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How to fix the ACA?
This is the heart of the severability question argued before the Supreme Court this morning. If the individual mandate is deemed unconstitutional, how much of the rest of the ACA goes down with it?
JUSTICE SOTOMAYOR: I want a bottom line is why don't we let Congress fix it?

MR. CLEMENT: Well, let me answer the bottom line question, which is, no matter what you do in this case, at some point there's going to be -- if you strike down the mandate, there is going to be something for Congress to do. The question is really, what task do you want to give Congress. Do you want to give Congress the task of fixing the statute after something has been taken out, especially a provision at the heart, or do you want to give Congress the task of fixing health care?...

JUSTICE SCALIA: Well, there is such a thing as legislative inertia, isn't there?

MR. CLEMENT: That's exactly what I was going to say, Justice Scalia, which is, I think the question for this Court is, we all recognize there is legislative inertia. And then the question is: What is the best result in light of that reality?

(Continue reading below the fold)

Unlike yesterday, there was real skepticism from across the justices as to the opponents' arguments in favor of an overall striking-down of the ACA, given both how many of its provisions are wholly anodyne and how difficult it might be for a Court to decide what is, and isn't, inextricably intertwined with the mandate. Moreover, the Court is acutely cognizant of what's realistic for Congress to do in the aftermath of a Court ruling:

MR. CLEMENT: At -- at a certain point, I just think that, you know, the better answer might be to say, we've struck the heart of this Act, let's just give Congress a clean slate. If it's so easy to have that other big volume get reenacted, they can do it in a couple of days; it won't be a big deal. If it's not, because it's very -

(Laughter.)

MR. CLEMENT: -- well, but -- I mean, you can laugh at me if you want, but the point is, I'd rather suspect that it won't be easy. Because I rather suspect that if you actually dug into that, there'd be something that was quite controversial in there and it couldn't be passed quickly -

CHIEF JUSTICE ROBERTS: But the -- the -

MR. CLEMENT: -- and that's our whole point.

CHIEF JUSTICE ROBERTS: -- the -- the reality of the passage -- I mean, this was a piece of legislation which, there was -- had to be a concerted effort to gather enough votes so that it could be passed. And I suspect with a lot of these miscellaneous provisions that Justice Breyer was talking about, that was the price of the vote.

Put in the Indian health care provision and I will vote for the other 2700 pages. Put in the black lung provision, and I'll go along with it. That's why all -- many of these provisions I think were put in, not because they were unobjectionable. So presumably what Congress would have done is they wouldn't have been able to put together, cobble together, the votes to get it through.

And the Court does not want this job itself:
JUSTICE SCALIA: Mr. Kneedler, what happened to the Eighth Amendment? You really want us to go through these 2,700 pages?

(Laughter.)

JUSTICE SCALIA: And do you really expect the Court to do that? Or do you expect us to -- to give this function to our law clerks?

Is this not totally unrealistic? That we are going to go through this enormous bill item by item and decide each one?...

JUSTICE KAGAN: I mean, we have never suggested that we were going to say, look, this legislation was a brokered compromise and we are going to try to figure out exactly what would have happened in the complex parliamentary shenanigans that go on across the street and figure out whether they would have made a difference.

Instead, we look at the text that's actually given us. For some people, we look only at the text. It should be easy for Justice Scalia's clerks.

(Laughter.)

MR. KNEEDLER: I -- I think -- I think that -

JUSTICE SCALIA: I don't care whether it's easy for my clerks. I care whether it's easy for me. (Laughter.)

The chief justice, and Justice Kennedy, probing Paul Clement on behalf of ACA opponents as to what Congress would have done without the "heart" of the ACA:
CHIEF JUSTICE ROBERTS: Well, but it would have -- it would have passed parts of the hollow shell. I mean, a lot of this is reauthorization of appropriations that have been reauthorized for the previous 5 or 10 years and it was just more convenient for Congress to throw it in in the middle of the 2700 pages than to do it separately. I mean, can you really suggest -- I mean, they've cited the Black Lung Benefits Act and those have nothing to do with any of the things we are talking about.

MR. CLEMENT: Well, Mr. Chief Justice, they tried to make them germane. But I'm not here to tell you that -- some of their -- surely there are provisions that are just looking for the next legislative vehicle that is going to make it across the finish line and somebody's going to attach it to anything that is moving. I mean, I'll admit that.

But the question is when everything else from the center of the Act is interconnected and has to go, if you follow me that far, then the question is would you keep this hollowed-out shell?

JUSTICE SOTOMAYOR: Well, but it's not -

JUSTICE KENNEDY: But I'm still not sure, what is the test -- and this was the colloquy you had with Justice Scalia with the corn husker hypothetical. So I need to know what standard you are asking me to apply. Is it whether as a rational matter separate parts could still function, or does it focus on the intent of the Congress?

If you -- suppose you had party A wants proposal number 1, party B wants proposal number 2. Completely unrelated. One is airline rates, the other is milk regulation. And we -- and they decide them together. The procedural rules are these have to be voted on as one. They are both passed. Then one is declared unconstitutional. The other can operate completely independently. Now, we know that Congress would not have intended to pass one without the other. Is that the end of it, or is there some different test? Because we don't want to go into legislative history, that's intrusive, so we ask whether or not an objective -- as an objective rational matter one could function without -- I still don't know what the test is that we are supposed to apply. And this is the same question as Justice Scalia asked. Could you give me some help on that?

Scalia's arguing with two hands. On the one hand, he mocks the "kill the whole bill" approach:
JUSTICE SCALIA: All right. The consequence of your proposition, would Congress have enacted it without this provision, okay that's the consequence. That would mean that if we struck down nothing in this legislation but the -- what you call the corn husker kickback, okay, we find that to violate the constitutional proscription of venality, okay?

(Laughter.)

JUSTICE SCALIA: When we strike that down, it's clear that Congress would not have passed it without that. It was the means of getting the last necessary vote in the Senate. And you are telling us that the whole statute would fall because the corn husker kickback is bad. That can't be right.

But then later on, in questioning amicus Barton Farr, appointed by the Court to argue a "nothing else must fall" position, Scalia says:
JUSTICE SCALIA: Mr. Farr, let's -- let's consider how -- how your approach, severing as little as possible there -- thereby increases the deference that we're showing to -- to Congress. It seems to me it puts Congress in -- in this position: This Act is still in full effect. There is going to be this deficit that used to be made up by the mandatory coverage provision. All that money has to come from somewhere.
You can't repeal the rest of the Act because you're not going to get 60 votes in the Senate to repeal the rest. It's not a matter of enacting a new act. You've got to get 60 votes to repeal it. So the rest of the Act is going to be the law.

So you're just put to the choice of I guess bankrupting insurance companies and the whole system comes tumbling down, or else enacting a Federal subsidy program to the insurance companies, which is what the insurance companies would like, I'm sure.
Do you really think that that is somehow showing deference to Congress and -- and respecting the democratic process?

It seems to me it's a gross distortion of it.

MR. FARR: Well, Your Honor, the -- the difficulty is that it seems to me the other possibility is for the Court to make choices, particularly based on what it expects the difficulties of Congress altering the legislation after a Court ruling would be.
I'm not aware of any severability decision that is -

JUSTICE SCALIA: No, I -- that wouldn't be my approach. My approach would say if you take the heart out of the statute, the statute's gone. That enables Congress to -- to do what it wants in -- in the usual fashion. And it doesn't inject us into the process of saying, "this is good, this is bad, this is good, this is bad."

It seems to me it reduces our options the most and increases Congress's the most.

The four moderate-liberals aren't going to strike the whole thing. As for the rest? I don't see a strong five votes for killing the whole bill, but have no idea what the result would be, or why.

Originally posted to Adam B on Wed Mar 28, 2012 at 11:33 AM PDT.

Also republished by Daily Kos.

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Comment Preferences

  •  This SCOTUS decision is going to be as messy (37+ / 0-)

    as the original passage of the bill, and that's a mild understatement.  I don't see the bill surviving intact and this court is capable of some pretty strange legal gymnastics.

    FSM save us...

    Nothing astonishes men so much as common sense and plain dealing.Ralph Waldo Emerson, 1841

    by SallyCat on Wed Mar 28, 2012 at 11:39:44 AM PDT

  •  If the rest of the act is constitutional (5+ / 0-)

    then why isn't the individual mandate a constitutional exercise of the necessary and proper clause?

    "Well, I'm sure I'd feel much worse if I weren't under such heavy sedation..."--David St. Hubbins

    by Old Left Good Left on Wed Mar 28, 2012 at 11:40:10 AM PDT

      •  How so? (6+ / 0-)
        Recommended by:
        Fury, semiot, Adam B, agent, Sychotic1, ChadmanFL

        If it is constitutional to require insurance companies to provide coverage to all applicants and to regulate how they set their rates--elements of the ACA-- then why isn't it within Congress's power to make that end workable by attempting to mitigate the problem of free riders?  Such mitigation is both necessary (in the sense that otherwise insurance companies would be rendered insolvent by free riders) and proper (in that it is intended to bring into effect a constitutional end).

        On the other hand, if the individual mandate and the insurance regulation provisions are not intertwined, then the individual mandate is severable...

        "Well, I'm sure I'd feel much worse if I weren't under such heavy sedation..."--David St. Hubbins

        by Old Left Good Left on Wed Mar 28, 2012 at 11:51:48 AM PDT

        [ Parent ]

        •  This is where you get into ... (13+ / 0-)

          ... the whole action/inaction debate, I think, and whether Congress has the power to regulate (and penalize) people who haven't entered the market formally.

          •  I just read the state's brief on this point (2+ / 0-)
            Recommended by:
            Armando, agent

            and it makes little sense to me.  Essentially, it seems to argue that even a necessary and proper enactment must itself be grounded in a power of Congress, which would render the elastic clause superfluous.

            "Well, I'm sure I'd feel much worse if I weren't under such heavy sedation..."--David St. Hubbins

            by Old Left Good Left on Wed Mar 28, 2012 at 12:11:13 PM PDT

            [ Parent ]

            •  Well, it is grounded in the commerce clause power (9+ / 0-)

              This goes back to McCullough, almost 200 years ago:

              If the end be legitimate, and within the scope of the Constitution, all the means which are appropriate, which are plainly adapted to that end, and which are not prohibited, may constitutionally be employed to carry it into effect.
              •  the key (3+ / 0-)
                Recommended by:
                Mayfly, Adam B, Nisi Prius

                is "not prohibited".

                Basically, there's a difference between not being in their power under the Commerce Clause and being prohibited by the Constitution.

                In order for this to not be within Congress's' power under the N&P clause, even if the mandate is not within the CC, it must be prohibited by something.

                The most obvious answer is "Substantive Due process". However, that hasn't really applied to economic activity since the Lochner Court. It would be fairly radical for the Court to go there here.

                •  Exactly (3+ / 0-)
                  Recommended by:
                  dsmmom, jeopardydd, akmk

                  Health insurance reform was the end.  Individual mandate was just a means.

                  The end must be pursuant to an enumerated power.  I think it is beyond dispute that Congress has the power to regulated health insurance.

                  "Well, I'm sure I'd feel much worse if I weren't under such heavy sedation..."--David St. Hubbins

                  by Old Left Good Left on Wed Mar 28, 2012 at 01:48:55 PM PDT

                  [ Parent ]

                  •  yep (1+ / 0-)
                    Recommended by:
                    akmk

                    so, will the sever it and leave the rest in tact (which would be really hard for the court to figure out which provisions are dependent on the mandate and which are not, etc)....or do we get a new economic substantive due process right that harkens back to the pre-wickard days?

                    Or, what's my personal guess, is that they uphold the mandate as constitutional but try to limit it to this one industry or some other narrow holding.

                    •  You should've been a lawyer also. (0+ / 0-)
                    •  Wickard was a deeply troubling decision (1+ / 0-)
                      Recommended by:
                      elfling
                      .or do we get a new economic substantive due process right that harkens back to the pre-wickard days?
                      The Wickard case was about a farmer raising livestock who was fined for growing his own wheat to feed to his animals instead of buying it from others.  The Court ruled for the government.

                      Wickard was decided in the context of the Great Depression, Roosevelt's overwhelming election victory, and threats of court packing.  I doubt that any Supreme Court before or after would have come to the same conclusion.

                      In fact, I suspect that if this issue came before the Supreme Court  de novo today most people on this site would be posting impassioned screeds condemning this vast overreach of government power.  After all, the corollaries to Wickard are pretty amazing.  

                      Do you realize that under Wickard the government can prohibit old ladies from knitting clothes for their grandchildren because the government wishes to promote the clothing market?  Or it can prohibit cooking your own meals because it wants to promote the restaurant business?

                      I would not be too surprised if the Court used this decision to ring fence Wickard a bit.  It's a scary decision.

                  •  You should've been a lawyer too. (0+ / 0-)
              •  And that manages to include an if, a within the (1+ / 0-)
                Recommended by:
                Adam B

                scope, a which are appropriate and a which are not prohibited.

                Even modern lawyers would be proud to include so many weasel words in a single sentence.

                LG: You know what? You got spunk. MR: Well, Yes... LG: I hate spunk!

                by dinotrac on Wed Mar 28, 2012 at 01:44:30 PM PDT

                [ Parent ]

          •  The arguments that the whole thing falls (2+ / 0-)
            Recommended by:
            RubDMC, Mayfly

            bolster the case there's a substantial effect already, so I don't buy the notion this distinction applies.  Even if you take away proper, the antis are left arguing the case that the commerce clause justifies the whole thing.  If it's the heart of the act, it's constitutional; if it isn't, the rest of the law has to he upheld.  Of course I even think it's a tax.

            A rule that inactivity is inherent unregulatable by congress could work, only the problem is that in order for that rule to apply, one has to mischaracterize the mandate as regulating inactivity versus financing the access to emergency care everyone enjoys and internalizing costs put on others.  The lack of appreciation for health care economics by the justices and I hate to say it, the SG, was striking.  Even Ginsburg's argument on day one that if everyone complied, there would be no revenue was bad logic, as it assumed the minimum coverage provision expects full compliance.  The legislative record and the decision to forgo liens and criminal penalties suggest the goal is to collect taxes to offset the costs of the bill as a safety valve.

            The study of law was certainly a strange discipline. -- Yukio Mishima

            by Loge on Wed Mar 28, 2012 at 01:26:55 PM PDT

            [ Parent ]

          •  Nothing in the necessary and proper clause (0+ / 0-)

            indicates that the interpretation of its scope should depend on action/inaction. Necessary and Proper (whether a particular means is rationally related and reasonably adapted to executing an enumerated power) is a separate legal question. In enacting something under its Necessary and Proper clause, Congress is not limited by what is commercial/noncommercial or what is local/interstate or what is action/inaction.

            The only way you can argue for the result that it is not proper is to argue that the Tenth Amendment creates a freestanding libertarian principle that makes it improper to give people a choice between paying a tax penalty and purchasing health insurance.

          •  Which is hogwash, as everyone WILL enter the (0+ / 0-)

            health care market at some pt and insurance is just the 'how we pay for it' part of that market.  

            But apparently pigs fly in SCOTUS and the Articles of Confederation ride again.

        •  Because it's not done through a tax (8+ / 0-)

          I think the Court has indicated that Congress could have taxed $100 from 26-year-old X and used it to pay the hospital bill of 60-year-old Y.

          Congress didn't do that.

          Congress told X he has to buy insurance (or pay a penalty) for $100 so the insurance company can pay some amount of Y's bill (possibly the whole $100 - it doesn't matter).

          The Court has trouble with this second formulation, even though the effect is essentially the same.

          Am I right, or am I right? - The Singing Detective

          by Clem Yeobright on Wed Mar 28, 2012 at 12:21:59 PM PDT

          [ Parent ]

          •  No (0+ / 0-)

            The taxing power is a separately enumerated power of Congress.

            "Well, I'm sure I'd feel much worse if I weren't under such heavy sedation..."--David St. Hubbins

            by Old Left Good Left on Wed Mar 28, 2012 at 01:45:47 PM PDT

            [ Parent ]

            •  I agree. So: 'No', what? (0+ / 0-)

              Am I right, or am I right? - The Singing Detective

              by Clem Yeobright on Wed Mar 28, 2012 at 01:49:18 PM PDT

              [ Parent ]

              •  Because (1+ / 0-)
                Recommended by:
                Clem Yeobright

                I took your comment to mean that because it's not a tax (which is debatable...), it was not necessary and proper.

                "Well, I'm sure I'd feel much worse if I weren't under such heavy sedation..."--David St. Hubbins

                by Old Left Good Left on Wed Mar 28, 2012 at 01:55:16 PM PDT

                [ Parent ]

                •  Sorry. (0+ / 0-)

                  I meant: Had the mandate been implemented via a tax, the SCOTUS would apparently have deemed it an appropriate and constitutional exercise of Congressional power, both necessary and proper to an exercise of the Commerce Clause.

                  Some of the Justices - as many people here - are having difficulties accepting the means of implementation actually used by Congress, finding it perhaps necessary but not proper.

                  I think.

                  Am I right, or am I right? - The Singing Detective

                  by Clem Yeobright on Wed Mar 28, 2012 at 02:14:03 PM PDT

                  [ Parent ]

                  •  If it was implemented as a tax (0+ / 0-)

                    it wouldn't have to be analyzed under the necessary and proper clause, because the power to tax is itself an enumerated power.

                    In this context, proper does not mean "proper" in the sense of being the best policy.  Proper means that it is directed at implementing a permitted end.

                    "Well, I'm sure I'd feel much worse if I weren't under such heavy sedation..."--David St. Hubbins

                    by Old Left Good Left on Wed Mar 28, 2012 at 02:28:47 PM PDT

                    [ Parent ]

                    •  That doesn't make sense (1+ / 0-)
                      Recommended by:
                      Clem Yeobright

                      We could easily say that the income tax code is enacted under Article I and the Sixteenth Amendment, and this particular income tax penalty is enacted under the Necessary and Proper Clause.

                      In other words, the imposition of tax penalties is necessary and proper to taxes.

                      Furthermore, we can infer that Congress' choice to phrase this as a tax penalty rather than a tax was a deliberate choice under the exercise of its taxation power. Congress had the option to raise taxes and make a credit (which would accomplish the exact same result), but in reasonably adapting the provision to the intended goal they found it simpler to implement as a tax penalty instead.

                      •  There is a difference between a "penalty" and (0+ / 0-)

                        a "tax penalty."

                        The amount payable for not having insurance is either a tax or a penalty, but it is not a "tax penalty," which would be a penalty for not paying a tax.  I don't know where you got the idea that it is a tax penalty.

                        If it is a tax, it's kosher under the taxing power.  If it is a penalty, it will have to be permissible under another enumerated power (or be a means to an end that is permissible).

                        Tax penalties are a necessary and proper means to enforce the collection of taxes, and Congress clearly has the power to impose taxes.

                         

                        "Well, I'm sure I'd feel much worse if I weren't under such heavy sedation..."--David St. Hubbins

                        by Old Left Good Left on Wed Mar 28, 2012 at 04:46:58 PM PDT

                        [ Parent ]

                    •  Semantics is just semantics. (0+ / 0-)
          •  a tax by any other name (0+ / 0-)

            Section 1501 should have read, "we really wanted to just call this a tax, but if we did our collective asses would be booted out of Congress, so instead, we will call it a mandate, and because we know we are treading in uncharted territory, we will throw in 20 headers to this section saying what a great important thing this here mandate is . . . blah blah blah"

            I do understand why the conservative side of the SCOTUS is uncomfortable with the mandate.  Personally, I am comfortable that a mandate to purchase insurance can be upheld without fear that we will fall down the slippery slope to the point of being force fed broccoli and brussel sprouts.

            •  Don't we in essence mandate people wear clothes? (1+ / 0-)
              Recommended by:
              Neither Nor

              If someone declines to participate in the market for clothing or to otherwise take the affirmative action of donning garb, can't the government penalize (sorry for necessary innuendo pun) people for such "inaction"?  Peculiarly there is a different standard for moral/ethical/religious pro/prescriptions than for economic ones. (Credit to my wife for the -for her-obvious point.)

        •  Problems with the auto insurance analogy... (1+ / 0-)
          Recommended by:
          coral

          1. The Federal Government doesn't require people to purchase auto insurance, states do.

          2. Driving is a choice - needing health care in the event of injury or sickness is not.

          3. Auto insurance companies don't deny claims based on pre-existing conditions or because replacing your broken windscreen would be an "experimental" operation.

          •  Choice--the right says health care is a choice (1+ / 0-)
            Recommended by:
            Nisi Prius

            And that's a huge problem. They are basically saying that if you choose not to get health insurance, and you can't afford to pay when you get sick, you deserve to die and society has no responsibility for your care.

            It's a really cruel and chilling position. Especially when you think of the most vulnerable among us.

            Skepticism of all the elite institutions, not trust, is what required for successful leadership in this era. Digby

            by coral on Wed Mar 28, 2012 at 03:26:32 PM PDT

            [ Parent ]

    •  my thoughts exactly (0+ / 0-)

      Lets say that the Court decides that Congress does not have the power under the Commerce Clause to enact the Mandate. Then we have:

      1) The rest of the ACA is Constitutional under the Commerce Clause

      2) The Mandate is necessary for the rest of the ACA

      3) THUS, the mandate is constitutional under the Necessary and Proper Clause.
      _

      How do you argue both that the mandate is necessary to the rest of the constitutional law, so that it is not serverable, but that it doesn’t fall under the Necessary and Proper Clause?

      In other words, I believe that if the Court wants to strike down the entire law, it will have to find that the mandate is necessary for the entire law, but that it violates some other principle (Substantive Due Process, Lochner-style?) besides just not falling under the Commerce Clause power.

      •  Might fly IF... (0+ / 0-)

        the mandate were the ONLY way to fund this. If the mandate were achieving something that could NOT be achieved by some other lawful, constitutional means.

        But it's not.

        Congress could tax for this. Without even screwing up the silly ass structure they've created. Tax everyone, and then "hire" insurers on our behalf, so that the precious insurance corp profits aren't taken away.

        "Be just and good." John Adams to Thomas Jefferson

        by ogre on Wed Mar 28, 2012 at 05:53:41 PM PDT

        [ Parent ]

        •  something (0+ / 0-)

          is not unconstitutional just because the courts believe there is a better way to do something. they generally defer to the legislature for that.

          •  Missing the point. (0+ / 0-)

            If they decide that the mandate is not constitutional, it's not a question of better. It's a question of "this is unconstitutional, and you could have achieved the same end in a different manner." It's hard to see why they should then decide that it's constitutional even though they believe it's constitutional, just so that they can defer to the legislature.

            It's an assertion of a power that is different, and new... and that may well not be constitutional.

            "Be just and good." John Adams to Thomas Jefferson

            by ogre on Wed Mar 28, 2012 at 06:50:34 PM PDT

            [ Parent ]

            •  no, YOU are missing the point (0+ / 0-)

              They would find that Congress did not have the power to enact the mandate under the commerce clause.

              However, if the mandate was necessary for the rest of the ACA (which Congress DID have the power to enact), then the mandate gets in through the Necessary and Proper clause.

              And the "proper" part doesn't mean "what the Court thinks is the best", it mostly means "doesn't violate other parts of the Constitution" and sometimes "isn't too over-broad".

              I've seen no suggestions that the Court is willing to find that the mandate violates other parts of the Constitution, only that it isn't within the Commerce Clause power (which means it could still get in under the N&P clause.

  •  Glad they can laugh.... (12+ / 0-)

    and have a good time when so many people's lives and livelihoods are at stake.

    This is what pisses off ordinary Americans.

  •  does it seem to anyone else... (26+ / 0-)
    You can't repeal the rest of the Act because you're not going to get 60 votes in the Senate to repeal the rest. It's not a matter of enacting a new act. You've got to get 60 votes to repeal it. So the rest of the Act is going to be the law.
    ...that it's not appropriate for a Supreme Court Justice to be gaming out vote counts in the Senate in response to various possible rulings?

    It's not exactly legislating from the bench; it's more like playing Karl Rove from the bench.

    Prison rape is not funny.

    by social democrat on Wed Mar 28, 2012 at 11:43:00 AM PDT

    •  eh, it shows they are human & remembering they are (6+ / 0-)

      human I keep thinking scalia might surprise us

      at heart scalia is catholic (santorum catholic is an anomaly) and the catholic church's stand is health care for all so scalia at heart won't stomach the tossing of the pre-condition people, children, etc  into the void with no form of coverage

      I'm optimistically thinking we will see a 7-2 upholding but FIRM statement that the mandate (being healthcare insurance issue) is a very unique thing and the rulling can never be used as precedence for anything else

      •  realized post in wrong spot= rspns to laughing (0+ / 0-)

        post high up the thread

      •  I expect so too.. (5+ / 0-)
        I'm optimistically thinking we will see a 7-2 upholding but FIRM statement that the mandate
        To uphold it, they need to say crystal clearly why the government can't make you buy broccoli.  
        •  rebuttal to broccoli (3+ / 0-)
          Recommended by:
          indie17, coral, DEMonrat ankle biter

          The regulation of insurance companies is the heart of the legislation, and is clearly constitutional. The mandate is Necessary (and proper) because of unique features of the insurance market: adverse selection as healthy people opt out would make that regulation impossible without a mandate. A broccoli requirement would not be Necessary to effective regulation of insurance companies.

          The court can find that the mandate and the guaranteed-issue provisions are inseverable, and that it's exactly that inseverability that differentiates the mandate from a broccoli requirement, which would be severable.

          If, at the end of the day, I am satisfied with myself, then I have succeeded.

          by lilnev on Wed Mar 28, 2012 at 01:45:59 PM PDT

          [ Parent ]

        •  I also Think They Dont (1+ / 0-)
          Recommended by:
          DEMonrat ankle biter

          Want to be the Court that gets associated with Pre-Wickard, and the fallout that would cause. I think it will be interesting.
          Lopez was pretty interesting (also testing the commerce clause and its powers). Souter's dissent, and the concurring opinions.

          They chose their words carefully in Lopez, they could have had a mess on their hands.

          Here it is even more obvious that by interjecting themselves they are risking being viewed differently by the Country as now we view them as non-political and listen to them (and I bet Scalia is intelligent enough to realize that). I do not know that it is a given that the individual mandate is not still being mulled over. This Court, Conservative, Liberal, does not want to become Political. If they do that they risk their relevance. I am very surprised they didn't punt on a jurisdictional issue. It would have been a lot smarter. Who knows.

          They will be very careful as they don't want to to be the Court that screws up Wickard. Even if that is precisely what they will do. They know the jurisprudence in the preceding cases Wickard being after the Court packing Plan etc and the Slaughterhouse cases being before (and considered amongst the worst cases ever decided).  As a Justice you don't want your name in a conversation with the Slaughterhouse cases.

          At least I like to think if I realize this, the highest Court in the land does as well :-)

      •  I agree (1+ / 0-)
        Recommended by:
        DEMonrat ankle biter

        This will be another Bush v Gore moment.

      •  Lips (2+ / 0-)

        From your lips ...

        Scalia's Catholicism and  the fact that he and Kennedy have been around for so long and know how completely dysfunctional the government has become might just save the whole bill.  IMO, if the whole bill was scrapped people would finally realize all the things it is doing for them.  And then they would be pissed.  So much of the changes are happening in the background that people don't realize they are the result of ACA.

        I think the scenario you describe is the best possible outcome.  And I think Scalia and Kennedy know it.

        Meet me in Cognito, baby

        by out grrl on Wed Mar 28, 2012 at 01:40:07 PM PDT

        [ Parent ]

      •  I disagree with Scalia often, but... (1+ / 0-)
        Recommended by:
        DEMonrat ankle biter

        ...at the end of the day, he's a good person that holds sincere, well-reasoned opinions on the law.  On non-politicized issues, I often find myself agreeing with his opinions - he cuts through a lot of noise to reach the heart of an issue.  He is a notorious strict constructionist, a position which I strongly disagree with, but he's sincere in that belief and holds it not because he's bought and paid for but because he really buys into that viewpoint and strongly believes that the nation was meant to be governed that way.  Odds are that he will probably probably vote to strike down the law, and I'll disagree with him, but at least he's no Thomas.  The further one gets from political issues and the closer one gets into statutory construction and other run-of-the-mill issues, Scalia's opinions can be very compelling.

        I am not a Constitutional scholar but I'm beginning to think that a favorable opinion will likely also, like you describe, establish a sort of Northern Limit Line for the use of the Commerce Clause.  Except I don't think it will be one of those not-for-precedential use opinions - if it is upheld, I think it will be regularly cited as the signpost for Congress - "Go here, but go no further - you are scraping up against the limit of your Commerce Clause powers and you're about a quarter of an inch from getting a Constitutional parking ticket - don't make us tow your damn car."

        If it's struck down, I believe that the conservative justices have articulated a rationale that making new law is not required to strike it down, and it'll probably be a speed bump in future Commerce Clause litigation.  I don't buy into this idea that striking the PPACA somehow re-opens Lochner, nobody seems to be going there.  Except maybe Thomas, based on his and his wife's political activities, but well, Thomas is Thomas.

        "What Washington needs is adult supervision" - Barack Obama

        by auron renouille on Wed Mar 28, 2012 at 01:56:10 PM PDT

        [ Parent ]

        •  Scalia is an ideologue, period. (3+ / 0-)
          Recommended by:
          Mayfly, coral, Nisi Prius

          His strict originalism seems to ignore the central power he enjoys like a Prince in 12th century Italy. No where in the constitution does it give the SCOTUS the power to over rule the other two branches. NO WHERE. It came to be in 1803 via Marshall and was created out of whole cloth to solve a problem he considered the sole duty of the courts to decide. This single decision set the course for our judicial system but it was NOT a foundational principle of the signors of the constitution and appears no where in the Federalist Papers.

          Do facts matter anymore?

          by Sinan on Wed Mar 28, 2012 at 02:03:42 PM PDT

          [ Parent ]

          •  Sorry (0+ / 0-)

            see Federalist 78.  Although he more or less described the judiciary as much weaker than what we now have, Publius did in fact state that judicial review of the Constitutionality of acts of Congress would be the job of the Court.

            The best pizza comes from New York.

            by JakeC on Wed Mar 28, 2012 at 06:47:16 PM PDT

            [ Parent ]

            •  Only as a submissive partner (0+ / 0-)

              None of them truly understood the need for a final arbiter of the law in the judiciary until they got to Marbury which is why that case set in motion the entire structure we have today. Up until then, the SCOTUS was more a circuit court than a Supreme Court making decisions about the constitution....

              Do facts matter anymore?

              by Sinan on Fri Mar 30, 2012 at 10:07:58 AM PDT

              [ Parent ]

      •  you are optimistic (5+ / 0-)

        After the last 3 days, I am not. I am bitterly resigned to what this country has become. It's not the place I used to believe it was.

        Skepticism of all the elite institutions, not trust, is what required for successful leadership in this era. Digby

        by coral on Wed Mar 28, 2012 at 03:29:38 PM PDT

        [ Parent ]

    •  They sort of have to game the vote (7+ / 0-)

      because as one of those quotes in the diary indicates, one question that they are supposed to ask is whether the bill would have passed without the unconstitutional provision.  

    •  It's judical restraint in action (2+ / 0-)
      Recommended by:
      social democrat, Clem Yeobright

      "We calmly accept our uncertain position." Joey Rathburn. But HBO can kiss my ass for cancelling Luck.

      by Paleo on Wed Mar 28, 2012 at 12:17:05 PM PDT

      [ Parent ]

    •  Dep.SG said: SC is not a party whip. (2+ / 0-)
      Recommended by:
      Norm in Chicago, Mayfly

      The justices all seem chary in that regard. So, yes, your observation is not novel.

      Am I right, or am I right? - The Singing Detective

      by Clem Yeobright on Wed Mar 28, 2012 at 12:26:31 PM PDT

      [ Parent ]

      •  Here's the text of that: (3+ / 0-)
        Recommended by:
        glitterscale, Mayfly, coral
        The Court's task, we submit, is not to
        look at the legislative process to see whether the bill
        would have been -- would have passed or not based on the
        political situation at the time, which would basically
        convert the Court into a function such as a whip count.
        That is not the Court's function.

         JUSTICE KAGAN: And, Mr. Kneedler, that
        would be a revolution -­
        MR. KNEEDLER: Yes.
         JUSTICE KAGAN: -- in our severability law,
        wouldn't it?
         MR. KNEEDLER: It would.
         JUSTICE KAGAN: I mean, we have never
        suggested that we're going to say, look, this
        legislation was a brokered compromise, and we're going
        to try to figure out exactly what would have happened in
        the complex parliamentary shenanigans that go on across
        the street and figure out whether they would have made a
        difference.
         Instead, we look at the text that's actually
        given us. For some people, we look only at the text.
        It should be easy for Justice Scalia's clerks.
         (Laughter.)
        page 39, http://www.supremecourt.gov/...

        Am I right, or am I right? - The Singing Detective

        by Clem Yeobright on Wed Mar 28, 2012 at 12:30:39 PM PDT

        [ Parent ]

    •  Montesquieu (3+ / 0-)
      Recommended by:
      Clem Yeobright, glitterscale, Mayfly

      died in 1755

    •  I took that as meaning he's inclined to (0+ / 0-)

      dump the whole thing. Fortunately, he can't. So, if he can't, then is he compelled to keep the mandate?

      Your left is my right---Mort Sahl

      by HappyinNM on Wed Mar 28, 2012 at 01:48:23 PM PDT

      [ Parent ]

    •  Don't need 60 votes to repeal the rest of the act (0+ / 0-)

      ... only need 5.

      And it shouldn't shock anyone to see a justice playing political pundit.  Because they are people just like the rest of us, it's naive to expect them to leave their political biases outside the courtroom.

      Please help to fight hunger with a donation to Feeding America.

      by MJB on Wed Mar 28, 2012 at 01:57:44 PM PDT

      [ Parent ]

  •  Sounds like a classic case of (2+ / 0-)
    Recommended by:
    DEMonrat ankle biter, madmojo

    What a difference a day makes.  The sky doesn't seem to be falling after all.

    Got Social Security? Thank a Democrat!

    by Fury on Wed Mar 28, 2012 at 11:43:29 AM PDT

    •  I refuse to get too worked up about this (1+ / 0-)
      Recommended by:
      madmojo

      1.  The Justices can be cagey...you might be better off using chicken entrails in predicting how they will vote

      2.  I can't be bothered to get too emotional defending, what in essence, the Heritage Foundation and Mitt Romney's HC plan  (how this somehow became Marxist Lenninism, I'll never know.)

      3.  If it's struck down, it can give Congress & POTUS the oppo to enact real reform later.  I know that sounds trite, but the ACA (as is) is insurance reform....not health care reform.  

      Plastic People, Oh Baby Now, Yer sucha Draaaag

      by jds1978 on Wed Mar 28, 2012 at 01:17:30 PM PDT

      [ Parent ]

  •  The fact that they elevated the Medicaid (0+ / 0-)

    argument despite not a single court below the SCOTUS finding in favor of the opponents on that argument shows what the end-game is.

    Lochner.

    "[R]ather high-minded, if not a bit self-referential"--The Washington Post.

    by Geekesque on Wed Mar 28, 2012 at 11:44:21 AM PDT

    •  For those of us who arent lawyers (2+ / 0-)
      Recommended by:
      DEMonrat ankle biter, mconvente

      does that mean law is upheld or not?

      •  Lochner invalidated any government (6+ / 0-)

        regulation on commerce that interfered with the "right and liberty of the individual to contract."

        The law invalidated was a state law capping the hours a baker could work to ten per day.

        Essentially, it's the Koch brothers wet dream to have the SCOTUS go back to those days.

        "[R]ather high-minded, if not a bit self-referential"--The Washington Post.

        by Geekesque on Wed Mar 28, 2012 at 11:54:35 AM PDT

        [ Parent ]

        •  A bit overbroad (0+ / 0-)

          It didn't invalidate all governmental regulations on commerce.  There were instances in the Lochner era where the court upheld legislation that impinged on the "liberty of contract," etc.  But the cases where they knocked out legislation on those grounds were bad enough.

          "We calmly accept our uncertain position." Joey Rathburn. But HBO can kiss my ass for cancelling Luck.

          by Paleo on Wed Mar 28, 2012 at 12:20:00 PM PDT

          [ Parent ]

      •  Lochner was basically (12+ / 0-)

        "we're gonna decide what we want to, and screw what reality has to say." Read the majority opinion sometime, and you'll find utterly insane provisions like the idea that maybe employees in a baking factory should be "permitted the right to contract" to work eighty-hour days, even though they had no way to refuse without becoming immediately unemployed.

        It can open your eyes to the kind of freedom and liberty the cons want for us though, the freedom to slave in dangerous conditions for substandard wages and maybe not starve to death or the freedom to die without a job.

        •  What if the baker needs the overtime? (0+ / 0-)

          My grandfather sometimes worked double shifts on the weekends, worked 16 hours in one day.  He saved up a lot of money during his life and never had to worry during retirement.  Should a federal law have been able to prevent that, to stop him from working and making money, because someone somewhere decided that 16 hours was too much?

          There is a huge difference between the State saying "You can't work more than 10" (even if you need to) vs. an employer saying "You must work 16 hours a day".  My grandfather wasn't forced to work, he wanted to work.  He was offered overtime and took it, to his financial benefit.

          I agree with that Lochner decision, and no it doesn't legalize fudalism.

    •  The argument was a pleasant surprise (2+ / 0-)
      Recommended by:
      Geekesque, Sychotic1

      We win 7-2 on that one.

    •  Lets hope not. (2+ / 0-)
      Recommended by:
      coral, Geekesque

      A return to pre-1937 Commerce Clause jurisprudence means the jurisprudential equivalent of the apocalypse.  And I'm not kidding.  There are thousands of pages in the USC that will be immediately subject to constitutional challenge if that is to be the case.  The lower courts will be flooded with litigation, and some pretty serious consequences are likely to flow to big business.

      If such a reversal is fully developed, that would almost certainly mean the end of Medicare and even Social Security.  And I think if that happened, to paraphrase one of the Founders, certain conservative figures could travel from one end of this country to the other by the light of their burning effigies.  

      I don't think this Court is going to want to bite that off, with all of the foreseeable consequences, let alone the unforeseeable ones, as much as some conservative nutcases might want that to happen.  I think more likely, if they decide to strike down all of a part of this, it will be narrowly stated, or a mere fiat like Bush v. Gore applicable to only this case.

      •  Well, taking your hypothesis one step further... (0+ / 0-)

        "Yes, but not for us." It seems a reasonable point. After all, isn't that what President Bush said on the way home? (No, I'm not bashing.) The precedent is ubiquitous by its absence in that case, with the potential criminal charges that could well have gone along with the act.

        I agree a re-validation pre-"Lochner" would create a turmoil, but one which would not reach its apex until this Court was off the bench.

        I suspect that was some of the original thinking is "Citizens United" as well. At least, it seems to be a much more than glaring possibility to the Court at the time. I believe that was the essence of Justice Ginsberg's statement about revisiting "Citizens United". They did not anticipate the immediate intrusion of corporate dollars, nor the incredible national uproar. They have not forgotten, no matter how many Americans have, that there actually is not only a vehicle for SC Impeachment, but a growing will to do so, along with sufficient precedent.

        This is the necessary, but oft lost power of the citizens. This is precisely what happens when the people speak truth to power. I think the Court knows it, and respects it today in ways not seen in about a century. This is why I believe, in the end, pre-1937 is off the table. Given the histrionics yet to play out, the Court will affirm ACA because it is, given the options, the most reasonable thing to do.

        And the first time I see "Lochner" referenced in the opinion, I'm blaming every one of you!! :)

        Corn. Broccoli. It makes me weep for the veggies. :)

        "These assholes always get away.".
        ~George Zimmerman~ Economic
        Left/Right: -7.75
        Social Libertarian/Authoritarian: -4.51

        by Bud Fields on Wed Mar 28, 2012 at 03:01:50 PM PDT

        [ Parent ]

  •  Tea Leaves (12+ / 0-)

    Since when have oral arguments been predictive of much? It's going to be a set of opinions almost as long as the bill. Nobody knows what the result will be that isn't a Supreme Court Justice at this point.

    GOP: The Party of Acid rain, Abortion of the American Dream, and Amnesty for Wall Street.

    by Attorney at Arms on Wed Mar 28, 2012 at 11:45:35 AM PDT

    •  Oral arguments are pretty predictive (0+ / 0-)

      I do not know why people say they are not.

      •  For me, because Mayo v. Prometheus... (1+ / 0-)
        Recommended by:
        Clem Yeobright

        ... was reported, based on oral arguments, as the SC leaning in favor of the general legal argument Prometheus was trying to make (though not so favorably on their specific patent). That case was reported in almost the same way this one was -- Justices "clearly" favoring one side, the other side providing "weak" and "ineffective" arguments...

        ... but the SC came down hard against Prometheus in probably the best way possible. (IMO) Honestly, the reports that came out of the press during the opening stages of that trial were almost identical to the ones we're seeing now. I suspect some [ctrl]+c, [ctrl]+v action in play.

        People with experience in or who carefully study SC cases (like you) probably pick up on subtleties missed by the rest of us laymen, so I suspect you're getting more sense out of it than I am, but from my perspective it looks like Justices are terribly fond of asking any question on any position imaginable, and ask it and make statements in such a way that makes it sound as though it's their deepest held belief that they treasure above all others, in order to get the lawyers to really work at either supporting or refuting it. Which makes it hard for me to decide what any Justice thinks about it at all.

        The Baptist Death Ray (wrightc [at] eviscerati [dot] org) "We are all born originals -- why is it so many of us die copies?"
        - Edward Young

        by The Baptist Death Ray on Wed Mar 28, 2012 at 01:51:45 PM PDT

        [ Parent ]

        •  Pretty close (0+ / 0-)

          Many of the justices deliberately plan hard questions for both sides. (Justice Souter was a master at it.) It's their one chance to do so. And sometimes their questions are really aimed at one of their fellow justices -- "My colleague at the other end of the bench thinks that ___, and how would you convince him/her otherwise?" They don't say it that way, of course, but sometimes you can figure it out.

      •  I don't either. It mystifies me, actually. n/t (0+ / 0-)

        "These assholes always get away.".
        ~George Zimmerman~ Economic
        Left/Right: -7.75
        Social Libertarian/Authoritarian: -4.51

        by Bud Fields on Wed Mar 28, 2012 at 03:04:23 PM PDT

        [ Parent ]

      •  So what do they indicate about the mandate? (0+ / 0-)

        Since I've been too busy to follow this and been parsing the comments but don't found one that actually clearly states something like : there is x% probability that they will uphold the mandate.

        In the 2008 elections there were 15 million less people who identified themselves as "liberals" than as "conservatives" (L/C ratio: 65%). Face it, this country is center-right. Moving it to the left is up to us!

        by healthy on Wed Mar 28, 2012 at 03:44:06 PM PDT

        [ Parent ]

  •  they sound uncomfortable (14+ / 0-)

    and very realistic about the politics of the bill.    I think they feel like sacrificial goats tethered out to draw the attack of a predator, in this case large segments of diametrically opposed private parties and corporate interests.   They can't sever the mandate and leave the rest of the bill go,  clearly they understand it will hurt or destroy the private insurance industry.   All the other crap that got stuffed into the bill, they don't want to sort it out.   Killing the whole bill would be easy for the conservatives in one sense, but not comport at all with past practise and precedent, and it would kill some things their constituencies would want.

    I would dearly love for them to bravely legislate from the bench to save the insurance industry at this point.  The mandate would live for the wrong reasons.  The law would still need fixing, but it would buy time for both private insurance companies and people who need care.

    •  Yikes (2+ / 0-)
      Recommended by:
      jayden, agent

      Now there's a truly progressive position.

      •  say what you like (5+ / 0-)
        Recommended by:
        Fury, agent, indie17, Sychotic1, coral

        I am willing to take the outcome I want, for the law, mandate and all to be upheld.  I think more real people benefit from that than over turning the law.

        As for courts and how they make decisions, how political they can be, or just how plain mixed up and stupid,  you just really would have to dig a deep hole to get lower than my opinion.    

        There is going to be no noble, for the good of the public and republic decision in this case.

    •  i don't mind killing the mandate by itself (1+ / 0-)
      Recommended by:
      mwjeepster

      my only regret would be that we couldn't kill the insurance industry executives along with the industry itself.

      •  But it's linked to the preexisting conditions (0+ / 0-)

        The mandate was, at least, a quid pro quo for the requirement that insurance companies eliminate exclusions for preexisting conditions and they have to cover everyone (the "no cherry-picking" requirement). You have to buy insurance for your healthy child; they have to cover the one born with multiple birth defects.

        The companies argued, reasonably enough, that if you don't make everybody join up when they're healthy, people can just wait until they have a problem, and then sign up for insurance and the companies have to cover it. Sort of like buying house insurance after the fire starts. That also means that if only sick people buy insurance, the rates go up astronomically. The only way to keep rates reasonable (or "so-called reasonable") is to include healthy people in the pool.

        I don't see a way to just eliminate the mandate without changing anything else. I'm not a fan of the mandate, but recognize the trade-off.

        •  Were they to do that--just eliminate the mandate (0+ / 0-)

          --then it would be the equivalent of taking the burning sack of dogshit left on the doorstep and delivering it back to the door of the house it came from.

          The rest of the act, with all its goods, would remain. The problem would be funding it.

          That's Congress's problem. There are other ways to fund all that. Dirty, messy, painful politically.

          But that 60 vote obstacle would not stand in the way of the solution, really. The folks who want to provide health care to the nation would just refuse to revisit the act. Just insist on legislation that fills the hole left by the finding that the mandate is unconstitutional. And those who'd stand in the way... would be easily held up as unwilling to solve the problem--the people who were making the budget crisis that the Court's worrying about actually happen, instead of fixing it.

          But because of the situation, the insurance corps are going to be on the other side. They'll want a solution that happens, fast, and saves their bacon. Or their options are to go out of business before they're driven bankrupt. Suddenly Citizens United has a funny consequence, when some very deep pockets find themselves on the side of the People. OR at least on the same side, for the moment. They'll unleash a shit ton of money and political pressure to force a solution through Congress--and that, coupled with popular pressure, would get a solution. Right through the zealots and Teabaggers.

          "Be just and good." John Adams to Thomas Jefferson

          by ogre on Wed Mar 28, 2012 at 06:09:57 PM PDT

          [ Parent ]

    •  Umm... (0+ / 0-)
      " Killing the whole bill would be easy for the conservatives in one sense, but not comport at all with past practise and precedent, and it would kill some things their constituencies would want."
      Which constituencies are you referring to? The SCOTUS has (or should have) only one constituent: The Constitution. I miss your reference.

      "These assholes always get away.".
      ~George Zimmerman~ Economic
      Left/Right: -7.75
      Social Libertarian/Authoritarian: -4.51

      by Bud Fields on Wed Mar 28, 2012 at 03:08:15 PM PDT

      [ Parent ]

      •  should have says it all (0+ / 0-)

        do you actually believe that?   After all that has come out about Justice Thomas and his wife's connections, after Scalia has been so openly political,  Alito's whole existence.

        The liberal judges have a point of view about policy and how the world should work,  the arch conservatives of the last decade or so know who their masters are and they hear their masters' voices.

  •  This is an empty argument. (0+ / 0-)
    Scalia: " . . . it reduces our options the most and increases Congress's the most."

    Courage is contagious. - Daniel Ellsberg

    by semiot on Wed Mar 28, 2012 at 11:53:11 AM PDT

  •  The highest court (19+ / 0-)

    I've argued before is the 2nd Circuit (once and frightening).  It actually was a matter of first impression.  I had zero sense that the questions were anything other than fine tuning the briefs.

    Today seems like the conservative justices suddenly thought the health care debate could really eff up a lot of people already depending on stuff.  I'm sure they were completely prepped and knowledgeable, but it doesn't appear that way -- except for Scalia and his butt boy Thomas (who doesn't ask questions).

    I'm honestly sick of this whole "show."  I'll wait for the final opinion and decide whether or not to stockpile more pills if insurance is out of the question.

    Vi er alle norske " My faith in the Constitution is whole; it is complete; it is total." Barbara Jordan, 1974

    by gchaucer2 on Wed Mar 28, 2012 at 11:53:57 AM PDT

    •  I've argued before appellate courts a lot (9+ / 0-)

      and I generally find the questions pretty telling -- not always indicative of what the final ruling will be, but usually indicative of what somebody is thinking.  

      Then again, I've had a few questions that, after the argument, I'll talk to my opposing counsel and we'll both say, "where the hell did that come from?"

      •  The examples I've heard thrown around (1+ / 0-)
        Recommended by:
        madmojo

        The SG in Brown vs Board of Ed got very tough questioning, and yet won the case easily.

        Maybe more relevant, there was a 2004 SCOTUS case involving the death penalty for juveniles, and Kennedy apparently was leaning towards it in questioning, then was the deciding vote, 5-4, against it. But maybe those examples are inaccurate.

        •  I think they ARE telling. (1+ / 0-)
          Recommended by:
          Nisi Prius

          In my history, I have found that Justices tend to be "360" degree folks when possible. It's kind of their job, generally--unless there is a single point of Law to decide. They then question from the most general to the most specific. Minds can, and do change during that process.

          Additionally, they do discuss these cases--a lot. While some opinions would indicate the parameters (generally) of those discussions, the process is usually not revealed. That's why the difference, I think. It is the entire process which matters. The question is, is there sufficient insulation from lobbyists, special interests, and other non-standing influences? While it is a terrible stain upon the Court to even ask this question, it is one this Court deserves to have examined.

          "These assholes always get away.".
          ~George Zimmerman~ Economic
          Left/Right: -7.75
          Social Libertarian/Authoritarian: -4.51

          by Bud Fields on Wed Mar 28, 2012 at 03:14:01 PM PDT

          [ Parent ]

      •  So what do you say to your client (0+ / 0-)

        after you have one of these "telling" oral argument sessions?

  •  Did pundits get the severability intentions wrong? (4+ / 0-)
    Recommended by:
    jj32, Fury, ferg, auron renouille

    The "convention wisdom" has been that the Democratic Congress erred by not having a severability provision in the ACA. Now that the case is actually being argued before SCOTUS, I'm actually thinking that they intentionally omitted the clause because the ACA sans mandate is unsustainable.

  •  If any Justice was on the fence on the mandate ... (11+ / 0-)

    question, realizing what a complete mess they create if they hold the mandate unconstitutional (and I think most of them do seem to realize that), might actually push the fence-sitter(s) into thinking, "We're better off avoiding the mess by holding upholding the mandate."

    Bin Laden is dead. GM and Chrysler are alive.

    by leevank on Wed Mar 28, 2012 at 11:57:19 AM PDT

    •  But if it's unconstitutional, it is. Messy or not (1+ / 0-)
      Recommended by:
      mconvente

      That way lies fascism, to say "Well this law is unconstitutional, but it means well, so we'll let it slide".  We can't live that way, with a Constitution that can just be used as toilet paper 24/7.  I mean, we are almost there already, but that would totally legitimize it.

      If the mandate is ruled unconstitutional, then I think they have to send the entire ACA bill back to Congress to fix it.  It would be up to Congress, not SCOTUS, to make sure insurance companies don't go broke.
      If they uphold the mandate (hopefully as truly Constitutional, not just waived through), then the entire ACA stands.

      I think severing the bill would fit their definition of "legislating from the bench" and they won't do that.

      •  I may be tired and talking myself into a circle, (2+ / 0-)
        Recommended by:
        leevank, coral

        but it's possible for me to envision a situation where the "realization" that the bill cannot exist without the mandate leads to a sort of backwards conclusion that, since the end is Constitutional, the means, if not automatically Constitutional, at least deserve a second look.  That sort of backwards analysis won't come out in the opinion, that's one hell of a fucked up Commerce Clause test, but it's not a wholly unpersuasive argument in chambers and I would bet that rationale for upholding will be raised in conference at least one.  Perhaps raised and immediately shot down, but raised nonetheless.

        "What Washington needs is adult supervision" - Barack Obama

        by auron renouille on Wed Mar 28, 2012 at 02:33:55 PM PDT

        [ Parent ]

      •  If one is really convinced the mandate is ... (1+ / 0-)
        Recommended by:
        askew

        unconstitutional, you're of course right.  But if you think the issue of constitutionality is a very close question, and you haven't decided for sure which way to go on it, I don't think recognizing the severe practical problems that would be created by declaring that it's unconstitutional, and resolving your doubts in favor of constitutionality, constitutes anything close to "fascism."

        Bin Laden is dead. GM and Chrysler are alive.

        by leevank on Wed Mar 28, 2012 at 03:20:50 PM PDT

        [ Parent ]

        •  the fascism part is (0+ / 0-)

          that the holy justices must grant certiorari for a case to be heard by the court,

          and no mere mortal can afford to appeal for certiorari and be heard.

          Ergo, robed gods rule us.

          That's the fascist part.

          (note that, Republican Attorneys General were those that could even begin the process of gaining certiorari, and they were armed not only with fine healthcare for themselves, but gobs of taxpayer money to spend, from their respective States to do so).

  •  just a thought... (6+ / 0-)

    if the mandate is killed and the bulk of the rest of the law is left standing we are left with a strong case for single payer. if we want to believe we are a fundamentally humane society- and i do believe most americans do want to believe that- then we have to find a way to ensure that people who need medical care can get it. a mandate to buy private insurance is not the way. medicare for all/single payer is the only realistic alternative.

    but from a political standpoint, i don't see how the conservative justices are going to thread the needle of sticking with their antipathy to the mandate while protecting the insurance industry.

    The cold passion for truth hunts in no pack. -Robinson Jeffers

    by Laurence Lewis on Wed Mar 28, 2012 at 12:01:51 PM PDT

    •  The counter is that there's been a strong case (10+ / 0-)

      for universal health care/coverage for 60+ years.

      The existence of a strong case in rational terms is irrelevant to what happens in the political process.

      They thread the needle by striking down the whole damn thing and resetting the clock to 2007.

      "[R]ather high-minded, if not a bit self-referential"--The Washington Post.

      by Geekesque on Wed Mar 28, 2012 at 12:11:58 PM PDT

      [ Parent ]

      •  but then they have made the political case (8+ / 0-)

        that single payer is the only solution.

        even conservatives know that the unwashed masses believe we have a healthcare crisis. they don't believe it, but they know that the majority of the populace does. if they kill this law altogether they largely kill the idea of a privatized solution. they reset the clock but they also reset the political conservation by removing a privatized solution from it.

        The cold passion for truth hunts in no pack. -Robinson Jeffers

        by Laurence Lewis on Wed Mar 28, 2012 at 12:17:38 PM PDT

        [ Parent ]

        •  It's always easier to just say no on health care. (4+ / 0-)
          Recommended by:
          Sychotic1, mimi, askew, tk421

          And it always will be.

          And, if striking down the mandate is a three-pointer, invalidating an actual government takeover of the health insurance industry would be a lay-up.

          "[R]ather high-minded, if not a bit self-referential"--The Washington Post.

          by Geekesque on Wed Mar 28, 2012 at 01:15:15 PM PDT

          [ Parent ]

          •  i do think they realize (1+ / 0-)
            Recommended by:
            mimi

            that this conversation will continue, and the options will grow narrower. do they believe their side always will win? from a political standpoint that may be what it comes down to- their belief in their side's ability to control the agenda. better to stand firm, harden the schism, and hope their side never falters, or better to allow some steam out of the debate?

            during the debate over the law, many of its supporters said we needed to pass it and then fix it. many of them went silent once it was passed- fixing it no longer seemed as important as praising it. then again, many historians think the new deal took the steam out of a more radical leftist movement, and many contemporary leftists hated fdr for that, yet the right continues to try to reset that clock, with little thought to the possible consequences...

            this judicial resolution may come down to an interpretation of political pragmatism.

            The cold passion for truth hunts in no pack. -Robinson Jeffers

            by Laurence Lewis on Wed Mar 28, 2012 at 01:32:51 PM PDT

            [ Parent ]

          •  what do you mean by a lay-up? /nt (0+ / 0-)
            •  If your whole schtick is to prevent (1+ / 0-)
              Recommended by:
              mimi

              overreach of the federal government, they can fabricate some vital constitutional principle to provide the vehicle for invalidation in their sleep.

              "[R]ather high-minded, if not a bit self-referential"--The Washington Post.

              by Geekesque on Wed Mar 28, 2012 at 02:24:59 PM PDT

              [ Parent ]

            •  Basketball language. nt (1+ / 0-)
              Recommended by:
              Geekesque

              In the 2008 elections there were 15 million less people who identified themselves as "liberals" than as "conservatives" (L/C ratio: 65%). Face it, this country is center-right. Moving it to the left is up to us!

              by healthy on Wed Mar 28, 2012 at 03:47:29 PM PDT

              [ Parent ]

      •  Have to agree (6+ / 0-)

        Unless we have a wholesale change in the make-up and the character of our Congress, they don't go near this again.

        And, without that wholesale change, I'm not so sure we'd want them to. This is a craven bunch out of which we'll see little that's good.

        "There’s class warfare, all right, but it’s my class, the rich class, that’s making war, and we’re winning." —Warren Buffett

        by Joan McCarter on Wed Mar 28, 2012 at 01:21:48 PM PDT

        [ Parent ]

        •  Craven but well-meaning in a best case scenario. (1+ / 0-)
          Recommended by:
          Joan McCarter

          Ryancare in the worst.

          "[R]ather high-minded, if not a bit self-referential"--The Washington Post.

          by Geekesque on Wed Mar 28, 2012 at 01:54:47 PM PDT

          [ Parent ]

        •  this issue doesn't go away (2+ / 0-)
          Recommended by:
          mimi, coral

          and political fortunes can turn on a dime. under bush the gop thought they had won permanent congressional majorities.

          last fall a populist political uprising in the streets changed the national economic conversation from austerity to jobs and income inequality. there is an increasing restlessness in this country and i don't think anyone can rely on the political calculations of the past 30 years.

          The cold passion for truth hunts in no pack. -Robinson Jeffers

          by Laurence Lewis on Wed Mar 28, 2012 at 02:16:18 PM PDT

          [ Parent ]

          •  I don't know, voting rights (1+ / 0-)
            Recommended by:
            Geekesque

            are being restricted all over the place. And police crackdowns on demonstrators are getting more and more violent.

            I'm not so sanguine about the next 30 years.

            Skepticism of all the elite institutions, not trust, is what required for successful leadership in this era. Digby

            by coral on Wed Mar 28, 2012 at 04:08:52 PM PDT

            [ Parent ]

      •  Ah, but the difference is... (0+ / 0-)

        that the obligation to provide health care (etc) in the act is all left intact.

        The ability to block it isn't there. It can be funded, or revoked. Revoking it isn't really plausible, politically (those damned 60 votes...). So the choice is find a way to fund it  or embrace the budgetary collapse, with all its unforeseeable consequences.

        The Teabaggers would go there. But I don't think that the rump sane end of the GOP would.

        In essence it says "Congress, you passed this, and it's staying passed. But the funding mechanism is unacceptable. Find another that is." And that is within Congress's powers and capacity.

        "Be just and good." John Adams to Thomas Jefferson

        by ogre on Wed Mar 28, 2012 at 06:18:04 PM PDT

        [ Parent ]

        •  The mandate isn't what Scalia et al oppose. (0+ / 0-)

          It's the obligation to provide health care that is their real target.  The mandate is merely an excuse--take that out and they find another.

          Comprehensive health care reform is a waste of political capital until the 99% have five votes on the SCOTUS.

          I feel stupid for not realilzing this earlier, knowing what we do.

          "[R]ather high-minded, if not a bit self-referential"--The Washington Post.

          by Geekesque on Wed Mar 28, 2012 at 06:25:49 PM PDT

          [ Parent ]

          •  Granted... (0+ / 0-)

            BUT it's not clear that there are five votes that want to scrap the whole thing and call down the wrath of the nation.

            Because while the act itself isn't popular (having been smeared to death), the component parts are. So the Court would be the fall guy for the GOP? Maybe. But Roberts has the job he wants. He's not running again, for anything. The decision on this could be another Bush v Gore, and firmly establish the reputation and standing of the Roberts Court forever.

            I'm not sure he wants that.

            And in reality (not something the GOP deals with well, I grant), I really doubt that the GOP wants to be taking all the pieces of ACA back to the House to pass them piecemeal, because the voters want them. Because they'll have to figure out how to fund them... while the Democrats roast them for bringing back what they fought to kill, for the political points. Because the Tea Party's going to hate it, no matter what. There's not really a win in this for the GOP. Rather like the abortion issue, they didn't really want to win this, they wanted to be able to fight, fight, fight it as a way of keeping the base whipped up. Only...

            "Be just and good." John Adams to Thomas Jefferson

            by ogre on Wed Mar 28, 2012 at 06:57:25 PM PDT

            [ Parent ]

            •  Roberts was put on the court for the precise (0+ / 0-)

              purpose of killing this kind of legislation.

              He and the other 4 are rightwing Republican hacks.  That's all that matters.

              "[R]ather high-minded, if not a bit self-referential"--The Washington Post.

              by Geekesque on Wed Mar 28, 2012 at 07:07:51 PM PDT

              [ Parent ]

    •  If the mandate is striken (6+ / 0-)

      and not much else BCBS Aetna and company will whip their senators to produce something before 2014 to fix it

      •  Everybody, even the SG, agrees that (7+ / 0-)

        if the mandate goes, guaranteed issue and community rating go down, too (the part about no discrimination for pre-existing conditions).  

        The question is whether the Court sorts through the rest of the bill to see what else stays (the cornhusker kickback?) or just strikes it all.  There's a lot in this bill that is not necessarily dependent on the mandate (unlike guaranteed issue and community rating, which are).  On the other hand, none of that other stuff in the bill would have become law without the mandate.  

        That's why, it seems to me, that the real issue is what question is the Court supposed to ask after finding the mandate unconstitutional (assuming they do): (1) would this have become law without the mandate (weighs in favor of striking the whole thing, because without the mandate, none of the bill becomes law); or (2) is this provision dependent on the mandate (may leave some room for other provisions to survive).  

        •  Put like that it seems that the (0+ / 0-)

          clear thing to do is to toss the entire law, because asking the second question requires the court putting itself in the place of Congress and passing a law that would not have passed.

          (And what an interesting mess that would be.....)

      •  Why? (2+ / 0-)
        Recommended by:
        coral, MindRayge

        The insurers will be allowed to set their rates so that they make a profit, as long as they keep their overhead within the guidelines. There's nothing in the law that says they have to lose money. If they had to rely on the private marketplace to sell insurance that people could afford to buy, sure they would be in an impossible situation and would go out of business eventually.

        But they don't have to sell insurance at rates that buyers can afford, because people's premiums and out-of-pocket expenses are capped, with the government picking up the rest of the tab. It's the government, not the insurers, that is on the hook for the spiraling costs. The government's share of the total bill will go up as costs go up.

        It seems to me that this is the worst of all possible worlds as far as conservatives are concerned - the government paying a bigger and bigger portion of the check, but without the power to set the rates that it has with Medicare and Medicaid. It can't set provider rates, and it can't set the premiums. And in fact as more and more people go on Medicaid, and more and more people go into individual plans as their employers drop their coverage, pressure on individual plan rates gets worse. Pretty soon almost everyone in the country is either on Medicaid or else getting their premiums subsidized. A conservative's nightmare.

        We decided to move the center farther to the right by starting the whole debate from a far-right position to begin with. - Former House Majority Leader Tom DeLay

        by denise b on Wed Mar 28, 2012 at 02:58:58 PM PDT

        [ Parent ]

        •  I think you are forgetting something. (0+ / 0-)

          It is actually in the best interests of the Insurance Companies to have this law survive. Without it, there is no way to tap the 47% of Americans today who have either unaffordable, or unusable insurance/no insurance. Rate sustainability is simply not possible.

          Furthermore, Medicare and Medicaid are being denied by docs the country over today. The ACA would seriously reverse this trend, bring payments up, and even potentially back in line. The preventative care aspects do not reduce fees, they reduce occurrence.

          Given these realities, I believe that it is the "general welfare" clause which will sustain the affirmation of ACA by SCOTUS. Also, I have not heard if any argument has been had on the "religious freedom" angle as yet. That that seems to be a non-starter is, to me at least, a good thing. While it could fuel the Conservative Justices to, in the end, strike ACA, which I think would be the cause:effect, it is not in play...yet.

          "These assholes always get away.".
          ~George Zimmerman~ Economic
          Left/Right: -7.75
          Social Libertarian/Authoritarian: -4.51

          by Bud Fields on Wed Mar 28, 2012 at 03:26:53 PM PDT

          [ Parent ]

          •  The insurance cos. (0+ / 0-)

            might just start to charge their rich customers gazillions of dollars for coverage.

            It doesn't really matter what the average insurance sale is.  It just matters that the overall marketplace keeps growing.

            If the thing is unconstitutional, they can charge more for less coverage, and way more for more coverage.  That's how they'll make up the difference.

            They can also stratify so that sick people can't get covered.  They love that part.

        •  Interesting, especially with growing inequality (0+ / 0-)

          and a significantly larger portion of the population without access to health care, a job that offers health insurance, or the means to buy health insurance.

          Skepticism of all the elite institutions, not trust, is what required for successful leadership in this era. Digby

          by coral on Wed Mar 28, 2012 at 04:11:49 PM PDT

          [ Parent ]

        •  Actually (0+ / 0-)

          I found the flaw in my own analysis. I think I overestimated the number of people who will be eligible for subsidies. I still haven't found the figures, but it's not most people as I thought - it looks like maybe 40-50% will not eligible. Still looking.

          We decided to move the center farther to the right by starting the whole debate from a far-right position to begin with. - Former House Majority Leader Tom DeLay

          by denise b on Wed Mar 28, 2012 at 05:11:13 PM PDT

          [ Parent ]

  •  Kennedy and Roberts (11+ / 0-)

    just might follow Silberman and say fuck it and uphold the whole thing.

    Those two, I think, at least recognize the societal peril in killing the law.

    Scalia, Alito and Deadweight are just fuckers who'll vote no just to spite Obama.

    Obama is at war with radical anti-American terrorists. The radical GOP is at war with American women. Take that and run with it DNC, you inept fucking pikers.

    by GOPGO2H3LL on Wed Mar 28, 2012 at 12:06:55 PM PDT

    •  Those are the two where I see some hope (8+ / 0-)

      I think they're both seriously troubled by the mandate, but they're also troubled by what happens if they strike it down.  I think the most significant legal arguments may be made in their next conference, and in the initial drafts of the briefs that go back and forth -- and we'll never be privy to that.

      I wouldn't even discount the possibility that if it starts out 5-4 in favor of declaring the mandate unconstitutional, somebody might switch their vote later when they try to justify whatever they decide to do about the severability question.  One of the female Justices (I think it was Kagan, but can't remember for sure) really pushed hard yesterday on the point that even the opponents concede that this would be constitutionally just fine if the government simply imposed a tax and expanded Medicare to everybody, so why should it be LESS constitutional if the government sought to provide more choice?

      Bin Laden is dead. GM and Chrysler are alive.

      by leevank on Wed Mar 28, 2012 at 12:33:15 PM PDT

      [ Parent ]

      •  But there may be more constitutionally sound (0+ / 0-)

        methods of producing that outcome.

        For example, instead of single player, having a universal voucher system, paid for by a tax, and usable as a payment to insurance companies...

        "All things are not equally true. It is time to face reality." -Al Gore

        by Geek of all trades on Wed Mar 28, 2012 at 01:37:19 PM PDT

        [ Parent ]

      •  Because if you're going to expand Medicare (0+ / 0-)

        you should just do it outright, not this under the table way.  You can't hang carrots to all the players and then take it away just when the law is about to be implemented without legislative changes.

        If there aren't votes for Medicare For All, then that's democracy.  And if there are, then this is the way we should have done it all along.  

      •  So what does that mean? (0+ / 0-)
        (I think it was Kagan, but can't remember for sure) really pushed hard yesterday on the point that even the opponents concede that this would be constitutionally just fine if the government simply imposed a tax and expanded Medicare to everybody, so why should it be LESS constitutional if the government sought to provide more choice?
        Is it somehow possible for the court to influence the government to impose a tax and expand Medicare for everybody, and then say the mandates would be constitutional, whereas the mandate would not be constitutional, if the expansion of Medicare for everybody and the imposition of a tax for that would not be implemented?  How would something like that proceed forward?
  •  I think they see it as too big a mess... (6+ / 0-)

    Finding the mandate constitutional saves them from any mess.  I don't think Kennedy wants to throw out the whole bill, and if he doesn't want that than it becomes "what do we have to throw out" - and that's not something they want to get deep into the weeds with.  

    What they could do is throw out mandate but keep everything else in - that would force congress to do something quickly or the insurance co's would go belly up in short order.

    Insurance co's own the GOP and half the Dems in congress anyways, so they could put pressure on both sides to fix the problem in short order to bring back the mandate without it being a mandate.  Make it a tax that you can avoid paying if you can prove you carry insurance.  

  •  The Problem With The Clean Slate (8+ / 0-)

    approach, of course, is that Republican numbers in the Congress are such that they will block any such legislation.
    As long as a Democrat is President, the Republicans will not be a party to solution of any national problems.

    •  I beg to differ (0+ / 0-)

      It is not a Democrat the Republicans, and especially the Tea Party terrorists object to.

      It is THIS Democratic President. That is, quite simply, a truth. Why do you think 37 of their number are working tirelessly, even as you read these words, on Bills of Impeachment against him, which they will furiously offer in February, 2013?

      Unless, of course, SCOTUS does some work for them now. Which is precisely why we are here today.

      "These assholes always get away.".
      ~George Zimmerman~ Economic
      Left/Right: -7.75
      Social Libertarian/Authoritarian: -4.51

      by Bud Fields on Wed Mar 28, 2012 at 03:36:17 PM PDT

      [ Parent ]

      •  I don't think they need to impeach because (0+ / 0-)

        they are going to suppress enough votes AND smear him in this opinion in such a powerful way, that I expect him to lose.  I said so days ago:

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

        •  Interesting point (0+ / 0-)

          But I believe the "other" side has put, for time and all eternity, into this one basket. If ACA is overturned, President Obama is, to them, invalidated and made irrelevant. That isn't true, but you will be hearing a lot of that noise that we will have to respond powerfully to. In the same light, doing so by the "other" side could truly immasculate their chances all the way down the ballot from nothing more than pure outrage.

          I do not believe he will lose. I believe this current action is going to, regardless of the outcome, ignite his base...again, in ways that could not have been foreseen. But, of the two major players in this national elections, it is the Democrats who are best equipped to forge the victory. Pure aesthetics aside, the silence from the Blue team has permiitted, if not outright required the Red team to show its stripes in a way we could not possibly have paid for.

          I have said, both publicly and privately, that the Red team in in the midst of their deathhroes. I stand by it.

          "These assholes always get away.".
          ~George Zimmerman~ Economic
          Left/Right: -7.75
          Social Libertarian/Authoritarian: -4.51

          by Bud Fields on Wed Mar 28, 2012 at 04:25:04 PM PDT

          [ Parent ]

  •  The difficulty of the severability question (3+ / 0-)
    Recommended by:
    leevank, jayden, coral

    certainly must give the "swing" justice, or justices, some pause.  An affirmance would avoid that question.

    "We calmly accept our uncertain position." Joey Rathburn. But HBO can kiss my ass for cancelling Luck.

    by Paleo on Wed Mar 28, 2012 at 12:12:27 PM PDT

  •  Totally unrelated question (2+ / 0-)
    Recommended by:
    jayden, Clem Yeobright

    I thought for some reason the SC did not allow taping of the oral arguments and questions. I thought I remembered C-SPAN wanting that but the SC did not allow it (although maybe the above is audiotape only).

    Did that change somewhere along the line?

    •  According to the Supreme Court website (5+ / 0-)
      Beginning with the October 2006 Term, the Court has made the transcripts of oral arguments available free to the public on its Website, www.supremecourt.gov, on the same day an argument is heard by the Court.
      Beginning with October Term 2010, the audio recordings of all oral arguments heard by the Supreme Court of the United States will be available free to the public on the Court's Web Site, www.supremecourt.gov.  The audio recordings will be posted on Fridays at the end of each argument week.
      •  And the audio was available earlier than that ... (1+ / 0-)
        Recommended by:
        jayden

        from the Oyez Project at the Chicago-Kent College of Law.  

        I was very relieved when that came out and I could finally be sure that I hadn't descended into complete gibberish at two points in my one and only Supreme Court argument the way the transcript made it appear that I had.  It's amazing what a transcript that drops a couple of words in the middle of a sentence can do to its intelligibility.  (The Supreme Court's court reporters are very good -- especially given how rapidly they get transcripts out -- but they're not infallible.)

        Bin Laden is dead. GM and Chrysler are alive.

        by leevank on Wed Mar 28, 2012 at 12:40:51 PM PDT

        [ Parent ]

      •  It is an abomination that the (1+ / 0-)
        Recommended by:
        WheninRome

        Court is not open for all to see what is going on.   A lot of communication is visual and while audio is better than nothing, a lot of valuable communication is lost by having audio only.

        I thought Scalia was an originalist.   If so, it is clear to me that the founders wanted the courts to be open and available to the public and in this day and age that means audio and video.

        •  I don't agree (2+ / 0-)
          Recommended by:
          VClib, Catesby

          I agree with your principle but cameras lead to a third person perspective one one's self and to grandstanding. The court is so political already - cameras will make thoughtfulness much harder.

          •  You do realize that these reasons (1+ / 0-)
            Recommended by:
            World Patriot

            could also be used to argue for secret hearings.   I mean that would remove all political pressure.

            While we are at it, why make the justices reveal how they voted, just let the public know yeah or nay.   You can publish reasons and opposition without authors.

            Sunlight is always the best disinfectant.

            •  yes, I know (1+ / 0-)
              Recommended by:
              According to Fish

              It's a matter of degrees. Secret hearings are not acceptable of course, and if it were a choice between that and TV cameras I would take the TV cameras. But I do think that TV will make for more partisanship and more bitter 5-4 decisions in the end, even relative to what we have now, because ideologues (like me) will watch it all, parse everything said by 'our team' and 'their team', and every time any of the Nine go out to cocktail parties or whatever they will be hit with this stuff. Eventually they will only speak on script like presidents and more and more congressfolk already do.

            •  Not in every case. SCOTUS is one of them. n/t (0+ / 0-)

              "These assholes always get away.".
              ~George Zimmerman~ Economic
              Left/Right: -7.75
              Social Libertarian/Authoritarian: -4.51

              by Bud Fields on Wed Mar 28, 2012 at 03:39:30 PM PDT

              [ Parent ]

          •  If grandstanding leads to losing cases ... (0+ / 0-)

            ... advocates won't do it.

          •  That's certainly true in trial courts (1+ / 0-)
            Recommended by:
            Adam B

            And it might be true in appellate courts, but I think the Supreme Court is the one court where it would be almost wholly untrue.  By and large, especially in major cases like this one, there are excellent lawyers on both sides who realize that (1) the case is highly important not only for the litigants, but for lots of other people, and (2) that grandstanding would be highly counterproductive.

            However, that having been said, I think that video would add very little to the information conveyed by the audio in an appellate argument.  It's not like there's really ANY action -- you've got a lawyer standing behind a podium, and the Justices (or judges, in lower appellate courts) sitting behind their bench.

            Bin Laden is dead. GM and Chrysler are alive.

            by leevank on Wed Mar 28, 2012 at 02:33:15 PM PDT

            [ Parent ]

        •  It is open to "the public" (0+ / 0-)

          It's not open to 300 million of us at once. But you can go and stand in line and go in and listen (and watch). The media has guaranteed seats for reporting out what happened. Random members of the Supreme Court Bar (with no stake in the case) can go in. That is "open" by any 18th century definition -- a far cry, for example, from what is happening to Bradley Manning, behind closed doors, with no one allowed in.

  •  They can rule on the most narrow aspect... (3+ / 0-)

    Which is what this court has done recently (sans campaign finance and Bush v Gore).

    Which could be:

    1) Crafting a very narrow decision that gets 7-8 votes (I'm guessing Thomas and maybe Alito are unattainable).  They don't want a controversial 5-4 decision, probably written by the Chief Justice.

    2) What is the most narrow aspect?  Its not the mandate.  Its its the ENFORCEABILITY of the mandate.  I could envision a ruling that says:

    a) you can require health insurance to be purchased, but you must give the broadest discretion as to the type of insurance to be purchased and

    b) you can not enforce via the tax code or the IRS.

    This declares the enforcement mechanism unconstitutional, the narrowest grounds on which they can rule, and would then force Congress to come up with an alternative enforcement mechanism - which could be opening up Medicare, a public option, a creative way to charge people back-premiums when they get sick, etc.  (All of which were discussed and were on the table).

    Depending on the make-up of Congress - if Ds take back the House and control the Senate, even narrowly, its likely something could happen - because otherwise the health insurance companies are held hostage to having to cover everyone.

    This could be a huge victory for progressives.

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

    by jgkojak on Wed Mar 28, 2012 at 12:29:59 PM PDT

    •  It's the mandate. (1+ / 0-)
      Recommended by:
      Losty

      There would be no issue if the mandate were a tax that could be 100% refunded to everyone meeting the requirement (or exempt from it).

      Your (a) only if !(b)
      works, but
      (a) and (b)
      doesn't.

      Am I right, or am I right? - The Singing Detective

      by Clem Yeobright on Wed Mar 28, 2012 at 12:50:19 PM PDT

      [ Parent ]

    •  This sounds absolutely delusional.... (0+ / 0-)

      There is no victory for progressives.  There never was, and now because of the fiasco that was ACA, there won't be another health care bill in a generation.  

      Thanks, Obama.  

      •  No, there is a solid point there (1+ / 0-)
        Recommended by:
        Norm in Chicago

        Ruling so narrowly on the enforcement aspect, ie removing the penalty portion alone would force congress to come up with another aspect.

        They could very well say, enforcement is fine but you must tax the person not penalize them.

        •  Where would the tax go to? Private insurance? (0+ / 0-)

          If we're going to expand Medicare then we should just do that directly.

          The SCOTUS will not do such a surgical maneuver.  They will either keep the law in its entirety or throw it out in its entirety.  

          •  No no, don't get me wrong I agree with you there (1+ / 0-)
            Recommended by:
            Norm in Chicago

            Its going to come down to an all or nothing thing with Kennedy being the swing. I don't see Kennedy striking the entire thing down because that's just him. So as mentioned elsewhere we may get a court that throws their hands in the air and yells 'fuck it, just this one time only people' ala Bush V Gore.

            But there is a history of the court making taking such surgical moments as mentioned.

      •  ACA lives. That's a victory for citizens. (0+ / 0-)

        Thank you, PRESIDENT Obama.

        "These assholes always get away.".
        ~George Zimmerman~ Economic
        Left/Right: -7.75
        Social Libertarian/Authoritarian: -4.51

        by Bud Fields on Wed Mar 28, 2012 at 03:41:52 PM PDT

        [ Parent ]

  •  It all sounds as though their is some sort of (4+ / 0-)
    Recommended by:
    jayden, Adam B, bluegrass50, jethrock

    negotiated settlement going on in the courtroom. The justices throw out a proposal and the various other parties either praise it or rebut it. Then they try again.

    What the hell sort of process is that for the Supreme Court to be engaging in?

  •  At this point (1+ / 0-)
    Recommended by:
    World Patriot

    much to my surprise, I think we are going to see a 5-4 kill the whole thing decision.

    I think the lack of a severability clause is going to be the thing that kills it.

    This is why it's important to have Democratic Presidents, because the Court matters a lot.

  •  Profiles in Courage (4+ / 0-)
    Recommended by:
    jayden, ChadmanFL, TheOtherJimM, askew

    In the Preface, Kennedy asks the question "Am I a United States Senator or the Senator from Massachusetts?"

    The Supreme Court justices have to ask themselves if they would be 'legislating from the bench' more by re-configuring the statute in place or by voiding in its entirety a law passed by an empowered Congress that is not in place any more, i.e., is a law still valid even if the sitting Congress would not pass it today? [Hint: Yes.]

    I'm hopeful they will decide to leave legislation alone and not rule against the mandate. If unconstitutionality is not patent, assume constitutionality.

    Am I right, or am I right? - The Singing Detective

    by Clem Yeobright on Wed Mar 28, 2012 at 12:41:07 PM PDT

  •  The Obama administration already (3+ / 0-)
    Recommended by:
    Fury, guinea, ChadmanFL

    ...asked the courts to sever the consumer protections -- if the mandate was struck down.

    It asserts that the rest of the bill can go forward. The insurance companies agree.

    It doesn't get any simpler than that.

  •  I love how 60 votes (13+ / 0-)

    is so assumed now it has been entered into the supreme court.  Though it isn't in the Constitution at all.  what happened to 50%+1

    •  At least the Conservative Justices are admitting (1+ / 0-)
      Recommended by:
      Norm in Chicago

      that their political party is filibustering everything, and turned the Senate into a broken legislative organ.

      This court will do whatever it damn well pleases with their 5 votes.

      Above Grecian mantles were chiseled these words... Know Thyself... Nothing in Excess... the pop philosophy of its day.

      by ravagerofworlds2 on Wed Mar 28, 2012 at 01:08:35 PM PDT

      [ Parent ]

    •  we make our own reality (0+ / 0-)

      ....and don't forget, stupidity seems to be the start point for homo sapien

      Plastic People, Oh Baby Now, Yer sucha Draaaag

      by jds1978 on Wed Mar 28, 2012 at 01:21:06 PM PDT

      [ Parent ]

    •  procedural rule (0+ / 0-)

      which Harry could have changed as the majority leader at the beginning of the session. It's a farce that allows them to do their kabuki dance and never vote. People argue that if they changed it the R's would then use it when they we're the majority.  Maybe they would have a better chance of retaining the Dem majority if they actually got some decent Democratic legislation enacted instead of bill's like The ACA.

      ACA is anything but affordable. The back room deals cut with the for profit by the WH and congress and kabuki on the floor that produced this so called health care act's main purpose in passing it was to provide the 'health care industry' with more profit, and mandated customers who could not afford it and still won't be able too.

      They dealt away anything that made decent health care affordable. Health care for profit is an oxymoron. There is no way in hell I can come up with 1,400$ a month for junk, in an economy like this one. That's not affordable it's more then my mortgage. Guess that makes me a deadbeat, freeloader,  who needs to pay a fine/ penalty which will be a hardship and I'll still have no access to affordable health care.

      The real free loaders are the insurance companies who make a profit off peoples right to access health care. There's also the fact that these industries make a fortune off of our government but hey that's just the free market at play.      

         

  •  Kneedler and Farr (3+ / 0-)

    appeared to be very good.

    They held their ground against silly question and assertions.

    Aside - my gawd Scalia is a boor. And a bore too.

  •  question: (0+ / 0-)

    ...if the Supreme Court rules that the individual mandate is unconstitutional, will that automatically render Massachusetts' health care law unconstitutional, since it includes a mandate?

  •  ACA polling. Will justices vote because of this? (0+ / 0-)

    http://www.pollingreport.com/...

    It is safe to say that ACA is not supported by the majority in this country.  That does not make it wrong and that does not mean it should not be upheld with regard to its constitutionality.  

    We often see posts on this board and on a great many other boards all across the Internet that use positive polls for any particular issue.  Proponents of bills or candidates and so forth that see polls showing majorities against what they support usually ignore them and only accept as gospel, those polls that support their beliefs.

    I hope the supreme court justices do not rule on either portions of the ACA bill or all of it because of popularity or the lack of popularity of it.

    •  There isn't an example (5+ / 0-)

      There is nothing I know of that "polls well" regarding contstitutional rights where the selfish answer isn't the most popular.

      These Photo ID laws are some of the most agregious infringements on voting rights since poll taxes and yet they are hugely popular. The reason is the majority doesn't have to do anything to comply and they don't give a rip about someone else's rights as long as theirs aren't being infringed upon.

      The health care law is the same way. A majority of people have health insurance and don't care if anyone else does. As long as they are fully covered why should they care about anyone else?? Those same people become huge proponents of the law the second their insurance company screws them over. A majority of people don't pay attention to how they are already being screwed over by a VASTLY overrated US system. Its easy to be against something that either doesn't impact you or you don't understand to begin with.

      Basically Constitutional law should never be decided on the selfish whims of a majority looking to diminish the rights of the minority. Unfortunately conservative only believe in the Constitution when it supports their rationalized selfishness.

    •  Well that polling doesn't tell the whole story (0+ / 0-)

      because if you break down the main components of the legislation, most favor everything except perhaps the individual mandate.  And while in the most recent poll 43% favored the law while 50 % opposed the law, 10% of those who opposed the law oppose it because it isn't liberal enough (i.e. it isn't single payer, ect.)  When you add the 43% who support the law with the 10% who say the law isn't expansive enough; it is clear that a significant majority of people (53 %) in this nation FAVOR significant intervention in the health care market.  Only 40% oppose significant government intervention in the health care market.  And many of those lumped in the 40% camp probably support many of the provisions contained in the Affordable Care Act, but have been brainwashed by Fox News et. al. into believing that the ACA calls for "death panels" and is an attempt by an evil "Muslim" President to bring socialism/communism to America.

      We have nothing to fear but fear itself

      by bhouston79 on Wed Mar 28, 2012 at 05:24:33 PM PDT

      [ Parent ]

  •  SCOTUS blog seems to think that today's (5+ / 0-)

    arguments were more positive for the administration.

    "Nothing in all the world is more dangerous than sincere ignorance and conscientious stupidity." --M. L. King "You can't fix stupid" --Ron White -6.00, -5.18

    by zenbassoon on Wed Mar 28, 2012 at 01:11:46 PM PDT

      •  I disagree (3+ / 0-)
        Recommended by:
        guinea, LordMike, tk421

        It seems to me that Kennedy, in particular, and the Court as a whole clearly disclosed their intention to strike down the individual mandate.  The progressive judges seemed to concede this fact, which caused Scalia to be positively giddy with delight.  This is a great political victory for him.  

        The only question that remains is will the entire ACA be thrown out.  Obviously, Scalia, Alito and Roberts think it should be and one can only assume that Thomas will be in that camp.  I read and re-read the available transcripts twice and I am 100% convinced that Kennedy will decide the same.  I also wouldn't be surprised if one or two of the progressive judges joined in this respect.

        The ACA is dead.  As evidenced in Bush v. Gore and Citizen's United, the conservative justices are now willing to engage in tortured legal analysis to achieve right-wing political objectives and SCOTUS has become a fully functioning political arm of the GOP.  

        Election have consequences.  For those who voted Nadar in 2000, I hope you are enjoying this just as I hope you really enjoyed the Bush tax cuts and the senseless war in Iraq.

        Trust-Fund Kids of America Unite... save the Bush tax cuts!

        by JCPOK on Wed Mar 28, 2012 at 01:35:17 PM PDT

        [ Parent ]

      •  rec'd both of you b/c... (0+ / 0-)

        hope you are right.

        Trust-Fund Kids of America Unite... save the Bush tax cuts!

        by JCPOK on Wed Mar 28, 2012 at 01:38:37 PM PDT

        [ Parent ]

  •  Was today the last day of arguments? (0+ / 0-)
  •  let Congress fix it (0+ / 0-)

    ahahahahahahahaha

    I wouldn't recommend anything to this Congress. NOTHING.

    which they do just fine

  •  Was omitting severability a master stroke? (1+ / 0-)
    Recommended by:
    jj32

    Just scratching my chin now.   By omitting a severability clause, Congress made it much much harder for the Supreme Court to strike down only parts of the law.   And that might just make them throw up their hands and uphold it because they couldn't really decide what to do with it.    Is this turning out to be a stroke of genius to entrench the mandate so fully in the law that the they can't untangle it without doing great damage to the country?  (not that they seem to care about that).

  •  So the Iranization of the US is in sight (1+ / 0-)
    Recommended by:
    icemilkcoffee

    With five ideologically motivated Supreme Court judges trumping the political process simply because they can.  And they have life time appointments - with excellent health care benefits (I am sure none of them will even have to wait 20 months for a replacement heart).

     

  •  The conservative cabal... (2+ / 0-)
    Recommended by:
    JCPOK, ggav11

    on the Supreme Court will rule in whatever way they think will damage President Obama. Nothing more, nothing less.

    The Supreme Court has become part and parcel a tool of an extreme right wing agenda. We should not be surprised when they rule to strike down this law. That was their plan from the beginning.

    "There's room at the top they're telling you still...A working class hero is something to be If you want to be a hero well just follow me." Working Class Hero-John Lennon

    by p a roberson on Wed Mar 28, 2012 at 01:22:58 PM PDT

  •  if the mandate is struck down (0+ / 0-)

    but the rest of it is held, who actually gets hurt?

    its the insurance companies right? because they still have to allow pre-existing conditions but not everyone will always have insurance?

    is that a bad thing?

    The threat to our way of life comes from corporations, and the solution is to shrink corporations while freeing government from corporate control.

    by gbaked on Wed Mar 28, 2012 at 01:24:03 PM PDT

    •  Yes it is a bad thing. Follow the money. (0+ / 0-)

      You'll hear such a huge uproar from the insurance industry that the whole bill will be repealed pronto.  

      All the Blue Dogs will jump on the bandwagon.  

      •  will that happen? (0+ / 0-)

        or would they find a constitutional way for them to get paid and keep the rest...

        im just asking. not tryin to argue.

        The threat to our way of life comes from corporations, and the solution is to shrink corporations while freeing government from corporate control.

        by gbaked on Wed Mar 28, 2012 at 01:35:06 PM PDT

        [ Parent ]

      •  doubtful (0+ / 0-)

        they could get 2/3rds of congress

        Bad is never good until worse happens

        by dark daze on Wed Mar 28, 2012 at 01:44:25 PM PDT

        [ Parent ]

      •  President (0+ / 0-)

        Obama is not going to sign a repeal of it.

        I think.

        •  But they might be able to buy enough of (0+ / 0-)

          CONgress to override Obama's veto.

          There is no saving throw against stupid.

          by Throw The Bums Out on Wed Mar 28, 2012 at 02:00:11 PM PDT

          [ Parent ]

        •  After an "unconstitutional" ruling the President's (0+ / 0-)

          hands are pretty tied.  

          He might even face a veto-proof vote.

        •  Well, the administration has stated (0+ / 0-)

          that parts of the bill, including pre-existing coverage, will have to be repealed  if the mandate falls.  Why do you think the President would suddenly do an about-face and insist that they have to stay?  

          If the mandate falls, I think the President will do exactly what he's said: he'll repeal the parts that depended on it.  

          I'm not one of those people who believe that the President is in the back pocket of the insurance industry.  However, I do think it's clear that he was in favor of improving the status quo, not overturning it.  Like most of his proposed solutions, his position on HCR was splitting the difference and hoping for the best.  

          Overseeing the gutting of the insurance industry would be absurdly out of character for him.

          To believe that markets determine value is to believe that milk comes from plastic bottles. Bromley (1985)

          by sneakers563 on Wed Mar 28, 2012 at 03:56:25 PM PDT

          [ Parent ]

    •  No pre-existing condition ban would be back... (1+ / 0-)
      Recommended by:
      splintersawry

      That's the one thing tied directly to the mandate.  

    •  No, it isn't the insurers who get hurt, (1+ / 0-)
      Recommended by:
      bgold

      I don't think. They are allowed to make a profit. They can and will raise their rates.

      Without the law, they would eventually get priced out of existence and the entire system would collapse, hurting everyone. But it seems to me the ACA prevents that.

      Who pays if rates go up?

      Individuals pay, up to a point. Past that point - individuals' premiums and maximums are capped, and the government picks up the rest. More adverse selection means higher government costs. Am I wrong?

      We decided to move the center farther to the right by starting the whole debate from a far-right position to begin with. - Former House Majority Leader Tom DeLay

      by denise b on Wed Mar 28, 2012 at 03:38:49 PM PDT

      [ Parent ]

      •  Correction (0+ / 0-)

        I found a flaw in my own analysis. I seem to have overestimated the number of people who will be eligible for subsidies. I still haven't found the figures, but it's not most people as I thought - it looks like maybe 40-50% will not eligible. Still looking for good numbers.

        Still, government is covering a large chunk of premium costs once they reach a certain level.

        Also, I see I worded something poorly - it sounded like I was saying government picked up costs after out-of-pocket maximums, which it doesn't. But they will indirectly through the premium subsidies.

        We decided to move the center farther to the right by starting the whole debate from a far-right position to begin with. - Former House Majority Leader Tom DeLay

        by denise b on Wed Mar 28, 2012 at 05:15:32 PM PDT

        [ Parent ]

  •  Think we'll have nine different opinions, or will (0+ / 0-)

    Scalia write two and make it 10?

    Happy little moron, Lucky little man.
    I wish I was a moron, MY GOD, Perhaps I am!
    —Spike Milligan

    by polecat on Wed Mar 28, 2012 at 01:24:35 PM PDT

  •  hearing all this just makes me sick to my stomach (6+ / 0-)
    Recommended by:
    kareylou, ChadmanFL, mconvente, askew, coral, gmats

    i can't believe they're going to strike this down. here at my local (257 in the american federation of musicians) insurance rates didn't skyrocket for the first time in years. insurance covered 100 percent of my mammogram. we got a big tax refund back based on paying all insurance coverage for staff.

    it just makes me so sad.

  •  SCOTUS expects Congress to do something? (1+ / 0-)
    Recommended by:
    Jerry J

    NOT very likely, and not in my lifetime.

  •  On the plus side (0+ / 0-)

    Removal of the mandate could be the opening step towards a real, first-world government health-care system. Of course on the minus side that stair-case is looking about 50 years long at this point.

  •  The Next Supreme Court nominee is a ghost here (0+ / 0-)

    If Obama wins the election, which looks pretty good now considering how insane Romney and the et als are, the next Supreme Court nominee or two will swing the court away from the current conservative majority.  

    Everyone knows this.  Roberts and Scalia especially know this.

    Given that this is their moment, and that a majority power may fall from their grasp soon, I am concerned that they may be tempted by the prospect of reducing Congress' ability to use the Commerce Clause, thus to pull the rug out from under the whole paradigm of progressive government policy making.  

    Before we see the language of any ruling here, it is hard to consider just how far reaching it could be.  But there is an opening here for truly radical judicial activism that the right wing would cheer for decades.  

    hope that the idiots who have no constructive and creative solutions but only look to tear down will not win the day.

    by Stuart Heady on Wed Mar 28, 2012 at 01:31:02 PM PDT

    •  GOP has a great chance of taking the Senate (2+ / 0-)
      Recommended by:
      bryduck, coral

      If not in 2012 then in 2014.  If they do the Obama would be hard pressed to get through any nominee to the Supreme Court.  Especially so if it's to replace someone like Thomas or Kennedy.

      •  You are forgetting that the GOP is loony tunes (1+ / 0-)
        Recommended by:
        indie17

        The election of a man with a higher melanin count then they have has driven the "base" nuts... this has caused:

        1. The election of your crazy Republican asshole neighbor to positions of power. Which they then decided to try to use to ban birth control and abortion.

        2. Pushed all moderate Republicans out and forced the ones that stayed to say a bunch of crazy shit.

        This has made for a GOP that is not very well liked by true "independents" (not the independents that are so nuts that they think the Republican party is "too soft"). The GOP is increasingly being linked with unpopular positions.

        The Democratic Party can seize on this and it actually looks like they might be. Tammy Duckworth vs Joe Walsh is an example of this. Knock out a high profile deadbeat asshole and get that race and Joe Walsh lots of attention at the same time.

        The American people are becoming much more aware of the hoodwinking of the GOP... now we just have to get them motivated. If lots of people show up like they did in 2008 then we could have a majority in Congress, Senate and the WH.

        "The Founding Fathers envisioned a robustly Christian... America, with churches serving as vital institutions that would eclipse the state in importance." The Real Ron Paul

        by 815Sox on Wed Mar 28, 2012 at 02:14:22 PM PDT

        [ Parent ]

        •  even Justice Roberts can see the loony tunes (0+ / 0-)

          Lots of things can change, but on the other hand the die seems to be cast.  The GOP nominee will set a lot of people's teeth on edge.  

          So the prudent thing for Roberts would be, in anticipation of this eventuality, to go for it now.

          The question is what that will mean.

          hope that the idiots who have no constructive and creative solutions but only look to tear down will not win the day.

          by Stuart Heady on Wed Mar 28, 2012 at 02:28:50 PM PDT

          [ Parent ]

          •  I agree they may see the writing on the wall (0+ / 0-)

            It is very likely that the Supreme court is going to soon have more liberal then conservative members. They may just say F it and try to set themselves up as the "limited government" justices... that way they can do what the GOP does best and spout off a bunch of bullshit that sounds good to the brainwashed and then do the exact opposite.

            "The Founding Fathers envisioned a robustly Christian... America, with churches serving as vital institutions that would eclipse the state in importance." The Real Ron Paul

            by 815Sox on Wed Mar 28, 2012 at 05:05:14 PM PDT

            [ Parent ]

    •  No Conservative Justice will retire under Obama... (0+ / 0-)

      RBG and Breyer would look to get out over the next Obama term, but the Conservative 5 would tough it out until 2016 and hope a Republican gets elected then.  

      Of course tomorrow is promised to nobody and a couple justices would be pushing 80 years old by 2016.  However the 2016 election would be of EPIC importance.  Because Kennedy and Scalia could look to retire then.  

    •  Call me idealistic (0+ / 0-)

      But it is my fervent belief that, at the core of their being, these Justices have (It is difficult for me to type this, believe me!) a core sense of obligation to the Law, here. Despite what most people might like to observe, Lawyers really like going home at the end of the day believing that the Rule of Law matters in America. It is seen as a lynch pin of their existence.

      Having had so many of "their moments", it would not surprise me to see the Justices understanding that much more than the ACA is at stake here. It is democracy at stake here. Trying to correct a wrong is a thing that citizens, and their President, do.

      I know I could be entirely wrong in this presumption of a Court so seemingly willing to prove otherwise. In the end, each one of them is a citizen. I believe they know it. They may disagree on what certain aspects of that citizenship means, or should mean, but they do, for the most part, understand the most fundamental basics, and agree upon them. While I would love to say that throwing the country into a death spiral should not be among the many considerations for this Court, I do believe the Justices do understand the consequences of their decision.

      And, to that end, I believe that, regardless of the wording used, the Court will insure democracy. Just like the Constitution states.

      "These assholes always get away.".
      ~George Zimmerman~ Economic
      Left/Right: -7.75
      Social Libertarian/Authoritarian: -4.51

      by Bud Fields on Wed Mar 28, 2012 at 04:00:48 PM PDT

      [ Parent ]

  •  "Restraint" (3+ / 0-)
    Recommended by:
    guinea, Adam B, coral

    I thought the following exchange about "judicial restraint" was interesting.

    MR. KNEEDLER: We think as a matter of judicial restraint, limits on equitable remedial power limit this Court to addressing the provision that has been challenged as unconstitutional and anything else that the plaintiff seeks as relief. Here the only...

    JUSTICE KENNEDY: But in restraint... When you say judicial restraint, you are echoing the earlier premise that it increases the judicial power if the judiciary strikes down other provisions of the Act. I suggest to you it might be quite the opposite. We would be exercising the judicial power if one Act was -- one provision was stricken and the others remained to impose a risk on insurance companies that Congress had never intended. By reason of this Court, we would have a new regime that Congress did not provide for, did not consider. That, it seems to me can be argued at least to be a more extreme exercise of judicial power than to strike, than striking the whole.

    MR. KNEEDLER: I -- I -- I think not...

    JUSTICE KENNEDY: I just don't accept the premise.

  •  What happens next? Do they deliberate (0+ / 0-)

    and read for three months or something?

    Since a final ruling won't happen for three months, what do they do in the mean time?

    President Obama, January 9, 2012: "Change is hard, but it is possible. I've Seen it. I've Lived it."

    by Drdemocrat on Wed Mar 28, 2012 at 01:37:14 PM PDT

  •  what happens if (0+ / 0-)

    what happens if 5 justices declare the individual mandate unconstitutional, and the 4 no votes on that question also vote no on the three options today (striking the whole law, striking just the mandate, or striking the mandate and related parts of the law) and the remaining 5 (who voted that the mandate was unconstitutional) cannot agree on what to do, meaning none of those three options from today get a plurality vote?

    Can the decision be so f-ed up that the law has to stand even though the majority thinks the individual mandate is unconstitutional?

    "Every Pootie is a masterpiece." - Da Vinci

    by mdsiamese on Wed Mar 28, 2012 at 01:37:50 PM PDT

    •  Why, California falls into the ocean, of course! (0+ / 0-)
    •  Yes (0+ / 0-)

      7 or 8 of them might throw their hands up and yell "To hell with this, let it stand" and write a myriad of varied opinions.

    •  if 5 agree the mandate is unconstitutional, (0+ / 0-)

      then it is unconstitutional and the mandate falls.

    •  They confer, and confer... (0+ / 0-)

      If there is no clear plurality, or majority, the the Chief Justice usually takes the responsibility of writing the Opinion (but not always). That's one very small reason why he's paid the big bucks.

      Well that, and administering the entire federal court system.

      "These assholes always get away.".
      ~George Zimmerman~ Economic
      Left/Right: -7.75
      Social Libertarian/Authoritarian: -4.51

      by Bud Fields on Wed Mar 28, 2012 at 04:08:40 PM PDT

      [ Parent ]

      •  No. (0+ / 0-)

        Assuming five agree that the mandate falls, then it does.

        Realistically, other parts will fall. I find it hard to believe there won't at least be five votes to strike the parts the Administration is agreeing have to go along with the mandate.  The four who disagree that the mandate is unconstitutional don't have to just stop there, they can still turn around and say that it is inextribably tied to other aspects of the legislation.  (I should put a disclaimer on that last part, if you had asked me yesterday, I would have said that I was certain of that, but I've read too much stuff today that seems to say otherwise; I still think I'm right and everyone else is wrong, but I'm willing to admit to some doubt and an unwillingness to spend enough time researching it at this point).

        The best pizza comes from New York.

        by JakeC on Wed Mar 28, 2012 at 07:22:56 PM PDT

        [ Parent ]

        •  I do know what you mean. (0+ / 0-)

          The information, and the punditry is a bit of an overload for me, too. The question is, how will we make it until June, otherwise? And what will we do?

          Thanks for your comment. :)

          "These assholes always get away.".
          ~George Zimmerman~ Economic
          Left/Right: -7.75
          Social Libertarian/Authoritarian: -4.51

          by Bud Fields on Wed Mar 28, 2012 at 07:37:36 PM PDT

          [ Parent ]

  •  Never thought we'd be praying for Roberts. (0+ / 0-)

    Kinda funny that we are hoping for a Roberts led victory here.  I guess he's the least conservative of the conservative bloc, (if you count Kennedy as pure swing of course)?

  •  I just can't see Kennedy striking down the whole (3+ / 0-)
    Recommended by:
    madmojo, idbecrazyif, ChadmanFL

    law, i mean the law clearly has things that are already in place, tax credits, kids staying on their parents insurance etc...i think it will either be 5-4 or 6-3 in favor of upholding the whole thing.

    •  I think Kennedy feels he has no choice.. (3+ / 0-)
      Recommended by:
      guinea, ChadmanFL, coral

      and will have to strike down the ACA.  He is clearly ruling against the individual mandate and his comments today suggest that entire Act has to go with it.  

      The Federalist are in control now.  The ACA is dead.

      Trust-Fund Kids of America Unite... save the Bush tax cuts!

      by JCPOK on Wed Mar 28, 2012 at 01:47:32 PM PDT

      [ Parent ]

      •  That's certainly possible but he's not one to go (0+ / 0-)

        with the conservatives cause he feels like he has to, he's usually pretty independent thinking on most issues.

      •  I've read your opinon. Several times. (0+ / 0-)

        I believe your read on Kennedy is incorrect, so that's a difference of opinion. I believe the ACA is, and will remain the law of the land. I hope it is. My survival depends on it, so I will admit prejudice.

        When I see your words, it is exactly like getting a death sentence from a Doctor, who measures my lifespan remaining in terms of minutes.

        While I do have a bias for stating my opinion, I also have the ability to see things as they are. There is just entirely too huge a mountain of evidence to tell me that, in the final analysis, the Court will leave ACA as is, because not doing so is simply an unacceptable option because of the consequences.

        While they may put a speed bump in the Commerce Clause, and post a Speed Limit, they won't overturn ACA.

        "These assholes always get away.".
        ~George Zimmerman~ Economic
        Left/Right: -7.75
        Social Libertarian/Authoritarian: -4.51

        by Bud Fields on Wed Mar 28, 2012 at 04:13:30 PM PDT

        [ Parent ]

    •  Fingers crossed (0+ / 0-)

      But, pessimism is trumping optimism.

      We here are keyboard lawyers.  Many of the people here that create diaries on this issue are, at best, lawyers that know legal jargon and things but do not truly know all that much about supreme court issues and the constitution although more than most of we laypeople.

      From what I see from being a layperson, I think the mandate issue and maybe one or two others will taken out of the bill and the rest left for the legislators to reformulate and deal with.  

      I am not in favor of that.  But I think this will be the end result.

  •  you know how this ends (7+ / 0-)

    somehow they will make Jeb Bush president  ;)

    Bad is never good until worse happens

    by dark daze on Wed Mar 28, 2012 at 01:42:24 PM PDT

  •  my thoughts (2+ / 0-)
    Recommended by:
    ChadmanFL, Norm in Chicago

    Lets say that the Court decides that Congress does not have the power under the Commerce Clause to enact the Mandate. Then we have:

    1) The rest of the ACA is Constitutional under the Commerce Clause

    2) The Mandate is necessary for the rest of the ACA

    3) THUS, the mandate is constitutional under the Necessary and Proper Clause.
    _

    How do you argue both that the mandate is necessary to the rest of the constitutional law, so that it is not serverable, but that it doesn’t fall under the Necessary and Proper Clause?

    In other words, I believe that if the Court wants to strike down the entire law, it will have to find that the mandate is necessary for the entire law, but that it violates some other principle (Substantive Due Process, Lochner-style?) besides just not falling under the Commerce Clause power.

    •  If there is a will, there is a way (6+ / 0-)

      The Conservatives on the Supreme Court do not give two shits about the Constitution, the Law or the People of the United States. Scalia worked hard to expand the definition of interstate commerce and the power of Congress. If he votes against the Individual Mandate then he will be committing a major policy flip.

      It is no surprise that is having a come to Jesus moment when a bill passed by Democrats that is getting more popular by the day.

      f the law goes down I hope the Democratic Party and Our Presidents have the stones to say "Fine, we gave you a chance. Now we obviously have to do it our way and open medicare for everyone."

      Do not forget, Newt Gingrich was advocating for the individual mandate back in 93. Of course the issue then was should we require all employers to provide coverage. When a Republican wants an individual mandate its about "Personal Responsibility".

      When a Democrat wants it, it is socialism. When a black Democrat wants it it is "super secret death camp Kenyan fascist socialism... oh yeah, he might be a Muslim and not an American citizen... what... I'm just saying its possible...."

      "The Founding Fathers envisioned a robustly Christian... America, with churches serving as vital institutions that would eclipse the state in importance." The Real Ron Paul

      by 815Sox on Wed Mar 28, 2012 at 02:01:24 PM PDT

      [ Parent ]

  •  Scalia is such a narcissistic toddler. He never (1+ / 0-)
    Recommended by:
    indie17

    grew up, he just grew older.

    48forEastAfrica - Donate to Oxfam> "It is better to light a candle than to curse the darkness." Edna St.V. Millay

    by slouching on Wed Mar 28, 2012 at 01:49:40 PM PDT

  •  Seems to me, killing the mandate effectively (1+ / 0-)
    Recommended by:
    bgold

    tosses the whole thing.

    A GOP House will simply not vote new funding to make up for it.

    Insurance companies will refuse to write policies under those conditions.

    Practically speaking, does it really matter whether SCOTUS strikes the whole statute or just the mandate?  I see little practical difference.  If the mandate goes, so too goes the rest, even if it is only by starving the beast.

  •  Cute! (2+ / 0-)
    Recommended by:
    indie17, cosmicvoop
    JUSTICE SCALIA: Mr. Kneedler, what happened to the Eighth Amendment? You really want us to go through these 2,700 pages?
    (Laughter.)

    JUSTICE SCALIA: And do you really expect the Court to do that? Or do you expect us to -- to give this function to our law clerks?

    Is this not totally unrealistic? That we are going to go through this enormous bill item by item and decide each one?...

    JUSTICE KAGAN: I mean, we have never suggested that we were going to say, look, this legislation was a brokered compromise and we are going to try to figure out exactly what would have happened in the complex parliamentary shenanigans that go on across the street and figure out whether they would have made a difference.

    Instead, we look at the text that's actually given us. For some people, we look only at the text. It should be easy for Justice Scalia's clerks.

    (Laughter.)

    MR. KNEEDLER: I -- I think -- I think that -

    JUSTICE SCALIA: I don't care whether it's easy for my clerks. I care whether it's easy for me. (Laughter.)

    Good to see the Justices can still keep it light while deciding how many people should die for the whims of our corporate overlords!

    Proud supporter of nuclear power!

    by zegota on Wed Mar 28, 2012 at 02:18:29 PM PDT

  •  The part of this diary I really get (0+ / 0-)

    in bold

    I don't see a strong five votes for killing the whole bill, but have no idea what the result would be, or why.

    The modern conservative is engaged in one of man's oldest exercises in moral philosophy;the search for a superior moral justification for selfishness

    by CTMET on Wed Mar 28, 2012 at 02:38:10 PM PDT

  •  People scorned my anticipation of (1+ / 0-)
    Recommended by:
    Dumbo

    not only the current Supreme result,
    but also of the likely fall of Obama over it.

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

    I am still pretty certain you are wrong.

    •  Yup. (1+ / 0-)
      Recommended by:
      bgold

      All the more elegant offerings (like Medicare for all) were poo-pooed back in 2009 as purist fantasy, but it turns out the incremental approach was the less realistic approach.  Who coulda thunk that a bill that would have changed Medicare by lowering the eligibility age (a simple one word, one number change to the text of existing legislation) would be found to be less realistic and more vulnerable than a legislative monstrosity contrived by corporatist opportunists, one that was designed to be vulnerable to repeal or overturning for five years.

      •  In 2007 there were seven Democratic candidates (0+ / 0-)

        actively campaigning for president. They all included health care reform proposals. John Edwards and Hillary Clinton had proposals that were similar to where the ACA ended up, but with a public option included in the exchanges. They included a mandate. Obama and Biden had proposals similar to those of Edwards and Clinton, but with no mandate. (I don't remember what Chris Dodd proposed.) Bill Richardson had a simple plan: lower the age for Medicare to 50. Only Dennis Kucinich was for a single-payer plan, and he was hardly a serious candidate. He didn't campaign in Iowa.

        To expect something different than the ACA in 2009 would have required a different president and a whole different bunch of members of congress.

        •  If nothing else was possible, (0+ / 0-)

          then there was never any point to the exercise.  Because it will very likely soon be declared unconstitutional.

          I'm not married to the idea of single payer.  I would prefer it.  I am pointing out, however, that there were plans that were deemed "impractical" that would not be as legally vulnerable as the ACA has turned out to be.

          Also, I wonder now, since you mention it,  if the Supreme Court would be justified in throwing out the public option if it had been included in the ACA.  It was conceptually totally disconnected from the logistics of the rest of the ACA.  

  •  Well lets not forget (0+ / 0-)

    this is a court who believes that corporations are people.

  •  Just listened to a former Kennedy clerk (4+ / 0-)
    Recommended by:
    LordMike, askew, Nisi Prius, Adam B

    interviewed on NPR.  He said that Kennedy is notoriously difficult to read, that his questioning from the bench is a form of thinking out loud, and that he formulates opinions in the days and weeks after oral arguments.
    His first-hand insights confirmed, for me at least, that this thing is a complete toss-up, that I should stop reading pundit "analysis", and just put this out of my mind until June.

    •  Doctors and hospitals (0+ / 0-)

      will not enjoy waiting for this decision.

      Most do not think highly of the law.  It is thought to be better than nothing, but no where near as good as could have been constructed.

      Of course, that halts about 1/5th of the American Economy for the next three months, but, what the heck.

      Indecisiveness makes for bad medicine and little progress.

  •  Shorter Scalia: (1+ / 0-)
    Recommended by:
    bgold

    They made the bill so big and complicated, we have to either leave it alone or repeal the whole thing.

    It's a pretty solid point, actually.  You can make arguments against it, but the gigantism approach obviously had this detriment FROM THE BEGINNING.

    Since this bill seems to be in grave risk of being overturned in whole very soon, it's not premature or inappropriate to ask the following question:

    Why didn't they pursue a simpler, more elegant approach that would have had fewer sops to the large insurance companies, but would have been simple enough for every ordinary American to understand and have an opinion on that wasn't based on fear borne from ignorance and right-wing fear-mongering?

    There were such alternatives offered at the time.  The simplest, the very simplest, was extending Medicare, either to everybody (Medicare for all) or to those 55+.  The 55+ compromise approach was particularly compelling, because all it did was change ONE NUMBER in the text of existing legislation -- the eligibility age.  Everybody would have understood the stakes immediately, whether they approved or not.  And if it succeeded, there would be a clear, smooth glidepath to extending Medicare eventually to everybody, one nibble at a time, as people became resentful about why THEY weren't eligible too.

    But that was strangled in the crib by the Obama administration (Rahm Emmanuel acting as executioner) because it would have distracted attention away from this bill -- one which will probably turn out to have been vulnerable to overturning from the beginning.

    "Oh, but Dumbo!  Nobody could have possibly foreseen that this would happen with a 5-4 Supreme Court!"

    I guess not.  Nothing ever seems foreseeable.  But shouldn't even the prospect of that, and just the knowledge of the the FIVE LONG years of vulnerability (2010-2014) that this bill had, five years within which the Republicans could demonize it, raise anxieties, and nibble at it piecemeal, before Americans at large felt real benefits from it, enough to feel they needed to KEEP it -- shouldn't that knowledge have been a warning?  Shouldn't they have said, "Gosh, if we don't implement this more quickly, it will be undone and people won't care because they won't miss it."

    There are many people benefitting from the ACA right now.  There are many more that are experiencing no benefit from it, and who are paranoid that this is it, that the massively higher health care bills that they have received since 2010 are the RESULT of Obamacare.  Like my sister and brother-in-law, who greeted me last time we met with, "So how do you like this Obamacare?  We can't afford our premiums anymore!"  To them, they believe they are living under the ACA already, and my trying to argue otherwise, talking about 2014, etc., falls flat.

    SOOOOO... Why didn't we pursue a simpler, more elegant approach?

    Because everybody had to have their finger in the fucking pie.  Assholes like Conrad and Dorgan had to have their tribute.  The insurance companies had to have their palms greased with assurances (but they lobbied against it anyway).  The public option had to be sacrificed to preserve the dignity of blue dogs who wanted to campaign against the bill.  The big pharmaceutical companies wanted to get their promises of greater wealth to come without competition.  And every wonk in Washington had to have their chance at it, building this Frankenstein Monster which was going to be vulnerable to distortion, repeal, and piecemeal scavenging for five long years.

    This is such a huge joke.  The Democratic Party leadership is such an incompetent assemblage of out of touch fools and wonks and village idiots who don't really have the same sense of direction that the people who vote for them do.  

    That's how we got into this.

    And ultimately, it won't be their fault, of course.  Nobody could have foreseen Scalia and the broccoli, no sirree.  Nothing is ever anybody's fault in Washington.  Shit just happens.  

    The worst aspect of this isn't even the judicial repeal of ACA.  The worst aspect is that a Democratic president came into office with the biggest mandate for real CHANGE in decades, and he dithered and compromised the opportunity away until the window closed -- and we won't have another chance at healthcare reform for another generation.

    Really.  What politician would want to touch this mess and be tarred by it after it is overturned?  They'll wipe it from their minds.

    •  Howard Dean, MD (2+ / 0-)
      Recommended by:
      Dumbo, ggav11

      said a great deal of this.

      Including that the long wait from enactment to enabling would kill the intent.

      But, no one listened.  Especially, Barack Obama did not listen.

      http://www.pnhp.org

      •  Sigh, okay (0+ / 0-)

        If only they'd listened to Dr. Dean and killed the bill when he said to we'd now have single payer Medicare for all....whatever....

        Seriously, I respect Dean, but many of his comments on HCR have been less than helpful, to put it mildly.  In truth, for all of its flaws and constitutional questions ACA goes a lot further than anything Dean put forth when he was actually running for national office.

        36, MD-8 (MD-6 after 2012) resident, NOVA raised, Euro/Anglophile Democrat

        by Mike in MD on Wed Mar 28, 2012 at 08:58:06 PM PDT

        [ Parent ]

    •  That's like the GOP blaming Obama for (0+ / 0-)

      a slow recovery of the economy.

      Our dysfunctional health care hodgepodge was a product of many decades. We were, and still are, in a policy trap that provides too many groups with reasons to oppose reform, including all those people like your sister and brother-in-law who have good health insurance coverage through their employer and see any change in the status quo as a threat.

      Given the nearly insurmountable political difficulties, I see the ACA as an amazing accomplishment -- a BFD!

      Sure, it should have been fully implemented yesterday and been something simple like Medicare for all, but that's just pie in the sky.

      For an excellent book on health care reform, including the enactment of the ACA, see: Remedy and Reaction by Paul Starr.

      •  To be clear, they don't have insurance (1+ / 0-)
        Recommended by:
        cocinero

        through their employer.  They have to purchase their own.  She's a real estate consultant in Nevada.  The prices of health insurance -- for those who have to actually purchase it, rather than have it taken care of invisibly by employers -- has gone WAY up across the country since the passage of the ACA.  This has been commented on many times, so it shouldn't be news.

        Is this happening because of the ACA?  No.  It's happening because the ACA doesn't take effect yet, and they were given a big window of opportunity to gouge prior to its taken effect.  Which it will never do, apparently, if the Supreme Court rules against it, as seems likely now.

        But the fine details of how and why this is happening to their insurance rates escapes people like them.  Of course it does.  They actually think if the ACA goes away, their rates will go back to 2009 levels.  And they're not stupid.  They're just ignorant of all the facts and too busy to sift out the details.  The debate for people like them is boiled down as "This was my bill before, this is my bill now."

        And this was conventional wisdom with some people here in 2009.  Not so wise now:

        Given the nearly insurmountable political difficulties, I see the ACA as an amazing accomplishment -- a BFD!

        Sure, it should have been fully implemented yesterday and been something simple like Medicare for all, but that's just pie in the sky.

        ACA turns out to have been pie in the sky for all the reasons detailed.  Medicare for All, however, may very soon be demonstrated beyond a shadow of a doubt to be the LEAST pie in the sky.  A BFD bill that is dead on arrival at the 5-4 Supreme Court can't be seen as either a BFD or practical.  It's just a failure that was pursued at the expense of other plans that MIGHT have succeeded.  

        This should really be the end -- play TAPS here -- for the argument that Medicare for All, or any of the other suggested plans -- were impractical.  They can't be less practical than a plan that's visibly DOA.

        •  Thanks for your response. (0+ / 0-)

          There's a lot I agree with. People like your sister and brother-in-law are the ones who are at greatest disadvantage with our current health care funding hodgepodge.

          I won't give up on the ACA until after the Supreme Court issues its ruling. Questions asked in oral argument may be an indication, but they are not a ruling.

          Medicare for all with serious price controls would be the best way to fix our health care mess, but I don't see a politically viable pathway for that to happen. It certainly was not a possibility in 2009.

  •  How does this affect Medicare? (0+ / 0-)

    There are a number of changes to Medicare in the ACA. Are those being considered?

    I can see why the provisions affecting insurance coverage (pre-existing conditions, no lifetime caps) might fall if the mandate is ruled unconstitutional. But there are many other provisions in the law. What would be the reason to throw out the whole thing?

    •  Because it's hard to determine what's "independent (1+ / 0-)
      Recommended by:
      Adam B

      Sometimes the court can sever the parts that are objectionable from the rest. But as the questioning indicated, going through a massive and complex bill and deciding "this section is unrelated to the mandate so it stays; this one is somewhat related so it falls" means "legislating from the bench." Scalia at least recognizes the difficulty, both practical and political, of doing that scalpel dissection.

  •  Those medical instruments pictured? (0+ / 0-)

    They take EIGHT WEEKS to produce, BTW. The good ones, anyway, from Germany. You don't just stamp them out with a machine.

    "You can't run a country by a book of religion. Dumb all over, a little ugly on the side." Frank Zappa

    by Uosdwis on Wed Mar 28, 2012 at 04:29:35 PM PDT

  •  I'm no expert, but it sounds encouraging, (0+ / 0-)

    the conservative justices appear to be concerned about the abominable mess they would create by striking out, either just the mandate, or the whole thing; hopefully the fiasco that has been citizens united has taught them a lesson.

    Quisquis sollers subtilisque sententia a praeclaro antiquo Sapiente latine scripta, sicut consuetudo est apud Kossackos.

    by French Imp on Wed Mar 28, 2012 at 04:32:06 PM PDT

  •  The SCOTUS has no business deciding for (0+ / 0-)

    Congress what they are or are not capable of doing.

    If SCOTUS is thinking of striking the mandate, then they should ONLY strike the mandate and let Congress deal with figuring out a new funding mechanism.

    That is the job of Congress, and however imperfect, that is what they do best.

    Some of the comments on the conservative side of the bench in favor of scrapping the whole bill seem to stem from a disdain they have for the legislative branch and its ability to do its job.

    It will be heartbreaking to see SCOTUS stomp the life out of something that took over seventy years to get as far as it has come today (especially since it still has so much further to go).

  •  I understand states rights and all (0+ / 0-)

    but in the Medicaid expansion it isn't their money in the first place.  The whole robbery thing is stupid.  If I hand you 1000 dollars and say hey go give that to charity and you insist you aren't going to do that do I not have the right to ask for it back?  Now of course threatening someone with a gun is illegal but the government isn't going in with the Marines to get it back, they are simply not giving it in the first place the next time.

    I have to believe the Justices are smarter than that.... well some of them... which is how i hold out hope.

  •  Pity no Farr didn't offer something like (0+ / 0-)

    "Your honor, it's true that if the mandate--and nothing else--is severed, there's a serious fiscal problem that the remaining legislation creates. But that's not the Court's problem to solve. That is, in fact, Congress's responsibility. In fact, it would be presumptive of the Court to take on the responsibility that is explicitly Congress's, which is to say, how to fund legislation that they chose to pass in the People's interest.

    "So the proper thing is for the Court to rule on the constitutionality of the mandate, and nothing else. The political hot potato is not the Court's responsibility. It's the responsibility of the legislature and the executive to resolve the matter.

    "You've observed that it takes 60 votes in the Senate to pass a bill that revokes the rest of the act. In the current dysfunctional situation, where almost nothing passes without being able to force cloture, that's likely correct. But do any of us truly believe that Congress will literally do nothing if the Court severs the mandate, finds it unconstitutional, and tells Congress 'either fund it in a constitutional manner (which certainly could be done) or pass legislation that changes it or revokes it.' The budgetary crisis that severing the mandate would create is Congress's problem, and it's a problem that they can solve. They just don't want to. But it is not the Court's responsibility or job to do the legislature's dirty work. However the act is funded, someone will be unhappy about it, whether that's because taxes go up or other things are cut. But that decision is the legislature's responsibility, and the Court should not do the job for them.

    "Yes, it's an election year, and this will be a very hot item. But I do not believe that those legislators running for re-election can return to face the voters without having resolved this in some manner. If they do, the voters will have good reason to vote in legislators who can and will find a solution and a funding mechanism.

    "In short, it's a real concern, but it is not the Court's problem or responsibility. The solution here is properly a legislative one, and it is possible for the legislature to resolve it. The potential budgetary catastrophe will not be immediate, it's down the line. There is plenty of time for the legislature to do its job. The Court should let it--and in effect, obligate it to do so."

    "Be just and good." John Adams to Thomas Jefferson

    by ogre on Wed Mar 28, 2012 at 05:40:56 PM PDT

    •  It would be ignoring the law, and history (0+ / 0-)

      There is a reason that Congress will insert severance clauses into laws, because if Congress wants most of the law to survive in the event that part of it fails, that's what they do.

      But, legislation can be a complicated machine, where if you strike one part while leaving the rest can create a result that is abhorrent to everyone.  In that case, the Congress doesn't include the clause, because if part of the law fails, they want the whole thing to go down.

      And, sometimes Congress hands a whole mess over to the Courts, and then they have no choice but to sort it out.

      The best pizza comes from New York.

      by JakeC on Wed Mar 28, 2012 at 07:07:33 PM PDT

      [ Parent ]

  •  I now know what a "puke" is (0+ / 0-)

    Thanks to Scalia's comments and questions, I finally have a clear definition of that adjective.  

    The man who supported Reagan's mandatory drug testing of private employees - without cause and at the expense of the employer, is worried that mandated acceptance of pre-existing conditions damaging profits of insurance companies is unconstitutional (his words). I admit I'm not one of the "great legal minds" of our times, but I don't think there's anything in the constitution guarantying any insurance company "The Right To Profit."

    This "strict constructionist" argues that the Supreme Court has the duty to completely reject the entirety of the law if (in HIS opinion) they strike down the "most important parts" of the legislation.  So not only does the SCOTUS eliminate portions they find unconstitutional, they should also eliminate other sections, even if they are constitutional. Sounds like "legislating from the bench" and "judicial activism" to me.

    Well, at the least I can say for certain I know what it means when you call someone a "puke."

    The Founding Fathers were a bunch of East Coast liberals

    by ImaJoeBob on Wed Mar 28, 2012 at 05:47:24 PM PDT

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