jerseyhoya wrote:

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.

Based on Bush v. Gore and Citizens United, I think it's reasonable to assume that the conservatives on the court care very much about Republican electoral fortunes. So, they could provide cover for the Republicans by striking down the whole thing. I really don't see the political logic behind just striking down the mandate, so I don't think that will happen.

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.

recurrent 5-4 decisions along 'party lines' erode legitimacy, not with a bang - or a crisis' - but with a whimper. Roberts will be around a long while (unless he neglects to hew to his epilepsy regimen, the costs of which are presumably covered by his gov't supplied health benefits). Another such decision in a major case sets him firmly on a dubious path.

Reputation does not equal popularity. I'll let you work through the rest.

I'd also be surprised if they strike down just the mandate. I think 5-4 and they'll strike the whole thing. Why? because that's what the GOP wants. Then Romney and congress (regardless of political orientation) will put back the things people like that don't require the mandate.

drsmooth 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.

recurrent 5-4 decisions along 'party lines' erode legitimacy, not with a bang - or a crisis' - but with a whimper. Roberts will be around a long while (unless he neglects to hew to his epilepsy regimen, the costs of which are presumably covered by his gov't supplied health benefits). Another such decision in a major case sets him firmly on a dubious path.

Reputation does not equal popularity. I'll let you work through the rest.

Do the big decisions in major cases that don't fall along party lines, like yesterday's AZ ruling, not count?

Even if the court upholds the law, the next time a big case comes along liberals will concern troll that the court will lose legitimacy/prove itself to be a tool of GOP unless it agrees with them on whatever the important issue of the day is.

jerseyhoya wrote:

drsmooth 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.

recurrent 5-4 decisions along 'party lines' erode legitimacy, not with a bang - or a crisis' - but with a whimper. Roberts will be around a long while (unless he neglects to hew to his epilepsy regimen, the costs of which are presumably covered by his gov't supplied health benefits). Another such decision in a major case sets him firmly on a dubious path.

Reputation does not equal popularity. I'll let you work through the rest.

Do the big decisions in major cases that don't fall along party lines, like yesterday's AZ ruling, not count?

Even if the court upholds the law, the next time a big case comes along liberals will concern troll that the court will lose legitimacy/prove itself to be a tool of GOP unless it agrees with them on whatever the important issue of the day is.

Oh come off of it. The social conservatives have been doing that exact thing for years.

If Monkeyboy and Pat Robertson want to make some signs and protest the court's legitimacy, more power to them.

I'm still not buying that the Chief should make an unpopular law stand up in order to solidify the court's standing in the public's eye.

he should do it because it's completely legal, though

jerseyhoya wrote:If Monkeyboy and Pat Robertson want to make some signs and protest the court's legitimacy, more power to them.

I'm still not buying that the Chief should make an unpopular law stand up in order to solidify the court's standing in the public's eye.

I don't think he was saying that was a reason Roberts should do it, but rather a subconscious (or perhaps even conscious) motivation that might cause him to tilt more in that direction than he otherwise might have gone. I don't know if I agree with that either, but it's nowhere near the same thing as what you just said.

RichmondPhilsFan wrote:

jerseyhoya wrote:If Monkeyboy and Pat Robertson want to make some signs and protest the court's legitimacy, more power to them.

I'm still not buying that the Chief should make an unpopular law stand up in order to solidify the court's standing in the public's eye.

I don't think he was saying that was a reason Roberts should do it, but rather a subconscious (or perhaps even conscious) motivation that might cause him to tilt more in that direction than he otherwise might have gone. I don't know if I agree with that either, but it's nowhere near the same thing as what you just said.

I'm not the best at writing, and the pint glass of DayQuil I've consumed today probably isn't helping matters, but I think that was more or less what I said. I didn't interpret CFP or docsmooth as making a normative argument saying Roberts ought to support the law because it would enhance the court's reputation and that this is Important To Democracy, but rather a pragmatic one that Roberts might support the law because it would help the court's reputation.

I'm not buying the premise if the Chief's goal is to bolster the reputation of his institution that he should make an unpopular law stand up.

jerseyhoya wrote:If Monkeyboy and Pat Robertson want to make some signs and protest the court's legitimacy, more power to them.

I'm still not buying that the Chief should make an unpopular law stand up in order to solidify the court's standing in the public's eye.

Ok then, can I interest you in "upholding the arc of constitutional interpretation that's taken shape over a century of the nation's industrial development (and oh by the way global social, cultural and economic leadership) in order to demonstrate the court is not dominated by blinkered, reactionary cranks who have no conception of what century they live in?"

Is anybody curious at all to see the 6-page paper I had to write about the health care law for my class last semester? Should I post it to the board? PM? Anyone? I almost forgot I wrote it. I think fleshes things out better. Ah fuck it, I'm posting it.

The (1) (2) and (3) were questions from the prompt he gave us. I don't know where that is, or remember the questions really. I believe it had something to do with progressive argument, libertarian, and a middle ground argument.

EDIT: We must remember this was written before any oral arguments, so I have obviously changed my mind on Scalia.

To Uphold or Strike Down: The Debate over the Individual Mandate

Mandates have been a major part of recent health care reform proposals over the years, but finally, with the passage of the Affordable Care Act, a proposal turned into law. Now, the Supreme Court must decide whether or not that mandate is constitutional under law. There is an unprecedented nature to this whole situation, and now we will finally discover whether or not Congress has the right to institute a health insurance mandate. All the sides have weighed in with their opinions as to whether or not the mandate is constitutional, but it makes sense to break them down one by one to understand what each side is trying to say.
(1) The progressive argument may seem to be the most well rounded argument to uphold the individual mandate as of right now. The one thing progressives have in their back pocket is the precedent established in Wickard v. Filburn. The Commerce Clause seems to be the cleanest, least-cluttered way for progressives to get what they want in the decision from the Court. Progressives would say that the Commerce Clause has given the power to Congress to regulate interstate commerce, which includes any sort of locally based matters that affect interstate commerce. The stance has been furthered in Gonzales v. Raich. In Raich, the Supreme Court used the rational basis test to ensure that “regulation is squarely within Congress’ commerce power because production of the commodity meant for home consumption… has a substantial effect on supply and demand in the national market for that commodity”. There were numerous questions going into the Raich case centered on whether or not previous decisions in Lopez and Morrison would hold. However, those limited holdings had little effect on the Court’s decision, seemingly due to the noneconomic nature of those cases.
The progressive movement gets a large boost from Circuit Judge Sutton in the Thomas More case, when he argues that the mandate “meets the requirement of regulating activities that substantially affect interstate commerce”. Many people may not like the mandate, but it is a necessary part of the reform according to most progressives, because without a mandate people would simply wait until they are sick to purchase insurance. What Justice Sutton implies then, is that the health care bill could certainly be called bad policy, but that it is not unconstitutional in any way, shape, or form. Congress is also given the power according to Sutton because the actions of self-insured people do indeed “substantially affect interstate commerce”. Maybe the biggest blow to those wishing for the striking down of the mandate came from Justice Silberman in the Seven-Sky case. In that situation, a conservative justice was citing Wickard v. Filburn, the main case that gave so much joy to progressives in the first place.
The question of whether or not the Necessary and Proper Clause comes into play is another factor to consider. However, the laid-out progressive argument would say that Congress can regulate insurance, the health care bill regulates health insurance, and so the individual mandate works as a “necessary and proper” way to execute the health insurance rules and regulations. Those against that argument would say that if the Necessary and Proper Clause muddled together with the Commerce Clause gives too much power to the federal government to tell the American people what they should do and how they should do it. However, the plaintext of Chief Justice Marshall’s decision in McCulloch seems to support the Congress for having a broader set of powers. Any other reading of what Marshall had to say in that case would almost have to be immediately considered a form of judicial activism, and that is certainly not a popular way (for many) to go about deciding cases.
(2) While the progressives have their side of the story, there is a more libertarian argument from people like Justice Thomas or Richard Epstein that would essentially strike down the mandate as it currently is presented. Epstein would seemingly want to ignore a case like Wickard and return to his originalist beliefs and the earliest understandings of the Commerce Clause. Epstein argues that the progressive tradition continues in the areas of commerce and economic liberty for two main reasons. First, some justices figure that the progressive model is the best way to go and see no reason to go backwards. Second, some may believe that even though the earlier decisions were incorrect, stare decisis must reign as the key, deciding factor.
Epstein would say that the expansion of powers under the Commerce Clause has created a federal government that is large in size and is therefore its own worst enemy. Epstein does not expect the Court to pick apart particular pieces of the past and watch the individual mandate fall apart and bring down the bill as a whole. He indeed understands that the justices must distance themselves from Congressional debate and policy debate. He just wishes there was a way for the justices to overturn Wickard in some capacity some day, as he believes the language in that case is far from sturdy. As Epstein says, nibbling around the edges in cases like Lopez and Morrison certainly does not do enough to fix the big problems he sees with Wickard.
Indeed, Epstein is heavily invested in the belief that the “old way” was the better way to solve our nation’s problems. He saw Roosevelt’s New Deal as giving private cartels a large amount of federal power. The New Deal, Epstein argues, was some sort of corporate state that would oversee deals with unions, farmers, and other large corporations so that monopolies would be divided up. The health care debate would lend Epstein to say that the public systems of health care are clumsy, and that the private system has too much regulation. Cutting out the regulation would increase the production capacity of the entire system itself, saving money and creating a better system in the process.
Both Epstein and Thomas (Thomas, more so) would hope to use the 10th Amendment as a means for striking down the mandate. Thomas’ opinion in Raich said that the “federalist system… allows California and a growing number of other States to decide for themselves how to safeguard the health and welfare of their citizens”. Thomas will almost certainly vote to strike down the mandate on similar grounds. According to Thomas, the 10th Amendment would get in the way in the health care case of allowing states to protect their own citizens. Steve Schwinn says in his article that the 10th Amendment argument is “nothing more than an effort to rewrite the… Amendment in a libertarian image, an image that has no support in the text history, or jurisprudence of the Amendment”. Whereas some may read the Tenth Amendment as allowing for an expansion of federal powers (vagueness of the writings), Thomas takes the originalist stance that Congress cannot tell states and their citizens what to do. However, if the Comstock decision tells us anything, it’s that there is little chance Thomas gets any support from his peers in the health care debate.
(3) The question has now become: is there some sort of middle ground for the health care debate that is not as extreme as the two sides previously presented? Justice Kennedy’s writings in Comstock walk a fine line, and seem to straddle both the Commerce and Necessary and Proper Clauses so he can explain his beliefs. Kennedy will have to pick between his beliefs of enforcing limits on the federal government and accepting the post-New Deal world of regulating the economy. We have certainly seen both, but Comstock may lead us to believe he will uphold the mandate. He says that “the analysis depends not on the number of links in the congressional-power chain but on the strength of the chain”, and opens the debate about the mandate. He does caution us when he says, “that the Constitution does require the invalidation of congressional attempts to extend federal powers in some instances”. Kennedy requires a more expansive empirical evidence test, which may be one obstacle for the upholding of the mandate. That being said, he is probably the toughest vote to figure out heading into the health care debate. He has certainly left things open, and certainly stopped short of Justice Breyer in Comstock with his language in his concurrence. He does not give wide-ranging power under the rational basis test, and his standards are certainly higher than others’.
Justice Scalia’s concurrence in Raich tends to lead many to believe that he will be a surprising supporter of the mandate and indeed will vote to uphold it. In that case, Scalia said “where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce”. This was truly a broad interpretation of Congress’ powers to regulate commerce, and many believe it will be tough for him to turn back on what he said in Raich. Essentially, Scalia was making the argument that the federal government could go after people growing marijuana for home consumption because the market for illegal substances crosses state lines. If this theory were to hold, Congress would be able to impose a penalty on people for not buying health insurance because the health care market also goes across state lines.
I truly believe that the mandate will be upheld on these grounds. And, if it is not Scalia, then it will be somebody else. If Scalia were to change his mind, it would have to come on the wording of “activity” vs. “inactivity”. Scalia can easily make the case that the health care law is unique and that the Court has never seen anything like it, and inactivity would be entirely different than activity. In the Raich case, the marijuana would be on the market (activity), but in the health care law, the lack of purchasing insurance is inactivity and thusly can be ruled upon differently. Trying to read Scalia or Kennedy in this case is difficult, but based on the language that Scalia used in the Raich case, I would agree with him. Whether or not I will agree with him if he changes his mind in the battle over the ACA is an entirely different discussion.
The mandate is a slippery slope for the Court to decide, but it appears that it will be upheld. The Court has made a commitment to cases like Wickard, and decisions like Lopez and Morrison simply appear to be limiting cases that do not change the broad scope of the last 75 years or so. The broad powers given to Congress will likely continue. While the health care law may be bad policy to those who disagree with it, it is hard to see any unconstitutional language that will strike down the individual mandate or any part of the bill at all.

NY primaries tonight. The big one is Rangel is being challenged again. He's in a Latino majority district now, and being challenged by a Dominican state senator. I don't know anything about the guy, but I would have to imagine he'd improve Congress. The other one maybe to watch is an open seat in Brooklyn where this crazy fella Charles Barron is trying to win a seat.

CFP has PtKed us

Indeed I did. And I knew what I was getting into. I expected approximately 0.1% of the board to read the entire thing, maybe .5% to read about a quarter of it.

CFP wrote:Indeed I did. And I knew what I was getting into. I expected approximately 0.1% of the board to read the entire thing, maybe .5% to read about a quarter of it.

I'm on it
just had to finish watching paps bwn the prats

i am the 99%

Looks like the repugnant Barron isn't going to win. That's probably for the best but I would have enjoyed it because I'm a bad person.

Rangel is losing by a bit early, but NYS apparently counts votes via messenger pigeon so we might not know his fate for a while yet.

And as I hit post Rangel gets a huge vote dump and is up 2-1 on his guy. I imagine this will still finish close.

CFP, while the image you conjure of Justice Kennedy attempting to walk a fine line while adopting a wide (straddling) stance may not be suitable for children, I believe you've captured the nub of the ACA case in a way that any of our confreres who has been hoping for a 5-minute catchup summary to appear will applaud.

jerseyhoya wrote:Looks like the repugnant Barron isn't going to win. That's probably for the best but I would have enjoyed it because I'm a bad person.

Rangel is losing by a bit early, but NYS apparently counts votes via messenger pigeon so we might not know his fate for a while yet.

And as I hit post Rangel gets a huge vote dump and is up 2-1 on his guy. I imagine this will still finish close.

Barron's a piece of shit. His opponent, Jeffries, seems like a decent-enough mainstream Dem, and not a known moron like my rep (Clarke). He'll probably hold the seat until the end of time.

All I have to say about Rangel is that he looks ten years younger than he did ten years ago.

I don't read student papers for free. Although I'm supposed to be reviewing an article for a journal. I'll get to that on Friday I guess after I'm done with my summer classes.