Posted on 06/02/2011 4:35:44 PM PDT by BCrago66
The Sixth Circuit held oral argument yesterday in its case on the constitutionality of the individual mandate. The arguments to dismiss on procedural grounds are here (30 minutes), and the arguments on the merits are here (65 minutes). I just finished listening to the merits argument, and it was an excellent discussion for anyone who is following the mandate debate (you should start listening at the 9-minute mark). Judge Sutton’s questions to both sides were particularly penetrating.
(Excerpt) Read more at volokh.com ...
In one of the posts below, I'll post a quick run-down of the 3 judges in the 6th Circuit panel who sat for the oral argument yesterday.
Here are the direct links to yesterday’s oral argument at the 6th Circuit. These are mp3’s which in my system open up a QuickTime player.
Opening Remarks, by the Clerk of the 6th Circuit
(just a minute or so):
http://www.ca6.uscourts.gov/internet/documents/10_2388_Opening_remarks.mp3
Argument on the Government’s motion to dismiss:
http://www.ca6.uscourts.gov/internet/documents/10_2388_Argumentsonthemotiontodismiss.mp3
Argument on the merits:
http://www.ca6.uscourts.gov/internet/documents/10_2388_Argumentsonthemerits.mp3
Judge’s bios taken from wikipedia:
BOYCE FICKLEN MARTIN JR.
(born October 23, 1935) is the most senior active judge on the United States Court of Appeals for the Sixth Circuit. Appointed by President Carter in 1979, Martin has served as Chief Judge of the circuit and has written more than 1100 opinions during his tenure. Martin lives in Louisville, Kentucky.
JAMES L. GRAHAM (District Court judge sitting by designation on the 6th Circuit)
On August 15, 1986, Graham was nominated by President Ronald Reagan to a seat on the United States District Court for the Southern District of Ohio vacated by Robert Morton Duncan. Graham was confirmed by the United States Senate on September 25, 1986, and received his commission the following day. He served as chief judge from 2003 to 2004, assuming senior status on August 31, 2004.
JEFFREY S SUTTON
(born October 31, 1960 in Dhahran, Saudi Arabia) is a federal judge on the United States Court of Appeals for the Sixth Circuit.
[H]e clerked for Judge Thomas Meskill of the United States Court of Appeals for the Second Circuit from 1990-1991 and then on the United States Supreme Court for Justices Antonin Scalia and Lewis Powell from 1991-1992.
[R]ecognized as the intellectual engine behind a conservative movement of the jurisprudence of the Sixth Circuit as the author of many majority en banc opinions representing the Republican-appointed judges.
____________________
So it’s a couple of conservatives, v. one Carter-era liberal. (Don’t know much about Graham, but he was nominated by Reagan, so I assume he’s OK.) Looks like we win this round. Maybe it doesn’t matter, because this will ultimately be decided by the Supreme Court, but I’d like the Supreme Court to have before it at least one Circuit Court declaring the Individual Mandate unconstitutional, to strengthen the Justices’ resolve a little to do the right thing.
NOTE
I bet Sutton writes the opinion, and it will be kinda strange/interesting for a guy originally from Saudi Arabia to be upholding the American tradition of liberty.
President Obama's solicitor general, defending the national health care law on Wednesday, told a federal appeals court that Americans who didn't like the individual mandate could always avoid it by choosing to earn less money.
Neal Kumar Katyal, the acting solicitor general, made the argument under questioning before the U.S. Court of Appeals for the Sixth Circuit in Cincinnati, which was considering an appeal by the Thomas More Law Center. (Listen to oral arguments here.) The three-judge panel, which was comprised of two Republican-appointed judges and a Democratic-appointed judge, expressed more skepticism about the government's defense of the health care law than the Fourth Circuit panel that heard the Virginia-based Obamacare challenge last month in Richmond. The Fourth Circuit panel was made up entirely of Democrats, and two of the judges were appointed by Obama himself.
During the Sixth Circuit arguments, Judge Jeffrey Sutton, who was nominated by President George W. Bush, asked Kaytal if he could name one Supreme Court case which considered the same question as the one posed by the mandate, in which Congress used the Commerce Clause of the U.S. Constitution as a tool to compel action.
Kaytal conceded that the Supreme Court had “never been confronted directly” with the question, but cited the Heart of Atlanta Motel case as a relevant example. In that landmark 1964 civil rights case, the Court ruled that Congress could use its Commerce Clause power to bar discrimination by private businesses such as hotels and restaurants.
“They’re in the business,” Sutton pushed back. “They’re told if you’re going to be in the business, this is what you have to do. In response to that law, they could have said, ‘We now exit the business.’ Individuals don’t have that option.”
Kaytal responded by noting that the there's a provision in the health care law that allows people to avoid the mandate.
“If we’re going to play that game, I think that game can be played here as well, because after all, the minimum coverage provision only kicks in after people have earned a minimum amount of income,” Kaytal said. “So it’s a penalty on earning a certain amount of income and self insuring. It’s not just on self insuring on its own. So I guess one could say, just as the restaurant owner could depart the market in Heart of Atlanta Hotel, someone doesn’t need to earn that much income. I think both are kind of fanciful and I think get at…”
Sutton interjected, “That wasn’t in a single speech given in Congress about this...the idea that the solution if you don’t like it is make a little less money.”
~snip~
Merits appears to be a very popular file. Direct access put me in the wait loop, doing a “save target” got me three percent in five minutes. I suspect it’ll be better later.
I’m guessing there’s not much back-up capacity on the 6th Circuit servers; usually not too much demand.
The Jon Stewart video was great.
The Cuccinelli/Virginia case is not the same as the 26-state case. And the case in question here is neither of those two.
There was an American airbase there until around 1962. I'll wager he does not even remember Saudi Arabia. It's probably nothing more than a label - like calling McCain republican.
I already identified the present case correctly.
But you’re right, I did confuse the 26-State case with the ones - at least 2 of them - originating in Virginia. The 26-State case originated in Florida, and will arrive shortly before the 11th Circuit, according to this Washington Examiner article, cited earlier in this thread:
That, and the fact it’s a 60 meg file.
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