Oddly Enough, This is Not Judicial Activism
A federal district judge in Virginia ruled on Monday that the keystone provision in the Obama health care law is unconstitutional, becoming the first court in the country to invalidate any part of the sprawling act and ensuring that appellate courts will receive contradictory opinions from below.Judge Henry E. Hudson, who was appointed to the bench by President George W. Bush, declined the plaintiff’s request to freeze implementation of the law pending appeal, meaning that there should be no immediate effect on the ongoing rollout of the law. But the ruling is likely to create confusion among the public and further destabilize political support for legislation that is under fierce attack from Republicans in Congress and in many statehouses.
None of this really matters until Clarence Thomas and Antonin Scalia invent a way to overturn HCR without making a precedent that will hamper future Republican presidents.
BTW- wouldn’t a public option or single payer get rid of this nasty little problem?
*** Update ***
I see I was beaten to the punch by DougJ. I should have scrolled past the Orszag post, I guess.
*** Update ***
There seems to be some confusion here. I support a public option. I support single payer. Hell, after what we have seen the last few years, I’m in favor of nationalizing the whole damned industry and giving all the op-ed writing wingnut doctors a huge sad. I just never thought there were votes for the PO in either the regular bill or reconciliation.
Getting kind of cynical these days, John?
Of course this is not judicial activism. And tax cuts do not add to the deficit, either!
December 13th, 2010 at 2:05 pm
http://yglesias.thinkprogress......l-mandate/
Scalia will not overturn the individual mandate.
December 13th, 2010 at 2:08 pm
Ah, but according to change in the other thread, single payer is unconstitutional because SHUT UP.
December 13th, 2010 at 2:08 pm
Apropos of nothing, the Yankees saved $600 million because of the estate tax suspension last year.
Linky badness.
December 13th, 2010 at 2:09 pm
Single payer, yes. Public Option, no.
December 13th, 2010 at 2:11 pm
They really should have called this the Nixon-Kennedy Health Care Act just to fuck with everybody’s talking points.
December 13th, 2010 at 2:11 pm
I’m confused by the whole thing. Some people think this is the end of reform. Other people think it’s the conservatives being too clever by half and unwittingly opening a way towards single-payer.
December 13th, 2010 at 2:13 pm
Well, since the left apparently hates Obama’s HCR efforts as much as the right does, everybody should be happy with this decision.
December 13th, 2010 at 2:14 pm
I think that it’s plain to see that this is in no way any kind of “judicial activism” because, shut up, that’s why! It isn’t really all that hard to understand.
December 13th, 2010 at 2:15 pm
@Joel: Freedom isn’t free. Why do you hate America, and Jesus, and the successful, productive people who give us the jobs we need to go to work? We are blessed to live in a country that gives us the opportunity to tithe ourselves to the owners of the New York Yankees.
December 13th, 2010 at 2:15 pm
And Cole, breaks his own board’s irony meter. Or he’s trolling us.
Bargained away…musta been part of that doubling of the patent protection extension for new biologic drugs Big Pharma got behind closed doors.
Pragmatism and all that shit.
DaddyPresident Obama knows best!Cole, FTW…
December 13th, 2010 at 2:17 pm
idiots. all of them.
December 13th, 2010 at 2:17 pm
Ezra:
He also writes that because of two earlier federal districts upholding the constitutionality of the individual mandate this almost guarantees a review from the Supremes.
December 13th, 2010 at 2:17 pm
@Dave:
I sure would like to see more about the opening-a-way-to-single-payer (or even public option) predictions. I’m intrigued!
December 13th, 2010 at 2:18 pm
Haha! Laugh of the day!
December 13th, 2010 at 2:18 pm
@Dave: To speak to one concern, this isn’t the end of reform. There was a real concern that this might be the case because congress was moronic enough not to include a severability clause in the law (“If any portion of this bill is deemed by the courts to be unworkable, the rest of the bill shall stand as is”). The Cooch, smelling blood, argued that the whole thing should be struck down. But the judge said no to that and ruled that just the mandate has to go.
December 13th, 2010 at 2:19 pm
@WyldPirate: Wrong thread. Here ya go.
December 13th, 2010 at 2:20 pm
@Lolis—doesn’t that assume that Scalia has a modicum of integrity and a judicial philosophy that is independent of whose sitting in the White House?
My money says Scalia votes to overturn in a heartbeat.
December 13th, 2010 at 2:20 pm
Someone should tell the Republicans that if they implement single-payer, this country would happily tolerate a right-wing dictator for life. In some ways, the Republicans are just as idiotic as the Democrats.
December 13th, 2010 at 2:20 pm
@WyldPirate: Dude, there is NO inconsistency between thinking public option and single-payer are kick-ass policies and at the same time thinking that the public-option-less, single-payer-less HCR bill that did pass was (1) better than nothing, (2) about the best that could be done under the circumstances. If ConservaDems don’t want a public option, and promise to vote down any bill that has a trace of a public option, you’re not getting a public option, no matter how excellent it would be.
December 13th, 2010 at 2:21 pm
@WyldPirate:
Jesus, WP. If I didn’t already know you were just a jackass, I’d be astounded at your obtuseness.
Everybody here thinks a public option is the best possible outcome. John has said so a zillion times.
December 13th, 2010 at 2:21 pm
I’m not sure where you’re living, but here on Earth, Fat Tony does not vote with liberals. On anything. Ever.
4-4 with Kennedy as the kicker, this thing should survive an USSC ruling. Unless Kagan spurns Kennedy’s love interest.
December 13th, 2010 at 2:21 pm
Pretty much. This is no problem, as a lack of the mandate will bankrupt the insurance industry, and we’ll finally have to go (kicking and screaming) the way of every other advanced democracy on earth, many of which have longer life expectancies than we do.
December 13th, 2010 at 2:22 pm
Seems like an obvious troll attempt, but…
The public option would have the same problem, since you would still need a mandate to have people buy in and not wait until they get sick to do so. Single payer OTOH, woudl probably be OK, since you would simply be extending medicare to cover everyone, and people could still pony up extra to get additional private coverage.
And there ain’t no way that the teabaggers would start a lawsuit to declare medicare unconstitutional.
December 13th, 2010 at 2:22 pm
Because shut up! That’s why.
December 13th, 2010 at 2:23 pm
@Joel: Steinbrenner’s heirs potentially saved $600M. They will still have to pay capital gains if they ever unload the team, or part of it. Good luck in sorting that out.
December 13th, 2010 at 2:24 pm
@Punchy:
But the mandate is the biggest yummy goody the insurance companies won in the deal. Scalia will be torn—spite the liberals or protect the insurance companies’ win? How to predict?
December 13th, 2010 at 2:25 pm
Between recent events like the Dems wanting to not fund Gitmo transfers and the purity trolls at my site, I’m ready to throw in the towel.
December 13th, 2010 at 2:26 pm
has this been noted; shouldn’t the judge have recused himself—via gawker:
Henry E. Hudson, the federal judge in Virginia who just ruled health care reform unconstitutional, owns between $15,000 and $50,000 in a GOP political consulting firm that worked against health care reform.
December 13th, 2010 at 2:26 pm
Let’s play Jeopardy
A. A purchase that Congress finds worth encouraging, and that gains its purchaser a tax advantage, a tax advantage withheld from those who do not make such a purchase….
Q. What is a thirty-year fixed mortgage from Wells Fargo?
Q. What is an ACA-compliant health insurance policy from Aetna, or Anthem/Wellpoint?
December 13th, 2010 at 2:27 pm
@WyldPirate:
@Oscar Leroy:
The battle’s over and the dust is clearing
Disciples of the
SnowFire Dog sound the knellRejoicing echoes as the end of health care reform is nearing
And Obama, in defeat, retreats to Hell!
December 13th, 2010 at 2:28 pm
@daveNYC:
No, the public option would be just that: an option. It would likely drive private health insurers out of business, since they could never compete, but it would be optional.
@beulahmo:
John Cole is going to tell this guy to cool it, because he is so tired of degraded discussion and rancorous tone and draining flamewars.
December 13th, 2010 at 2:28 pm
Well yes. But you must know that’s not what’s going to happen if the ruling stays and anyone who thinks a final ruling on this would pave the way for either of those two things is smoking crack. Not that Cole is suggesting this. But I can see where some of you people are thinking.
For every “negotiation” in the Obama era if you want to know what the eventual final outcome will most look like you just need to ask yourself WWEBD because that’s the result that will end up being voted on.
“What Would Evan Bayh Do?”
And in this case it wouldn’t be bringing in/back single payer or the public option.
December 13th, 2010 at 2:28 pm
@PeakVT: Plus they still have to pay the completely unconstitutional luxury tax (show me where Madison wrote that the commissioner of MLB should be allowed to levy a tax on high payroll teams). Until the burden of such unfair taxation is removed from them, this country cannot truly be free.
December 13th, 2010 at 2:28 pm
An remember folks, it doesn’t matter who you vote for, or even if you just stay home.
Assholes.
December 13th, 2010 at 2:29 pm
@New Yorker: This assumes that the rest of the bill will continue to stand as is. I don’t want to be a Gloomy Glinda, but I fear the insurance industry will not stand around waiting to go bankrupt—it’ll successfully bully Congress into new legislation that renders the original act pretty much toothless.
December 13th, 2010 at 2:29 pm
@Chyron HR:
Don’t you CARE about what black voters think?!? They’re going to abandon the party thanks to people like you!
December 13th, 2010 at 2:29 pm
I’m no health policy wonk, but as I understand the law, basically you “have” to buy health insurance, or you pay a surcharge on your tax return. It seems to me this is a matter of semantics more than substantive constitutional law. The health care law is financed—in part—by a new tax on people who don’t carry group or individual health insurance policies, just like a lot of stuff is financed by a tax on people who don’t take out mortgages to purchase houses. Is home ownership “mandatory” under federal law? Either you buy a house, or you pay higher taxes. Seems like basically the same thing to me. And nobody (but a bunch of loony militia types) claims the government lacks tax authority. How is this different? If somebody can explain it, I’m all ears.
Oh, and would the public option have obviated the need for a mandate? Yes. Yes it would. But that was preemptively taken off the table by some party to the negotiations that we shan’t mention here.
December 13th, 2010 at 2:31 pm
The PO came with a mandate, as well. So I am not so sure you could argue that this takes care of this nasty little problem.
December 13th, 2010 at 2:31 pm
@srv: that’s a good point.
I wonder how many firetards would have spit in Ted Kennedy’s face if they realized this was the bill he came up with in early 70s with Nixon.
December 13th, 2010 at 2:32 pm
@beulahmo: I would predict, with lots and lots of money if Vegas ever put a line on this, that Scalia votes with Thomas and Co. to put the kibosh on HCR.
However, if indeed swine do grow wings and somehow The Catholic Fatass screws up his vote and hangs with the Libs on this, watch RedState and ilk suddenly tar Scalia as The Mostest Librul Justiz EVAH label.
December 13th, 2010 at 2:32 pm
@PeakVT: Capital gains for Hal Steinbrenner family: Under the 2010 rules, is there a basis step-up? I thought they lost that, which pays for about half the inheritance taxes saved.
December 13th, 2010 at 2:33 pm
The public option would solve the problem. The problem was the bill did not treat the excise tax fine for not buying insurance the right way.
If the bill had started with the premise of using an excise tax to raise revenue to buy people some kind of default minimum insurance (public option) and then let them opt out of the excise tax by buying their own, then the law would have been clean and constitutional.
The problem was by putting the mandate first and the excise tax as the “penalty” they screwed up the optics constitutionally in order to get the good optics of not having the law represent a large new (but very avoidable) tax.
December 13th, 2010 at 2:33 pm
@Observer:
Wait, I’m lost. (Happens a lot.) Why would this definitely not pave the way for SP or PO?
December 13th, 2010 at 2:34 pm
@Sentient Puddle:
“But the judge said no to that and ruled that just the mandate has to go. ”
But you need the mandate for this reform to stand.
http://www.nytimes.com/2010/01......html?_r=1
December 13th, 2010 at 2:35 pm
@Chyron HR: Heh.
But I’m not touching the first verse nor the conclusion to the last verse that you omitted :)
December 13th, 2010 at 2:35 pm
@beulahmo:
Who’s going to make that happen? The Republican congress we have for the next 2 years sure won’t.
December 13th, 2010 at 2:36 pm
Back when HCR was passed I wondered if its cobbled-together nature would enable opponents to pick it apart. Should the SCOTUS uphold Judge Hudson it will probably take the Republicans about fifteen minutes to produce a relief package that removes any cost controls from HCR and grants tax-free status to the health care industry. The bill will pass the Senate after the Republican minority threatens to filibuster all other legislation.
December 13th, 2010 at 2:36 pm
@jonas:
From what I’ve read so far, the judge in this case goes to great lengths to make the case that this isn’t a tax but rather a penalty against people who don’t choose to buy health care.
Really this could have been completely avoided if they’d written the law so that it was a bump in the income tax (sent directly into the Medicare budget) that was completely offset by a tax credit for those who already have insurance, and if you didn’t have insurance you would be covered by Medicare. Of course, that would basically be a public option and it would have involved discussion on the floor of the Congress that used the word “tax” without the word “cut”. So in our universe they tried to skirt around it by creating a tax increase that wasn’t really a tax increase and this judge is basically calling them out on it.
Whether it holds up on appeal remains to be seen. I still give it even-odds that the Roberts Court will be split between their duty to hate the Commerce Clause and their duty to suck up to corporations on this and Kennedy will end up deciding it based on a coin flip or something.
December 13th, 2010 at 2:37 pm
BTW - This is obviously not judicial activism because this is a judge standing up for the will of the people against those in Congress who sold the people out (and who were voted out of office as a result of that treachery)
/Republican
December 13th, 2010 at 2:40 pm
If Steve Benen is right, this ruling is going to be largely irrelevant when the dust settles.
But of course we should spend the next week with 500-post threads about it.
December 13th, 2010 at 2:41 pm
@Dennis SGMM: This is a far likelier outcome of this decision than single-payer. Christ, I’m so sick of this country.
December 13th, 2010 at 2:42 pm
@Xenos: My understanding is that this year there is no inheritance tax, but the basis goes back to 1973. Next year there will be a 55% tax (or 35% if The Deal passes), but the basis will be reset. IANA accountant, so caveat lector.
December 13th, 2010 at 2:42 pm
@jonas:
How is this different?
Obama pledged to not raise taxes on anyone making less than $250K. therefore, the mandate cannot be a tax.
December 13th, 2010 at 2:42 pm
“BTW- wouldn’t a public option or single payer get rid of this nasty little problem?”
yes, but what would i know, I only had this position from day one. [smacks head with palm, and realizes why i’m taking a break from blogs].
seriously, everytime someone like me would say “single payer” i was told to shut the fuck up, that it was unrealistic and obama’s got this.
suck. on. THAT.
December 13th, 2010 at 2:42 pm
“daveNYC” is wrong, as “Notorious P.A.T.” noted:
A “Public Option” does not require a mandate.
You can include a mandate, but it’s not required.
December 13th, 2010 at 2:44 pm
@FlipYrWhig:
That’s not my point, Flip.
My point is that we all know—particularly the liberals—that getting this cutting edge legislation passed is tough, agreed? We all know that the Rethugs filibuster, agreed?
Knowing these things and knowing that you have difficult but landmark legislation to pass—what is wrong with trying to change the rules on filibuster when you control the Senate to make it a bit easier? I get that there is a risk of blowback when you lose the Senate inevitably. But this is game changing legislation that has the potential to help not only the people but the competitiveness of business.
The same goes with asking for the fucking moon on the initial proposal of your Health Care Reform package. Sure, we all KNOW and KNEW that given the state of the Senate and the money arrayed against a common-sense single payer system that it was unlikely to pass. But get the mean-spirited cocksuckers against it on record. Ask for the moon, have the vote, get them on record then renegotiate by giving as little as you can.
After you get the bastards on record as supporting the businesses at the expense of people—after you demonstrate that the elected officials are not on the side of the people. You can then begin to use that against them.
This is how the Rethugs demonized the “liberal” brand name. The liberal/progressive agenda is at the heart of almost everything good and decent about the US. It is what leveled the playing field a bit and built the middle class. A bit at a time, over years and years with much repetition, the Rethugs have torn that down and are discarding—with the help of a lot of Dems—the very things that leveled the playing field somewhat.
I’m not pissed that Obama didn’t get everything the most radical progressive/liberal wanted. I’m pissed that he seems to want to quietly fold and never fight it out—and I’m not talking yelling and screaming, either—in public when the fight comes. He talked the talk in the campaign, but he seems to not wanted to walk the walk when the battle is on.
December 13th, 2010 at 2:44 pm
@brendancalling:
it WAS unrealistic.
you get no points for pointing out that the impossible is better than reality.
December 13th, 2010 at 2:45 pm
@beulahmo:
Because you assume that a sufficiently powerful group in elected office will forcefully advocate for SP or the PO.
And that definitely didn’t happen this time around. If you remember there was supposed to be “incremental improvement” to the current bill.
In any case, for whatever reason, all outcomes in the Obama era are blue dog outcomes. A PO or SP is not a blue dog outcome.
Again, WWEBD. What Would Evan Bayh Do?
December 13th, 2010 at 2:45 pm
@brendancalling: Yes, you were the only one who wanted single payer. No one else did. And you knew we had the votes to pass it—all those naysayers around here who kept saying that numbers are objective, not subjective, just didn’t believe in SP as much as you did, man.
December 13th, 2010 at 2:46 pm
@WyldPirate:
Stop the flamewars, Wyld! You people are ruining this blog!
; )
December 13th, 2010 at 2:47 pm
Without a mandate, what you would end up with is people waiting until they get sick before buying insurance via the public option (or any other insurance). That’d work out pretty poorly.
Single payer is the only system that allows you to ditch the mandate, simply because then there is no ‘purchase’ of insurance, it’s just included in the regular tax bill.
December 13th, 2010 at 2:50 pm
@Joel:
Because God wanted them to be able to re-sign Derek Jeter for $51 mil.
December 13th, 2010 at 2:52 pm
@Observer:
“Again, WWEBD. What Would Evan Bayh Do? ”
Let’s not forget who really inspired Obama’s health insurance reform:
http://www.washingtonmonthly.c.....026531.php
Did we vote for Democrats so we could get Republican policies?
December 13th, 2010 at 2:54 pm
what is wrong with trying to change the rules on filibuster when you control the Senate to make it a bit easier?
There’s nothing wrong with that.
But between Conservative Dems who know they only have leverage and power with a filibuster in play (Lieberman, Nelson, Pryor et al), scaredy-pants liberal Dems who are afraid of what might happen without it (mostly long-time incumbents) and procedural fetishists who think it should remain simply because of tradition (maybe one or two left now that Feingold and Byrd are gone), there aren’t 50 votes there to change the rules.
But get the mean-spirited cocksuckers against it on record. Ask for the moon, have the vote, get them on record then renegotiate by giving as little as you can.
Republican Senators are already on the record as supporting rape, higher taxes for the middle-class and fucking over 9/11 workers and not only did it not cause them to change their stance on the issue one bit, the press has refused to blame them at all.
When has the “make them vote against it!” strategy actually produced concrete results?
December 13th, 2010 at 2:56 pm
@Sentient Puddle:
@beulahmo:
simple question for the both of you. are you both denying that the public option was taken out of—or never introduced as a part of—the HCR package that went for a vote for simply pragmatic reasons?
Or are you simply pissed because someone is pointing that out to you and the resulting foreseeable problems of the deal that was struck?
December 13th, 2010 at 2:56 pm
@shortstop:
That’s surely possible, but I picture the insurance industry salivating over millions of new customers, and not letting the mandate go without a fight.
Insurance companies are interested in making money, not standing tall with teatards. I’m sure they want to make HCR work as much as possible.
December 13th, 2010 at 2:56 pm
@Notorious P.A.T.:
why should we care what the niggas think?
December 13th, 2010 at 2:57 pm
@Notorious P.A.T.: I tend to think that’s correct, though I have heard a number of wonks state that the mandate wasn’t necessary, and there were other ways to prop up that side of the stool. I remain unconvinced because (a) I haven’t heard any specifics on these alternatives, and (b) considering how politically poisonous the mandate was, you’d think that they would have gone for the alternative in the first place when writing the bill.
December 13th, 2010 at 2:58 pm
@Observer:
How many years did it take for Social Security to resemble the system we know and love today?
December 13th, 2010 at 2:58 pm
@Oscar Leroy:
Yeah, they are quite touchy today, aren’t they?
December 13th, 2010 at 2:58 pm
@WyldPirate:
I’m reading this wondering if you fucked up the semantics of this question or what, so I’m going to avoid a yes or no answer and say that the public option was removed because it didn’t have 60 votes in the Senate. Which would qualify as pragmatic.
No, as others stated, a public option would have still included the mandate, which still would have had the same legal issues. Which in a sane world would be “none,” but Republican lawyers clearly aren’t sane.
Oh, and I’m not particularly pissed at you. I just think you need to shut the fuck up and quit posting so damned much.
December 13th, 2010 at 3:02 pm
@lol:
It seem to work pretty well against Kerry in the elections….
I don’t know that you can even ask that question from a Dem/liberal prospective. They don’t seem smart enough to maneuver republicans into a circumstance where they could even answer that question. They sure as fuck didn’t do it on the tax cut extensions.
But hey—let’s not ever try and say it might not work.
December 13th, 2010 at 3:02 pm
@cleek:
i just think it’s HILARIOUS that after telling the single payer people to shut up at every opportunity, the insurance mandate we always objected to gets thrown out of court. I predicted that by the way.
so what you’re doing is what wylde pirate described as being “simply pissed because someone is pointing that out to you and the resulting foreseeable problems of the deal that was struck?”
so essentially I’m laughing at you and shortstop and the rest of the “it’s the best we could dooooooo!” crowd.
My senator passed a bill with a public option. it was rejected. I’m going to call him and thank him for standing up for better than “it’s the best we could dooooooo!”
December 13th, 2010 at 3:02 pm
But, of course, a public option or extending Medicaid or Medicare adds to the deficit and is “socialism”, so forget about it.
December 13th, 2010 at 3:03 pm
“Mike Kay” is wrong.
Republican Nixon’s insurance legislation proposals that Obama eventually signed is what Kennedy rejected.
There were huge debates after Kennedy died about whether he would support the final version of the recent reincarnation of Nixon’s gifts to predatory insurers.
But since he was dead he couldn’t personally comment on the bill.
December 13th, 2010 at 3:04 pm
@WyldPirate:
I don’t know why you think this would successfully shame anyone. We saw Democrats declaring, proudly, that even the public option—not even close to national health care—was a bridge too far, and they would not support it. Clinton went further, and it was a debacle. I don’t feel like going through this all again. Just remember that when Clinton tried a different approach, insurance companies, the kind of business everyone hates with a fiery passion, managed to win people over to their side instead of his.
December 13th, 2010 at 3:05 pm
A lot of people here are down on Scalia and I’m all for that. He deserves a huge amount of scorn. However, I’ve read analyses that conclude that he is actually the fourth most hackish of the partisan hacks on the conservative side of SCOTUS. IOW, I’ve read that he’s more likely to go with legal over political/ideological reasons and vote with the “liberals” more often than Thomas, Roberts or Alito.
That said, he’s still horrible.
December 13th, 2010 at 3:06 pm
@Sentient Puddle:
The feeling is mutual. But, I’m not here to make this your own personal feel-good echo chamber.
Deal with it or get down in that puddle of piss at your feet that you mistakenly claim is “sentience”.
December 13th, 2010 at 3:06 pm
Jack the dog—Guardian of Liberty!™
December 13th, 2010 at 3:06 pm
@PeakVT:
What?
There is no estate tax for 2010, so the estate gets a huge tax benefit there.
As for basis, this is straight from the IRS: “Generally, for the estates of decedents dying after December 31, 2009, and before January 1, 2011, the basis of assets acquired from the decedent is the lesser of the decedent’s adjusted basis (carryover basis) or the fair market value of the property on the date of the decedent’s death.”
There are some exceptions to this, too complicated to go into here.
December 13th, 2010 at 3:08 pm
for the lefties who hate HCR, especially the mandate, why aren’t you celebrating this ruling?
why so silent?
December 13th, 2010 at 3:08 pm
@brendancalling: I predicted that using a helicopter to drop billions of dollars would give everyday people money! Did they try it? Nooo, too impractical, they said. Well look at the economy now! Bet everyone who didn’t like my idea is feeling pretty stupid these days! Bwahahahahah! I are poltyckul genias!
December 13th, 2010 at 3:09 pm
@Dave:
That would be so lovely.
December 13th, 2010 at 3:11 pm
@Dave:
That would be so lovely.
December 13th, 2010 at 3:11 pm
@FlipYrWhig:
WORD. Thank you for the hot beef injection of sanity into this friggin’ stupid argument.
I’m so fucking sick of the “he just didn’t try hard enough!” meme. When it’s clear you’re not going to get what you want, there’s nothing to be gained from tilting at windmills. Barf.
December 13th, 2010 at 3:11 pm
Cooch has a google-ad up (saw it on Washington Monthly, not going to link to it)—“Virginia defeated the federal government in court!”
That’s really what it says.
The South, she is arising.
December 13th, 2010 at 3:12 pm
@FlipYrWhig:
Ok. I’m following you so far. They declared that—some did at least. The Clinton thing was more of a disaster due to Hillary’s involvement and the fact that the Congress was not involved, and then got all butt-hurt.
But I digress.
The simple, shorter version that I get from your response-and in general your response to all such issues regarding what others consider to be Democratic or, more specifically, Obama administration “failures”—is this; that it’s just too hard to try so why bother?
Correct me if I’m wrong. I’m open to your arguments…
December 13th, 2010 at 3:13 pm
@Punchy:
I don’t know what world you’re living on, but you have no idea what you’re talking about. Scalia has certainly voted with the liberals on the court on a variety of issues.
December 13th, 2010 at 3:13 pm
@brendancalling:
Why is your idea of politics, or political discussion, so bound up in who to laugh at—when there’s not even actually a fucking distinction? Is it possible that the best we could do is still going to have problems? Um, obviously. Is it possible that the best we could do doesn’t correspond to your fever dreams? Um, evidently. Does that prove that you were right? Um, no, not even slightly. It’s really not that hard to understand this. Defining what you want or what you think seems right is fine for the brendancalling for brendancalling party. Can it become law? No. Obviously, clearly, demonstrably, no. So what purpose is it to wank so intently about it?
December 13th, 2010 at 3:14 pm
When the moon is in the Seventh House
And Jupiter aligns with Mars
Then peace will guide the planets
And love will steer the stars
This is the dawning of the Age of Aquarius
The Age of Aquarius
Aquarius! Aquarius!
Harmony and understanding
Sympathy and trust abounding
No more falsehoods or derisions
Golden living dreams of visions
Mystic crystal revelation
And the mind’s true liberation
Aquarius! Aquarius!
December 13th, 2010 at 3:17 pm
@Oscar Leroy:
Huzzah!
December 13th, 2010 at 3:19 pm
@brendancalling:
“thrown out of court” I assume means “ruled constitutional by two judges before being ruled unconstitutional by a Republican hack who, even so, refused to grant an injunction against the law?”
December 13th, 2010 at 3:20 pm
This blog is now officially fucked.
John, it’s time to bring back Rick Moran. At least he was cordial.
December 13th, 2010 at 3:21 pm
I’m more interested to see if we end up killing HCR by defunding or, as promised, repealing. This is definitely a which-comes-first scenario. Will the politicians who ran on repealing decide they can’t wait for the Supreme Court to do the job, and will there be enough of them to push a repeal through?
All this argument, and really all we can do is wait to see if HCR can survive ALL the weapons aimed at it.
December 13th, 2010 at 3:21 pm
It’s just a matter of time before the entire law is done away with.
It’s inevitable. As I’ve send before, in the end, Republicans always win.
December 13th, 2010 at 3:21 pm
So the future of HCR will, in the end, depend on what Justice Kennedy had for breakfast and whether he had a satisfactory dump that day.
Given Bush vs. Gore, I’m assuming he’ll decide to strike down the mandate.
December 13th, 2010 at 3:22 pm
“Doug’s” interesting points:
Though that probably underestimates right-wing activist Judges’ abilities to make stuff up and declare it law.
December 13th, 2010 at 3:22 pm
@brendancalling:
actually, no. i’m noting that it’s idiotic to gloat over a fantasy.
you think the public option would’ve been better than what we got? congratulations on that great insight! if only you had told the rest of us, Mr Wizard! what a fucking stroke of genius that was.
alas.
if only your Senator had 59 votes instead of one, we’d have everything!
December 13th, 2010 at 3:22 pm
I also love how this falls near the 10th anniversary of Gore’s loss in Florida.
Fucking love it!
December 13th, 2010 at 3:25 pm
@change: like repealing social security and repealing medicare and overturning the civil rights act and overturning Brown vs the Board of Education and overturning roe and putting prayer back in school and ending the teaching of evolution.
also, too.
December 13th, 2010 at 3:26 pm
@Mike Kay (Democrat of the Century):
Because liberals don’t want to join conservatives in attacking the basis for a federal law, although they may (of course) oppose or change the law.
Because that would be tragically stupid and counterproductive, unless they clearly understand conservative’s ultimate aim regarding the commerce clause (historically and presently), and take that into account, and know exactly where they were going with their opposition.
Or, they’ll end up helping conservatives invalidate the basis for a lot of federal law liberals like.
And they won’t be that stupid and reckless. I hope. I beg :)
December 13th, 2010 at 3:27 pm
@Mike Kay (Democrat of the Century):
Medicare and Social Security will be nothing more than welfare programs for the poor by 2030. Count on it.
We’re going to essentailly do away with what’s left of the New Deal once we get back in power.
December 13th, 2010 at 3:28 pm
@WyldPirate:
There are plenty of good ideas that absolutely can’t happen in current politics. The question is, how do you choose to deal with that? Do you fight them quixotically and make a stand for principle, or do you lower your expectations and make the best of it? Do you make the best deal given the circumstances, or do you change the circumstances? And is your answer different when the process of changing the circumstances probably takes many, many years?
So I think, yes, indeed, there are some good political ideas that are not worth the bother here and now. I don’t see what it accomplishes for elected politicians to spend time pushing for something that’s going to get 25 votes in the Senate.
I think all of the energy that goes into complaining that they haven’t happened yet should instead go into consciousness-raising and outside-the-Beltway advocacy. Like, for instance, if there was a clamor for a public option, maybe political candidates would be asked about their views on it, and then you could try to get more PO-favorers elected to Congress in the first place. Create a healthcare reform organization that raises money and hires staff to push the public option or even single-payer.
But, given the whip counts, it is indeed not worth trying to get the public option, or more stimulus money, or whatever, through the Congress we now have.
That’s the issue. There are immediate crises to deal with. Do you handle the crisis quickly with whatever’s at hand, or do you handle it slowly with best practices?
Just this morning I spilled a bunch of coffee all over the back seat of my car. The best thing to do would be to get the upholstery professionally steam-cleaned. Well, I don’t have the money for that. So I’m going to use paper towels and household-level sprays I have at home already and hope that that works, because I don’t want that thing to set permanently, and I can’t get the best solution in place in time. Same thing in politics.
December 13th, 2010 at 3:29 pm
Or the baby boomers will get Social Security, but Gen X and everyone after them won’t unless they’re poor.
That’s the inevitable end game. Same with Medicare.
December 13th, 2010 at 3:29 pm
@WyldPirate:
No, I think most of us are just weary of you. You take up a lot of space and time to say basically the same shit over and over. We all wank. It’s just that most of us do it in private.
December 13th, 2010 at 3:29 pm
Can someone cut the head off this snake?
December 13th, 2010 at 3:29 pm
@change:
Hey, Oscar & Wyld, don’t forget to invite this True Progressive to your victory celebration. He clearly shares your political views.
December 13th, 2010 at 3:30 pm
@change:
Right. An honest conservative. Thanks for that.
Why do you lie about it, if I may ask? Is that ethical? Why hide the ball from the public? How is that not wrong?
December 13th, 2010 at 3:31 pm
@change: Shh, not too loud, you still have millions of elderly people to deceive into voting for you.
December 13th, 2010 at 3:31 pm
@kay:
Why do you like about wanting to take us down the path of the Soviet Union?
December 13th, 2010 at 3:32 pm
@change: Yeah, just like you did the last four times.
December 13th, 2010 at 3:32 pm
@change:
This place invented spoof trolling. At least put some imagination into it, man. Your self-respect-fu is weak.
December 13th, 2010 at 3:33 pm
@change:
idiot
December 13th, 2010 at 3:33 pm
“NonyNony” reiterates “Doug’s” point:
But the simplicity to do the correct thing from the beginning would have interfered with predatory Corporation’s profits.
December 13th, 2010 at 3:34 pm
I foresee a civil war between the Corporatist wing of the GOP and the Confederate wing of the GOP.
I will self link, because I’m tired of typing on this shit:
http://zombieland-nowbrainfree.....-fast.html
December 13th, 2010 at 3:35 pm
This has probably already been posted, but rather than scroll endlessly through comments, via the Gawker:
December 13th, 2010 at 3:35 pm
This has probably already been posted, but rather than scroll endlessly through comments, via the Gawker:
December 13th, 2010 at 3:35 pm
@change:
Answer the question. If conservatives want to invalidate the legal authority for the modern state, and they do, if conservatives want to return this country to pre-1937 (I think 1905, but opinions vary) don’t you think you have a duty to tell voters that?
I mean, Rand Paul tried to, but that’s because he’s a moron and he doesn’t know any better, and then he retracted and lied anyway.
It’s tough to battle with conservatives when they won’t tell the truth.
You just told it. Why don’t your leaders?
December 13th, 2010 at 3:35 pm
@kay:
They are not as dumb as the troll.
December 13th, 2010 at 3:39 pm
@Brachiator: My bad. Thanks for the correction.
December 13th, 2010 at 3:39 pm
@Oscar Leroy:
Oscar, you might as well give up. Even Obama’s own words that he crafted a policy similar to previous Rethug HCR proposal won’t faze these people.
Some of them want their echo chamber free of anything negative or critical of certain persons who lead a certain country.
December 13th, 2010 at 3:39 pm
I see we’ve already covered the important work of how to blame the actions of REPUBLICAN APPOINTED JUDGE on Obama.
If anything, you fucking firebaggers are as constant as the sun.
December 13th, 2010 at 3:40 pm
@FlipYrWhig:
yeah dude. except of course “helicopter drop” is a joke, and public option really WAS a good idea (and a compromise down from single payer).
really, i’m laughing AT not WITH.
i guess a number of writers are purists today.
December 13th, 2010 at 3:41 pm
@lol:
How many years did it take for Social Security to resemble the system we know and love today? Don’t know.
But I do know it took a committed and principled core of elected politicians who amongst other things had people who told bankers they “welcomed their scorn” rather than ran for the first compromise they could get at every opportunity. Do you know of there any politician out there today who would stand up and say that or say “The Only Thing We Have to Fear Is Fear Itself”?
It’s always bad when you have to go back 75 years to revel in some other politician’s goodwill in order to reflect some of that back onto your own current one.
December 13th, 2010 at 3:41 pm
@Omnes Omnibus:
Because conservative leaders know damn well no voter signed on to returning to pre-1937.
They ran on Medicare. What they planned to do was destroy the legal authority that makes Medicare possible.
How’s that for bait and switch? On fucking old people, no less. They’d knock a kindergartner over for his lunch money.
December 13th, 2010 at 3:44 pm
@stuckinred:
Damn frustrated comedian, aren’t you? ;)
December 13th, 2010 at 3:45 pm
“Let’s not forget who really inspired Obama’s health insurance reform:”
Corporate insurance executive Liz Fowler.
Obama hired her after she wrote the law that cut out the Public Option.
How… telling.
December 13th, 2010 at 3:45 pm
@WyldPirate:
This makes a ton of sense if you ignore all the people who have actually pointed this out beforehand. Most people here are well aware of this fact. They are also aware that the current batch of Republicans is so far to the right (if you can really call it that) of the previous Republicans who made that proposal and they are aware that that shift has changed what was feasible at this time. Or has the fact that so many current Republicans are opposed to a the previous Republican proposal excaped your notice? Without arguing whether or not the citizens have moved to the right over the past 20 years, there is little doubt that our politicians have.
@brendancalling:
The public option was/is a good idea and it was a compromise down from single payer, but neither of those things get you 60 votes in the Senate.
December 13th, 2010 at 3:45 pm
Don’t have time to read all the comments, but I think the judge’s ruling is wrong. People do not withdraw themselves from the market for medical care as long as there are state laws that mandate medically necessary care in emergency rooms. And if costs incurred in those emergency rooms have effects for interstate corporate medical providers, or multi state insurance exchanges, there you go. Either repeal all the state laws or face up to the fact that people always have the option of some kind of insurance for medical coverage that has real implications for interstate commerce, even it it does not kick in until you are in imminent danger of death or permanent disability due to your condition.
From comments I did have time to look at, I agree with those who say that the mess could have been avoided with a public plan. I would be harder to rule unconstitutional a mandate to enroll in public plan, if you had no private insurance, financed by tax dollars.
If this ruling stands, we will probably end up at a tax financed public plan available to all sooner or later, when public outrage demands it. Question is how many have to die prematurely, and suffer needlessly before that happens.
Without the mandate, most of the rest of the HCR is unsustainable in a private market, so will have to re do it all sooner than would have otherwise.
December 13th, 2010 at 3:46 pm
@kay: A friend reading Hudson’s decision was reminded of the child labor tax case of 1922, when the court invalidated Congress’ attempt to prohibit child labor because it amounted to a penalty not a tax.
That’s where we’re headed.
I hate it, but I am really impressed at how the Federalist yahoos we laughed at in the 1990s are making headway. They were disciplined, they had a goal, they worked tirelessly for it, and they are getting there. The liberal response is what?
December 13th, 2010 at 3:47 pm
I can’t say much for Scalia, but I’ll say this much. In the Hamdi decision, he said the government had to either suspend habeas, or charge the man with treason. None of this indefinite detention of U.S. citizens nonsense. And of the various opinions written in that decision, it was the clearest as far as defining what the executive branch could and could not do on that front, i.e. he thought they could not do anything other than those two options he laid out.
Contrast with Thomas, who basically said anything the president wants to do as Commander in Chief in wartime was okey-dokey.
December 13th, 2010 at 3:47 pm
@WyldPirate:
Uh, nobody is disillusioned about the potential problem that the mandate created. But had Dems continued to fight for the public option and gotten nowhere (which is where they were getting), the range of solutions to the health care cost problem would still be hypothetical, and we’d be back to fighting the same battle 5 or 10 years from now. This way, if the mandate is ruled unconstitutional, then that won’t get tossed back on the pile as a potential solution and the progressive solutions become stronger.
The problem with your argument is that you see doing nothing as a reasonable progressive option to the problem. Every progressive solution to every problem is going to get attacked this way because it’s going to break new ground. Do you really think that a public option wouldn’t also get sued to the end of the earth? Single payer? Do you think anyone else here would be such dicks to cheerlead the GOP assault on those solutions as you and Oscar are now doing? If the attack on the constitutionality of this solution is grounds to you for not having done it, then the only recourse for the Dems was to do nothing. Is that the position you and Oscar are now taking?
December 13th, 2010 at 3:47 pm
@WyldPirate: Did I want single payer? Yes. Do I still want single payer? Yes. Was single payer going to pass? No. Was the previous Republican plan that is better than nothing, a step in the right direction, and a foundation on which one could build going to pass? Yes, just barely. Did you notice that US politics have moved to the right over the past 30 years? I did, but, while I decry that fact, I also recognize it.
December 13th, 2010 at 3:48 pm
@WyldPirate:
Ok, these are the words of a pure ideologue. It reminds me of the suggestions that Obama should ask to ban handgun licensure since the GOP would surely vote against it out of their kneejerk opposition to anything that Obama wants. Now it’s you doing what we accuse the GOP of doing.
If the GOP supported repealing DOMA, should Obama reject that as a ‘Rethug proposal’? Do you have a fucking brain, or are you so determined to kick the ball into the goal with the Republican standing in front of it, that you don’t even bother checking whether it’s your goal or not?
December 13th, 2010 at 3:52 pm
Oscar and Wyld should take themselves to a private chat room where they can jerk each other off and bask in the glory of their liberal purity and genius while they figure out whether Mike Gravel or Dennis Kucinich should be the sacrificial lamb in 2012 to primary Obama.
Clearly, they only need each other to wank endlessly. The rest of us just get in the way of their love for each other.
December 13th, 2010 at 3:53 pm
@FlipYrWhig:
two things. You were privy on the whip count on the PO?
I’m not saying it had the votes to pass. What I’m saying is that it is not that hard—once you have the basics of the package put together (and yes I realize that the details of a PO could be very complicated or could be simply an extension of Medicare—to put that option in and have a vote. If it doesn’t pass. Back to the drawing board and negotiations.
Second thing—if, as you contend the PO is too quixotic of an issue to accomplish, then why in the fuck did Obama ever campaign on it? Why did he campaign on repealing the tax cut for the rich?
December 13th, 2010 at 3:53 pm
@Sentient Puddle:
I kinda think the same thing about eemom and General Stuck, but this is not how this blog rolls. Wyld Pirate has some interesting things to share. If it annoys you, than too fucking bad.
December 13th, 2010 at 3:54 pm
@kay: And 99% of those “conservatives” could not live, that is actually survive, without their Medicare. They simply couldn’t afford it. So they may wishfully pine about repealing the New Deal, but it would be like creating a Death Panel…on themselves.
December 13th, 2010 at 3:55 pm
@WyldPirate:
I’m sorry to hear that Massachusetts is no longer pure enough for the self-proclaimed True Progressives. I’m not sure there’s any State in the Union that does meet your stringent purity test, but you’re welcome to move to an island somewhere.
(Don’t go to the one with the Hatch and the Smoke Monster, though. That’s a fucked up island.)
December 13th, 2010 at 3:55 pm
“Sentient Puddle”:
“a public option would have still included the mandate”
Repeating a falsehood doesn’t make it true (unless you are a right-winger).
The Public Option did NOT and does NOT require inclusion of a mandate.
December 13th, 2010 at 3:55 pm
Whining. Lots and lots of whining. And purity. Don’t forget the purity. With whining and purity we can move mountains… well, maybe not mountains. But molehills. Ok, maybe not even those, but definitely anthills. The anthills kind of move themselves, so maybe not even those.
But we’ll still have our ideals!
December 13th, 2010 at 3:59 pm
@Chyron HR:
Free prenatal care for the ladies though!
December 13th, 2010 at 4:02 pm
@harokin:
The liberal response is going to have to be a hell of a lot of education. Because conservatives know that people will be happy when laws they don’t like are struck down, no matter the basis, and they also know that people don’t know that the whole modern state depends on the commerce clause.
I don’t think people know that conservatives would really like to return to pre-1937. No one even knows what it was like back then, or how far we’ve come. They take it for granted.
December 13th, 2010 at 4:02 pm
@News Reference: Actually, it does, if any of this was to work.
December 13th, 2010 at 4:03 pm
@WyldPirate:
Sounds great. Get Senators to do it, being that it is a piece of legislation and needs to be voted on by the legislature. Why didn’t they do it? Ask them.
And, yes, I know there were stories about Obama pulling the plug on the public option in a deal with pharmaceutical companies. Let’s say those are 100% true. I remember the last HCR debate, in which pharmas successfully killed the whole effort. I can’t say I blame them for keeping a known bad-faith dealer on the sidelines.
There was no reason to think that the PO was a bridge too far. The public liked it, policy wonks liked it. But enough center-right Democrats in the Senate decided they didn’t. There was no reason to think that repealing tax cuts for upper income was a bridge too far. The public liked it, policy wonks liked it. But enough center-right Democrats in the Senate decided they didn’t—and they were bolstered by even some liberal Democrats, like Boxer and Murray and, in at least one source I saw, Feingold.
When you’re running for President you set forth plans and priorities. But given “checks” and “balances” and whatnot, you might not get them.
December 13th, 2010 at 4:04 pm
You all still don’t get it.
We’re not going to end Medicare for the old people NOW, we’re going to save it for them by abolishing it after the death of the baby boomer generation.
December 13th, 2010 at 4:06 pm
@Martin:
two things.
I’m not cheerleading a goddamned thing. I don’t have any health insurance. None. I have a chronic disease—Type II diabetes that requires insulin and I’ve had a heart attack. I am uninsurable and cannot afford any now even if I could get it. I have way more riding on even this HCR plan than almost anyone here.
So you can get the notion out of your pea-sized brain that I am “cheer-leading” the GOP on this issue. Nothing *I have said in this thread indicates that I am in favor of the judicial decision today The declaration of the mandate as being unconstitutional is something that I foresaw from day one.
Second thing. You need to go back and read OL quote from that Washington Monthly Post that I was supporting him on. Steve Benan was quoting Obama. Oscar Leroy pointed out something entirely accurate—that we voted for a Democrat to get, essential, a Republican policy.
December 13th, 2010 at 4:07 pm
@John S.: Seriously, if there was a plan to take the steps now to get true liberals on federal courts, that might begin to pay off by 2030. But I’m not sure there is. How did the conservatives do it? Meese must have been a big help, and Falwell U., and lots of funding.
What if we port the Internet back in time to 1979, so that conservatives “thinkers” spend all their free time bitching at each other and don’t actually put together a workable plan to take over the judiciary?
December 13th, 2010 at 4:09 pm
@kay: The two changes I would like to make to the constitution would be (a) to clarify that corporations are not persons with all of the rights and legal protections that come with personhood and (b) to completely remove the concept of state’s rights.
December 13th, 2010 at 4:10 pm
@FlipYrWhig:
This I agree with, Flip. We aren’t that far apart. I personally, would like to see the President a bit less ready to seemingly come out of the gate giving things away prior to negotiations. More than anything, I would like to see a little more passion and a bit less “pragmatism” out of the President. And I know that we probably disagree over his ability to display said passion.
Thanks for the reasoned exchange of opinions. I enjoyed it.
December 13th, 2010 at 4:13 pm
@WyldPirate: A Republican policy that no Republicans voted for.
December 13th, 2010 at 4:14 pm
@kay: I look back at the last 100 years of American history and see a great success story. My conservative friends look back at the same time period and … shudder.
It used to be we thought conservatives wanted to get back to the Fifties, but now they regard Eisenhower as redder than red. They want the Gilded Age.
I honestly don’t get it.
December 13th, 2010 at 4:14 pm
Well, anyway, the Supreme Court will straighten this all out. Oh … wait a minute …
December 13th, 2010 at 4:19 pm
“But had Dems continued to fight for the public option”
uhm, revisionist history much?
Dems that supported the Public Option were cut off at the knees by Obama’s right-wing Blue-Dogs.
“Democratic” Senator Max Baucus deliberately crippled the Public Option with his Corporate insurance buddy Liz Fowler.
Obama hired Corporate insurance executive Liz Fowler. after she gutted the Public Option.
December 13th, 2010 at 4:20 pm
@Chyron HR:
I made no claim to being a “True Progressive”. I’m not happy about the Fed court’s decision. I’m not a conservative like change who admits he is.
But I’m not a full time Obama fluffer, either….
December 13th, 2010 at 4:23 pm
I’m sure somebody has already posted this, but it appears that the Judge is part owner of a GOP consulting firm that:
H/t to TPM.
December 13th, 2010 at 4:26 pm
@Mike Kay (Democrat of the Century):
HCR has been dead to me for a while now. It’s looking increasingly likely that Obama will lose in 2012, and his Republican successor will work with the Republican congress to ashcan Obamacare.
December 13th, 2010 at 4:29 pm
@harokin:
I thought Rand Paul was the best candidate, because he kept inadvertently stumbling into the Conservative Legal Game Plan. He has absolute contempt for lawyers, so I found that amusing. Keep talking, idiot.
I think he got a phone call :)
“Shut the hell up about the ADA, moron! We’re not telling the rubes what the end game is here!”
Rand’s opponent in that race gave this beautiful speech that explored the whole liberal legal theory since FDR, commerce clause, the whole works, and tied it all together in a neat package, but it was ignored.
December 13th, 2010 at 4:30 pm
@Joel:
False. Dead wrong. The Yankees saved nothing. The Steinbrenner family may have saved a substantial amount of money. Or they may not have. They may have a plan in place that defers substantially all of the estate tax until the second death.
December 13th, 2010 at 4:38 pm
Just curious: has ANYONE who has commented on this thread actually read the opinion?
December 13th, 2010 at 4:40 pm
@WyldPirate:
We did make them vote against it and the press reported it as “Democrats fail to extend tax cuts”. I don’t know if you’ve noticed but the press in this country is actively working against the Democratic party and its narratives.
December 13th, 2010 at 4:43 pm
(again: I worked to get Obama elected and will do so again in the 2012 Election)
But this sums up many of Obama’s supporter’s arguments:
Obama’s right-wing ideology is transparent to anyone informed about history.
It’s transparent in Obama’s appointments of Republicans and right-wing ideologues to run his administration, Obama’s adoption and promotion of Republican and right-wing policies, and even Obama’s right-wing enabling rhetoric.
The “mandate” was a Republican policy.
Even Obama claimed to reject the ‘mandate’ as silly and offensive.
But now that it’s part of Obama’s Republican-Nixonian insurance legislation, Obama’s authoritarians are demanding that ‘the left’ fall in line and support it.
Silly authoritarians, ‘the left’ doesn’t play your right-wing games.
December 13th, 2010 at 4:46 pm
@Oscar Leroy: And it will be all your fault, because you didn’t clap loudly enough.
I mean, next you’ll be saying treasonous shit like we should primary Blue Dogs and guarantee that Republicans will own everything, because progressives are a tiny minority of a tiny minority that has no power until they destroy everything with the grand power of a hissy fit.
December 13th, 2010 at 4:47 pm
FWIW, Orin Kerr seems to think that if someone were to turn in the District Court opinion as the answer to an exam question in Con Law, that person would fail the course.
http://volokh.com/2010/12/13/t.....s-opinion/
December 13th, 2010 at 4:47 pm
@Observer:
Social Security initially excluded (not explicitly but was crafted to do so) women and minorities and well, a host of other folks. It didn’t get amended until four years later and the proto-Firebaggers of the day decried it as a big fat fucking sellout by our corporatist President.
The Left has some serious historical revisionism going on about how Social Security and Medicare actually got legislated and passed and what they actually did initially.
Obama actually mentioned all this but Professional Left was too busy whining about their fee-fees getting hurt to notice.
December 13th, 2010 at 4:47 pm
@News Reference:
I don’t care where you sit on the political spectrum, you don’t get to make up your own facts. And that statement is not factual.
December 13th, 2010 at 4:53 pm
@burnspbesq: I got as far as the part where the judge claimed that the government was wrong for claiming that everyone will need medical care at some point and gave up. I’d love to meet this mythical American who never goes to a doctor ever in their life.
However, the fact that this judge uses outright bad reasoning to fix this decision is right in line with Bush v. Gore, and I expect the Supreme Court to rule similarly with another ‘one-time rule’.
December 13th, 2010 at 4:54 pm
@burnspbesq: Yes, why?
December 13th, 2010 at 4:54 pm
@News Reference:
Huzzah!
December 13th, 2010 at 4:55 pm
@lol: And it got that way by the mass of the left declaring that this was the best that could be gotten and not pushing for better, right? Because that’s your claim, that pushing for better won’t help, so don’t do anything.
December 13th, 2010 at 4:55 pm
@lol:
You do have a bit of a point here and I have noticed it.
I must say, however, that watching my local network broadcasts (CBS affiliate) recently on the tax cut extension—it was very fair and made quite clear the distinction of who was holding things up and how they did. This is in the South in a heavily Republican area as well.
December 13th, 2010 at 4:58 pm
@FlipYrWhig:
@FlipYrWhig:
I was going to respond to Brendan along the same lines (in both comments), but you eliminated the need to. Nicely done.
@WyldPirate:
You’ve really got to get over the grandiose delusion that you’re an effective countervoice to what you, in your usual banal repetition, keep calling the “echo chamber.” In fact, not all people who disagree with others are created alike; nor are all disagreements. Nor is the very act of disagreeing cause for celebrating one’s own nobility and assuming that all who reject a particular speaker have a blanket problem with not having their own views constantly validated (this last is a remarkably transparent and thoroughly lame attempt at never having to examine the weakness of your own offerings—hey, I’m not the problem; everyone else just can’t handle me!).
You just aren’t very good at this, old guy.
As so many people have pointed out so many times—but none can get through the teflon lack of self-awareness that has prevented you from noticing for more than half a century that when you enter rooms, they empty—it’s not what you dearly love to believe is your brave unvarnished truth-telling that turns everyone off. It’s the mediocrity (I’m now being generous) of your expository skill combined with your agonizing slowness at taking in information and your epically poor listening skills that wear people out.
December 13th, 2010 at 4:58 pm
@burnspbesq:
I read it burns.
But I just want to note that I disagree with your (perhaps?) implied premise, that any ordinary citizen has to have the ability to read and fully understand that opinion in order to comment or weigh in.
I think we’re all ruled by judges, and anyone can take whatever understanding they glean and apply the decision to their own life, and law school isn’t a requirement before reading and interpreting a news article.
I just object to that whole idea. I don’t think John has to read the decision to comment on it. If that were true, only lawyers could weigh in on judicial decisions, and this country doesn’t work like that. Thank goodness.
December 13th, 2010 at 5:02 pm
@NobodySpecial:
I think they have a problem with the tax angle, too, conservatives. If you get a mortgage interest deduction, and I don’t, is the federal government forcing me to buy a home?
The judge focused on the “penalty” aspect of the law, but we use lots of mechanisms to encourage behavior, and a lot of them are tax provisions. The feds can’t use the tax code to do that? Hmmm. This might be news to a lot of Americans.
December 13th, 2010 at 5:08 pm
@burnspbesq: Thanks for the link. The comments there are pretty helpful in showing where the fault lines are.
I’ve got to say, it’s a pretty readable opinion. It seems to fairly set forth the pro and con arguments and explain how it got to its conclusion. Its big failure to me is its refusal to acknowledge that no one can elect not to be in the health payment market—they can only decide to participate in ways that are more inefficient for everyone.
How many people outside of the YA demographic and the superrich “choose” not to have health insurance?
December 13th, 2010 at 5:09 pm
@harokin: Ever met a middle-class American who was head over heels in love with all things English—or at least the version of past-times England he or she got from Masterpiece Theater and mystery novels? The roast beef! The whiskey and tea! The perfectly cut tweeds! The Norman architecture! The hounds curled before a roaring fire on a wintry night as the housemaids trot up the back stairs with jugs of hot water and warmed bricks for the tester beds!
Those people never get that if they could be transported back to that time and place, they’d be the housemaids, not the lords of the manors. I think non-wealthy Americans longing to go back to the Gilded Age have the same problem. On some level, they think that if they could just get free of all this pesky regulation and handouts to the undeserving and political correctness and godlessness, they’d end up more like a Morgan or a Pullman or a Carnegie than like some unemployed guy dying in a charity ward of a preventable disease.
December 13th, 2010 at 5:17 pm
@harokin:
Do you think the District Court got it right?
December 13th, 2010 at 5:23 pm
It will take multiple years for this case to wind its way up to SCOTUS, and one District Court decision doesn’t carry any more authority than another.
It’s waaaay early in the game to hyperventilate over this.
December 13th, 2010 at 5:24 pm
@kay:
I do think that anyone is more likely to comment intelligently and perceptively on any issue if they have read what it is they are commenting on.
Contrary to the propaganda that we lawyers have put out there since the beginning of time, some of what we do isn’t rocket surgery, and can be understood by an educated person who puts some effort into it.
And with a handful of exceptions (Linda Greenhouse, Nina Totenberg, and Lyle Denniston are the ones that come immediately to mind), journos and pundits nearly always get it wrong when they try to go deeper than who won.
December 13th, 2010 at 5:29 pm
@Cacti:
True, but I think conservatives have a very clear political angle here. So in that sense it’s a big win for them. And that’s all that matters to them.
Benet has this wonderful run-down of how many of our conservative constitutional scholars in the Senate supported a mandate when it was a GOP-led provision. Ahem.
It’s purely political. There isn’t a GOP Senator who means a word of it, based on what they’ve supported in the past. But they’re hoping to convince voters Obama is some evil liberal control freak.
December 13th, 2010 at 5:30 pm
@harokin:
The opinion puts me in kind of a funny place, because I believe that Wickard v. Filburn and Gonzalez v. Raich were wrongly decided. But you may not have to go there to reverse if Kerr is correct that the judge fucked up in his reading of McCulloch v. Maryland.
December 13th, 2010 at 5:33 pm
@burnspbesq: No. The “passive” decision not to purchase health insurance is an “active” decision to pay for health care some other (less efficient) way that has a clear impact on interstate commerce.
But times change. Hudson’s answer would be the “right” answer on the law school exams of the 19th century. I hope and pray we are not going back to that.
December 13th, 2010 at 5:36 pm
@shortstop:
I don’t listen to you for one reason. You’ve got no point. You never address any either. You’re simply like a little chihuahua that nips at heels. So you can politely fuck off to the outfield
December 13th, 2010 at 5:37 pm
@burnspbesq:
I think the Times article got the basics right. If we ask people to read 48 page opinions before they may speak, and take a mini-seminar on the commerce clause, we’re shutting them up. Too, when we point them to a lawyer’s analysis, rather than a news report, we’re introducing bias, because as you well know, there are broad differences between conservative and liberal legal theory. That’s fact. John Roberts is going to see commerce clause issues in a very different way that Ginsburg. 14 judges saw this law differently than this latest judge. If I point them to a liberal who analyzes the opinion, am I spinning them? I think I can be.
You and I have agreed on this before. We both think it’s crazy to rely on one lawyer’s analysis of ….shit, whether the sun came out this morning.
It’s why we both try to read more than Greenwald. One lawyer is one lawyer. It’s not The Word.
December 13th, 2010 at 5:39 pm
That Obama initially opposed and was chided by both Edwards and Clinton in the primaries. You remember them- true progressives, only like the Pretender in Chief.
Get off my fucking obstacle, Private Pyle.
December 13th, 2010 at 5:41 pm
@WyldPirate: Shortstops are infielders. They probably could become outfielders if they didn’t all immediately give up and compromise and fail to use the bully pulpit without even trying. I can’t explain how that would happen, but I just feel they could do it if they really cared.
There’s just about nothing you get right, is there?
December 13th, 2010 at 5:42 pm
@burnspbesq: I can easily see Wickard being a casualty of any affirmance of this opinion. That’s part of what terrifies me. I don’t see how a consistent commerce clause view could embrace both decisions.
The N&P argument makes my head spin.
December 13th, 2010 at 5:43 pm
@burnspbesq:
Fellow lawdog here.
I’ve only perused the highlights thus far, but (based on what I’ve seen) Hudson’s premise seems to be that any exercise of necessary and proper clause authority has to be rooted in an express power, rather than reasonably in furtherance of an express power.
Which would be a really bush league error for federal judge to make, as it flies in the face of almost 200 years of precedent.
December 13th, 2010 at 5:43 pm
@harokin:
This, in spades. My Con Law professor was a crackpot, but he knew his shit on the structural parts of the Constitution, and there is no way to reconcile the District Court opinion with what I think I remember.
December 13th, 2010 at 5:48 pm
@kay: What I think is clear from the coverage (but what do I know? I’m reading blogs!) is that it is a very political decision, or a legal decision based on political views. It gets to what, surprisingly, is a key question of the early 21st century—do you want a strong and expansionist federal government. (And obviously that question is biased since a conservative would have put that in terms of original intent). But I think it should be clear that judges begin with a preconception of the role of the federal government and then “read” the constitution in light of that understanding. I think a more transparent appreciation of how judges actually operate (hint, they’re not umpires calling strikes and balls) should be beneficial. But it could also lead to cynicism and resignation.
December 13th, 2010 at 5:50 pm
You have to admit, John, it’s reasonable people wouldn’t understand you on this point. You’ve only said it maybe ninety billion times. Have you considered having it put up in big lights on a good year blimp?
December 13th, 2010 at 6:03 pm
I also find it strange that Judge Hudson ruled the mandate to be severable when Congress quite intentionally meant for it not to be.
So, given that the opinion seems to…
1. Ignore well established precedent
2. Ignore the statutory language and substitute its own judgment
It appears to fit the broadest definition of “judicial activism”.
December 13th, 2010 at 6:04 pm
Obama’s appointments of Republicans and right-wing ideologues to run his administration…
Republican Bush’s military adviser Robert Gates is running the Department of Defense under Obama and we’ve gotten largely Republican military policies.
Republican Bush’s Fed Chairman Ben Bernanke was reappointed by Obama and we’ve gotten Republican monetary policies.
Right-wing ideologues like Larry Summers and Tim Geithner were appointed by Obama and we’ve gotten largely Republican economic policies.
Would you like more examples?
December 13th, 2010 at 6:08 pm
Reading the article in the NYTimes, I was struck by this:
The expansion of Medicaid may survive court challenges but open revolts in many states may be expected. Right now, in the relatively “blue” state of Washington the governor and legislature have begun their latest assault on health care for the poor. Washington’s entire social safety net is unraveling and any part of Medicaid that the state has discretion to cut is threatened. Of course, what made this necessary was the determination on the part of Washington’s compassionate voters that the richest Washingtonians shouldn’t have to pay the same relative amount in taxes that poor people pay. One’s heart goes out to the richest 1%, as they continue to pay state taxes at a rate of 2.9%, while the poorest (non-elderly) 20% pay 17.3%.
December 13th, 2010 at 6:12 pm
@harokin:
It shouldn’t lead to that, I don’t think. It’s simply a fight. The two sides disagree. It’s adversarial. I think the whole thing would be more instructive if our friends on the Right side of the aisle would just admit what they’re fighting for. Rand Paul shouldn’t rescind what he said about the ADA, like he did. That’s what he believes. He doesn’t think the federal government has the authority to draft or enforce that law. I do. That’s a fundamental difference between liberals and conservatives. There’s no getting around it.
I’d settle for them showing the ball. You can harrdly duke it out with them when they’re dancing around avoiding. They won’t, because they know how entrenched some of these liberal ideas are. They’re core. It’s infuriating, how much politeness and deference we have to show them. Why? This is what they believe. They should have to defend the whole package.
December 13th, 2010 at 6:13 pm
@burnspbesq: I agree with Kerr that this opinion, if affirmed, would render the N&P clause a nullity. I can’t see it flying at the Circuit level.
December 13th, 2010 at 6:13 pm
@lol:
I think you missed the part about where the Dems of that day welcomed conflict because they had some goals in mind.
You know, the “I welcome their scorn”, “I welcome their hatred” part.
Sort of like today’s Republicans actually.
If you want something done, you need to hang tough.
The only person doing any historical revision is you: you want to recall SS history but you want to pretend a bunch of compromisers will get you there, even if by your own example, it requires people with strong fortitude who can stand up to the bankers and other system operators.
Face it, this team isn’t your grandparent’s Dem party. They don’t know how to throw their elbows around.
(and you forgot to mention that Obama conveniently forgot to mention how universal medicare was first proposed in 1945 by Truman not in 1965 by Johnson. So let’s not talk about historical revisionists without mentioning that. Makes the record look a whole lot worse no?)
December 13th, 2010 at 6:14 pm
@beltane:
The GOP is fully aware that this country is going to do that anyway. So, why cut into profits?
Also, this may be just a touch unfair, but I’m wondering when the President will appear on TV and regretfully announce that he will now reach out across the aisle and join the Republicans in working to repeal this unconstitutional legislation.
Also, also, I thought it was miserable against the Steelers; tonight we’ve really got a killing wind going – I bet they’ll be picking up bodies out of the rotten houses tomorrow morning. Monday Night should see a lot of running and not too much passing tonight; good for the Texans, not so much for the Ravens.
December 13th, 2010 at 6:16 pm
@WyldPirate: Oh, go away, do. Sentient Puddle has been here far longer than you, unless you changed your tag.
From TPM possible conflict. Shouldn’t this judge have recused himself?
December 13th, 2010 at 6:23 pm
And you would be right….
December 13th, 2010 at 6:27 pm
@shortstop:
No, I got something right—that you’re an insignificant little piece of shit….
December 13th, 2010 at 6:28 pm
@change:
Why, though? It’s a horrible program conceived in Russia. That’s what you just told us. You’re morally opposed to Medicare. That’s core, for you. The free market will handle this much, much better. Old people should flock to your theory, in the Marketplace of Ideas, if you had the courage to, ya know, tell them about it.
You know why. Because conservatives would never win another election. I don’t think you have the courage of your convictions, change. “Man up”, as Sarah likes to say.
December 13th, 2010 at 6:31 pm
@KDP:
I’m not going anywhere. Deal with it.
December 13th, 2010 at 6:33 pm
Serious question: how is this judicial activism? Did Cuccinelli(sp?) not have standing to bring this? Judge went beyond the scope of what he was being asked to hear? Etc?
I’m honestly curious, because the topic of why particular actions are or are not judicially activist is not something I’m up on the details of. All I can gather from this thread is that it probably is judicially activist because it’s the desired ruling of people who’re generally hypocritical on the subject. I say that not to talk shit, but because after reading the article and scanning the thread I’m genuinely unclear on what the case for it being judicial activism is (or not) is in the first place.
I’m not sympathetic at all to the ruling, but the question the judge answered is the one he was presented with? Or wasn’t it?
btw the public option/single payer slam would probably land a little better if the argument had ever been that they’d preclude legal challenges if included in the bill. But such is the nature of trolling one’s own blog I suppose—less about accuracy than consistency and all that.
December 13th, 2010 at 6:44 pm
re: The “mandate” was a Republican policy.
That’s an indisputable fact.
“That Obama initially opposed and was chided by both Edwards and Clinton in the primaries. You remember them- true progressives, only like the Pretender in Chief.”
Obama was correct to reject the Republican’s policy and he won.
Clinton’s insistence on the mandate was one of the (many) reasons she eventually lost me.
Edwards was always clear that, at minimum, a Public Option had to precede any “mandate”.
Take out the Public Option and the mandate became unsupportable.
December 13th, 2010 at 6:45 pm
.
.
@John Cole
You rang?
No need to invent. I hear we have a friend
workingin the White House..
.
December 13th, 2010 at 6:45 pm
@Cacti:
Ah, see, that’s why he’s right and you’re wrong. Almost 200 years means nothing. Anything after that day in 1789 when Thomas Jefferson carried down the stone tablets that held the 10 amendments from the top of Mount Vernon is clearly revisionist in nature.
December 13th, 2010 at 6:49 pm
@WyldPirate: Pirate, If you were a woman, I would be tempted to call you a cunt. I wouldn’t do it, but I would be sorely tempted.
December 13th, 2010 at 6:50 pm
heh, Steve Benen:
For years, it was touted by the likes of John McCain, Mitt Romney, Scott Brown, Chuck Grassley, Bob Bennett, Tommy Thompson, Lamar Alexander, Lindsey Graham, John Thune, Judd Gregg, and many others all notable GOP officials.
My personal favorite is Grassley, who proclaimed on Fox News last year, during the fight over Obama’s plan, “I believe that there is a bipartisan consensus to have an individual mandate.” (A year later, Grassley signed onto a legal brief insisting that the mandate is unconstitutional.)”
Obama’s appeasers seem to naively believe that adopting and promoting Republican and right-wing policies will get them Republican support.
No.
Republicans will just use your support of their ideas to attack you.
December 13th, 2010 at 6:58 pm
@nancydarling:
Once in a great while, WyldPirate writes something sensible. I don’t see him as a hopeless case like Corner Stone or mclaren. But you can wait a long time between sensible statements.
Also, this is Balloon Juice, where no insult is out of bounds. Don’t hold back.
December 13th, 2010 at 6:59 pm
hmm, that ‘blockquote’ of Steve Benen’s piece, [Republicans] “CHEERING A VICTORY OVER THEIR OWN [mandate] IDEA., should have ended after: (A year later, Grassley signed onto a legal brief insisting that the mandate is unconstitutional.)”
December 13th, 2010 at 7:00 pm
Anyone else notice that Reagan, Bush and Bu’shit have transformed the Federal Courts into something very much like Iran’s Mullahs?
Yes, we get to vote and all (sometimes—- happy Bush v. Gore day, everyone!), but there seem to be definite limits on what is allowed to happen politically in our Great Republics.
I didn’t notice so much in the Clinton years, mostly because Bubba seemed so goddamned enthusiastic about every shitty deal he cut with the Rethuglitards. (Well, after he recovered from the ‘94 shell shock, which took about a year if I recall.)
Funny, it’s almost as if the self-proclaimed (D) base is presently taking out all their Clinton era frustration on Obama—- and with compound interest. I’m not thrilled with the tax deal, but good god, it doesn’t compare to the financial and media deregulation signed by WJC, which really greased the skids on our way to banana republic status.
Cheers. I’ma go drink paint.
December 13th, 2010 at 7:01 pm
@newhavenguy:
Need company?
December 13th, 2010 at 7:05 pm
@nancydarling: What’s up with this repeated reference? Don’t tell me that WyldeOldePyratt called someone here a cunt?
December 13th, 2010 at 7:11 pm
@Omnes Omnibus @newhavenguy: Coincidentally, I’m heading out to look at paint colors in just a mo’. It never occurred to me that I could dri…well, I like the cut of y’all’s jibs.
December 13th, 2010 at 7:14 pm
@DickSpudCouchPotatoDetective wrote:
Did you see the NewsHogger post today linking to a RM guest post at The Moderate Voice? Since when is he a moderate?
December 13th, 2010 at 7:14 pm
@shortstop: If it’s a liquid (or liquidish, like pudding), you can drink it. Now, I am not saying it is always a good idea to do so, but you can do it.
December 13th, 2010 at 7:17 pm
@harokin:
I hate it, but I am really impressed at how the Federalist yahoos we laughed at in the 1990s are making headway. They were disciplined, they had a goal, they worked tirelessly for it, and they are getting there. The liberal response is what?
This liberal has been wondering for almost a decade if (an honest) Federalism might not be more workable than what we have now.
I’ve grown pretty weary of fools in Texas or Kansas having so much influence over what happens up here in MA. Fine, let them outlaw abortion in their states, and then they can STFU about gay marriage or health care reform. Lower my Fed tax to 15%, raise my state tax to 15%, and we can look out for our own, more local interests for a change.
Of course, I said an honest Federalism. And we all know that’s not how it would happen in real life: Blue states would still end up subsidizing the various cracker fiefdoms one way or another. And our naughty bits would still be, somehow, under the purview of Federal law.
Still, nice to dream.
December 13th, 2010 at 7:39 pm
@harokin: As I recall that was what one of the district judges to throw out the challenge reasoned that you either buy insurance or elect to buy care medical care later. And so the government can regulate that election you make about how to purchase medical care.
But strictly speaking this is not a guaranteed deal. Some people may not ever seek medical care or die before they can get it.
December 13th, 2010 at 8:44 pm
@burnspbesq: What I think the district court is saying on N&P is the government has expanded implied powers to accomplish its express powers. But that does not mean implied powers to do anything and everything. You first have to agree that the legislative objective comports with an objective of the express powers. If instead you find that mandating people to participate in the medical care market is not a legitimate objective of the express power to regulate commerce, then you do not need to worry about the specific details are necessary and property to achieve that legitimate objective.
Framing it differently though that regulating medical care is in the express power to regulate commerce you then get to the decision of whether mandating an individuals participation in that market is really necessary to achieve the regulation.
December 13th, 2010 at 9:02 pm
@WyldPirate:
You stupid shitcamel, we barely got the kludge that is HCR passed, and you fucking think that there was a snowball’s chance in hell of getting the PO in there?
Go make your own reality elsewhere.
December 13th, 2010 at 9:22 pm
@Sentient Puddle:
My chest hurts… that was so funny. Thank you!
December 13th, 2010 at 10:17 pm
@Doug:
There’s no doubt that the business of insurance is interstate commerce. That’s been settled for a long time. Even though the McCarran-Ferguson Act gave primary responsibility for regulating the business of insurance to the states, there have always been exceptions (e.g., ERISA). And it seems to me that it’s beyond reasoned dispute that Congress can act to eliminate adverse selection that threatens the solvency of health insurance companies.
There is so much wrong in the District Court opinion that it’s hard for me to imagine even as screwed up a court as the Fourth Circuit not getting it right on appeal.
December 14th, 2010 at 1:22 am
I think it makes good sense to try to divine the “intent” of Founding Fathers who lived two hundred years ago, before there was medicine or insurance. A truly useful guide.
December 14th, 2010 at 6:24 am
via TPM
Federal judge Henry E. Hudson’s ownership of a stake worth between $15,000 and $50,000 in a GOP political consulting firm that worked against health care reform—the very law against which he ruled today—raises some ethics questions for some of the nation’s top judicial ethics experts. It isn’t that Hudson’s decision would have necessarily been influenced by his ownership in the company, given his established track record as a judicial conservative. But his ownership stake does create, at the very least, a perception problem for Hudson that could affect the case.
December 14th, 2010 at 8:50 am
@nogo postal:
It’s actually worse than that.
Gawker discovered that Ken Cuccinelli paid $9,000 to the Judge’s consulting firm in the last election cycle.
So, Judge Hudson failed to recuse himself from a case where one of the litigants was his client.
December 14th, 2010 at 9:03 am
@Sentient Puddle:
Courts generally presume severability when considering the constitutionality of a statute.
See, for example, the USSC’s discussion with respect to federal law in Alaska Airlines Inc. v. Brock.
December 14th, 2010 at 12:44 pm