Posted on 03/29/2012 6:36:16 AM PDT by SeekAndFind
After yesterday’s heartening arguments, today’s arguments carry even more importance, because it seems likely the Court will actually reach the severability question.
If there are political consequences for the Court’s decision on the mandate argued yesterday, there could be even more consequences to today’s arguments. If the law is struck down in its entirety, expect the president to dust off his 2010 State of the Union talking points, which charge the Court with what he calls “judicial activism,” but in reality seem to criticize any court decision that finds a law of his unconstitutional.
The justices on both sides seemed skeptical of Paul Clement’s opening arguments for the plaintiffs, asking them to strike down the entire law along with the mandate. When he was prompted by Justice Alito to start arguing his fallback position, he made a solid case that far more than the administration’s set of central provisions actually are tied inextricably to the mandate. Not just community-rating and guaranteed-issue, but also Medicaid, employer mandates, and tax credits, among many other provisions, will be undetermined if left to stand without the mandate. The justices at first seemed unreceptive to his argument that the “shell of the law” left after removing these provisions should fall, with Justices Kennedy and Scalia particularly concerned about how to articulate such a rule.
Later, in response to Deputy Solicitor General Ed Kneedler’s arguments for the administration, the same justices seemed more inclined to make a judgment striking down the whole law. Justice Scalia answered his own question about how to formulate a rule, suggesting that “if you take the heart out of the statute, the statute is gone.” He framed it as a question of first impression because the Court has never before invalidated the very heart of a law, and dealt with severability in that context.
Justice Kennedy on at least two occasions suggested that going into the law to pick and choose which provisions should survive would actually be a more “awesome” exercise of legislative power than striking down the law as a whole. Justice Scalia illustrated the problem by asking if he (or, more likely, his clerks) should read through all 2700 pages of the law to determine which provisions should stand.
Justice Breyer earlier had illustrated the relative aid of the mandate provision and the rest of the bill by holding up a thin booklet next to a thick one with the remaining provisions of the law. He articulated a “pipe dream” in which the parties all got together to agree on a list of peripheral provision to leave in place. Scalia retorted that they should publish a conference report just like the real legislators in Congress.
Justice Kagan was firmly in the administration’s camp, calling their position the more textually honest, because of oft-cited findings of the law explicitly linking the individual mandate with community-rating and guaranteed-issue.
Justice Sotomayor had the opposite take from Justice Kennedy, calling taking any other part of the law down with the mandate an exercise of legislative power.
All in all, Justice Alito and Chief Justice Roberts at least seemed open to voting to strike the whole law, and it seems likely that most or all of the law is going to share the fate of the individual mandate.
Amen
Kagan’s strategy is to argue if ANY part stands then it ALL has to stand. The left is arguing, and planned, a ONE CLAUSE rule. One clause saves it all.
IOW Obama thought the USSC was stupid.
That is why he disrespected Roberts during the state of the union. Obama viewed himself as imperial over all.
Thomas is the most conservative Constitutionalist on the bench.
He ponders the testimony, relates it to what the framers intended and votes on the safe side of that.
His vote is rarely in question, and his opinions are direct, eloquent, and conservative. He will vote the mandate is unconstitutional and the entire law cannot provide force of compliance without it.
He might even be writing the majority opinion.
:)
So if that is her strategy, she would have to convince them the mandate is not unconstitutional? If I understand you correctly, I don’t think it is realistic for her to assume the unconstitutional mandate to fund the rest of it becomes constitutional because she likes some of the things in the bill. They cannot exist without the funding and if they can, isn’t it an undue burden on te states (since they will have to find a way to pay for this stuff). I think this bill passed because no one could understand (or cared to understand) it’s complexity. I also think it will fall because of it’s complexity. I understand that all the parts are so interwoven that it is almost impossible to pull them apart. This is a classic example of the administration not thinking things through. They didn’t plan for this (other than appointing Kagan and Sotomayor), and it shows.
you have to think of a lawyer holding two views at the same time.
Kagan is going for the little bit pregnant argument. If any part can be deemed valid, then the rest no matter how unconstitutional or illegal must also be allowed to stand.
It turns every legal precident on its head but this is the left we are talking about. Kagan and sotomayor are legal mental midgets. Ginsberg has a brain but is blinded by age and agenda.
Severability should not be invoked, not only because it typically isn’t when it isn’t included, but especially because it was actually removed by a Congressional review committee. That clearly indicates that it was not intended by Congress, and so should not be inserted by the Court.
It turns every legal precident on its head but this is the left we are talking about. Kagan and sotomayor are legal mental midgets. Ginsberg has a brain but is blinded by age and agenda.
I have Rush on the radio right now. He said that his “judge” friend told him that it might not sit well to strick down the most important legistlation by the first “black” president. What are your thoughts on this? I don’t think it will matter because Clarence Thomas is the only black justice on the court right now and he is against it too. If he is against it, it can’t really be because of race.
Thomas leans against this entire law I would wager.
I don’t understand Kennedy’s argument. It stands to reason that a bill that has unconstitutional provisions may also actually have constitutional provisions. Now, the individual mandate may make the entire bill unconstitutional as a whole.
Thanks for the clarification.
I hope you are right. If Thomas writes the majority opinion it will be an enlightening and uplifting review of what Constitutionalism means.
How can’t judges decide if a Bill would pass congress? No one really knows without a vote. If the sitting congress did not vote on a Bill with a severability clause, then no one can’t know how they’d have voted.
I understand Kennedy’s argument.
This is a piece of legislation. It arose from another branch of government. It would be more of a court intrusion into the legislative process of the other branch for the COURT to go through the bill line by line and rule on constitutionality and serverability, than it would be to simply strike down the entirity of it and let the legislature once again act, or not act, on a legislative matter.
Scalia made the same point, only using different words. It really isn’t the role of the COURT to micro examine a tortured, complex piece of legislation of almost 3,000 pages. Courts are there to get to the essence of a matter, the heart of the issue, and make a ruling.
justice thomas knows the law is unconstitutional and does not need to question his beliefs.
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