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

drsmooth wrote:re: ACA, any chance the court revisits the timing issue & decides that since the 'operational' element of the mandate - the penalty - has not affected anyone - it should set that matter aside, & go ahead & rule on the rest?

it's wifty, but gives a chance to look non-activist while handing down a 'big' decision - and gives congress a wide-open chance to do something.

CFP wrote:

drsmooth wrote:re: ACA, any chance the court revisits the timing issue & decides that since the 'operational' element of the mandate - the penalty - has not affected anyone - it should set that matter aside, & go ahead & rule on the rest?

it's wifty, but gives a chance to look non-activist while handing down a 'big' decision - and gives congress a wide-open chance to do something.

This Court thus far has seemed more likely to do something like that than any other court.

Re: GPS tracking, immigration, bits and pieces they seem to want to just "send back" and say "hey go work on this and get back to us"

CFP wrote: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 #$!&@ 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.

Issa's claim that the ATF is using the Fast and Furious scandal to limit gun rights seems, to put it charitably, far-fetched. Meanwhile, Issa and other lawmakers say they want ATF to stanch the deadly tide of guns, widely implicated in the killing of 47,000 Mexicans in the drug-war violence of the past five years. But the public bludgeoning of the ATF has had the opposite effect. From 2010, when Congress began investigating, to 2011, gun seizures by Group VII and the ATF's three other groups in Phoenix dropped by more than 90%.

jerseyhoya wrote:Romney received more individual donations today than he did in the month of May

jerseyhoya wrote:Romney received more individual donations today than he did in the month of May

jerseyhoya wrote:Hey he outraised Obama in May. He's doing better now that he's the nominee.

If something like today can get the small dollar donor part of the base behind him that would be nice.

jerseyhoya wrote:Romney received more individual donations today than he did in the month of May