country rules out the possibility that you are getting a broad range of opinions that have arrived at a consensus. You're just getting the party line repeated over and over by the party faithful.

The whole idea that constitutionality is an objective or discernible fact is ridiculous, anyway. The justices of the supreme court are for the most part nothing more than party operatives who vote their party allegiance on constitutional matters.

It's not our fault that intellectualism has a liberal bias.

dinopoker · 03-27-2012, 12:00 PM

Quote:

Originally Posted by mpethybridge

So by most people you mean an elite that is comprised of 80% political liberals?

NEWS FLASH!!!! 80% of political liberals think Obamacare is constitutional. NEWS FLASH!!!!

Yeah I suppose if you polled truck stops and the kitchen at your local TGI Friday's you'd find different. Good point.

Wynton · 03-27-2012, 12:03 PM

Mid-argument update from SCOTUS blog not encouraging to the law's supporters (though it is based upon questioning of the government's side, so very premature to draw any conclusions):

http://www.scotusblog.com/2012/03/mi...e/#more-141877

Quote:

In the first hour of the Supreme Court oral arguments relating to the constitutionality of the individual health insurance mandate, Solicitor General Donald Verrilli took the podium. The good news for Verrilli, the government, and the supporters of the mandate is that the four liberal Justices asked relatively few questions, and the questions were largely friendly. The bad news is that there is no apparent fifth vote in support of the constitutionality of the law. When the Solicitor General argued that the mandate does not require people to purchase health care, but instead merely regulates when and how they will pay for that care, Justice Kennedy seemed skeptical, asking whether Congress’s power to regulate commerce allows it to create commerce to then regulate. Other conservative Justices – Chief Justice Roberts, and Justices Scalia and Alito – also seemed skeptical of the government’s arguments, focusing on whether there is a limiting principle: they wanted the government to explain whether Congress can force individuals to buy things other than health insurance, including cars and broccoli, or whether the government can require that individuals exercise. It will be interesting to see whether the Justices’ questions for the health care challengers reveal anything different about their inclinations.

suzzer99 · 03-27-2012, 12:06 PM

Omg broccoli

Riverman · 03-27-2012, 12:07 PM

Oh cool. The oral arguments are the same as the first 20 posts of this thread.

TalkingDonkey · 03-27-2012, 12:13 PM

Paul Clement has done quite well for the challengers and did not get pressed by the conservative judges. Kennedy seems to be looking at the mandate as an individual liberty issue; Roberts may be the most likely for a 5th vote at the moment.

zikzak · 03-27-2012, 12:13 PM

Sounds like it was a pretty bad day for Obamacare. Pundits are already predicting defeat.

Wynton · 03-27-2012, 12:16 PM

I haven't seen any updates since the challengers took the podium. But if the pundits are basing their conclusions on questioning of the Solicitor General, then it's kind of LOL. You can't get the full picture until both sides are questioned.

suzzer99 · 03-27-2012, 12:17 PM

I'm pretty sure pundits would never jump the gun on something like this.

TalkingDonkey · 03-27-2012, 12:22 PM

Apparently the challengers' argument went really well. Just saw Jeffrey Toobin on CNN all but say it's going to be struck down, 5-4.