Who’s Missing?

I intended to write something on the health care reform decision yesterday. I read the opinion, but it seems no one knows what the decision actually means. I’d sure like to know whether people in 26 states just lost the protections that are already in place, but I suppose I’ll have to wait until we can decipher the message in the opinion throwing the whole law out, so I’ll hold off.

In trying to determine what the judge in Florida ordered (and failing) I kept running across paragraphs like this one, in the New York Times:

The ruling by Judge Vinson, a senior judge who was appointed by President Ronald Reagan, solidified the divide in the health litigation among judges named by Republicans and those named by Democrats. In December, Judge Henry E. Hudson of Federal District Court in Richmond, Va., who was appointed by President George W. Bush, became the first to invalidate the insurance mandate. Two other federal judges named by President Bill Clinton, a Democrat, have upheld the law.

Which got me thinking. What are the names of the two federal judges who upheld the law? Why did they uphold the law? Where are the excerpts from their opinions upholding the law? Why are we only hearing from two judges, when there are four?

Two federal judges determined that the law was constitutional. One federal judge ruled that the mandate was unconstitutional and the other threw the whole thing out.

Two for to two against. But, the conservative argument on the Commerce Clause has absolutely dominated the public debate, to the exclusion of all else.

I’d like to hear from the judges who went the other way.

These are excerpts from the one of the opinions that upheld the law: (pdf)

The district court rejected this claim and upheld the minimum coverage provision as a valid exercise of Congress’s Commerce Clause power. The court rejected the premise of that argument, explaining that the “decision whether to purchase insurance or to attempt to pay for health care out of pocket, is plainly economic.” The court explained that these decisions, “viewed in the aggregate, have clear and direct impacts on health care providers, taxpayers, and the insured population who ultimately pay for the care provided to those who go without insurance.

The court emphasized that “[t]he health care market is unlike other markets. No one can guarantee his or her health, or ensure that he or she will never participate in the health care market. Thus, [t]he question is how participants in the health care market pay for medical expenses — through insurance, or through an attempt to pay out of pocket with a backstop of uncompensated care funded by third parties. Far from ‘inactivity,’ by choosing to forgo insurance plaintiffs are making an economic decision to try to pay for health care services later, out of pocket, rather than now through the purchase of insurance. [P]laintiffs in this case are participants in the health care services market, and they have made a choice regarding the method of payment for the services they expect to receive. How participants in the health care services market pay for such services has a documented impact on interstate commerce, and this market reality forms the rational basis for Congressional action designed to reduce the number of uninsureds.

This part is interesting. I haven’ t seen it before, anywhere:

The uninsured, like plaintiffs, benefit from the ‘guaranteed issue’ provision in the Act, which enables them to become insured even when they are already sick. Without the minimum coverage provision, there would be an incentive for some individuals to wait to purchase health insurance until they needed care, knowing that insurance would be available at all times. As a result, the most costly individuals would be in the insurance system and the least costly would be outside it. In turn, this would aggravate current problems with cost-shifting and lead to even higher premiums.

I knew that people who are uninsured benefit from the national guarantee of emergency hospital care when they need care and can’t pay for it. What I hadn’t read anywhere was an explanation of the direct benefit that flows from guaranteed issue. Everyone will receive access to health insurance when and if they need it, whether they purchase it while they’re healthy, or after they get sick. That guarantee has value.

We’re hearing from the advocates who are in favor of overturning the law, the judges that found the law unconstitutional, and the Obama Administration.

Seems like there’s a glaring omission there.

Update:

Commenter SB Jules adds this:

California Joins Friend of the Court Brief in Support of Health Care Reform

Harris and the Democratic attorneys general of Connecticut, Delaware, Hawaii, Iowa, Maryland, New York, Oregon and Vermont planned to file their friend-of-the-court brief with the Cincinnati-based 6th U.S. Circuit Court of Appeals in the case brought by Thomas More Law Center. The lawsuit challenges the constitutionality of the law’s mandate that most people maintain a minimum level of health insurance coverage or else pay a tax penalty.

It might be nice if we were informed that there are states actively defending the law.






81 replies
  1. 1
    TR says:

    Steve Benen had a nice piece this morning noting the heavy media coverage of the two anti-ACA decisions, and the lighter attention given to the two pro-ACA decisions.

  2. 2
    Allan says:

    It’s actually something like 14-2 because some 12 courts have tossed challenges out of their courts while pointing and laughing at the idiot plaintiffs.

    One of the briefs Vinson found especially quotable was filed by documented hate group Family Research Council.

  3. 3
    Kay says:

    @TR:

    It’s baffling to me. Wouldn’t an ordinary reader benefit from a comparison?

    Just excerpt all four, and then the two side’s advocates.

  4. 4
    Kryptik says:

    Seems like there’s a glaring omission there.

    You see a glaring omission. They see the system working.

  5. 5
    BGinCHI says:

    Great post, Kay.

    I’d add a totally partisan comment with a wager: I’ll bet anyone ten bucks the Dem appointed judges will turn out to be smarter and their opinions more carefully considered than the GOP appointees.

    The ideological shit is hitting the fan, and judges are not immune from this.

  6. 6
    kay says:

    @TR:

    That’s great, thanks. I was reading the comments under the NYTimes story last night, and people were actually wondering about the rulings that upheld the law. They were sort of idly speculating.

  7. 7
    KG says:

    @Allan: that 14-2 record is going to matter on appeal. every single one of them is going to be brought up, because every issue is going to be addressed, and standing is going to be a key one.

  8. 8
    TR says:

    @Kay:

    It’s baffling to me. Wouldn’t an ordinary reader benefit from a comparison?

    Of course. But the political media isn’t interested in informing their readers; it’s interested in conflict and drama. The pro-ACA decisions didn’t provide much in this regard, as they simply seemed to affirm the status quo, so they got slight coverage. But the anti-ACA ones did, so they got greater attention.

    You’d think, however, that even if reporting on conflict was their sole motivation, they’d have an incentive to mention the pro-ACA decisions in the anti-ACA stories, if only to point out that federal judges are conflicted over the issue and it’s surely headed for a Supreme Court showdown.

    But I guess they’re shallow and short-sighted.

  9. 9
    Michael says:

    The Argentinification of our national economy is nearly complete. The 5 of the 9 justices who are conservatives will gut commerce clause justifications for everything from the mandate to SS to medicare to the environment.

    We’ll have a tiny cadre of decisionmaking decisionmaker plutocrats, a set of well-paid pundits to carry their water and such small number of middle class retainers who serve them. They’ll fuck up pretty much every decision they make, will be venal, entitled and corrupt, but the troops and the militarized police forces will serve their masters well.

    The peasants will have to accept their lot in life and be grateful for any fucking crumbs that get tossed their way. It’ll be freedom of a sort – the freedom to cheat, the freedom to lie, the freedom to mistreat employees, the freedom to dump toxic waste into the air and water, but rednecks will be able to tote guns to the courthouse so everything will be so full of tear-inspiring liberty that your heart will burst every time you see an American flag or an image of the Statue of Liberty.

    Personally, I think that we should turn her base into an illegal immigrant detention center. It is certainly befitting for a center-right nation like ours.

  10. 10
    cleek says:

    NPR mentioned the 14 pro-ACA decisions, this AM. but they seemed pretty excited about the latest anti- .

    but, as @TR said: the political media isn’t interested in informing their readers; it’s interested in conflict and drama.

  11. 11
    BGinCHI says:

    @cleek:

    it’s interested in conflict and drama.

    Nailed it. Complexities are for pointy-heads.

  12. 12
    Redshift says:

    @TR: In response to Steve Benen’s post, the general reaction was that it’s understandable that cases overturning a law are more “news” than ones upholding it. But that really makes Kay’s point more relevant — even if the rulings overturning are more “newsworthy,” they still ought to be an occasion to discuss the arguments and rulings on both sides.

  13. 13
    Caz says:

    The decisions which upheld the law are sorely lacking in legal reasoning, analysis, and logic. They merely describe the policy reasons why the law is good and should be upheld.

    The decisions which overturn the law are well-reasoned, providing specific and in-depth legal analysis and logic showing why the law is unconstitutional.

    The most recent decision from Judge Vinson is one of the best-reasoned legal opinions I’ve ever read, and I’ve read a lot of them!

    There is an obvious reason why two judges focused on policy considerations while the other two focused on legal and constitutional considerations.

    If this law is upheld, it removes virtually all limits on federal power, and will allow the federal government to interfere in our lives on an unprecedented level that essentially renders the Constitution meaningless with regard to limits on the federal government.

    There is no way the U.S. Supreme Court can uphold this law, unless they really want to completely gut the Constitution and allow the federal government to order Americans to buy whatever goods and services it wants to. What’s to stop the government from mandating that people buy GM cars, health foods, gym memberships, interlock devices for our cars (the blow-tube system used for DUI convicts), etc?

    Judge Vinson’s decision is truly a great piece of legal writing, whether you agree with his conclusions or not.

  14. 14
    nitpicker says:

    And just as annoying is that people on our “side” of the debate are just as vague. Check out this, from The Center for American Progress:

    Nearly three dozen judges have now considered challenges to the landmark Affordable Care Act and the overwhelming majority of these cases have been dismissed. Nevertheless, a single outlier judge in Virginia has embraced the meritless arguments against the new health care law and another judge in Florida also appears poised to break with the overwhelming consensus of his colleagues. (italics mine)

    If you want people to be able to argue on their own, you should give them links, lists or some way of getting access to every one of these cases.

  15. 15
    Chyron HR says:

    @Caz:

    Not bad, but a little over the top. Try toning it down next time if you want to be a successful parody troll.

  16. 16
    Maude says:

    @Caz:
    Methinks the Draft interferes a teeny bit more in the lives of Americans.

  17. 17
    BGinCHI says:

    @Chyron HR: Agreed. The list of freedoms the feds are going to take didn’t include guns. Also forgot to mention women’s right to choose, or does the fed anti-abortion stuff not count.

    It must be confusing to be an illogical winger.

  18. 18
    catclub says:

    @Michael: At least the tear gas canisters will be stamped ‘Made in USA’.

    We’re still number one in some things.

  19. 19
    TR says:

    @Caz:

    If this law is upheld, it removes virtually all limits on federal power, and will allow the federal government to interfere in our lives on an unprecedented level that essentially renders the Constitution meaningless with regard to limits on the federal government.

    If by “unprecedented,” you mean “in a manner exactly like a law that John Adams signed,” then you’re right.

    This law is wholly consistent with a century’s worth of federal legislation that has been repeatedly upheld by the Supreme Court. If this law is struck down on Vinson’s activist grounds, it will undermine a wide array of federal government activity and throw the entire country into absolute chaos.

  20. 20
    catclub says:

    @Caz: “I’ve read a lot of them!”

    As Jimmy Durante sang:
    “I read a book.
    It took me ages – seventy pages!”

  21. 21
    Roger Moore says:

    @TR:

    But the political media isn’t interested in informing their readers; it’s interested in conflict and drama propaganda.

    FTFY. If the media were actually interested in conflict and drama, then they’d be most interested in the disagreement between the judges and their evident political biases. There’s a great story line there. Instead, they’re trying to make it look as though the wingnut argument is right by highlighting it when it succeeds and ignoring it when it fails. That’s taking sides, not playing up the drama.

  22. 22
    stuckinred says:

    @Caz: schmuck

  23. 23
    Chyron HR says:

    @catclub:

    Hell, he’s read all of them. (Just don’t ask him to name one he’s read, because that’s Lamestream Gotcha Blood Libel.)

  24. 24
    schnooten says:

    @Caz:

    There’s a reason they focus on the policy reasons in upholding the law: challenges under the Commerce Clause get rational basis review; policy reasons show a rational basis.

    Point to a prohibition in the Constitution against the federal government forcing you to buy something. It’s a political question. “Constitution” — you keep using that word. I do not think it means what you think it means.

  25. 25
    Pangloss says:

    Everybody knows that judges appointed by Democrats are pot-smoking hippies that barely graduated from law school because they spent all their time playing hackey-sack and following The Grateful Dead around the country in a 1973 VW bus painted with rainbow flowers, peace symbols, and the Keep On Truckin’ guy.

  26. 26
    catclub says:

    @Chyron HR: Or as Jamie Lee Curtis put it in “A Fish Called Wanda”

    Apes do read philosophy, they just don’t understand it.

  27. 27
    Caz says:

    So basically none of you have anything substantive to say that relates to Constitutional jurisprudence. The lack of any substantive responses to my post just proves my point – those who support Obamacare don’t care if it violates the Constitution or not. None of you can point a single legal ruling that provides a precedent for the personal mandate…because none exists.

    Although I am kind of partial to the “Schmuck” argument! Great words of wisdom from a great thinker…I guess.

  28. 28
    Redshift says:

    @catclub: It’s amazing how broadly applicable that quote is.

  29. 29
    Allan says:

    @Caz: Nice copy-and-paste from the Luntz daily talking points memo.

  30. 30
    eemom says:

    @Caz:

    Although I am kind of partial to the “Schmuck” argument! Great words of wisdom from a great thinker…I guess.

    You got that right.

    Great thinkers don’t waste words on the likes of you.

    Why don’t you go over to Volokh Conspiracy and circle-jerk with your own kind?

  31. 31
    stuckinred says:

    @Caz: Does go fuck yourself schmuck sound better?

  32. 32
    LS says:

    Yeah, the Federal Government has never, ever required you to pay more taxes if you don’t buy a mortgage child care an energy star appliance a product. Never. Ever.

  33. 33
    AliceBlue says:

    It’s my understanding that Vinson did not issue an injunction; therefore, the decision does not prohibit the law from being implemented in the 26 states.

  34. 34
    azlib says:

    The Supremes may pull a Bush v Gore on this one. They could throw out the individual mandate and then make it clear this case does not set a precedent for any other cases. I would not put it past them. I do not think even they would throw out the current reach of the Commerce Clause. There are too many vested interest in Federal programs supported by the current interpretation of the Commerce clause.

  35. 35
    someguy says:

    @Caz:

    It’s pretty simple. Elections have consequences. You lost. We won. The law is in place. Time to deal with it, troll. Nothing in the constitution forbids the government from telling you what to buy or not buy, what to do or not to do.

  36. 36
    catclub says:

    @Caz: Nope, we read this quote
    at the top:

    “The district court rejected this claim and upheld the minimum coverage provision as a valid exercise of Congress’s Commerce Clause power. The court rejected the premise of that argument, explaining that the “decision whether to purchase insurance or to attempt to pay for health care out of pocket, is plainly economic.” The court explained that these decisions, “viewed in the aggregate, have clear and direct impacts on health care providers, taxpayers, and the insured population who ultimately pay for the care provided to those who go without insurance. ”

    Which was from one of the rulings, and since it goes directly to the Commerce Clause – i.e. it is directly related to Constitutional Jurispruduence, we decided you had NOT read it, because you had just posted that the other rulings said nothing about Constitutional Jurisprudence, but… THERE IT WAS. And instead of believing you and you cockeyed analysis, we belived our own lying eyes.

    THEN, we went directly to mockery.
    Which seemed to be the most appropriate response.

  37. 37
    Allan says:

    @Caz: Shorter Caz: show me in the Constitution where it says I can’t fuck chickens!

  38. 38

    @Caz:

    So basically none of you have anything substantive to say that relates to Constitutional jurisprudence. The lack of any substantive responses to my post just proves my point – those who support Obamacare don’t care if it violates the Constitution or not. None of you can point a single legal ruling that provides a precedent for the personal mandate…because none exists.

    Nope, we don’t have anything substantive to say that relates to Constitutional jurisprudence because you’ve never discussed Constitutional jurisprudence, you’ve just vomited out a bunch of right wing talking points and then asserted that Vinson’s decision is well thought out and not “judicial activism” while the decisions upholding the ACA are not well thought out. Your opinions on Constitutional jurisprudence are as valuable as say, your insights into neuro-surgery, which is to say not at all because you’re a conservative idiot.

    And what is “judicial activism” anyways? If I were defining it I would say that having five Supreme Court justices who were appointed by Republican presidents deciding to interfere in a state election and appoint a Republican to the presidency is some pretty damned severe judicial activism, and when they write the decision in such a way that says “Hey, fuck all of that stare decisis nonsense, this is a one-off”, well that just hammers the point even further home.

  39. 39
    Redshift says:

    @Caz: I know I shouldn’t, but…

    Post some substance and you might get a substantive response; we like a good argument here. Demanding that others make the effort to find legal rulings to point to and create detailed arguments to rebut your detail-free “all the rulings I disagree with are badly flawed and the one I agree with is brilliantly reasoned” reveals that you are a troll who is just here to waste our time.

  40. 40
    TR says:

    @Caz:

    None of you can point a single legal ruling that provides a precedent for the personal mandate…because none exists.

    What are you talking about? I provided an example from the 1790s. The Founding Fathers were clearly fine with this sort of thing, and the courts at the time had no reason to rule against it.

    The individual mandate was — until about a year ago — so uncontroversial that Charles Grassley insisted on Fox News that no one in the Senate would object to it. He said that because he knew it was a Republican idea, hatched in the Heritage Foundation. It was the basis of the Republican alternative to Clinton’s health care plan in 1993 and a key aspect of Romney’s plan in Mass.

    And if you knew a thing at all about the law, you’d realize this.

  41. 41
    TR says:

    And aside from that clear example — in which private citizens were required to buy insurance by President John Adams — there are a host of others.

    I know this is hard for a conservative to understand, but just because Fox News tells you something, that doesn’t make it true. Quite the opposite, in fact.

  42. 42
    catclub says:

    @Caz: “What’s to stop the government from mandating that people buy GM cars, health foods, gym memberships, interlock devices for our cars (the blow-tube system used for DUI convicts), etc?”

    I would argue that it ain’t the constitution. Rather it is that the desire to get elected ( and more importantly re-elected) cuts down on the desire to do things that are really unpopular. The real limit is still the consent of the governed.

  43. 43
    Davis X. Machina says:

    @TR: His team’s winning. That’s the important thing.

    Sell your Federalist Papers to some unsuspecting AP government student, flog that con-law hornbook on Craigslist, and invest the proceeds in a big foam “We’re #1” finger.

    That’s the only thing you need to understand modern American politics. There is no law – there is only a scoreboard.

  44. 44
    TR says:

    @Davis X. Machina:

    His team’s winning. That’s the important thing.

    I know that’s how he sees it, but right now the scoreboard has his team losing 14-2. As shallow as “my team good!” is, it doesn’t even seem like he can wrap his head around that.

  45. 45
    TR says:

    Oh, and Caz, you’re so far off the reservation that not even the conservatives at American Spectator agree with you.

    They see plenty of precedents for the upholding of the individual mandate, and no hope of a Supreme Court decision striking it down.

  46. 46
    Ash Can says:

    @Caz: Since you’re so up on all of these decisions, including the superior logic of Vinson’s decision, then surely you’ll be able to explain to us why there’s no problem in Vinson basing his rejection of the “necessary and proper” clause on a tautology. Go ahead, knock yourself out.

  47. 47
    Jess says:

    As I understand it, no one is required to buy insurance–they won’t be prosecuted in a criminal court for not doing so, for example–but they will have to choose between buying insurance or paying more taxes. Sort of like how no one is forced by law to work a shitty, dangerous job, but it may be economically advisable to do so, as the capitalists would point out.

  48. 48
    maye says:

    Wickard v. Filburn (1942)

  49. 49
    SB Jules says:

    California has joined other states as friend of the court in support of the bill. Why only the negative rulings?

    http://www.calitics.com/diary/.....are-reform

  50. 50
    Agoraphobic Kleptomaniac says:

    @Caz: I know many other people on this thread have said this better than me, but –

    You can’t opt-out of health care. You are going to participate in the system sooner or later by the fact that you’re alive. The second we let people get a tattoo that says “Nonparticipant” on their neck, so that they do not get any medical services without paying for them out of pocket, these people DO partcipate in the health care system eventually.

    We’ll all get healthcare while you argue with your doctor that you really do have the money in the bank while you’re suffering a life threatening injury.

  51. 51
    Xenos says:

    @Caz: Caz, dude! Good to hear from you again.

    Since you ditched my last question to you, perhaps you would be so kind to address it. Since you read lots and lots of legal opinions, perhaps you can take this on. I repeat:

    Then educate me. Try answering a couple good-faith questions:

    1-Now that the national economy is more interconnected than any of the state economies at the time of ratification, why should the federal government not have comparable police powers to that of the states, at least as far as clearly commercial issues are concerned? Does not the commerce clause, as written, allow for such an expansion of Congress’ power?

    2-Are you for or against interstate sales of health insurance? If you are for them, how does that square with the principles of federalism?

  52. 52
    walt says:

    @TR: Not only did the Heritage Foundation develop their healthcare proposals with the individual mandate, Bob Dole introduced a bill in the Senate in 1994 as the GOP’s “free market” healthcare reform which included the mandate. 20 years ago the GOP saw the individual mandate as an exercise of personal responsibility to prevent people that have the means to pay from “free riding” on the system. Now, they suddenly discover that it’s unconstitutional.http://www.wbur.org/npr/123670612 If this is the party that claims to be upholding the Constitution as written, how come it took twenty years to figure out one of their own ideas is unconstitutional?

  53. 53
    FormerSwingVoter says:

    @Caz:

    I may as well contribute to the troll feeding.

    The lack of any substantive responses to my post just proves my point – those who support Obamacare don’t care if it violates the Constitution or not. None of you can point a single legal ruling that provides a precedent for the personal mandate…because none exists.

    Have tax incentives been challenged in court before? The child tax credit, mortgage tax deduction, etc.? I don’t see how “you pay $600 more in taxes if you don’t have insurance” is any different than “you pay $1,000 more in taxes if you don’t have a child” from a legal standpoint.

    Also, Re: “blah blah blah you don’t care about Constitution”. Putting aside the fact that you don’t get to make that sort of attack, this doesn’t bring up anything that hasn’t already been done in law dozens of times before. It’s creating an incentive in the tax code. The Constitution does not say “whatever Republicans are saying right now is totally true”, and you don’t get to pretend that it does.

  54. 54
  55. 55
    agrippa says:

    @Caz:

    Caz:

    of course it is.

    You agree with it.

    two and two make four

  56. 56
    agrippa says:

    @Caz:

    Caz: You are getting an awful lot of attenton here.
    Some people have actually asked you questions — heaveen forfend! –

    would you condescend to respond?

    Be sure to employ the KISS syatem though

  57. 57
    Villago Delenda Est says:

    The thing about health “insurance” is that while you might think it’s there to cover your costs, it’s really not, because it’s not in the interest of the Ferengi asswipes who run the companies to pay claims under any circumstances. Too many “insured” Americans have discovered this…”oh, you didn’t get pre-approval for your ambulance ride, so we’re denying the claim”.

  58. 58
    TR says:

    @walt:

    If this is the party that claims to be upholding the Constitution as written, how come it took twenty years to figure out one of their own ideas is unconstitutional?

    Oh, that’s easy. They just needed to see their idea embraced by the other side. If Democrats accept an idea, then it must be evil and soc!alist and un-American … even if the idea was originally a Republican one.

    Same thing goes with cap-and-trade, which was another idea the Republicans came up with in the early ’90s — and that was Republican orthodoxy as late as 2008, when John McCain and Sarah Palin officially endorsed it — but, hey, as soon as the Democrats agreed with the Republicans on it, the Republicans ran away screaming about how it was all some global soc!alist plot to redistribute wealth.

    There’s a reason we can never achieve the consensus that David Broder is always pining for — Republicans refuse to take “yes” for an answer.

  59. 59
    Jess says:

    @walt:
    Interesting, but I’m not going to bet on that analysis being correct. What do you think of it?

  60. 60
    aimai says:

    @cleek:

    Fred Clark had a really fantastic essay up the other day at Slacktivist on the difficulty people have of keeping up a counterfactual world view and how much time, energy, and effort that requires. He points out that if you believe something patently untrue, like that the entire state of Missouri doesn’t exist, you have to rigorously avoid seeing anything that might upset your conviction and, simultaneously, you will rush to buy any book, or listen to any story, that supports your belief. Meanwhile, people who simply accept the truth of the proposition “there is a state of Missouri” don’t feel the need to rush out and buy the latest book “proving” Missouri exists. I feel that the same thing is going on with HCR. The Republicans and their followers need constant reassurance that HCR is unconstitutional and will die and they seize on each and every piece of evidence and story that backs this up. The vast majority of the country accepts HCR or is unaware of the controversy or figures it will all just play out in its own time. So people aren’t demanding confirmatory stories about HCR because they know it exists and they don’t have to do any work to know that. That’s unfortunate of course because what the public sees and what the media report have a synergistic relationship.

    aimai

  61. 61
    Bobby Thomson says:

    Far more than two cases have dismissed challenges. Don’t compound AP’s lie “error.”

  62. 62
    Bobby Thomson says:

    @Wile E. Quixote:

    Nope, we don’t have anything substantive to say that relates to Constitutional jurisprudence because you’ve never discussed Constitutional jurisprudence, you’ve just vomited out a bunch of right wing talking points and then asserted that Vinson’s decision is well thought out and not “judicial activism” while the decisions upholding the ACA are not well thought out. Your opinions on Constitutional jurisprudence are as valuable as say, your insights into neuro-surgery, which is to say not at all because you’re a conservative idiot.

    Oh, snap. That almost makes me want to take up smoking.

  63. 63
    Bobby Thomson says:

    @maye: And Wickard is the hard case. This is a much easier case, because use of the taxing (and spending) powers mean the Commerce Clause doesn’t do all the work.

  64. 64
    kay says:

    @Bobby Thomson:

    Far more than two cases have dismissed challenges. Don’t compound AP’s lie “error.”

    Well, what I’m asking for is excerpts from all four decisions on the commerce clause.

    Two judges have addressed that, and held the ACA constitutional.

  65. 65
    Redshift says:

    What a shock — once there are “substantive responses”, “Caz” disappears.

  66. 66
    walt says:

    @Jess: Jess, it looked to me that the penalty just gets added to your taxes owed, if that article’s sources are accurate.

    … it is not subject to the enforcement provisions of subtitle F of the Code. The use of liens and seizures otherwise authorized for collection of taxes does not apply to the collection of this penalty. Non-compliance with the personal responsibility requirement to have health coverage is not subject to criminal or civil penalties under the Code and interest does not accrue for failure to pay such assessments in a timely manner.

    I’m not a tax attorney or a CPA so I’m not sure how this penalty gets paid to the IRS.

  67. 67
    pablo says:

    Gee I hope the Government doesn’t demand I get a Social Security card at birth, and pay 6.2% of my salary into it! Could be a precedent! And Medicare too!
    Here’s the scoreboard. I Just whipped it up reading this thread.

  68. 68
    kay says:

    @Redshift:

    I’ll go around with Caz on the commerce clause.

    I have some questions for him on child labor,The Civil Rights Act, the Americans With Disabilities Act, too.

    The conservative state attorney’s general failed to defeat the portion of the health care law that applies to Medicaid.

    I’d also like to know if conservatives think Medicaid is constitutional, or are they gunning for that, too.

  69. 69
    agrippa says:

    @Redshift:

    “Caz” is a comedian

  70. 70
    HyperIon says:

    Kay wrote:

    I read the opinion, but it seems no one knows what the decision actually means.

    THIS is a HUGE problem IMO.
    And you are a lawyer.
    What chance do non-lawyers have of an informed opinion?

  71. 71
    Allan says:

    @agrippa: Just because people are laughing at someone, it doesn’t make him a comedian.

  72. 72
    Caz says:

    There is far too much ignorance, idiocy, and arrogance here to address it all, but one of the recurring themes is a challenge for me to show where in the Constitution it says they can’t order us to buy insurance.

    Answer: The Constitution is an enabling set of laws with regard to federal powers. There are 18 federal powers. If it’s not in those 18, the federal government can’t do it. Economic decision mandates is not one of them.

    It’s really staggering to see how ignorant you all are. Seriously. I mean, someone tried to prove a paragraph was constitutional jurisprudence and couldn’t even get that right.

    I suggest you all read up on the commerce clause, read the federalist papers, and then read the littany of important commerce clause cases. Or at least just go to the Cato Institute’s website and read their blog for the last two days and you’ll learn all about the issue.

    I think the sarcastice, indignant tone of the bloggers on here has attracted hundreds upon hundreds of other sarcastice, rude, ignorant know-it-alls, and it’s just so pathetic, lol. It’s like a big swirling pot of hate and superiority, with about a pound of denial mixed in.

    Rudeness, arrogance, and stupidity are not a good mix people, lol. Good luck with that.

  73. 73
    Neddie Jingo says:

    There is far too much ignorance, idiocy, and arrogance here to address it all

    Gales of derisive laughter, Caz!

    I think the sarcastice, indignant tone of the bloggers on here has attracted hundreds upon hundreds of other sarcastice,

    I’d be far more inclined to be lectured on sarcasm by someone who could actually spell its adjectival form.

  74. 74
    West of the Cascades says:

    I find it really interesting (as a nerdy lawyer) that 73 responses into the string (when I started writing this) no one has posted the names of the two judges who upheld the law despite Kay’s question. I found it a little tough to track down their names, too – showing how pathetic the news coverage has been of this, but how “Judge Vinson” is front-page news when he strikes it down.

    The judges were:

    Hon. George Caram Steeh (E. D. Michigan)
    – opinion is at http://www.tnr.com/sites/defau.....Ruling.pdf

    Hon. Norman Moon (W. D. Virginia)
    – opinion is at http://graphics8.nytimes.com/p.....awsuit.pdf

    One of the key points in Judge Steeh’s decision was that it is not up to the court, in a rational basis review like you have here where no fundamental right is implicated, to second-guess Congress’s determination here:

    “In assessing the scope of Congress’ authority under the Commerce Clause,” the court’s task “is a modest one.” Gonzalez v. Raich, 545 U.S. 1, 22 (2005). The court need not itself determine whether the regulated activities, “taken in the aggregate, substantially affect interstate commerce in fact, but only whether a ‘rational basis’ exists for so concluding.” Id.

    Also, this part of his opinion is money (at 16-17):

    The health care market is unlike other markets. No one can guarantee his or her health, or ensure that he or she will never participate in the health care market. Indeed, the opposite is nearly always true. The question is how participants in the health care market pay for medical expenses – through insurance, or through an attempt to pay out of pocket with a backstop of uncompensated care funded by third parties. This phenomenon of costshifting is what makes the health care market unique. Far from “inactivity,” by choosing to forgo insurance plaintiffs are making an economic decision to try to pay for health care services later, out of pocket, rather than now through the purchase of insurance, collectively shifting billions of dollars, $43 billion in 2008, onto other market participants.
    As this cost-shifting is exactly what the Health Care Reform Act was enacted to address, there is no need for metaphysical gymnastics of the sort proscribed by Lopez.

    The plaintiffs have not opted out of the health care services market because, as living, breathing beings, who do not oppose medical services on religious grounds, they cannot opt out of this market. As inseparable and integral members of the health care services market, plaintiffs have made a choice regarding the method of payment for the services they expect to receive. The government makes the apropos analogy of paying by credit card rather than by check. How participants in the health care services market pay for such services has a documented impact on interstate commerce. Obviously, this market reality forms the rational basis for Congressional action designed to reduce the number of uninsureds.

  75. 75
    honus says:

    @HyperIon: If you were a lawyer, you’d know that. Seriously.

  76. 76
    Ash Can says:

    Shorter Caz: “I got nuthin’.”

  77. 77
    honus says:

    I wonder if caz ever even applied to law school. He obviously never made it.
    Actually, as any lawyer knows, the 12 dismissals are stronger rejections of the ACA challenges than Judge Moon and Judge Steeh’s opinions. The 12 dismissals said that the plaintiffs didn’t even bring enough of a legal argument to get into the game. I don’t know about Steeh, but it’s no mistake that that Liberty University brought its case in Lynchburg, which is their base and Moon’s hometown. I am a lawyer in the western District of Virginia and have tried cases before Judge Moon. He’s no wild eyed liberal. I suspect that’s why he gave Liberty a shot before dumping their case in a 54-page opinion.
    I suspect that all 14 ACA cases tried to cherry pick their jurisdictions. Both Moon and Hudson will be appealed to the extremely conservative 4th Circuit, but even those guys drew the line at Bush’s unlimited detention of terror suspects.
    That 12 of 16 cases were strikeouts, and two more only got to 1st base tells you something about Caz’s theory that 14 federal judges ignored the Constitution, and Judge Vinson is a legal genius.

  78. 78
    Ash Can says:

    @honus: Cool. That’s really interesting.

    Then again, what does an actual lawyer arguing actual cases before actual judges (including one of the four judges in question) know? After all, you’re not The Cato Institute, now, are you? ;)

  79. 79
    honus says:

    I looked up the 12 dismissed cases, and checked on the judges. I stopped after 6 of the first 7 I checked were Bush or Reagan appointees. So they were shopping judges, but it didn’t work out for them.
    6 Republican appointed judges dismissing challenges to ACA. No news there.

  80. 80
    Ash Can says:

    @honus: It doesn’t bother me that they would shop around for judges; I would expect any lawyer worth his/her salt to do what s/he could to maximize any and all advantage within the bounds of what’s allowed. And that in fact makes the list of decisions all the more interesting — and damning to the arguments of people like Caz.

  81. 81
    honus says:

    @Ash Can: That’s all I’m saying. They are forum shopping, and still losing 12 out of 14 times.
    Update: I checked the rest of the list and all but two judges were Reagan, bush or bush II appointments. One was a Clinton, and I couldn’t find Archer v. U.S. Senate anywhere. And yet somehow the media is reporting this as an even partisan split in decisions.

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