Lawyer up

When I wrote that I thought that important parts of health care reform would get voided by the Supreme Court in a 5-4 decision, a lot of readers who are lawyers told me that I and the non-lawyer commenters who agreed with me were a bunch of idiots who sounded like FDL commenters. I’m not complaining, I like threads like that. So I want to do another one.

What’s your prediction on the final SCOTUS decision here? I mean in terms of 5-4 against health care, 7-2 for it, etc. Mine is 5-4 against it, but I wouldn’t be shocked by 5-4 for it, I don’t know how Kennedy will vote.

So how about everybody gives their prediction for: (a) the numbers and direction of the SCOTUS decision, (b) their reasoning for why it goes down that way, and c) what they were saying before Bush v Gore?

I’ll start: (a) 5-4 against health care reform, (b) the Republican judges vote against it because they are Republicans, and (c) I mostly thought Bush v Gore would go 9-0 for Gore but a legal scholar friend almost convinced me it would be 5-4 for Bush. I don’t know if c) is reason for increased cynicism on my part or increased faith in people who have some knowledge of legal issues.

I would like to add, though, that I don’t see how lawyers can call my prediction crazy unless they think Dahlia Lithwick is crazy too:

This will continue all the way up through the appeals process, until it slowly laps up to Justice Anthony Kennedy’s toenails, then his ankles, and then his chin. This is not really a constitutional debate; it’s about policy preferences, and it will be resolved someday in Kennedy’s prefrontal cortex.






260 replies
  1. 1
    JGabriel says:

    So how about everybody gives their prediction for: a) the numbers and direction of the SCOTUS decision, b) their reasoning for why it goes down that way, and c) what they were saying before Bush v Gore.

    And if you expect to get a 5 on the Advanced Placement Test, your answer will consist of 4-7 paragraphs. No more, no less.

    .

  2. 2
    Bob says:

    I FEAR your prediction is right. This is my non-lawyer prediction. I hope someone who has a legal and constitutional background convinces me otherwise.

    I think Bush V. Gore showed us all the politics of the Supreme Court.

  3. 3
    RossInDetroit says:

    I dunno. Will Kennedy’s toast be burned on one side that morning? NYT thrown too far from the porch? Honked at in traffic for no reason?

    I wish justice had more to do with it but I’m afraid it pretty much comes down to one guy’s mood.

  4. 4
    Pooh says:

    5-3 for with Roberts writing a weird semi-concurrence.

    I don’t think Kennedy wants to be the guy who essentially blows up the whole government.

  5. 5
    General Stuck says:

    This will continue all the way up through the appeals process, until it slowly laps up to Justice Anthony Kennedy’s toenails, then his ankles, and then his chin. This is not really a constitutional debate; it’s about policy preferences, and it will be resolved someday in Kennedy’s prefrontal cortex.

    LOL, some day I hope to write like this. And have already made my prediction of 5 to 4 against ACA. I would also like to pre admit to being an idiot if this is wrong.

  6. 6
    BGinCHI says:

    Turley said Kennedy has been voting on the dark side in these kinds of decisions, so that’s persuasive. I’d agree 5-4, and I almost hope it goes that way if it exhorts a political price for the GOP and the Supremes. It would give Obama cover for his next appointment on the court.

    I hate to play the long game though when so many people’s HC is on the line in the short term. We need more coverage of the consequences of losing HC by our media. Too many people on the right are hiding from reality on this.

    Also, Packers by a field goal.

  7. 7
    matoko_chan says:

    i think you might be right.
    Kennedy will vote for “divided government.”
    Divided government is the last refuge of the glibertarian assclowns like EDK and Friedersdorf.
    White evangelical protestants and their enslaved glibertarian concubines are being disenfranchised electorally by the demographic timer and the disaffection of the youth vote.
    the right needs to perpetuate the eumeme of representative government.

  8. 8
    Paul W. says:

    6-3 in favor of keeping ACA, but I’m not a lawyer. I know that the Republican judges are biased, but is it really going to be a 100% ideological vote? They would receive more pressure of reforming the courts than since FDR was prez if they do, I just don’t see 5 judges overturning a law that I’m sure Obama’s team put together pretty air tight.

  9. 9
    KG says:

    a) 6-3 or 7-2 upholding the law. Though, as I said yesterday, I suspect that there will be concurring in part and dissenting in part decisions, leading to various vote totals depending on the various issues.

    b) I don’t think Roberts is a true believer when it comes to the Lochner era stuff, which gets you to 6. The seventh vote could be Scalia getting cold feet and following closer to his opinion in Raich, and the John Adams law could help

    c) I actually figured Bush v Gore would come down for Bush if only because they kept trying to change the recount rules.

    Ultimately, until we see what the issues will actually be before the Supreme Court, it is really tough to game this far out. In addition to the Commerce Clause issue, there will likely be something about the Necessary and Proper Clause, there will be standing issues, there will be questions regarding the Political Thicket theory, and a host of other issues.

  10. 10
    taylormattd says:

    It’s going to be 5-4 in favor of upholding it. I don’t think Kennedy (contra the four wingnuts) has an interest in overturning 75 years of Commerce Clause case law and writing a case that will mean Social Security and Medicare were unconstitutional.

  11. 11
    JGabriel says:

    I don’t have a prediction, per se, just a continuum of expected reactions:

    Upholding ACA:
    5-4 Mildly and pleasantly surprised.
    6-3 Very surprised, but not shocked.
    > 6 Shocked.

    Striking Down ACA in whole or in part:
    4-5 Disappointed & angry, but unsurprised.
    3-6 What? Who the fuck … mutter mutter mutter
    > 3 No fucking way.

    .

  12. 12
    cmorenc says:

    Unfortunately, I think you’re correct that it will come down to Anthony Kennedy. Perhaps one or two other among the court’s usual right-wing will also hesitate from allowing this case to be the occasion for any tectonic shifts in Constitutional Law, especially commerce clause-related matters.

    However, Scalia and Thomas have long shown nearly uninhibited willingness to fundamentally re-make constitutional law across the board from what they view as heretical departure from original intent sometime back in the latter days of the New Deal. Roberts and Alito seem to also be bent on transforming constitutional law in a sharply different direction, but more often in measured increments over the two or three decades (with exceptions such as Citizens United), whereas Scalia and Thomas are always ready for radical transformation RIGHT NOW!

    One huge problem is Kennedy’s ego as the “swing” justice: IMHO he will succumb to the temptation to assert some sort of tangible personal impact via this case, and the only way to do that will be to make it stand for some sort of notable, though only partial, shift in constitutional law, much less radical than the other four justices might be willing to ultimately go, but just enough to make many future undertakings like health care reform a more difficult minefield to navigate, and just enough to provide precedental seed for mischief and misuse by Scalia, Thomas, et. al. in future cases.

  13. 13
    Kryptik says:

    @BGinCHI:

    Hah…political price for the GOP. Funny! Since when do they ever pay a political price for fucking over anyone except each other or very rich folks pissed they decided to be ‘bipartisan’?

    As for the consequences…not gonna happen. They’re all too fucking giddy at the idea of Obama with egg on his face and pants down at his ankles to even consider that the repeal might actually be a very bad no-good thing.

  14. 14
    RP says:

    I’m a lawyer, and I say 6-3 for HCR. The commerce clause precedent is too strong for Kennedy and maybe even Scalia to ignore. Scalia concured in Gonzales v. Raich, and is not a complete partisan hack like Roberts and Alito. He’s also a little unpredictable.

    Thomas dissented in Raich and will vote against HCR here. Alito and Roberts will vote against for purely partisan reasons.

    Kennedy will write the opinion of course. The prior commerce clause precendent combined with a general reluctance to interfere with the political and legislative process in such an obvious and hackish way will force him to support HCR.

    EDIT: W/r/t Bush v. Gore, I hate to sound like one of the Justices in the majority, but I really do think that case was sui generis. Obviously the Justices are partisan, but I don’t know that Bush v. Gore has much predictive value for cases like HCR that have actual substantive legal issues at stake and precedent behind them.

  15. 15
    Just Some Fuckhead says:

    It’ll be 7-2 for or 6-3 for depending on how Alito swings.

    Thomas: Against
    Scalia: Against
    Breyer: For
    Ginsburg: For
    Kennedy: For
    Roberts: For
    Sotomayor: For
    Kagan: For
    Alito: Either way

  16. 16
    BGinCHI says:

    @Paul W.: Airtight? The sticking point is whether the mandate can be severed, which it can’t as written. So I’m not sure this is going to be any kind of legal standoff that excludes political calculation by activist right-wing judges.

  17. 17
    JGabriel says:

    @Pooh:

    I don’t think Kennedy wants to be the guy who essentially blows up the whole government.

    Yeah, because nothing says stability like unlimited and unmonitored campaign contributions, e.g., Citizens United.

  18. 18
    General Stuck says:

    I would add, that I think the SCOTUS will rule it is not bound by the lack of a severability clause, and will only create a limited test for use of the CC as related to HCR, and therefore try to limit application of such a monumental precedent to other uses of the CC.

  19. 19
    Punchy says:

    a)5-4 against
    b) Shut up, that’s why. Lifetime paycheck, no matter how stupid, ridiculous, out of mainstream they seem. Hell, they could write their whole reasoning using only racial slurs and porn movie star names, and impeachment is so far off the table as to be circling Andromeda.
    c) No idea, but since I was living in Broward Co. at the time and still had no idea the USSC was meddling, that’s how stealthy and shocking the whole thing was.

  20. 20

    Coin-toss 5-4 either way. I come down slightly on the 5-4 FOR healthcare reform bill, but just ever-so-slightly.

  21. 21
    RossInDetroit says:

    Tomasky has the interesting point of view that the side that wins the case loses the politics. A loss on ACA would enrage and motivate either side and result in election advantages because of higher turnout.
    That’s his point of view. I’m not sure. Depends on the timing, as Americans lose interest pretty quick these days. If Roberts thought SCOTUS was going to hand the Dems a win, it would better from the GOP’s point of view if it happened close to the ’12 general election.

  22. 22
    cmorenc says:

    @taylormattd :

    It’s going to be 5-4 in favor of upholding it. I don’t think Kennedy (contra the four wingnuts) has an interest in overturning 75 years of Commerce Clause case law and writing a case that will mean Social Security and Medicare were unconstitutional.

    You underestimate the ability for Kennedy (or Roberts or Alito) to craft some spurious distinctions that purportedly avoid commerce clause, social security, and medicare issues, and yet find some reason why mandating the purchase of health care insurance coverage is unconstitutional.

  23. 23
    BGinCHI says:

    @Kryptik: I’m doing naive before lunch then I’m gonna switch over. Thanks for pointing all that out though.

  24. 24
    azlib says:

    So far the rulings against have been pretty weak which may have some sway. As I stated in another thread, they could throw it out on a 5-4 vote, but with a note the ruling does not change other Commerce Clause precedents. I really do not think they want to blow the government up. There are too many vested interests out there dependent on Federal Commerce Clause policies, including the health insurance industry itself.

    The Supremes did show their political venality with Bush v Gore and this could be one of those issues where the same venality is exposed. But at the end with all my hedging, I think they will uphold the HCR.

  25. 25
    JGabriel says:

    Correction: @JGabriel: > 3 No fucking way

    Should be: < 3 No fucking way.

    Apologies for any confusion.

    .

  26. 26
    adolphus says:

    I’m going to make a wild prediction that it will be 4-4. There will be at least one vacancy on the SCOTUS between now and then and the Reps will have enough votes in the Senate to tie up a nomination (or if a Rep takes the WH in 2012, the Dems will have enough votes to do the same)

    I tend to swing for the fences on these types of things. I once predicted that Dudley Dursely would turn out to be the Half-Blood Prince. I am mostly wrong, but when I am right I look golden.

  27. 27
    Face says:

    I know that the Republican judges are biased, but is it really going to be a 100% ideological vote?

    Yup. I’d be stunned to see anything but a 5-4 decision on anything in the next few years.

  28. 28
    BGinCHI says:

    @RossInDetroit: That’s what I was trying to suggest above, though without putting it so clearly. I think that sounds like a smart read by Tomasky. Long game.

  29. 29
    A Writer At Balloon-Juice says:

    @adolphus:
    I like this.

  30. 30
    DJAnyReason says:

    As a duly trained lawyer, I’m of three minds:

    1) The precedent is way too fucking clear that the ACA is a-ok, I wouldn’t be surprised to see a per curiam 9-0 – heck, I wouldn’t be shocked if they simply overturned immediately upon cert

    2) Actually looking at the court, and applying precedent, we’re looking probably at 6-3 or 7-2, with Scalia as the firmest 5th vote. Scalia has said publically and clearly that the “constitution in exile” folks are totally whacked in his opinion (a point on which he differs from Thomas).

    3) From a legal realist perspective, 5-4, with Kennedy as the deciding vote, because that’s how these things go.

  31. 31
    Kryptik says:

    @RossInDetroit:

    That honestly seems counterintutive to me. At least, speaking from the Dem side, it would seem like the demoralizers of demoralizers, considering all that time and possibly THE key legislation of Obama’s administration and a high-water mark for Dem control in recent history gets wiped, and even worse, fucks over the health situation of hundreds of millions of Americans? For what, politics? I mean, speaking for myself, it feels like that might very well be the despair event horizon, especially since the atmosphere simply fucking spells even more GOP control post ’12.

  32. 32
    Steve says:

    I agree with the banal conventional wisdom that it will come down to Kennedy’s vote. Having just read his recent concurrence in US v. Comstock, I think he could still go either way, but I think it will ultimately be 5-4 for the good guys. There is no way Roberts and Alito will vote to uphold the law – they are movement conservatives and this is their moment.

  33. 33
    Anya says:

    When I wrote that I thought that important parts of health care reform would get voided by the Supreme Court in a 5-4 decision, a lot of readers who are lawyers told me that I and the non-lawyer commenters who agreed with me were a bunch of idiots who sounded like FDL commenters. I’m not complaining, I like threads like that. So I want to do another one.

    You are just besmirching the good name of FDL. If you and the other sky is falling brigade, truly sounded like FDL commenters, you would say something like this: The Supreme Court will void the health care law in a 5-4 decision. Any thinking person would agree that this was Obama’s plan all along. Now he can pretend that he fought for health care reform while serving the interests of his corporate masters.

  34. 34
    guster says:

    I predict that the court will be different by the time this reaches them. And still 5-4.

  35. 35
    taylormattd says:

    @cmorenc: But you realize, don’t you, that the reason a couple of lower courts have struck it down is that it allegedly violates the Commerce Clause? That that is what we are talking about here? If they take the case it will be to resolve the commerce clause question.

  36. 36
    Pooh says:

    Jgabriel,

    Selling to the highest bidder =\= nuking

  37. 37
    Sentient Puddle says:

    6-3 for. Scalia and Thomas have not-so-subtly indicated that they don’t like the mandate. The other conservatives would have to pull a massive 180 in their philosophies to come out against it, and my cynicism will take me only as far as one vote (probably Alito because he seems like more of a blank than the others at the moment).

    As for Bush v. Gore, I really don’t see how that has any bearing on anything. One incredibly odd case isn’t enough to convince me that the court has become politicized (and no, Citizen’s United won’t count here either).

  38. 38
    A Writer At Balloon-Juice says:

    @Anya:

    You’re right, that’s more their style. Though to leave Rahm out of the planning….

  39. 39
    Joe Buck says:

    I think that Scalia will disappoint the right by rejecting the argument of this judge. He’s a reactionary, but in this case, his originalist notions, as well as his previous on-the-record support of health care mandates back when it was a Republican idea (which will be quoted back to him during the oral arguments) will work in favor of sustaining the constitutionality of mandates.

  40. 40
    andrewsomething says:

    Either 5-4 or 7-2 for health care reform. Of course this is mostly pulled from my ass, but I see Scalia and Roberts hanging together on this. (Though if they vote for, they’ll each write their own opinion.) I can’t imagine only one of them voting for health care reform.

    I’m also confused by the seeming fairly high opinion of Roberts in the comment. He’d only do the right thing with Scalia’s cover.

  41. 41
    Dork says:

    @adolphus: 4-4 means it stands, right? IOW, stays as passed by Congress? I’m just a dork with little understanding of the law outside of speeding tickets.

  42. 42
    JGabriel says:

    @RP:

    … I don’t know that Bush v. Gore has much predictive value for cases like HCR that have actual substantive legal issues at stake and precedent behind them.

    Perhaps BvG is sui generis, but what about Citizens United?

  43. 43
    Xenos says:

    As a Lawyer (c), albeit one with nearly zero federal experience and absolutely zero con law experience, I predict:

    This will be mostly fought in the appeals courts. After several cases get considered in the different circuits, then and only then will the SCOTUS grant cert and take the case. The exact issues being considered, and the way the arguments are structured, will depend on how the cases are argued and how the decisions of the appeals courts are reasoned.

    Nonetheless, after this case gets to the SCOTUS, this is how they will vote:
    Supporting the constitutionality of the ACA: Sotomayor, Ginsberg, Breyer.

    Recused: Kagan

    Opposing on Commerce Clause grounds, overturning Wickard: Thomas, Roberts.

    Opposing on Dormant Necessary and Proper Clause grounds (the new trump card for whatever Scalia wants to do, without reversing himself on Raich): Scalia

    Opposing on a new theory of substantive due process basis for a fundamental right to self-insure, phrased in such a way as to try to revive Lochner:Alito

    Drops dead wanking in his chambers fantasizing about his incredible power to write the world’s most clever concurring opinion that will somehow shape the next century’s jurisprudence: Kennedy.

    Thus, three votes for the constitutionality of the ACA, four against, and nobody having a clear idea of what the hell happened, or what it means.

  44. 44
    Omnes Omnibus says:

    6-3 for ACA. Bullshit procedural reasoning that keeps them from getting to the merits thus. I figured Bush v. Gore would be 5-4 the other way. O’C let me down.

  45. 45
    BR says:

    I’d be happy to see them cut the bill by saying that the mandate is invalid but separable, leaving the rest of the bill intact without the mandate.

    No, I don’t care that this isn’t fair to the insurance companies.

  46. 46
    RossInDetroit says:

    @Kryptik:

    If the Dems lose in SCOTUS they will have plenty of political ammo to fire in the election: pre existing conditions dropped. Kids no longer covered. Rates rising due to uncapped profits. There will be a year or more of experience in these issues to draw personal stories from. Premiums are continuing to rise, and the Dems can use that for ammo even though it’s incidental.
    I don’t discount the demotivation factor, but seeing what the GOP ‘took away’ by defeating ACA would give the Dems some concrete kitchen table issues to campaign on. Played right (by no means a given) it could be a net benefit in campaigning.
    And if the Dems win in SCOTUS it fuels the GOP’s meme of creeping socialism, which they have exploited so successfully.

  47. 47
    Davis X. Machina says:

    On the 12th of December, 2001, the Constitution was replaced by a scoreboard. This time round is just the GOP upgrading the scoreboard to a modern Jumbotron.

    5-4 to overturn. The opinion will be a mess, a salad bar of concurrences, all with the design and result that parts of modern CC jurisprudence more or less stay intact — we don’t go back to Lochner, not all the way. That would let the drug-legalization and decriminalization genie out of the bottle. A Bush v. Gore– ish one-ride ticket, I figure.

    The important thing is that Obama be dealt a loss.

    Best of all would be the unseating of the sitting president — that would have to be on the back of a birther case. Team Red doesn’t get that from Santa Scalia. Overturning HCA would generate a lot of good headlines, though, and would be an acceptable consolation prize.

    Someone merely has to convince Kennedy, as was done in 2000, that he’s the only thing standing between us and tanks in the streets, and make sure he sees lots of film and video from ’89 Romania,

    The real hard work isn’t going to be crafting the opinion. It’s going to be maintaining a straight face afterward. In 2000, the Justices got around that one by being whisked away in the dark of night in seven separate limousines.

    I can count on the fingers of one hand the number of times I have been cynical beyond events in the last eleven years. Usually it’s the other way round.

    The trend is your friend.

  48. 48
    artem1s says:

    6-3 for. I agree that Kennedy will be the real swing vote man and I’m thinking he probably wants his last few years to be something other than aligning with the Thomas/Scalia/Alito con-pact from Hell.

    I have always thought Roberts was more corporate than socially conservative and this is a place where he will show insurance companies that he is their friend. Remember, the mandate is something big business wants because they think the only way to lower costs is to spread them out among as many people as possible (and they get more premiums.also.too)

    Alito sees the world through Abortion Colored Glasses. Mandating health care buy-in is a slippery slope towards pharma making big bucks off of stem cell research and other treatments that skirt right to life issues. Ironically, he knows the religious right will flock to any treatment that will extend their lifetimes of greed and gluttony (Rapture be damned). Notice how they don’t want stem cells to come from frozen fetuses but they never, ever protest outside of in vitro clinics? Cause they will do anything and condone anything (octamom)that results in a live (white) birth.

  49. 49
    Steve says:

    I see no reason to think Justice Kagan would have to recuse herself. Thurgood Marshall didn’t recuse himself from school desegregation cases.

  50. 50
    /dev/null says:

    Not a lawyer, and won’t bother adding my worthless prediction.

    However, according to Orin Kerr (if I’m getting him), Vinson’s decision is at least as much about the Necessary and Proper clause as the CC.

    Here

    and here.

    Not sure what to say about it myself, but I don’t remember it coming up here. What say you, legal types?

  51. 51
    Kryptik says:

    To finally answer the question:

    a) 5-4 against
    b) Four solid movement conservatives, and Kennedy, who has shown far too much predilection to side with the wingers on key, overreaching cases the last few years? AND the potential for such a ruling to become precedent for voiding all those GOP boogeymen like Social Security, Medicaid, and anything else that federally helps those not blessed enough to be rich? Too much to pass up for the fucknutters who want to firmly cement this country as of the rich, by the rich, for the rich.
    c) I can’t say I really formed much of a political opinion until after Bush/Gore, as it was really when I actually started to get mad and interested in politics.

  52. 52
    RossInDetroit says:

    Drat. Perfectly good comment modded because I used a word with a pill name in it.

    FMLWP

  53. 53
    JGabriel says:

    @BGinCHI:

    The sticking point is whether the mandate can be severed, which it can’t as written.

    There are a whole bunch of tax cuts, student loan modifications, and cost saving measures in the ACA, upon which the individual mandate has no impact. The mandate can definitely be severed, though you might have to cut out things like the ban against pre-existing conditions to do it.

    .

  54. 54
    stuckinred says:

    I predict Isiah Crowell will sign with the Dawgs at 1:45 and the dream team will be a reality! Woof!

  55. 55
    Stillwater says:

    a) 6-3 in favor. I think Dumbass Thomas and Alito vote no (tho my gut is unsettled, it finds him unsettling). I see either Scalia or Roberts voting in favor, but I think for different reasons (meaning one will vote no so he can write the dissent, the other who voted yea! will write the majority opinion in a clear example of shady back-room dealings).
    b) I think the inherent power of the government to tax will be a big part of the decision, as well as issues about the limits/extent of the commerce clause. Can’t really think of a good argument against.
    c) Re: Bush v Gore, I have to admit my cynicism got the better of me there, and was pretty sure from the start, but increasingly certain once the process got under way was repeatedly delayed, that the decision would come down for Bush.

  56. 56
    danimal says:

    7-2 for, with Thomas and Alito voting against. Roberts will carry water for the institutional GOP and Scalia will uphold his own precedents.

    Roberts is a corporate and GOP vote on all things. The establishment GOP dogs don’t want to catch this car. Unraveling the entire modern welfare state by chipping at the cornerstone (the Commerce Clause) will lead to devastating and unpredictable results.

    I know nothing, BTW.

  57. 57

    OT but this shocked the hell out of me:

    Voters Underestimate How Much U.S. Spends on Defense

    I think America’s most pressing issue is its ignorance. Seriously.

  58. 58
    Suck It Up! says:

    It will hold up because Obama will get to replace 2 Supremes in the next two years moving the court to the left and causing epic seizures amongst the right.

  59. 59
    jwest says:

    The comments on this article are nothing short of breathtaking.

    To read that people want the liberal members of the Supreme Court to ignore the Constitution and vote for the totalitarian fantasy of requiring individuals to purchase a product from a private entity makes one wonder what other lengths the left would go to.

    If you want universal healthcare, do it legally. Convince a majority of the people that it will work, pass legislation and raise taxes to fund it. If you can’t do that, you lose.

  60. 60

    @Suck It Up!:

    ….Obama will get to replace 2 Supremes in the next two years …

    Really? Which two? Kennedy and …?

  61. 61
    JGabriel says:

    @Sentient Puddle:

    As for Bush v. Gore, I really don’t see how that has any bearing on anything. One incredibly odd case isn’t enough to convince me that the court has become politicized (and no, Citizen’s United won’t count here either).

    The outcome of both cases indicates that, when it comes down to brass tacks, Kennedy will side with the conservatives in politicized decisions.

    .

  62. 62
    FormerSwingVoter says:

    I suspect that it’ll go 10 to negative 1 against, with an imaginary anticoncurrence written by the fictional Justice Facepunch McDermott.

    It’ll all be lost in the shuffle, though, as Scalia suddenly grows to 500 feet tall and rampages through the city, destroying every monument in DC with laser beams shot from his eyes before the army is able to bring him down.

    …Wait, what are we talking about again?

  63. 63
    RossInDetroit says:

    @Southern Beale:

    I think America’s most pressing issue is its ignorance. Seriously.

    Don’t get me started. Yet somehow we manage to deep fry turkeys and mow our lawns without catastrophe. One sometimes wonders how.

    As far as most voters know, all of their taxes go to soshulist America hating foreigners and the Young Bucks Steak Fund. With a little left over so the NEA can mock their Christian values.

  64. 64
    dm9871 says:

    As a lawyer, I have to say, it’s hard to emphasize how deeply contrary to Supreme Court precedent a ruling striking down the health care law would be. Legally speaking, it’s just not a close call. If you were to write that sort of thing on a first year law school exam you’d get an F. (And I went to Yale where points were awarded for thinking outside the box and coming up with creative approaches to the law.) The fact that we’re even having this discussion reveals how deeply a radical conservative legal agenda has penetrated the judiciary, the fringes of the legal academy, and (most especially) the Supreme Court itself.

    While less monumental, practically speaking, than Bush v. Gore, an opinion striking down the health care law would have much less legitimacy, legally speaking. It would be hard for fair minded people to see such a decision as anything other than a flat out power grab by a bunch of men who had ceased to be judges in any meaningful sense of that word.

    But having said that, I think it’s decently likely. The conservatives in the judiciary are becoming bolder and less constrained by the niceities of judging. At present I think it would survive 5-4, with Kennedy doing the right thing in the end. That, more than anything else, is why the two district court judges have struck it down: they are trying to say to Kennedy (and to the political process broadly), “see, this is a legitimate approach to this legal question,” when in fact it is not.

    We’ll see. Lot’s can happen between now and an eventual SCOUS opinion. Retirements, death, etc. Most importantly, the view that “there is legitimate disagreement about the constitutionality of the HCR law” could gain currency. If it does, then I think Kennedy’s vote might well go the other way.

  65. 65
    BTD says:

    This is actually a Necessary and Proper clause case, not a Commerce Clause case.

    The mandate issue will be decided on the Necessary and Proper clause, and the case law is incredibly strong for the mandate there.

    I think this will go 7- 1 concurrence (Scalia) and 1 dissent, Thomas (on Commerce Clause grounds, see his dissent in Raich).

    Roberts will assign the opinion to himself and write it very narrowly.

    The reason why is that the GOP does not really want the law repealed, despite the Tea Party. They just want someone else to take the blame.

    Plus, Roberts and Co will then point to this case to demonstrate how “reasonable” they are when they screw us on all other cases.

    The case law on this is incredibly clear. It is not a close case.

  66. 66
    Tsulagi says:

    Mine is 5-4 against it, but I wouldn’t be shocked by 5-4 for it

    I’d go with that. And did in the earlier thread as well. Also commented it was possible it could make it to SCOTUS and be decided in time to be a centerpiece of our election cycle next year. Some lawyerly types took exception to that time frame. Unpossible. No exigent circumstances they say. Yeah

    The U.S. Court of Appeals for the Fourth Circuit in Richmond is reviewing two challenges to the health law on an expedited basis and will hear oral arguments in May. That means a decision could be ready in time for the Supreme Court to hear an appeal and issue a decision during its next term, which begins in October and runs through June 2012. However, the high court has discretion on when and whether it hears cases.

    Somehow my prediction includes this issue will have a faster, flatter trajectory to the SCOTUS than something say like whether a locality can ban phosphates in dishwashing detergent. Just a hunch. The exigent circumstances are politics. The lawyers in the thread can disagree. Newbs.

  67. 67
    BGinCHI says:

    @JGabriel: That’s the part I meant. Wasn’t space to go into all the details. What I’m wondering about is whether it will have been a good idea to make the individual mandate unseverable (with the straight HC stuff). And if it’s not, and ACA goes down, what will be able to replace it without being struck down by the courts?

    Won’t it have to be either nothing (status quo) or something more progressive (like single payer or Medicare opt-in)?

  68. 68
    gene108 says:

    @JGabriel:

    Perhaps BvG is sui generis, but what about Citizens United?

    On the flip side Kelo v. New London, CT decision was reached with the liberal justices writing the majority opinion, with the conservatives dissenting.

    So maybe there’s hope?

  69. 69
    aaron says:

    My vote: they fail to grant certiorari. They don’t hear the case.

  70. 70
    Stillwater says:

    @jwest: If you want universal healthcare, do it legally. Convince a majority of the people that it will work, pass legislation and raise taxes to fund it.

    Uhh, isn’t this exactly what happened?

    ETA: I think I’m confused here. Do you mean single payer?

  71. 71
    danimal says:

    @guster: Here’s the real fun rhetorical question: what happens if one of the reliable conservative jurists leave the bench? Is there any way in hell that a moderate or liberal Obama appointee gets confirmed? I see colossal gridlock in this scenario. Discuss.

  72. 72
    BTD says:

    @BTD:

    I would add I am not at all sure the case will go to the Supreme Court. What circuit will overturn ACA or the mandate?

    I do not believe the 11th Circuit will. So that leaves the 4th really (though the 6th will get a crack at it.)

    Will the 4th Circuit pull the trigger? I do not think so. Not on this ground.

  73. 73
    Dork says:

    On the 12th of December, 2001, the Constitution was replaced by a scoreboard

    What happened on this day? Patriot Act passed? Some other bill related to 9/11 passed?

  74. 74
    Suck It Up! says:

    @Southern Beale:

    I don’t know, the two most conservative?

    I can dream.

  75. 75
    BGinCHI says:

    @jwest: And how was single payer polling during the HC fight?

    What kind of HC do you have?

  76. 76
    Suck It Up! says:

    @Southern Beale:

    I don’t know, the two most conservative? Which ever ones cause the most hurt for the right.

    I can dream.

  77. 77
    Davis X. Machina says:

    @Tsulagi: The Fourth Circuit, of course, is the Federalist-Society’ed up “Rocket Docket”.

    Why would that challenge be expedited, I wonder?

  78. 78
    BTD says:

    @gene108:

    No. Kelo supports the view of strong government powers. Voting against Kelo would indicate a propensity to overturn ACA.

  79. 79
    FormerSwingVoter says:

    @jwest:

    To read that people want the liberal members of the Supreme Court to ignore the Constitution and vote for the totalitarian fantasy of requiring individuals to purchase a product from a private entity makes one wonder what other lengths the left would go to.

    Once again, the Constitution does not simply read “Whatever Republicans say is right”, and you don’t get to pretend that it does, you delusional asshat.

    Charging $600 more in taxes to people without insurance is no different than charging $1,000 less to those with children. The concept behind this is firmly established in existing law. Disagreeing with you is not unConstitutional, and you have no fucking right to pretend that it does.

    Simply put – fuck you. You do not speak for America or the Constitution, no matter what your radio tells you. You have no understanding of history, the law, or the Constition (which you have probably not read) that you cower behind every time someone tries to do a thing. “Law” is not a new concept, and neither are our founding documents. Read them.

    Asshole.

  80. 80
    Davis X. Machina says:

    @Dork: Typo. And I love your pseud. Nomen est omen, and all that.

  81. 81
    t1 says:

    You’re not crazy, but Lithwick is an idiot.

  82. 82
    BGinCHI says:

    @FormerSwingVoter: This. My tongue hurts from biting it.

  83. 83
    sashal says:

    I have a solution to all problems with the new ACA.
    Let the republicans , every one who is against it, sign a waiver that they promise not to participate in the commerce of health care , never get sick , never go to a doctor or hospital.
    In case they will though, let them pay out of pocket cash right away on the spot with the document they sign declaring that they did participate in the commerce which Congress has right to regulate…

  84. 84

    Since the prediction is based not on law but what we believe the judicial biases to be, I think we might get 7-2 but are more likely to see 6-3.

    The core is that Roberts, as biased as he is, is very pro-business and highly unlikely to decide to toss only the mandate. That would essentially aim insurance companies at bankruptcy. At the same time he’s very professional and nothing but the mandate comes close to being unconstitutional. Heck, even the decision the whole thing was unacceptable was based on the mandate.

    And as more than a handful of insurance companies are now muttering, business as it was five years ago is also aimed at the poor house. So cutting the ACA hurts. What the insurance companies objected to was the things that cut into their profits — minimum amounts to be spent on care and any excess profits returned to the policy holders, for example.

    So I expect Roberts to uphold ACA. If he does, so will Kennedy just because Kennedy would no longer be the “critical” vote. (A tendency I’ve noted is that 6-3 decisions always seem to have Kennedy as part of the 6.)

    Thomas will go full tea party.

    Alito and Scalia are the unknowns. I am sure one will go full tea party, the question is whether both will do so or not.

  85. 85
    Jim Pharo says:

    I’m a lawyer, but I don’t see what that has to do with it.
    a) 5-4 in favor of invalidating the bill (or at least enough of it to constitute a monkey wrench); their reasoning is that PEOPLE DON’T DESERVE HEALTHCARE, DAMMIT, and c) I thought the S.Ct. would punt on B-G and that the Florida legislature would throw it Bush’s way.

    People who think Justice Kennedy is a lone wolf whose whimsy will be decisive are misunderestimating (hey! what’s with the squiggly redline!)the power of those who want this thing gone. Kennedy is a political actor and susceptible to political pressure like any other Justice. If his vote is all that stands between continued thievery of middle class income and the end of the gravy train, I don’t think it’s a big leap to guess that he’ll go with the thieves.

  86. 86
    MikeF says:

    I expect 6 or 7 in favor of ACA. IANAL, but these lower court rulings seem radical in terms of how they deal with the commerce and necessary & proper clauses. The law is basically settled.

  87. 87
    Stillwater says:

    @BTD: I would add I am not at all sure the case will go to the Supreme Court. What circuit will overturn ACA or the mandate?

    NAL, but I also think this is a real, and largely unnoticed, possibility.

  88. 88

    Well I happen to think Americans’ ignorance is a big fucking deal because it’s precisely why we keep losing the debate on everything from healthcare reform to defense spending to climate change legislation to food safety to YOU NAME IT. Cripes.

    I don’t know what we do about this. Honestly I don’t. You’ve got a whole movement of Teanuts being purposely misinformed by corporate partisans who see the benefit of an ignorant public. What is the left doing about this? Nada.

  89. 89
    dollared says:

    5-4 against.

    Gang, the whole point of the Federalist Society was to return to Lochner. Do your really think Scalia, Alito and Roberts care if we go back to Lochner? Why? Don’t you get that when Boehner says he wants selling across state lines this is THE GOAL?.

    One decision, and the South Carolina Insurance Commissioner is the National Czar of Insurance.

    And the Florida Real Estate Commissioner is the National Czar of Consumer Lending.

    And the Mississippi Labor Commissioner will be the National Czar of (child) Labor Standards.

    Ka-boom! Freedom of contract will be absolute, and our liberties restored.

    Kennedy might put up some resistance. But for the other four (only two of whom care about abortion), the real goal has been to reinstate Lochner. All along.

    Bush v. Gore. 5-4 for Bush. There was no other reason to get involved.

  90. 90
    Xenos says:

    @jwest:

    To read that people want the liberal members of the Supreme Court to ignore the Constitution and vote for the totalitarian fantasy of requiring individuals to purchase a product from a private entity makes one wonder what other lengths the left would go to.

    Comments like this really make you wonder if conservatives have the slightest idea of what people on the ‘left’ think and believe.

    For the record, most lefties dislike the ACA, and dislike the individual mandate as much as any tea partier. They do think it is constitutional, because they tend to face up to unpleasant truths instead of wishing them away.

    The only way for the ACA to be unconstitutional is for the SCOTUS to dramatically re-write parts of the constitution in the course of interpreting it. Being a lefty, with a clear view of the mendacity and dishonesty of Federalist Society types, and being willing to face up to unpleasant truths, I expect them to do exactly that.

  91. 91
    Punchy says:

    @BTD: Ya know, the 4th Amendy about warrants being required for searches seems pretty solid, yet warrantless searches continue.

    If actual law had anything to do with this decision, ACA stands. But clearly, politics will trump that every time, and likely the USSC will vote accordingly. Us against them, etc.

  92. 92
    dollared says:

    @Kryptik: this.

  93. 93
  94. 94
    Barry says:

    @Pooh:
    “5-3 for with Roberts writing a weird semi-concurrence.

    I don’t think Kennedy wants to be the guy who essentially blows up the whole government. ”

    First – Bush v. Gore – it’s clear that when the partisan chips were on the line, five SCOTUS republicans will generally be quite willing to be openly partisan.

    Second – the entire Roberts court.

  95. 95
    MikeJ says:

    @Southern Beale:

    Well I happen to think Americans’ ignorance is a big fucking deal because it’s precisely why we keep losing the debate on everything from healthcare reform to defense spending to climate change legislation to food safety to YOU NAME IT.

    I think ignorance is the wrong word here. Ignorance is merely being unaware of the truth. Stupidity is knowing the truth and rejecting it.

    The teabaggers aren’t uninformed. They have to know what the truth is to be against it.

    It would be nice if the media didn’t treat every question as a matter of opinion.

  96. 96
    Mike R. says:

    I have no idea how it will be decided but as a non-lawyer this is how I see the process. It probably won’t be decided on the basis of law but will be decided on the basis of political orientation. The Supreme Court is every bit as politicized as the House of Representatives and the Senate with their decisions having the benefit of being the last word. If the final decision is based on a thoughtful review of precedent, particularly absent a 5-4 vote then I will assume the Justices did their jobs. If, like Citizens United, they break new ground in an effort to reach a decision that satisfies their political ideology then I’ll not be surprised for that is what I expect will happen. By that point however, people will have taken advantage of many of the benefits included in PPACA and a decision against the law will likely be the unpopular choice. That would be interesting indeed.

  97. 97
    dm9871 says:

    @ dollared

    the real goal has been to reinstate Lochner. All along.

    This is right. This is the holy grail of the conservative legal movement. They’ve been (mostly) trying to hide this fact, until they thought they could actually succeed. It’s not at all clear that they have the votes, but they might. If they can’t persuade Kennedy, Roberts might peel off too, to preserve the fiction that they are judges and not activists.

  98. 98
    FormerSwingVoter says:

    @Xenos:

    Comments like this really make you wonder if conservatives have the slightest idea of what people on the ‘left’ think and believe.

    They don’t. Have you ever tried speaking with a conservative? They will spend the entire conversation informing you of what you believe. Or, if you manage to convince them that you aren’t an inhuman monster, they will inform you that you are an unwitting dupe of the actual monsters.

    Modern conservativism consists of one principle and one principle only – that liberalism is the greatest evil the world has ever known.

  99. 99
    RP says:

    @BTD: The Court doesn’t need a circuit split to take the case, just 4 justices who want to rule on it. I think there’s some chance that the courts of appeals aren’t split and the Court just decides it doesn’t want to get involved, but it’s far more likely that they want to take it no matter what.

  100. 100
    Another Commenter at Balloon Juice (fka Bella Q) says:

    @DJAnyReason: I agree with 1) and 3) in your list. And also with:

    W/r/t Bush v. Gore, I hate to sound like one of the Justices in the majority, but I really do think that case was sui generis. Obviously the Justices are partisan, but I don’t know that Bush v. Gore has much predictive value for cases like HCR that have actual substantive legal issues at stake and precedent behind them.

    But then I’m sometimes still a bit of a hoper about our legal system, despite my years of practice.

  101. 101
    ColeDBiers says:

    Easy.

    5-4 in favor of keeping the mandate.

    The only possible way for Obamacare to be repealed is if Ginsburg, Kagan, Sotomayor, Breyer, and Kennedy all voted for repeal.

    The Scaliathomasrobertsalito will use anywhere from one to four of its votes, if necessary, to keep the mandate in place.

    If Kennedy votes for keeping Obamacare, the Scaliathomasrobertsalitos can safely vote for overturning it, for political purposes.

    However, the mandate will have to stay, so one of them will have to vote to keep Obamacare if Kennedy votes for repeal.

    And if, say, Kagan also voted for repeal, another of the Scaliathomasrobertsalitos would have to vote against repeal, in order to keep the pro corporate mandate in effect.

    If even more of the non reactionary right wingers on the court vote to overturn it, then more of the Scaliathomasrobertsalitos will have to vote to keep it.

    It’s not as if the Scaliathomasrobertsalito has a conscience to vote by, just a corporate agenda…

  102. 102

    In that the judges that are ruling against ACA have been Republicans and the ones ruling for ACA have been Democrats, then I go with 5-4. Which side wins depends on Justice Kennedy.

    I don’t see this one taking much time to get to the Johnny and the Supremes. Assuming that President Obama is re-elected, none of the Gang of Four Wingnuts will retire and let a Democrat appoint a successor. So unless one croaks on the job (or goes hunting with Dick Cheney), we’ll have the same court by the time ACA gets there as we have now.

  103. 103
    Barry says:

    @RP: “…but I really do think that case was sui generis. ”

    Didn’t they also say that their decision in that case was not to be used as a precedent? To me (IANAL), that sounds ‘sui generis’, as in ‘never been done before’.

  104. 104
    A Writer At Balloon-Juice says:

    @ColeDBiers:

    This is something I’ve thought about too, it’s an interesting angle.

    EDIT: Actually I don’t agree with this at all, but I think that something similar is possible: if Kennedy won’t vote with the rest of the Republican bloc, they may just fold and not hear it. Why waste credibility if you’re going to lose anyway?

  105. 105
    BTD says:

    @RP:

    I did not say it did. It does need a case to take and in my view, will only be compelled (in the sense that the government will ask for it)to does so IF one of the circuits strikes the law down.

    Only the 4th seems a possible candidate for it to me.

    Therefore, it seems very possible that the SCOTUS will not hear a case on ACA.

  106. 106
    jwest says:

    Why is everyone surprised?

    A clearly unconstitutional law is rammed through the legislature without anyone having read the bill, and now people are shocked that it’s been struck down? This muddled attempt at circumventing the law was even more egregious than Gore’s attempt to rewrite the election laws of Florida.

    Hey, I advocate the elimination of all health insurance companies, single-payer, government-run catastrophic health care and individual health savings accounts for non-catastrophic care, but I want it implemented through the rule of law, not a Clintonesque parsing of the Commerce Clause.

    Chuck Schumer may not know the judiciary is one of the three branches of government, but I believe Obama is about to learn it.

  107. 107
    Steve says:

    @BTD: I really disagree that there will be a clearcut result like 7-1 (you think Kagan will recuse? seriously?) even though the case law is crystal-clear to me.

    The fact that two basically run-of-the-mill Republican appointees have invalidated the mandate is an incredibly important signifier. The acceptable boundaries of mainstream thought have shifted.

    We need to recalibrate our expectations and drop the idea that existing N&P doctrine is frozen in amber. If the conservative legal movement sees an opportunity to push things in the other direction they will seize it.

    Even Kennedy’s concurrence on the N&P Clause in Comstock was replete with qualifiers, so I would not regard his vote as a sure thing. As for the Justices to the right of him, that ought to go without saying.

  108. 108
    BTD says:

    @Punchy:

    I meant case law. But certainly the Court can and will do whatever it wants.

  109. 109
    Another Commenter at Balloon Juice (fka Bella Q) says:

    @Xenos:

    Thus, three votes for the constitutionality of the ACA, four against, and nobody having a clear idea of what the hell happened, or what it means.

    And, in the end, this is the most likely and apt prediction (that I’ve read thus far…)

  110. 110
    Chyron HR says:

    @jwest:

    Why, it’s so clearly unconstitutional that the GOP only had to shop through 14 judges before they found one who was willing to agree!

  111. 111
    Catsy says:

    @jwest:

    The comments on this article are nothing short of breathtaking.

    You have to have breath for it to be taken from you. I see no evidence in what follows that you’ve been providing oxygen to your brain recently.

    To read that people want the liberal members of the Supreme Court to ignore the Constitution and vote for the totalitarian fantasy of requiring individuals to purchase a product from a private entity makes one wonder what other lengths the left would go to.

    Sorry kid, but you fail at armchair con law. This graf of yours is so divorced from reality that it’s not even worth picking apart.

    Come back when you’ve done your homework.

    If you want universal healthcare, do it legally. Convince a majority of the people that it will work, pass legislation and raise taxes to fund it.

    *scratches head*

    Not paying too much attention here, are you sparky?

  112. 112
    Dracula says:

    @Mike R.: Very salient point. If this were to be struck down, instantly 25 year olds lose health insurance, and those with pre-existing conditions are dropped like a hot potato–probably, literally overnight. People expecting insurers to pay b/c their lifetime limits were lifted will now get thrown an enormous bill, as lifetime limits are instantly restored.

    IOW, the incredible and chaotic shakeup of the HC scene overnight would be a political disaster. All tied to the GOP, of course. I dont know if GOP Supremes wanna go this route.

  113. 113
    RossInDetroit says:

    @jwest:

    And I want a levitating car that runs on sunshine but I’ll settle for a conventional one if that’s all I can get.

    Get the point, or not willing to try?

  114. 114
    Barry says:

    @gene108: OTOH, the Kelo v. New London decision affirmed something near and dear to the financial elites’ hearts – the aiblity to bribe local government to seize the property of peons for use by their betters.

  115. 115
    BTD says:

    @Steve:

    7-1-1, Scalia concurring anf Thomas dissenting, Roberts writing for 7.

    Kagan will not recuse.

  116. 116
    mcf says:

    how about 5-4 mandate is unconstitutional (Kennedy plus conservs), 5-4 mandate is severable (Kennedy plus libs)

  117. 117
    FormerSwingVoter says:

    @jwest:

    A clearly unconstitutional law is rammed through the legislature without anyone having read the bill, and now people are shocked that it’s been struck down?

    Except that it’s not clearly unconstituional. The Necessary and Proper Clause has always been interpreted to give the Federal government the power to create laws that relate to their enumerated powers. Take, for instance, the requirement that all able-bodied men buy their own musket in the Militia Act of 1792, written and passed by many of our founders and signed by George Washington under the concept that doing so was Necessary and Proper under the enumerated power of defense.

    And even if this wasn’t Necessary and Proper under the Commerce Clause’s ability to regulate commerce, it would still be completely legit under the Federal government’s Constitutional power to tax and spend on the General Welfare, since it’s done entirely through the tax code.

    In short – you are wrong. You are completely, ridiculously, embaressingly wrong. People who disagree with you are not at war with the Constitution or America, and you have no fucking right to pretend that they are, you hysterical fuckwit.

  118. 118
    BGinCHI says:

    @jwest:

    A clearly unconstitutional law is rammed through the legislature without anyone having read the bill….

    Why didn’t GOP pols read the bill? What were they voting against?

    If you are just gonna repeat talking points, at least have some idea what you’re talking about.

    Can we get some smarter trolls, plz?

  119. 119
    Seitz says:

    If I’m Kennedy, I probably vote against the ACA for the simple reason that I’m far more likely to be killed by a right wing nutjob if I vote to uphold it.

  120. 120
    PS says:

    It IS interesting to speculate, but we should bear in mind both that the Supreme Court might never see the case and that it will probably take a while. Yes, we all know that certain cases do get rushed up there, but that is extremely unusual. It’s quite possible that they won’t hear it until 2013.

  121. 121
    taylormattd says:

    @BTD: Armando, at least two judges have said it violates the commerce clause.

  122. 122
    4jkb4ia says:

    @Anya:
    No, that’s 11-dimensional chess to show that the Republican solution will not work and you have to have the public option all along.

    6-3 sounds reasonable.

  123. 123
    RP says:

    @Barry: Right — that’s my point. The fact that they said the decision wasn’t supposed to be used as precedent simply confirmed that it was a purely partisan outcome that had no real law behind it. So I hate suggesting that they had a valid point by saying that it was sui generis.

    (That said, I have a slightly odd view of Bush v. Gore. I think it was partisan hackery and a terrible decision legally, but I’m also not so sure the Court did the wrong thing by resolving the situation or that another outcome in the Supreme Court would have mattered (the later recounts done by the media were inconclusive IIRC). For me, the real issues with the 2000 election happened long before the Supreme Court got the case — the voting rolls in Florida, the butterfly ballot, the media coverage, etc. Bush v. Gore was just the cherry on top.)

  124. 124
    KG says:

    speaking of unconstitutional laws that were passed without being read, when is the PATRIOT ACT going to be overturned?

  125. 125
    Paul W. says:

    @BGinCHI:

    Well, I just don’t see the mandate being shot down. They allow people to circumvent the mandate for any number of reasons, as well as pay a fine in lieu of it. Again, not a lawyer but I did do some pretty extensive research into the HCR bill during the meatgrinding process.

  126. 126
    Another Commenter at Balloon Juice (fka Bella Q) says:

    @jwest: You are hilarious! I’ve not met a constitutional scholar as funny before. Well, except Mike Glennon, but he has a rather more dry (and sane) sort of wit. You’re published where again?

  127. 127
    KG says:

    @Seitz: Justices actually have a couple of US Marshals assigned to them for security purposes. They are much more low key than the Secret Service, but they are usually pretty easy to identify.

  128. 128
    RP says:

    @BTD:

    I did not say it did. It does need a case to take and in my view, will only be compelled (in the sense that the government will ask for it)to does so IF one of the circuits strikes the law down.

    I think someone will appeal to the SCt no matter what happens, and at least 4 justices will want to take the case regardless of the outcomes below. I just don’t think they’re going to care that much about the circuit courts’ decisions one way or the other.

  129. 129
    BGinCHI says:

    @Paul W.: I’m not disagreeing. I was just pointing out that it’s what’s getting the most traction for the “ACA is unconstitutional” movement. We’ll see how that plays out.

  130. 130
    aimai says:

    @taylormattd:
    IANAL but I think that’s wrong–the law doesn’t “violate the commerce clause” in any event but doesn’t “fall under it” or the “commerce clause doesn’t apply” is the phrasing you are looking for. Vinson’s decision, as I understand it, is that it does and doesn’t fall under the Necessary and Proper clause. Does and doesn’t because at least one account of his decision points out that he makes both arguments.

    aimai

  131. 131
    stuckinred says:

    @BGinCHI: YES!

  132. 132
    jwest says:

    Former Swing Voter (et al),

    If your definition of the Necessary and Proper Clause is correct, what can’t the federal government do?

    The whole basis of the Constitution is to enumerate and limit the scope and reach of the federal government. You and your friends here seem to be ready to entrust anything and everything to your betters in Washington just to get a limited “win” on this issue. Have you considered what will happen when an evil conservative takes over as president and uses the same broad definitions you are applying for their purposes?

    Liberals would be taken more seriously if they would just stop and think for a moment about the silly things they say.

  133. 133
    kay says:

    @dm9871:

    it’s just not a close call.

    I agree with your whole analysis. If you read the four opinions, what sticks out over-all is the two opinions upholding the law are so straight-forward. They read like a law school exam. The two opinions upholding the law are dull. Rational basis, Commerce clause precedent, facts, analysis, conclusion. Plodding.
    The conservative judges had to go to broccoli and asparagus and REASONTV and tea in Boston Harbor, and on and on and on, because they didn’t have anything else to hang it on.
    The conservative opinions are very lively and creative :)

  134. 134
    Allan says:

    @jwest: Don’t clutch your pearls so tightly. It’s cutting off the oxygen supply to your brain.

  135. 135
    Davis X. Machina says:

    @RP: Unnecessary, but worse. Disputed Presidential elections go to the House, whose members are subject to removal at the polls. The people have final judgment on the disposition of the disposers of the dispute.

    Deciding disputed elections in an unelected court is the opposite-of-democratic.

  136. 136
    RP says:

    @Davis X. Machina: Yeah…I can’t argue with that. I guess my outrage at the 2000 election is just more focused on the other stuff.

  137. 137
    PS says:

    @RP: I am sympathetic to the idea that “Bush v. Gore was just the cherry on top.” I fear that blaming Nader and the Supremes got in the way of constructive self-criticism. Also, if Gore had won Tennessee …

    In the spirit of the thread, I’ll predict 1. that the Supreme Court that rules will not be identical to the one now in place (but I don’t know who will be gone); 2. that it will be silently but very sensitive to the notion that it could become extremely unpopular; 3. that it will take a minimalist approach; and … and … nope, I don’t know how the story ends.

  138. 138
    stuckinred says:

    @jwest: Yea, instead we should leave it to these morons that run the states. nice try

  139. 139
    dollared says:

    @RP: Yeah. If only President Clinton had unleashed his camels and horses during the Brooks Brothers Riot.

  140. 140
    Sentient Puddle says:

    @jwest:

    If your definition of the Necessary and Proper Clause is correct, what can’t the federal government do?

    Plenty. To knock a few of the easier ones out of the way, it can’t abridge free speech, force you to quarter soldiers, perform unreasonable search/seizure, inflict cruel and unusual punishment, violate due process, deny voting rights based on race, etc. etc. etc.

    I know you like your interpretation of Necessary and Proper clause, but modern jurisprudence disagrees. Strongly. And their opinion actually counts, unlike yours.

  141. 141
    RP says:

    @jwest: As others have noted, from a purely legal perspective, this is a very easy case. Hell, I’m not sure why this can’t be resolved by the 16th Amend. alone. The law says that you’re going to get hit with an extra tax, but if you buy health insurance you’re exempt. I haven’t studied the issue, but that seems perfectly fine under the 16th Amend., which gives congress the power to levy taxes.

  142. 142
    jwest says:

    Stuckinred,

    Leaving it to those “morons that run states” is exactly what the Constitution is all about.

  143. 143
    Allan says:

    @jwest:

    Liberals jwest would be taken more seriously if they it would just stop and think for a moment respond to points actually made by the other side about the instead of dreaming up new silly things they to say.

    It’s a bit awkward, like the source material, but I think I FIFY.

  144. 144
    stuckinred says:

    @jwest: Tell me all about it.

  145. 145
    Dave says:

    5-4 in favor of upholding the law, with Kennedy keeping his sanity. Possibly 6-3 if Scalia’s ego won’t allow him to go against his own reasoning in 2005.

  146. 146
    burnspbesq says:

    @Dork:

    4-4 means the lower court ruling stands.

    It’s going to be 7-2 or 8-1 in favor of the law being Constitutional. There’s no way you can predict Scalia voting against unless you think his concurrence in Raich no longer reflects his views, and there is zero evidence to support that. Roberts will follow Scalia. Thomas’ dissent in Raich predicts that he will vote to find the mandate unconstitutional. Alito is the wildcard.

    I’d love for Scalia to write the opinion. It would be a hoot to see him give these loonies the smackdown they so richly deserve.

  147. 147
    FormerSwingVoter says:

    @jwest:

    Once again, this is already the case in existing law. Your slippery slope arguments should also apply to the Child Tax Credit, or the creation of the FBI, or anything else that government has ever done in its entire existence. Your argument is the equivalent of insisting that any federal law whatsoever gives the government unlimited power.

    It’s also worth noting that the purpose of the Constitution was not to limit Federal power. It was created specifically and purposefully as the single greatest expansion of Federal power in US history due to the failure of the Articles of Confederation. Those powers do have very distinct limits (most notably in that the only things the Feds can do must be necessary for laws passed to fulfill their enumerated powers), but the context in which most conservatives cite the Constitution is literally the opposite of reality.

  148. 148
    Arclite says:

    Along similar lines: There was a law 200 years ago requiring all citizens to get a firearm.

    The comment at the bottom of the story is worth its weight in gold. Just read the last couple of paragraphs first.

  149. 149
    JWL says:

    Whatever the issue before it, todays Supreme Court is a fundamentally corrupt entity. You can never go wrong assuming the worst about it.

  150. 150
    burnspbesq says:

    @DJAnyReason:

    If the case that comes to the Supreme Court is a decision that says the mandate is constitutional, the perfect outcome would be a denial of cert, but I don’t have the stones to actually predict that.

  151. 151
    Turgidson says:

    @jwest:

    A clearly unconstitutional law is rammed through the legislature without anyone having read the bill

    LOL, that’s a lot of empty and false talking points crammed into a pretty succinct sentence. Congrats!

  152. 152
    Shalimar says:

    I think it will be 7-2 for upholding the bill, in one of those decisions where there are multiple concurring opinions about various technical questions. But I also think Roberts and Scalia will be trying behind closed doors to convince Kennedy to overturn, and only vote to uphold once he decides to uphold. So it also wouldn’t surprise me to see 5-4 against.

    I frankly don’t see any legal reasoning for overturning that wouldn’t destroy mountains of commerce clause precedent, but then there are 9 SC Justices and dozens of clerks with much sharper legal minds than mine so I’m sure they will come up with something if they want to.

  153. 153
    burnspbesq says:

    @jwest:

    The mandate is constitutional. Your side lost this fight. In 1819.

  154. 154
    Another Commenter at Balloon Juice (fka Bella Q) says:

    @kay: That’s an excellent analysis. Thanks. “The conservative opinions are very lively and creative” which kinds of opinions are usually, though not always, clearly unaffirmable. :)

  155. 155
    stuckinred says:

    @Turgidson: And he didn’t even mention that it was done “in the dead of night”.

  156. 156
    Raoul says:

    Scullia and Thomas are certainly against it. Alito probable. Roberts may severe the individual mandate only as to bring Kenneddy but I actually think these two will uphold the law- prediction 6-3 for ACA. Why? its way too interventionist on a matter which is probably constitutional and to say no one has to go through too many cartwheels (too many precedents)- to overturn this law in essence could overturn everything and corporalist judges would not want that.

  157. 157
    Mnemosyne says:

    @jwest:

    Have you considered what will happen when an evil conservative takes over as president and uses the same broad definitions you are applying for their purposes?

    You mean like announcing that the executive branch can overrule Congress with signing statements? Or insisting that the VP is part of a “fourth branch” of government that’s not accountable to Congress?

    Been there, done that. Sorry, but you can’t scare us anymore with what “might” happen after we watched 8 years of Bush.

  158. 158
    4jkb4ia says:

    For 6-3, skeptical post from ACA Litigation Blog on Roberts. Its argument is that Roberts took a mainstream view in Comstock in March 2010, knowing that ACA was likely to come to him. Also we have the view expressed by Lithwick that this Court does not come directly at things that would make them unpopular. So if ACA remains 50-50 in popularity or close to it, that might make Roberts a more likely Yes, because he would clearly be seen as illegitimate by half the country with his vote.

    Bush v. Gore: Didn’t have any idea, and may have missed a lot, even if I was following the NYT online regularly. Didn’t know husband very well then, but fondly remember that he insisted on counting every vote. Maybe this guy isn’t a dittohead, I thought. This was very important.

  159. 159
    Brachiator says:

    What’s your prediction on the final SCOTUS decision here?

    It’s pointless to speculate. And no one has any idea what the opinions of the two newest justices might be like.

  160. 160
    Mnemosyne says:

    @jwest:

    A clearly unconstitutional law is rammed through the legislature without anyone having read the bill, and now people are shocked that it’s been struck down?

    Taking almost a year to pass a bill is now “ramming” it through? What did they do, use Tantric yoga?

  161. 161
    Another Commenter at Balloon Juice (fka Bella Q) says:

    @Turgidson: Wouldn’t it have been even better as “rammed down the throat(s) of the legislature” to get that rape image in there? Not that I disagree with your general premise, however.

  162. 162
    eric says:

    I am late to this game, but quickly. I think that if it gets to the Supremes, and I think that is a big if, it will be 5-4 affirming, with Thomas writing a dissent following his Lopez concurrence, and with Roberts/Alito/Scalia separately dissenting based upon some hand waving on improper factual development of the congressional record to support such a draconian requirement, that could, in certain circumstances be consitutional. thus, requiring the current congress to do additional findings in support of the mandate — findings that the present congress will never make.

    No way Kennedy signs on to this generation’s Lochner. In law school, Lochner is the case everyone tears into as an example of the worst sorts of jurisprudence. Kennedy’s fingerprints on Citizens and Bush are more than enough to taint his legacy to the Left; but declaring the mandate unconstitutional will be the deathknell to his legacy — particularly because if he is the fifth vote, he is gonna have to write it.

    eric

  163. 163
    kay says:

    @jwest:

    I don’t know what the Supreme Court will do, but you should read this:

    Harvard law professor Charles Fried, President Reagan’s Solicitor General, doesn’t love the Affordable Care Act, and isn’t convinced it will work. But as a constitutional matter, Fried has no use for the right’s arguments.

    He’d written previously that “the health care law’s enemies have no ally in the Constitution.” Today, he elaborated on this point at a Senate Judiciary Committee hearing, calling the constitutional issue a “no-brainer.”

    “I am quite sure that the health care mandate is constitutional…. My authorities are not recent. They go back to John Marshall, who sat in the Virginia legislature at the time they ratified the Constitution, and who, in 1824, in Gibbons v. Ogden, said, regarding Congress’ Commerce power, ‘what is this power? It is the power to regulate. That is — to proscribe the rule by which commerce is governed.’ To my mind, that is the end of the story of the constitutional basis for the mandate.

    “The mandate is a rule — more accurately, ‘part of a system of rules by which commerce is to be governed,’ to quote Chief Justice Marshall. And if that weren’t enough for you — though it is enough for me — you go back to Marshall in 1819, in McCulloch v. Maryland, where he said ‘the powers given to the government imply the ordinary means of execution. The government which has the right to do an act’ — surely, to regulate health insurance — “and has imposed on it the duty of performing that act, must, according to the dictates of reason, be allowed to select the means.” And that is the Necessary and Proper Clause.”

    You’re just wrong, and so are the two conservative judges who spent 120-some pages avoiding this “no brainer”

  164. 164
    gypsy howell says:

    @Dracula:

    If this were to be struck down, instantly 25 year olds lose health insurance, and those with pre-existing conditions are dropped like a hot potato—probably, literally overnight. People expecting insurers to pay b/c their lifetime limits were lifted will now get thrown an enormous bill, as lifetime limits are instantly restored.

    I keep seeing this reference to pre-existing conditions discrimination being eliminated, but this doesn’t actually go into effect until 2014. Also, although the lifetime cap has been eliminated as of 2010, annual caps don’t get eliminated until 2014 either.

    I’m guessing the republican supremes are willing to take the chance that the number of people who would be immediately affected by repeal might be fairly small,** and thus nothing to worry about, assuming this case makes it way to them prior to 2014.

    **(with the exception of the medicare donut hole — but surely a new big pharma giveaway bill could be concocted to take care of that between now and then)

    Can someone please fill me in as to why Kagan might recuse herself?

  165. 165
    vtr says:

    My understanding is that insurance companies are very much in favor of the requirement to purchase health care insurance, but that doesn’t mean the Court majority would uphold ACA. The Court decides strictly on Constitutional reasoning. Every single time.

  166. 166
    Turgidson says:

    @Raoul:

    Scullia and Thomas are certainly against it.

    I don’t think it’s certain that Scalia is against it, due to Raich and the comments he made about mandates back when it wasn’t a Kenyan commie librul plot to destroy real Murkin freedoms. I have no love whatsoever for the insufferably arrogant blowhard, nor his “white slaveholders who lived 200 years ago talk to me in my dreams and say the world should work thusly” manner of jurisprudence, but Scalia isn’t quite as predictable of a hard-right knuckledragger as Thomas is.

    All that said, I do think he’s susceptible enough to political considerations to swing over and vote against just for kicks. I just don’t think it’s a done deal at this point.

    If I had to guess, I’d say if they hear an ACA case, it’ll come out 5-4 or 6-3 to uphold. I think Roberts (corporatist), Scalia (uphold his own precedent) or Kennedy (might have a shred of decency and/or respect for precedent), or some combination thereof will let it stand. But I may be giving them all too much credit.

  167. 167
    Stillwater says:

    @Sentient Puddle: I know you like your interpretation of Necessary and Proper clause, but modern jurisprudence disagrees. Strongly. And their opinion actually counts, unlike yours.

    Dang! You just proved jwest’s point that everybody’s wrong!

  168. 168
    kay says:

    @Another Commenter at Balloon Juice (fka Bella Q):

    I recognize their approach because I have to do it. I rarely have any law going my way and the facts usually go against my guy, so I have to do a lot of broccoli and asparagus and slippery-slope general ranting.

    But, then, I’m not a judge. I’m an advocate. Ahem :)

  169. 169
    ericblair says:

    A clearly unconstitutional law is rammed through the legislature without anyone having read the bill…

    I thought this particular bit of drivel was no longer operative after the bill passed. I mean, if nobody’s actually read the thing, it would seem proper to read it now to see what’s in it. And, oh dear, it seems that the individual elements that are actually in the bill are actually pretty popular. So we can’t have that, and now every talking point deals with how unConstishuntushionalistic it is, if you define “Constitutional” as “things I’ve been told I like”.

  170. 170
    liberal says:

    @kay:
    Interestingly, IIRC Ronald Dworkin cites Fried as a well-known conservative critic of originalism.

  171. 171
    West of the Cascades says:

    (a) 6-2 that ACA is constitutional (Roberts, Kennedy, Ginsburg, Breyer, Sotomayor, Kagan). Scalia concurring (based on Raich) but writing some screed about how close this is to the line. Alito and Thomas saying stupid things in dissent.

    (b) Wickard v. Filburn and Gonzales v. Raich control, the decisions of uninsured people who access the health care system AS A CLASS substantially affect interstate commerce, making their actions subject to regulation by Congress.

    (c) Before Bush v Gore I was terrified of exactly the outcome that happened – a short, irrational, limited-to-the-facts decision putting Bush in office.

    I think the key difference here is a new Chief Justice who has a lot of concern for the institutional integrity of the Court and also plays a long game (any decision to overturn ACA almost necessarily means dispensing with 70 years of Commerce Clause jurisprudence, and Scalia and Kennedy are getting old … so I don’t think he’d want to see a potentially liberal Court in a few years being able to cite the ACA case to regularly overturn conservative legislation).

  172. 172
    kay says:

    @West of the Cascades:

    Thank you for posting the two cases that went “for”. I saw it at the end of the thread and it saved me a lot of time.

    It is weird they were even nominally difficult to track down, though, considering how the two conservative opinions were everywhere.

  173. 173
    eric says:

    @West of the Cascades: i think you are right about Wickard, but they can get around that by finding fault with the factual record in Congress. I think that is how you will see the “ramming” meme morph into a constitutional argument.

  174. 174
    jwest says:

    Turgidson,

    Isn’t there just as great a chance that Breyer or Ginsberg (who have never let the Constitution stand in their way of reengineering society) would take this opportunity to strike down ACA in the hope that single-payer would rise to replace it?

    Liberals believed that vaccinations caused autism and that Michael Mann’s hockey stick global warming chart was real, so we can’t discount naivety in this decision.

  175. 175
    Mnemosyne says:

    @gypsy howell:

    I keep seeing this reference to pre-existing conditions discrimination being eliminated, but this doesn’t actually go into effect until 2014.

    IIRC, they made a provision in the law that, because the pre-existing conditions clause doesn’t go into effect until 2014, there’s a special program to provide insurance to those people in the interim. So, yes, people with pre-existing conditions who got their insurance through that program will be thrown back off again.

  176. 176
    A Writer At Balloon-Juice says:

    @burnspbesq:

    Does “these loonies” mean us paranoid hippies or the teatards who brought the case?

  177. 177
    Brachiator says:

    @gypsy howell:

    I’m guessing the republican supremes are willing to take the chance that the number of people who would be immediately affected by repeal might be fairly small,**

    Adult children can be covered on their parents’ plans up to age 26. Don’t know how many people are affected here or what their medical situations might be. Strangely enough, the new enhanced, refundable adoption credit was part of the health care legislation. If the entire law is held to be unconstitutional, people who took the credit might have to pay it back.

    There are all kinds of nasty little consequences if the GOP wins at this game of law nullification.

  178. 178
    kay says:

    @liberal:

    Which makes him different than Scalia, right, in theory?

    This is a horrible thing, but it’s true. I no longer try to predict what conservatives will do by what they say.
    The whole “originalism” or “states rights” or “natural law” any other stated Bed Rock Principle of Any Random Conservative is just immaterial to me. I don’t even try to fit what they do into what they claim they believe. Honestly, it saves a lot of time and anger over “hypocrisy!”
    It’s clarifying (and easier!) to just drop the rigid parameters they supposedly work within and look at the reality of what they do.

  179. 179
    aimai says:

    @Mnemosyne:

    Taking almost a year to pass a bill is now “ramming” it through? What did they do, use Tantric yoga?

    Now you’ve got me excited.

    aimai

  180. 180
    Maude says:

    I have no idea if SCOTUS will take the case. Isn’t the latest ruling about ACA the judge saying: I don’t like it and I ain’t gonna let it stand.

  181. 181
    Chyron HR says:

    @jwest:

    SOCIAL ENIGEERING MADE THE UNCONSTITUTIONAL GLOBAL WARMING VACCINES!

    Do you have a job, or do you just scream incoherent Fox News talking points at your computer all day?

  182. 182
    aimai says:

    @gypsy howell:

    TPM is reporting that some states, like Wisconsin and Florida, are officially refusing to begin implementing the ACA. I take it that the Federal Government will sue to try to force them to. But when this is coupled with the fact that (some) Republican representatives and Senators are also refusing to help their constituents sign on for the more popular provisions I think we are looking at a very confused and ugly situation regardless of when individual provisions kicked in.

    On the one hand: lots of people heard about the good things in the ACA and will be pissed off with the Dems if/when they try to sign up and are told the provision doesn’t kick in until two years from now. On the other hand the same people, who go to their state AGs or their Senator and are told that “sorry, we declined, on your behalf, for you to be able to put your child on your health care…” are going to be royally pissed at the Republicans.

    aimai

  183. 183
    liberal says:

    @Southern Beale:
    Why is that shocking?

    IIRC they took a poll two or three decades ago, asking Americans to rank domestic welfare spending, foreign aid, and military spending in terms of size. It came up: foreign aid bigger, followed by welfare, followed by military which of course is exactly the opposite of the truth.

  184. 184
    liberal says:

    @kay:

    Which makes him different than Scalia, right, in theory?

    Yeah.

  185. 185
    kay says:

    @Chyron HR:

    Reagan’s former SG went against them, so they’re upset. He called this a “no brainer”! That’s almost shrill.

  186. 186
    Mnemosyne says:

    @Brachiator:

    Small businesses have already started getting tax credits for offering health insurance to their employees — they’ll have to pay those back as well if the law is struck down. Also, the states have received extra money to start getting set up. If they follow Wisconsin’s lead and kill the program based on this court ruling, they have to give that money back (though I’m sure they’re going to argue that they shouldn’t have to return it because of the strong Constitutional backing for the law of “finders keepers”).

    It’s really going to come down to a battle between the corporatists and the ideologues. The corporatists will look at all of the damage that would be done, but the ideologues won’t care. I’m not sure what proportion of which is which (though I’m pretty sure Thomas is an ideologue).

  187. 187
    liberal says:

    @jwest:

    Liberals believed that vaccinations caused autism…

    God, you’re an insufferable asshole.

  188. 188
    aimai says:

    @jwest:

    How does this make sense, even to you? If, as you say, the law is unconstitutional then how would Ginsburg voting against it be voting “against the constitution?” Wouldn’t her nefarious plot be voting for the constitution in order to undermine it by supporting it?

    And you really seem not to know the different functions of the various branches of government if you think that Ginsburg, or any other Justice, overturning legislation produces different legislation. If the ACA gets overturned we don’t get single payer. We go back to the status quo ante but are more worse off.

    aimai

  189. 189
    jwest says:

    @Chyron HR:

    Chyron,

    As a conservative, I’m a bit too busy exploiting the masses and pulling the rug of opportunity out from under the feet of women and minorities to yell at the computer.

    I have staff that does that for me.

  190. 190
    Quaker in a Basement says:

    Write it down now and believe me later: 6-3 upholding the law. This will be the case where Roberts decides that he’s just not as crazy as Scalia.

  191. 191
    burnspbesq says:

    @A Writer At Balloon-Juice:

    The latter. Scalia will find some other excuse to smack you down.

  192. 192
    kay says:

    @aimai:

    TPM is reporting that some states, like Wisconsin and Florida, are officially refusing to begin implementing the ACA.

    Just give it a bit, though. What conservative-led states SAY and what they’re doing are two different things. Texas is the best example. I saw they’re making a big show out of returning a tiny (in relative terms) grant they got, but so much money has gone to the states for health care reform infrastructure (starting with the stimulus) that it may be purely for political show, to keep the anti-ACA political side-show in business. I don’t buy it, yet.

  193. 193
    NobodySpecial says:

    I’m predicting 5-4 against, with Kennedy joining team RATS.

    Since Bush v. Gore, I say that the right wingers on the court, regardless of what they say they believe, are quite willing to toss the law on it’s ear and claim it an exceptional circumstance and not to be used as a guide towards future or past law. As long as it fucks over a Democrat, that is.

  194. 194
    West of the Cascades says:

    @kay: Is was very odd … but as another commenter above said, both of the opinions upholding ACA were so matter-of-fact, so straightforward and such EASY decisions, they don’t make for interesting news on their face (and they certainly don’t make for “CONFLICT AND OMYGOD OBAMACARE IS UNCONSTITUTIONAL IS HE GOING TO RESIGN TODAY?” news that seems to be all the ratings-swilling swine at the major media outlets care about).

  195. 195
    Allan says:

    @jwest: Sadly, I predicted this tactic way back @here, thus BJ readers were inoculated against your subject-changing derailing tactics. Troll better, please.

  196. 196
    Will says:

    I am amazed by the faith so many of my fellow progressives here have in the sudden onset of reason in Justices Scalia, Roberts, and Kennedy.

  197. 197
    West of the Cascades says:

    @eric: You’re thinking about what they did in Morrison(the Violence Against Women Act case), right? I think there’s far less of a charge of “piling inference upon inference” in the ACA case. The fact we have laws that mandate emergency room care for the uninsured, and decades of information about costs to the system as a whole of the cost of providing care to the uninsured, as well as the fact that the connection between the “penalty” and the regulation of the health insurance system is clearly commercial and economic distinguishes the Congressional record in this case from the one in Morrison.

    I think a decision that applied rational basis review to declare ACA unconstitutional because the record didn’t show a rational relationship between the individual mandate and the health insurance system would be even more illegitimate than a decision declaring ACA unconstitutional through some pretzel-like logic distinguishing “individual choice not to act” to be an action not reachable under the Commerce Clause as interpreted in Wickard and Raich.

  198. 198
    jwest says:

    @liberal:

    Here’s a link you won’t find at TPM or Kos concerning the vaccination/autism scam.

    http://scienceblogs.com/insole.....efield.php

    Read more widely.

  199. 199
    Mnemosyne says:

    @jwest:

    We talked about that last week. Try to keep up, man.

  200. 200
    West of the Cascades says:

    @NobodySpecial: I suspect the difference here is that this is going to build for several years before it gets to the Supremes – I think this is one they’ll let a circuit split develop before taking the case (although it’s a fairly important issue which some of them – on both sides of the ideological spectrum – may decide to grab the first court of appeals decision that comes out).

    Given that passage of time and a lot of time to consider the implications for the prestige and legitimacy of the institution, and the fairly clear precedent here in which they concurred or joined five years ago (Raich), I think Scalia and Kennedy will have a hard time justifying a departure from the precedent, even though the conservative wing of the Court generally has not let them stop them in other instances.

  201. 201
    eric says:

    @West of the Cascades: yes, but I think you could read something like “there is scant evidence in the congressional record that methods other than the mandate could not achieve the same goals as the mandate; thus, this Court cannot rule on the reasonableness of the mandate as a means because Congress improperly forestall that analysis by not doing its job in full.”

    I just cannot see a straight opinion saying it is unconstitutional. The inaptly named necessary and proper clause is just so broad that you are have to read in more necessity than any court has done in 200+ years.

    But, I am not a con law expert.

  202. 202
    Lavocat says:

    A: 7-2 for the mandate;
    B: Scalia and Thomas are inveterate douchebags;
    C: Everyone else on the USSC realizes what a big deal this is both substantively and procedurally (i.e., they don’t want another Bush v. Gore abomination on their hands).

    If it was good enough for Marshall, then it’s golden. Period. I believe one or more of the Federalist Papers deals with this very topic, presumably written by Hamilton. I’m just too lazy to search for it.

  203. 203
    Another Commenter at Balloon Juice (fka Bella Q) says:

    @jwest: It’s DougJ, son of DougJ, trolling his own post? Do I get a copy of the book for guessing?

  204. 204
    jwest says:

    @Mnemosyne:
    Admitting to the mistake of blindly accepting junk science concerning vaccinations is a start.

    Now, if we could just get the liberal community to follow this example with global warming, DDT, genetically modified grains, food irradiation, nuclear power, welfare, education, tax policy, foreign affairs and a host of other subjects, we could make some progress.

  205. 205
    BGinCHI says:

    @jwest: Bill Maher!

    Welcome to BJ.

  206. 206
    ericblair says:

    It’s DougJ, son of DougJ, trolling his own post? Do I get a copy of the book for guessing?

    Nah, he’s got all the correct talking points (though seems to be out of date a bit), and doesn’t have the nod-nod-wink looniness of a self-troll. Get the tranq gun, and we can tag his ear and release him back in the wild.

    Edited: well, musta got a software upgrade, because it’s onto the DDT stuff. Bedbugs have been resistant to DDT since the 40’s due to, um, evolution. However, it’s the nasty liberal’s fault that bedbugs have come back because they won’t let you spray your house with ineffective poisons. Bastards.

  207. 207
    West of the Cascades says:

    @jwest: Towards the Galtian Paradise you’re yearning for? Please feel free to find a bucket and begin withholding your productivitee.

  208. 208
    BGinCHI says:

    @West of the Cascades: That’s already happened by the sound of it.

  209. 209
    ChesapeakeBlue says:

    I am a lawyer, for what that’s worth – the legal issue isn’t that complicated it just generates a lot of heat because it is important. I agree 5-4 against the mandate. The more interesting question is whether they blow up all of the ACA, or leave the rest in place without the mandate. I predict that the rest of the ACA will be left in place, with the conservative judges claiming that they are judicious in taking the “middle” ground.

  210. 210
    KJ says:

    6-3 with Scalia and Kennedy siding with the majority to uphold the individual mandate and the related tax as part of Congress’ powers under the Necessary and Proper Clause, after deciding that Congress has the power to regulation the health insurance market under the Commerce Clause.

  211. 211
    jwest says:

    @ericblair:
    I was thinking more of the million people who die each year in Africa due to malaria, not bed bugs.

    That’s the difference between what conservatives and liberals care about.

  212. 212
    toujoursdan says:

    @jwest:

    You mean deny what scientists have actually observed to embrace right-wing narcissism? No thanks.

  213. 213
    Mnemosyne says:

    @jwest:

    Did you know that bedbugs have been immune to DDT since the 1940s and are still resistant today?

    The rest of your “facts” have about the same basis as the “DDT could kill bedbugs but the liberals won’t let us!” claim.

  214. 214
    toujoursdan says:

    @jwest:

    So they should die from DDT poisoning instead of malaria?

  215. 215
    Omnes Omnibus says:

    @West of the Cascades: Doesn’t one need to be capable of productivity in order to withhold it?

  216. 216
    Mnemosyne says:

    @jwest:

    Mosquitoes are also resistant to DDT and have been for decades. But you keep living in your science-free fantasy world, ‘kay?

    (Edited to fix link)

  217. 217
    toujoursdan says:

    @Mnemosyne:

    Same with Malaria:

    What people aren’t remembering about the history of DDT is that, in many places, it failed to eradicate malaria not because of environmentalist restrictions on its use but because it simply stopped working. Insects have a phenomenal capacity to adapt to new poisons; anything that kills a large proportion of a population ends up changing the insects’ genetic composition so as to favor those few individuals that manage to survive due to random mutation. In the continued presence of the insecticide, susceptible populations can be rapidly replaced by resistant ones. Though widespread use of DDT didn’t begin until WWII, there were resistant houseflies in Europe by 1947, and by 1949, DDT-resistant mosquitoes were documented on two continents.

    http://www.washingtonpost.com/.....00130.html

  218. 218
    Mnemosyne says:

    @toujoursdan:

    Better than that — thanks to evolution, they’ll get to die of malaria and DDT poisoning! It’s win/win for jwest!

  219. 219
    toujoursdan says:

    @Mnemosyne:

    …or they can die of starvation from other superpests which will evolve to more effectively destroy their crops.

    Insects that can withstand the powerful pesticide DDT that was banned in the 1970s have an additional genetic advantage over their rivals that has helped them spread across the globe ever since, according to research published in Current Biology this month.
     
    This discovery overturns current theories that resistance to pesticides burdens insects with a genetic disadvantage that would stop them from competing with non-resistant insects once farmers stop using that pesticide.
     
    Instead, researchers now believe that fruit flies that develop resistance to DDT gain a two-fold advantage: not only can they survive being sprayed with pesticide, which other insects cannot, but in doing so they develop a genetic advantage that makes them and their offspring more likely to thrive even when spraying is abandoned.
     
    Researchers warn that the same process may be going on when doctors across the world prescribe antibiotics to cure infections. Antibiotic resistance may potentially confer the same kind of genetic advantage to ‘superbug’ bacteria, and measures such as preventing certain antibiotics from being prescribed may not halt the spread of antibiotic resistance in bacteria.

    http://www.scienceinafrica.co......nsects.htm

  220. 220
    Berial says:

    Any chance that Cleek’s pie filter will start working again? Starting to REALLY miss it.

  221. 221

    @jwest:

    @ericblair:
    I was thinking more of the million people who die each year in Africa due to malaria, not bed bugs.
    __
    That’s the difference between what conservatives and liberals care about

    Yeah, like conservatives give rat’s ass about brown people in foreign countries dying of malaria. Dude, you suck at this trolling business. I could replace you with a small shell script that would scrape the Fox News website for talking points and that would make more interesting posts than you do.

  222. 222
    Davis X. Machina says:

    @Berial: Works a treat.

  223. 223
    Face says:

    Dont worry, Dems already looking for ways to undercut their own argument.

  224. 224
    toujoursdan says:

    @jwest:

    Regarding global warming, I’ll repeat what I wrote on the other post:

    If liberals are wrong about climate change, then we still will have taken major steps to get us off of oil, which is a finite resource, which will run out someday, whose price spikes have already triggered deep recessions (1973 oil shocks, 1979, a major cause of 2008, and the likely coming one in 2011/2012), job losses and hardship; which has also caused us to spend trillions of YOUR tax dollars on imperialist ventures in the Middle East.

    If you’re wrong, your grandchildren will be living on the coast of Tennessee and talking about what an asshole you were to use up every last bit of fossil fuel as quickly and as wastefully as you could. That is, if they haven’t starved to death because crops will have to be grown farther north, in poorer soils, away from already-built infrastructure, and impoverished from having to spend money on building that infrastructure to mitigate its effects.

    Heads: We win. Tails: You lose.

    I could knock over the rest of your liberal pet peeves just as easily, but popping the zit on my back sounds more fun at this point.

  225. 225
    Sentient Puddle says:

    @Face: That reads to me more like they’re trying to come up with a plan B. Which is never a bad thing.

  226. 226
    patrick II says:

    I think that it would be 5-4 for, except that if Roberts sees Kennedy going for it, Roberts will go also which will make it 6-3. Roberts will then assign himself to write the decision as narrowly as possible.

  227. 227
    Lysana says:

    @jwest:

    Now, if we could just get the liberal community to follow this example with global warming, DDT, genetically modified grains, food irradiation, nuclear power, welfare, education, tax policy, foreign affairs and a host of other subjects, we could make some progress.

    Weaksauce trolling, dude. Seriously weaksauce. That’s using a blunderbuss as a sniper rifle.

  228. 228
    JGabriel says:

    @jwest:

    Liberals believed that vaccinations…

    No, conspiracy theorists believe that. They tend to be right-leaning libertarians.

    Conservatives believe in creationism and Glenn Beck. Let us know how that works out for ya, champ.

    .

  229. 229
    Pooh says:

    @jwest:

    You are doing that thing where you substitute the word “clearly” for any, you know, analysis. There is basically no difference between incentivizing health care and incentivizing…any thing else via the tax code. Especially given that health care has been incentivized via the tax code with nary a peep til now, I think the burden is on you (via existing precedent and other legal type stuff) to demonstrate this is somehow illegitimate.

    Or you could go on begging the question and wondering why people keep calling you out for vacuously repeating talking points you don’t actually understand

  230. 230
    BTD says:

    @taylormattd:

    Neither opinion makes sense on this point. The issue is the Necessary and Proper clause.

  231. 231
    taylormattd says:

    @BTD:

    It does need a case to take and in my view, will only be compelled (in the sense that the government will ask for it)to does so IF one of the circuits strikes the law down.

    Um, you realize the people challenging the law can file a petition for cert themselves if a court of appeals upholds the law?

  232. 232
    taylormattd says:

    @aimai: no, your interpretation is wrong. I was using shorthand. Vinson said this law exceeded the scope of Congress’ powers under the Commerce Clause, i.e., it violated the commerce clause.

  233. 233
    taylormattd says:

    @BTD: Armando, what you think the proper framing of the issue is has zero to do with Judge Vinson’s ruling.

    You may well be correct that “this is a necessary and proper clause case”.

    But Vinson said Congress exceeded the scope of its power under the Commerce Clause.

  234. 234
    MGLoraine says:

    The vote will be 6 to 3 in favor of ACA with mandate. The right wing of the SCOTUS is motivated by both “conservative” ideology and corporate favoritism, which will cause the split on this issue. Alito, Scalia, and Thomas will vote against because they are ideologues first and foremost, and the opportunity to take down what is regarded as a Democratic accomplishment during a presidential campaign season will be too tempting to pass up. Roberts, though, is really keen on making/keeping corporations profitable, and the pressure from the insurance lobby to sustain the mandate will be his deciding factor. Kennedy will see that his vote is not enough to win the day for the right wing, and so will prefer to be amongst the majority (the “winners” as it were). The actual Constitutional issues and precedents will be irrelevant in the decision-making process, but they will have their minions write up copious volumes of blather to make their votes appear to have some legal basis.

  235. 235
    thelonius says:

    Dahlia’s right, it all depends on president Kennedy

  236. 236
    Mnemosyne says:

    I have to say, I would greatly love to see the weeping and gnashing of teeth that would happen if they upheld ACA but removed the mandate. That’s pretty much the worst-case scenario for the insurance companies

  237. 237
    Berial says:

    @Davis X. Machina: It works for you? It hasn’t worked for me since the latest change to the blog.

  238. 238
    Mnemosyne says:

    @Berial:

    I had to empty my cache, and then it worked for me.

    ETA: This is assuming you downloaded the update. Get the update first, and then empty your cache.

  239. 239
    Beej says:

    Dahlia Lithwick is correct. I will come down on the 5-4 decision going the other way. I think Kennedy just might vote for the Constitutionality of the health care law. After all, we’re talking about interstate commerce here. There’s not much that doesn’t qualify as interstate commerce and thus provide the permission for Congress to legislate.

  240. 240
    Brachiator says:

    @Mnemosyne:

    Small businesses have already started getting tax credits for offering health insurance to their employees—they’ll have to pay those back as well if the law is struck down.

    Fair point, although I would bet that the GOP would let even small businesses keep what benefits they might have gained from the health care act. And you are right on the larger point that those who are determined to stop health care reform don’t much care what problems are caused along the way.

  241. 241
    CaliCat says:

    Wow. The utter lack of emotion here (especially on the part of the poster) is astonishing to me. What’s next, the Vegas odds? FYI – Lots of people are going to needlessly suffer and potentially die if ACA gets overturned. And no one here seems to give a shit.

    Writer, I hate to say it but it’s almost as though you’re hoping the law will go down. Check your fly, your giddiness is showing.

  242. 242
    Berial says:

    @Mnemosyne: I re-downloaded and it works now. You just saved many brain cells that I can now go back to killing with beer! Thanks!

  243. 243
    General Stuck says:

    @CaliCat:

    Shorter Calicat – we need mo emo poutrage. And more Cowbell wouldn’t hurt.

  244. 244
    CaliCat says:

    @General Stuck: Shorter GS – Please excuse my blockheadedness, wait, what?

  245. 245
    Mnemosyne says:

    @CaliCat:

    I take it you missed the previous two week’s worth of posts about this.

  246. 246
    General Stuck says:

    @CaliCat:

    And no one here seems to give a shit.
    Writer, I hate to say it but it’s almost as though you’re hoping the law will go down. Check your fly, your giddiness is showing.

    You need to visit our archives, where you will find that likely no other blog on the left fought for this law as much as we did. When we were getting called sellouts by the vaunted netroots.

    So you would be wrong about us not caring about this law, and particularly the coverage for the uninsured. The legal course was expected, and will play out the way it will, within the broader context of right wing rebellion and the judicial branch that is way on down the road. We usually don’t do reactionary here, though with exceptions. Honest evaluation, or the attempt at that, does not reflect a lack of caring. Though obviously, your mileage varies on this.

  247. 247
    CaliCat says:

    Yes, Professor Mnemosyne, I have not been in class for the previous two weeks worth of posts on this subject. But I have viewed the previous couple of posts in which the writer cheerfully predicts that ACA will be overturned in a 5-4 SC decision.

  248. 248
    Steaming Pile says:

    Maybe we’ll be really lucky, and Justice Scalia will choke to death on a canoli or something, President Obama replaces him with somebody who isn’t a raving sociopath, and we all get a little more breathing room on common sense.

  249. 249
    CaliCat says:

    @General Stuck: Okay, thanks. I admit I was being a bit reactionary. I apologize for accusing people here of not giving a crap. I was wrong to do that. However, I still think the writer comes off as apathetic at best and slightly giddy at worst with respect to the likelyhood of ACA going down the tubes.

  250. 250
    eemom says:

    Glad you all are having fun.

    You know, I am a lawyer, but I still would never engage in this ridiculous exercise, because (1) I am not a Constitutional lawyer, and (2) I have never engaged in the intensive study of the written opinions of each of the 9 Justices that would be required to reach anything resembling an informed response to the question posed by the post.

    The survival of ACA, as we who fought for its passage all agree, is a very important issue. There are numerous intelligent ways to discuss the challenges it currently faces — e.g., Kay’s posts on the subject.

    This isn’t one of them.

    But this is BLOGGING, I am told. Why not have some fun with predictions? Worst that could happen is we’re all wrong.

    If the goal is fun, fine. The clown brigade wins the smiley prize.

    Anyone who wants to actually DISCUSS the survival of this law, however, will have to find another blog.

  251. 251
    General Stuck says:

    @CaliCat:

    I think the somewhat flip manner of the post by DougJ was his way of dealing with getting pummeled by several lawyers from a previous post that he dared suggest the SCOTUS would make a political vote against the ACA. It is Dougj’s way of answering these kind of things, with a tad of sarcasm directed at commenters, that in no way is related to not caring about folks losing their HC. That is my take.

  252. 252
    CaliCat says:

    @Steaming Pile: With Scalia’s health coverage and crotchety attitude, he’ll probably live to be 120. But that won’t stop him from trying to deny everyone else in America decent health care. Being an amoral partisan hack must be good for the heart…just look at Cheney.

  253. 253
    CaliCat says:

    @General Stuck: Thanks for saying that. I’ll give him the benefit of the doubt from now on. I guess I’m just being oversensitive today.

    Sorry to all.

  254. 254
    JBerardi says:

    The utter lack of emotion here (especially on the part of the poster) is astonishing to me. What’s next, the Vegas odds? FYI – Lots of people are going to needlessly suffer and probably die if the ACA gets overturned. And no one here seems to give a shit.

    Yesterday’s outrage is today’s reality.

  255. 255
    SoINeedAName says:

    At least 5-4 upholding PPACE.

    Kennedy will certainly quail at voiding the entire Act. And Scalia did side with the majority in the Raich ruling – so might even be 6-3.

  256. 256
    4jkb4ia says:

    @eemom:

    Didn’t want to post a comment for exactly that reason, especially since IANAL. But this was a relatively high quality thread because there were actual lawyers in it. Will now rest absurd fixation with this site for the day.

  257. 257
  258. 258
    West of the Cascades says:

    @Angry Black Lady: Loosen up, serious-lawyer-types. A post with a lighthearted premise like this is one where ALL lawyers get to play constitutional lawyers for a few minutes, and folks who aren’t lawyers can play lawyers, and no animals are killed or injured in the process. I read the four merits opinions that came out on this already and dusted off my copies of Wickard and Raich, informed by a bit of Supreme Court appellate work I did in a previous life, and took the best shot at informed opinion based on that.

    Until we know what specific questions the Court grants cert on, it’s all in the realm of the hypertheoretical, no matter who is opining on it. So might as well try to have fun with it!

  259. 259
    BTD says:

    @taylormattd:

    So what? I am critiquing Vinson’s ruling on this basis as well.

    What’s your point besides the usual hostility towards me?

  260. 260
    BTD says:

    @taylormattd:

    You realize the Court can deny cert right? Something they would almost certainly NOT do if the government request review?

    Why you have decided to be a jerk on this issue, where I imagine we agree, is not clear to me.

    Or maybe you are just this stupid.

Comments are closed.