3401

More like 14 to 2, iirc.

3402

JeffL: How about this: “This conclusion is reached with full appreciation for the ‘normal rule’ that reviewing courts should ordinarily refrain from invalidating more than the unconstitutional part of a statute, but non-severability is required based on the unique facts of this case and the particular aspects of the Act. This is not a situation that is likely to be repeated.”

FYI your whole “Don’t comment on any bill/ruling/etc unless you’ve read every sentence” act is wearing thin.

3403

Yeah, a bunch of judges have simply thrown cases out entirely.

3404

Who pissed in your corn flakes this morning? I’m at work, took a couple of minutes to scan through here, downloaded the link, and saw someone posting and assumed from his comments that he’d read the ruling and decided it was BS and wanted to know which part he thought was misguided since I don’t have time today at work to read the whole thing.

And please give me all the instances that I’ve said don’t comment on a bill you haven’t read, other than the idiots claiming the health care bill did this or that (such as it being government taking over health care) when they haven’t read even a good breakdown of the bill.

And I don’t give a flying F*** whether you like me challenging someone’s comments on a bill or document they haven’t read (which was not the case in this post.)

3405

You didn’t ask Warren what part of the ruling he disagreed with. Instead you just pointed out he probably hadn’t read it. The implication there is pretty clear: don’t talk about the ruling if you haven’t read it. You didn’t offer any opinion of your own, all you did was post to shut Warren down.

You pulled similar shit a while ago during the HCR debate when the reconcilation workup was passed; asking folks how much they’d read while claiming you were busy working your way through it. That kind of BS is intended to do nothing but shut down discussion, and it rubs me the wrong way in the extreme.

3406

More substantively:

This ruling isn’t surprising. Justice Vinson was appointed by a Republican and he was widely expected to rule against the law. It is not a coincidence that of the fifteen or so judges who have been faced with decisions about the HCR law, the two who have ruled against it are Republican appointees.

It also doesn’t matter. The only thing that really matters is how the Supreme Court rules, and more than that the only thing that matters is how Justice Kennedy rules. Every other vote is, for the most part, a done deal.

The thing I find most interesting about this is how the politicization of our judicial system is being laid bare. Of course our judicial system has always been politicized, the idea that all judging the constitutionality of a law is just a technical exercise; that our judges are all just fair-minded appliers of a system is a fantasy.

What’s interesting here - given effectively infinite resources, can you get a lawsuit for just about any controversial political question all the way to the Supreme Court?

Corollary to the above: The most important characteristic for Supreme Court judges is now youth. If you care about policy outcomes you want to a) find a judge who mostly agrees with you who will b) remain on the court for the next six decades. Probably a better system would be to have Supreme Court terms last for a period of time such that every President is guaranteed to be able to make one appointment.

3407

Actually it might matter

http://voices.washingtonpost.com/ezra-klein/2011/01/does_health-care_reform_stop_c.html

That’s the big question. On page 75, Judge Vinson says that he thinks his decision is sufficient to stop implementation of the Affordable Care Act in the 26 states named in this suit. If he’s right, it’s not just implementation that stops. It’s current benefits.

That means the small businesses that are getting tax credits to buy their employees health-care insurance will stop getting those tax credits. It means young adults who went back on their parent’s health-care plan after the law allowed kids up to age 26 to qualify as dependents might be kicked back off. It means the rebate checks being sent out to seniors in the Medicare donut hole will stop. It means insurance plans will no longer have to cover preventive care or be barred from rescinding coverage.

It means, in other words, disruptions in the market. In all likelihood, that’ll either convince Judge Vinson or the Appeals Court above him to issue a stay on the decision so the law can go forward until some final resolution is reached. But perhaps not. My sense is the Obama administration did not expect a judge to try to strike down the whole of the law or impede its implementation. So they’re scrambling right now.

3408

“Which specific parts do you think he’s got wrong in his ruling?”

That ^^^^^ is EXACTLY what I asked him. I said I hadn’t had time to read it, sounds like he had, which parts did he disagree with. Period. End of question. Then I went back to my meeting.

If you have a hard time with someone saying they think a ruling is BS, and someone asking them which parts they think they got wrong in the ruling, too bad. If you want to read all kinds of agenda in your head into something, again, too bad.

You pulled similar shit a while ago during the HCR debate when the reconcilation workup was passed; asking folks how much they’d read while claiming you were busy working your way through it. That kind of BS is intended to do nothing but shut down discussion, and it rubs me the wrong way in the extreme.

Again, tough shit. There was a written document, and people were claiming all kinds of crap that was nowhere in there, just posting based on simplistic political bias. You wanna criticize a written and published bill or document or ruling, and you take offense when someone asks you which specific parts you object to, then all you’re telling me is your more interested in political blather than you are in actually digging in and figuring out what’s in there and what is fact and what is B.S. That rubs me the wrong way in the extreme. It’s not real hard - you can read. It’s harder than just arguing in general principals, for sure.

You didn’t jump in to object when I took Timex and others who have a different political bent than you to task for claiming stuff that isn’t in there.

So if asking people which part of something published they object to, that they claim is BS, “BS intended to do nothing but shut people down” there’s a simple solution: read what you’re objecting to and know what you’re talking about. I asked the exact same question on another political forum, in almost the exact same words, hoping to find some specific answers when I got out of my meeting, and the person gave a pretty nice reply with a number of quotes from the decision that he felt were wrong-headed. (Which, BTW, you still haven’t done, you’ve just said since he’s a Republican his ruling is obviously legally incorrect.) I didn’t agree with a couple of them, did with a couple that made me think that the Supreme Court will likely rule differently based on what he pointed out, but it led to a good, fact based discussion.

3409

Wait, when did I say that since he’s a Republican his ruling is legally incorrect? Are we like in the same thread right now?

3410

OK, that’s a good segue to allow us to get back to the actual topic (since most people, myself included, get pretty bored watching two people piss on each other with personal attacks in these threads.) My inference came from the comments:

“This ruling isn’t surprising. Justice Vinson was appointed by a Republican and he was widely expected to rule against the law. It is not a coincidence that of the fifteen or so judges who have been faced with decisions about the HCR law, the two who have ruled against it are Republican appointees.”

and

“The thing I find most interesting about this is how the politicization of our judicial system is being laid bare. Of course our judicial system has always been politicized, the idea that all judging the constitutionality of a law is just a technical exercise; that our judges are all just fair-minded appliers of a system is a fantasy.”

But, OK, you didn’t actually say the ruling was legally incorrect: you perhaps are just saying Democrat judges will rule for it, Republican judges will rule against it, who the hell knows what is the legally correct ruling and that will come from the SC (although people obviously look at them to not give a legally correct but a politically biased ruling, although there are some interesting books and writings about how the SC in the last few years has had some pretty surprising rulings that defied that thought process, and most of their rulings are 7-2, 8-1, etc.)

But back before we derailed this: I am interested in anyone who can take a look at the ruling and comment on the content. I heard a SC “expert” on NPR this past summer talk about a case in which the SC ruled 7-2 in favor of the government, and it didn’t sound like it had anything to do with the health care bill, and I need to find the story again because I cannot for the life of me remember the case. Anyway - he said that the individual writings of each justice on that case would be a good tip-off on how they might vote on the health care bill case that, he asserted, would 100% end up back in the SC. His thought process was that the case he was discussing was actually a case in which the Commerce powers were central to the ruling, and he said that would end up being what the health care ruling would be centered upon. Did anyone else hear that broadcast and remember what the other case was?

3411

I think the very concept of a “legally correct” ruling is pointless. It rests on the premise that a careful enough study of the relevant case law & the Constitution can give us the “right” answer to a particular legal question. In this case, the tasks that judges (up to and including the Supreme Court) are simply technical ones.

Of course there’s more to jurisprudence than that, because technicality doesn’t get you far enough. Especially with regards to the Constitution and especially especially with regards to the scope of the commerce clause. The Constitution is a combination of vague and impossible to understand, and for the past eighty years or so we’ve been governing this country by inflating the Commerce Clause into the world’s largest loophole. Thus, the task of the higher level judge is necessarily interpretive, and once you’re interpreting you insert all sorts of subjectivity into the process - wise Latinas and Original Intent and how well some judge’s acid reflux is doing all influence the outcome. As does (gasp!) the judge’s politics.

We’re not comfortable with that, maybe understandably, so we come up with all sorts of judicial philosophies to lend some respectability to it. But it’s not a coincidence that conservative judges tend to issue rulings conservatives like, while liberal judges issue rulings liberals like. That’s not to question the legitimacy of the rulings - if the Supreme Court decides that HCR is unconstitutional then that’s the ballgame; that ends up being the law of the land. I just think pretending that they’re doing so for anything other than political reasons is kind of silly; I actually think acknowledging this political reality might be a step in the right direction toward making things function a bit more smoothly.

This is why I end up not being very interested in legal analysis of these rulings. I’m a liberal and a quick parse of the blogs I read spits out three or four lawyers and Constitutional scholars who are critical of the Vinson ruling. I’m sure that conservatives can do the same. At the end of the day all this analysis is pointless; this thing is going to come down to how Anthony Kennedy feels about the law. Searching for the “correct” legal answer is just a shell game.

3412

I think I read something recently about a 7-2 ruling in which Scalia and Thomas offered a written dissent that was seen as a shot across the bow of HCR because the dissent offered up an ahistorically tight interpretation of the Commerce Clause. That ring a bell?

3413

That would hardly be surprising that Scalia would do that. Or that Thomas would follow along, intellectual puppy-style.

3414

It does. And the commentator said what was going go be decisive was the written opinions of the justices who went along, i.e. their comments on why the felt the Commerce loophole was applicable in that case, and whether that would be directly applicable to the health care bill.

3415

Ahh here we are.

3416

Here is some good stuff from Kevin Drum.

He brings up something that didnt occur to me - judge Vinson is supposed to be bound by higher court rulings. In this particular case he explicitly disavowed being bound by the relevant case because he claims to do so would be to give the federal government the power to do anything.

That may be the case, but apparently its not something a district court judge should consider. His job actually is somewhat technical, and from that perspective it seems there is some room to criticize his ruling.

3417

Charles Fried, President Reagan’s Solicitor General (1985-89), says that health care is constitutional.

3418

Jonathan Cohn points out that many of the critics of the individual mandate are not arguing in good faith.

To wit: Many of those claiming that the mandate is unconstitutional because it would force people to buy private insurance were in favor of privatizing social security and forcing people to buy private investments.

3419

Hah, cute.

3420

Look at this! A Republican has a criticsm of the HCR bill that goes beyond omg socialism!.