Is this guy for real? I was on the fence with regard to voter-id laws. Now I'm totally against.



This should be grounds for impeachment. It's a disgrace. And he just made sure I will go to the polls in November.

Bucky wrote:Is this guy for real? I was on the fence with regard to voter-id laws. Now I'm totally against.



This should be grounds for impeachment. It's a disgrace. And he just made sure I will go to the polls in November.

Have to admire his candor; his endorsement omitted no relevant detail of his support for the measure

Monkeyboy wrote:I hope the fucker dies a horrible death and I mean that. I can't recall ever saying that about anyone before, not even Dick Cheney.

And you complain about the current state of political discourse?

drsmooth wrote:

joe table wrote:FYI, with all the Scalia talk, I think this guy is 100% correct about what Scalia's opinion is going to look like on the ACA. It won't be the court's opinion, either a concurrence or dissent. If you get bogged down in the doctrine, skip to the 2nd to last paragraph, which I think is spot on. Scalia basically laid the groundwork for this in Raich. Obviously the writer here agrees with Scalia, as he is one of the most vocal legal academics against the ACA

http://www.volokh.com/2010/12/15/the-do ... er-clause/

With due respect to the formidable intellects of our legal fraternity, I've almost always felt "legal reasoning" was every bit the oxymoron "military intelligence" is justly famed to be.

The 'activity/inactivity' hangup the author of the linked post suspends his argument from (ok, it's actually Judge Hudson's argument, but the author is basically making book on Hudson's position) is mostly an embarrassing display of his wobbly grasp of economics. What might such a jurist make of physics? The concept of gravity would completely elude him. By his rationale, "commerce" is essentially bounded by activities pertaining to auditable merchant-customer transactions. For all practical purposes we left that notion behind sometime before Teddy Roosevelt left the White House.

Agreed to the extent that we've departed from that definition of commerce. Wickard essentially says that removing oneself from the interstate market means that you have affected interstate commerce--thus, your intrastate activity (i.e., interstate inactivity) can be regulated by Congress.

I personally think that Wickard is garbage, but I don't know how you can strike down the health care law and leave Wickard standing. It seems intellectually dishonest to me.

joe table wrote:Well it's all just a means to an end as we've all been pointing out, obviously guys like Barnett (who is undoubtedly very smart) have the goal of providing a "workable" limit of the scope of federal commerce power, and are looking to piece together doctrine to do so. They have very little favorable doctrine to work with, which is why overturning the individual mandate would not be good constitutional law

The Scalia "look what I found" idea from Raich--merging the unworkable Wickard test (which allows you to add up anything to get substantial effect on isc) within the framework of Necessary and Proper clause jurisprudence--gives them probably their best doctrinal hook to reign in CC jurisprudence. Scalia already latched on to dicta from Lopez about "activity" in his Raich concurrence, as the writer pointed out, so he basically laid his own groundwork to embrace an activity/inactivity "line." But as has been said, it's really not a strong argument given the precedents. It is somewhat creative though, especially for a guy like Scalia

The "workable" limit up to this point has been pretty clear IMO under Lopez and Morrison. Ignore Raich--that case is essentially just a Wickard extension. Lopez and Morrison drew the line in the sand when Congress tried to expand the CC power to areas that didn't even affect commercial activity. Laws like the Civil Rights Act are okay (Heart of Atlanta Motel) because they involve commercial activities (renting hotel rooms), but basing a law on arguments that the activity indirectly impacts interstate commerce (e.g., crime in schools, crimes against women) is not okay.

Obviously, the devil is in the details, but that always seemed IMO as clear of a line as you can get in Con Law cases.

Raich majority doesn't add anything to Wickard, but Scalia's Raich concurrence is somewhat novel in that it tries to bound the Wickard "substantial effects" test directly within the "necessary" prong of Necessary and Proper clause. And like Barnett said, I think it's extremely likely that Scalia uses this paradigm in his ACA opinion, and probably will find a way to distinguish Raich

The economic/non economic line for Lopez is not really workable either IMO (anything can be "economic" if you aggregate the effects of the activity being regulated, as Breyer points out in his Lopez dissent) But the takeaway from commerce clause jurisprudence is that there is no "workable" line for federal power. The Court has nearly always deferred to Congress to define the scope of its own commerce power. Which is where the slippery slope "well the government can make you buy broccoli!" arguments come in, which have never really have been that convincing to me (ie, Congress is not going to mandate purchasing left and right now against the will of the majority, since, you know, they need to get re-elected)

joe table wrote:The economic/non economic line for Lopez is not really workable either IMO (anything can be "economic" if you aggregate the effects of the activity being regulated, as Breyer points out in his Lopez dissent) But the takeaway from commerce clause jurisprudence is that there is no "workable" line for federal power. The Court has nearly always deferred to Congress to define the scope of its own commerce power. Which is where the slippery slope "well the government can make you buy broccoli!" arguments come in, which have never really have been that convincing to me (ie, Congress is not going to mandate purchasing left and right now against the will of the majority, since, you know, they need to get re-elected)

Agree to disagree on the workability point. The Lopez and Morrison courts specifically rejected your argument about aggregation of indirect effects, saying that it was still "attenuated" in both cases. I agree that the language isn't exactly a bright line rule, but what exactly would a bright line rule look like in CC cases unless you overrule Wickard/Raich and roll Congress' authority back to pre-New Deal concepts (which is something that even most conservatives wouldn't be interested in doing)?

Well personally I don't know that a bright line rule is really necessary. As I said I'm not really sold on the "slippery slope arguments"...people saying, well now Congress can basically regulate whatever they want with unlimited commerce power, should realize that this has been the case since the New Deal. There have been no judicial limits on commerce power from the New Deal until Lopez, and it didn't result in the crazy slippery slope scenarios that people are now envisioning

Now I think many people think there should be some line on the power...they hate Wickard and think that the Court allowed Congress to go too far with commerce power during the New Deal. I think many of the current (pro-federalism) justices, including Kennedy, are probably of that mind.

I think that within the Roberts court there also seems to be some support for the idea (shown most clearly in Citizens United) that there should be a constitutionally protected individual economic liberty to contract, which was espoused by the Court in the early 20th century Lochner era (and used to strike down several state laws), but loudly repudiated down right around the New Deal (West Coast Hotel). Barnett and his libertarian colleagues definitely seem to be big proponents of this, opposing the ACA on economic freedom grounds. That is what many of the academics I've talked to now are really afraid of IMO, that the Roberts court is going to bring back some form of the Lochner era

http://www.oyez.org/cases/2010-2019/2011/2011_11_400/

I don't know if anyone has listened to this or will, but Scalia honestly just comes off as an arrogant dickbag. I don't know what else to say. Everyone else does a fine job. Well, Thomas hasn't talked since Vietnam, but you get my point.

Bucky wrote:Is this guy for real? I was on the fence with regard to voter-id laws. Now I'm totally against.



This should be grounds for impeachment. It's a disgrace. And he just made sure I will go to the polls in November.

Turzai... yikes. Most of the Republicans in the house know they are totally cooked, so they are just pushing through ridiculous stuff in the last few months here.

For anyone who doesn't know, I'm currently working on a state house race here in Chester County, and it really does not look good for Republicans at all. Corbett is a huge part of that. They're going to lose a ton of ground IMHO. I wouldn't even be shocked if Trivedi beats Gerlach or Meehan loses to Badey in the House. It could get ugly around here for Republicans.

They did a far better job than the Democrats did back in 2010 of presenting arguments and explaining things, but this year looks a lot different.

CFP wrote:http://www.oyez.org/cases/2010-2019/2011/2011_11_400/

I don't know if anyone has listened to this or will, but Scalia honestly just comes off as an arrogant dickbag. I don't know what else to say. Everyone else does a fine job. Well, Thomas hasn't talked since Vietnam, but you get my point.

He definitely is a huge prick. He turned down the first offer of judgeship because he didn't want a paycut. Also he went to my school to speak a few years back and a student asked what she needed to do to get a SCOTUS clerkship and he flat out said he would never take a non-Ivy clerk.

Alright, I finished. All 120 minutes of the individual mandate argument.

After thorough listening, note-taking, and my limited knowledge of taking one con law class last fall and my eventual poly sci degree, my final prediction is 6-3 to uphold. Roberts writes. Alito, Thomas, Scalia on the opposite.

People were very excited it seems that Verrilli was crushed (and I think he was at some points) in the first hour. But listening to the last hour, I heard severe skepticism from Roberts and Kennedy in particular. In the second hour of the arguments, Scalia basically stopped talking. If it wasn't the court and was a baseball game, it really would have been the equivalent of him sitting there from the cheap seats and making dick jokes. That's what he turned into in the second half of the argument.

I saw nothing from hour one to hour two that makes me believe Scalia is going to vote for it. I didn't see anything that made me believe Alito was going to vote for it, but there were some hints. Thomas hasn't talked in five years, so we're not getting anything out of him.

I don't know how much pressure Roberts feels to come out for this because of Citizens United, but I think he is probably feeling that pressure somewhere in his brain. I could be totally wrong, but I think he feels it. And he got a lot of backlash because of that, and it's understandable as to why. I don't think he saw it coming. They aren't overturning Citizens United with this current sitting Court. Someone would have to die in the next four years and Obama would have to name a liberalish justice for that to happen. So, moving on, I saw what happened yesterday with immigration and the Montana case, and I listened to the entire mandate argument, and I don't really see the votes to strike it down.

Final prediction: 6-3 to uphold the mandate

Roberts writes the opinion
Kennedy
Breyer
Sotomayor
Kagan
Ginsburg

Alito
Thomas
Scalia

That's my story, and I'm sticking to it. There will be plenty of murkiness in the decision, but this can be a turning point for Roberts as a justice, and I think he will come out for it.

My guess would be 5-4 overturn. Roberts writes and is joined by Scalia, Alito, Thomas, Kennedy for parts of opinion, probably not opinion as whole

Scalia concurrence with his Privileges and Immunities theory distinguishing Raich

Kennedy conflicted concurrence similar to his concurring opinion in Parents Involved vs. Seattle School District

Thomas 25 word concurrence about how the Commerce Clause has swallowed enumerated powers

Epic Breyer dissent

CFP wrote:Alright, I finished. All 120 minutes of the individual mandate argument.

After thorough listening, note-taking, and my limited knowledge of taking one con law class last fall and my eventual poly sci degree, my final prediction is 6-3 to uphold. Roberts writes. Alito, Thomas, Scalia on the opposite.

People were very excited it seems that Verrilli was crushed (and I think he was at some points) in the first hour. But listening to the last hour, I heard severe skepticism from Roberts and Kennedy in particular. In the second hour of the arguments, Scalia basically stopped talking. If it wasn't the court and was a baseball game, it really would have been the equivalent of him sitting there from the cheap seats and making dick jokes. That's what he turned into in the second half of the argument.

I saw nothing from hour one to hour two that makes me believe Scalia is going to vote for it. I didn't see anything that made me believe Alito was going to vote for it, but there were some hints. Thomas hasn't talked in five years, so we're not getting anything out of him.

I don't know how much pressure Roberts feels to come out for this because of Citizens United, but I think he is probably feeling that pressure somewhere in his brain. I could be totally wrong, but I think he feels it. And he got a lot of backlash because of that, and it's understandable as to why. I don't think he saw it coming. They aren't overturning Citizens United with this current sitting Court. Someone would have to die in the next four years and Obama would have to name a liberalish justice for that to happen. So, moving on, I saw what happened yesterday with immigration and the Montana case, and I listened to the entire mandate argument, and I don't really see the votes to strike it down.

Final prediction: 6-3 to uphold the mandate

Roberts writes the opinion
Kennedy
Breyer
Sotomayor
Kagan
Ginsburg

Alito
Thomas
Scalia

That's my story, and I'm sticking to it. There will be plenty of murkiness in the decision, but this can be a turning point for Roberts as a justice, and I think he will come out for it.

CFP, you've concisely laid out my dark-horse hope. Unlike many, you & I have heard genuine curiosity in the questions roberts and kennedy contributed in oral arguments. The weak reeds on which my additional hope rests have roots in previous writings of each as well as what evidence there is of Roberts' concern for stewardship of the Court's reputation.

more of a unicorn than a dark horse, I'm afraid

I think there's a decent chance the whole thing gets upheld, but I don't get the 'Roberts voting in favor of upholding to enhance the reputation of the court' line. Polling has consistently shown a majority of the public thinks the law is unconstitutional, and the mandate in particular is an unpopular policy.

"People are stupid" "People don't understand what is unconstitutional" "People are brainwashed by Fox News"...I really don't care what the canned response is, but I don't really see where the court overturning the law leads to a crisis of legitimacy or anything like that.

This goes back to the political side of things.

I think Democrats typically do a terrible job of explaining things to people and getting people excited. I don't care about CU or money, etc. I'm just talking about the party itself. Obama did a horrendous job in explaining this to the people, and I think the polls that say "hey do you like Obamacare?-no" and "hey do you like this part of the law, this part, this part-yes" tells me a lot.

And I've heard a lot of people take the Verrilli sucks argument, etc. Man, he was blasted in that first hour. Absolutely blasted by everyone.

Then, the second hour happened. Breyer seemed to take the calm and pragmatic approach he tends to take. Scalia stopped talking. Roberts and Kennedy seemed to be very skeptical of what Clement was saying. It just seems like everyone took the Verrilli sucked approach, ran out of the courtroom, and started pounding their chest. Then nobody listened to the second hour of the argument, where things really seemed to take a sharp turn for those who think it will be struck down. I saw plenty of skepticism, particularly from Roberts and Kennedy.

Here's the return e-mail from the con law professor I had at WCU last semseter:

I don’t know how much stock to put into the Arizona immigration decision. Seems like Roberts wants to avoid an all-or-nothing decision. Since Kennedy wrote that opinion, I strongly suspect Roberts will write the health care one. The strongest thing I’ll claim is that those two will be on the same side (6-3 if the bill is upheld, 5-4 if it is struck down). I would love to crawl into Roberts’ brain on this one. If they strike down the mandate, but uphold much of the rest of the bill (the conventional wisdom as to what the middle course will be), then the insurance companies will scream bloody murder. I don’t know if Roberts cares about that or not, but he’s certainly aware of some of the contingencies.

For no other reason than sticking with what I thought before oral arguments (they WERE bad for the Obama administration, but can be way overrated), I think the bill will survive. I’d also go 6-3, but wouldn’t be stunned if Alito wrote some concurrence that mad aspects closer to 7-2 (maybe on Necessary and Proper grounds, but they may just be a pet cause of mine).

So, basically you and I agree, but I think more people are betting on the 5-4 to strike down at least the mandate.

jerseyhoya wrote:I think there's a decent chance the whole thing gets upheld, but I don't get the 'Roberts voting in favor of upholding to enhance the reputation of the court' line. Polling has consistently shown a majority of the public thinks the law is unconstitutional, and the mandate in particular is an unpopular policy.

"People are stupid" "People don't understand what is unconstitutional" "People are brainwashed by Fox News"...I really don't care what the canned response is, but I don't really see where the court overturning the law leads to a crisis of legitimacy or anything like that.

How about people don't like the mandate, but they like much of the rest of bill and it's clear that you can't split the middle by upholding the mandate and letting the rest of the bill stand. Because if that happens, you'll either eliminate private health insurance altogether because no one will want to be in that business (and who knows what happens after that) or you'll force the Republicans' hand and repeal the stuff people really do like.

This was all part of Obama's secret agenda to get us to a socialist single payer system.

TenuredVulture wrote:

jerseyhoya wrote:I think there's a decent chance the whole thing gets upheld, but I don't get the 'Roberts voting in favor of upholding to enhance the reputation of the court' line. Polling has consistently shown a majority of the public thinks the law is unconstitutional, and the mandate in particular is an unpopular policy.

"People are stupid" "People don't understand what is unconstitutional" "People are brainwashed by Fox News"...I really don't care what the canned response is, but I don't really see where the court overturning the law leads to a crisis of legitimacy or anything like that.

How about people don't like the mandate, but they like much of the rest of bill and it's clear that you can't split the middle by upholding the mandate and letting the rest of the bill stand. Because if that happens, you'll either eliminate private health insurance altogether because no one will want to be in that business (and who knows what happens after that) or you'll force the Republicans' hand and repeal the stuff people really do like.

I don't think much of that blowback will fall on the court though, even if the public gets pissed. I think it would be more likely to fall on the GOP in Congress and Romney if the public gets pissed that stuff they like is getting taken away.