SCOTUS Decision (Open Thread)

So today is the day. I thought we could just use an open thread for comments as the decision and opinions come in.  Anyone have a link to that liveblog we can add here?

158 Responses

  1. I have to leave very soon so I’ll be anxious to read your comments when I get back.

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  2. From the SCOTUS blog:

    The bottom line: the entire ACA is upheld, with the exception that the federal government’s power to terminate states’ Medicaid funds is narrowly read. .

    So who won the pool? I didn’t.

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  3. looks like it’s roberts and the libs voting in favor. kennedy voted to strike the whole thing

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  4. from politico: The Supreme Court has upheld the health care reform law’s individual mandate in an opinion authored by Chief Justice John Roberts and joined in by Justices Elena Kagan, Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor

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  5. The court reinforces that individuals can simply refuse to pay the tax and not comply with the mandate.

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  6. Is this Roberts playing umpire or is he trying to get on the right side of history?

    Perhaps conservatives can impeach Roberts and liberals can impeach Scalia.

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  7. I called it with the sole exception that I distrusted Kennedy more than Roberts. One of my Democrat partners yesterday got really angry when I said Roberts would likely vote to uphold.

    New Romney campaign theme: Obama broke his word by ramming through a mammoth tax increase.

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  8. Obama 2010: this absolutely is not a tax.

    Absolutely incredible. I said in my prediction above that I was struggling to conceive how Kenney would rationalize upholding it. Turned out to be Roberts, but, of course, it’s a tax!

    So much for the ideologue right. How about those ideologues on the left. They never depart from their political allegiance.

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  9. Roberts is apparently trying to get on the ‘left’ side of history.

    How can I refuse to pay the tax? Really? This is logic from the 9 best legal minds in the US?

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  10. wow, Kennedy comes out swinging in his dissent.

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  11. I think Roberts foreshadowed his opinion during orals with the tax issue, already thinking about how to uphold the mandate as a tax.

    The liberals would uphold under the Commerce Clause.

    Kennedy is mad.

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  12. typo — you can’t refuse to pay the tax; . The only effect of not complying with the mandate is that you pay the tax.

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  13. Can we please retire the entire “right side of history” BS meme?

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  14. BTW, the Stolen Valor Act is unconstitutional. And First American was dismissed as improvidently granted.

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  15. How wonderful a system when the President can adamantly deny that legislation includes a tax to get it passed, then have it upheld as a tax.

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    • qb:

      How wonderful a system when the President can adamantly deny that legislation includes a tax to get it passed, then have it upheld as a tax.

      Just wait until he starts boasting about this great victory. I’m guessing it won’t be a tax anymore.

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  16. “They gave Congress the power to regulate commerce, not to compel it. Ignoring that distinction would undermine the principle that the Federal Government is a government of limited andenumerated powers. The individual mandate thus cannot be sustained under Congress’s power to “regulate Commerce”

    small victory i guess.

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  17. “The Affordable Care Act describes the “[s]hared responsibility payment” as a “penalty,” not a “tax.” That label is fatal to the appli- cation of the Anti-Injunction Act. It does not, however, control whether an exaction is within Congress’s power to tax. In answering that constitutional question, this Court follows a functional approach, “[d]isregarding the designation of the exaction, and viewing its sub- stance and application.” United States v. Constantine, 296 U. S. 287, 294. Pp. 33–35.”

    Huh.

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  18. from the dissent: The Act before us here exceeds federal power both in mandating the purchase of health insurance and in denying nonconsenting states all Medicaid funding. These parts of the Act are central to its design and operation, and all the Act’s other provisions would not have been enacted without them. In our view it must follow that the entire statute is inoperative.”

    Testify

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  19. more from scotusblog:

    The rejection of the Commerce Clause and Nec. and Proper Clause should be understood as a major blow to Congress’s authority to pass social welfare laws. Using the tax code — especially in the current political environment — to promote social welfare is going to be a very chancy proposition.

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  20. Roberts:
    “The Commerce Clause is not a general license to regulate an individual from cradle to grave, simply because he will predictably engage in particular transactions. Any police power to regulate individuals as such, as opposed to their activities, remains vested in the States.”

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  21. Huh.
    It passed the Duck Test. It looked, walked and quacked like a tax.

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    • yello:

      It passed the Duck Test. It looked, walked and quacked like a tax.

      So, then, Obama also passes the duck test. He looks, walks, and quacks like liar.

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  22. Scott:

    No doubt Obama won’t miss a beat. Words are just tools to manipulate people in his world. I’m sure he thinks it is hilarious how he got over on this one.

    Roberts looks like such a patsy.

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  23. Roberts:
    “The Government asks us to interpret the mandate as imposing a tax, if it would otherwise violate the Constitution. Granting the Act the full measure of deference owed to federal statutes, it can be so read, for the reasons set forth below.”

    The Roberts Duck Test, indeed.

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  24. “quarterback, on June 28, 2012 at 8:37 am said:

    How wonderful a system when the President can adamantly deny that legislation includes a tax to get it passed, then have it upheld as a tax.”

    Post modern presidency?

    Wickard lives to ride another day.

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  25. from hot air: “But I didn’t know until today that it was Barzini all along.”

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  26. Roberts also explicitly mentions the Broccoli Argument saying that economic activity cannot be mandated.

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  27. “But I didn’t know until today that it was Barzini all along.”

    And we know what happened to Barzini. Is that an actionable threat?

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  28. Btw, the tax power holding is close to risible on its own merits. It doesn’t explain the mandate itself–you must buy insurance. It doesn’t explain the penalty, which by definition is a penalty for not doing something.

    It is preposterous reasoning.

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    • I see that the dissent makes the same argument I made the other day, that is, the government’s argument implies that the a person can be compelled to grow wheat.

      To go beyond that, and to say that the failure to grow wheat or the refusal to make loans affects commerce, so that growing and lending can be federally compelled, is to extend federal power to virtually everything. All of us consume food, and when we do so the Federal Government can prescribe what its quality must be and even how much we must pay. But the mere fact that we all consume food and are thus, sooner or later, participants in the “market” for food, does not empower the Government to say when and what we will buy. That is essentially what this Act seeks to do with respect to the purchase of health care. It exceeds federal power.

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      • More from the 4 dissenters, on Ginsburg’s incoherent reading of the constitution:

        [Ginsburg’s] exposition of the wonderful things the Fed- eral Government has achieved through exercise of its assigned powers, such as “the provision of old-age and survivors’ benefits” in the Social Security Act, ante, at 2, is quite beside the point. The issue here is whether the federal government can impose the Individual Mandate through the Commerce Clause. And the relevant history is not that Congress has achieved wide and wonderful results through the proper exercise of its assigned powers in the past, but that it has never before used the Commerce Clause to compel entry into commerce. [Ginsburg] treats the Constitution as though it is an enumeration of those problems that the Federal Government can address—among which, it finds, is “the Nation’s course in the economic and social welfare realm,” ibid., and more specifically “the problem of the uninsured,” ante, at 7. The Constitution is not that. It enumerates not federally soluble problems, but federally available powers. The Federal Government can address whatever problems it wants but can bring to their solution only those powers that the Constitution confers, among which is the power to regulate commerce. None of our cases say anything else. Article I contains no whatever-it-takes-to-solve-a-nationalproblem power.

        I like that last bit.

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  29. “But I didn’t know until today that it was Barzini all along.”

    Well, some of us suspected it was Barzini, but that could be the line of the day.

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  30. The only thing I’m going to say is that I’m happy. But you all could have guessed that, I’m sure.

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  31. funny thing about Roberts — seemed like until about an hour ago the left was ready to hang him by his nuts from the Washington Monument.

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  32. “Roberts also explicitly mentions the Broccoli Argument saying that economic activity cannot be mandated.”

    Really? Buy broccoli or we will tax you. Buy health insurance or we will tax you. Not being of a legal mind, what exactly is the difference?

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  33. “quarterback, on June 28, 2012 at 8:29 am said:

    So much for the ideologue right. How about those ideologues on the left. They never depart from their political allegiance.”

    This isn’t precisely true. I believe some of the newer Obama appointees are prone to siding with the police in certain search cases, unlike the Brennan’s & Marshall’s of yore.

    See also Sotomayor’s decision in Center for Reproductive Law and Policy v. Bush

    I assume the general consensus is that there’s pretty much no chance the Republicans will actually succeed in repealing it straight up, even if they gain control of the House, Senate and the Presidency.

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  34. Really? Buy broccoli or we will tax you. Buy health insurance or we will tax you. Not being of a legal mind, what exactly is the difference?

    He is saying the government could do just that, “tax” you for not buying broccoli. It just can’t make you buy broccoli.

    You have to go to fancy law schools to learn to slice baloney like this.

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  35. If the Rs gain control of the House, Senate and the Presidency, why wouldn’t they repeal it straight up? I would think if they gain that control, that would be the sole reason they gain that control…

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    • Just got back from a conference where this was discussed and the feeling there was that Republicans will use reconciliation to chip away at aspects of the bill as opposed to trying a full repeal. There are aspects of the bill people like and Republicans don’t want to be tagged for having your 26 year old uninsured or losing insurance because of a pre-existing condition.
      For what it’s worth, the speaker felt that the election was more important than this decision with respect to the future of health care reform.

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  36. He is saying the government could do just that, “tax” you for not buying broccoli. It just can’t make you buy broccoli.

    That is, it is constitutional to tax pretty much anything, is it not? While taxing the not-doing of things sees like a de facto mandate, apparently the Supremes say it’s constitutional. So it is!

    As a tax, however, there is a difference. I can buy broccoli, or pay the tax. It is different—but not that different—from high vs. low property taxes. I can pay the high property taxes, or move to a cheaper house in an area with lower property taxes. One could argue that high property taxes are a mandate that people move elsewhere, or don’t move in at all, but . . .

    What tangled webs we weave!

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  37. Democrats will block any repeal by any means necessary. Perhaps they will abscond to Virginia. Obamacare is here forever. These leftwing legislative tumors never go away. They only grow.

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    • More dissent on the notion of a tax:

      In answering that question we must, if “fairly possible,” Crowell v. Benson, 285 U. S. 22, 62 (1932), construe the provision to be a tax rather than a mandate-with-penalty, since that would render it constitutional rather than un- constitutional (ut res magis valeat quam pereat). But we cannot rewrite the statute to be what it is not. “‘“[A]l- though this Court will often strain to construe legis- lation so as to save it against constitutional attack, it must not and will not carry this to the point of perverting the purpose of a statute . . .” or judicially rewriting it.’” Commodity Futures Trading Comm’n v. Schor, 478 U. S. 833, 841 (1986) (quoting Aptheker v. Secretary of State, 378 U. S. 500, 515 (1964), in turn quoting Scales v. United States, 367 U. S. 203, 211 (1961)). In this case, there is simply no way, “without doing violence to the fair meaning of the words used,” Grenada County Supervisors v. Brogden, 112 U. S. 261, 269 (1884), to escape what Congress enacted: a mandate that individuals maintain minimum essential coverage, enforced by a penalty.

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      • In a few cases, this Court has held that a “tax” imposed upon private conduct was so onerous as to be in effect a penalty. But we have never held —never— that a penalty imposed for violation of the law was so trivial as to be in effect a tax. We have never held that any exaction imposed for violation of the law is an exercise of Congress’ taxing power—evenwhen the statute calls it a tax, much less when (as here)the statute repeatedly calls it a penalty

        They have now. New precedents being set left and right. Well, just left, actually.

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        • So the question is, quite simply, whether the exaction here is imposed for violation of the law. It unquestion-ably is. The minimum-coverage provision is found in 26 U. S. C. §5000A, entitled “Requirement to maintain minimum essential coverage.” (Emphasis added.) It commands that every “applicable individual shall . . . ensure that the individual . . . is covered under minimum essential coverage.” Ibid. (emphasis added). And the immediately following provision states that, “[i]f . . . an applicable individual . . . fails to meet the requirement of subsection (a) . . . there is hereby imposed . . . a penalty.”

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  38. I see that the dissent makes the same argument I made the other day, that is, the government’s argument implies that the a person can be compelled to grow wheat.

    As I interpret it, we could be taxed for being in a position to grow wheat, yet refusing to do it. This power seems to be one of allowing the government to tax (not compel) anyone for not doing something they are “reasonably” capable of doing. If I own a house and I haven’t painted it or put on storm windows, the government could tax me for lack of maintenance. I could continue to not do it, and I would continue to get taxed.

    But this may be a distinction without a difference.

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  39. “Article I contains no whatever-it-takes-to-solve-a-nationalproblem power.”

    thats it in a nutshell.

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  40. If the Rs gain control of the House, Senate and the Presidency, why wouldn’t they repeal it straight up?

    Because when the Republicans win all 3 branches, they immediately concede defeat and begin the process of party self-destruction. No reason to think that wouldn’t happen again.

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  41. “Article I contains no whatever-it-takes-to-solve-a-nationalproblem power.”

    That’s implied in the penumbras of ambiguities of the mysteries of the riddles that are wrapped in enigmas in the constitution. Look, we can do it. That’s all you plebes need to know! Get back to work.

    This is all for your own good, anyway.

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  42. You have to go to fancy law schools to learn to slice baloney like this.

    Good thing you dodged that bullet.

    The other way to look at it is that you are taxed to support health care but it gets forgiven if you have coverage of your own. Nearly every analysis has said that the penalty is far from covering the actual burden non-covered people would impose. People who refuse to buy insurance can now leach off the public.

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    • yello:

      The other way to look at it is that you are taxed to support health care but it gets forgiven if you have coverage of your own.

      But that is not what the law says. More humpty dumpty principle.

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  43. I don’t know where Greg is quoting James O’Hara from since he doesn’t link–so it may be a direct interview with him–but I thought that this was interesting:

    In the broadest possible sense, this can be seen as the start of a third era in which the Court wrestles with questions surrounding the expansion of federal power — each era different from the other, says James O’Hara, a trustee of the Supreme Court Historical Society.

    During the New Deal, Franklin Delano Roosevelt sought to expand the federal government’s management of the economy to cope with the Great Depression. While the Court initially dealt Roosevelt plenty of setbacks, the era as a whole can be seen as a ratification of Roosevelt’s broad contention that the crisis merited expansive federal intervension.

    During the Warren court, a liberal era, questions surrounding federal authority were different — and were more directly concerned with the battle between federal power and states’ rights. The Court frequently upheld the federal government’s authority over states on matters ranging from Civil Rights to voting to education.

    Today’s decision can be seen as the start of a third such era, O’Hara says.The decision also concerns the battle between federal and state’s rights, as did many of the Warren era battles. But this is the most far reaching decision the Court has made to date to reckon with the complexities of today’s economy, of which health care is an increasingly dominant part.

    “We are perhaps entering a third era, in which the court is pragmatically trying to assess the place of the federal government in a world of rapid technological and economic change,” O’Hara said. “The Obama administration has approached health care with broad, sweeping legislation, and the Supreme Court is willing pragmatically to say, `Let’s give it a chance and see how it shakes down Constitutionally.’”

    There are many dimensions to this decision, but the big picture is clear. Today the Court declared that the federal government has the right to exercise its authority in order to protect Americans from the depredations of the ever increasing health insurance market. “The Supreme Court extended the power of the federal government to move into areas it has not moved in the past,” O’Hara said. “There has been in the 20th Century an increasing amount of power that has flowed toward the federal government. And that continued today.”

    I guess this means that the ruling is going to be seen as an activist decision. . .

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  44. “If I own a house and I haven’t painted it or put on storm windows, the government could tax me for lack of maintenance.”

    no, that’s what eminent domain is for. they’d just condemn it and knock it down

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  45. This power seems to be one of allowing the government to tax (not compel) anyone for not doing something they are “reasonably” capable of doing.

    Semi-corked.

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  46. “The other way to look at it is that you are taxed to support health care but it gets forgiven if you have coverage of your own. ”

    Why stop there. Congress has express power to raise and equip armies. If people don’t have health insurance they won’t be healthy enough to serve and might die.

    The options are endless here, limited only be imagination.

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  47. qb:

    The options are endless here, limited only be imagination.

    To a non-lawyer, that pretty much defines the law! 🙂

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  48. no, that’s what eminent domain is for.

    Eminent domain is for when somebody with more money than me wants my property and I don’t want to sell it. Then they get to take it, with the help of the courts, because they are rich and I am not.

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  49. To a non-lawyer, that pretty much defines the law!

    That’s sad, not happy. But it’s the reality. To read Roberts and the rest of the liberals is to see that the Constitution and the statute are just a mush of words they can make say whatever they want. There is little pretense about it any more. That used to be widely deplored, but I guess the left has won. Constitution RIP 2012.

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    • Constitution RIP 2012

      I thought that was at Griswold v. Connecticut.

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    • qb:

      To read Roberts and the rest of the liberals is to see that the Constitution and the statute are just a mush of words they can make say whatever they want.

      Yes, that seems to be the case. Only the deliberate disregard of the words not only of the constitution but of previous decisions can explain Roberts’ opinion. It’s to be expected from the left, but I had some faith in Roberts. I guess I was wrong (and you were right).

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  50. from Kennedy:

    Congress has impressed into service third parties, healthy individuals who could be but are not customers of the relevant industry, to offset the undesirable consequences of the regulation. Congress’ desire to force these individuals to purchase insurance is motivated by the fact that they are further removed from the market than unhealthy individuals with pre-existing conditions, because they are less likely to need extensive care in the near future. If Congress can reach out and command even those furthest removed from an interstate market to participate in the market, then the Commerce Clause becomes a font of unlimited power, or in Hamilton’s words, ‘the hideous monster whose devouring jaws . . . spare neither sex nor age, nor high nor low, nor sacred nor profane.’”

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    • ‘the hideous monster whose devouring jaws . . . spare neither sex nor age, nor high nor low, nor sacred nor profane.’

      That’s Originalist talk. Are we sure Scalia didn’t write the dissent?

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      • Interesting point:

        There is another point related to the Individual Mandate that we must discuss—a point that logically should have been discussed first: Whether jurisdiction over the challenges to the minimum-coverage provision is precluded by the Anti-Injunction Act, which provides that “no suitfor the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person,” 26 U. S. C. §7421(a) (2006 ed.)….The Government and those who support its position onthis point make the remarkable argument that §5000A isnot a tax for purposes of the Anti-Injunction Act, see Brief for Petitioners in No. 11–398 (Anti-Injunction Act), butis a tax for constitutional purposes, see Petitioners’ Minimum Coverage Brief 52–62. The rhetorical device that tries to cloak this argument in superficial plausibility is the same device employed in arguing that for constitutional purposes the minimum-coverage provision is a tax:confusing the question of what Congress did with the question of what Congress could have done….What the Government would have us believe in these cases is that the very same textual indications thatshow this is not a tax under the Anti-Injunction Act show that it is a tax under the Constitution. That carries verbal wizardry too far, deep into the forbidden land of the sophists.

        Heh.

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  51. Roberts is a Rhenquist big (federal) government guy.

    Always has been.

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    • QB – do the five votes opining that the commerce clause does not expand to permit the forced purchase of private insurance amount to a mere dictum, considering the case was decided under the tax power?

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      • Mark:

        amount to a mere dictum

        What does that mean? I think it is relevant to what jnc is trying to tell me.

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        • A dictum is an opinion that is not part of the holding or ruling but which by reason of the number of justices who agree with it might be persuasive later, or not.

          I am wondering if it is persuasive enough that it needs to be filed away for OSHA challenges where OSHA tells the employer what safety gear it must buy, or be heavily fined.

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  52. it’s kennedy — i’m surprised too.

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  53. Roberts not respecting previous decisions? Say it isn’t so!

    Stare, stare decisis
    Write your opinions black and white
    Decide upon what you know is right
    With eyes that know the darkness in our souls

    Shadows on the Hill
    Sketch the Mall and the daffodills
    Overturning unconstitutional bills
    In colors on the snowy linen page

    with apologies to Don Mclean

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  54. Roberts is a Rhenquist big (federal) government guy.

    Is a RBFGG a relative of the RINO?

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  55. Scott, I believe the legal justification is “fuck you, that’s why”

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    • nova:

      I believe the legal justification is “fuck you, that’s why”

      That seems to be the case.

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      • Mark:

        BTW, just a quick note, slightly off-topic. Several weeks ago we had a discussion about secession in which I asserted that, in signing on to the constitution, states had relinquished only specific aspects of their sovereignty while retaining at least some measure of sovereignty, including the right to decide whether or not to remain in the union. You seemed to dismiss that notion, suggesting (if I remember correctly) that the sovereign powers clearly relinquished by states to the fed under the constitution implied the absence of any sovereignty, and hence no right to secede without permission of Congress.

        Over the last few days I’ve read several Supreme Court decisions, including today’s on ACA, which make repeated references to the sovereignty of the states. For example, today in Roberts’ opinion he quotes from New York v United States (1992):

        ““State sovereignty is not just an end in itself: Rather,federalism secures to citizens the liberties that derive from the diffusion of sovereign power.”

        That seems a pretty clear assertion both that the federal government is not the sole sovereign, and that states retain their own sovereignty even within the federal system. Hence, I think my argument stands.

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        • That seems a pretty clear assertion both that the federal government is not the sole sovereign, and that states retain their own sovereignty even within the federal system. Hence, I think my argument stands.

          Still hoping for that right to secede? I seem to recall a war over that issue. Can’t quite recall how it turned out.

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        • yello:

          Can’t quite recall how it turned out.

          This has the ring of truth to it.

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  56. from Cato: The Court just told Congress it is okay to lie to the people to avoid political accountability.

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  57. also, i think mark was the closest on the prediction.

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  58. I believe I’m going to have to go get some broccoli to have for dinner tonight. . .

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    • I believe I’m going to have to go get some broccoli to have for dinner tonight. . .

      I’m going to have to insist that you buy me some too or pay a penalty, er, tax.

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  59. nova;

    it’s kennedy — i’m surprised too.

    Looks to me like the dissent was co-authored, particularly if you look at the top of the page where the authorship is usually denoted — all four names are up there.

    Certainly, some of the wording in the dissent smacks of Scalia.

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  60. Yes, it looks like Mark wins. The other winners are the thousands of Americans whose coverage won’t be cancelled. There are 11,000 Californians taking advantage of PCIP, without subsidies, fairly high monthly premiums, and high deductibles. To me that’s a clear message that even without the mandate people will generally purchase insurance to cover at least catastrophic and some annual health expenses. Before you say these are all sick people………………they’re not. Many of them have one health issue that prevents them from getting coverage on their own……………as is the case with our daughter, an otherwise healthy 33 (today’s her birthday btw) year old who happens to have been born with every allergy that runs in the family and asthma. All the bad genes in one tiny package. Others have bad backs, bad knees or whatever and of course there are those with cancer, heart disease etc.

    Anyway, I wasn’t a fan of the mandate and thought Obama et al really screwed the pooch on that one, but I am happy the rest of the law stands and will leave the Constitutional and legal arguments to others. I totally get that the decision took some or many liberties with interpretation and I’m sorry about that, honestly. The problem for me is that if we don’t move forward with the bill we’ve got, who knows how long it will be before there is political will again to address health care reform. I’m beginning to agree with others who claim that in general conservatives simply don’t believe in universal coverage at any cost and so I’ll take the good news today and be happy.

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    • lms:

      I’m beginning to agree with others who claim that in general conservatives simply don’t believe in universal coverage at any cost…

      No lms. Conservatives don’t oppose universal coverage at any cost. We oppose what liberals want, ie universal coverage at someone else’s cost.

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  61. lms:

    who knows how long it will be before there is political will again to address health care reform

    Exactly. This is better than the status quo.

    yello:

    I’m going to have to insist that you buy me some too

    I believe that you’re thinking of the current system, under which you go to the emergency room to get your broccoli and then I foot the bill. And have you seen that DeMint is calling for states to rebel against this ruling?

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  62. And have you seen that DeMint is calling for states to rebel against this ruling?

    He’s from South Carolina. It’s practically second nature to do so.

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  63. It’s to be expected from the left, but I had some faith in Roberts.

    He’s grown as a jurist. Think of all the cocktail parties he’ll be feted at now, where previously he might have been persona non grata? You should have more sympathy with Robert’s need for a robust DC social life. And praise from the WaPo.

    Anybody on the left going to retract their histrionics about how the nomination of Roberts was going to mean an end to love and beauty and freedom in the world, and the beginning of a long era of fascist right-wing activism from the SCOTUS? 😉

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    • Anybody on the left going to retract their histrionics about how the nomination of Roberts was going to mean an end to love and beauty and freedom in the world, and the beginning of a long era of fascist right-wing activism from the SCOTUS?

      One swallow does not a summer make.

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  64. Scott:
    That seems a pretty clear assertion both that the federal government is not the sole sovereign, and that states retain their own sovereignty even within the federal system. Hence, I think my argument stands.

    I agree that states retain their own sovereignty, including the right to secede from the union, as a matter of principal. However, should any state choose to secede, that sovereignty will not be honored by the federal government, and that state would be retained in the union by whatever level of force ultimately necessary . . . starting with commerce, but not stopping there.

    Any state that secedes is presented with immediate problems of currency, and a likely embargo. You’d have to be a very self-sufficient state to pull it off.

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  65. I’m beginning to agree with others who claim that in general conservatives simply don’t believe in universal coverage at any cost

    Ezra Klein makes the case that you are right about this.

    We oppose what liberals want, ie universal coverage at someone else’s cost.

    So raising the minimum wage high enough so that everybody can buy their own insurance would be a good idea then?

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    • yello:

      So raising the minimum wage high enough so that everybody can buy their own insurance would be a good idea then?

      I can only imagine the tortured mental process required to reach that conclusion, but no, of course not.

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  66. “Can’t quite recall how it turned out.”

    At least 618000 Americans died. Atlanta burned.

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  67. No lms. Conservatives don’t oppose universal coverage at any cost. We oppose what liberals want, ie universal coverage at someone else’s cost.

    Some conservatives don’t object to universal coverage, even at someone else’s cost . . . provided that (a) the coverage is a net positive, rather than a net negative and (b) the cost is not onerous, doesn’t present a drag on society, doesn’t choke chunks of the economy to death.

    While not a fan of the ACA (I’d prefer the status quo, with more robust medical savings accounts, catastrophic care insurance policies becoming more common, national insurance {often called buying insurance across state lines}, etc.), I try to look on the bright side: The ACA is so, so, so much better (and less evil) than Clinton-care, it’s like having a pebble in your shoe, as opposed to a boulder limned with sharpened iron spikes.

    Like

    • Kevin:

      Some conservatives don’t object to universal coverage, even at someone else’s cost…

      That is surely true, too.

      Like

  68. One swallow does not a summer make.

    A lesson Maverick John McCain could’ve taught Roberts. The mantra in politics (especially, IMHO, on the left) is “What have you done for me lately?”

    One wrong move, and it’s back to being ostracized.

    Like

  69. yello: So raising the minimum wage high enough so that everybody can buy their own insurance would be a good idea then?

    Would not helped the unemployed, of which there would likely be more, if the minimum wage was raised to $30 an hour. 😉

    Raising the minimum wage, it could be argued, is an effort to force some companies to compensate workers at a value beyond which the company receives for their service, in order that they might be able to purchase some desirable thing (like health insurance). Thus, it’s still arguably other people’s money, the mechanism for confiscating it is simply altered.

    Like

    • Kevin:

      Thus, it’s still arguably other people’s money, the mechanism for confiscating it is simply altered.

      Yes, but with the humpty dumpty principle, other people’s money can mean anything at all, including not other people’s money.

      Like

  70. Atlanta burned.

    There was a movie about that. Some lady shaking her fist and screaming about not going hungry. It’s starting to come back to me now.

    Like

  71. ScottC:

    You’d have to be a very self-sufficient state to pull it off.
    That is surely true.

    I am reminded of Rhett Butler’s speech to a the gung ho Confederates as they prepared for war in Gone With the Wind.

    “There’s not a cannon factory in the whole South . . . No, I’m not hinting. I’m saying plainly, the Yankees are better equipped than we. They’ve got factories, shipyards, coal mines and a fleet to bottle up our harbors and starve us. All we’ve got is cotton and slaves and arrogance.”

    Of course, I love Gone With the Wind.

    Like

  72. nova: Scott, I believe the legal justification is “fuck you, that’s why”

    That’s often my justification for all sorts of things. Oddly, it’s rarely well-received when I do it.

    Like

  73. …if the minimum wage was raised to $30 an hour.

    $22.50 an hour over the current minimum wage is an extra is $45k a year. That buys a very gold-plated insurance policy.

    Thus, it’s still arguably other people’s money, the mechanism for confiscating it is simply altered.

    By your definition all wages are somebody else’s money. In which case, only people who live on capital gains would deserve health care. It’s a good thing those aren’t taxed too heavily.

    Like

  74. “novahockey, on June 28, 2012 at 8:43 am said: Edit Comment

    “They gave Congress the power to regulate commerce, not to compel it. Ignoring that distinction would undermine the principle that the Federal Government is a government of limited andenumerated powers. The individual mandate thus cannot be sustained under Congress’s power to “regulate Commerce”

    small victory i guess.”

    No it’s not. Roberts has a majority of one on this and it certainly won’t constrain a future liberal court. Reversals count when it comes to jurisprudence. The rest is BS.

    Like

    • jnc:

      No it’s not. Roberts has a majority of one on this and it certainly won’t constrain a future liberal court.

      I don’t understand. Are you saying the majority ruling on the commerce clause does not govern future rulings (ignoring, of course, the tendency of some justices to ignore what the law says in any event)?

      Like

  75. Anyway, I wasn’t a fan of the mandate and thought Obama et al really screwed the pooch on that one, but I am happy the rest of the law stands

    I do not understand the compulsion to constantly re-invent the wheel. A series of modest expansions of Medicare could have gotten us just as close to universal coverage as the ACA has . . . without the individual mandate, or nearly as much rancor. And there’s an easy defense: “You don’t like Medicare? You think 65 year olds should be covered but not 60 year olds? Medicare is already there, we just want the unemployed to have a few more options to protect their health. Don’t you think that’s important?” etc.

    Re-inventing the wheel seems to be an ego-driven exercise, to me, rather than an effort to solve a particular societal problem, or advance a particular ideological goal. Modest expansions of Medicare overtime just weren’t “big” enough.

    Like

  76. Of course, I love Gone With the Wind.

    Shame they couldn’t rewrite the ending so the right side won. 🙂

    Like

  77. Some conservatives don’t object to universal coverage, even at someone else’s cost…
    That is surely true, too.

    You wouldn’t know it reading WaPo. 😉

    I would think pretty much all libertarians object, however.

    Like

  78. Shame they couldn’t rewrite the ending so the right side won.

    The right side did win. That is, Scarlett O’Hara. A pyrrhic victory, perhaps, but a victory none-the-less. That whole North/South thing was just background noise interfering with Scarlett’s plans.

    Fiddle-dee-dee.

    Like

  79. What don’t libertarians object to?

    Like

  80. “lmsinca, on June 28, 2012 at 11:31 am said:”

    “I’m beginning to agree with others who claim that in general conservatives simply don’t believe in universal coverage at any cost and so I’ll take the good news today and be happy.”

    For myself, universal coverage is a secondary goal to cost control. With the ACA, the two are in tension.

    It also attempts to cement the current system of employer provided health insurance in place, effectively becoming the “Status Quo Santification & Extension Act”. It won’t be improved or reformed going forward (See annual Medicare Doc Fix), but rather will simply add to the current level of spending until other countries figure out they aren’t going to be paid back for our debt and the whole fiscal structure comes crashing down.

    Like

  81. Bwahahahahahaha!!!!!

    Wonder how long it will take before this part (“Courts and The Constitution”) of Mitt Romney’s campaign web site gets changed??

    As president, Mitt will nominate judges in the mold of Chief Justice Roberts and Justices Scalia, Thomas, and Alito. These justices hold dear what the great Chief Justice John Marshall called “the basis on which the whole American fabric has been erected”: a written Constitution, with real and determinate meaning. The judges that Mitt nominates will exhibit a genuine appreciation for the text, structure, and history of our Constitution and interpret the Constitution and the laws as they are written. And his nominees will possess a demonstrated record of adherence to these core principles.

    Like

    • Mich:

      Wonder how long it will take…

      Shouldn’t have taken even this long. That should have been gone by 10:15 est this morning. Roberts obviously no longer qualifies as such a justice.

      Like

  82. By your definition all wages are somebody else’s money. In which case, only people who live on capital gains would deserve health care. It’s a good thing those aren’t taxed too heavily.

    Actually, by my definition, all wages that aren’t a product of market forces (or mutual agreements between parties) are “other people’s money”. That is, if I make the case I’m worth $100k a year, and you decide I’m right, and agree to pay me that, that’s my money. If the government tells you that you have to pay me $100k a year because I have a right to excellent healthcare and a new car every year (as a human right), then that would be confiscation of other people’s money.

    Yes, that would be a gold-plated insurance policy. What, you don’t think the average guy deserves decent insurance? What kind of monster are you? 🙂

    Like

  83. As president, Mitt will nominate judges in the mold of Chief Justice Roberts and Justices Scalia, Thomas, and Alito.

    While I may not be a fan of his most recent decision, I still like all these guys. So, that would be cool with me, if I didn’t think Mitt would be a train wreck of a president and a terrible standard bearer for both the Republicans and conservatism.

    Like

  84. What don’t libertarians object to?

    They don’t object to lots of individual freedom, liberty, and autonomy. They don’t object to extremely limited government. They don’t object to the new Dorito’s tacos at Taco Bell. Other than that, I can’t think of much.

    Like

  85. “quarterback, on June 28, 2012 at 9:48 am said:

    Constitution RIP 2012.”

    It’s more like RIP 1942. This is just the decomposition taking place. See also Kelo v. City of New London.

    Like

  86. It’s more like RIP 1942.

    I thought the same thing. Some folks would have argued in the early 1800s that the Constitution was done for, that the court was running roughshod over it, etc. But definitely once the courts started signing off on Roosevelt’s New Deal.

    Like

  87. on other thought — i’d have to go back and look for the numbers on who’s expected to be caught up by the mandate. bu the medicaid thing was a big part of the “universal” aspect of the law. if states’s don’t want to play ball, that’s millions without coverage

    Like

  88. Kevin:

    While I may not be a fan of his most recent decision, I still like all these guys.

    Yes, but you’re a rational person rather than a foaming-at-the-mouth reactionary! I read (either on PL or TPM) that somebody had already hacked Roberts’ wiki page and reworded it as “17th Chief Traitor”. I predict it gets reworded to leave Roberts out of that sentence by the end of the week.

    Like

    • There’s a saying that one “Oh shit!” erases all “Attaboys!” Roberts is going to have to do something like disenfranchise thousands of Florida voters to get back into the Right’s good graces.

      Like

  89. Scott:

    And yet it’s still up there (while I like the ruling, I understand your larger point about him no longer qualifying as that type of justice)! I think the Romney campaign, and the political Right in general, got totally blindsided this morning and they don’t know what to do right now.

    yello:

    He’s now just a JINO.

    FTW!!!

    Like

    • Mich:

      I think the Romney campaign, and the political Right in general, got totally blindsided this morning and they don’t know what to do right now.

      That seems unlikely to me. Lots of people predicted the mandate would stand. The primary surprise is that it was Roberts who joined the left, not Kennedy. Except to qb, who I think should win something for predicting Roberts’ vote.

      Like

  90. it’s not like the court was getting a lot of respect recently. as of 9:00 this morning, Roberts an arm of the Koctopus.

    Like

  91. For a somewhat contrarian view, here’s Randy Barnett, architect of the activity/inactivity distinction that was embraced by a majority of Justices.

    “Today, the Roberts Court reaffirmed the “first principle” announced by Chief Justice Rehnquist some 17 years ago in Lopez: the federal government is one of limited and enumerated powers. It accepted all of our arguments about why the individual insurance mandate exceeded the commerce power: “The individual mandate cannot be upheld as an exercise of Congress’s power under the Commerce Clause,” wrote Chief Justice Roberts. “That Clause authorizes Congress to regulate interstate commerce, not to order individuals to engage in it.” Then the Court went farther to invalidate the withholding of existing Medicaid funding as coercive, thereby finding an enforceable limit on the Spending Power.”

    A weird victory for federalism

    Like

  92. “ScottC, on June 28, 2012 at 12:35 pm said: Edit Comment

    jnc:

    No it’s not. Roberts has a majority of one on this and it certainly won’t constrain a future liberal court.

    I don’t understand. Are you saying the majority ruling on the commerce clause does not govern future rulings (ignoring, of course, the tendency of some justices to ignore what the law says in any event)?”

    There is no majority ruling on the Commerce Clause. There’s four liberal justices saying it’s a valid exercise of power under the Commerce Clause, four conservatives justices saying no it isn’t, and Roberts off by himself saying it’s a tax. The argument is extraneous to the ruling anyway.

    At the end of the day, reversals are what counts. The rest is BS.

    Like

  93. and Roberts off by himself saying it’s a tax. — but he also sided with the other 4 cons on the commerce argument.

    http://www.slate.com/articles/news_and_politics/scocca/2012/06/roberts_health_care_opinion_commerce_clause_the_real_reason_the_chief_justice_upheld_obamacare_.html

    Like

  94. Don’t I get points for predicting that the decision would be written by Roberts and would mention broccoli?

    Like

  95. You brought ‘um, you dict ‘um!

    Like

  96. A picture is sometimes worth a thousand words. . .

    Like

  97. Here’s the guy who really deserves the prediction prize:

    The court will uphold the constitutionality of the individual mandate. Roberts, writing for the majority, will offer a hyper-causuistical decision that discovers in standing commerce clause precedent principled grounds for ruling in an insurance mandate while ruling out congress’ power to mandate purchase of any goods and services that don’t begin with an “i” and end with an “e”, and aren’t ice or iodine. To brighten the dashed hopes of conservatives, the “Why there can never be a broccoli mandate” section of Roberts’ decision will on the whole narrow Congress’ commerce-clause regulatory powers. However, in their very great relief, and schadenfreude over bitter conservative disappointment, liberals will largely miss the minor revolution contained in Roberts’ sly scholasticism.

    Like

  98. mark:

    amount to a mere dictum

    I’m curious about your use of the word “mere”; it would seem to me that a dictum–if this is one–is pretty powerful stuff.

    Like

    • Michi-
      He says “mere” because dictum is not binding. It can be persuasive. I would think it may be particularly persuasive given that there are 5 justices that agree the mandate is not Constitutional under the Commerce Clause.

      Like

      • Yep. And my thought about clients avoiding some of the harsher OSHA penalties is definitely festering in my fevered lawyer imagination.

        Like

  99. Ahhhhhh–thanks, ashot!

    And how is ashot jr. doing?

    Like

  100. “ScottC, on June 28, 2012 at 1:55 pm said:

    Mark:

    amount to a mere dictum

    What does that mean? I think it is relevant to what jnc is trying to tell me.”

    It is. See this comment from QB about (of course) the dictum in Wickard v Filburn.

    “quarterback, on June 25, 2012 at 6:55 pm said:

    Wickard is a terrible decision and a Pandora’s Box. But the distinction between its holding and the copious dicta (discursive language unnecessary to the decision) in the opinion should not be forgotten.”

    https://all-things-in-moderation.com/2012/06/25/health-care-predictions-post/#comment-24617

    Like

  101. You lawyers and your imaginations. . . 🙂

    Like

  102. I predict it gets reworded to leave Roberts out of that sentence by the end of the week.

    I predict it won’t. Once the vandalism starts, the Wikipedia pages get locked down. 🙂

    Like

  103. Yes, but you’re a rational person rather than a foaming-at-the-mouth reactionary!

    I’m trying to be both. Nobody puts Baby in the corner!

    Like

  104. Nobody puts Baby in the corner!

    Dirty Dancing? You must have daughters.

    Like

  105. lmsinca: I . . . had the time of my life. And I’ve never felt this way before.

    Who doesn’t love a young Patrick Swayze? And a pre-nose job Jennifer Grey? Or how some obviously 80s sounding music was getting played back in 1963. It’s also a stealth tale of time-travel! Both in terms of music, and the availability of hair gel.

    Like

  106. I have two daughters. Not sure if they’ve ever watched Dirty Dancing. Maybe the oldest has? But she’s more into Twilight. Her big film for a while was Titanic. Now it’s Hunger Games.

    My wife is a big fan of Dirty Dancing. Most of the films the whole household agrees on are old: Gone With the Wind and It’s a Wonderful Life are perennial favorites.

    I’ve tried to encourage a love of Tron and Flash Gordon in my kids, and some other classics of my youth. More luck with the youngest than the oldest, and whatever luck I had with the oldest disappeared with puberty struck.

    Still, I dragged her to see Chronicle, because I thought she’d like it. And she loved it. She’s definitely my daughter, and I remember being that age.

    Like

  107. Kevin:

    Once the vandalism starts, the Wikipedia pages get locked down.

    Only it’s not his wiki, it’s his campaign’s web site!

    Like

  108. Kevin

    When our girls were young it was “Dirty Dancing”, “Cry Baby” and “Grease”. Our granddaughter is a whole different game though. She loves sci-fi but also loved “Twilight”. She’s 15 and even went to see “Wrath of the Titans” with us, her old grandparents, because she figured none of her friends would want to see it and she loved “Clash of the Titans”. We have a date for “The Hobbit” already.

    Our perennial favorites are probably “A Christmas Carol”, “Love Song for Bobby Long” and “Michael”. I hate to think how many times I’ve seen each of them. For me personally “It’s a Wonderful Life” and “To Kill a Mockingbird”. Jimmy Stewart and Gregory Peck, it doesn’t get much better than that.

    Like

    • We should do an old movies thread. I am a sucker for filling the screen both physically and thematically, at once.

      Lawrence of Arabia

      The Searchers

      Chinatown

      But I don’t like it if it gets gooey – no matter how big the theme and the screen – not Zhivago, for instance. I’ll bet we can all identify the types of movies we liked best, among oldies.

      Like

  109. Scott

    We oppose what liberals want, ie universal coverage at someone else’s cost.

    What we do now costs us all anyway and it’s not terribly efficient. I don’t see how you get to universal coverage without some paying more than others and some benefiting more than others.

    Like

    • lms:

      I don’t see how you get to universal coverage without some paying more than others and some benefiting more than others.

      Neither do I. I just want to be clear about what it is that opponents of Obamacare are opposed to, and it is not simply the oh-so-benevolent sounding “universal care”.

      Like

  110. Right now, we do not have universal coverage and we pay higher costs. The worst of both worlds.

    BB

    Like

  111. Look at this awesomely nonprescient comment by me:

    Submitted on 2012/02/29 at 5:13 pm
    I have not read the ABA brief (another reason why I find the ABA so objectionable), but it addresses a question that is different from the question of whether the penalty is a “tax” for constitutional purposes. The constitutional question is whether it is a tax within Congress’ taxing and spending power. The question addressed by the ABA is whether it is a tax within the broader meaning of the Anti-Injunction Act. It is quite possible for the penalty to be a “tax” for purposes of the latter (meaning the lawsuits would be premature) but not for purposes of the former.

    Now, what I said here was actually right. Normal people with common sense reading the relevant statute and constitutional provisions would think that it is plausible for something to be a tax under the Anti-Injunction Act but not for purposes of the taxing power.

    They had to execute a real twisting backflip to thread the needle the other way. I have to read the whole awful thing, but my respect for Roberts is at zero right now. It is just unfathomable that intelligent people could get there that way.

    Like

  112. Scott

    it is not simply the oh-so-benevolent sounding “universal care”.

    I have the feeling you think I was implying something that I wasn’t. I understand why conservatives, most anyway, and libertarians don’t support it.

    Like

  113. lms:

    I have the feeling you think I was implying something that I wasn’t.

    Well, it seems to me that the term “universal care” can refer to one of two things. Either it means a government mandated program that ostensibly provides for the health care needs of everyone universally, or it means simply a world in which no one wants for health care. The former is something that is opposed, in principle and for philosophical/economic reasons, by many conservatives. The latter is an ideal that is opposed by no one other than mean spirited people who want others to suffer just for the sake of seeing them suffer.

    So, when you say that you are “beginning” to believe conservatives really do, at any cost, oppose “universal care”, I think that can only be either an expression of some newly discovered understanding of conservative principles and philosophy or it is an expression of acceptance of the all-too- typical liberal caricature of conservatives as heartless monsters. I’d rather not believe the latter, but after 2 (or has it been 3?) years of discussing politics with you, I just don’t believe that you are only just now grasping that conservatives have a philosophy that leads them to oppose the kind of state mandated solutions that you desire.

    So if you weren’t implying the latter, what did you mean?

    Like

  114. Scott

    You’re just about as bad of a mind reader as you are a prognosticator of SCOTUS decisions (joke). I don’t believe there are only two interpretations of universal coverage even from the conservative perspective but I suppose I’m wrong as usual. In my mind it simply means that the risk is pooled by everyone who wants or needs coverage and some basic benefits are provided to all at some cost to all. I wasn’t implying you or anyone else is a heartless monster. I guess I naively thought that at least some conservatives found some benefit to the general idea of universal coverage but were more or less constrained by the same financial argument you and others have made numerous times. I suppose I don’t believe that anymore, so after three (yep it’s been that long) years I really am still confounded by such a rigid ideology but it has nothing to do with liberal speak or group thinking that conservatives are heartless. Honestly, after everything I’ve said and done I’m disappointed you would think that, but that’s really neither here nor there I suppose.

    Here’s a definition that sounds close to what’s in my mind when I think of Universal health care. It’s a wiki definition but the one that most closely matches what I think of.

    Universal health care – sometimes referred to as universal health coverage, universal coverage, universal care or social health protection – describes health care systems organized around providing a specified package of benefits to all members of a society with the end goal of providing financial risk protection, improved access to health services, and improved health outcomes. Universal health care is not a one-size-fits-all concept; nor does it imply coverage for all people for everything. Universal health care is determined by three critical dimensions: who is covered, what services are covered, and how much of the cost is covered.

    Like

    • lms:

      I guess I naively thought that at least some conservatives found some benefit to the general idea of universal coverage

      No doubt some do. Those that don’t probably recognize that the quest for such a thing can only be achieved via means contrary to both their own notions of a free society and those that animated the creation of our country.

      Like

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