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Anyone want to predict the outcome of the health care case?

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  • Anyone want to predict the outcome of the health care case?

    I personally think the mandate is going to be struck down. The Obama administration has been extremely inept in arguing most of the big cases they've been a part of. In the case of this one, they can think of no limiting principle on Congressional power under the commerce clause to mandate the purchase of goods or services. That's going to be what defeats them. Without a limiting principle, the commerce clause is basically the "Congress can do whatever it wants" clause. Not a single one of the 9 justices can accept that reasoning. In the past, more liberal judges have been willing to allow expansions of Congressional power under the commerce clause, while taking pains to say in their decisions that there are limits beyond which the government may not go. But those limits were always theoretical until the Lopez and Morrison cases. Now we've got a case that really pushes the envelope. I think in the end the 4 liberal justices will side with the government, but it's going to be very hard to see how they justify it in their decisions if the government lawyers fail to come up with a limiting principle. So I predict 5-4, the mandate falls.

  • #2
    Re: Anyone want to predict the outcome of the health care case?

    I can't see how it could be upheld without completely disregarding precedent as well as the obvious.

    מה מכילות החדשות?


    • #3
      Re: Anyone want to predict the outcome of the health care case?

      Im annoyed that we cant listen to it live. It probably keeps people from playing to the camera, though. I have no clue how it will turn out though because the court is very inconsistent. FNC summarized it this morning as:

      for: commerce clause says govt regulate commerce
      against: no one has bought anything, thus theres no commerce to regulate
      for: not having insurance causes commerce, thus we can regulate not commerce too

      But none of this even gets to the fundemenatl point that govt should not be regulating healthcare period. Making general rules for trade is one thing. Making rules for one specific type of activity is unconstitutional. And thats how the govt acted for 100 years. They felt the could only touch things generally, like making rules for boats docking in ALL ports. Not specifically like making rules for one bridge.

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      • #4
        Re: Anyone want to predict the outcome of the health care case?

        I'm thinking 5-4 to uphold, although 6-3 (Scalia) isn't out of the question.

        מה מכילות החדשות?


        • #5
          Re: Anyone want to predict the outcome of the health care case?

          5-4 unconstitutional

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          • #6
            Re: Anyone want to predict the outcome of the health care case?

            5-4 unconstitutional if upheld then the gov will now have complete control of everything.
            imagine this
            global warming affects all the states so everyone must buy a new furnace if their old one is over 10 years old.
            being that we have to get off of foriegn oil everone must buy a hybrd car no matter how old their current car is.
            being that the gov is paying for health care you must eat only the following foods and must go to the gym for at least 1 hour everyday.
            the list can just go on and on with what eh gov will be able to tell you what to buy and do under the guise of he comerce clause

            מה מכילות החדשות?


            • #7
              Re: Anyone want to predict the outcome of the health care case?

              Originally posted by adaher View Post
              I personally think the mandate is going to be struck down. The Obama administration has been extremely inept in arguing most of the big cases they've been a part of. In the case of this one, they can think of no limiting principle on Congressional power under the commerce clause to mandate the purchase of goods or services. That's going to be what defeats them. Without a limiting principle, the commerce clause is basically the "Congress can do whatever it wants" clause. Not a single one of the 9 justices can accept that reasoning. In the past, more liberal judges have been willing to allow expansions of Congressional power under the commerce clause, while taking pains to say in their decisions that there are limits beyond which the government may not go. But those limits were always theoretical until the Lopez and Morrison cases. Now we've got a case that really pushes the envelope. I think in the end the 4 liberal justices will side with the government, but it's going to be very hard to see how they justify it in their decisions if the government lawyers fail to come up with a limiting principle. So I predict 5-4, the mandate falls.
              The Justices are already questioning the tax vs penalty contridiction. I think the ACA is already doomed. The idea of using a tax as a penalty for not complying with a law that has nothing to do with raising revenue is absurd and probably has no legal standing.

              מה מכילות החדשות?


              • #8
                Re: Anyone want to predict the outcome of the health care case?

                Originally posted by ArmyCowboy View Post
                I'm thinking 5-4 to uphold, although 6-3 (Scalia) isn't out of the question.
                I think that the only way that happens is if the government comes up with a limiting principle argument. Kennedy, who has libertarian leanings, is going to absolutely require that to uphold the law. Although you can't rule out a 5-4 decision with Scalia joining the liberals on the court instead of Kennedy.

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                • #9
                  Re: Anyone want to predict the outcome of the health care case?

                  Originally posted by adaher View Post
                  I think that the only way that happens is if the government comes up with a limiting principle argument. Kennedy, who has libertarian leanings, is going to absolutely require that to uphold the law. Although you can't rule out a 5-4 decision with Scalia joining the liberals on the court instead of Kennedy.
                  I am going to go out on the limb here. I just don't see how any justice would be able to qualify this bill has being constitutional. The Federal government forcing Americans to purchase something? I am thinking we might get better than a 5-4 decision.

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                  • #10
                    Re: Anyone want to predict the outcome of the health care case?

                    I think Jeffrey Toobin lays things out pretty well when he wrote this week, "The specifics of the case are complex: What is the scope of the commerce clause of Article I of the Constitution? When is a challenge to a federal law premature? How does a court separate challenges to specific provisions of a law from a claim that an entire law is unconstitutional?".

                    What we heard on Monday was the oral arguments pertaining to that second question.

                    Both sides basically agreed in Court yesterday on that one, which is why the SCOTUS appointed a legal "friend of the court" in order to argue that point against both sides.

                    The Anti-Injuction Act prevents the courts from interfering in cases where the collection of taxes are in question but have not been collected yet. In other words, courts don't have the jurisdiction to interfere with taxation until somebody has actually paid the tax and is fighting it in court.

                    The Obama admin. has held in previous cases that the AIA applies, but rescinded that argument in this case yesterday by saying that the language of the law is that a penalty is being levied on individuals for the purpose of compliance to the law and that the penalty is dealt with in the form of a tax.

                    The conservative argument is that they also agree with the Obama admin. on this one that the court should bypass the AIA and rule on the constitutionality of the individual mandate itself, since they are saying that their case is not about the penalty or the tax, but about the mandate itself.

                    After Citizens United, Justice Roberts is acutely aware of the fact that this is an election year, and he may try to persuade the court to deliver an anti-climactic decision which would put off the SCOTUS having to decide anything until 2 or 3 years from now when somebody has actually had to pay the penalty.

                    From Roberts' exchange with the conservative lawyers:

                    "Gregory Katsas, an attorney for the state officials, told the Supreme Court today that the AIA issue is a moot one because the officials are challenging the mandate itself, not the penalty. Chief Justice John Roberts Jr did not find that line of reasoning persuasive."The idea that the mandate is something separate from whether you want to call it a penalty or tax just doesn't seem to make much sense," said Roberts. "It seems very artificial to separate the punishment from the crime….Why would you have a requirement that is completely toothless?". Medscape: Medscape Access

                    I'm thinking that Roberts may duck the whole issue until somebody actually pays a penalty. Or, he may stick with the tell he gave Monday which was essentially, "Don't ask me to tell you what I think about just the aspect you don't like when it's clearly attached to a penalty you're saying you're okay with". Or, rather, "If you're asking me to separate the two because you know I'd tell you that the part you agree with is valid, than I'm going to have to tell you that both things are appropriate, since the penalty means nothing without the legislation and vice-versa".

                    I'd have to say that tips things in favor of the SCOTUS striking down the lower court's decision to strike down the ACA, since if you're basically asking the court whether the Congress can pass a law with a penalty designed to make people comply with the law, of course it can, since it already has and still does and has the power to do so.

                    The Republican argument is here is a tricky one. They're basically arguing that the gov't can't force people to buy something, but that indeed the gov't can lay down penalties and/or taxes on people in order to comply with laws.

                    They're shooting themselves in the foot, methinks.

                    I'm inclined to think that Roberts is going to go the way of upholding the ACA because this particular case lacks merit. At worst he'll go for kicking the can down the road since no one has actually been injured yet since no one has been forced to pay the penalty yet.

                    I think it will be eventually upheld 6-3 or maybe even 7-2.

                    מה מכילות החדשות?


                    • #11
                      Re: Anyone want to predict the outcome of the health care case?

                      Oh, and if you consider COBRA and its mandate and the fact that Ronald Reagan's Solicitors General is saying it will be upheld, I'd have to say that Anthony Kennedy would be from that guys temperament.

                      I even think Scalia will uphold the ACA on that basis. He's not much for big sweeping gestures of judicial activism, and Chief Justice Roberts has already set out a course where he has said he would avoid big sweeping gestures like that, which is why it appears the SCOTUS will revisit Citizens United soon in order to reign that mistake in.

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                      • #12
                        Re: Anyone want to predict the outcome of the health care case?

                        Its sad that these judgments can already be predicted with ideology being the factor which will determine someones vote. Shouldnt the court be more blind to ideology?

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                        • #13
                          Re: Anyone want to predict the outcome of the health care case?

                          Some tea leaves:

                          Tough questions came from the possible Supreme Court swing vote, Justice Anthony Kennedy, in the first thirty minutes of oral argument Tuesday morning on whether the federal government can require most Americans to carry insurance or pay a fee.

                          Mr. Kennedy has been challenging Solicitor General Donald Verrilli to answer what the justice says is a "very heavy burden of justification" to show where the Constitution authorizes Congress to change the relation of the individual to the government.

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                          • #14
                            Re: Anyone want to predict the outcome of the health care case?

                            You would hope this is common sense. I doubt the writers of the constitution intended for congress to be able to force citizens to buy a product, and if they didnt the govt would fine them. Thats just dumb. But then I doubt they intended the federal govt to use the commerce clause as widely as it does. 2500 pages of health care regulations.

                            If congress wants this power they should amend the constitution. "COngress has the power to ensure affordable healthcare for all citizens".

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                            • #15
                              Re: Anyone want to predict the outcome of the health care case?

                              Not that the Justices havent been idiots:

                              Wickard v. Filburn - Wikipedia, the free encyclopedia

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