Obamacare down to the wire

As the Supreme Court’s ruling on the constitutionality of Obamacare approaches, the NYT today has an article about how many supporters of ACA were slow to realize the dangers of a constitutional challenge.

It was to be expected that Obama would express public confidence in the constitutionality of the law, and of course we all remember Nancy Pelosi’s now potentially embarrassing dismissal – “Are you serious?” – of a reporter who dared to question her on the constitutional legitimacy of the law she had just passed. At the time I simply assumed that this was natural political bluster. But it seems that a great many Dems did indeed view the idea that forcing people to purchase a private, commercial product simply because they happen to exist might be beyond the legitimate power of the government to be beyond the pale.

“It led to some people taking it too lightly,” said a Congressional lawyer who like others involved in drafting the law declined to be identified before the ruling. “It shouldn’t strike anybody as a close call,” the lawyer added, but “given where we are now, do I wish we had focused even more on this? I guess I would say yes.”

How could they have been so wrong about this? It is one thing to be able to craft, out of Supreme Court precedent and a manipulation of language, a legitimate-sounding argument supporting the constitutionality of a power that had never been exercised before in the history of the US. But it is quite another to imagine that no reasonable counter argument could possibly exist or be forwarded. I don’t know which way the Supremes will ultimately vote on this, but it is clear now that it has been a reasonably close call, whichever way it goes.

How could experienced lawyers and constitutional scholars have thought – actually still think – that the constitutionality of a heretofore unexercised power which relies on the counterintuitive (some might even say perverse) definition of the absence of activity as the presence of activity, was an obvious and certain constitutional lock? Is it an example of widespread wishful thinking? The results of an academic liberal echo chamber? A mass delusion? I really don’t get it.

93 Responses

  1. Seeing as the individual mandate was an invention of the Heritage Foundation, an organization not known for taking constitutional liberties, the blindsiding is understandable. This concept was touted by conservatives for over a decade without any qualms. The constitutionality was never questioned before it became in danger of being implemented by Democrats.

    What was unprecedented was the willingness of the conservative court to parrot talk radio talking points to invent distinctions such as non-commerce out of whole cloth. How Medicare can be constitutional but an individual mandate which has escape hatches and alternatives isn’t is just baffling.

    The bottom line is that conservatives have been opposed to any sort of universal coverage for decades and will invent any rationale to oppose it.

    As a thought experiment, nobody questions the ability of states to institute an individual mandate since Massachusetts did just that. What would be the constitutional issue if Congress made the supply of Medicaid funds contingent upon the state imposing an individual mandate?

    And to pre-empt any questions, the Commerce Clause is infinitely elastic.

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  2. I suspect that they viewed it as a natural extension of the pretty much limitless expansion of the Commerce Clause that was ushered in by Wickard v Filburn, which it is. If they do over turn it, it will be interesting to see how the reconcile that with presumably still allowing Wickard to stand.

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  3. The other issue was the Obama administration going to extreme lengths to argue that the mandate wasn’t a tax. Had they simply made the straightforward argument that it’s a tax on people without insurance, they probably would have been on firmer ground.

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  4. One last note:

    If the law is overturned, it won’t be because solicitor general Donald B. Verrilli Jr., “momentarily choked on a drink of water” during oral arguments.

    “Donald B. Verrilli Jr., who became solicitor general last June, rehearsed in multiple moot court sessions. But on the critical day of Supreme Court arguments on March 27, he momentarily choked on a drink of water and was hammered by justices skeptical of his argument. He gave a rambling answer about the limits of Congressional power and had a hard time controlling the discussion as he was peppered with questions. Commentators gave him harsh reviews, but Mr. Obama called him to show support. “

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  5. Verrilli choked because his position is that there is no practical limit to Congressional power (added for clarity) and was trying to say so in so many words without raising a red flag by explicitly saying it.

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  6. Yes, but his physical performance was less important than the weakness of the argument itself. Or to put it another way, his speaking style would be irrelevant if the written briefs made up for it.

    Also worth noting today is Paul Krugman’s lament that there was no second New Deal with the election of Obama.

    “Getting Away with It
    July 12, 2012
    Paul Krugman and Robin Wells
    ..

    “When Obama was elected in 2008, many progressives looked forward to a replay of the New Deal. The economic situation was, after all, strikingly similar. As in the 1930s, a runaway financial system had led first to excessive private debt, then financial crisis; the slump that followed (and that persists to this day), while not as severe as the Great Depression, bears an obvious family resemblance. So why shouldn’t policy and politics follow a similar script?”

    http://www.nybooks.com/articles/archives/2012/jul/12/getting-away-it/?pagination=false

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    • So why shouldn’t policy and politics follow a similar script?

      Krugman drives me nuts when he plays that game. Answers abound.

      1. To fight the deflation that caused the 30s worldwide bad recession to become The Great Depression the central banks have flooded the world with cash. This has worked, in that the engine continues to move, albeit slowly, forward. As Bernanke wrote, channeling Friedman, the great mistake of the 30s was tight money.

      2. We are now in a global market, as “banned” always notes. All fiscal stimulus, whether through spending or reduced taxes, has far less national impact now then it had in 1933.

      3. We are in continuing deficit mode so that one should be able to read a trillion dollar deficit as a “stimulus”. One should have been able to read the Bush tax cuts as a “stimulus”. They may or may not have “stimulated”; but the very fact that we cannot say with certainty that they did stimulate cautions us against thinking more tax cuts or more spending will do a damned thing. If the argument is that tax priorities and spending priorities are wrong then that argument is worth having. If the argument is simply “cut taxes” or “spend more” then that is, frankly, insane, Professor.

      4. The business cycle aspects of recessions have been tamed, in the sense that we now have “just-in-time” inventories, everywhere.

      5. Finally, we are not in a Great Depression because of #1. We are unable to actually politically maneuver the economy the way we imagine it should be maneuvered because of #2. We are probably over-stimulated because of #3. And if the rest of the world doesn’t crater, we will come out of this before I am 75.

      I will add that this is probably not a time for “austerity”, the fiscal analogue to tight money. But it is also not the time for profligacy. IMO, we must move to something like Bowles-Simpson because we really have no other responsible place to go.

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  7. Make sure to note this one for the record from Krugman’s piece:

    “It’s true that Glass-Steagall, a Great Depression–era law that forbade the mixing of securities trading and accepting FDIC-insured deposits under the same corporate roof, wouldn’t have prevented the 2008 implosion of Wall Street. Instead, it was extraordinarily high levels of leverage at investment banks like Lehman and Merrill Lynch, as well as the holding of huge portfolios of toxic subprime mortgages by deposit-taking banks like Bank of America, that were the fuel for the conflagration.”

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  8. The article has several great take-away quotes:

    We have a depressed economy in large part because Republicans have blocked almost every Obama initiative designed to create jobs, even refusing to confirm Obama nominees to the board of the Federal Reserve. (MIT’s Peter Diamond, a Nobel laureate, was rejected as lacking sufficient qualifications.) We have a huge battle over deficits, not because deficits actually pose an immediate problem, but because conservatives have found deficit hysteria a useful way to attack social programs.

    Republicans never miss a chance to use a crisis to cut social programs.

    And:

    The entire Republican Party and much of the electorate had settled into a narrative in which the financial crisis of 2008—a crisis that followed fourteen years of hard-right Republican congressional dominance and eight years in which hard-line conservatives controlled all three branches of government—was caused by…too much government intervention to help the poor and, especially, the nonwhite.

    It is programs like SNAP which are facing all the budget cutting rhetoric while nobody is trying to roll back (or fund) the unfunded Medicare prescription benefits.

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  9. Another amusing observation from Krugman:

    “Obama might have had a window of opportunity in his first few months in office, but as Scheiber shows, that window was lost—and there has been little chance of effective action since. So the slump drags on.”

    Yes, the Republicans successfully blocked the stimulus bill that was Obama’s top priority his first few months in office, thus exacerbating the recession, and causing Obmama to lose his window of opportunity to pass something…oh wait… it passed and then he went to his other priority health care which also passed? You mean that perhaps the failure of his proposals to live up to their promises may have something to do with the push back?

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  10. “yellojkt, on June 24, 2012 at 1:57 pm said:

    Republicans never miss a chance to use a crisis to cut social programs.”

    And Democrats never miss a chance to use a crisis to enact new ones.

    You never let a serious crisis go to waste. And what I mean by that it’s an opportunity to do things you think you could not do before. – Rahm Emanuel

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  11. Perzacktly. Exploiting crises for unrelated wish lists is a bipartisan activity.

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  12. More Krugman:

    “Why, exactly, must there be a “death struggle” over resources when the US economy could, according to Congressional Budget Office estimates, be producing an extra $900 billion worth of goods and services right now if it would only put unemployed workers and other unused resources back to work? ”

    As usual, Krugman is too caught up in the macro view of things

    The “economy” doesn’t consciously decide to put or not put unemployed workers back to work. It is simply the amalgamated statistics reflecting millions of individual decisions playing out.

    “Something has gone very wrong with America, not just its economy, but its ability to function as a democratic nation. And it’s hard to see when or how that wrongness will get fixed.”

    Sigh. Blocking Obama’s agenda is the direct result of democracy, specifically the midterm elections. It’s a feature, not a bug.

    The failure to enact Krugman’s progressive agenda reflects it’s lack of popularity. Otherwise, the mid term elections would have produced different results.

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  13. Worth a read:

    “‘Little America’ excerpt: Obama’s troop increase for Afghan war was misdirected
    By Rajiv Chandrasekaran, Published: June 22

    Excerpted from “Little America: The War Within the War for Afghanistan.”

    http://www.washingtonpost.com/world/war-zones/little-america-excerpt-obamas-troop-increase-for-afghan-war-was-misdirected/2012/06/22/gJQAYHrAvV_story.html

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  14. “Poll: Former Supreme Court clerks think the mandate is done for
    Posted by Sarah Kliff at 10:00 AM ET, 06/20/2012

    A new poll of 56 former Supreme Court clerks finds that 57 percent think the individual mandate will be overturned. That’s a 22-point jump from the last time the same group of clerks was surveyed, right before oral arguments. Back then, 35 percent thought the court would toss out the required purchase of health insurance.”

    http://www.washingtonpost.com/blogs/ezra-klein/post/poll-former-supreme-court-clerks-think-the-mandate-is-done-for/2012/06/21/gJQAYn8ZtV_blog.html

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    • jnc:

      Interesting comment from number 8 in the poll, the open ended responses.

      “From what I read of the initial survey results, compared to the surveyed group as a whole I was more bullish before oral argument that the justices would strike the individual mandate as an unconstitutional exercise of the Interstate Commerce Clause power. I was less surprised by the tenor of the oral arguments than others. But: although the usual caveats apply, the collegiality and tone the Court as a whole has shown since then makes me less bullish than I was. If you look at other terms where the “conservative” majority prevailed on divisive issues like this one (see for a very specific example OT2006), well before this time in the term calendar the “liberal” justices often show significant frustration with forthcoming conservative decisions by issuing stinging dissents or oral argument lines of questioning in what would otherwise be less divisive cases. For example, I wonder whether we would have seen the gentle tone we saw in the AZ immigration case from Justice Sotomayor if a decision was forthcoming that will strike down a central feature of President Obama’s signature bill. Probably reading too much into it but the Court’s tenor lately gives me pause.”

      I also think that it would have been more interesting to know how the clerks thought the Court should rule both before and after oral arguments than how they think it will rule.

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  15. “Verrilli choked because his position is that there is no practical limit to Congressional and was trying to say so in so many words without raising a red flag by explicitly saying it.”

    So, just for clarity’s sake, Verrilli’s position is that there is not practical limit to Congressional power? There seems to be a word missing and that would fit within the context of the statement. Do you agree with that position? I don’t see how that position would be any different than your previously stated position of “the Commerce Clause is infinitely elastic.”

    Why would there be any red flags on this arquement if it is so self-evident? Also, if Verilli’s position is true, wouldn’t it be impossible for any Federal to be struck down? Finally, if it’s impossible for any Federal law to be struck down, Since Congressional power is unlimited, does Verilli think that Marbury v Madison was wrongly decided?

    If the commerce clause is infinitely elastic, couldn’t Congress force me, for example, to either sell or donate my kidney? Couldn’t you make an arguement that not selling my kidney is effecting interstate commerce? It deprives some one with no kidneys to engage in interstate commerce.

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  16. Worth a read:

    “Why Monti, despite Merkel, could prove the euro’s best hope
    By Steven Pearlstein, Published: June 23”

    http://www.washingtonpost.com/why-monti-despite-merkel-could-prove-the-euros-best-hope/2012/06/22/gJQALbuByV_story.html

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  17. There seems to be a word missing and that would fit within the context of the statement.

    Yes. Fixed.

    I don’t see how that position would be any different than your previously stated position of “the Commerce Clause is infinitely elastic.”

    It isn’t.

    So, just for clarity’s sake, Verrilli’s position is that there is not practical limit to Congressional power?

    I’m only supposing that since he couldn’t come up with an example of any, at least as it pertains to regulating commerce.

    Why would there be any red flags on this arquement if it is so self-evident?

    That doesn’t mean that it’s not controversial. As jnc noted, it’s the logical implication of Wickard v Filburn.

    Also, if Verilli’s position is true, wouldn’t it be impossible for any Federal to be struck down?

    Congress is still bound by the First, Second, Fourth, etc. Amendments on what it can and can’t do. Since it is explicitly given the right to regulate commerce and all commerce (or lack thereof) is interstate, the Tenth Amendment would not be applicable.

    If the commerce clause is infinitely elastic, couldn’t Congress force me, for example, to either sell or donate my kidney?

    Congress also has the power to tax and I don’t see what prevents them from demanding payment in vital organs. There are also the recent precedents concerning eminent domain which would make it perfectly legal for them to force you to give your kidney to a person who could make better use of it (provided you were compensated for the fair market value). I find the Kidney Argument far more persuasive than the Broccoli Argument. You should forward it to Rush Limbaugh or whoever else now seems to be in charge of Scalia’s law clerks.

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  18. “Congress is still bound by the First, Second, Fourth, etc. Amendments on what it can and can’t do. Since it is explicitly given the right to regulate commerce and all commerce (or lack thereof) is interstate, the Tenth Amendment would not be applicable.”

    If their power is limitless, how can they be bound by any amendment?

    Also, do you think Congress has the power to force me to sell my kidney?

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  19. yellojkt, on June 24, 2012 at 4:50 pm said:

    “Since it is explicitly given the right to regulate commerce and all commerce (or lack thereof) is interstate”

    Herein would be the reason why Wickard v Filburn was wrongly decided. All commerce (or lack thereof) is not in fact interstate. Only a subset is and as such only a subset falls under the purview of the Federal Government to regulate under the Commerce Clause.

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  20. Also, do you think Congress has the power to force me to sell my kidney?

    Yes, see above. But it’s more of an eminent domain issue than a commerce clause issue. Opt-out organ donor standards have already started down this slippery slope. Your heirs should be allowed to sell your now unused organs to the highest bidder instead of letting the government steal them.

    Only a subset is and as such only a subset falls under the purview of the Federal Government to regulate under the Commerce Clause.

    Health care is clearly interstate in that medical supplies, the training of doctors, marketing of pharmaceuticals, etc. all easily pass an interstate threshold. Everybody buys health care services and all the ACA does is proscribe the method required to be used to purchase them. This is another argument Verrilli did not seem to make effectively.

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  21. If their power is limitless, how can they be bound by any amendment?

    Strawman alert. Nobody is saying Congress’s power is totally unlimited. Regulating interstate commerce is an enumerated power. The argument against the ACA is that health care is either not commerce or not interstate.

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    • yello:

      Nobody is saying Congress’s power is totally unlimited.

      Actually, you are.

      Regulating interstate commerce is an enumerated power.

      Yes, but one you have said is unlimited. Indeed, you think it is so unlimited it can even be used to justify laws regulating the absence of commerce.

      You think that congress has the constitutional power to not ony force someone to buy insurance, but even to force someone to sell their kidney. Do you think it also has the power to force someone to buy a Bible?

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  22. “Yes, see above. But it’s more of an eminent domain issue than a commerce clause issue. Opt-out organ donor standards have already started down this slippery slope. Your heirs should be allowed to sell your now unused organs to the highest bidder instead of letting the government steal them.”

    So, in your view, Congress can pass a law in which a Federal Agent can come to my door and forcibly take my kidney from me, while I am still using? Im just seeking clarification here.

    Also, my understanding of “limitless” is that there are no limits. How can any Amendment “limit” what is “limitless?”. What is the definition of “limitless” being used?

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  23. Well, you wrote the Verilli beleive’s that Congress’s power in unlimited, and further, that you believe that the commerce clause is infinitely elastic. Am I not understanding the definitions of “limitless” and “infinite?”

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  24. “yellojkt, on June 24, 2012 at 5:34 pm said:

    If their power is limitless, how can they be bound by any amendment?

    Strawman alert. Nobody is saying Congress’s power is totally unlimited. Regulating interstate commerce is an enumerated power. The argument against the ACA is that health care is either not commerce or not interstate.”

    No, the argument is that doing nothing is either not commerce or not interstate.

    “Only a subset is and as such only a subset falls under the purview of the Federal Government to regulate under the Commerce Clause.

    Health care is clearly interstate in that medical supplies, the training of doctors, marketing of pharmaceuticals, etc. all easily pass an interstate threshold. Everybody buys health care services and all the ACA does is proscribe the method required to be used to purchase them. This is another argument Verrilli did not seem to make effectively.”

    He was hamstrung by the text of the law he was defending. There were a plethora of other ways to do what the Democrats wanted, but they were too afraid of the word “tax” to bother with them.

    As an aside, should I conclude from your comments that you believe Lopez was wrongly decided?

    http://en.wikipedia.org/wiki/United_States_v._Lopez

    I.e. Congress should be able to ban guns near schools under the Commerce Clause?

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  25. So, in your view, Congress can pass a law in which a Federal Agent can come to my door and forcibly take my kidney from me, while I am still using?

    As soon as the Forced Organ Donor Act is passed and you have been determined to not be using your organs to their best value, a private individual with a better claim to it can institute hearings with proper public notice. But I think this is a little ways off. We have to institute UN-mandated bicycle paths first.

    Am I not understanding the definitions of “limitless” and “infinite?”

    And it only took us 25 comments to get to the mandatory ATiM parsing of definitions.

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  26. Do you think it also has the power to force someone to buy a Bible?

    Only if that doesn’t violate the Establishment Clause. The government also couldn’t make you buy a copy of the Book of Mormon or Dianetics or the Koran.

    But perhaps they could collectively make everybody pool their taxes and buy a copy of the complete works of Shakespeare and keep it in a special building where anybody could come in and borrow it from you free of charge. Let’s hope such a socialist concept never takes hold in this country.

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    • yello:

      Only if that doesn’t violate the Establishment Clause.

      That is not an answer. That is simply a restatement of the question. Does it violate the Establishment clause?

      And if the establishment clause limits the power to regulate commerce, why doesn’t the 10th amendment also limit it?

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  27. As an aside, should I conclude from your comments that you believe Lopez was wrongly decided?

    Lopez was correctly decided but for the wrong reasons. It was an infringement of the Second Amendment rights of middle-schoolers to stand their ground against playground bullies.

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  28. Making you buy a Bible would be a violation of your First Amendment right. Perhaps Jehovah’s Witnesses would have a case for conscientious objection from the ACA. You should form a mail-order religion whose primary tenet is that forcing you to subsidize the medical care of others is against your Diety’s Will.

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    • yello:

      Making you buy a Bible would be a violation of your First Amendment right.

      OK, so we have established that, despite your previous claim, the commerce clause is not, in fact, infinitely elastic and the power to regulate commerce is not unlimited (at least as those words are conventionally understood). Other parts of the constitution do in fact limit the power of congress to regulate commerce. So, then, why can’t the power also be limited by, say, the 10th amendment?

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  29. So, just for the purpose of clarification, Verilli beleive’s that there are limits to unlimited Congressional Power and you beleive that there is a limit on the infinite elasticity of the commerce clause?

    Do you think that Verilli thinks that the limit to unlimited Congressional Power is only the Amendments in the Constitution?

    Can you give me an example on a limit the the infinitely elastic commerce clause?

    I also apologize for not understanding the common definitions of “limitless” and “infinite.”

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    • McWing:

      So, just for the purpose of clarification…

      What is it with this ATiM obsession with actually trying to understand and make sense of what others say?

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  30. If Congress passed a law making the government seizure of a person’s kidney illegal, the would have to, under your definition of the infinitely elastic commerce clause, rule that prohibition Unconstitutional?

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  31. Scott, silly me, I thought words actually meant something.

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    • McWing:

      Scott, silly me, I thought words actually meant something.

      To some people it seems the meanings of words are as infinitely elastic as the commerce clause. How else to explain the incoherent belief that there is no difference between engaging in commerce and not engaging in commerce?

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  32. I personally think the mandate, and the rest of the law will stand. I keep coming back to Kennedy and the fact that the law garnered 60 votes. I just think he’ll hang his hat on that.

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  33. Health care is clearly interstate in that medical supplies, the training of doctors, marketing of pharmaceuticals, etc. all easily pass an interstate threshold. Everybody buys health care services and all the ACA does is proscribe the method required to be used to purchase them. This is another argument Verrilli did not seem to make effectively.”

    Isn’t that basically the argument that a couple of the lower court judges made? I’m not a fan of the mandate and doubt it will be upheld but I understand the argument for it in the context of health care. Has anyone considered that the conservatives on the court will uphold it simply because the mandate balances out the new regulations for the insurance companies (edit: by giving them millions of new customers)? This court hasn’t exactly been anti-business.

    But perhaps they could collectively make everybody pool their taxes and buy a copy of the complete works of Shakespeare and keep it in a special building where anybody could come in and borrow it from you free of charge. Let’s hope such a socialist concept never takes hold in this country.

    That was funny yello………………………………..thanks

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    • lms:

      That was funny yello

      Perhaps, but it was also a complete non sequitur. No one has challenged the power of the government to tax people and spend the revenues on either a library or on health care. What was challenged was the notion that the government has the power to force people individually to buy a private commercial product, which of course has nothing whatsoever to do with the creation of tax-funded libraries.

      Sarcastic wit is a poor substitute for coherent thought.

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  34. OT but this is kind of creepy.

    ELGIN, Texas – A mysterious mass death of a herd of cattle has prompted a federal investigation in Central Texas.

    Preliminary test results are blaming the deaths on the grass the cows were eating when they got sick, reports CBS Station KEYE.

    The cows dropped dead several weeks ago on an 80-acre ranch owned by Jerry Abel in Elgin, just east of Austin.

    Abel says he’s been using the fields for cattle grazing and hay for 15 years. “A lot of leaf, it’s good grass, tested high for protein – it should have been perfect,” he told KEYE correspondent Lisa Leigh Kelly.

    The grass is a genetically-modified form of Bermuda known as Tifton 85 which has been growing here for 15 years, feeding Abel’s 18 head of Corriente cattle. Corriente are used for team roping because of their small size and horns.

    Within hours, 15 of the 18 cattle were dead.

    “That was very traumatic to see, because there was nothing you could do, obviously, they were dying,” said Abel.

    Preliminary tests revealed the Tifton 85 grass, which has been here for years, had suddenly started producing cyanide gas, poisoning the cattle.

    “Coming off the drought that we had the last two years … we’re concerned it was a combination of events that led us to this,” Dr. Gary Warner, an Elgin veterinarian and cattle specialist who conducted the 15 necropsies, told Kelly.

    What is more worrisome: Other farmers have tested their Tifton 85 grass, and several in Bastrop County have found their fields are also toxic with cyanide. However, no other cattle have died.

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  35. McWing:

    Scott, silly me, I thought words actually meant something.

    To some people it seems the meanings of words are as infinitely elastic as the commerce clause.
    It’s the Humpty Dumpty Principle:

    “When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.”
    “The question is,” said Alice, “whether you can make words mean so many different things.”
    “The question is,” said Humpty Dumpty, “which is to be master— that’s all.”

    I would have thought you of all people would be familiar with it.

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  36. If Congress passed a law making the government seizure of a person’s kidney illegal, the would have to, under your definition of the infinitely elastic commerce clause, rule that prohibition Unconstitutional?

    Could an infinitely powerful Congress pass a law restricting its own power? Could God make a rock so heavy that even he can’t move it? Since Superman’s cape is also infinitely elastic, could he punch a hole through it? If Superman’s kidney failed, who would he get a donor from?

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  37. Scott

    I prefer not to get into the middle of the debate/argument between you and yello, I simply thought it was both clever and funny. Frankly, I only skimmed the comments and happened to catch that. I generally avoid the legal threads although I thought your original question was interesting. Jnc answered it already though and I couldn’t really think of anything to add.

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  38. “I would have thought you of all people would be familiar with it.”

    Why would you think that?

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  39. I answered it too, but obviously incoherently enough to be subjected to the tag team rebuttal of absurd limiting case hypotheticals involving Bibles, kidneys, and broccoli.

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    • yello:

      I answered it too, but obviously incoherently enough to be subjected to the tag team rebuttal of absurd limiting case hypotheticals involving Bibles, kidneys, and broccoli.

      I’m assuming you are applying your Humpty Dumpty principle here and using the word “answered” to mean “ignored”, and “absurd limiting case hypotheticals” to mean “questions I don’t know the answers to.”

      Like

  40. Yello, maybe you missed this from me earlier:

    Troll McWingnut or George, whichever, on June 24, 2012 at 6:24 pm said: Edit Comment
    So, just for the purpose of clarification, Verilli beleive’s that there are limits to unlimited Congressional Power and you beleive that there is a limit on the infinite elasticity of the commerce clause?
    Do you think that Verilli thinks that the limit to unlimited Congressional Power is only the Amendments in the Constitution?
    Can you give me an example on a limit the the infinitely elastic commerce clause?
    I also apologize for not understanding the common definitions of “limitless” and “infinite.”

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  41. How else to explain the incoherent belief that there is no difference between engaging in commerce and not engaging in commerce?

    If you choose not to decide, you still have made a choice

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    • yello:

      If you choose not to decide, you still have made a choice

      Another non sequitur. (you are and endless fount of them.) The question before us is, if you choose not to engage in commerce, have you still engaged in commerce. You say yes. Which, to coin a phrase, speaks volumes.

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  42. I’m trying to avoid “absurd” as I understand the word. My apologies in advance if I’m wrong in understanding the commonly accepted definition.

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  43. lms,
    I have no idea why that story made me think of Warren Zevon.

    Daddy’s doing Sister Sally
    Grandma’s dying of cancer now
    The cattle all have brucellosis
    We’ll get through somehow

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  44. yello, all I could think of was unintended consequences and that I’m glad I don’t eat red meat………………….yours is pretty good too though.

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  45. Yello, maybe you missed this from me earlier:
    I didn’t miss them. I just didn’t realize I was morally or legally required to answer them.

    So, just for the purpose of clarification, Verilli believe that there are limits to unlimited Congressional Power and you believe that there is a limit on the infinite elasticity of the commerce clause?
    I have no idea what Verilli believes. I was only speculating. I concede that my stock answer about the Commerce Clause being infinitely elastic is slightly hyperbolic in that it is an allusion to Superman’s cape, a fictitious article of clothing of which you do not want to tug on.

    Do you think that Verilli thinks that the limit to unlimited Congressional Power is only the Amendments in the Constitution?
    See above.
    Can you give me an example on a limit the the infinitely elastic commerce clause?
    Verilli couldn’t, so I’m not sure how I can do better than a lawyer who has argued dozens of cases before the Supreme Court. But I did say I found the Kidney Argument very compelling. It falls well within the Merchant of Venice Pound Of Flesh Principle.

    Like

    • I disagree that the mandate follows from Wickard. That was prohibiting activity. This isn’t.

      I also consider yello’s opening comment about supposed wide support until Obama is a wild exaggeration at best. I really thnk everyone knows by now that it is.

      Like

  46. I’m assuming you are applying your Humpty Dumpty principle here and using the word “answered” to mean “ignored”, and “absurd limiting case hypotheticals” to mean “questions I don’t know the answers to.”

    I yield to your subpoena power as well. I felt I did answer those questions. (No, Congress cannot make you buy a Bible, but it can make you fund a library where Bibles are often found.) That you are not satisfied with my response is beyond my ability to resolve. I stand by my characterization of the hypotheticals. I often used the word ‘absurd’ in the Edward Albee play context, just to sow some more confusion and ambiguity.

    Like

  47. You say yes. Which, to coin a phrase, speaks volumes.

    I’m glad we have finally reached a consensus here.

    Like

  48. You didn’t answer this one:

    So, then, why can’t the power also be limited by, say, the 10th amendment?

    But I did. Because the Commerce Clause is an enumerated power, that trumps the Tenth which gives to the states “powers not delegated to the United States by the Constitution”.

    It’s one thing to disagree with my interpretation of the Commerce Clause. It’s another to ignore it all together. I’m beginning to feel insulted.

    Like

    • yello:

      . Since it is explicitly given the right to regulate commerce and all commerce (or lack thereof) is interstate, the Tenth Amendment would not be applicable.

      The government is granted the power to regulate interstate commerce, not the lack of interstate commerce. And it is nonsensical to say that a lack of commerce is interstate. A thing that does not take place cannot possibly take place between states.

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  49. I also consider yello’s opening comment about supposed wide support until Obama is a wild exaggeration at best.

    The mandate made its first legislative appearance in 1993, in the Health Equity and Access Reform Today Act—the Republicans’ alternative to President Clinton’s health-reform bill—which was sponsored by John Chafee, of Rhode Island, and co-sponsored by eighteen Republicans, including Bob Dole, who was then the Senate Minority Leader.

    Read more http://www.newyorker.com/reporting/2012/06/25/120625fa_fact_klein#ixzz1ym6Nosd7

    And in USNews:

    The individual mandate has been the core of Republican thinking since the days of Richard Nixon, prized by conservatives as a way to keep the private health insurance industry alive and well, and to ward off Democratic demands for a public system like those in Great Britain or Canada.

    And then there is this:

    “The truth is this is a Republican idea,” said Linda Quick, president of the South Florida Hospital and Healthcare Association. She said she first heard the concept of the “individual mandate” in a Miami speech in the early 1990s by Sen. John McCain, a conservative Republican from Arizona, to counter the “Hillarycare” the Clintons were proposing.

    Read more here: http://www.mcclatchydc.com/2010/03/23/90948/that-health-mandate-gop-is-suing.html#storylink=cpy

    Newt Gingrich supported it at one time.

    And of course, the only politician to ever successfully implement an individual mandate is the current Republican nominee.

    I defy anyone to find a major Republican (Ron Paul doesn’t count) opposing an individual mandate before 2008.

    As Yogi Berra said, “Nobody supports the individual mandate, it’s too popular.”

    (This comment has been revised and expanded.)

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  50. And it is nonsensical to say that a lack of commerce is interstate. A thing that does not take place cannot possibly take place between states.

    If a tree falls in the woods and nobody is there to hear it, is a bear Catholic?

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  51. In what way did you find it clever?

    Yeah, lms. What do you mean I’m funny? You mean, let me understand this cause, ya know maybe it’s me, I’m a little fucked up maybe, but I’m funny how, I mean funny like I’m a clown, I amuse you? I make you laugh, I’m here to fuckin’ amuse you? What do you mean funny, funny how? How am I funny?

    Like

    • yello:

      If a tree falls in the woods and nobody is there to hear it, is a bear Catholic?

      Exactly.

      I’m a little fucked up maybe

      Don’t sell yourself short, Judge. You’re a tremendous slouch.

      Like

  52. So you have:

    –Romneycare, the plan developed by Romney with a heavily Democratic legislature in one of the most liberal states. Whenever I see Romneycare cited as proof that the mandate was always a Republican idea, the first thing I think is, so is this one of those days when Romney is suddenly supposed to be a right winger instead of a RINO? Was the liberal Democratic legislature part of the conservative Republican movement? Whatever you want to say about those questions, there was no constitutional problem with Romneycare.

    –The 1993 Chaffee bill. John Chaffee was a liberal, big government Republican, one of those splendid “responsible” Republicans of the Rockefeller persuasion, a true RINO. You could not find any daylight between his positions and those of liberal Democrats. His 1993 bill was supported by less than half of the Republican caucus, even in the heat of the battle against Hillarycare, and all of them were big government Republicans, mostly RINOs like Bob Dole–as Newt once described him, tax collector for the welfare state. The bill never even made it to a vote in the Republican-majority Senate, despite the large block of RINOs who still controlled the levers of power. If Republicans championed a mandate for for over a decade, why was that? You say you “defy” anyone to show any Republican opposition before 2008. I give you the majority of the Republican caucus even in 1993, and there was no bill at all in the House.

    Btw, the Chaffee bill imposed its mandate through a tax. That would be equally unconstitutional in my view, but in any event it means that the bill provides zero support for the claim that any Republicans once found a mandate to be a legitimate exercise of the interstate commerce power.

    –Two Heritage economists in the early 90s. First, they were economists. Constitutionality probably never even occurred to them. Second, where are all the subsequent Heritage papers and publications promoting a mandate since they first floated the idea? If it was a long-time Heritage idea, why is that all the support you have?

    –Two columnists quoting people’s opinions that it was a Republican idea, one referring vaguely to Nixon and the other to McCain in the early 90s (i.e., one of the Chaffee bill RINOs). This is no evidence of anything.

    –A Newt newsletter saying favorable (if qualified) things about the Romney mandate. Once again, Romneycare is a state program, not a federal one. You can mock and dismiss the distinction all you want, but there is no commerce power objection to a state program. It may be equally objectionable on public policy principles, but it raises no constitutional issue.

    “What was unprecedented was the willingness of the conservative court to parrot talk radio talking points to invent distinctions such as non-commerce out of whole cloth.”

    I would challenge you to find anyone whose opinion is worth hearing who says that a federal law does not have to regulate commerce to be constitutional under the Commerce Clause, or that there is nothing that isn’t commerce.

    The Interstate Commerce objection of course wasn’t invented by the court. It was argued in depth by the states. That was the whole point. Here is Clement’s brief, for example.

    Click to access State+respondents+%2811-398+mandate%29.pdf

    You might also consider this, which documents, among other things, the very same constitutional objection raised against Hillarycare in 1993: http://www.volokh.com/2012/06/11/origins-of-commerce-clause-objections-to-the-individual-mandate/, and this: http://www.volokh.com/2012/05/31/andrew-koppelman-on-the-origins-of-the-case-against-the-individual-mandate/, before continuing to claim that objections were invented out of whole cloth on talk radio. Seriously, you think Rush Limbaugh came up with it?

    And, no, neither Rush Limbaugh nor Scalia invented the broccoli question. http://www.nytimes.com/2012/06/14/business/how-broccoli-became-a-symbol-in-the-health-care-debate.html?pagewanted=all

    I’ve been a conservative Republican since Reagan and have been reading what conservatives say since 1980. I’ve probably read every issue of National Review since then, and plenty of other conservative publications. I’ve never seen an individual mandate advocated that I can recall, and I can say with complete certainty that it runs contrary to the central principles for which conservative Republicanism has stood throughout that time. If that isn’t the case, where is its paper trail? Why are these few scraps from liberal Republicans all you can muster to put a Republican label on it? There isn’t such a paper trail, of course.

    [Update: link corrected, and spaced]

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  53. “Health care is clearly interstate in that medical supplies, the training of doctors, marketing of pharmaceuticals, etc. all easily pass an interstate threshold.”

    “Health care” isn’t even commerce. If my brother is a physician and give me a free exam, there’s no commerce at all, let alone interstate. If my wife puts a bandaid on my daughter’s knee, there is health care but no commerce.

    If the store where she bought the bandaids bought them from a supplier in another state, that was interstate commerce, but if they were manufactured in the same state, it was not interstate.

    Training of doctors is in no way interstate commerce, nor is it even health care.

    Ordinary people can understand this. It isn’t that hard. It takes lawyers trained in sophistry to muck it up, and willing dupes to parrott the talking points.

    Like

  54. I know, every Republican everywhere was a RINO at some point. There are no True Conservatives. Fortunately all the RINOs have been hunted to extinction.

    And very interesting pick on your find of the ur-opponent of individual mandates. Here are some choice excerpts from David Rivkin’s 1993 editorial (via his website):

    The healthy must subsidize the sick; the young must subsidize the old; the not-so-old must subsidize the very young. If this redistribution of wealth is to work without new taxes (and no one wants to admit that new taxes might be necessary), then everyone must be in the plan.

    He is absolutely correct. Only what he sees as calamities, helping the sick, the poor, the old, etc., I see as the foundation of the modern social safety net. Po-tay-toe, po-tah-toe.

    He goes on to predict:

    If the legality of a health-care package featuring federally mandated universal participation is litigated (and we can bet it will be),

    Seeing as he is the lead lawyer in the challenge, that is a nice self-fulfilling prophecy and good job security. Rivkin was an obscure far-right appartchik until circumstances threw his pet cause into the spotlight as a last gasp attempt to stop what they couldn’t in congress.

    And his entire argument further cements my thesis that conservatives are fundamentally opposed to universal coverage of any type and will use any argument no matter how disingenuous to stop it.

    Like

    • Not sure why it matters, but Rivkin and Case have been well-known commentators on such issues for years. Well known to conservatives.

      If you think Chaffee was a conservative, go ahead and make your case.

      The fact that you see nationalized health care as a good thing has nothing to do with constitutionality.

      I have no idea why you think Rivkin is the lead lawyer challenging ACA (that would be Paul Clement) or why it is relevant. Apparently you contend that since he has had a consistent position for 20 years that makes him unprincipled. While other Rs are unprincipled for evolving. Who knew.

      Like

  55. “, I see as the foundation of the modern social safety net. ”

    A true safety net would catch only those who fall. Not ensnare all of us, regardless of need.

    Like

  56. to be upheld in a plurality opinion, remember where you heard it first!

    Like

    • I have predicted many overlapping opinions. Not sure I buy plurality opinion. The Casey abortion (pun) was a debacle.

      Like

  57. Why do you think so John? I mentioned one scenario above. The insurance companies stand to gain and this court has been very supportive of corporate America. We’ll see soon enough I guess.

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  58. live blog of today’s’ SCOTUS session: http://scotusblog.wpengine.com/

    Like

  59. free speech wins again. Montana campaign finance law summarily reversed. maybe we’re figuring out that “shall make no law” means exactly that.

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  60. Montana had a better argument in that it was a state, not a Federal law, but there’s that pesky incorporation clause from the 14th Amendment again.

    Like

  61. looks like no heath care today – they ruled on the AZ immigration case, but i haven’t been following that, so can’t comment. other than it was upheld in parts and invalided in others.

    Like

    • Click to access 11-182b5e1.pdf

      At first blush it is decided carefully, 5-3, Kagan not voting.

      The majority throws out AZ criminalization of undoc status as contrary to the federal scheme. It then says that the police demand for display of credentials is not facially unconstitutional but could become applied unconstitutionally and the Court sets out a roadmap for AZ to follow. Normally, AZ should not detain persons without docs just because they are undocs. But persons detained for ordinary crimes who are undocs can be reported to ICE, the current standard practice.

      The Court tells us: Removal is a civil, not criminal, matter. A principal feature of the removal system is the broad discretion exercised byimmigration officials. and

      Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all. If removal proceedings commence, aliensmay seek asylum and other discretionary relief allowingthem to remain in the country or at least to leave withoutformal removal. See §1229a(c)(4); see also, e.g., §§1158(asylum), 1229b (cancellation of removal), 1229c (voluntary departure). Discretion in the enforcement of immigration law embraces immediate human concerns. Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime. The equities of an individual casemay turn on many factors, including whether the alienhas children born in the United States, long ties to the community, or a record of distinguished military service.Some discretionary decisions involve policy choices that bear on this Nation’s international relations.

      There was a columnist in WaPo the other day who did not understand this feature of our immigration statutes and tried to compare them to the taxation scheme, which does not permit this level of discretion.

      BHO’s “temporary amnesty” for certain undocs is mere window dressing and an election year pander because it states a previously unstated but known policy choice regarding the use of our thin ICE assets. The unstated choice has led to a huge number of deportations because everyone likes to get rid of the bad actors, including the communities in which they hide. The unstated choice goes back to the GWB Admin, of course, and perhaps further.

      There is a problem with stating a policy choice on discretion. That is, a stated choice obviously limits discretion – it is no longer a discretionary policy.

      Addendum: I am reminded by a colleague that this only limits political discretion. DHS could decide to deport a college kid who would have no actual recourse based on BHO’s statement.

      Like

      • Mark:

        There was a columnist in WaPo the other day who did not understand this feature of our immigration statutes and tried to compare them to the taxation scheme, which does not permit this level of discretion.

        That may be true (that is, that he-who-apparently-must-not-be-named did not understand this feature) but re-reading his column, I am not so sure. His argument rests on the notion that discretion is allowed on an individual basis, which your citation from the court confirms (“Discretion in the enforcement of immigration law embraces immediate human concerns”, “The equities of an individual case may turn on many factors”). His objection seems to be that Obama’s new instruction is being applied as a blanket to an entire class of cases, not on an individual, case by case basis as discretionary authority allows.

        Is it really true that the IRS does not enjoy this same discretion to prioritize and decide not to pursue individual cases based on the perceived equities of the case? If so, then I agree that Krauthammer (I said it!) has misunderstood something and the analogy fails. If not, then I don’t know what he has misunderstood.

        Addendum:

        The unstated choice goes back to the GWB Admin, of course, and perhaps further.

        This, I think, is the real problem with CK’s argument. The discretion that Obama is now employing explicitly has in fact been employed implicitly for years. So even if he is correct that the application of blanket rather than individual discretion is illegitimate, it is not a “new”, Obama-inspired policy.

        Like

        • We agree on the “no novelty issue” and I couldn’t recall who wrote the column.

          There is some discretion at IRS, of course. Failure of an employer to pay withholding attracts attention like no other taxpayer sin. Most tax collection cases do not result in criminal sanctions, including many which perhaps were literally criminal. Sure, there is discretion. But refusing to collect a statutory tax is not equivalent to refusing to deport an undoc because the statutory discretion of DHS is so much greater.

          Nevertheless, all discretionary matters are individually based, as you have said, and my criticism of BHO’s policy as limiting discretion is based on that same notion. For example, not every undoc who obtains a GED was the kind of person who would have avoided deportation after an ICE raid of a meat packer using undoc labor, I suspect. And I don’t know that this will even have that effect now, although that is how BHO sounded. Thus I think this announcement muddies the water on what employers can and cannot do with undocs for the next two years.

          So while I think CK’s cited example is not truly analogous, I think it was a useful exaggeration that pointed up the political pandering involved.

          Like

        • Mark:

          I couldn’t recall who wrote the column.

          Ah, my apologies.

          Like

  62. Thanks for the SCOTUS live blog, NoVA, that was interesting. I read previously that Thursday was the next possibility for a decision…………….maybe that was wrong. Pins and needles until then I guess.

    Edit……………Thursday it is.

    Like

  63. Thursday the day. maybe Wednesday we do an ATim predictions post.

    Like

  64. one other possibility — don’t think it would happen, but the court could delay to the next term.

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  65. I have no idea why you think Rivkin is the lead lawyer challenging ACA (that would be Paul Clement) or why it is relevant.

    That’s what I get for misreading his Wikipedia entry.

    Rivkin became lead outside counsel in the lawsuit filed by multiple state attorneys general seeking to nullify the Patient Protection and Affordable Care Act. The lawsuit was filed on March 23, 2010, hours after the law was signed by President Barack Obama, in United States District Court for the Northern District of Florida in Pensacola.

    I stand corrected. It is relevant that he is an individual mandate ambulance chaser. His case was considered a long shot and he has struck paydirt.

    Like

  66. NoVA:
    You and me, buddy. Both of us among the 90K at SCOTUSblog this morning.

    The AZ immigration law was basically struck down. The only part that survived was the local law enforcement “status checks” but those probably have to be narrowly defined so as not to run afoul the opinion and the pending racial profiling suit. 5-3 opinion, Kagan recused. Kennedy’s opinion, Scalia/Thomas/Alito dissenting.

    The other opinion today was Jackson and Miller, consolidated. The upshot is that life without parole for juvenile offenders is barred by the 8th A. 5-4, “liberals” – “conservatives.”

    The MT campaign finance case would have had 4 Justices to grant cert, but it was clear that it would have been a waste of time, so no grant.

    Like

  67. nova

    maybe Wednesday we do an ATim predictions post.

    Okay. You’re in charge………………………… 😉

    Like

  68. James Fallows has real concerns over the activism of the Supreme Court.

    The Roberts majority is barreling ahead without regard for the norms, and it is taking the court’s legitimacy with it.

    Like

  69. “Samuel Alito and John Roberts presented themselves, back when they were trying out for their current lifetime roles”

    sounds like they just gave a campaign speech is all.

    Like

  70. “yellojkt, on June 25, 2012 at 8:54 am said:

    James Fallows has real concerns over the activism of the Supreme Court.

    The Roberts majority is barreling ahead without regard for the norms, and it is taking the court’s legitimacy with it. ”

    I’m sure he had similar concerns with the Warren court.

    Like

  71. “markinaustin, on June 25, 2012 at 8:58 am said:

    BHO’s “temporary amnesty” for certain undocs is mere window dressing and an election year pander because it states a previously unstated but known policy choice regarding the use of our thin ICE assets. The unstated choice has led to a huge number of deportations because everyone likes to get rid of the bad actors, including the communities in which they hide. The unstated choice goes back to the GWB Admin, of course, and perhaps further.

    There is a problem with stating a policy choice on discretion. That is, a stated choice obviously limits discretion – it is no longer a discretionary policy.”

    Presumably it would be a real change if hypothetically they had already deported all the bad actors and still went with forbearance even if there were idle resources available.

    Like

  72. Is clarification of discretion still discretion? I think it must be otherwise so many Latinos would not be celebrating BHO’s announcement. I’m not saying it wasn’t political pandering………it’s a Presidential election after all. Also, are the workers visa and renewal every two years something new for this group of young people? I don’t have time to look it up and wondered if one of you knew offhand.

    Like

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