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Oh my: Is Ginsburg writing the main ObamaCare dissent?
Hotair ^ | 06/26/2012 | AllahPundit

Posted on 06/26/2012 7:32:06 AM PDT by SeekAndFind

Via DrewM, I'm embarrassed that it didn’t occur to me in the other post to ask whether any of the Court's liberals have taken on a conspicuously lighter workload lately. Sotomayor's written the fewest among the Court's left wing, according to Sean Trende, but that might be due to the fact that she's a junior justice and isn't getting as many assigned to her.

What's Ginsburg been up to, though?

There are three cases left on the court’s docket, and the cases will be released in reverse order of the authoring justice’s seniority — beginning with Justice Elena Kagan, the newest justice.

Chief Justice John Roberts is expected to author the majority ruling in the health case — because of its significance and because Justice Anthony Kennedy authored the Arizona opinion, which was the second most controversial case of the term. Plus, neither he nor Justice Ruth Bader Ginsburg have published any opinions since May 24. During that time, every other justice has published at least two majority opinions.

Here's the list of slip opinions for the term at the Court's website. Since May 21, every justice besides Roberts and Ginsburg has authored at least two majority opinions. It's a lead-pipe cinch that there'll be some enormous omnibus dissent responding to the majority in the ObamaCare case, and since Roberts is almost certainly writing for the Court, that leaves RBG as the likeliest suspect for the dissent. Which means the mandate, and maybe the entire statute, is going bye bye.

Or … does it mean something more complex? More from that Politico piece:

The court could strike all of the remaining law, none of the remaining law, just two key insurance reforms, or something in between. So there could be three or more coalitions of justices with similar views, resulting in some kind of 3-4-2 vote breakdown…

For instance: the three most conservative justices could argue that the whole law should come down with the mandate. The four liberal justices could say that the whole remainder of the law should remain in place. And two justices could say that the mandate and insurance reforms should fall. In that case, the four justices would have the most votes, but they wouldn’t have a majority.

So the coalition of three and two justices would essentially combine, and the least common denominator — striking the mandate and insurance reforms — would be the law of the land.

Yeah, given the multiplicity of issues involved in this case, it’d be amazing if there wasn’t a clusterfark of plurality opinions on Thursday morning. Which makes me think, what if they’re splitting the opinion in two, with Roberts writing for five justices on the mandate, say, and Ginsburg writing for five justices on the Medicaid expansion and severability? (Politico notes that this is possible.) Maybe that’s why she’s been quiet for so long — she’s trying to piece together a majority opinion of her own and reworking it as her colleagues object to certain passages in her draft.

Exit question: The mandate gets cashiered but the rest of the statute stays more or less intact. Good enough?

CLICK ABOVE LINK FOR THE VIDEO



TOPICS: Constitution/Conservatism; Culture/Society; Government; News/Current Events
KEYWORDS: ginsburg; obamacare; scotus

1 posted on 06/26/2012 7:32:10 AM PDT by SeekAndFind
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To: SeekAndFind

Bump


2 posted on 06/26/2012 7:38:22 AM PDT by wolf24
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To: SeekAndFind

Who woke up Ginsberg? And why?


3 posted on 06/26/2012 7:38:41 AM PDT by Obadiah (2008: Hope & Change -- 2012: Fear & Destruction)
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To: SeekAndFind

7 to 2, it’s Dead, Jim.............


4 posted on 06/26/2012 7:42:50 AM PDT by Red Badger (Think logically. Act normally.................)
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To: SeekAndFind
Sorry to be a worry wort, but I am beginning to wonder WHY this is taking so long and WHY is this decision coming up last?

According to those in the know, most decisions are rendered shortly after the arguments, thus this case should have been decided a long time ago.

Hope my concern is for naught, but after yesterday's decision, can blame a person for being antsy.

5 posted on 06/26/2012 7:43:25 AM PDT by Conservative Vermont Vet
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To: SeekAndFind

If she does, it will be light on the Constitution, and heavy on emotion. Oh...it may have some South African law thrown in.


6 posted on 06/26/2012 7:44:38 AM PDT by Pharmboy (Democrats lie because they must.)
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To: SeekAndFind

I wouldn’t make too much of this. Ginsburg has one foot in the grave and the other on a banana peel. She probably is doing well just to get up in the morning.

When they gave justices lifetime tenure, our Founders never dreamed people would be living and thus, serving, into their 80s and 90s. This needs to be changed to a term of 20 years, max.


7 posted on 06/26/2012 7:45:39 AM PDT by txrefugee
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To: SeekAndFind
Given the flippant absurdity in Nancy Pelosi's handling of the bill:

“We have to pass the health care bill so that you can find out what is in it.”

The entire bill should be scrapped.

8 posted on 06/26/2012 7:48:32 AM PDT by OldNavyVet
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To: SeekAndFind

After yesterday I’m more concerned she’s written the *majority* opinion.


9 posted on 06/26/2012 7:49:15 AM PDT by Cyber Liberty (Obama considers the Third World morally superior to the United States.)
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To: Conservative Vermont Vet

It seems that I read here on FR that the cases are announced in order of importance or order of seniority by the judges writing the decision. In this case, I feel that the Supremes want it last so they can get out of town immediately after.


10 posted on 06/26/2012 7:50:25 AM PDT by arichtaxpayer
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To: Conservative Vermont Vet

Worry? Why, this is how things always go with the court, the only difference is this time you are paying attention. All the hand wringing in the world is silly.

If the USSC says the government has the power to order people to buy a product or face a fine for simply breathing air, they have completely ignored the constitution and our entire federal government is null and void.

Now does that not mean that the liberals won’t vote the fed should be able to do it? Of course not, liberals never let things like the law stand in their way, but they won’t win. When the arguers for the law couldn’t answer the simple broccolli question, there is no way this thing is remaining as is.


11 posted on 06/26/2012 7:51:07 AM PDT by HamiltonJay
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To: Conservative Vermont Vet
"Sorry to be a worry wort, but I am beginning to wonder WHY this is taking so long and WHY is this decision coming up last?"

Maybe the Justices saved it for last so they could turn off their cell phones and be out the door with no forwarding address by the time the decision reaches the media. Thus avoiding the immediate nasty fallout which will occur no matter which way they rule.

12 posted on 06/26/2012 7:51:42 AM PDT by circlecity
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To: SeekAndFind

I just pray that Ginsburg is not writing the majority opinion and Roberts the dissent.


13 posted on 06/26/2012 7:52:13 AM PDT by Bubba_Leroy (The Obamanation Continues)
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To: Conservative Vermont Vet
Sorry to be a worry wort, but I am beginning to wonder WHY this is taking so long and WHY is this decision coming up last?

What if they knew striking it would lead to an unfortunate accident" either with themselves or close family? What if, given "offers they couldn't refuse", they had to look up all the horrid case decisions that could apply in order to look like this wasn't just an arbitrary ruling pulled outta their arses?

After all, even the king of England was prohibited by his lawyers from requiring the colonies to purchase only from English merchants, so there's a LOT of common law working against the mandate. But, then again, there's no shortage of horrid USSC decisions supported by nothing more than some horrid laughable attempt at sounding official (ie rationalizing), Kelo & Wickard spring immediately to mind.

14 posted on 06/26/2012 7:54:39 AM PDT by OneWingedShark (Q: Why am I here? A: To do Justly, to love mercy, and to walk humbly with my God.)
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To: Conservative Vermont Vet

It’s taking so long and coming up last because the SC ruling on healthcare will suck all the air out of the room.

It’s all people will be talking about, there will be confusion and protest, and the justices want to close up shop and head for the hills as soon as TSHTF.


15 posted on 06/26/2012 7:54:45 AM PDT by Jedidah
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To: Conservative Vermont Vet

probably because they want to get the hell out of dodge once the announcement is made...


16 posted on 06/26/2012 7:55:07 AM PDT by God luvs America (63.5million pay no federal income tax then vote demoKrat)
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To: Conservative Vermont Vet
Sorry to be a worry wort, but I am beginning to wonder WHY this is taking so long and WHY is this decision coming up last?

For cases argued later in the term, SCOTUS typically releases opinions for the most controversial and/or high impact cases last.

According to those in the know, most decisions are rendered shortly after the arguments, thus this case should have been decided a long time ago.

Nope.

17 posted on 06/26/2012 7:58:32 AM PDT by gdani (I don't vote for liberals - no matter what letter appears after their name)
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To: SeekAndFind

In other words —— WE KNOW NOTHING!


18 posted on 06/26/2012 8:01:29 AM PDT by Erik Latranyi (When religions have to beg the gov't for a waiver, we are already under socialism.)
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To: Conservative Vermont Vet

No.

Cases are generally heard in October, rulings handed down in June.

The term is October to October, with summer recess in late June or early July, after all decisions are released.


19 posted on 06/26/2012 8:01:29 AM PDT by Jedidah
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To: circlecity
Thus avoiding the immediate nasty fallout which will occur no matter which way they rule

Makes sense.

The other decisions would be tainted by the OWS sissies whining about everything and getting the lion's share of attention from the MSNBC as they modify the audio of any comments made by conservatives.

20 posted on 06/26/2012 8:01:52 AM PDT by pfflier
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To: Pharmboy
If she does, it will be light on the Constitution, and heavy on emotion. Oh...it may have some South African law thrown in.

Exactly on the money.

Some dying kid anecdote for Lawrence O'Donnell and Chris Matthews to fake cry about.

21 posted on 06/26/2012 8:02:22 AM PDT by dead (I've got my eye out for Mullah Omar.)
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To: Conservative Vermont Vet

The most important decisions, written by the most senior judge, are AFAIK issued last. Other decisions are worthy of attention too, so get those out and looked at _before_ something is issued which will attract all interest. If they issued the ObamaCare decision first, nobody would pay any attention to, and would stomp all over the process of releasing, any other verdicts.


22 posted on 06/26/2012 8:07:36 AM PDT by ctdonath2 ($1 meals: http://abuckaplate.blogspot.com)
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To: SeekAndFind

Well, if she is in fact writing the dissent, is that not a good sign ? (hope and pray this is so)


23 posted on 06/26/2012 8:14:50 AM PDT by Marathoner (If the choice was Obama vs. Satan I'd have to flip a coin.)
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To: arichtaxpayer
It seems that I read here on FR that the cases are announced in order of importance or order of seniority by the judges writing the decision. In this case, I feel that the Supremes want it last so they can get out of town immediately after.

That was my initial thought exactly.

CA....

24 posted on 06/26/2012 8:16:38 AM PDT by Chances Are (Seems I've found that silly grin again....)
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To: txrefugee
"... our Founders never dreamed people would be living and thus, serving, into their 80s and 90s."

Then they were very unobservant, as Benjamin Franklin was 81 when the Constiution was adopted.

25 posted on 06/26/2012 8:17:12 AM PDT by In Maryland ( "... the [Feds] must live with the inconvenient fact that it is a Union of independent States)
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To: Conservative Vermont Vet; All

It struck me last night that the staggering of the decisions might not bode well for Obamacare being struck down. I think the most likely outcome is striking the mandate and leaving the rest alone, but with Kagan in the game and the last decision raising the possibility of a Roberts defection, its not impossible we’re in for a bumpier ride than we’ve planned for.

It could be the complete opposite I guess.. struck down in toto, and hopefully by 7-3 or greater. If its 5-4 again the libs are gonna go nuts. Might be fun to watch but its going to again lower the legitimacy of the court in the eyes of people who dislike the appearance of USSC partisanship.


26 posted on 06/26/2012 8:17:56 AM PDT by gzzimlich
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To: SeekAndFind
So was the issue of severability already addressed? That without such a clause in the legislation that striking any portion of it down strikes the whole shebang?

I guess we'll find out Thursday.

27 posted on 06/26/2012 8:19:32 AM PDT by Dead Corpse (Steampunk- Yesterday's Tomorrow, Today)
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To: HamiltonJay
If the USSC says the government has the power to order people to buy a product or face a fine for simply breathing air, they have completely ignored the constitution and our entire federal government is null and void.

And yet such a ruling would be consistent with the progression of Wickard v. Filburn and Gonzales v. Raich.

28 posted on 06/26/2012 8:20:31 AM PDT by OneWingedShark (Q: Why am I here? A: To do Justly, to love mercy, and to walk humbly with my God.)
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To: Conservative Vermont Vet

I think it is taking so long because the court did not want to have to do business with throngs of labor, occupiers, candle burning religiots, acorn types types they expect to mob the building for days following their smack down of socialism. Read the ruling then flee.


29 posted on 06/26/2012 8:21:54 AM PDT by epluribus_2
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To: Erik Latranyi

RE: In other words —— WE KNOW NOTHING!

Here’s my best guess — Dissents are for the minority who disagree with the majority.

We know that Ginsburg is from the LIBERAL wing of the SCOTUS.

Therefore, it can be deduced that the MAJORITY have decided against what Ginsburg is FOR.

And what is Ginsburg usually for ? ANSWER: BIGGER GOVERNMENT ( and isn’t ObamaCare a big government program?).


30 posted on 06/26/2012 8:27:10 AM PDT by SeekAndFind (bOTRT)
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To: Marathoner

RE: Well, if she is in fact writing the dissent, is that not a good sign ? (hope and pray this is so)

___________________

Here’s my best guess — Dissents are for the minority who disagree with the majority.

We know that Ginsburg is from the LIBERAL wing of the SCOTUS.

Therefore, it can be deduced that the MAJORITY have decided against what Ginsburg is FOR.

And what is Ginsburg usually for ? ANSWER: BIGGER GOVERNMENT ( and isn’t ObamaCare a big government program?).


31 posted on 06/26/2012 8:30:54 AM PDT by SeekAndFind (bOTRT)
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To: SeekAndFind
Scotus Blog said late on Monday that John Roberts is writing the majority opinion on Obamacare and they seemed pretty sure of themselves (the guy that does the blog has reported on the Supreme Court for over 50 years). I didn't completely understand the reasoning, but in had something to do with the order the Court announces opinions, with the most senior justice in the Majority giving the ruling with the Chief Justice being considered the most senior regardless of tenure. Because Roberts was the most senior justice on the Arizona case, but allowed Kennedy to announce the ruling instead. The conventional wisdom is that Roberts was giving up his “turn” so he could announce the Obamacare ruling on Thursday. (I guess it is considered bad form or something for a senior justice to annouce rulings back to back.)
32 posted on 06/26/2012 8:33:04 AM PDT by apillar
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To: Conservative Vermont Vet

My guess is that the SC knows that there will be protests no matter which way the decision goes, so they want to be issuing the ruling as they exit through a back entrance of the court. If they had issued the ruling earlier, they would have to stay in town and deal with the protesters, which they are too chicken to do. Just a guess.


33 posted on 06/26/2012 8:34:23 AM PDT by murron (Proud Mom of a Marine Vet)
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To: OneWingedShark

I am not losing any sleep... when your atty can’t answer “the broccolli question” you don’t have a leg to stand on. While the court may let some of the law stand, there is no way the individual mandate will surivive, in fact, that portion of the law will most likely be struck down 9-0 or 8-1 (the 1 being Sodamayor or however you spell her name). There just isn’t enough pretzel logic in the world to let that one stand.


34 posted on 06/26/2012 8:39:39 AM PDT by HamiltonJay
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To: Cyber Liberty

I’m not feeling very positive about the decision on Thursday, and I’m trying to prepare for the worst, but I see some differences with the decision yesterday and what could happen on Thursday. Even though Roberts and Kennedy went against what we would have wanted, there is some constitutional authority that they went with. You and I may not agree, but I can see where they are coming from.

The healthcare bill is a different story. I don’t see any part of the Constitution that can support any of the conservative justices going along with it. Not to say it won’t happen. I’m just trying to figure out how I’m going to deal with the major league disappointment of the decision not going our way, or a split decision on parts that won’t, in effect, end this monstrosity. I’m just trying to keep busy so the next 2 days will go by fast and end this misery of not knowing.


35 posted on 06/26/2012 8:44:23 AM PDT by murron (Proud Mom of a Marine Vet)
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To: SeekAndFind

Ginsburg is the old lady who was observed sleeping during a recent session of the Court, right? Are we certain she even writes her own opinions?

I believe it is a well known fact that toward the end of his time on the bench, Thurgood Marshall’s clerks wrote his opinions while he watched soap operas and took naps.


36 posted on 06/26/2012 8:46:00 AM PDT by SoFloFreeper
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To: apillar

Thanks apillar,Trying to digest this.So Chief Justice Roberts will give the Majority opinion but we have no clue how the majority voted.


37 posted on 06/26/2012 8:47:03 AM PDT by fatima (Free Hugs Today :))
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To: gzzimlich

The WORST outcome would be to strike down the individual mandate but allow the rest. Individuals would be able to “not buy insurance until they needed it (got sick).” Insurance costs would multiply exponentially, and employers would be forced to stop providing insurance, or go broke themselves.

Since insurance companies would not be allowed to turn these sick people away (pre-existing conditions), the companies would quickly go bankrupt.

With no health insurance companies, and no HMO’s, only the very rich would be able to afford healthcare.

The result would be TOTAL CHAOS chaos for US healthcare. The only remedy would then be total government takeover, massive tax hikes, and ultimately, national economic ruin.

I’m confident that the court realizes this and will strike down the whole thing as unconstitutional.

Then we can implement some common sense incremental healthcare and insurance improvements, such as portability and tort reform.


38 posted on 06/26/2012 8:47:15 AM PDT by privatedrive
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To: Pharmboy
If she does, it will be light on the Constitution, and heavy on emotion.

Yep. All week the MSM has been crowing about the millions of 26-year-olds allowed to stay on their parents plans and the pre-existing clause. Which is exactly why the POS front-loaded those provisions.

39 posted on 06/26/2012 8:53:29 AM PDT by jersey117
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To: Cyber Liberty

For almost 80 years we have been saddled with the failed Keynesian Economic System. It has bankrupted the US Federal Government.

The derivatives of the WW2 Wage and Price Control Dictates are as follows: Medicare, Medicaid, Romney”care” and Obama”care.”

All of these vote-buying gimmicks are funded by debt created by the failed Keynesian Economic System.

Currently this Debt is charged to those who cannot vote: our Grandchildren’s future descendants.

There will be additional calls for State Constitutional Conventions if the Republicans try to preserve or retain ANY of Obama or Romney”care.”

Obama”care” is the Death Knell for America. It must be ABOLISHED FOREVER if America is to survive.

If Obama”care” does survive, then I favor Regional Areas of the former United States of America. I think the States that the XL Pipeline will run through makes excellent sense for one Region, called The Texas Region. The Mississippi Region would be those States that the Mississippi River runs through. Pacific and Atlantic Regions are obvious, as are the Rocky Mountain States.

In this way people could vote with their feet and move to a greater or lesser degree of personal Liberty.

The Great Experiment of forcing the United States of America back into the European Feudal System began with FDR’s Social Security System and will end with Obama”care.”

No need for armed conflict, as we have already tried that with our bloody Civil War.

Just hold State Constitutional Conventions, split up the former USA into multi State Regions, and hold Fourth of July “Remember When Days” once a year, as we thank our lucky Stars that we in NO WAY are like Europe.


40 posted on 06/26/2012 8:54:51 AM PDT by Graewoulf ((Dictator Baby-Doc Barack's obama"care" violates Sherman Anti-Trust Law, AND U.S. Constitution.))
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To: SeekAndFind

Guest on Hugh Hewitt yesterday said that Chief Justice Roberts will (most likely) be writing the health care smack-down.


41 posted on 06/26/2012 8:57:03 AM PDT by bboop (Without justice, what else is the State but a great band of robbers? St. Augustine)
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To: Graewoulf
If Obama”care” does survive, then I favor Regional Areas of the former United States of America. I think the States that the XL Pipeline will run through makes excellent sense for one Region, called The Texas Region. The Mississippi Region would be those States that the Mississippi River runs through. Pacific and Atlantic Regions are obvious, as are the Rocky Mountain States.

I'm in AZ and I'm fine with that, as long as we don't get stuck with CA. We're in the 9th Circuit, and it's a royal pain we can't pass laws in AZ without CA's say-so.

42 posted on 06/26/2012 10:10:16 AM PDT by Cyber Liberty (Obama considers the Third World morally superior to the United States.)
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To: Dead Corpse
So was the issue of severability already addressed?

This is a very interesting side note. In the absence of a severability clause and a SC decision that does not strike down the whole thing or leave it completely intact, we are left with the result that severability clauses have no meaning. Just litigate, strike out the part that you don't like and let the rest stand. The effect on legislation in the future is immense. The justices would be destroting thae legal structure they so carefully built over such a long time.

If Obama does not get his way on this matter he may just fire 3 or 4 SC justices.

43 posted on 06/26/2012 10:28:51 AM PDT by 17th Miss Regt
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To: 17th Miss Regt

“destroting thae “ = “destroying the”


44 posted on 06/26/2012 10:31:37 AM PDT by 17th Miss Regt
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To: gdani; Conservative Vermont Vet
According to those in the know, most decisions are rendered shortly after the arguments, thus this case should have been decided a long time ago.

My understanding is that they took the first vote shortly after arguments, and that's probably when Kagan let the Prince know that he lost. The decisions take time to write and come out later.

45 posted on 06/26/2012 10:50:00 AM PDT by Moonman62 (The US has become a government with a country, rather than a country with a government.)
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To: OldNavyVet
Given the flippant absurdity in Nancy Pelosi's handling of the bill: “We have to pass the health care bill so that you can find out what is in it.” The entire bill should be scrapped.

Not to mention all the Dims who said it was too long to read and would require an army of lawyers to understand...

46 posted on 06/26/2012 10:56:58 AM PDT by trebb ("If a man will not work, he should not eat" From 2 Thes 3)
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To: Cyber Liberty

I live in Texas, and we have 1/2 of the Mexican/US border.

Between your State and mine we should be able to work out a border deal with the sorry Democrats in New Mexico.

Maybe Nevada can protect your West Flank from California.

I’d love to see your Sheriff Arpaio be the Head of the Federal Department of Justice when we vote out or IMPEACH Obama.


47 posted on 06/26/2012 1:50:05 PM PDT by Graewoulf ((Dictator Baby-Doc Barack's obama"care" violates Sherman Anti-Trust Law, AND U.S. Constitution.))
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To: murron
Heard something very interesting yesterday about the Arizona rulings. Arizona mandated State criminal prosecution of a federal law. If, I understood correctly you can break certain laws but not face criminal prosecution. The three provisions struck down did impinge on Fed law by requiring prosecution of a federal statute where federal law does not require prosecution. The commentator was suppose to be a conservative former SCOTUS court clerk. She said there is a big difference between Obamacare and Arizona and we should not try and guess how the court will act based on the Arizona rulings.
48 posted on 06/26/2012 2:42:21 PM PDT by OldGoatCPO
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To: SeekAndFind

What happens when ObamaCare is struck down in entirety and ObamaCare issues and executive order making ObamaCare the law of the land?


49 posted on 06/27/2012 7:59:05 AM PDT by TennTuxedo
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