Posted on 03/04/2015 7:48:32 AM PST by GIdget2004
See how things are going at the link....
"The challengers’ attorney Michael Carvin barely got a dozen words out before Justice Ruth Bader Ginsburg interrupted him to ask about his plaintiffs’ standing."
"Justice Anthony Kennedy says he sees 'a serious constitutional problem' in the idea Congress would force states to set up exchanges or risk their residents losing tax credits."
(Excerpt) Read more at blogs.wsj.com ...
I thought their job was to call the balls and strikes.
Now it seems they are supposed to find a way to make sense of out of nonsense and then call it "constitutional"?
Scalia jumped in on the argument of the meaning of words. He said what matters is not what Congress intended; what matters is what they wrote into the law. He said (essentially) that the meaning of words matter under the rules of legal interpretation.
As for Kennedy’s concerns about undo financial pressure on states to set up exchanges, if it were unconstitutional for the feds to offer financial incentives to states, A LOT of U.S. code would be unconstitutional. (That ain’t a bad thing.)
Today is National Grammar Day, BTW. :)
Obamacare is here to stay. There was no separation clause in Obamacare so one part ruled unconstitutional brings down the whole thing and we all know how Roberts will vote.
It wasn't an oversight, it was left out as part of the plan: by leaving it out they forced the courts to essentially rewrite it (as Roberts did) or to be labeled/demonized as against people having healthcare by invalidating it. — Much like they're doing with amnesty and DHS funds.
The statute provides that insurance shall be made available on exchanges to “qualified individuals,” and further defines a “qualified individual” to mean, “with respect to an Exchange, an individual who” both wants to enroll in a qualified plan, and also “resides in the State that established the Exchange.”IMO, prior to the 2012 ACA ruling that allowed states to refuse to set up exchanges that no one, including Congress, envisioned that the states would NOT establish exchanges. Congress believed they had the right to force individuals to buy a commercial product under their power to regulate commerce. They had no reservations about the states not complying.
The government, as well as Justices Breyer and Kagan, argue that if the only way for a state to “establish” an exchange is to create it on its own, then there would be no “qualified individuals” in states that failed to do so, and therefore there would be nobody on the exchanges (and, as Justice Kagan surmised, no product to sell on the exchanges).So, it depends on what the definition of "establish" is and not what the definition of "state" is? Unbelievable.
Bttt
4 - 5 with Kennedy siding with the liberals......maybe even 3 - 6.....with Roberts joining them......
Hoe can it be unconstitutional to not include FedGov exchanges in it?
And if a part of the law is unconstitutional, the law is unconstitutional.
.....”Congress, envisioned that the states would NOT establish exchanges. Congress believed they had the right to force individuals to buy a commercial product under their power to regulate commerce. They had no reservations about the states not complying.....So, it depends on what the definition of “establish” is and not what the definition of “state” is? Unbelievable.”....
Might better be said the administration “Assumed” with the large marketing campaign they had ‘established’ and promoted heavily nationwide... that no state would oppose them after this “indoctrination” without it ‘appearing as if the states’ would be opposing the “health needs” of their public.
I know that, but the plaintiffs didn’t make that argument, so they likely would have to resubmit that case to the court.
But yes, if any part is unconstitutional, the entire law should be thrown out. Lets see if that actually happens, they have to rule on that separate.
I don’t see how they can let them stand. They have to either agree with what is written or declare it unconstitutional. Otherwise we are far away from the rule of law.
That is, they will save the arrogant Gruber after he put his foot in his mouth again and again as he tried to explain how each state needed to set up its own exchange in order for its citizens to receive subsidies.
Historically SCOTUS may have had some ideological bent to their decisions, but wouldn’t you mostly have to think they showed more concern for Law and the Constitution than immediate public impact?
I am hopeful Roberts can redeem him image a bit this time, although I do think his “its a tax” was more or less a chess move poison pill to nobamacare, especially toward “Origination”.
No!
Emphatically so!
As a specific example, consider Schenck v. United States (03 Mar 1919) where the court said:
We admit that, in many places and in ordinary times, the defendants, in saying all that was said in the circular, would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. Aikens v. Wisconsin, 195 U.S. 194, 205, 206. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 439. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right.IOW, if Congress has a "right to prevent [some] substantive evil" then it may ignore Constitutional prohibitions, such as the First Amendment. — And there are many cases like this from Kelo to King to Wickard to Raich. The court has a history of ignoring the limits of the Constitution placed upon the government.
That is not the record of this Court, with at least equal conservative representation to those liberals and with Kennedy more often siding with the conservatives.
Your example by no means held the gravity to limit the 1st Amendment “per se” and was argued under the condition of the Country being at war. The words in contention now are those of the Congress, not a citizen expressing an opinion during war time.
The condition of being at war is irrelevant to the first amendment which states in no uncertain terms that Congress cannot make laws abridging speech/press, that is the point.
The words in contention now are those of the Congress, not a citizen expressing an opinion during war time.
The law in contention there was passed by congress.
my (very limited) understanding of the case is that the law itself is not being challenged, but the interpretation of the law. so the question of constitutionality of the law is not being raised by the plaintiffs. if the law itself is not being challenged, then the presence or absence of the severability clause should in theory be moot. I am being cautious because the language of the law is abnormally bad. However, all that aside, I believe it is SOP for Congress to use carrot-and-stick tricks on the states to try to get the states to drink federal koolaid in the form of participating in federally legislated programs.
On Roberts vote, if I were a conspirator, I would prefer to lurk in the shadows. I would therefore tell my puppets to play my hand only when absolutely necessary. A 6-3 decision in favor of Obama with Roberts in the majority is not a necessity.
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