Skip to comments.Court takes health care case behind closed doors
Posted on 03/29/2012 8:13:18 AM PDT by Ernest_at_the_Beach
WASHINGTON (AP) -- The survival of President Barack Obama's health care overhaul rests with a Supreme Court seemingly split over ideology and, more particularly, in the hands of two Republican-appointed justices.
Chief Justice John Roberts and Justice Anthony Kennedy put tough questions to administration lawyers defending the health care law during three days of arguments that suggested they have strong reservations about the individual insurance requirement at the heart of the overhaul and, indeed, whether the rest of the massive law can survive if that linchpin fails.
But Roberts and Kennedy also asked enough pointed questions of the law's challengers to give the overhaul's supporters some hope. In any event, justices' questions at arguments do not always foretell their positions.
The court's decision, due in June, will affect the way virtually every American receives and pays for health care and surely will reverberate in this year's campaigns for president and Congress. The political effects could be even larger if the court votes 5-4 with all its Republican-appointed justices prevailing over all the Democratic appointees to strike down the entire law, or several important parts of it.
(Excerpt) Read more at hosted.ap.org ...
Don’t forget one more point:
If all nine justices vote, that means that Elena Kagan must be impeached for not recusing herself as the law requires.
And if that fails to happen, we’ll have somewhere close to a hundred senators to reject over the next three Novembers, and a couple hundred congressmen too.
Failing to impeach Elena Kagan for failure to recuse herself from this case is, in my opinion, an impeachable offense for any legislator. The case is simply too clear; there’s no question about it.
H/T to the Drudge Report.
It is truly sad that such a simple thing can be so complicated by this court. Law is black and white.
1. Is the foundation of our constitution founded on the rights of the individual? Yes or no. The answer is yes.
2. Is an individual who does not buy insurance participating in interstate commerce? The answer is no.
Note: Is the effect of the person not buying insurance felt at an intestate level? The answer here is that it is an irrelevant question. You can’t use the butterfly effect to give the FedGov the right to do ANYTHING.
3. Is the mandate, therefore, unconstitutional? Answer is yes.
When part of a contract or law is stricken down and the law has a severability clause, is the whole law stricken down? The answer is no.
When part of a contract or law is stricken down and the law has no severability clause, is the whole law stricken down? The answer is yes.
Does this law have a severability clause? No.
Is the whole law stricken down? Yes.
These should all be 9-0 decisions, if we have rational, thinking adults on the court that are familiar with the constitution of the united states.
It is literally that simple.
—If all nine justices vote, that means that Elena Kagan must be impeached for not recusing herself as the law requires.—
You are right. It should be 8-0
If there were a conservative party in the United States, it would be proposing an Amendment to the Constitution to restrict the use of the Commerce Clause by the federal government since our modern jurists and representatives perceive it has infinite elasticity. Given that Congress is likely to be unwilling to restrict its own behavior, this change will need to occur via petition from the states for a convention.
Unfortunately, there is no conservative party and there is no organized effort to return to Constitutional law. Both Republicans and Democrats in Congress, the Executive Branch, and the Judiciary benefit from the current approach to governing using a “living” constitution.
“Ok, so seeing as we’re not architects, how can we remove the entire ground floor from this high-rise building without affecting other floors?”
“Ok, so seeing as we’re not doctors, how can we remove the patient’s heart but keep him alive and get him back to work?”
“Ok, so seeing as we’re not cooks, how can we remove meat from the menu but keep this Brazilian steakhouse popular?”
I agree with you but why has CJ Roberts said she need not?
If she recuses, it could mean a tie...and I think a tie means the opponent (Obama) wins. I think that’s what I remember.
Not familiar with the inner-workings of the SC.... so can someone shed some light?
What takes place after the case is heard? Do the justices, alone or with aides, deliberate? If so , how long? Do they take an initial vote prior to deliberations? Is the procedure like a jury would follow? How do they determine who writes majority/minority opinion?
There is a Constitution Party.
Most young people wouldn’t know what a Constitution is.
Please educate me as to where in the Constitution it provides for the impeachment of Justices of the Supreme Court. I can’t seem to find it. Thanks!
Oral arguments are a formality for show. They may or may not have any bearing on deliberations.
Judges now convene to discuss, vote, form alliances, vote again, lather, rinse, repeat, and then write their various opinions. They take as long as they like.
Not only was she involved as SG prior to the Supremes, but she was involved AS ACTING SG, basically, voicing government arguments to questions, filling in for Verilli when Verilli could not.
Pray very hard for the health of the other 5, at least until the end of the year.
Question, can SCOTUS appointments be done as recess appointments?
It is literally that simple.
Oh you rational thinkers.
Have I not repeatedly told you, never, ever, ever try to use logic and reason with a liberal.
There are four insane liberals on SCOTUS and one is a trans-liberal-moderate-conservative.
You are correct, it should be 9-0, in fact it never should have gone this far, but logic and reason will not apply to liberals.
Was Kagan the one talking about all the bundles of money that is going to be thrown to the states and the half a load crap. Kind of totally goofy question and statement, not scholarly at all!!!
contitution party is the vote splitting party funded by democrats in order to split republican votes.
I assume chances of persuasion/changing of the minds is very slim at this point. Otherwise, the mental midgets (Bader-Ginsberg, Kagan, Sotomayor...) would would be overwhelmed, like going to a gunfight with a BB gun.
So now it is just a matter of who gets to write opinions and key wording within the writings?
Pray for the safety of the judges on the Supreme Court. The Rats would do anything to have a chance to nominate another Judge to replace the 5 conservative judges.
If five vote to toss it, Kagan will switch sides and vote with them.
Then they will unleash attacks on us for having the temerity to question her integrity. This will immunize her against this charge on all future cases.
Sadly, I heard absolutely nothing out of Sonya Sotomayor which would indicate that she is a rational thinking adult.
From Volokh Conspiracy via Instapundit
IGNORANCE IN OFFICE: Democratic Congressman and Senators on Constitutional Authority for ObamaCare:
Most of us know that when then-Speaker Pelosi was asked where the Constitution gives Congress the power to enact an individual mandate, she replied with a mocking are you serious? Are you serious?
Here are a few more pearls of constitutional wisdom from our elected representatives.
Rep. Conyers cited the Good and Welfare Clause as the source of Congresss authority [there is no such clause].
Rep. Stark responded, the federal government can do most anything in this country.
Rep. Clyburn replied, Theres nothing in the Constitution that says the federal government has anything to do with most of the stuff we do. How about [you] show me where in the Constitution it prohibits the federal government from doing this?
Rep. Hare said I dont worry about the Constitution on this, to be honest [...] It doesnt matter to me. When asked, Where in the Constitution does it give you the authority ? He replied, I dont know.
Sen. Akaka said he not aware of which Constitutional provision authorizes the healthcare bill.
Sen. Leahy added, We have plenty of authority. Are you saying theres no authority?
Sen. Landrieu told a questioner, Ill leave that up to the constitutional lawyers on our staff.
Something to keep in mind when someone argues that the Supreme Court should defer to the constitutional wisdom of its coequal branches.
Kakistocracy. Plus, from the comments: The salient point is the fact that few members of Congress even read the 2700-page bill; yet some argue still that the Supreme Court should give Congress the presumption of Constitutionality in the bills it passes? Worse than ridiculous, such a contention is a call for judicial abdication of responsibility. And it is quite blatant. It is a call to abandon checks and balances, the very underpinning of our form of government. It is a call to tyranny.
Posted at 4:49 pm by Glenn Reynolds
I think the term was “boatloads of money”.....served up by the mighty printing press of course.
Kagan was not appointed for quality of her brain just the promise of her pro-communist vote.
Kagan is exhibit number one as to why judges are no longer respected.
They definitely don't feel there is a limit to the Federal Governments reach....States are just a hangover from an Agriuarian past.
Given her past practices, Sotomayor has already written her opinion supporting commie-care.
As they are being drafted, opinions may be circulated among the justices, or informal meetings may take place among the justices or in any conbination.
As the opinions firm up, justices will indicate with which opinions they concur and from which they dissent. The majority opinion is the opinion on each issue on which the majority of justices concur. Those who do not concur will prepare a dissenting opinion (since the dissenting opinions I have read almost always reference and criticize the majority opinion, they are presumably prepared after the majority opinion has been approved.) Justices may preapre opinions that dissent, or concur in part and dissent in part, from the majority decision.
Court tradition is that these deliberations occur in strict privacy (although law clerks may be involved). However, given their personalities and political leanings, it would not surprise me to hear a leak coming from either Kagan or Sotomayer.
I think it is important to note that the justices are not in any way limited by the oral presentations - there are numerous briefs that have been filed and were not alluded to in the oral arguments. That the justices didn't ask questions on them generally means they feel sure, for better or worse, of the legal argument being made. The questions during the oral arguments may be grandstanding - a way of presenting their opinion directly to the public, or questions where an argument is not perfectly clear. A argument they need clarified won't automatically be rejected and an argument they seek no clarification on may not be accepted. So the questioning sometimes doesn't give any more than a peak as to what a Justice is thinking - though I'm prepared to make my famous Pasta e fagioli soup for the entire court if Scalia doesn't issue a scathing opinion on this whole mess. (If Justice Scalia happens to be reading, you can have soup either way, so don't let it prevent you from letting this legislation "have it" with both barrells.) An enterprising grad student might examine Scalia's opinion and find there are coded italian curses throughout! (Though I've seen Ginsberg at the opera, so she might have an understanding of Italian on, at least, an elementary level.) LOL
Ever heard of Justice Samuel Chase?
If the libs are going to prevail 5 - 4, she won't recuse.
If the conservatives are going to prevail 5 - 4, she will recuse.
No, the Constitution Party is an alternative to the increasing liberal Republican Party....McCain, Romney, when is it going to end? The Republican Party is just another big government party at this point.
constutution party is a wasted vote period. they have zero viability. during the bush vs gore year we had constutution party ads run in markets with tight races in order to fool useful idiots.
Associate Justice Samuel Chase was indeed impeached (though acquitted by the Senate). The only Justice who has been impeached. Article II, which deals mainly with the Executive Branch, does state: "The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors."
So, I suppose, the Supreme's are "civil Officers" and can be impeached for the reasons stated. I personally would not attempt to argue failure to recuse is "Treason, Bribery, or other high Crimes and Misdemeanors" and given the virtually non-existent chanche of getting a 2/3 rds vote to convict in the Senate, it seems academic.
But I appreciate the question and the opportunity to expand my knowledge of American History. (And Jefferson doesn't exactly come off as a saint in the affair, based on my reading).
A vote for Romney is a wasted vote period. He has zero credibility and is hard-core liberal.
Voting for Republicans over and over despite their liberalism is foolish.