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So the "big" story is that a district court judge has ruled that health care reform's individual mandate is unconstitutional, dealing reform a Massively Major Blow. That must mean the "little" story is that in fourteen previous cases, judges have either dismissed cases against the law's constitutionality or ruled against those cases. From the White House comes this roster of some of the rejected cases:

Sollars v. Reid -dismissed 4/2/10
Taitz v. Obama - dismissed 4/14/10
Archer v. U.S. Senate - dismissed 4/12/10
Heghmann v. Sebelius - dismissed 5/14/10
Mackenzie v. Shaheen - dismissed 5/26/10
Fountain Hills Tea Party Patriots v. Sebelius - dismissed 6/2/10
Coalition for Parity Inc. v. Sebelius - dismissed on 6/21/10
U.S. Citizens Association v. OMB - dismissed 8/2/10
Baldwin v. Sebelius – dismissed 8/27/10
Burlsworth v. Holder - dismissed 9/8/10
Schreeve v. Obama - dismissed 11/4/10

And if those cases represent the little story, then the puny story must be that in two previous cases a federal judge has ruled that the individual mandate is perfectly constitutional.

But because of today's ruling, in which a conservative judge appointed by George W. Bush became the first magistrate to rule against the individual mandate, conservatives are rejoicing about the demise (caveat: in the Eastern District of Virginia until the case is overturned on appeal) of a provision they once supported. Orrin Hatch, today:

Today is a great day for liberty.

And yet in the 1990s, he supported the individual mandate that he now laments. Hatch explains his flip flop:

We were fighting Hillarycare at that time. And I don't think anyone centered on it, I certainly didn't. That was 17 years ago.

Et tu, Mitt Romney?

To be fair, some conservatives are rating this decision as bogus. Nonetheless, this would be a wise time for defenders of health care reform to start fighting for a public option, otherwise the entire reform debate will focus on this court case. And in addition to the political reasons, there's a legal rationale: a public option, such as Medicare buy-in, would make the legal case moot.

That said, even if a public option isn't forthcoming, this ruling does appear to be on quite shaky ground. Greg Sargent reports that a legal expert thinks the ruling won't stand:

But Tim Jost, a professor of law at the Washington and Lee University Law School, dismissed this argument, deriding it as a fundamental misreadling of the Constitution and claiming that the judge has "rewritten the Commerce Clause."

Jost, who spoke to reporters on a conference call organized by the pro-health reform Center of American Progress, accused Hudson of an overly narrow reading of the Commerce Clause. He said the judge's reading turned on the idea that the Commerce Clause only focuses on regulating economic activity, when in fact it also empowers Congress to regulate economic decisions that are "not immediately classifable as activity."

The Commerce Clause, Jost said, "really turns on economic decisions." By this Jost means that the Commerce Clause empowers Congress to step in and regulate when Americans fail to participate in economic activity in a way that impacts interstate commerce.

Of course, even if Jost ends up being right, the Hudson's decision will convince the right for evermore that health care reform's individual mandate is unconstitutional, no matter how many of their leaders once supported such a mandate.

Originally posted to Daily Kos on Mon Dec 13, 2010 at 01:30 PM PST.

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Comment Preferences

  •  It'll get thrown out on appeal, Car Insurance Req (8+ / 0-)

    requirements seem to cement that arg false.

    80% of SUCCESS is JUST showing up! Payroll Tax Reduction=start of Social Security Destruction

    by Churchill on Mon Dec 13, 2010 at 01:31:23 PM PST

  •  I have less and less faith in the Federal... (12+ / 0-)

    ...judiciary the higher up we go.  Little Faith in the District Courts (where this ruling was made), less in the Appellate Courts, and virtually none in the U.S. Supreme Court as presently constituted.

    •  The extremely activist, not at all bound (6+ / 0-)

      by original intent Roberts Court is not trustworthy?

      In other news, Santa Clause is fat.

      In theory, there is no difference between theory and practice; but in practice, there always is a difference. - Yogi Berra

      by blue aardvark on Mon Dec 13, 2010 at 01:37:54 PM PST

      [ Parent ]

    •  However, (2+ / 0-)
      Recommended by:
      neroden, Matt Z

      I think the Supremes will realize it can only get worse.  If they strike down the mandate, Dolecare/Romneycare becomes a non-viable approach.  Then the moral pressure really falls on a Medicare buy-in which is REALLY bad for business.

      Even if the Supremes rule unconstitutional, they'll use some fig leaf like "if this were called a tax, it would be constitutional".

      In short, I expect they'll say it is constitutional for political reasons.

      "Raise your hand if you think Social Security and Medicare are Socialism."-Lawerence O'Donnell

      by AZphilosopher on Mon Dec 13, 2010 at 02:06:16 PM PST

      [ Parent ]

    •  If insurance mandate is "unconstitutional"... (0+ / 0-)

      ... then federal regulation of many things, including "illegal" drugs, is also outside the scope of the Commerce Clause.

      Bring it on, conservatives.  Bring it on.

      Please help to fight hunger with a donation to Feeding America this holiday season.

      by MJB on Mon Dec 13, 2010 at 02:54:38 PM PST

      [ Parent ]

      •  Ah, but right-wingers have no principles. (0+ / 0-)

        The Five Goons on the Supreme Court will simply rule that the federal government has plenary powers to do whatever it likes to people.  Unless the Five Goons disapprove of whatever-it-is, in which case it's "unconstitutional".

        Read pp. 1-7 of Krugman's _The Great Unraveling_ (available from Google Books). NOW.

        by neroden on Mon Dec 13, 2010 at 07:57:05 PM PST

        [ Parent ]

  •  of course, it wasn't long ago that (16+ / 0-)

    most of us HERE were screaming "kill the bill!"

    This is all just partisan patter, on both sides.

    The mandates were a stupid idea from the start, and we Dems were idiots for passing it.

  •  It was Nixon's idea originally (6+ / 0-)

    Can't believe they're just now calling it "unconstitutional," since the idea's been knocking around since the 1970s.

    This holiday season, ditch the mall and shop at Kos-Mart!

    by CoolOnion on Mon Dec 13, 2010 at 01:33:13 PM PST

    •  Nixon was a neocon (2+ / 0-)
      Recommended by:
      Kimball Cross, J M F

      Nixon was the first neocon - like GWBush he was not a traditional conservative in any sense, though he talked a good game for the religious right.

      Actually - we've had a solid 40 years of neocon rule- with only a small break for Jimmy Carter - who was partially villified because he strayed from the neocon path on foreign policy.

      Reagan was not a neocon - he was a legit conservative Republican (like Bob Dole)- but he surrounded himself with neocons and allowed them to gain power as he became weaker throughout his term.

      Daddy "new world order" Bush was a pure neocon.  

      Clinton was close.

      GWB was just like his daddy.

      Obama, unfortunately, also appears to be a neocon.

      First party to elect a non-neocon to the Presidency wins a generation of voters.

      The object of persecution is persecution. The object of torture is torture. The object of power is power. --George Orwell

      by jgkojak on Mon Dec 13, 2010 at 01:38:58 PM PST

      [ Parent ]

      •  re neocons, you are mistaken (2+ / 0-)
        Recommended by:
        cordobes, tnproud2b

        See my diary on the neocons and their failed American Century (part of my "history of corporations" series):

        http://www.dailykos.com/...

        The key part:

        To understand the corporate history of the George W Bush years, it is important to understand the neocons and their agenda. Many progressives have unfortunately attributed positions and agendas to the neocons which they did not in fact have. The neocons are often conflated with the fundamentalist culture warriors of the Religious Right, who quite literally wanted a theocratic state that would rule according to fundamentalist Christian ideology. In reality, although the neocons formed a political marriage of convenience with the fundamentalists and paid them some lip service, they always thought that the Religious Right ayatollah-wanna-be’s were nutty and anti-democratic, and one of the first actions carried out by the neocons when they finally assumed dominant power in the George W Bush administration was to remove the fundamentalists, including the most visible of the culture warriors, Attorney General John Ashcroft (who famously covered up the bare-breasted statue of Justice in his building because it was ungodly).

        Progressives also tend to mistakenly attribute an actively pro-corporate agenda to the neocons; in reality, none of the neocons were corporate officers (unlike the political leadership in both the Republican and Democratic Parties who set up the WTO structure in the first place), and they had no interest in representing or defending corporate interests—indeed, the intensely nationalistic neocon agenda of unilateral American hegemony was diametrically opposed to the interests of the supra-national corporations, who were now active all over the world and no longer had any “American interests” to defend. The neocon agenda focused almost entirely on military and foreign policy; in their writings, the words “free trade”, “World Trade Organization”, “World Bank” or “free market” barely appear at all—and when they do, it is only to discuss their utility as instruments of American military and political power.

        It is also incorrect to identify the neocons with the Republican Party—most of them began their political careers as Democrats.

  •  Judge part-owner of GOP PR firm (7+ / 0-)

    Judge who ruled against Health Care Reform? http://gaw.kr/... Part-owner of GOP PR firm which worked AGAINST Health Care Reform

    http://twitter.com/...

    So it goes...

    Here we are now Entertain us I feel stupid and contagious

    by Scarce on Mon Dec 13, 2010 at 01:33:59 PM PST

  •  A whackjob judge rules for the (2+ / 0-)
    Recommended by:
    TexasTom, blue aardvark

    whackjob argument.  Quell Surprise!  And now it gets to be appealed to that congregation of Whackjobs, the 4th Circuit.

    The opportunities for bs and spin are gigantic.  But the case and the argument the judge used aren't worth anything.  I fart in their general direction.

    •  So, don't appeal (7+ / 0-)

      Obama should let the ruling stand. No mandate but the rest of ACA is in force.

      Watch AHIP emit a brick.

      In theory, there is no difference between theory and practice; but in practice, there always is a difference. - Yogi Berra

      by blue aardvark on Mon Dec 13, 2010 at 01:41:32 PM PST

      [ Parent ]

      •  You need to head to Washington (3+ / 0-)

        and give some political strategy to the Dems up there since no one else apparently is. The Dems should stay out of this and let the insurance companies fight the battle. Pairing up with them to try to cram mandates down Americans' throats is a loser from the get go.

        "Whenever a fellow tells me he's bipartisan, I know he's going to vote against me."-- Harry S. Truman

        by irmaly on Mon Dec 13, 2010 at 01:53:13 PM PST

        [ Parent ]

      •  heh, yes. there is opportunity here (0+ / 0-)

        must not spam thread.must not spam thread.must not spam thread.must not spam thread.

        by Krush on Mon Dec 13, 2010 at 02:17:21 PM PST

        [ Parent ]

      •  Not sure this is an option (0+ / 0-)

        Obama should let the ruling stand. No mandate but the rest of ACA is in force.

        I seem to recall having read more than once that there is no severability clause in the healthcare legislation.  If true, that means that if the mandate goes, so does the rest of the bill.  It seems like a pretty major screw up on the part of the legislators who wrote and assembled the thing.

        (I generally support the reform -- it's not everything I wanted, but it's enough to be worth having.  So I definitely don't want to see it all get tossed out.)

        Political Compass: -6.75, -3.08

        by TexasTom on Mon Dec 13, 2010 at 07:24:15 PM PST

        [ Parent ]

  •  SCOTUS (4+ / 0-)
    Recommended by:
    jdmorg, LordMike, agent, Matt Z

    You know - I really wouldn't trust SCOTUS.  If this decision makes it there, you can bet Roberts, Alito, Thomas and Scalia will be for declaring it Unconstitutional.

    That leaves Kennedy as the only hope.

    Remember -  this is the crowd that gave us Citizens United.

    The object of persecution is persecution. The object of torture is torture. The object of power is power. --George Orwell

    by jgkojak on Mon Dec 13, 2010 at 01:34:43 PM PST

  •  Too bad. (9+ / 0-)

    Stripping the mandates would make it a better law.

    •  Stripping the mandates... (1+ / 0-)
      Recommended by:
      IPLawyer

      ...would make it fall apart.  Aside from the apparent absence of severability clause in the law, without a mandate, the "good stuff" (such as banning discrimination against those with preexisting conditions) really can't work.

      Political Compass: -6.75, -3.08

      by TexasTom on Mon Dec 13, 2010 at 07:25:44 PM PST

      [ Parent ]

      •  That's OK. Let it fall apart. (0+ / 0-)

        Romneycare was dangerous corporatist bullshit anyway.  Since it doesn't actually improve health care or make things cheaper for people... to hell with it.  Maybe if things fall apart we'll get the higher-quality health care we deserve.  Better, cheaper health care is available in Mexico, for goodness' sake.

        Read pp. 1-7 of Krugman's _The Great Unraveling_ (available from Google Books). NOW.

        by neroden on Mon Dec 13, 2010 at 07:59:41 PM PST

        [ Parent ]

  •  so the dKos talking point today is: (10+ / 0-)

    Obama's HCR was all good.

    I remember a time when there was a pretty vigorous debate here about the HCR proposal. As I recall a great many people here were very skeptical of it.

    But now this site has become so reactionary. If a Tea Partier is against something (TSA pat-downs, individual mandate), we have to be for it.

    To defend Obama? To be progressive? Which apparently to front page diarists here really just means "the opposite of what Republicans want today?"

    I think this judge may have done the nation a huge favor.

    •  Yeah (0+ / 0-)

      Just showed that you can both rule on a case and campaign against what you are ruling on as a federal judge.

      Hey you, dont tell me theres no hope at all Together we stand, divided we fall.

      by marcvstraianvs on Mon Dec 13, 2010 at 01:36:22 PM PST

      [ Parent ]

    •  Actually, the court didn't rule (7+ / 0-)

      on the case of "good versus bad." It was whether the legislation was unconstitutional and specifically unconstitutional under the commerce or taxation powers.  Understood as such, this was a pretty conservative -- and aggressive -- ruling.

      "This world demands the qualities of youth: not a time of life but a state of mind[.]" -- Robert F. Kennedy

      by Loge on Mon Dec 13, 2010 at 01:38:28 PM PST

      [ Parent ]

    •  we have ALWAYS been at war with Oceania (14+ / 0-)

      (snicker) (giggle)

      The very idea of mandated insurance was stupid.  It's like "solving" the homeless problem by forcing people to buy houses.

      It not only helps no one but the insurance companies, but it kills what was a core Democratic principle for half a century--health care is a RIGHT, not a commodity to be be bought and sold like soap or corn flakes--and it is the government's DUTY to provide everyone with health care.

      Instead, we sold our balls to the insurance lobby, passed a twenty-year old Republican proposal, and now declare that it's the best thing Dems ever did.

      Silly.

    •  a lot of people here invested a lot of energy (0+ / 0-)

      and time into HCR. it was supposed to be a hallmark of the Democratic majority. hard to let go of the dream and actually you don't have to, just this incarnation of the dream is defunct.

      And the Democrats are trying to defund it.

      So I don't know what the obession is with keeping it alive here.

      must not spam thread.must not spam thread.must not spam thread.must not spam thread.

      by Krush on Mon Dec 13, 2010 at 01:43:25 PM PST

      [ Parent ]

      •  The obsession... (1+ / 0-)
        Recommended by:
        IPLawyer

        ... at least for me, is on the implications of these sorts of readings of the Commerce and the Necessary + Proper clauses  of the constitution.

        There is an ascendant judiciary that is trying to unravel constitutional protections and powers that have been recognized for over a hundred years.

    •  there was never any significant support here (2+ / 0-)
      Recommended by:
      TexasTom, J M F

      claiming it was unconstitutional.

      people here know how to have a rational argument, regardless of their beliefs or agenda even

      Julian Assange revealed the identity of my Secret Santa.

      by eXtina on Mon Dec 13, 2010 at 01:46:03 PM PST

      [ Parent ]

      •  It is unconstitutional without a valid public (2+ / 0-)
        Recommended by:
        neroden, judyms9

        option.

        But no would say that because it happens to be a talking point of the right-whose main agenda is to make sure people keep voting for them, and so they demonize the hell out of their opponent. They also said that Obama was going to force people to have abortions and all kinds of ridiculous things.

        must not spam thread.must not spam thread.must not spam thread.must not spam thread.

        by Krush on Mon Dec 13, 2010 at 01:54:30 PM PST

        [ Parent ]

        •  I pretty much agree (4+ / 0-)
          Recommended by:
          Elmo Buzz, neroden, Krush, tnproud2b

          I think it unconstitutional for the govt to force people to buy a private for-profit product under penalty of law, without a govt-funded alternative.  Even in auto insurance, states like Florida have Citizens Insurance where people who can't get private insurance can still drive.

          And of course the crucial difference between mandated health insurance for everyone ,and mandated insurance for drivers, is that people have a choice to drive or not--they don't have a choice to breathe or not.

          There is a reason why the Repugs proposed mandates 40 years ago and Dems OPPOSED mandates for 40 years.

          We seem to have forgotten those reasons, now that the Dems have sold us out and abandoned their own party's principles.

          •  I am appreciative at least that they (1+ / 0-)
            Recommended by:
            neroden

            are attempting to defund it. But the Republicans want this monster alive because it does make the Democrats look bad.

            must not spam thread.must not spam thread.must not spam thread.must not spam thread.

            by Krush on Mon Dec 13, 2010 at 02:11:13 PM PST

            [ Parent ]

    •  I'm with you. (4+ / 0-)

      I certainly haven't changed my position. The mandates were a loser from the start.

      "Whenever a fellow tells me he's bipartisan, I know he's going to vote against me."-- Harry S. Truman

      by irmaly on Mon Dec 13, 2010 at 01:54:56 PM PST

      [ Parent ]

    •  I think there's a difference between (5+ / 0-)
      Recommended by:
      Pd, TexasTom, Krush, Matt Z, AZphilosopher

      "the mandate is a bad idea" and "the mandate is unconstitutional." I don't recall anyone here saying the latter, although I could be wrong.

      Fight until we win. Then we can begin arguing about the details. - Kwickkick (RIP) 2009

      by RickMassimo on Mon Dec 13, 2010 at 02:10:17 PM PST

      [ Parent ]

      •  Well I am saying it now (3+ / 0-)

        The mandate is unconstitutional without a public option.

        And it is not a right wing talkingpoint. The rightwingers would say the public option is unconstitutional because thats socialism, whine,

        must not spam thread.must not spam thread.must not spam thread.must not spam thread.

        by Krush on Mon Dec 13, 2010 at 02:19:47 PM PST

        [ Parent ]

        •  Point to the specific... (3+ / 0-)
          Recommended by:
          Krush, RickMassimo, CalliopeIrjaPearl

          ...part of the constitution that makes this law "unconstitutional."

          •  here: (2+ / 0-)
            Recommended by:
            Elmo Buzz, Cartoon Messiah

            Section 8

            The Congress shall have power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

            The healthcare mandate via the current hcr bill is not uniform. at all.

            Depending on where you live, and the type of healthcare you can procure, the costs vary too widely.

            I am all for the gov. healthcare. In fact, this article also defends it. But it has to be fair.

            must not spam thread.must not spam thread.must not spam thread.must not spam thread.

            by Krush on Mon Dec 13, 2010 at 03:18:48 PM PST

            [ Parent ]

      •  I do recall it (2+ / 0-)
        Recommended by:
        Elmo Buzz, RickMassimo

        In fact I may very well have made that argument myself, since I do think that a mandate without a public option is absolutely unconstitutional--as is ANY attempt to force people to buy a private product from a for-profit company.

        It chills me that "progressives" would ever support, much less propose, such a thing.

        •  How is it unconstutional? (2+ / 0-)
          Recommended by:
          RickMassimo, IPLawyer

          I hear a lot of libertarian types going on and on about it, but I have yet to read any even vaguely convincing argument.

          This seems to me a very clear-cut case of congress exercising its powers under both the commerce clause and the necessary and proper clause.

          The judge was only able to come to this ruling by a gross (and willful IMHO) misreading of the constitution followed by blindly ignoring over a hundred years of settled law.

          This doesn't stand a chance of surviving appeal and if it does then it may well represent the most dramatic legal reinterpretation of the constitution in our Nation's history.

          •  let me ask you . . . (2+ / 0-)
            Recommended by:
            Elmo Buzz, neroden

            If Congress were to pass a law tomorrow mandating that everyone in the US has to buy a new car tomorrow or pay a fine (to help the economy, let us say), would that be, in your view, constitutional, under its authority to "regulate commerce"?

            I think a privacy argument could be made under the constitution---how I spend my money is my business, not Congress's.  There is also the whole "equal protection under the law" thing--when Congress forces us to buy the product of a particular for-profit industry, then there is no longer equality under the law--someone now enjoys official government-granted privilege.

            I find it fascinating that you do not see any cConstitutonal problems with the govt forcing people to buy the product of a particuklar for-profit industry.

            Would your view change if it were, say, the Bush Administration passing a law mandating that everyone buy a handgun (for "self-protection")?

            •  If an "official government-granted privilege" (0+ / 0-)

              were the test of an Equal Protection violation, then progressives sure would be in trouble, wouldn't we?

              As for the government not being able to get involved in how you choose to spend your money, the individual economic rights doctrine was tried and failed early last century -- and it slowed a lot of New Deal legislation in the process.

              •  perhaps, perhaps not (1+ / 0-)
                Recommended by:
                neroden

                After all, the Supreme Court invalidated LOTS of the New Deal as unconstitutional--until FDR played hardball and threatened to pack the court in his favor.

                But I notice no one answered my questions:  If the US were to pass a law tomorrow requiring everyone in the US to buy a new car or pay a fine, would that, in your view, be constitutional?

                How about if Dubya had passed a law mandating everyone in the US to buy a handgun (for "protection from terrorists).  Would that, in your view, be consitutional?

                •  Depends. (0+ / 0-)

                  Does Congress have a rational basis for believing that those activities, in the aggregate, have a substantial effect on interstate commerce?  The answer to that question determines the law's constitutionality under the Commerce Clause.

                  What you're trying to do is create unpopular hypotheticals in order to show that something is unconstitutional.  You can take anything to such an extreme; that doesn't mean it's outside Congress's power.  I think a 99% flat rate income tax would be absurd, but that doesn't mean that Congress doesn't have the power to issue income taxes.  I think that opening five new post offices in Prudhoe Bay, Alaska would be absurd, but that doesn't mean that Congress doesn't have the power to establish post offices.  Political reasons for opposing a law are different from the constitutional reasons for opposing it.

          •  According to what I'm reading ... (3+ / 0-)

            ... the thing is that the judge ruled that the mandate can be severed from the rest of the ACA. Apparently, Democrats, because they're, you know, Democrats, didn't put in a standard "severability" clause saying that if one part of the act is found unconstitutional it doesn't mean the whole bill gets thrown out. But this judge, even while ruling against the mandate, says that it is severable.

            Links here and here.

            I also think this is overblown. Republicans are doing a victory lap, but that's just because they haven't yet gotten the phone calls from their insurance-industry bosses saying "The mandate is the only part of the ACA we like. Stop messing with it." Which they dutifully will.

            Fight until we win. Then we can begin arguing about the details. - Kwickkick (RIP) 2009

            by RickMassimo on Mon Dec 13, 2010 at 02:51:08 PM PST

            [ Parent ]

    •  You've got to be joking...! (1+ / 0-)
      Recommended by:
      IPLawyer

      I think this judge may have done the nation a huge favor.

      Even if you don't like the healthcare reform legislation, this judge's decision would be a disaster for progressives if it is allowed to stand.

      It would lead to a dramatic narrowing of what the federal government can do under the commerce clause -- which, in turn, would give conservative judges open season on all manner of progressive programs that they don't like.  

      Political Compass: -6.75, -3.08

      by TexasTom on Mon Dec 13, 2010 at 07:29:03 PM PST

      [ Parent ]

      •  You understand. (1+ / 0-)
        Recommended by:
        TexasTom

        The rationalization that this judicial opinion would be limited to federal laws requiring individuals to purchase products from for-profit entities in a market that lacks a public option is wishful thinking, and incredibly short-sighted.

        In fact, folks on both the left and the right rely on a broad reading of the Interstate Commerce Clause a lot more than they'd like to admit.  Thank you for recognizing that.

  •  Vinson will be ruling soon too right? (1+ / 0-)
    Recommended by:
    Pluto

    He'll probably vote along Hudson too

  •  Limiting the Commerce Clause (5+ / 0-)
    Recommended by:
    polecat, TexasTom, J M F, IPLawyer, Loge

    will have some definite reverberations if allowed to stand.

    Hey you, dont tell me theres no hope at all Together we stand, divided we fall.

    by marcvstraianvs on Mon Dec 13, 2010 at 01:35:32 PM PST

    •  Yes, this is awful! (2+ / 0-)
      Recommended by:
      TexasTom, neroden

      The Commerce Clause is the only thing that allows, nay, even commands our Government to do infinite good for us. We should hope this awful decision is struck down so that there are no limits on the powers of our elected officials to regulate all aspects of our lives for our own good!

    •  Thank you... (0+ / 0-)

      ...for bringing some sanity to the comments in this diary.

      It's horrifying to see how many folks on DKOS are willing to overlook the broader implications of this court decision because they dislike the healthcare reform bill.

      Political Compass: -6.75, -3.08

      by TexasTom on Mon Dec 13, 2010 at 07:31:32 PM PST

      [ Parent ]

  •  One judge who has financial ties with the case (4+ / 0-)

    said that it was unconstitutional while 14 other judges either threw the case out or said that it was constitutional and the media is making a big deal out of this one judge.

    The MSM is crazy.

    Jim Manley: "Republicans are making love to Wall Street, while the people on Main Street are getting screwed."

    by Drdemocrat on Mon Dec 13, 2010 at 01:35:55 PM PST

  •  Jed, You missed one part of story (5+ / 0-)

    the part where Cuccinelli paid Hudson's consulting firm before Hudson gave Cuccinelli the decision he wanted.

    None Dare Call It Bribery

    Campaign Solutions was instrumental in the launching of Sarah Palin's PAC (though Palin has since split with the firm), and Ken Cuccinelli, the Virginia attorney general who filed the lawsuit that Hudson ruled in favor of today, paid Campaign Solutions $9,000 for services rendered in 2010.

    Someone get the big book of judicial ethics to see if it's ok to rule on cases involving people who pay your company.

    If only impeaching Henry Hudson were on the table.

    The Republican Party isn't a party of small government, it's a party of a government for the few. @bhindepmo

    by RBH on Mon Dec 13, 2010 at 01:36:04 PM PST

  •  Some of those dismissals (9+ / 0-)

    cited by the White House were almost certainly not on the merits.  Suits against individual senators and the entire Senate?  An Orly Taitz special? Suits against the OMB, and suits that have the names of tea party groups in the name? (I'm just assuming they were not the sharpest of plaintiffs.) The point could have been made just by just discussing the Michigan and New Jersey cases.

    "This world demands the qualities of youth: not a time of life but a state of mind[.]" -- Robert F. Kennedy

    by Loge on Mon Dec 13, 2010 at 01:36:35 PM PST

  •  Now is the time for Obama to REALLY (5+ / 0-)

    mess with their minds.

    And not appeal this decision.

    Which means the mandate is gone, and there is no opportunity for a higher court (e.g., the probably salivating Roberts activist SCOTUS) to throw out the whole thing because of the mandate.

    The mandate is gone, the rest remains, and AHIP is left facing the possibility of people waiting until they get sick to purchase insurance.

    Thereby driving up costs.

    Thereby increasing the percentage of people who wait until they get sick to purchase insurance.

    Wash; rinse; repeat.

    Sooner or later the public demands the public option or Medicare for all. Which won't matter. But sooner or later the large corporations also demand an alternative to AHIP.

    In theory, there is no difference between theory and practice; but in practice, there always is a difference. - Yogi Berra

    by blue aardvark on Mon Dec 13, 2010 at 01:36:52 PM PST

  •  But can we really trust those 14 judges? (6+ / 0-)

    None of them have any skin in the game like Hudson does.

  •  I am with the bagges on this one (8+ / 0-)

    although the reason is totally different. I wouldn't have minded a mandate but it would have had to be legally coupled with some form of single payer.

    Re this one rulingI don't see much here to celebrate or to be pissed off about to be honest.

    Sanctimonious, Self Satisfied, Liberal and Proud.

    by stevej on Mon Dec 13, 2010 at 01:37:20 PM PST

    •  baggers even (1+ / 0-)
      Recommended by:
      two roads

      Sanctimonious, Self Satisfied, Liberal and Proud.

      by stevej on Mon Dec 13, 2010 at 01:41:44 PM PST

      [ Parent ]

    •  I quite agree (4+ / 0-)

      The big gripe I had with HCR was the mandates---the rest of the bill had some pretty good things (like no more dropping people who get sick).  As I put it back then, the bill had some good raisins, but they were embedded in a big shit muffin (the mandates).  So we should keep the raisins and throw away the shit muffin.

      Fortunately, that may now happen.

      And as I said back then, I'm not buying any "mandated" insurance--the corporados are not getting one nickel of my money. And if the Dems want to arrest me for that, go right ahead--at least in jail I'll be able to get free fucking health care. Unless the Dems are gonna mandate that the prisoners have to pay for it too.

      •  The problem is that if you mandate the (0+ / 0-)

        other forms of reform but you let people stay outside of the system, you will exacerbate the HC access problem since premiums will rise.

        Medicare buy in is the easiest way to go.

        "Raise your hand if you think Social Security and Medicare are Socialism."-Lawerence O'Donnell

        by AZphilosopher on Mon Dec 13, 2010 at 02:19:11 PM PST

        [ Parent ]

        •  single payer is the best way to go (2+ / 0-)
          Recommended by:
          Cartoon Messiah, AZphilosopher

          but alas the Dems have given up on that.  They no longer view health care as a right and not a privilege.

          As for premiums going up, that is why any effective HCR required COST CONTROL---let the goddamn insurance companies justify their rate increases to a public commission just like the electric company has to do.

          Mandating that we BUY insurance while at the same time guaranteeing that we cannot control the PRICE of that mandated insurance, guarantees that our costs will go up and up and up (and so will corporate profits)--and there's nothing we can do about, not even refuse to BUY the shit.

          Mandates are a losing idea, all around.  That's why the Dems were always AGAINST them--until we lost our balls.

          But I do think you are right--Medicatre buy-in (with large subsidies for the non-wealthy) is the best of all the remaining options.

          Of course the Dems don't have the balls to fight for it--as they already proved by NOT fighting for it.

  •  Breaking! dKos launches DoS attack on volokh.com (0+ / 0-)

    And y'all thought we didn't have power.

  •  Argh stop it (4+ / 0-)
    Recommended by:
    Pluto, naus, davidseth, RickMassimo

    Justice isn't a matter of how many partisan trial court judges rule which way. That is a slander upon our judicial system. It's a matter of how many partisan Supreme Court justices rule which way. That is the majesty of the law.

  •  I think the Judge is right (8+ / 0-)

    I think it is unconstitutional the way its written.  With the inclusion of a Public Option it might pass muster, but I don't think there is constitutional authority to pass a law requiring one to contract with private parties.

    "Play it LOUD Robbie, Play it fucking loud" Dylan

    by NearlyNormal on Mon Dec 13, 2010 at 01:38:39 PM PST

  •  Today's GOP could care less that this plan (2+ / 0-)
    Recommended by:
    Kimball Cross, eXtina

    was hatched by the GOP of yesterday. That would require logical progression of a genuine ideology of some kind.
    They may be celebrating a bit too early about the demise of HIR as it is currently wrought, but they'll keep the wrecking balls busy in the meanwhile.

  •  Activist Judge, Legislating from the bench !!!!!! (2+ / 0-)
    Recommended by:
    LordMike, TomBayes

    Oh Sorry, since is was a law passed by congress that the Republicans don't approve of I guess it doesn't apply

    "Now watch what you say or they'll be calling you a radical, a liberal, a fanatical criminal" -- Logical Song -- Rick Davies & Roger Hodgson

    by Over50Lib on Mon Dec 13, 2010 at 01:42:02 PM PST

  •  Orly Taitz ROFLCOPTER n/t (1+ / 0-)
    Recommended by:
    Kimball Cross
  •  All it takes is one.... (2+ / 0-)
    Recommended by:
    chuckvw, naus
    ...amd the US Supreme Court has already made up its mind.

    British Petroleum: I think that means it's foreign oil.

    by Bensdad on Mon Dec 13, 2010 at 01:44:50 PM PST

  •  This from Talking Points Memo (2+ / 0-)
    Recommended by:
    Kimball Cross, MartyM

    "....the judge who declared part of the Health Care law unconstitutional today? He's a part owner of a GOP consulting firm that among other things represents Boehner, Bachmann, McCain and others who've spent the last two years arguing that reform was unconstitutional."

  •  14 judges irrelevant (4+ / 0-)
    Recommended by:
    Aspe4, Pluto, Cartoon Messiah, jds1978

    It will be appealed up to SCOTUS.  How will they rule, I wonder?

    Good luck rallying public support for the mandate.  Medicare for all would have obviated so many of these problems... of which this is only the first.

    www.bushwatch.net - Kicking against the pricks since '98!

    by chuckvw on Mon Dec 13, 2010 at 01:45:32 PM PST

  •  "Great day for liberty?" (0+ / 0-)

    Why, did something else happen?  Hatch surely couldn't have been referring to this.

    Why do Republicans cheer on anything that hurts the common man?  I mean, I get it that they don't give a shit about anybody but the rich, but why do they get off treating everyone else like some mean kid burning ants?

    "Glenn Beck ends up looking like a fat, stupid child. His face should be wearing a chef's hat on the side of a box of eclairs. " - Doug Stanhope

    by Front Toward Enemy on Mon Dec 13, 2010 at 01:46:39 PM PST

  •  thx you for diary n/t (0+ / 0-)

    My view is DC and the regulators are there to serve the banks. * Rep. Bachus R-AL

    by anyname on Mon Dec 13, 2010 at 01:48:00 PM PST

  •  Can't let those Democrats look good! (nt) (0+ / 0-)

    I support our President

    by ScottyUrb on Mon Dec 13, 2010 at 01:48:20 PM PST

  •  Taitz v. Obama - dismissed 4/14/10 (1+ / 0-)
    Recommended by:
    Kimball Cross

    What, Taitz failed?

    Never saw that one coming, never never.

    s

  •  You got that right. (7+ / 0-)

    this would be a wise time for defenders of health care reform to start fighting for a public option

    Top 1% of all income earners in the US made 23.5% of all income. Let's give them 23.5% representation & disallow contact w/ the other 76.50% of representati

    by gooderservice on Mon Dec 13, 2010 at 01:48:40 PM PST

    •  And also right about this (4+ / 0-)
      Recommended by:
      irmaly, lysias, gooderservice, J M F

      Nonetheless, this would be a wise time for defenders of health care reform to start fighting for a public option, otherwise the entire reform debate will focus on this court case. And in addition to the political reasons, there's a legal rationale: a public option, such as Medicare buy-in, would make the legal case moot.

      The system won't stand, anyway, because the the profound conflict of interest between the for-profit insurer and those in need of health care.

      The whole thing will be a law-enforcement issue against insurer-parasites, ultimately. A waste of health care dollars.

      •  Oh, I have no doubt that the system will stand. (1+ / 0-)
        Recommended by:
        Pluto

        If I understand your comment correctly.

        When Obama stands there and says that some people wanted the public option in the bill, and then says which would only help a couple million people, I don't think I'm allowed to write on this blog what I yelled, screamed at him on the teevee.

        What a piece of... something.  I'm so frackin stupid.  I have never been taken in by a politician and fooled as much as I've allowed him to fool me.

        Although I was critical of many of his actions and inactions, I still truly, truly believed he had it him in to be a great leader.  I was so, so wrong.

        The FP story had it right, it made the most sense to me, he's a mediator.   In fact, I commented that he would be best as a judge, that's what he's best suited for.  Someone led him astray to think that he could be a good president.  I wonder who that was.  Or if it was all his idea, then he was naive as to what the president's job is.

        Top 1% of all income earners in the US made 23.5% of all income. Let's give them 23.5% representation & disallow contact w/ the other 76.50% of representati

        by gooderservice on Mon Dec 13, 2010 at 02:29:59 PM PST

        [ Parent ]

  •  Jost's view of the Commerce Clause is that of (3+ / 0-)
    Recommended by:
    LordMike, Ice Blue, J M F

    the New Deal, Warren, and Burger courts.  It was not the view of pre-New Deal Supreme Courts (which is why the Supreme Court struck down so many early New Deal programs before FDR appointments changed the court).  It was significantly limited by the Rehnquist Court in decisions like Lopez.  And we may well see a further limitation by the Roberts Court.

    Whether such limitation will go so far as to strike down the health care mandate, remains to be seen.  But I wouldn't call the result obvious before they decide.

    The influence of the [executive] has increased, is increasing, and ought to be diminished.

    by lysias on Mon Dec 13, 2010 at 01:50:11 PM PST

    •  My favorite decision... (1+ / 0-)
      Recommended by:
      lysias

      Wickard v. Filburn got to the Supreme Court, and in 1942, the justices unanimously ruled against the farmer. The government claimed that if Mr. Filburn grew wheat for his own use, he would not be buying it — and that affected interstate commerce. It also argued that if the price of wheat rose, which is what the government wanted, Mr. Filburn might be tempted to sell his surplus wheat in the interstate market, thwarting the government's objective. The Supreme Court bought it.

  •  Go judge shopping long enough...... (3+ / 0-)
    Recommended by:
    Ice Blue, Kimball Cross, eXtina

    ..and you're bound to find an idiot who thinks this will get him a seat on the Supreme Court when the teabaggers take over.

    The president wants to take a reverse mortgage out on Social Security.

    by Bush Bites on Mon Dec 13, 2010 at 01:50:23 PM PST

  •  The Judge Should Have Recused Himself (5+ / 0-)

    http://gawker.com/...

    What the hell kind of country allows a sitting judge to own a piece of a lobbying firm in the first place?  Doesn't that seem like a violation of Ethics 101?

    Regulate banks, not bedrooms

    by Eagleye on Mon Dec 13, 2010 at 01:51:23 PM PST

  •  Eh, it's the "process" (1+ / 0-)
    Recommended by:
    Clarknt67

    don'tcha know. We can't get all upset when rights are taken away like this because we need to let the process play itself out.

    /bitter

  •  This makes the case for a public option. (7+ / 0-)

    The judge (Hudson) also said

    Neither the Supreme Court nor any federal circuit court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market.

    He also refused to issue an injunction preventing the implementation of the law, and ruled that the unconstitutional parts of it could be severed from the whole.
    This is pretty-much a billboard saying "it needs an alternative to the private market (i.e. public option) to be constitutional.

    •  Good luck with that. (1+ / 0-)
      Recommended by:
      IPLawyer

      The president wants to take a reverse mortgage out on Social Security.

      by Bush Bites on Mon Dec 13, 2010 at 01:55:15 PM PST

      [ Parent ]

      •  Exactly. (0+ / 0-)

        One thing we know for sure, is that the new law is economically unsustainable if you remove the mandate and leave in the rest.  That leaves us with the following options:

        1.  Congress enacts a better provision to fill the hole left by the mandate -- for example, public option or single payer.
        1.  Congress repeals the remaining components of the new law and we go back to where we were in 2009.

        Which do you think is more likely with the incoming Congress?

  •  The issue will be decided by (6+ / 0-)
    Recommended by:
    greendem, irmaly, lysias, Pluto, naus, J M F

    The Supreme Court.  I think it unwise for the OP to think that a conservative court which wants to whittle down the Commerce Clause will not agree with this judge in Virginia.

    I hope that the mandate is found to be unconstitutional.  I'm no expert but it seems fundamentally unfair to require people to pay an inflated price for health care because of the cost of the middleman, the insurance companies, which use 20 % of the premium dollar for executive bonuses, lear jets, lobbying, and other non-medical related expenses.  I know that I will resent being forced by law to pay these thieves, and I will be reminded every time I write a check to the insurance companies of Obama's complete utter sell-out.  The law is an "INsurance Company Profits Protection Act" and constitutes another bail out of an industry that should have died a horrible death.

  •  Most judges are political hacks. (0+ / 0-)

    At least that's what I've seen in Connecticut.  They're lawyers who kiss up to politicians and get appointed to jobs they're unqualified to hold.  The Republican Party grooms extreme right lawyers for jobs on Federal Courts.  That's how we got all those horrible rightwing appointments that are sitting on the S.C. now.  

    •  Is this somehow surprising? They are elected or (0+ / 0-)

      appointed by elected officials...

      That's how judges have ALWAYS been for hundreds of years.

      Of course they're going to be partisan hacks.

      •  Sorry, but it is surprising. (0+ / 0-)

        I wasn't born cynical.  I became cynical after seeing the evidence.  It's not only that they're partisan, some of them are also incompetent and crazy.  That's why I never wanted to sit on a jury.  

    •  I do point out . . . (1+ / 0-)
      Recommended by:
      TomBayes

      Back when the Dover creationism-intelligent design case went to trial in Pennsylvania, it went before a Dubya appointee, and many people I knew were moaning and griping about it even before the trial began.  Imagine their surprise when the judge not only ruled against the nutters, but eviscerated their entire reason for existing.

      This whole "Dubya appointed him so of COURSE he's against us" is simplistic and silly.

      If the judge had ruled in FAVOR of usd, and the wingnuts were all declaring him to be a "liberal activist judge", would we take THEM seriously?

      It's just partisan patter on our part, no different from the partisan patter on their part.

  •  From TPM via Gawker:Judge Who Ruled Health Care.. (1+ / 0-)
    Recommended by:
    CalliopeIrjaPearl

    ... Reform Unconstitutional Owns Piece of GOP Consulting Firm

    Henry E. Hudson, the federal judge in Virginia who just ruled health care reform unconstitutional, owns between $15,000 and $50,000 in a GOP political consulting firm that worked against health care reform. You don't say!

    As the Huffington Post and others first noted last July, Hudson's annual financial disclosures show that he owns a sizable chunk of Campaign Solutions, Inc., a Republican consulting firm that worked this election cycle for John Boehner, Michele Bachmann, John McCain, and a whole host of other GOP candidates who've placed the purported unconstitutionality of health care reform at the center of their political platforms. Since 2003, according to the disclosures, Hudson has earned between $32,000 and $108,000 in dividends from his shares in the firm (federal rules only require judges to report ranges of income)....

    "WE are the media we've been waiting for." - Kat 4 Obama

    by Kat 4 Obama on Mon Dec 13, 2010 at 02:01:27 PM PST

  •  Best justice money can buy (2+ / 0-)
    Recommended by:
    trinite, CalliopeIrjaPearl

    In the sea, Biscayne, there prinks
    The young emerald evening star,
    Good light for drunkards, poets, widows,
    And ladies soon to be married.

    by looty on Mon Dec 13, 2010 at 02:02:22 PM PST

  •  The Media Sucks. That's my ruling. (1+ / 0-)
    Recommended by:
    Matt Z
  •  sigh (1+ / 0-)
    Recommended by:
    Cartoon Messiah

    I was really looking forward to being required to pay United Healthcare some money. I guess I'll have to do something else with it now. . .

    "Maybe you'll find happiness in your sight shopping heaven and earth"

    by citizen4truth on Mon Dec 13, 2010 at 02:04:35 PM PST

    •  because of the lack of a severability (1+ / 0-)
      Recommended by:
      CalliopeIrjaPearl

      clause in the final bill, if the mandate is overturned by SCOTUS it is quite likely that everything in the law -- the exchange, pre-existing conditions ban, Medicare expansion -- will go by the wayside.

      So be careful what you wish for.

      In the sea, Biscayne, there prinks
      The young emerald evening star,
      Good light for drunkards, poets, widows,
      And ladies soon to be married.

      by looty on Mon Dec 13, 2010 at 02:09:51 PM PST

      [ Parent ]

  •  All it takes is one to get it to (0+ / 0-)

    SCOTUS, right?  If that?

    "Senator McCain offered up the oldest Washington stunt in the book - you pass the buck to a commission to study the problem." - Senator Obama, 9-16-2008

    by justmy2 on Mon Dec 13, 2010 at 02:06:20 PM PST

  •  Shorter Orrin Hatch: (2+ / 0-)
    Recommended by:
    Matt Z, AZphilosopher

    I was for the individual mandate because A Bad Person wanted something else.

    Fight until we win. Then we can begin arguing about the details. - Kwickkick (RIP) 2009

    by RickMassimo on Mon Dec 13, 2010 at 02:08:29 PM PST

  •  There's also the Federalist Society. (0+ / 0-)

    A far rightwing group that helped develop people like Alito for his future job.  They had a meeting shortly after the election, and it was shown on C-Span.  It was very frightening.  Mike Pense was speaking, and I think they're grooming him for bigger things.  Pence sounds more like a righteous preacher than a politician.  These people are very dangerous ideologues.  

  •  individual mandate sucks (3+ / 0-)

    constitutional or  not.

    New improved bipartisanship! Now comes in a convenient suppository!!! -unbozo

    by Unbozo on Mon Dec 13, 2010 at 02:11:28 PM PST

  •  jed is wrong about one thing, though . . . (2+ / 0-)
    Recommended by:
    Cartoon Messiah, Mister Peabody
     
    Nonetheless, this would be a wise time for defenders of health care reform to start fighting for a public option, otherwise the entire reform debate will focus on this court case. And in addition to the political reasons, there's a legal rationale: a public option, such as Medicare buy-in, would make the legal case moot.

    The wisest time to fight for the public option was back when the Dems decided NOT to fight for it. Or even introduce it.

    Spineless cowards.

  •  Let's just try to keep the bill intact (0+ / 0-)

    I want a public option. Hell, I want a single-payer system. I want the insurance companies broken up. But all I'm worried about now is PPACA surviving the showdown over the debt ceiling. Why shouldn't the Republicans take that hostage to score their biggest coup yet?

    It is better to light one candle than to curse the darkness - Eleanor Roosevelt

    by Fish in Illinois on Mon Dec 13, 2010 at 02:19:42 PM PST

  •  meh.. each side has dozens of "experts".. (0+ / 0-)

    The fact that there are so many so-called experts, all whom have very distinguished degrees and resumes, who disagree on the Constitutionality of the mandate does not give me much confidence when listening to either argument.

    It needs to get to SCOTUS.. soon.

  •  TPM: judge owns stake in anti-HCR pr firm!!! (0+ / 0-)

    what an asshole.:

    Federal judge Henry E. Hudson's ownership of a stake worth between $15,000 and $50,000 in a GOP political consulting firm that worked against health care reform -- the very law against which he ruled today -- raises some ethics questions for some of the nation's top judicial ethics experts. It isn't that Hudson's decision would have necessarily been influenced by his ownership in the company, given his established track record as a judicial conservative. But his ownership stake does create, at the very least, a perception problem for Hudson that could affect the case.

    I ♥ President Barack Obama.

    by ericlewis0 on Mon Dec 13, 2010 at 02:26:46 PM PST

  •  Damn (1+ / 0-)
    Recommended by:
    trinite

    I was (and still am) looking forward to 0bamacare requiring that all Republicans get a weekly Colonoscopy.

    haha  - or - totally serious. Your choice.

    With money, all things are possible. <---- me

    by that sucking sound on Mon Dec 13, 2010 at 02:26:48 PM PST

  •  How the mandate was done is the problem (0+ / 0-)

    Law should have increased everyone'S taxes by the penalty amount.  Then give a credit if you have insurance.

    Economically the same as current law, but done as a credit which is similar to mortgage interest deduction, adoption credits, child credits etc that are all settled law.

    Problem was Obama had a promise not to raise middle class taxes, so the penalty approach was used.

    The most important way to protect the environment is not to have more than one child.

    by nextstep on Mon Dec 13, 2010 at 02:31:12 PM PST

  •  Wait, Conservatives Used to Favor the Mandate? (3+ / 0-)

    Are you telling me that they might be moving the goalposts?  Supposed liberals (socialists even, if you believe the hype) give them what they want all of a sudden they don't want it any more?

    Nobody could have predicted...

    "...the work goes on, the cause endures, the hope still lives, and the dream shall never die." RIP Senator. We miss you.

    by libdevil on Mon Dec 13, 2010 at 03:05:50 PM PST

  •  Supreme Court.... (0+ / 0-)

    5-4. Obama will no longer even have his health care plan to brag about. The only thing left that he will have done is the rescue of Wall St. One term.

  •  So...I'm guessing in that part of... (0+ / 0-)

    Virginia the state cannot require me to have auto insurance either?

    Those who are willing to sacrifice liberty for safety deserve neither. (Paraphrasing B. Franklin)

    by p a roberson on Mon Dec 13, 2010 at 03:24:07 PM PST

  •  All news shows right now blaring this like it's a (1+ / 0-)
    Recommended by:
    Kimball Cross

    big huge deal!!!!!!!

    funny they didn't report on the first 14 rulings.

    Julian Assange revealed the identity of my Secret Santa.

    by eXtina on Mon Dec 13, 2010 at 03:38:12 PM PST

  •  it's unbelievable how the other 2 rulings (1+ / 0-)
    Recommended by:
    Kimball Cross

    were IGNORED by the media.

  •  Thank you. It's important to put things in (0+ / 0-)

    perspective, something that the mass media rarely do.

  •  This mandate is beloved by the health insurance (2+ / 0-)
    Recommended by:
    Kimball Cross, Matt Z

    companies. Won't GOP opposition to the mandate put them at odds with their corporate masters? I smell a rat.

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