Courts

Clinton-Appointed Federal Judge Strikes Down Individual Mandate

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Liberal and progressive activists were pleased back in June when conservative 6th Circuit Judge Jeffrey Sutton voted to uphold the Patient Protection and Affordable Care Act's individual mandate as a lawful exercise of Congress' power "to regulate commerce…among the several states." Now conservatives and libertarians have a Sutton of their own. As Peter Suderman reported earlier, the 11th Circuit today became the first federal appellate court to strike down the individual mandate. And notably, one of the two judges who joined that majority opinion was Clinton appointee Judge Frank Hull. Party affiliation means much less than judicial philosophy, of course, but for those keeping track the cross-partisan score is now even. And since we already have an excerpt from the majority opinion, here's how dissenting Judge Stanley Marcus (also a Clinton appointee) justifies his solo vote in favor of upholding the individual mandate:

In the process of striking down the mandate, the majority has ignored many years of Commerce Clause doctrine developed by the Supreme Court. It has ignored the broad power of Congress, in the words of Chief Justice Marshall, "to prescribe the rule by which commerce is to be governed." Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 196 (1824). It has ignored the undeniable fact that Congress' commerce power has grown exponentially over the past two centuries, and is now generally accepted as having afforded Congress the authority to create rules regulating large areas of our national economy. It has ignored the Supreme Court's expansive reading of the Commerce Clause that has provided the very foundation on which Congress already extensively regulates both health insurance and health care services. And it has ignored the long-accepted instruction that we review the constitutionality of an exercise of commerce power not through the lens of formal, categorical distinctions, but rather through a pragmatic one, recognizing, as Justice Holmes put it over one hundred years ago, that "commerce among the states is not a technical legal conception, but a practical one, drawn from the course of?business." Swift & Co. v. United States, 196 U.S. 375, 398 (1905).

The approach taken by the majority has also disregarded the powerful admonitions that acts of Congress are to be examined with a heavy presumption of constitutionality, that the task at hand must be approached with caution, restraint, and great humility, and that we may not lightly conclude that an act of Congress exceeds its enumerated powers. The circumspection this task requires is underscored by recognizing, in the words of Justice Kennedy, the long and difficult "history of the judicial struggle to interpret the Commerce Clause during the transition from the economic system the Founders knew to the single, national market still emergent in our own era." United States v. Lopez, 514 U.S. 549, 568 (1995) (Kennedy, J., concurring).

ObamaCare is now one giant step closer to the Supreme Court.

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177 responses to “Clinton-Appointed Federal Judge Strikes Down Individual Mandate

  1. Sure is first in here.

  2. So the appellate courts should follow the trend of the Supreme Court, always going one step further than existing precedent?

    1. So the appellate courts should follow the trend of the Supreme Court, always going one step further than existing precedent?

      In general, unless that would contradict a live Supreme Court precedent. “We do not acknowledge, and we do not hold, that other courts should conclude our more recent cases have, by implication, overruled an earlier precedent.” Agostini v. Felton , 521 U.S. 203 (1997)

      1. My point is that his reasoning would have the court anticipate new precedent, not apply existing law.

  3. It has ignored the fact that Congress and the Court have ignored the Constitution.

    1. It has ignored the fact that Congress and the Court have ignored the Constitution.

      Which Court is that?

  4. That whole paragraph in the diessenting opinion about the decision “ignoring … the BROAD powers of Congress” is stunning! The decision doesn’t ignore those powers, it rightly identifies how over-reaching thy are! “It has ignored the undeniable fact that Congress’ commerce power has grown exponentially over the past two centuries, and is now generally accepted as having afforded Congress the authority to create rules regulating large areas of our national economy” F***ing Scary!

    1. You just don’t get it Huh?.

      Boots taste really good when you lick them. Try it sometime when they aren’t stomping on your neck.

  5. Someone tell Judge Stanley Marcus that “to prescribe the rule by which commerce is to be governed” is prescribing what items of import receive restricting or prohibiting duties. See:

    http://federalistblog.us/2011/…..regulated/

  6. the single, national market still emergent in our own era

    this ignores that I can’t buy insurance across state lines

  7. Amen PR! and this jewel: “Commerce Clause doctrine developed by the Supreme Court” So the Supreme Court was intended to “develop doctrine”??? WTF? I thought it was supposed to interpret and uphold constitutional law?!? We’ve come so far down the judicial activism road, that nobody even blinks when people say sh!# like this!

    1. That is pretty fucked up.

    2. Um, methinks you don’t understand what’s meant by doctrine. Judicial doctrine is a set of rules and principles for interpreting certain clauses of the constitution (or statutes). For example, in first amendment cases, you have such distinction as ‘prior restraint,’ ‘content-neutral,’ ‘view-point neutral,’ etc. These categories and the rules that go with them help lower court judges consistently apply the Supreme Court’s interpretation. Without them you’d have hundreds of judges deciding on their own what ‘Congress shall make no law … abridging the freedom of speech’ means.

  8. Party affiliation means much less than judicial philosophy, of course[…]

    Except in the case of the Wise Latina and the Pillsbury Dough Boy, for whom “judicial philosphy” means kowtowing to their ideological masters.

  9. Bill Clinton was a conservative. That’s why so many of us voted for Nader.

    So this means nothing compared to the Bush-appointed judge upholding the health care reform. You can’t dispute that Bush was a conservative.

    1. Well, depends on what you mean by “conservative”. If you follow the republican=conservative convention, then sure, but otherwise, I think there is room for dispute.

    2. “Bill Clinton was a conservative. That’s why so many of us voted for Nader.”

      How old are you?

      1. Old enough to know.

        1. Old enough to know that Nader was a non-factor in 92 and 96?

          1. 2000 ring a bell?

            1. So you voted for Nader over Gore because Clinton was too conservative? That’s brilliant.

              1. Gore was a conservative poppet from the same administration.

                How old are you? You don’t seem to remember 2000.

                1. POPPET PWND

                2. I’m surprised Nader is liberal enough for mustard…

            2. So you’re saying you chose Nader over Clinton in 2000? Im pretty sure Nader got alot more votes than Clinton in that election…

            3. Nader was irrelevant in 2000.

    3. I gave Nader’s campaign ten bucks one time… just so they could steal votes from Democrats.

    4. “You can’t dispute that Bush was a conservative.”

      Define “conservative”.

      1. Define “conservative”.

        Donut hole prescription drug entitlement.

        Tax on imported steel

        4.4 trillion in debt

        2 nations to build

        Nationalized “no child left behind” K -12 education.

        A new multi-billion dollar federal homeland security police force.

        More pages of new regulations then any other president before him.

        can cut taxes like JFK and create deficits like FDR.

        Note: I like both Bush’s and JFK’s tax cuts.

        1. Check, check and check.
          Mustard swears that’s “conservative”.

    5. Bush governed to the left of Clinton. Both were reasonably socially conservative, but Bush spent more.

      I suppose you can call Clinton a conservative, but if so I can equally well call Bush a liberal.

      1. Being to the left of a conservative doesn’t make you liberal.

        1. Maybe, but you’ve shown me that being on the idiot side of moron makes you an imbecile.

        2. Being to the right of a socialist doesn’t make you a conservative.

    6. The same George Bush that never vetoed a spending bill?

      Also, the Bush appointee actually thought the individual mandae was largely unconstitutional, but constitutional in some cases, and that those cases should be determined on a case by case basis. Thats the only reason he upheld it.

  10. In the process of striking down the mandate Dredd Scott, the majority has ignored many years of Commerce Clause citizenship doctrine developed by the Supreme Court.

    Stare Decisis rulez!

    1. Can I get an AMEN!

    2. In the process of striking down the mandate Dredd Scott, the majority has ignored many years of Commerce Clause citizenship doctrine developed by the Supreme Court.

      How was Dred Scott struck down?

      1. How was Dred Scott struck down?

        You lost me. Are you saying that blacks still cannot become citizens of the United States or are you arguing that the Slaughter-House cases never really addressed the issue? Neither of which has anything to do with my point. Who gives a fuck what SCOTUS ruled. Shitty ruling is still shitty.

  11. Of course the majority didn’t ascribe to some of the more goofy theories found among the commentariat here (that the clause only applies to “States”; that there is no inter-state commerce in health care/insurance; etc). It doesn’t even seem to place that much on the whole action/inaction distinction (except to counter the aggregate doctrine). Instead, it leaves textual waters invoking concerns about how accepting the mandate would undermine the ‘overall structure’ (spirit?) of the Constitution: “We have not found any generally applicable, judicially enforceable limiting principle that would permit us to uphold the mandate without obliterating the boundaries inherent in the system of enumerated congressional powers.”

    1. MNG wouldn’t be that blunt with his shit, I think. Nice spoof, but not good enough.

      B+

    2. there is no inter-state commerce in health care/insurance

      Of course, there is vanishingly little interstate commerce in health care (defining interstate commerce without the “aggregate indirect” test adopted in 1942, anyway).

      Not much of the commerce in health insurance crosses state lines either.

      I would have no problem, Constitutionally-speaking, with the feds regulating health care and insurance that actually crossed state lines. But that ain’t what this law does, nosireebob.

  12. correct me if i’m wrong, but who gave the scotus the power to decide the constitutionality of something? didnt they get to that through their own decisions, and not the actual constitution?

    1. I believe you are right. Marburry v. Madison I think it was.

      In any case, while that power is not explicitly described in the constitution, it seems proper to me that the supreme court of the land would be able to rule lesser laws invalid based on the supreme law of the land.

    2. You’re right, and this has been the source of much friction between SCOTUS and the other two branches. SCOTUS has no means of enforcing its decisions. All it can do is DECLARE that something is unconstitutional; it is up to Congress and the Executive to HONOR that decision and act in ways that are consistent with it. “Judicial Review” isn’t then so much a “power” as it is a chore, with which the Supremes have tasked themselves. They ARE the highest judicial authority in the country, so no other court has superior standing to decide such questions. But are Congress and the Executive bound to respect or carry out their orders? That’s one very tricky question.

      1. But are Congress and the Executive bound to respect or carry out their orders?

        Its tricky, yes, but at a high level its hard to see how a government of laws, not men, can disregard court decisions.

        1. Yeah imagine arresting someone for not paying the Obamacare tax then bringing him to a judge to prosecute after SCOTUS declared it unconstitutional.

          The judge would throw the case out of court then the police would have to keep the guy in jail against a court order.

          Pretty sure that would end the US as we know it.

        2. Andrew Jackson shits on SCOTUS

      2. Well that’s true with respect to any judicial power, not just constitutional review. A judge might order a criminal sentenced to 1 year, but if the executive decided to keep the guy in for 20, there isn’t too much a judge can do if the executive is willing to ignore court orders, habeas, etc. Of course, if that’s what the executive plans to do, we’re living in a dictatorship.

        1. Well that’s true with respect to any judicial power, not just constitutional review. A judge might order a criminal sentenced to 1 year, but if the executive decided to keep the guy in for 20, there isn’t too much a judge can do if the executive is willing to ignore court orders, habeas, etc. Of course, if that’s what the executive plans to do, we’re living in a dictatorship.

          If that is the case, it would be time to learn how to mix ammonium nitrate and fuel oil…

          1. 94 : 6

      3. Leaving aside constitutional crises, despite Marbury v. Madison, there’s little question that each branch has an independent ability and duty to determine the constitutionality of any law or government action. A president can veto a law or refuse to enforce it. The Congress can repeal a law, impeach a president or judge who acts unconstitutionally, etc.

        1. Judicial overview…

          1. Is not much fun…

            1. But we won’t rest…

              1. Until it’s done…

                1. BURMA SHAVE!

                  1. C’mon, you know the real Obama would say:

                    MYANMAR SHAVE!

                    1. +1

  13. The (subsequent to the excerpt above) paragraph from the dissent is spot on imo:

    “the rationale embodied in the Court’s Commerce Clause decisions over more than 75 years makes clear that this legislation falls within Congress’ interstate commerce power. These decisions instruct us to ask whether the target of the regulation is economic in nature and whether Congress had a rational basis to conclude that the regulated conduct has a substantial effect on interstate commerce.

    It cannot be denied that Congress has promulgated a rule by which to comprehensively regulate the timing and means of payment for the virtually inevitable consumption of health care services. Nor can it be denied that the consumption of health care services by the uninsured has a very substantial impact on interstate commerce ? the shifting of substantial costs from those who do not pay to those who do and to the providers who offer care.”

    1. Nor can it be denied that the consumption of health care services by the uninsured has a very substantial impact on interstate commerce

      Citation please?

      1. But, of course, consumption of health care services by the uninsured is not regulated by this bill. Whether or not it affects interstate commerce is irrelevant.

        This law regulates whether or not you are insured, not whether or now you consume health care if you are uninsured.

        Those are very different. Regulating the latter would require, oh, I dunno, barring the uninsured from any healthcare they couldn’t pay cash for, or putting the equivalent of a tax lien on their property to cover their health care bills.

    2. So, if I understand, the “conduct” being regulated is NOT buying insurance.

      1. In a crude manner, everything you do and don’t do “affects interstate commerce”. MNG would claim, that the founders had this huge struggle and crafted this perfectly balanced federal system only to completely undermine the entire thing with a limitless commerce clause.

        1. That’s why ObamaCare isn’t some huge and novel departure from Commerce Clause jurisprudence. It is really no more than the logical extension of Commerce Clause power under that jurisprudence.

          I don’t think there are lay-down winning arguments for overturning it that don’t also attack the roots of modern Commerce Clause cases. I am profoundly unimpressed by the lead argument, that the Commerce Clause gives no authority to regulate inactivity.

          After all, there are tens of thousands of pages of the Federal Register that regulate “inactivity” by forcing you to buy and do things that you would not otherwise buy and do. And that’s all that ObamaCare does.

          1. If there are 10s of thousands that regulate inactivity, list for the good people here, an inconsequential number of those pages or regulation demands, say like 50 of them.

    3. Conduct: the act, manner, or process of carrying on.

      Hey, you kids! Stop that carrying on of not buying insurance or I’ll call the cops!

    4. Why are only the past 75 years relevant, but not the preceding 160 years of jurisprudence?

      Them some mighty fine cherries you picked there, judge.

    5. The great part of this decision is that both the deciding opinion and the dissent are correct. Yes, precedent practically dictates that Congress has unlimited powers over items that one can (almost arbitrarily) classify as “economic”. And yes, the end-game of such a train of logic is that there is no such thing as enumerated powers.

      It’s just like O’Connor and Kelo, when she said “oh shit, look at the slippery slope my prior precedent led to.”

      Frankly, I hope this gets overturned by SCOTUS. The whole “economic substantial effects” boundary is absurd. Let’s stop pussy-footing around and give Congress unlimited authority. Then either the sheeple will wake up and call a Constitutional Convention or I can finally move to Canuckistan without leaving a freer country.

    6. “It cannot be denied that Congress has promulgated a rule by which to comprehensively regulate the timing and means of payment for the virtually inevitable consumption of health care services.’

      So the fuck what? People inevitably need food and shelter too. The Constitution nonetheless grants the government no power to force them to buy either commodity on command.

    7. Re: MNG,

      It cannot be denied that Congress has promulgated a rule by which to comprehensively regulate the timing and means of payment for the virtually inevitable consumption of health care services.

      Nothing is inevitable except death. There are people that live and die without visiting a single doctor – why make them pay?

      Nor can it be denied that the consumption of health care services by the uninsured has a very substantial impact on interstate commerce

      ANYTHING you do has an impact on interstate commerce, even being born. This is arguing a non-issue.

  14. Marcus’ sop to Kennedy is worrisome. I hope Kennedy says, that “the long and difficult ‘history of the judicial struggle to interpret the Commerce Clause during the transition from the economic system the Founders knew to the single, national market still emergent in our own era,'” does not mean, the struggle to obliterate the limitation of Congress’ power.

    1. Personally, I can’t stand the fact that this guy Kennedy has so much damn power, given that he has absolutely no accountability to anyone whatsoever.

      Maybe and hopefully he’ll do the right thing here. But I sure wouldn’t want to bet my life on it given his history. I say it’s a coin flip as to which way he goes.

      1. Exactly my point. It will be fingernail biting time for many months.

  15. Referring to the dissenting language, I seem to recall similar complaints by dissenters when Appellate Courts began upholding the individual right to keep and bear arms. I am hopeful that the pattern will continue and that we ultimately see an adjustment of Commerce Clause interpretation toward plain English and common sense. In particular, Wickard and Raich must be overturned. I hope I live so long as to see it.

  16. Worth noting that SCOTUS is much less bound by the “presumption of constitutionality” and historical precedent than lower courts are.

    SCOTUS is free to overturn it’s previous rulings, lower courts are not.

    Plus, Congress has developed an increasing habit of passing bad laws for political show and assuming that they will be struck down.

    1. You know, screw unconstitutional precedent.

      1. That seems to be your answer to a lot of unpleasant realities these days.

        1. So if people in government successfully usurp power clearly not granted to them in the Constitution, I’m supposed to lie supine and accept it? Um, no.

          1. Saying “screw it” has the same effect, ie, none.

            You must turn the force of the usurper back against him if you wish to be complete.

            1. Oh, sure, what I say here makes no difference. All I can really do is fight the decay of our system the best I can.

              1. Actually, just saying screw it can make a difference at the personal level.

                But you have to be willing to pay the price.

                1. I hate Thoreau.

                  Why can’t disobedience against government violence be violent?

                  Why can’t I try to get away with it?

                  If an action by the government is unjust why should my defense against it be just?

                  Everything he claims is completely against what the American Revolution actaully did.

                  Fuck Thoreau.

                  1. Because people often forget that government is violence. By standing your ground without offering violence, and suffering violence in return, you remind them that every law is eventually enforced at the point of a gun (or sometimes with a baton or taser, for variety’s sake). Once they remember this, they may question whether the cost (brutality) is worth the benefit.

                    Really, engaging in violence by yourself isn’t likely to lead to anything worthwhile. At worst, you may scare otherwise sympathetic people away from your cause or at least convince them that they must remain silent so as not appear of the same mind as the crazy killer. Civil disobedience is about gaining public sympathy for your cause — then, if it does come down to violence, you might have the numbers necessary to win.

      2. I cannot agree more.

        stare decisis is complete bullshit.

        I can understand why a judge would not want to recreate the wheel…i have no problem with that part of it…

        But holding onto fucked up decisions that completely ignore what the the actual text says simply because some scotus made it 50 years ago is wrong.

        Each court decision, especially at the scotus level, should be based on what the constitution says alone irregardless of what past courts have decided…if they want to go back and borrow some verbiage that is fine, but anything more then that is bullshit.

    2. And the Executive has done similarly, signing laws along with “signing statements” that express doubt about the constitutionality of one or more provisions, apparently content with letting the matter be sorted out in the courts.

      I have always felt that any President who signs a bill, the constitutionality of which he doubts even a little bit, ought to be impeached for violating the oath to preserve, protect, and defend the Constitution. If that President is so foolish as to include a signing statement describing his constitutional doubts or objections, then the Congress should seize on it as the substantiating evidence for Article of Impeachment #1.

      Too bad that members of Congress cannot be removed for the corresponding misbehavior.

      Something that voters really need to know well, before voting for a candidate, is his or her level of understanding of and respect for the Constitution. The point is that we want to put people in office who feel it is their job to UPHOLD the Constitution, not cleverly side-step or bluntly ignore its clear restrictions of federal scope and power. If someone wants change, then at least pursue it through the prescribed Amendment process, and not through glib and disingenuous re-interpretation.

      1. That’s exactly what I thought when Bush signed an act saying right then, “Well, of course, this is unconstitutional.” You swore an oath not to violate the Constitution, so it was your fucking duty to veto an unconstitutional law. Ye gods.

        1. Feingold and I think you are full of it.

          1. Thanks. It’s hard to keep track of all of the facially unconstitutional laws.

    3. “Congress has developed an increasing habit of passing bad laws for political show and assuming that they will be struck down”

      Congress critters don’t read the laws they vote on. Requiring both reading and examining potential laws as to their constitutionality is just too much work. Take your slave master attitude and go away.

      1. ditto state legislatures.

        or mebbe not even being smart enough to realize in some cases they are passing an unconstitutional law.

        remember,legislators have absolute immunity when passing unconstitutional laws.

        iow, little disincentive.

        they actually have an incentive to pass an unconstitutional but popular law.

  17. You know, if you forget that he voted to uphold it, his whole dissent is actually great. I wish they would constantly ignore long precedent of expanding power.

    1. Yes, I would love it if the decision were prefaced by:
      “Congress’s power under the Commerce Clause has grown exponentially over the past two centuries…. This is an unsustainable and unacceptable violation of the rule of law, and now it is time for it to stop.”

  18. Two things to think about:

    (1) I don’t think the Supremes can get around taking this case next session, which means that their opinion will drop in the middle of the campaign season.

    (2) Everyone thinks SCOTUS will split 5-4. And it goes without saying that Kagan will vote to uphold the statute. If the Court were to split 4-4, the individual mandate would be stricken down. That means Kagan will be the deciding vote, even though she probably shouldn’t be on the case at all.

    1. A deadlock would only strike it down in the region covered by the 11th circuit. Other circuits have upheld it, and their rulings can’t be reversed by a coequal circuit’s ruling.

      1. Yeah, but there’s no political way that mandated coverage could survive for only a percentage of the country.

        1. I agree. Pretty hard to operate without fifty states covered by the law.

    2. Why would Kagan be the deciding vote? Kennedy is the potential swing. If it lines up ideologically you’d have:
      Uphold: Sotomayor, Breyer, Ginsburg, Kagan
      Strike-down: Roberts, Scalia, Thomas, Alito

      1. If Kennedy lines up with the other liberals then it would be 4-4 without Kagan.

      2. What Tulpa said. If ObamaCare is upheld, it will most likely be because Kagan voted for it. Without her, it falls either on a 4-4 vote (Kennedy votes to uphold) or on a 5-3 vote (Kennedy votes to overturn).

        Of course, we have plenty of squishy Total State language from other justices on the Commerce Clause, so one of the “conservative” justices could throw this off.

        And I don’t think she should be on the panel at all.

        1. huh? I could just as easily say:
          “If ObamaCare is upheld, it will most likely be because Ginsburg voted for it. Without her, it falls either on a 4-4 vote (Kennedy votes to uphold) or on a 5-3 vote (Kennedy votes to overturn).”

          As a matter of numbers, the vote of each justice matters. But the justice most likely to go either way is Kennedy. Is there really any chance that Kagan is going to sit it out?

          1. I think the idea is that Kagan might recuse herself because she’s an Obama apointee.

            I’m not sure why that would be required, though. Never heard that Supreme COurt justices were supposed to not vote on any law originating from the President who appointed them.

            1. It’s not because she was appointed by Obama. For instance, if Obama had appointed Bill Clinton, Clinton wasn’t a member of his administration and likely wouldn’t have to recuse himself from any case that he wasn’t personally involved in.

              Kagan, however, is a much different situation. She was solicitor general, which means that she was involved in arguing cases and in legal decision-making on a whole host of issues for this administration. She’s already recused herself from a number of cases.

              During her confirmation hearings, she tried to make it sound like she wasn’t consulted on the healthcare reform bills, but that’s almost entirely unbelievable, so she’ll be opening up a door she likely doesn’t want to open if she fails to sit this one out.

              1. Obamacare was signed March 23, 2010. The first lawsuit was March 24. Stevens announced his retirement on April 9, 2010. She was nominated on May 10, 2010. It’s tight, but given these were just district court cases at that point, the smart money was that they were frivolous, she was clearly on the short-list for SCOTUS, it’s possible she wasn’t consulted.

                1. Oh, I think the administration was well aware that the mandate was, even from their anything-goes perspective, likely to face constitutional challenge.

                  1. Sure, but one that would go the Supreme Court? She was the Solicitor General. That SG doesn’t get involved unless a case is headed to the Supreme Court.

                  2. We still haven’t read the bill.

                  3. We still haven’t read the bill.

            2. she’ll be opening up a door she likely doesn’t want to open if she fails to sit this one out.

              Its entirely possible that we will have a Republican House and Senate after the 2012 elections. If there is evidence that Kagan was involved with ObamaCare at any level, impeachment is an option if she participates in the case.
              Article III, Section 1 states that judges of Article III courts shall hold their offices “during good behavior.” Violating the judicial code of ethics would strike me as impeachable under that standard.

              1. Ok, I see your point. So say she sits it out, and Kennedy goes with the libs. That means the decisions below stand. We have a split now between at least two circuits. So the mandate is out in one area and in in another. Since we have state AG’s as plaintiffs in this 6th circuit case, the implications are even more confusing. I don’t know how the mandate stands if that happens. It seems to me that if Kagan sits it out, then it falls unless a conservative (Scalia, Thomas, Alito, or Roberts) votes to uphold.

              2. If there is evidence that Kagan was involved with ObamaCare at any level, impeachment is an option if she participates in the case.

                Speaking of doors one doesn’t want to open…

                And of course the GOP won’t have the 2/3 majority required for removal.

                1. Actually, it’s been a while since there’s been a brazen conflict, but the other justices may push a justice to resign if they think there’s an ethics problem. If she’s lying about her involvement, others will know and may speak. Not good.

                  1. The funny thing is that, beyond formalities, it’s really irrelevant whether she was involved with preparing defense of Obamacare. The whole point of COI recusals is to prevent a judge’s decision from being a foregone conclusion. Sotomayor, Breyer, and Ginsburg definitely have no conflict of interest but we already know they’ll vote for constitutionality, so that reasoning doesn’t really apply.

                2. Tulpa,

                  Yes. i think it’s a bit silly to assume that “obviously” Kagan has vto sit it out, on the grounds that the Republicans will be so blasted powerful that they’ll make political hay out of it.

                  If they do, it’ll just be another element in the Democrats list of terroristic, bullying, irrational, fanatical examples of how crazy the GOP has gotten lately.

                  It’s not really like everyone is ultra senstivive and careful to avoid offending Republican sentiment these days.

            3. I believe the issue is not that she was appointed by Obama, but that during her time in the administration she had a hand in crafting the actual legislation in question. That’s where the conflict arises.

          2. Exactly. I focus on Kagan because she probably shouldn’t be on the panel at all.

            And not because she’s an Obama appointee. Its because she was his Solicitor General when this was being debated, and its highly likely she was consulted on Constitutional issues. If she was consulted or had anything to do with a Constitutional challenge after it was filed, she shouldn’t be on the panel.

            Her nomination was approved in August of last year, BTW. Challenges were being filed as early as March of last year. The odds, I think, are quite slim that she had nothing to do with either advising the President before passage or the challenges filed after passage.

            1. First, dude!

              1. You try typing with a Scotch in one hand a cigar in the other.

                1. I glued my monocle to my face–makes typing easier without it falling out all the time.

            2. I’m certain she sat out deliberation once she got the nomination.

              1. I’m sure she’ll say that.

            3. Nobody is going to give a shit.
              If the Republican made an issue of it, the Democrats would just say they were being crazy, intransigent fanatics, and talk about how horrid it would be if SCOTUS handed down a 4-4 ruling.

  19. RC: If they successfully petition the Eleventh Circuit for an En Banc rehearing, would that allow the Supremes to defer this case until after the 2012 election?

    1. I believe there’s already a cert petition from the other case. SCOTUS can grant that petition whenever it wants to. Or it can decide to never review that case or any of the cases.

    2. Probably not. The split will likely continue, and the more likely ruling in the other circuits will be to strike down the mandate or the whole law.

      1. Assuming these cases keep coming, and that’s a could assumption. As someone just noted, the SCOTUS can pick this up whenever it wants.

        1. A good assumption. And damn threaded comments, anyway.

    3. Depends on how long the en banc panel takes to hand down its ruling.

      Theoretically, the Circuit could go en banc, and then sit on the case for a year. But, seeing as the Circuit expedited this decision (and I mean REALLY expedited), I still think its up for next year, regardless.

    4. adam is right. The Court could take the other case, or no case.

      But this is universally regarded as the leading case, so I think they’ll take this one.

      1. When the split is happening all at one time, they often grant cert on multiple cases and review them together.

  20. Steven Landsburg explains better than I could why it’s hard to give a shit about the courts.

    Don’t get me wrong. I oppose every one of those mandates. But not as vehemently as I oppose a legal system that pretends to have some basis in logic when it is in fact nothing but a bunch of laughably arbitrary decisions based on random and meaningless distinctions that lawyers keep creating so that lawyers can “earn” a living maintaining and interpreting them. The law is an ass, and it deserves a good kicking.

    1. if you think that blog post makes any sense, then you have no hope.

      1. lol ur a moran

        1. adam, your fig leaf slipped

  21. Sigh.

    If only we could be more like China and get the GREAT THINGS done without all these inefficient and messy constraints on government power.

    1. Sigh.

      Me too!

      1. Barak, you are just so dreamy!

        Can I get in the express line to polish your knob?

        1. I polished up that knob so carefullee,

          That now I am the Ruler of the Queen’s Navee!

  22. The approach taken by the majority has also disregarded the powerful admonitions that acts of Congress are to be examined with a heavy presumption of constitutionality

    Wait, what?

    1. Think Kelo. A large part of the reasoning behind that decision was a presumption of Constitutionality. “Oh, well they said it was Public Use, so we have to accept that, unless they really really really really weren’t accurate in their application of the terminology.”

    2. It’s how we got to where we are–by the branches employing deference when they should be beating each other with sticks.

        1. Like lawyers, we have professional courtesy

  23. “It has ignored the undeniable fact that Congress’ commerce power has grown exponentially over the past two centuries,”

    No it has not, you unspeakable hack. The Commerce Clause has never been amended, and is the same today as it was when ratified.

    1. But it’s like a hundred years old and shit.

  24. So, there I was, taking a little break and flipping through the channels a while ago; I was wondering what manner of madness the crowds were up to.

    On MSNBC, they were blabbering excitedly about the “debate” in Iowa, and they had a Democratic Strategist named (I shit you not) Krystal Ball.

    I kept waiting for her to rise from her chair and do the bubble dance.

    1. Was she a psychic or a stripper? Or both?

    2. She’s the chick who bombed out of a congressional race because of racy, fake-penis infested photos that surfaced.

      That said, easy on the eyes, she is.

  25. I think she’s probably both.

    Hopefully, she does a nekkid seance* in the Champagne Room.

    *If ya hazta ask, youse cannot affords it.

  26. The approach taken by the majority has also disregarded the powerful admonitions that acts of Congress are to be examined with a heavy presumption of constitutionality, that the task at hand must be approached with caution, restraint, and great humility, and that we may not lightly conclude that an act of Congress exceeds its enumerated powers.

    Courts would like you to think that there is something mystical about reading. Jesus fucking christ.m Oh, and where does this presumption of constitutionality come in? Hey, you judge, come over and presume to suck my cock.

  27. WaPo weeps.

    In our judgment, the individual mandate is an unprecedented but reasonable ? and constitutional ? intrusion on individual decision-making. Lawmakers correctly decided that permitting some people to choose to go without insurance would make it impossible to effectuate the law’s requirement that insurance be offered to all without reference to preexisting conditions.

    Young healthy people must be made to subsidize the sick and the aged. For fairness’ sake.

    1. Young healthy people who may not live to be old must subsidize people who used to be young and healthy and survived.

    2. “the individual mandate is an unprecedented but reasonable ? and constitutional ? intrusion on individual decision-making”

      Fuck you, WaPo.

      1. WaPo, do you realize that ‘intrusion on individual decision-making’ is the very definition of a dictatorship?

    3. Because the young healthy people will become sick and aged one day themselves…More to the point, it’s the common idea of spreading the costs around found in many programs like workman’s comp (the many, healthy, non-injured workers subsidizing care for the few crippled, injured ones).

      Nothing could be more fair. Your idea of “fairness” is to let the vicissitudes of fate strike down what it will and they should “deal” with it. Yeah, that’s fair.

      1. “Your idea of “fairness” is to let the vicissitudes of fate strike down what it will and they should “deal” with it. Yeah, that’s fair.”

        It certainly is.

        You aren’t the least bit capable of proving the case is otherwise.

  28. Speaking of being able to foretell the future…

    As the dissenting judge, Stanley Marcus, argued, “Congress rationally found that the uninsured’s inevitable, substantial, and often uncompensated consumption of health-care services .?.?. in and of itself substantially affects the national economy. Moreover, this case does not open the floodgates to an unbounded Commerce Clause power because the particular factual circumstances are truly unique.”

    Congress:

    sees all

    knows all.

    1. Today I learned that Stanley Marcus is not fit to practice law in a constitutional republic, owing to his contempt for the idea of limited powers.

      -jcr

    2. Er, the idea that Congress should be the judge of the wisdom of the policy choices granted it under the Constitution is a hard one for you to get, eh P?

      What’s funny is that I imagine when you hang around your conservative fellows you style yourselves as opponents of judicial activism.

      1. This isn’t about the wisdom of those choices, it’s about their legality. The courts have the task of restricting congressional power to those powers granted to it by the Constitution.

      2. Those choices AREN’T granted to Congress under the Constitution.

  29. I don’t know how I let this one get by me. He must have pretended to be a leftard at some point, or I wouldn’t have appointed him.

    Oh, shit. Hillary’s going to beat my ass for this.

  30. I am guessing they are ALL bought and paid for lol.

    http://www.anon-vpn.it.tc

  31. “John|8.12.11 @ 4:23PM|#
    Nor can it be denied that the consumption of health care services by the uninsured has a very substantial impact on interstate commerce

    Citation please?”

    This is like a stand-up comedy routine. Because health care insurance costs don’t weigh heavily on the many companies that engage in interstate commerce (substantially impacting them)! But more to the point:
    HEALTH INSURANCE IN THE US IS INTERSTATE COMMERCE.
    Jesus Christ I hate to use all caps but this idea that it is not is too goofy to keep debating. Notice that none of the rulings against Obamacare has even SUGGESTED that it is not. It’s a terrible argument. Aetna is most certainly an interstate entity engaged in interstate commerce; they cover people in myriad states, have offices in myriad states, their customers in myriad states can call regional and national claims centers. Under the law the product they sell must be tailored within each state but that doesn’t mean they are not an interstate entity engaged in interstate commerce.

    The SCOTUS has, rightly, long ago rejected the silly idea that interstate commerce only applies to the mere moment some product crosses state lines. By that “logic” when the NY Yankees play the Boston Red Sox as part of a national baseball league game it is not interstate commerce, since every game occurs entirely only in one state!

    1. Jesus tap dancing christ you are dumb MNG. The mandate, indeed the whole damn bill is not about health care it is about health insurance. Last time i checked, I have to buy coverage from a company in my state. This would seem to negate any “interstate commerce” Bullshit you are trying to pull out of your ass. Congress does not have the right to tell anyone they HAVE to buy something. How hard is that fucking concept to get.

      1. The “company in your state” is usually part of a larger, national company. Many of the services you get from that “company in your state” are provided for outside of the state (claims centers, customer service centers, etc).

        1. So if I buy my insurance from a company based only in my state, then the law doesn’t apply to me?

        2. You’re aware they’re setup as completely “separate” subsidiaries or else they would not be able to sell policies right?

    2. Oh and if you want to go down that fucking road then from now on everyone has to buy locally grown organic food because if you aren’t living a healthy, organic lifestyle then you are affecting the interstate commerce of healthcare.

      1. You’re conflating the substantial effects argument with the proposed activity/inactivity distinction. Why does this not surprise me?

  32. And just because insurance “weighs heavily” on companies engaged in interstate commerce doesn’t mean tha insurance itself is interstate.

    1. I guess you didn’t pay attention to what I was answering with that…

  33. “The SCOTUS has, rightly, long ago rejected the silly idea that interstate commerce only applies to the mere moment some product crosses state lines”

    No, the Supreme Court wrongly ingnored the explicit, exact langauge of the Commerce Clause that allows absolutely nothing other than that.

    ” By that “logic” when the NY Yankees play the Boston Red Sox as part of a national baseball league game it is not interstate commerce, since every game occurs entirely only in one state!”

    And that is perfect logic because that baseball game isn’t “interstate commerce”.

    In point of fact, the purpose of the interstate commerce clause was to keep the states themselves from enacting barriers to the free flow of commerce. It’s purpose was not to enable the federal government to stick it’s nose into every aspect of existence in the country by claiming it “has an effect” on commerce.

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