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Go to Front Page If the Supreme Court strikes down the Affordable Care Act,...

JONATHAN COHN MARCH 29, 2012

Obamacare Is On Trial. So Is the Supreme Court.

Before this week, the well-being of tens of millions of Americans was at stake in the lawsuits challenging the Affordable Care Act.

Now something else is at stake, too: The legitimacy of the Supreme Court.

Nobody knows how the justices will rule. And nobody can know, not even the justices themselves. On Friday morning, perhaps by the time you read this, they will meet privately to take their first vote. More often than not, this first vote determines the final verdict. But there are exceptions and Anthony Kennedy, on whose decision the outcome presumably depends, has a reputation for long deliberation and changes of heart—particularly in major cases like this one.

That’s good. With the result apparently in doubt—smart money still says the chances of the full law surviving are about 50-50—Kennedy should think long and hard about how he wants the Court to rule. So should Chief Justice John Roberts, who appeared more skeptical of the government’s case during oral arguments but nevertheless indicated that he, like Kennedy, understood the government’s premise—that health care was a special market, perhaps requiring special intervention.

If that concern is not enough to sway the chief justice, than perhaps his frequently professed concern for the court’s respectability will.

Even now, I have trouble wrapping my mind around what I saw in the courtroom this week and what a majority of the justices may be contemplating. Kennedy’s second question, the one that so unnerved supports of the law, was whether the government had “a heavy burden of justification to show authorization under the Constitution.” But the heavy burden in this case is on the justices threatening to strike down health care reform. They have not met it.

Rarely in American history has the Court struck down laws in decisions that would have such quick, widespread impact. In the modern era, only two cases come to mind: Brown v. Board of Education and Roe v. Wade. Both were acts of ambitious, even audacious judicial activism. But, in two key repsects, they were different from a potential ruling against the Affordable Care Act.

Brown was a unanimous, nine-to-zero decision. Roe was a lopsided seven-to-two. These margins mattered: The justices knew that their decisions would be controversial, in part because they were overruling democratically elected majorities—in these cases, state legislators who’d passed laws enforcing segregation and prohibiting abortion. The justices’ authority in these cases derived, in part, from their moral authority. A closely divided bench would have made that impossible.

Virtually everybody agrees that a vote to strike down the Affordable Care Act would be five to four—a bare majority. And it would be a bare partisan majority, with the five Republican appointees overruling the four Democratic appointees. The decision would appear nakedly partisan and utterly devoid of principle. Appearances would not be deceiving.

The second distinction is even more more significant. Today Brown is a nearly universal icon of social progress, while Roe remains an object of great controversy. But, for better or for worse, both cases represented efforts to change the everyday reality of American life. With Brown, the justices were tearing down barriers to racial equality; with Roe, the justices were eliminating laws that prevented access to abortion.

But in this case, nobody has said they want to stop government from providing universal access to health care. On the contrary, the plaintiffs have stated that a program like Medicare, in which the government provides citizens with insurance directly, would be clearly constitutional. They’ve also stated that a scheme of compulsory private insurance would be constitutional if somehow the government could make people buy it when they show up at the hospital—suggesting, as Elena Kagan stated, that the only problem with the Affordable Care Act is temporal. 

Most amazing of all: The plaintiffs have conceded that a universal health insurance program would be constitutional if, instead of penalizing people who decline to get insurance, the government enacted a tax and refunded the money to people who had insurance. As Sonia Sotomayor noted, functionally such a scheme would be exactly the same as the Affordable Care Act. Both the plaintiffs and some of the skeptical justices have also indicated that the Affordable Care Act would be constitutional if the law's architects had simply used the word "tax" to describe the penalty.

Think about that for a second: If the justices strike down the Affordable Care Act, they would be stopping the federal government from pursuing a perfectly constitutional goal via a perfectly constitutional scheme just because Congress and the Preisdent didn’t use perfectly constitutional language to describe it. Maybe labels matter, although case law suggests otherwise. But do they matter enough for the Court to throw out a law that will provide insurance to 30 million people, shore up insurance for many more, and help to manage one-sixth of the American economy? It wouldn’t seem so.

Of course, the conservative justices who would invalidate the Affordable Care Act may not hold the law in especially high regard. Samuel Alito, in particular, suggested during oral argument that he had serious problems with younger, healthier people subsidizing, via their insurance premiums, the medical expenses of older, sicker people—which just happens to be the defining feature of Medicare, Social Security, and every other social insurance scheme on the planet.

Alito is entitled to his opinion about what makes for good legislation. But he’s not entitled to impose that opinion on the country and his colleagues aren’t, either. Their job is to determine whether a law is constitutional, not whether a law is wise. And the more significant the law, the more unambiguous their judgment ought to be.

follow me on twitter @CitizenCohn

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75 comments

“ Perhaps we need to fail now to succeed later. That's the most optimistic interpretation I can come up with. It may be too much for the Supreme Court to solve. "The fault, dear Brutus, is not in our stars, But in ourselves, that we are underlings." We are not underlings, unless we vote to be such in our next election. ”

- skahn

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“ Long time reader, first time commenter, but as a recent law school grad I'd add 2 more distinctions between ACA and Brown/Roe. 1. ACA's a federal law, not Kansas or Texas. SCOTUS is historically very shy about striking federal laws; other than Marbury, the only such case before the Civil War was Dred Scott, and we all know how that turned out. The only Commerce Clause cases that come to mind are the early New Deal cases that led to equal public outrage and the Switch in Time. 2. Can't speak to Roe, but Brown commanded majority support when it came down. As with Baker v. Carr 8 years later, Brown was basically the Supreme Court doing what a truly democratic Congress would have done. Congress just didn't do it because the committees were dominated by Southerners from safe seats. Thus, in Brown the Court was remedying a defect of the political process. By contrast, most provisions of the ACA command broad majority support, and if the people want to repeal it they can do so at the ballot box; no need for SCOTUS to get involved. ”

- wolverine

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“ Let us be ready for the trifecta of Bush v Gore, Citizens United, and the possible overthrow of PPACA, all by a politicized, 5 to 4 Supreme Court. An improved Medicare for all would be a vast improvement on PPACA anyway. The problem is not just Republicans being against what they used to be for, before Obama was for it. The problem is requiring us to buy into the fragmented system of for profit insurers. To make a profit, insurers need to collect premiums and not pay for health care this quarter and next. The sooner we get to a single, publicly accountable, not-for-profit system to pay for our care, the sooner we'll be paying less and getting better care (like all the other industrialized countries). ”

- bsemple

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“ Do liberals have no shame? ObamaCare was rammed through in the dead of night using parliamentary tricks WITHOUT A SINGLE REPUBLICAN VOTE. But a 5-4 SCOTUS would be political???? Call it karma ”

- mr_rationale

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“ "Without a single Republican vote" although it is in its essence a Republican health care plan. That says something. About Republicans. ”

- ironyroad

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“ Not to belabour the Clintonian point, but it really depends on what the meaning of the word "constitutional" is. Even without knowing the ultimate verdict of the judges on this one, what we saw this week was the damnatio memoriae of the Supreme Court. (This is the opposite of apotheosis, according to Google.) It really is remarkable, too, because you can see the rationale for their not wanting cameras or, really, even much scrutiny. The Court trades on its political capital of being the ultimate arbiter of the Constitution and being the un-Congress. We elect Congress and we un-elect Congress. We get mad at them, but they're definitely a reflection of the people who vote. if 40% of the people vote, they shouldn't be all too surprised that the Congress they send to Washington is extremely annoying and manifestly unrepresentative. If we don't think they or the president is being very Constitutional, we can throw them out at the next election. However, we have no real role in electing or selecting the Supreme Court. To a large extent, the vicissitudes of life and members' own political preferences determine this. The more and more the Court becomes an unelected legislature and extra veto point for trying to stop laws that both parties found constitutional not more than four years ago, the less stature they have in all rulings and the less respect they get as a body with hallowed abilities to interpret the Constitution. Let's just say that naive Americans probably bought Chief Justice Roberts claim that he would be an umpire calling balls and strikes. But they will be much more amenable to the view that either he (and the other justices) have a rather inconstant view of the strike zone or that perhaps he is more properly viewed as a basketball or soccer referee, making discretionary calls based on the particular persons accused of fouling and being fouled. Free throws for me but not for thee. ”

- chaitless

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“ Jonathan- The difference between calling it a "tax," and therefore fitting it within the constitutional power to tax for the general welfare, and proceeding under the commerce clause, is not merely a matter of "labels." Passing a "tax" requires legislators and a president that has the courage to perhaps lose the next election. But, if you are willing to be courageous, the constitution will bless you. Obama and the democrats in congress were not willing to show such courage, so they opted for being able to proclaim--as Obama did--that the mandate was not a tax. As they say, you can't have your cake.... Doing big things--e.g., health care reform, social security reform, etc--requires a president who is willing to serve but one term. Obama wasn't. So, if health care goes down, blame first his ego. ”

- horsefly

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“ The court will rule against the government and do so along clear partisan lines. When you are denied coverage for pre existing condition blame the Republicans. ”

- paskunac

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“ Horsefly. Generally agree... but .... Passing Progressive legislation requires politicians who understand the value of such policies, the ability to convey those advantages to the general public, and the fortitude to stay the couse and combat fierce opposition. That does NOT describe BHO or the Senate leadership. Without such leadership one gets the mush that is the ACA (rather than Medicare Part E-- for Everyone), inadequate stimulus, poor financial reform, etc. It's becoming more and more evident that real change won't come without a political crisis for Dems--- President Mittens might be the most appropriate stimulus for Dems and Independents, independent of whatever SCOTUS does. ”

- drofnats1

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Horsefly Can you cite something that supports your position that an excerise of power is only constitutional if a political price is paid for it? Because this is a new test that I think we don't want to adopt. ”

- Nusholtz

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“ The plaintiffs have conceded that a universal health insurance program would be constitutional if, instead of penalizing people who decline to get insurance, the government enacted a tax and refunded the money to people who had insurance. This was argued over 2 years ago but Cohn, whose writings are read by legislators and White House personnel, completely ignored this. And there is a fundamental difference between mandating a person to buy from a profit seeking private company, and inducing people to do so by virtue of tax breaks and credits. A tax and credit regime would have been far more effective and would have raised far more money. But Cohn and Democrats ignored this and millions will suffer. It would be nice if Cohn had the decency to apologize, that he underestimated Republican reaction. He lived in his own bubble ”

- blackton

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“ Nusholtz- My position is NOT that an excerise of power is only constitutional if a political price is paid for it? Because this is a new test that I think we don't want to adopt." My point is that the Constitution grants almost unlimited power to Congress when it decides to exercise the taxing power. The framers no doubt understood that a self-check on abuses of such broad powers would be the political price paid for imposing and/or raising taxes (they have never been popular). Although I am a libertarian-leaning conservative, my own medical conditions make me understand that we need a solution; thus, I am beginning to see the appeal of single-payer (like Medicare), provided that those that so desired (and that could afford it) could opt out or buy "above" standard coverage. ”

- horsefly

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“ Cohn gets it exactly right: this is a political decision as much as a legal one, affecting not only the fate of health care reform but the legitimacy of the Court. My prediction has been and continues to be that CJ Roberts will join the majority in upholding the mandate and will write an opinion circumscribing the scope of the federal government's power to regulate business under the commerce clause. Just like CJ Marshall, Roberts will give the President both a victory and a defeat, as the opinion will limit what the government can do to implement major features of not only ACA but Dodd-Frank and other legislation. [One example in ACA is the so-called federal minimum standard for health insurance, which I suspect will not pass the new Roberts' commerce clause test for validity.] As Chief Justice, Roberts must appreciate his special role in deciding pivotal cases such as this one; unlike Scalia and others, who do not have the same political obligation to the Court. Yesterday after reading Charles Fried's description of the disgraceful treatment of SG Virrilli by some of the justices I wrote a comment critical of Roberts (as Chief) for failing to maintain the decorum and dignity of the Court. After some thought it occurred to me that Robert too was in a predicament, because by not allowing Scalia and the others to perform their roles as Court bullies, he would have denied the anti-Obama crowd the satisfaction of a public flogging of the defender of ACA. A true conservative values tradition, consensus, and order above all else. Roberts gave the anti-Obama crowd the public "victory" they wanted, and he will vote to uphold the mandate and ACA but circumscribe the federal government's power under the commerce clause, giving him the "victory" of both maintaining the legitimacy of the Court and promoting the limited federal government he wants. And in doing so, Roberts will confirm that he is a true conservative. ”

- rayward

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“ I'm not sure I understand some of the comments above. The history of the passage of this legislation seems clear to me, but perhaps I'm mis-remembering something: 1) The mandate had a Republican pedigree and was quite reasonably thought to pass Constitutional muster. It was not at all obvious that it would be not only the focal point of a challenge of the law, but of successful challenge. 2) A tax passed Constitutional muster even more definitively, but had the flaw of being, well, a tax, which increased the likelihood that votes in Congress would be lost. Additionally, even if any votes lost did not turn out to be decisive, the almost certain price that would be paid in subsequent elections created a risk not only to the survival of health care reform but to every other component of the social safety net. With those two points in mind, I don't know how anyone can argue in good faith that any supporters of the mandate-with-a-penalty rather than a tax should be apologizing, were idiots, were cowards, whatever. We will find out soon if their strategy was wrong, but let's stop talking about it as if it were borne of some sort of profound malfeasance. ”

- Fishpeddler

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“ mr_rational's comments below indicate a fundamental misunderstanding about the difference between the legislature and the judiciary: Congressmen are elected for finite terms; Supreme Court Justices are appointed for life. The former are assumed, indeed intended, to be political; the latter, most certainly, are not. In fact, justices are supposed to interpret the Constitution; not hand wins to their side of the aisle. mr_rational: ObamaCare was rammed through in the dead of night using parliamentary tricks WITHOUT A SINGLE REPUBLICAN VOTE. But a 5-4 SCOTUS would be political???? ”

- NateG

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“ mr_rationale fails at many things in life when posting opinions here. Reinventing history is one of those failures. The ACA case before the SCOTUS is a result of the 'sausage making' process that exists in Congress these days. Where there were legitimate Republican representatives willing to work and negotiate on the ACA (that has GOP fingerprints all over it in spirit) were subsequently flogged by the hardline Republicans like Mitch McConnell (who said on day 1 of BHO's term that he would work tirelessly to make him a one term president and do NOTHING to further his agenda, regardless of how good it was for the country). Then suddenly the GOP effectively walked out on negotiations and began painting the entire scheme as some sort of socialist take-over riddled with death panels and government lackeys stalking patients with clipboards. That the GOP decided to leave the table in a fit of petulance does not mean that the ACA was rammed down the throats of the American people. It was deliberated upon and the Democrats passed the legislature in a legal and Constitutional manner DESPITE Republican intransigence. Once the GOP realized they had made a mistake in the hostage deal, they decided to proceed with this specious lawsuits led by GOP-led State AGs. The irony of this whole thing is that if the SCOTUS strikes down the ACA, the law will have to be rewritten or scraped entirely with two alternatives - nothing or single-payer. I suspect the GOP will find out rather quickly from informed constituents is that they would rather the ACA be reformed than scraped and replaced with the white-noise plan that the GOP has so far put up as an alternative to the ACA. ”

- singlspeed

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Horsefly While I too would like single payer, we have a large boulder in the way that insists on no wealth transfers of any form. We can't even raise the rates to pay the debt because, in the words of Orrin Hatch, "They'll spend that money!" I happen to believe that great wealth disparity weakens the economy in the same way that any species does better when all of its members do better. But, I felt your argument about why the power to tax only applies to a tax if it is labeled as such by the legislature was incorrect. ”

- Nusholtz

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“ Really, rat, that is pretty moronic even for you. Are you aware that in both houses of Congress the majority vote on legislation is supposed to determine the outcome? I believe that Vice President Cheney cast any number of tie-breaking votes in the Senate. Were you outraged? Was the legislation thereby adopted unconstitutional? So, if the Democrats had the majority without a single Republican vote, then they did. That's how it is supposed to work, the majority, not the minority, determines the outcome. ________________________ wolverine, can I infer that you are a fellow U of M Law grad? Or do you just like wolverines? ______________________ "Think about that for a second: If the justices strike down the Affordable Care Act, they would be stopping the federal government from pursuing a perfectly constitutional goal via a perfectly constitutional scheme just because Congress and the Preisdent didn’t use perfectly constitutional language to describe it. Maybe labels matter, although case law suggests otherwise." No, until now, the particular words used in legislation, as opposed to the concrete effects, have never before mattered. I know of no case that obliges the Congress to use particular language to accomplish ends that it is otherwise clearly empowered to do. That the mandate is functionally indistinguishable form a tax that is remitted to those who buy their own insurance, as Sotomayor points out, should be the summary end of the whole matter. That's why this whole case is ridiculous. It is only because so much of the country has become inured to the outrageous judicial excesses, lies, and hypocrisy of the radical/reactionaries on the court that this is taken seriously. The rightwing arguments are completely divorced from the entirety of constitutional jurisprudence, history, and, indeed, Original Intent. Alito's ruminations about what policy he prefers as regards subsidies from one group to another illustrate how far the reactionaries how strayed from their constitutional function and how dangerous they are. The are fully prepared to constitute themselves as a super-legislature overruling democratically determined outcomes based on their own notions of what constitutes good policy. ”

- roidubouloi

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“ Says blackton, "And there is a fundamental difference between mandating a person to buy from a profit seeking private company, and inducing people to do so by virtue of tax breaks and credits." No, there isn't. If, as is the case here, the concrete consequences are the same. There is no functional difference between the mandate and imposing a tax on all and remitting it to those who buy private insurance. Indeed, there is not the slightest reason why the failure to have private insurance cannot be the incident of taxation, without first imposing the tax and remitting it. Those who fail to have insurance are simply being required to contribute to the pool of funds that will pay for health care for those who don't have their own insurance. The new principal of reactionary jurisprudence is that any progressive legislation must be enacted in the manner that is most certain to be politically inflammatory, else it isn't a true democratic outcome. How about if all tax breaks and subsidies for the rich now have to come with the warning label that "this legislation is designed to fuck everyone who is not in the top 1%" or else it lacks the "political courage" needed in order for right-wing laws to be constitutional? ”

- roidubouloi

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“ Were there a shred of consistency in the folks on the court tempted to to overrule the ACA on these technical grounds, they would tremble in fear at their own brazenness. Imagine we start taking the constitution literally in all respects: the "make no law" language of the first amendment would instantly invalidate a host of laws that regulate speech and press (every secrecy law in the book, to start with); the "keep and bear arms shall not be infringed" provision of the second would either invalidate any regulation of even the most high-powered "arms" or would be delegated entirely to the militia, depending on how one reads that enigmatic language. Of course they don't have any such qualms about the consistency of their approach. They want reactionary results, and on fears, reactionary results they will likely get. There is a long list of "accomplishments" of the reactionary conservative revolution that started with Goldwater, but their debasement of the judiciary is amongst the most horrifying to me. ”

- IowaBeauty

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“ ray, I totally agree that functionally it is the same, but politically (and legally perhaps) it is not. In the world of common sense you can be 100% right, but if the Supreme Court overturns the bill all the common sense in the world isn't going to insure the millions who will now lose insurance, or the many who will lose it. fishpeddler, with all due respect, I foresaw this and railed against it vehemently, it was also part of the reason I supported Obama over Hillary because Obama did not have a mandate and Hillary did. As to the tax being a tax, it would have been only a tax on those who do not buy insurance, it would have been counterbalanced by a credit for those who do, for self insurers like small businessmen it would have been a huge win as they do not possess the same privileges that big companies have. And it is not like Republicans are not screaming about the other taxes within the bill already, can you really imagine they would have made political hay out of people not taking advantage of a tax credit that would have paid for insurance, who instead opt to pay for the tax and health care on their own both? This was a colossal fuck up by the Democrats. If Democrats get lucky because Roberts wants to walk a fine line does not lessen how much of a fuck up this was. Over 2 years ago while I railed against the Mandate Cohn never really addressed it as he assumed it would pass Constitutional muster. Now I don't care that Cohn never addressed me, but if I, who was a very strong supporter of health care reform could easily foresee the difficulties there is no excuse that he, a person who wielded huge influence in the health care reform community, could not. I have children who have pre-existing conditions (congenital). If this bill is overturned my family is screwed. While the medicine is not expensive, the chances that they will be forever denied insurance due to a pre-existing condition would now return so for me this is desperately personal. Damn right I have the right to be pissed. ”

- blackton

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“ "fishpeddler, with all due respect, I foresaw this and railed against it vehemently" That's fine. I, too, occasionally rail against stuff, and sometimes I am even later proven correct. The world does not necessarily owe me an apology, though, when reasonable analysis happens to lead it to mildly different conclusions than my own, and I ended up being the lucky one who was right. ”

- Fishpeddler

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“ fishpeddler, I am not talking about the world, just Jonathan Cohn and all of those who dismissed the concerns of those who took my position. Granted it won't make any real difference, my children and millions of other will still be screwed, but where is the evidence he has learned anything? Where is the evidence that the Democratic party has learned anything? And this is not mildly different conclusions, one would have meant smooth Constitutional sailing, the other is a wasted Presidency and health care reform doomed for another generation. The Democrats did not even include severability in the bill. If only the Mandate could be thrown out the SG could have argued that the Congress could easily do a tax and credit bill. And believe you me, I won't feel lucky if I am proven to have been right as to my misgivings. And the worst is if the bill is thrown out (and amazingly it gets worse) it might be such a body blow for millions of Americans that they feel that what is the use, if 5 men can just overrule whatever progressive bill is passed by Democrats why bother voting at all? Do you really want a President Romney and a few more radical Conservatives on the court? Again, easily foreseeable and easily preventable. It might be easy for Cohn to be cavalier about this and place all the blame on the court, but why should I buy it? ”

- blackton

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“ The political fuck-up was real. It consistent of futilely attempting to pass a bill that would attract Republican votes, negotiating far too long to that end, and creating a mangled piece of legislation that in the end got not a single Republican vote for all the effort to that end. The Democrats should have drafted a bill that could obtain the necessary Democratic votes and that offered to incorporate Republican suggestions in exchange for Republican votes. No votes, take a walk. This was compounded by the failure of the president and the Democrats aggressively to defend their legislation against Republican attacks. However, that has absolutely nothing to do with the constitutionality of the bill that was adopted. If the public doesn't like the mandate, its recourse is to vote a new Congress and president that will repeal it. The Supreme Court is not a super-legislature authorized to substitute the policy judgments of nine un-elected people for that of 535 democratically elected representatives and the democratically elected president. ”

- roidubouloi

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“ blackton, sorry if it seems like I am giving you undue grief, but I just can't make myself buy into your baseline in all this: that the bill could have been written as you wanted and a) passed and b) resulted in no political fallout for Democrats from the presence of a brand new tax in the bill. I think you are in a spectacularly bad position to claim 'a', because this gets into insider vote trading that people in Congress and the White House know way more about than we ever could. And while you are on stronger ground as to 'b', that is mainly by virtue of the difficulty of predicting long-term political consequences and the obvious unreasonableness of Republicans making hay from such a new tax. However, the modern history of the GOP is largely a story of making hay from unreasonableness. Even if I grant you 'b' for the sake of argument, though, I'm not at all ready to grant that we could now have a law that is virtually impervious to legal challenge if only people like Cohn had just listened to your advice. I think it is probable that we would merely have a failed bill to look back upon with longing and regret. ”

- Fishpeddler

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“ The Supreme Court suffered a dramatic, sudden loss of prestige when Chief Justice Taney attempted to solve the problem of slavery by deciding, in Dred Scott, that blacks couldn't be citizens of the United States and, as an added bonus, that Congress lacks the authority to exclude slavery from the territories. At that point, it was perceived by Republicans and a good number of Northern Democrats as an appendage of the Slave Power that needed to be struck down for America to continue as a free, democratic society. The Civil War followed, in which a Republican President baldly repudiated the Court's right to enforce its decisions on habeas corpus and proceeded to remake the Court as an obedient appendage of Congress and the Executive. The Court suffered another, more gradual loss of prestige during the period from the late 1870s to the mid-1930s, in which it constantly sought to constrain the power of states and the Federal government to ameliorate social ills and inequality, by using a constrained reading of the Interstate Commerce Clause and, for states, an interpretation of the Fourteenth Amendment straight out of William Graham Sumner and Herbert Spencer to strike down income taxes, child labor laws, unemployment insurance, minimum wage and maximum hour laws, labor arbitration and a whole host of democratically enacted economic legislation in the name of preserving free-market capitalism. There was some give-and-take during this period, periods where a Progressive majority on the Court could bend the Commerce Clause to permit interstate regulation of adulterated food or liquor, but an equal amount of push-back from conservatives on legislation that more broadly affected the free market. The result, until the Great Depression, was an ingrained contempt for judges and courts as instruments of oppressive capital among a large section of the population and the spread of socialist and populist ideas among large segments of the public. The fragile status quo gave way in the crisis of the Depression, when the conservative Court's open hostility to New Deal programs led to the greatest attack on the Court's independence since the Civil War -- and led the Court's conservative majority to fracture, as the Chief Justice and another conservative Justice began to side with the government in New Deal economic decisions. The Court decided that it was better to accept the primacy of Congress in dealing with economic issues than to insist upon protecting capitalism via the Constitution and to lose its independence as a co-equal branch of government. The third loss of Court prestige started with the peak of Great Society liberal Court decisions in the early 1970's -- Roe v. Wade and the school busing cases -- where the Court took upon itself to both re-structure local government in the name of equal protection and to overrule state legislation on social issues such as abortion, and later flag burning, public religious displays, women's rights and gay rights. This led to a view on the whole American right wing of the Court as left-wing legislators with lifetime judicial tenure who needed to be reined in. While Newt Gingrich or Rick Perry no longer speak for quite so many in their desire to eliminate lifetime tenure for Federal judges or allow Congress to overrule contrary constitutional decisions, their anger and disrespect come from a long line of conservative dismay with the Supreme Court taking upon itself to "correct" state legislatures and local custom in the name of constitutional principle. The attack has left a significant scar on the American judiciary, and a continuing distortion of the Court and American jurisprudence on the right. Those Justices who criticized the Warren and Burger Courts plunging into overruling state legislatures on social policy -- John Marshall Harlan and Byron White, and later Rehnquist and, irony of ironies, Scalia -- had an excellent point when they noted that unelected judges who blithely took upon themselves to overrule elected legislators on matters of policy would inspire public revulsion and public contempt for the courts. They remembered what happened in the 1930's, when the Supreme Court came ever-so-close to being rendered an appendage of the Executive Branch, and feared what would happen to future Courts. The ACA cases are a crucial turning point for the Court, and one to which the conservative Justices at oral argument seemed utterly oblivious. A decision to strike down the individual mandate, based on artificial and nit-picked criteria of whether the mandate "creates commerce" and whether or not it constitutes a tax; a decision to place the burden upon the government to define a limit for interstate economic regulations, rather than accepting that regulations that affect interestate commerce are valid as the choice of elected officials, who can undo them in a later legislature; a decision to disallow ACA Medicaid subsidies to states on the basis that the deal is just too good for states to pass up, ergo it is "coercive"; a decision to make elimination of comprehensive laws because of a single unconstitutional component the norm, rather than the exception -- all of these present great peril to the Court, both because they would all constitute clear departures from decades of precedent and because they would of necessity be decided by 5-4, partisan majorities. Taken together with Bush v. Gore (arguably a one-time decision based on momentous political necessities) and Citizens United (the result of a steady conservative judicial assault on Congressional limits to political speech), a contrary decision would land like a thunderclap in the political landscape. It would mark the Roberts Court as a political mirror of the Warren Court -- a partisan, unelected group of judges who bend and break established laws to support the desired policy outcomes of the people with whom they share cocktails on the weekends. It would mark the Court in full contempt by liberals and progressives of all stripes, and would serve to radicalize public discourse and politics in America. It would lead a hitherto moderate President and Democratic Party to attempt to assert Executive Branch dominance over the conservative Supreme Court -- if not through FDR's court-packing, then through aggressive attempts to eliminate procedural hurdles to judicial confirmation and almost certainly through using the Federal judiciary as a partisan whipping-post in elections. The decision that the conservative Justices appear to want -- the stalwartly fanatical Thomas, throughly unprincipled Scalia, the judicial politican Alito, the indecisive Kennedy and apparently the go-along Chief Justice -- would be a grievous judicial error on par with Dred Scott, Lochner, Carter Coal and Roe. Forgive them, Father -- they truly know not what they do. ”

- wildboy

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“ Rosen misses what has become obvious. The Republican majority, (even forgetting Ginny Thomas' life of extremist politics) has become a redoubt of the Republican party. In case after case this group of Justices has used naked political power to sweep away decades of decisional Law and simply replaced it with their own policy preferences. Money is speech, Corporations deserve Constitutional free speech, the dismantling of McCain Feingold, the erection of barriers to access to the courts by ordinary people, using the Statute of Limitations quite arbitrarily to limit the liability of Corporations in discrimination cases, changing the law on class actions to benefit large corporate enterprises and on and on. During the health care arguments, the same 4 Justices used far more politial and policy arguments and rhetoric than legal analysis and argument. Professor Charles Fried was absolutely correct when he wrote of the Solicitor General's performance: "What he encountered instead was a barrage of hyperbolic, hostile rhetoric redolent of Tea Party–inspired slogans (we even had the broccoli canard) masquerading as questions, which are supposed to clarify the presentation and probe for weaknesses. I know some were disappointed by Verrilli’s performance. What did they expect? He did his job and he did it very well....(and) I thought Verrilli would prevail, but that is because he has the law and precedents on his side. After yesterdays argument (or was it a shootout?), I am no longer so confident." http://www.thedailybeast.com/articles/2012/03/29/solicitor-general-s-critics-wrong-about-his-defense-of-obamacare.html ”

- tommcguire

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“ And....isn't it time to put the Supreme Court or more precisely, its Republican majority on the Political Agenda? I know full well all the reasonable arguments against the wisdom of doing this, but is there a choice. These 5 people are trying to remake the United States in ways so foriegn and dangerous that it may warrant treating them as just one more political operation. Citizens United changed everything! ”

- tommcguire

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“ From Harlan's Lochner dissent: “The power of the courts to review legislative action in respect of a matter affecting the general welfare exists only "when that which the legislature has done comes within the rule that, if a statute purporting to have been enacted to protect the public health, the public morals or the public safety, has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law." "No real or substantial relation to those objects?" And what fundamental right is invaded by a general requirement, if not oneself insured, to contribute to the cost imposed by the uninsured? And from Holmes' Lochner dissent: "Some of these laws embody convictions or prejudices which judges are likely to share. Some may not. But a constitution is not intended to embody a particular economic theory." Scalia is an intellectual pygmy. __________________ I don't agree with wildboy's characterization of the Warren Court. Roe v Wade was a Burger court decision, including Burger, and was 7-2. One has to be careful to distinguish decisions in the realm of human rights, including the right to dispose of one's person, where the explicit purpose of the Constitution is anti-majoritarian and decisions about commerce where everyone is affected, there are intrinsic questions of economic policy that judges have little or no ability to address, and the principal protection against government excess is the universality of the provision. ”

- roidubouloi

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“ Agree with tommcguire; this is frightening, foreign and dangerous. Bush v Gore should have had people screaming at the top of their lungs. Gore should NEVER have acceded to this travesty. The Court (says she who admittedly lacks legal expertise) interfered directly in the business of the People, which is an election; and one in which the popular vote winner was defeated under highly suspicious circumstances. Since then, this country has suffered really terrible consequences including the catastrophic attacks of 9/11, ensuing wars (horrible and horribly expensive), tax cuts for the well-to-do and the rich, the empowerment of corporations as "people," with unlimited economic power that can and does decide the outcome of elections; we've seen our civil rights eroded and the economy damn near collapsed. So? What can the people actually do about this? ”

- Sophia

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“ I think rayward's argument most speaks to my own reasoning. Roberts might be ACA's best hope. Then again, certainly, he might not vote to uphold, but I doubt he would be willing to strike down ACA in toto. If he decides in favor of a mixed blessing (or curse depending on which side of center one leans), I'd be surprised if Kennedy wouldn't join him. That would make for a 6-3 majority to retain some if not much of ACA with or without the mandate. I agree with Jon that a 5-4 decision to strike would risk too much of the Court's prestige and respect for most Americans. Further, a 5-4 decision would virtually guarantee that the question of affordable health insurance coverage would soon return to the Court's attention in another form. I don't think Roberts would care for that outcome. ”

- Tgossard

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“ fishpeddler, I am not saying passing the bill my way would have been easy, and I realize that 20/20 hindsight is all too easy, my problem is that back when this reservations were made they were blithely dismissed as being the product of a paranoid mind and not legally significant, but no sooner had the ink dried did the states sue so Democrats can not possibly claim they were not aware of this. In any event I would rather the bill died then instead of potentially ushering in an era of a deeply Conservative court that realizes that they can do whatever the hell they want and know Democrats can just suck on it. Hopefully it won't happen but if the court does strike this down, we are seriously screwed. ”

- blackton

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“ Bravo, Wildboy. There is a context for everything. Beyond the logic and abstractions, the real failure was Obama's failure to explain and sell the ACA to the American people, both before and after passage. ”

- Vogelfam

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“ Sophia, You ask a good question about what people can actually do about a conservative Supreme Court that uses constitutional doctrine as a barrier to what the people's elected representatives can and cannot do. The people can do what they did during the Progressive Era and what conservatives did since Roe -- fight aggressively to circumscribe the power of the Court and make it into a villain in a political passion play. They can propose and push Constitutional amendments to overturn disfavored political decisions, such as Citizens United (and like conservatives long tried to do with school busing and Roe). They can focus political campaigns and public opinion on governmental ability to allow proactive national social legislation and emphasize its benefits to people. They can make fidelity to a flexible Interstate Commerce Clause and the regulation of political contributions litmus tests to appoint any judge to the Federal bench, and aggressively campaign against judges who don't give them satisfactory answers. Those are the positive ways to respond. Unfortunately, there will also be negative ways to respond -- aggressively move to expand the Federal judiciary and eliminate the right of Senate minorities to hold up appointment of judges, so that courts will be packed with more liberals; attempt to pass symbolic legislation that would run afoul of recent Supreme Court precedent but would galvanize partisans to disrespect the Federal courts; enact legislation to reduce or eliminate pay or benefits to Federal judges; attempt to ignore Supreme Court decisions and set up a showdown with the Court. I don't see Barack Obama as a man who would do such things, but there are other, less scrupulous Democratic politicians who would be only too happy to make the Federal courts into Public Enemies #1. ”

- wildboy

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“ And, as I have said in comments on this and other web-sites, the justices are humans. Obama called them out during the SOTU regarding Citzens United in 2010. Alito was visibly peeved. My sense is that other justices felt likewise. And, those guys have long memories. So, although the applause that Obama's line fetched may have felt good, I cannot help but think that some of the pushback that we saw this week owes itself--at least in some small measure--to that night. ”

- horsefly

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“ Justice Alito is mentally deficient. All insurance requires subsidies. Good drivers subsidize reckless drivers...even the higher premiums of "high risk" pools don't completely cover the cost of people who seem to drive with their eyes closed. In coastal states people who live inland subsidize homeowners who live closer to the coasts.... The life insurance premiums of those still alive subsidize the benefits of those who die....It is the premise upon which all insurance is based....spreading the risk across the largest pool possible. ”

- SStJames

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“ The Supreme Court is in imminent danger of becoming the Extreme Court. These nine people should ponder that their positions are designated by the term Justice. This is not trivial. By the time issues get to the Supreme Court, the hopes of the parties and the implicit hopes of the nation are that Justice will prevail. Sometimes these hopes are met and at other times they are dashed. If in this instance, the court splits along the lines of their party of appointment, the court will invalidate the law and assassinate its credibility. Since 1980 trust, confidence and esteem for the Supreme Court has fallen from 80% to 46%, if a political-partisan 5 / 4 ruling decides this case, the ratings of the Court will challenge those of Congress. ”

- Caballero

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“ I'd forgotten the SOTU comments re Citizens United, which were well deserved; nevertheless, making a personal issue out of health care is the worst thing the Court can do. So, they're mad at Obama. So what. They get even with Obama, think they are humiliating him, tit for tat; millions and millions of American people suffer. This also made me think of the awesome responsibility of being President. Every action, every word is parsed. Unintentional or offhand or pointed comments all have the potential to rebound, not on the President, but on the people. Those doing the rebounding might want to think about us for a change and not their political party; nor their egos. ”

- Sophia

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“ Mr. Cohn’s hilarious tirades continue. :“Rarely in American history has the Court struck down laws in decisions that would have such quick, widespread impact” Mr. Cohn is really scraping the bottom of the argument barrel. Most of Obamacare has not yet been implemented. A few years ago it did not exist. Wow, what a cataclysmic change it would be, definitely in the category of Brown and Roe. :“Affordable Care Act would be constitutional if the law's architects had simply used the word "tax" to describe the penalty.” The “words” used in drafting laws are in fact very important. Had the Obama administration been slightly more truthful during the legislation phase and owned up to the fact that the individual mandate is a type of tax, then this issue would not exist today. If Mr. Cohn wishes to lay blame, he should blame the duplicity of the Obama administration. Finally, we come to Mr. Cohn’s most comical claim that if the Supreme Court strikes down the mandate with a 5-4 majority, then this will endanger the “reputation of the court”. However, if the court upholds the law 5-4, then their reputation is intact? Mr. Cohn has already decided that the mandate is undoubtedly constitutional and any Supreme Court justice who dares not agree fails to understand his or her duty. Mr. Cohn seems to have no problem with the four liberal automatons on the court inveterately supporting the law. What a singular crock. ”

- Nicomachus

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“ To roidubouloi and any other Wolverines I'm Class of 2010. Go Blue! ”

- wolverine

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Nicomachus I think I can illustrate the error of your thinking by adding and striking out words from your actual statement below:

"if the only five justices on the Supreme Court strikes down the mandate a democratically enacted law with a 5-4 majority, then this will endanger the “reputation of the court”. However, if the court upholds the democratically enacted law 5-4, then their reputation is intact?"
Shouldn't there be a difference between 5 people throwing out a democratically enacted law and 5 people sustaining it in a democracy? ”

- Nusholtz

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“ @Nusholtz You seem to be suggesting that a law of questionable constitutionality should be upheld because it was democratically enacted. This view advocates "approval by default" for most laws if constitutionality cannot be determined. Thankfully, that is not how constitutional law works. It is precisely the job of the court is to decide whether the law is constitutional or not. If it is anything less than constitutional, then at least the unconstitutional parts must be stricken. The fact that the law was democratically enacted (in contrast to dictatorial decree?) has no bearing other than that the appropriate legal process was followed. It is unfortunate that the Supreme Court is packed with ideologues. One is forced to wonder the purpose of having an "independent" judiciary if it is merely an ideological reflection of its appointers. ”

- Nicomachus

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“ @nicomachus"You seem to be suggesting that a law of questionable constitutionality should be upheld I believe you missed the point. Mr. Cohn indicated that the court can be embarrassed by a 5-4 political political decision striking down the law and you said that a 5-4 political decision upholding the law is the same. I simply noted that it striking down a democratically enacted law is not equivalent to upholding it from the standpoint of a minority prevailing over a majority for political reasons. Mr. Cohn is correct. ”

- Nusholtz

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“ I'm not so sure. Public Opinion is against the mandate and the public thinks it's unconstitutional. This is the age of populist politics and the SCOTUS is part of it. Whoever controls public opinion controls the land. It was always a difficult sales pitch and the dems didn't succeed - maybe they could/should have tried harder. I predict (writing is in big capitals on the wall) that the entire ACA is out the window (incl. Medicaid) and that Obama/Dems will not touch it again if there is a 2nd Obama term. Too bad for all the time and energy wasted... Also, the ruling will make Obama's stand against Romney much tougher as Romney will hold this wasted effort against him big time... Romney will say: "....why didn't you listen to the American people...they didn't want it - and they "knew" it was unconstitutional..." ”

- henhen

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“ @ Mr-rationale: I'm no lawyer, or even a particular student of government, just an ordinary citizen - but I believe I am correct when I point out we expect politicians to behave politically, & members of the SCOTUS to behave in a somewhat different manner - not politically, but rather on the basis of whether enacted law has a proper constitutional basis, or not, irrespective of whatever may be the partisan & political inclinations of the judges. Laws are frequently passed along party lines, sometimes by slim majorities, & no one is surprised by that. But if a narrow majority on the SCOTUS repeatedly reaches decisions on what appear to be partisan & political, not constitutional, lines, then an alarm is, & should be, raised. A political body enacting a law through the political process, however one-sided, does not justify the over-turning of that law by what is supposed to be a non-political body, on a partisan basis. Yet this seems to be something which the current conservative majority on the SCOTUS is becoming too used to doing. As for "karma" - well, the wheel of karma goes 'round & 'round, & where it stops may surprise you... ”

- Haole45

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“ and nico himself is scraping the bottom of the barrel. 60 million Americans lack health care, millions more can lose it in an instant if they lose their job or if the insurance companies deny coverage for what they say is a pre-existing condition. For nico, rectifying the situation wherein America pays nearly twice what other OECD countries pay in support of Judges who are absolutely blithe to the economic consequences of their actions somehow equates to la la liberty. And what he ignores is the presumption towards Democratic means and ends. Roe vs. Wade was a disaster because it to ignored this, but at least Roe Vs. Wade advanced the notion of personal liberty whereas the consequences of the ACA would have been identical if it had been labeled a tax and not a penalty, but the tax would have been unquestionably Constitutional. Being that the Judges should have some degree of humility and being aware that at best it will only be 5-4 to deny the Democratic process (showing the argument is not one sided) prudence should dictate caution thereby upholding the law. And the notion that the argument is one sided in favor of striking it down is evidence of an idiotic mind, which is why they resort to talking about broccoli. A fairer comparison is can the state compel people to pay for anything that they eat that is on the open market? After all, I am not eating now just as I am not using health care now. For me to argue that I should have the right to go into a store when I am really, really hungry and take food and not have to pay for it is precisely the argument that nico is making. Unless he is in favor of denying health care unless people prove they can pay, then he would be consistent, an evil bastard but a consistent one. However we do have the right, by law, to use hospitals regardless of ability to pay. It is the equivalent of going into the store and paying nothing. Republicans also had easy recourse to work with Democrats to replace the penalty with a tax and there is no reason in the world to assume Democrats would have jumped at the chance, therefore Republicans are acting in bad faith. Funny how Republicans claim to be for judicial restraint, except when a Democrat is in the office. ”

- blackton

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“ and the reason why we don't have food insurance is because there is absolutely no chance that I will walk into a store when I am really, really hungry and need to eat a $150,000 piece of broccoli. However if I am uninsured and have a heart attack and need a quadruple bypass with a long recovery, $150,000 can seem like a bargain. Might I suggest the nico and his insane cohorts be forced to pay the bill for the uninsured from here on out? ”

- blackton

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blackton Nicely put. ”

- Nusholtz

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“ henhen, in a sense what time and energy wasted? Republicans were doing NOTHING for 2 years in Congress, not once constructively working with Democrats when it counted yet you have no criticism for this? And the election will turn on how the economy is doing in November, if things are going well Obama will win, what would be the logic in voting for Romney then? That he is going to repeal a law that the Supreme Court already repealed? That he is going to make an economy that is doing well do better just by virtue of cutting taxes on the rich? And what other reasons are there to vote for Romney? War in Iran? Yeah, America really wants that. The Republicans might win if Democrats feel so deflated by the actions of the court that they give up, but is that an America you want, where one party will seek to deprive nearly half of the population of America a sense of participating in our Democracy? I might as well move to China where they at least don't make any pretensions towards equality or fairness and where, at least, I can afford basic health care. ”

- blackton

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“ "The decision would appear nakedly partisan." If . . . IF . . . there were one more Democratic appointee on the court and the decision went 5-4 to uphold, no one who ever wrote for the New Republic would use such a phrase as "nakedly partisan." Mr. Cohn, is liberalism just inherently dishonest? Could you ever come up with a more pre-adolescent dismissal of logic? Hey, come to think of it, there could be some good in your 'reasoning.' It could be used by conservatives to motivate Republicans to be sure to vote for their main ticket. ”

- lvincent

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“ blackton, yeah thanks for cheering me up. Once the shock has worn off in July Obama should go for the coat tails, i.e. get the house back and defend the senate and then once the is filibuster outlawed with a procedural vote in the 1st senate session GO FOR MEDICARE JUNIOR ! Silly old Joe Lieberman who prevented this last time will be gone....(heehee...).This will prove popular, and much harder to strike down for the SCOTUS and ultimately have the potential to be a better cost saving tool then ACA... ”

- henhen

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Twincent is liberalism just inherently dishonest? The decision is nakedly partisan when the justices vote according to the political party that appointed them. Your accusation of dishonesty is without substance or support. ”

- Nusholtz

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“ @Nusholtz I understood your meaning entirely. My comments addressed it directly, but I will try again.. "striking down a democratically enacted law is not equivalent to upholding it from the standpoint of a minority prevailing over a majority for political reasons. Mr. Cohn is correct." Setting aside for the moment who is actually the "majority" in this case, this question embodies a false dichotomy. The expectation of the Supreme Court is that they determine the law's constitutionality. There is no expectation whatsoever that they side with the majority or the minority or some other group. Thus, the only way the court can be embarrassed here is if it fails in determining the law's constitutionality. Either the law is constitutional or it is not. If it is not, then the relative size of the faction that supports it is entirely irrelevant. The fact the that the court is split along ideological lines is in itself an embarrassment, but that criticism can be applied to both factions and both verdicts. Thus, Mr. Cohn's comments are neither here nor there. ”

- Nicomachus

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“ "Either the law is constitutional or it is not." "Thus, the only way the court can be embarrassed here is if it fails in determining the law's constitutionality." Wow, just wow. I seldom read such simpleminded reasoning here at TNR so it kind of surprises me when I come across such utter tripe. Laws are not mathematical equations, and the interpretation of the meaning of the Constitution is forever malleable from one generation to the next. Again, this goes to the notion that the Court should show due deference to the legislative process. The majority, in this case, is the 60 senate votes, the House, and the President in tandem passing a bill. In order to overturn a bill, especially one as large and encompassing as this one, the Court had better possess clear and compelling reasons to do so otherwise they are engaging in rank hubris, a judicial activism seldom seen. And the court does not rule on every law, so somehow the Court fails if it does not review every single law. This is not 1790. Since the provision of the bill with regards to the mandate is not due to take effect until 2014, the Court could allow the people to express their will at the ballot box. Mitt Romney is running explicitly to repeal the law. nico, of course, does not trust the will of the people and would have 5 appointed men to jump the gun and repeal the entire bill simply because he does not "like" it. In 2014, if individuals can show verifiable harm as to the mandates effects (and saying not being able to get free health care is gonna be pretty damn hard) then let the court rule on it. And this is based on Obama winning re-election, no sure thing. They are rank hypocrites. Here is a simple definition, one that you would think Conservatives would embrace: judicial restraint definition A view, associated with Felix Frankfurter among others, that judges should be reluctant to declare legislative enactments unconstitutional unless the conflict between the enactment and the Constitution is obvious. The doctrine is akin to, but not identical with, narrow construction, and it is the opposite of judicial activism. In nicos world, judicial restraint is only for Democratically appointed judges. Bush declaring torture legal, well that is fine. ”

- blackton

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Nicomachus Our laws are enacted by the majority. If the Supreme Court sides with the majority it is not the same as siding with the minority. That's the point which you are not addressing. ”

- Nusholtz

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“ @Nusholtz You are suggesting that in any case where the court does not side with the "majority" they should feel embarrassed? ”

- Nicomachus

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“ Nobody is doubting the SCOTUS's right to determine constitutionality. The problem is that, as Justice Oliver Wendell Holmes (or another Justice, I've forgotten) remarked a long time ago, the Constitution is not a suicide pact. If a Supreme Court can find for Citizens United and not apparently care in the slightest about the havoc that decision is wreaking in our political culture, then it's neither extremist nor paranoid to wonder about the willingness to let a political perspective on the ACA infect the Court's thinking. A Justice of the Supreme Court should be able to find the mandate constitutional without necessarily liking the law personally. Or indeed, vice versa. However, the suspicion exists that the liberal wing of the court would be more willing to do the vice versa than the conservative wing of the court would be willing to separate their personal political views from their constitutional and legal judgement. ”

- ironyroad

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“ irony, not only just that, but we are talking about the legitimacy of the court. It has nothing to do with embarrassment but the long term viability of this court and its decisions. Acting time and again in what will be seen by half the country in a nakedly partisan fashion is destructive to the rule of law. Prudence should have dictated that they punt this until 2014, barring that at most the mandate should be struck down and not the entire bill since the resolution of that problem could be solved in a day if congress enacted a tax and credit bill to replace it. It is not up to the court to say that Congress will fix it, just an awareness that it can be fixed. ”

- blackton

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nicomachus In the case of a political decision such as Bush v. Gore and Citizens United, the court will be embarrassed (as in 73% of the population believing that decisions are political) which I believe was Mr. Cohn's point. ”

- Nusholtz

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“ ironyroad, blackton, Nusholtz, I think I finally understand what you are suggesting. I was previously in disbelief. Allow me to share a very fitting, albeit crude, Russian colloquialism with you.. “Your own sh*t always smells better” When I am not enlightening the misguided on TNR (wink), I grace the forums of various conservative publications. There I have on many occasions heard the exact mirror of the argument you are making. Namely, that liberals on the court do not base decisions on matters of law, but rather on political creed. Many 5-4 decisions in favor of the liberals are bemoaned”: abortion Stenberg v Carhart, affirmative action: Grutter v. Bollinger, religious displays: McCreary County v. ACLU of Kentucky, etc. etc. You will perhaps recall that recently a Republican candidate for president suggested judges should be subpoenaed before Congress to answer for their decisions. Such is the disdain for the “liberal judiciary” in conservative circles. I assure you that had Bush v Gore gone the other way, there would be conservative cries of foul and talk of conspiracy for years to come. As I have previously stated, I actually agree that judges are overly influenced by ideology, but for some reason you are reluctant to attribute this to the liberal wing. What can I say? “Your own sh*t always smells better” ”

- Nicomachus

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“ "but for some reason you are reluctant to attribute this to the liberal wing." Indeed, and the reason is my well-founded suspicion that liberals tend to be wusses and wrestle with their conscience and want to "take the high road" or some such nonsense. Result: loss. ”

- ironyroad

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Nichomachus I am glad you feel enilightened. I have to disagree with you about Bush v. Gore as support for your premise. The equal protection argument followed by the "don't cite this as precedent" is, to me, a clear sign of abuse. Courts are obliged to follow precedent or to provide a reason for not doing so. Legislators need not follow precedent, which made that decision a legislative act. I would have found contemptable any such decision where rights are acknowledged judicially but not to be asserted again. That Sh*t Stinks no matter who benefits, which I believe disproves your theory. ”

- Nusholtz

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“ @ironyroad Oh come come now. You are implying that liberals are better people than conservatives. Actually, I find them to be remarkably similar in their ways. The Daily political machine in Chicago was quite heavy handed and thoroughly lacked scruples. Many liberal supporters in the trade unions are hardly boy scouts. There is a long list of liberal politicians that were investigated and convicted for various forms of corruption. But we do not have to look far to see the iron fist of liberal realpolitik. During the legislation of ACA, President Obama vehemently argued that the mandate was in fact not a tax - in keeping with his campaign promise of not imposing new taxes on the middle class and enhancing the law's political viability. When the act was challenged in court and it became apparent that not being a tax was a legal liability for the mandate. The Obama administration promptly made a duplicitous 180 degree about face and insisted it was in fact a tax. Where was the so called liberal conscience? Looks like old fashioned double dealing to me. ”

- Nicomachus

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“ @ironyroad Correction: should read "The Daley political machine" ”

- Nicomachus

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“ way above I stated I found Roe Vs. Wade (and every abortion decision) to be a terrible decision and I know many liberals who agree with me, so the notion that "we" think our shit doesn't stink is faulty to say the least. Most other cases of what Conservatives state is liberal judicial overreach is based on a fundamental misunderstanding of equal protection under the law. Striking down a sodomy law or laws against miscegenation, as horrifying as striking them down might be to nico, have sound basis in the Constitution and in basic moral philosophy. The dispute against religious display on public property is that there is zero chance that the Hindus, Wiccans, etc. have any chance of getting their displays. If it could be shown that every religious group would be treated equally in the public square it would not be an issue, but if every religious group was every public square would perpetually be covered by some religion or other. And imagine the Church of Satan attempting to put up a display. Affirmative action is a difficult decision because nico thinks redress against past injustice is an injustice itself. I understand and sympathize with that idea, however what should the form that redress should take? If nico just states not continuing an injustice is justice itself then I disagree, sometimes sanctions and redress are necessary. But that seems to be it, because of Roe Vs. Wade another example of judicial overreach must be done to somehow balance it out? That is just nuts. ”

- blackton

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“ You have a point, Nico, about the Daley machine. But your example is an historical one and, while I wouldn't dispute its accuracy, it's generally not the norm in Democratic politics these days. I would stand by the general thrust of my comment -- which did have a satirical element, yes -- in relation to the current state of the Republican Party and its scorched earth approach to politics. With respect to the court, however, I do believe that having the survival of major pieces of legislation dealing with significant national challenges dependent upon Mr. Justice Kennedy's general feeling about the Constitution on Friday morning is not a good advertisement for our political culture at this moment. Even if my side "wins" in this one on a 5-4, I will still remain very unhappy about how matters have developed. A more responsible Republican Party would have seen the ACA pass with some bipartisan support as it contains many crucial components -- including, of course, the mandate -- that were developed by conservative thinking about health care. That they have declared war on something that they should have been involved in bringing to fruition earns contempt. ”

- ironyroad

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“ Seven out of ten Americans think the individual mandate is unconstitutional. The ACA will go down in flames with the support of the American people. What is on trial is Obama's ability to lead the American people on the most important issue of his administration. He failed. After two years, no ordinary person knows what is in the bill or how it will benefit the nation. No one bothered to tell the American people. Had they spent two years convincing the people, maybe they would have known how to convince the Court. Too bad. ”

- Vogelfam

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“ But when they learn of the individual reforms in the law, they like them. And the mandate is the only way to make them work in a private insurance model. Go figure. ”

- ironyroad

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“ "After two years, no ordinary person knows what is in the bill or how it will benefit the nation." For heaven's sake the bill is something like 2700 pages long, why the hell should the ordinary American know what is in the bill. Do you know what is in the bill? Generally I know what is in it, I do know it will insure 30 million more Americans whether by expanding Medicaid or providing subsidies to low income Americans to buy insurance, I also know it gets rid of recission and denial of care due to pre-existing conditions, it also offers guaranteed issue. To do all of this the system needs either a mandate or a tax and credit system so that people do not game the system by only buying insurance when they are sick creating an insurance industry death spiral. Obama was forced to choose a mandate to get the bill passed, but functionally it works the same way as a tax and credit system. Now being that I am an ordinary American who understands the need for the mandate why are you blaming Obama because millions of Americans are ignorant? At the time of Obama's birth a significant majority of Americans were opposed to interracial marriage, so throwing a meaningless stat that because 70% of Americans are ignorant of the bill does not invalidate the bill itself. Granted I think there are a fair amount of people who know what is in the bill and are opposed for various reasons beyond sheer partisanship (those who favor single payer, for example) but by all manner of logic this bill is a good step forward. Unless you are in favor of America paying nearly twice what other OECD nations pay for healthcare with less favorable outcomes? If you are that is basically brain dead. As to the Court, come on. The idea that this court, one that decided bizarrely that corporations are people, really cares about the will of the people? At the least they should have held off until actual harm could be shown (and so far no one has shown harm), at best they should have thrown the whole thing out as a waste of time. ”

- blackton

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“ Oh the venerable Supreme Court will be celebrated for keeping us safe from the tyranny of broccoli. All hail, Scalia that brave fighter against Broccoli. ”

- arnon1

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“ I happen to think Roe v Wade was a very sound decision. The core principal of liberty is the right of people to dispose of their own physical and mental personhood, to be interfered with only if there is a compelling state interest. It should by now be clear beyond peradventure that the interest that abortion opponents are defending is purely religious in nature, the religious belief by some of the personhood of even an embryo. That is a belief quite outside of science and of any general human understanding. Such particular religious belief is not at all the sort of interest that the state has authority to protect under our Constitution. It must be said over and over that no one is compelled by Roe to obtain an abortion in violation of conscience. Roe was a 7-2 decision joined by justices appointed under both Democratic and Republican administrations. They were not chosen for their political and ideological conformity as were the conservatives on today's court. ”

- roidubouloi

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“ Even if every political description of ACA were utterly duplicitous, that is quite irrelevant to the constitutionality of the law. There has never before been a constitutional requirement that Congress or the president describe their actions in a particular way. By that reasoning, Reagan's tax cuts were unconstitutional because of the duplicitous claim that tax revenues would increase as a result. In constitutional jurisprudence, it is necessary to maintain the distinction between cases upholding individual liberty against majoritarian law and cases where there is no individual liberty interest at stake, only a question of federal power. As to individual rights, the Constitution is anti-majoritarian. As to the regulation of commerce, it is majoritarian, and individual rights are implicated only on the case of invidious discrimination between persons. It is precisely to blur the distinction that the phony claim is being made here that there is some liberty interest at stake, not to be "forced into commerce." That is objectively ridiculous. Being forced to pay part of the cost of care for the uninsured because one is part of that class does not force anyone to do anything. It is a tax, pure and simple, no matter what it is called. ”

- roidubouloi

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“ Obama needed to repetitively articulate the three or four most salient benefits of the ACA until every dog and cat in America was mumbling them in their sleep. The absence of a majority constituency for the ACA will have a crucial impact on the thinking of Kennedy and Roberts. It is the devil's whisper, "go ahead, say no, it's OK..." ”

- Vogelfam

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“ "And a CNN/ORC International poll also indicates that while the two year old law is growing in popularity, especially among independent voters, half of all Americans still oppose it, although some who disapprove of the measure do so because they think it's not liberal enough." That pretty much leaves a minority opposed. In any case, an unusual form of jurisprudence. ”

- roidubouloi

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“ I'm not willing to make a real prediction -- but, because the court, most especially its most supposedly "conservative" members, have behaved so politically in the recent past, when it has suited their political allies even though it contradicted their stated ideas on intent, precedent, etc., I doubt that you can get any indication of how they will vote based on claimed ideology. It is going to be a political decision. But, does that mean that the most advantageous political decision will require striking down the mandate? I'm not so sure. Here's why: the mandate is the best conservative idea for reaching some kind of universality. Strike it down, and they have nothing. No tool with which to meet very real popular demands for reform. If they strike it down without removing the new mandates on insurers -- no denials for preexisting conditions, no cancellation of policies once policy holders become seriously and expensively ill, etc., insurers will not be able to make a profit. But striking down those reforms will intensify, not extinguish, the popular demand for some kind of reform that provides more dependability and broader, more accessible coverage. Striking down the mandate will create a huge economic problem for Republican's political allies in the insurance industry -- while intensifying a political problem with voters. Problems they will have no answer for because the one approach they and their allies have ever found slightly palatable has just been declared unconstitutional. If they uphold it, Republican lawmakers still get credit with their most conservative base for trying. The insurance company is stuck with a lot of things it doesn't like but gets compensated for them with millions of new policyholders. Republicans can campaign on repeal of all of Obamacare without really having to do it, and more liberal concepts of health care reform will die on the vine. ”

- esmense

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