The Political Supremes

Posted on June 29, 2012 by ScottC

The WSJ today notes something odd that I noticed and thought was peculiar yesterday in reading through the dissent:

One telling note is that the dissent refers repeatedly to “Justice Ginsburg’s dissent” and “the dissent” on the mandate, but of course they should be referring to Ruth Bader Ginsburg’s concurrence. This wording and other sources suggest that there was originally a 5-4 majority striking down at least part of ObamaCare, but then the Chief Justice changed his mind.
The Justices may never confirm this informed speculation. But if it is true, this is far more damaging to the Court’s institutional integrity that the Chief Justice is known to revere than any ruling against ObamaCare. The political class and legal left conducted an extraordinary campaign to define such a decision as partisan and illegitimate. If the Chief Justice capitulated to this pressure, it shows the Court can be intimidated and swayed from its constitutional duties. If this was a play to compete with John Marshall’s legacy, the result is closer to William Brennan’s.

Charles Krauthammer proposes a similarly political explanation for Roberts’ decision.

Why did he do it? Because he carries two identities. Jurisprudentially, he is a constitutional conservative. Institutionally, he is chief justice and sees himself as uniquely entrusted with the custodianship of the Court’s legitimacy, reputation, and stature…
How to reconcile the two imperatives — one philosophical and the other institutional? Assign yourself the task of writing the majority opinion. Find the ultimate finesse that manages to uphold the law, but only on the most narrow of grounds — interpreting the individual mandate as merely a tax, something generally within the power of Congress.

Whether or not this is true, Roberts’ decision will not, and should not, restore any lost legitimacy of the court. The legitimacy of the court (to the extent that it even matters) had not been brought into question because one or two contentious decisions have been perceived as politically motivated. The legitimacy of the court is in question because the court has become a political institution. In our post-Roosevelt and, in particular, post-Roe world, justices are appointed and confirmed to the court by politicians in a blatantly transparent effort to effect political ends via the judiciary. And once on the court, those justices do what they were nominated to do. From a layman’s perspective, it has become obvious that, on many politically contentious issues that make it to the court, justices have a preferred result in mind and use whatever lawyerly semantics, sophistry and tortured reasoning they can to justify reaching that preferred outcome.

Far from dispelling this impression of the court, Roberts’ opinion merely strengthens it. The fact that he is a conservative joining a bloc of liberals does nothing to blunt the undeniable conclusion that this decision was politically motivated. It doesn’t matter much whether it is because he likes the direction in which Obamacare is taking the nation, or because he is trying to – ironically – alter perceptions of the court. It is clear that he has engaged in the same semantics, sophistry and disingenuous parsing that has made so many of us non-lawyers so cynical about the court’s proceedings.

If Krauthammer is correct and Roberts’ decision was driven by a desire to burnish the courts flagging reputation as an impartial, non-political interpreter of the law, he could not possibly have taken a more counter intuitive approach, nor have failed more abysmally.

Filed under: Supreme Court | 141 Comments »

Gay Marriage Strawman 3: Think Of The Children

Posted on June 28, 2012 by yellojkt

Third in a four part series.

One of the most common mantra against allowing gays and lesbians to marry is that marriage is meant to be between one man and one woman. When asked why, the response is that only a man and a woman can make a child. Despite this basic biologically obvious observation, not all men nor all women can make a child. Otherwise an enormous fertility industry would not exist. Nor do all married couples want children despite the best efforts of some to turn back Griswold vs. Connecticut.

If children were the sole reason for marriage, then the logical position would be to deny licenses to anybody who cannot produce a positive pregnancy test result. Indeed, apocryphally (and I cite Jude the Obscure as but one literary example) many marriage proposals in times past not involving the exchange of property occurred only after a metaphorical rabbit had died. For peasant farmers there was no reason to do otherwise. And if marriage was only for raising children the fact that infertile people or post menopausal women can get married proves that there are larger issues than just procreation in the mix.

Recently David Blankenhorn has reversed his position against gay marriage which had largely been based on the pro-procreation argument.

I had hoped that the gay marriage debate would be mostly about marriage’s relationship to parenthood. But it hasn’t been. Or perhaps it’s fairer to say that I and others have made that argument, and that we have largely failed to persuade. In the mind of today’s public, gay marriage is almost entirely about accepting lesbians and gay men as equal citizens.

He makes the case that it is ironic that the gay community is embracing marriage as broader society is becoming more blasé about it, with or without children. 53% of children born to mothers under the age of 30 who weren’t married. Many weddings that do occur now include the children of the bride and groom as members of the party.

And lots of gay couples enter marriage to form families. Despite the biological headwinds they face, they have available the same resources heterosexual couples can take advantage of, adoption, donor sperm, surrogacy, etc. And to say that a gay or lesbian person is not the parent of a child just because they have no genetic material at stake is an insult to any adoptive or step-parent who has ever taken on parental duties.

But having children is not the sole or even primary reason to get married. Many straight couples never intend to have kids. Why should gay couples have to meet some higher standard? Marriage throughout history has had many purposes, exchange of property, insurance of fidelity, political bonding, but the modern notion is that marriages should be based on love and affection. While arranged marriages still occur in many cultures, the Western notion of the love match is taking root through the soft imperialism of popular culture.

And with modern contraception, children are not a necessary nor sufficient reason for a marriage. For two people to get married the necessity nor the possibility of them having children no longer makes any sense as a criteria. A mutual affection and a desire for commitment should be be all that is needed.

Filed under: gay marriage | 25 Comments »

What’s Next

Posted on June 28, 2012 by jnc4p

The PPACA extends the current system to more people to increase coverage, but doesn’t fundamentally reform health care at the delivery level. As such, it will not succeed in bending the cost curve to make the growth rate of health care spending sustainable. The interesting question now is what path it takes when it inevitably collapses. I see one of two options: 
 
1. “Individual Market Based” – Some combination of Ron Wyden’s and Paul Ryan’s reforms are enacted eliminating the employer based tax preferences and replacing them with individual tax credits, thus eliminating the already tenuous “firewall” between the exchanges and the employer based system.  
 
Medicare and Medicaid (and potentially TriCare) are voucherized and integrated into the existing subsidy system in the exchanges so that all health insurance is purchased by individuals in the exchange system with varying levels of subsidies and tax credits based on age and income. About as close to “Free Market” as you are likely to get. 
 
2. “Single Payer (sort of)”. Medicaid for all is enacted replacing the exchange system entirely with a universal minimal standard insurance package provided by the government. Coverage and reimbursement is dictated by a more robust version of the Medicare Payment Advisory board that strictly limits name brand drugs and other expensive treatments in favor of generics and applies similar cost/benefit analysis to approved procedures (and reimbursement rates). The ability to see specialists without a referral or otherwise go “out of network” is curtailed, as are end of life procedures.  
 
In parallel with the public system, private insurance and medical care remain to provide enhanced care for those who can afford it.  
 
Eventually, the public system comes to resemble public schools vs private schools as taxpayers who opt for the private system are not receptive to tax increases to maintain and improve a public system that they themselves do not participate in, thus regulating the public system to a second tier level of care, much like Medicaid is today.

Filed under: aca, Affordable Care Act, healthcare, PPACA | 53 Comments »

SCOTUS Decision (Open Thread)

Posted on June 28, 2012 by lmsinca

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?

Filed under: aca, Supreme Court | 158 Comments »

How Different Are Adult Children of Parents Who Have Same Sex Relationships? Comment on a study

Posted on June 27, 2012 by Fairlington Blade

The starting point for this thread is a comment written by QB on the gay marriage thread. To quote: “Recently a study came out, greeted by a firestorm from the left, refuting claims that children do equally well raised by either a mother and father or by same-sex couples.”

I presume that QB is referring to M. Regnerus, “How different are the adult children of parents who have same-sex relationships? Findings from the New Family Structures Study”, Social Science Research 41 (2012) 752 – 7750. As my institution has a subscription to Elsevier journals, I was able to download the original article. This is copyrighted material, so I cannot post it in full here. I think it’s fair use to post the abstract as Harvard does that.

Abstract

The New Family Structures Study (NFSS) is a social-science data-collection project that fielded a survey to a large, random sample of American young adults (ages 18–39) who were raised in different types of family arrangements. In this debut article of the NFSS, I compare how the young-adult children of a parent who has had a same-sex romantic rela- tionship fare on 40 different social, emotional, and relational outcome variables when com- pared with six other family-of-origin types. The results reveal numerous, consistent differences, especially between the children of women who have had a lesbian relationship and those with still-married (heterosexual) biological parents. The results are typically robust in multivariate contexts as well, suggesting far greater diversity in lesbian-parent household experiences than convenience-sample studies of lesbian families have revealed. The NFSS proves to be an illuminating, versatile dataset that can assist family scholars in understanding the long reach of family structure and transitions.

This is an excellent example of something worth addressing in greater detail. That is, a non-specialist citing current research. [Edit. I recognize this post is doing exactly the same thing. I can drill down a bit further and have familiarity with the publishing process, so have attempted to discuss it in those terms.] One paper cannot simply refute such claims. Then again, the author doesn’t attempt to do so in this paper. Regnerus does raise some interesting questions.

In my science post some time ago, I discussed the pecking order of journals. SSR has an impact factor of 1.57, a bit on the low side. The author’s decision to submit to SSR rather than a higher profile journal may indicate anticipation of a backlash or that he had trouble getting it into a more highly cited journal such as American Sociological Review (3.7). Elsevier is a highly regarded publisher, so he didn’t just put it in a fly by night journal. The paper was accepted within 4 weeks of being submitted. Also, it usually takes an editor a week or two to assign a paper and get a referee to review it. I seriously doubt this paper had more than a cursory review. That doesn’t mean it’s bad research, but it raises a caution flag when it comes to drawing sweeping conclusions.

There are some legitimate questions that can be raised about this study. Principle among these is false equivalence. The comparison is between “intact biological families” (IBFs) and children who report a parent as having a same sex relationship. These are not directly equivalent. As a classic example, a case where a father comes out of the closet and divorces the mother. A better comparison would be with a failed, heterosexual marriage. The author concedes this point. Quoting from the paper: “Child outcomes in stable, ‘‘planned’’ GLB families and those that are the product of previous heterosexual unions are quite likely distinctive, as previous studies’ conclusions would suggest.” He did not attempt to draw this direct parallel or control for other factors (see below). He does make a strong point in that other opposite sex relationships (step parent, cohabitating) fail to achieve the same outcome as IBFs.

Much of the paper is a data dump. It’s useful as a starting point, but drawing conclusions is challenging. There’s a few oddities. For example, only 61% of children with a lesbian mother identify as heterosexual and 71% of children with a gay father. Only 82% of children of non-IBF or non-GLB parents identify as entirely heterosexual. [Note: this is adoptive, step, single parent or other.] Those are far higher numbers than generally accepted (probably 3% – 5%). Are we talking bi-curious? Having had a same sex encounter at some point? I’m a little suspicious. I don’t know if there’s some sample bias (the author worked very hard to get a large sample size, by the way) or something else is operative. If truly a random sample, a tenfold increase suggests a biological connection or there may be issues with the sample. I’d be interested in seeing how those numbers compare for children in which the parent with custody is homosexual.

Another number. 23% of respondents with a lesbian mother report having been sexually touched by a parent or other adult. This compares with 2% for children of IBFs. Contrast this with the overall estimation for the population of 10% or more. I’d like to see how this particular study compares with other studies, independent of the sexuality of the parent. Heck, 69% of children of lesbian mothers report having been on welfare. There’s some really surprising data there, but no follow through. I don’t think the author performed adequate control checks on his sample. That’s probably an issue of resources.

I’m not questioning the accuracy of Regnerus’s reporting, but rather the depth of the study. Overall, this is interesting work, but far from conclusive. The author makes a strong point that studies need to be performed with larger sample sizes. It does open the prospect to me that there may be statistically different outcomes between a planned GLB family and an IBF.

There are also some strong points for proponents of gay marriage in the study. Regnerus cites previous research that outcomes are better for children of a married, heterosexual couple than for cohabiting couples. I quote from the introduction:

“Social scientists of family transitions have until recently commonly noted the elevated stability and social benefits of the two-parent (heterosexual) married household, when contrasted to single mothers, cohabiting couples, adoptive parents, and ex-spouses sharing custody (Brown, 2004; Manning et al., 2004; McLanahan and Sandefur, 1994).”

Those opposing same sex marriage should consider this point. Opposing it apparently condemns children of those relationships to inferior outcomes, to the detriment of society. I suspect there will be interesting research in the decades to come, particularly when it comes to the outcomes of children of married gay or lesbian parents as opposed to those who can only cohabit due to the laws of their state.

BB

Filed under: gay marriage, homosexuality | Tagged: | 43 Comments »

Gay Marriage Strawman 2 – Man on Dog

Posted on June 27, 2012 by yellojkt

Second part of a four-part series. Thanks to everyone wishing my cousin well. She has changed her Facebook status, implying that they got married in DC today.

In the first post of this series I mentioned that one of the arguments marshaled by opponents of marriage equality is that it will lead to open practicing of pedophilia. Another frequent slippery slope case made famous by none other than erstwhile presidential candidate Rick Santorum. In the famous interview he said:

In every society, the definition of marriage has not ever to my knowledge included homosexuality. That’s not to pick on homosexuality. It’s not, you know, man on child, man on dog, or whatever the case may be. It is one thing. And when you destroy that you have a dramatic impact on the quality —

It was this equating homosexuality with pedophilia and bestiality which prompted Dan Savage to redefine ‘santorum’ in a way that muddied his name forever. But he isn’t even the only presidential candidate to make the connection. Here is Michele Bachmann and Glen Beck making the direct comparison.

This is not to say that there are not proponents and advocates of bestiality. Here is a British documentary on zoophiles. As you might imagine, it’s rough stuff. But they are hardly mainstream and usually much reviled, ridiculed, or pitied. In addition to the general rubric of ‘unnatural acts’ (the same broad blanket which covers homosexuality and non-reproductive heterosexual acts), bestiality invokes the ire of animal rights activists, proving that opposition to the practice is not the sole providence of one end of the political spectrum.

But by equating bestiality with homosexuality, anti-gay rights advocates are literally dehumanizing gays and lesbians. It defines all homosexuality as a perversion of the highest order. This is thankfully now a minority view.

The mere engaging in homosexual acts has been protected since at least Lawrence vs. Texas. The primary reason gay rights advocates want gay marriage for the legal protection it entails. It is the legal benefits of the 1138 legal rights and responsibilities which marriage confers. They include:

Property inheritance without probate
Military and veteran benefits
Medical visitation and decision rights
Legal status in adoption and step-parenthood

If it were only about sex, there would never be an issue. Nobody can prevent you from teaching your dog to lick peanut butter off your genitals, but that is no reason to need to get married. Marriage is about forming legal and permanent and loving bonds. And that is something you can’t do with a dog, cat, horse, sheep, chicken, or gerbil. You can will a pet your entire fortune but you cannot give it a medical power of attorney.

Marriage creates a relationship that cannot be easily duplicated by other means. When one creates a life-bond with a partner it should supersede other previous relationships. The cases where estranged parents make life or death decisions for their gay adult children just because the person’s life partner has no legal standing are heartbreaking. To deny these rights to any couple just because of the gender of who they choose to love just doesn’t make sense.

Filed under: gay marriage | 15 Comments »

Gay Marriage Strawman 1: Free Sandusky!

Posted on June 27, 2012 by yellojkt

First in a four-part series.

The implementation of same-sex marriage has been accompanied much gnashing of teeth, mostly along slippery slope lines, about the impending collapse of civilization while not noting that civilization has been collapsing just fine without it. This Saturday my cousin will be in some sort of ceremony with her girlfriend of several years. I really don’t know whether it is a legal marriage since the Maryland marriage equality law does take effect (barring a referendum challenge) until January.

Regardless, the entire family including my very conservative father will be there to celebrate this happy occasion. This seems to be a good time to ruminate on the various arguments which have been arrayed against gay marriage.

One is that once gay marriage is allowed, it will shortly allow pedophiles to marry the objects of their affections and for incest to run rampant. One such subscriber to this fear mongering is Vicky Hartzler (R-Missouri) who worries:

Why not allow an uncle to marry his niece? Why not allow a 50-year-old man to marry a 12-year-old girl if they love each other and they’re committed?

The National Organization for Marriage raises the concern this way:

When you knock over a core pillar of society like marriage, and then try to redefine Biblical views of marriage as bigotry, there will be consequences. Will one of the consequences be a serious push to normalize pedophilia?

Notice the way that both of these quotes are in the hypothetical because nobody is seriously proposing this. When pushed to extremes, groups will cite the North American Man-Boy Love Association aka NAMBLA, a nearly apocryphal group not unlike the New Black Panthers which seems to exist only to serve as a strawman. No serious statement has been issued by the groups since the late 90s when they were driven out of GBLT umbrella groups out of genuine outrage.

As the recent Sandusky case attests, nobody is out there defending the right of adults to sexually exploit minors. Even in cases which would seem to push the boundaries such as Mary Kay Letourneau (afterall, what middle school boy hasn’t been hot for teacher, amirite?) the social approbation has been nearly universal.

Several issues get conflated, but several broad bullet points need to be always mentioned.

Few gay men are pedophiles.
Most pedophiles, even those who abuse boys, are straight.
Most pedophiles were victims of sexual abuse themselves.

Frankly , most revulsion towards gay marriage is simply thinly veiled homophobia over the fact that gay sex is icky. That is why lesbian couples such as Mary Cheney and Heather Poe, as well as my cousin, are much more palatable to the public than the male variety. But that is why straight men watch ‘lesbian’ porn and women write slash fiction.

But to say that same sex marriage is going to release the floodgates for pedophiles eager to use this as a camel nose under the tent is simply false. And the key difference is one of consent. Minors are not considered able to consent knowledgeably. And while the laws vary widely from state to state, there are key broad assumptions about how and when minors can engage in sex and/or get married, and the rules are often different. For example, Maryland had an age of consent exemption allowing a marriage to women as young as thirteen provided the bride was pregnant (thus making Hartzler’s argument above moot). And by simple biology this situation can’t possibly be gay. It’s the straight abusers of children who were being legally protected.

Letting adult gays and lesbians marry isn’t going to make pedophilia socially acceptable as long as parents love and protect their children. And adult homosexuals fucking each other in their own marriage beds is not something kids need protection from.

Filed under: gay marriage | 112 Comments »

Morning Report

Posted on June 26, 2012 by Brent Nyitray

Will be away for the rest of the week, so no MRs

Be back next week.

Filed under: Morning Report | 16 Comments »

Bites and Pieces: Perfect Chicken

Posted on June 25, 2012 by Fairlington Blade

I’ve mostly been on the road this week. My sons finished kindergarten (yay!) on Wednesday, which happens to be the day that my wife was starting a week long job for the US Forest Service. I’m transferring to a new job in July, so a family break seemed warranted.

I found a surprise along the way. There’s a pretty decent Italian place in Lewisburg, WV, of all places (Giovanni’s). I ordered lasagna for Secondo, pasta with greens and sausage for Primo (he’s on a health kick), and a roasted veggie salad for myself. I figured I could hoover up what they left behind. Well, the salad was terrific. A good balance of veggies and the roasted squash really added heart. The pasta and greens didn’t look like much, but looks can be deceiving. They used broccoli rabe for the greens and a mild sausage that balanced the dish. The pasta was penne and cooked al dente. The lasagna was simple–a couple layers of noodles with ricotta in the middle and marinara on top. I took a bite of it and got a surprise. The noodles were tender and the ricotta is as good as anything I picked up at the Italian Store in Arlington. Turns out they make everything in house. This is the kind of restaurant everyone wishes they had in their neighborhood. The total was $37, including two sodas.

But that’s not important right now. I’m writing about chicken. The day after I arrived at the lake, my brother made a beer can chicken. I’d never tried it before. It was quite good, but he misjudged the timing (we didn’t have a thermometer) and so the inner portions were undercooked. That’s the eternal problem with roasting a chicken. Undercooked meat or dried out breast meat (or in the worst of all cases, both). How to solve it?

One of my sons was wanting chicken and I know my parents enjoy it. So, what to do? On a whim, I decided to try a butterflied chicken. Cut out the backbone, flatten the thing, and roast it. As a bonus, you can use the wings and the back to make a nice mini batch of stock. I did a bit of hunting about and came upon Kenji Alt’s blog. He used to appear on America’s Test Kitchen. The method seemed straightforward and dispensed with turning the chicken. The ideal is 150 degrees for breast meat and 170 for dark meat. I was shocked when the meat thermometer registered the perfect temperature both times. And the chicken was perfect! 

1. Preheat the oven to 400 degrees.

2. Take a 3 1/2 – 4 lb. chicken. Brine it if you like (I do) and air dry. Cut out the backbone with some kitchen shears. Flatten the beastie. Spread a tablespoon of vegetable oil (sesame oil is tasty) over the top and season with salt and pepper. I shoved a couple tablespoons of butter between the skin of the breasts and the meat. It may be gilding the lily, but what the hey.

3. Slide up a half dozen small (1″) potatoes. Toss with oil and put in the bottom of a roasting pan. Put a flat rack on top and place the chicken on it. [Note: don’t use a V-rack for a butterflied bird. If you don’t have a flat rack, just put it right on the potatoes.]

4. Roast the bird for about 45 minutes, until the breast meat registers 150 degrees and the thigh registers 170 degrees. As I noted above, it worked perfectly for me.

5. Let the bird rest for 5 minutes and then enjoy!

 

BB

Filed under: Bites and Pieces, cooking, food, fun stuff | 4 Comments »

Health Care Predictions Post

Posted on June 25, 2012 by novahockey

Prediction time — by 9:00 Thursday morning enter your prediction.  To keep this somewhat simple, include (at a minimum) the outcome on the mandate and the related insurance reforms (guarantee issue and community rating), the vote, and who writes the opinion for the majority and the dissenters and a brief rationale.  If you want to weigh in on the Medicaid expansion feel free.

Example:

6-3 mandated overturned, but guarantee issue and community rating upheld.  Roberts for the majority, Kennedy concurring, and Thomas with the dissent.   Congress can dictate how insurance is sold and priced, is within its rights to require companies to sell to all comers, but it can’t make an individual purchase  it.

Just edit the post to insert your comments next to your handle.  Applogies if I’ve missed a name.

UPDATE:  How to read the ruling from SCOTUSblog

NoVA: Mandate is unconstitutional based on a vote of 5-4.  Based on this, the entire law goes down 6-3, as one of the liberals —  Sotomayor — joins with the rest majority on the severability issue and finds that Congress did not want the rest of the law without the mandate.   Roberts with the majority, Thomas with a concurrence that eviscerates the reasoning behind Wickard,  and Kagan with the dissent.

ScottIn a total shock, one liberal justice (not sure which one) decides to actually read the constitution and betray the cause, sending the mandate down in flames, 6-3. Then, in October, Yankees over the Nationals in 6. A-Rod goes 0 for the series, Strausberg get the win in both National victories, including only the second perfect game in World Series history, but Robinson Cano win Series MVP honors after hitting .515.

LMS  Mandate goes down 5-4 with Scalia writing a scathing critique of Obama as the majority.  I read about his dissent in the immigration case, took it all the way back to the civil war and free blacks from what I heard.  Ginsburg writes the dissent.  I’m not sure about the rest (or even the above frankly) but I don’t really expect the rest of the law to stand as is.  I’m just not enough of a lawyer (none at all actually) to know how they could frame it.

Yanks vs Angels in American League Playoffs…………..Trout saves game five for the Angels with an over the wall catch and two home runs but Weaver pitches the no hitter that clinches the AL title in six.

NoVA, what do we win if we get it right?  What’s the prize?

Mark  

1] Severance.  Addressed only by Thomas and Scalia in their dissents.

2] Medicaid.  Roberts writes majority opinion on all points.  6-3 uphold expansion, but more important to the state AGs, effectively 8 vote that the Congress cannot penalize a state for refusing the “voluntary” expansion.  Breyer dissents that the states can be penalized for refusing the “voluntary” expansion.    The state AGs get what they hired Clement to do.

3] Individual Mandate.  Congress can dictate how insurance is sold and priced, is within its rights to require companies to sell to all comers,  can’t make an individual purchase  it, but can tax the uninsured, which is what Roberts says is being done.  Upheld, 6-3, Scalia, Thomas, and Alito dissenting.  Breyer concurs but writes an opinion that Congress can make an individual purchase insurance if it is part of an overarching scheme to provide health care for all.  Kagan and Sotomajor join the concurrence but RBG does not, preferring to join Roberts and Kennedy in the Opinion.

4]  Anti-Injunction statute.  Roberts shuts that door on a second attack in 2015.  Scalia writes an attack dissent to this, suggesting that the first time someone pays the tax he should sue for a refund, because this whole scheme is an imposition on liberty.

I might change my mind, because like QB I really go back and forth on this.

Banned

Yello The insurance mandate is struck down 5-4 with Roberts writing the main opinion. Scalia’s concurring opinion mentions broccoli explicitly. Kennedy writes a separate concurring opinion undercutting Scalia and giving guidance on how a rewrite could pass muster.

Brent

Kevin

Michi

Entire law stands 6-3, Alito, Scalia and Thomas dissenting.  Georgia just opened the door to interstate commerce with its new health insurance law, and the Court has to address it; Roberts sees the long picture and decides to go with history.  Of course, I’m writing this without the benefit of having read any of the learned comments posted below, so. . .

Roberts writes the majority opinion, with Sotomayor and Ginsberg writing their own concurrences (if that’s the right term), and Scalia jumps the shark again in his dissent.

Scott–I never knew that you were such a romantic!  Cano batting 0.515?!?!!  🙂

Ashot

Mike Well, FWIW …

1) Anti-Injunction Act. 7-2, SCOTUS is not precluded from deciding. Roberts writes that the penalty is really a penalty and not a tax because the word “penalty” is written into the legislation. So, AIA doesn’t apply. Scalia/Thomas dissent.

2) Mandate. 6-3, mandate upheld. Roberts buys the argument that Congress can regulate the purchase of health care and that buying health insurance is the way that most health care is purchased. Since Congress has already mandated that emergency rooms must provide health care regardless of ability to pay (through EMTALA), they can assess a penalty for “costs.” The activity/inactivity argument is tackled using Judge Sutton’s formulation of self-insurance. Scalia/Thomas/Alito dissent, each writing a dissent and reading from the bench.

3) Severance. Mooted by the majority opinion upholding the mandate.

4) Medicaid expansion. 7-2, upheld. Roberts is unwilling to go back through all the Spending Clause cases and agrees with the lower courts that the expansion is consistent with Congress’ spending power. He is also unwilling to set a precedent for the application of coercion theory in this case. Scalia/Thomas dissent.

Dave!

TrollMcWing

Quarterback:  Upheld 5-4. Kennedy will not have the courage to do the right thing. As the Casey plurality opinion showed, he is more committed to protecting what he sees as Court legitimacy than to following the Constitution. [I have changed my mind several times recently, and may do so again! In fact, even now I am trying to imagine how he will rationalize upholding it. I would like to read all the Arizona opinions first but probably won’t have time.]

jnc4p

Fairlington Blade:  Mandate goes down 5-4, but I’ll go with severability. Most of the law stands.

okie

allbutcertain

bsimon

Filed under: aca, Affordable Care Act, Supreme Court | 91 Comments »

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