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Sam Stein
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Supreme Court Clerks Predict Health Care Reform Will Be Upheld

Posted: 03/26/2012 11:34 am Updated: 03/27/2012 8:37 am

Supreme Court

WASHINGTON -- The lawyers who know the Supreme Court justices best seem largely certain that they'll uphold the president's health care law following the next three critical days of oral arguments.

The Republican-leaning American Action Forum and the centrist-Democratic group Blue Dog Research Forum released a poll of former clerks of current justices, as well as attorneys who have argued before the court. In it, they asked for predictions about how the court will rule on the Affordable Care Act.

Only 35 percent of respondents felt that the individual mandate penalizing those who decline to buy health insurance would be ruled unconstitutional. More than a quarter of respondents (27 percent) expected that the case would be thrown out until the mandate actually comes into effect in 2014, with the justices citing the Anti-Injunction Act as a way to argue that there is no standing for a suit.

The findings are far from scientific. Only 66 people participated in the survey -- 43 former clerks and 23 other attorneys -- a group American Action Forum compiled through public records searches of recent cases. Moreover, the tilt of the respondent pool was, like the court, a bit conservative. The survey describes the respondents as follows: "Of the Supreme Court clerks, 12 clerked for the 'left' block of the Court (Justices Breyer, Ginsburg, Kagan, Sotomayor), 21 clerked for the 'right' block of the Court (Justices Alito, Roberts, Scalia, Thomas), and 10 clerked for Justice Kennedy."

But the percentages still reflect what has been the conventional wisdom among those in the legal community heading into this week's oral arguments. As it stands now, the bet is that the court will ultimately rule the Affordable Care Act constitutional. The reasoning for this usually falls into one of three categories: that the small sliver of legal precedent suggests the law will be upheld, that the court would respect congressional action as a default position, or that individual justices are invested in establishing their bipartisan credentials this go-around.

That latter bit of armchair psychology always seemed a bit of a reach, with law professors pontificating about how Chief Justice Roberts wanted to shape his legacy. The poll by American Action Forum and Blue Dog Research Forum, at the very least, relies on the opinions of those individuals who have actually worked with the justices.

All the respondents were asked what would happen if the court ruled that the mandate was unconstitutional. Thirty-six percent said that the justices would end up ruling that the mandate was subsequently severable from the law, meaning that the rest of the legislation could legally stand without it. Thirty-eight percent said that they believed it was partially severable, meaning that other provisions (likely the language prohibiting discrimination against people with pre-existing conditions) had to fall with it. Just over a quarter of respondents (27 percent) said that the mandate was non-severable.

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WASHINGTON -- The lawyers who know the Supreme Court justices best seem largely certain that they'll uphold the president's health care law following the next three critical days of oral arguments. ...
WASHINGTON -- The lawyers who know the Supreme Court justices best seem largely certain that they'll uphold the president's health care law following the next three critical days of oral arguments. ...
 
 
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COMMUNITY PUNDITS
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elfish 05:49 PM on 03/26/2012
Here's the Ironic part:

If the Individual mandate is overturned because the court decides it is unconstitutional to require a private citizen to buy a product from a private company...

It also means that Social Security, Medicare, Medicaid, and VA Health benefits can't be privatized or voucherized. 

Privatization would mean that you would force people to buy  Read More... to replace Social Security, Medicare, Medicaid and VA Benefits. It would also mean that Medicare Advantage (which is a partial privatization of Medicare) would become unconstitutional overnight.

I wonder if the conservative justices will be thinking about that as think about their decision:

Overturn the individual mandate and it also means putting an end to right-wing privatization dreams. 
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HUFFPOST PUNDIT
omobob
left coast, usa
10:34 AM on 07/11/2012
> "There's more power in pointing out specifically what Republicans would take away from people, and that Republicans would do nothing to fix the problems that we have in the health care system."

Affordable healthcare is a human right. Republicans do not understand this. The overall purpose of the Patient Protection and Affordable Care Act is to make health care affordable to all. In a Country where a half a million go bankrupt from medical bills and 30 million remain uninsured, the Affordable care Act is not only necessary but also it’s the right thing to do.

Many provisions of the Affordable Care Act took effect when it was signed into law in 2010, and a full repeal would have eliminated reforms that are already providing widespread relief to some Americans. Here are some consumer benefits that would have disappeared if the law was ruled un-constitutional: Increased coverage of preventive services_ Birth control coverage_ Restrictions on lifetime and annual limits_ No health plan barriers for ob-gyn services_ Consumer Assistance Program and Expanded Medicare coverage.

http://www.huffingtonpost.com/2012/03/26/supreme-court-health-care-reform-affordable-care-act-obamacare_n_1379805.html?ref=topbar
03:05 AM on 05/19/2012
My understanding is that without the mandate the act can't work, because without participation by all it's no longer affordable.
11:48 AM on 04/13/2012
If ObamaCare is so good and good for the country-why is congress using their private insurance?
04:57 PM on 03/31/2012
"But the percentages still reflect what has been the conventional wisdom among those in the legal community heading into this week's oral arguments."

Ahh, what a difference a day makes. Poll those same clerks after Tuesday and I'd bet my bank account the majority of them predict the mandate and law will be found unconstitutional.
05:00 PM on 03/29/2012
This should not be called Obama care. I say it is Utopian care and libs have had 50 years to come up with an argument. Verrilli is not dumb. You can not defend something that is indefensible
04:56 PM on 03/29/2012
I am surprised Justice Kagen did not help the lawyers along since she was to have argued the case.
04:53 PM on 03/29/2012
I say 6-3 against.
zanzy
your micro bio is empty, just like our democracy.
05:19 AM on 03/28/2012
Here's a great, brief discussion on health care reform. Here the llink to the video:
http://therealnews.com/t2/index.php?option=com_content&task=view&id=31&Itemid=74&jumival=8130
HUFFPOST SUPER USER
Sam Bark
It's a MAD world after all...
12:50 AM on 03/28/2012
Sorry Mr. Stein, but only fools nad fortune tellers dare to predict the future.
12:37 AM on 03/28/2012
The Commerce Clause argument for constitutionality is this: Everything affects everything. Therefore if the USA can do anything, there is nothing it cannot do.
HUFFPOST SUPER USER
Neenerpuss
If you cant laugh at yourself...someone else will
11:43 AM on 03/29/2012
The #1 cause of bankruptcy is medical costs! People who have no insurance...use hospital and medical and then cant pay the bill.

The average Wal-Mart store employs over 200 people. The average Wal-Mart store offers health insurance to only 8 people in that store. Wal-Mart made $287,000,000,000 in PROFIT last year.
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Dick Stone
My Andalusian works hard and loves his job
10:15 PM on 03/27/2012
Gee Sam, I guess if you and HP can come up with the news that the clerks say it is going to pass, then I guess there is no real need to wait and here from the real Supreme Justices. Thank you for all of the information, now I guess I can go ahead an close my business, and release my 33 employees since we already know what is going to happen.
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HUFFPOST SUPER USER
TheCrowing
Purveyor of fine locution since 1985.
10:21 PM on 03/27/2012
Hear*
HUFFPOST SUPER USER
Ted Glass
10:27 PM on 03/27/2012
You are going to close your business? Wow, that's too bad.

Please tell me what forces are at work related to healthcare that would cause you to close your business?
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HUFFPOST SUPER USER
TheCrowing
Purveyor of fine locution since 1985.
10:31 PM on 03/27/2012
Republicans told him so!
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10:08 PM on 03/27/2012
Clerks haven't been paying attention.
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Wolf Larsen
The Country You Want Back No Longer Exists
05:08 AM on 04/01/2012
Yeah....they only assemble briefs.....take notes and do paperwork for the Justices. You are far more in tune than they are....
07:19 PM on 03/27/2012
Supreme Court will find act constitutional...5-4...it should be 9-0 but conservatives on the court will vote the "constitution"...this is what corporate america wants...this is the republican plan for single payer universal care...I would hope the Court overturns this plan to make insurance companies fatter and force congress to get a handle on real health care reform for americans...
HUFFPOST SUPER USER
muzpuf
Democrat who votes Republican
12:18 AM on 03/28/2012
...and then when you wake up reality will set in ...and i know its upsetting to you that the supreme court still upholds the constitution
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HUFFPOST SUPER USER
Shaddup
11:20 PM on 03/28/2012
Are you saying Mitt's program was illegal?
03:35 PM on 03/27/2012
Few would know better!
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HUFFPOST SUPER USER
chriss0114
the meanderings of a madman
02:45 PM on 03/27/2012
I guess those stupid founders didn't know what was constitutional or not when they passed mandatory purchase of health insurance to be used in some government run hospitals with hefty penalties for not buying it!

What the heck did THEY know!

http://www.forbes.com/sites/rickungar/2011/01/17/congress-passes-socialized-medicine-and-mandates-health-insurance-in-1798/
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HUFFPOST SUPER USER
TheCrowing
Purveyor of fine locution since 1985.
10:28 PM on 03/27/2012
This is Tea Party America, where all the founders were strict conservatives and bowed to the flag and the cross. They wrote a Constitution that says that Prayer should be mandatory in schools and that no one should hold elected office unless they renounce all deities that aren't Jesus. It says that you buy your own health care or pay out the backside until you're in the grave. It says that men don't marry men and that a woman's uterus is the property of the man in her life, that being her father until she's married, then her husband, and if her husband should leave this earth early, her son until she remarries. People who look different are property in their Constitution, and amendments are messy things that must be fought. This is what Tea Party America wants all white male landowners to enjoy.

I'm so glad I'm not conservative.
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HUFFPOST SUPER USER
chriss0114
the meanderings of a madman
11:13 PM on 03/27/2012
and I thought Jesus wrote the constitution right after He finished writing the whole bible!
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12:40 AM on 03/28/2012
If a sailor wanted to work, he had to pay up.
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HUFFPOST SUPER USER
chriss0114
the meanderings of a madman
05:48 PM on 03/28/2012
actually the captains paid up