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Debates Forum

  1. Standard member sh76
    Civis Americanus Sum
    28 Mar '12 17:46
    Edwin Kneedler, deputy solicitor general said today "there are only a few provisions that are non-severable from the mandate" (paraphrasing from memory). The government is arguing that it will be up to Congress to decide how to amend the Act if the mandate goes and/or up to others affected to bring causes of action to get other provisions struck down.

    Clement earlier asserted that the Congressional record was very clear that the mandate was a central and necessary component of the PPACA and no justice contradicted him.

    The severablity issue could go either way, but it is hardly a cut and dried issue.
  2. 28 Mar '12 17:54
    Originally posted by sh76
    Edwin Kneedler, deputy solicitor general said today "there are only a few provisions that are non-severable from the mandate" (paraphrasing from memory). The government is arguing that it will be up to Congress to decide how to amend the Act if the mandate goes and/or up to others affected to bring causes of action to get other provisions struck down.

    Clemen ...[text shortened]... ted him.

    The severablity issue could go either way, but it is hardly a cut and dried issue.
    Interesting.

    As for any significant congressional amendments, that seems tricky with the continued politicized nature of the debate and with Republican control of the House including a strong Tea Party presence.

    Lastly, I do not know why the authors of the bill just didn't merely add an incremental amount to the income tax, and then provide an exemption to that income tax increase if one has health insurance, and thus just avoid the words "mandate" or "penalty" altogether.
  3. Standard member sh76
    Civis Americanus Sum
    28 Mar '12 18:03 / 1 edit
    Originally posted by moon1969
    Interesting.

    As for any significant congressional amendments, that seems tricky with the continued politicized nature of the debate and with Republican control of the House including a strong Tea Party presence.

    Lastly, I do not know why the authors of the bill just didn't merely add an incremental amount to the income tax, and then provide an exempti ...[text shortened]... one has health insurance, and thus just avoid the words "mandate" or "penalty" altogether.
    The mandate penalty is a fixed amount (graduated by income class, yes, but still a fixed amount). A direct tax of a fixed amount would be unconstitutional. It would have had to have been an increase in percentage of income tax. This would have been both politically less popular and would have been tricky because of the differing amounts of the credit that would have to have been applied.

    But you are correct that if they'd chosen this basic approach, the constitutional challenge would have been much weaker.

    Edit:

    If you have time, today's oral argument is available here:

    http://www.c-span.org/Events/If-the-Individual-Mandate-Portion-of-the-Law-is-Unconstitutional-Can-the-Rest-of-the-Law-Survive/10737429095-2/

    Very interesting listening. I listened to it during my lunchtime walk.
  4. 28 Mar '12 18:51 / 2 edits
    Originally posted by sh76
    If you have time, today's oral argument is available here:

    http://www.c-span.org/Events/If-the-Individual-Mandate-Portion-of-the-Law-is-Unconstitutional-Can-the-Rest-of-the-Law-Survive/10737429095-2/

    Very interesting listening. I listened to it during my lunchtime walk.
    Typically, in oral arguments before an appellate court, the judges/justices will take a devil advocate's position and thus it is difficult to predict how the appellate court will rule based on the court's comments and questions during the oral arguments. Yet, I do not think that the case with the current Supreme Court, and that they fairly clearly reveal their positions during oral arguments?
  5. Standard member sh76
    Civis Americanus Sum
    28 Mar '12 18:53
    Originally posted by moon1969
    Typically, in oral arguments before an appellate court, the judges/justices will take a devil advocate's position and thus it is difficult to predict how the appellate court will rule based on the court's comments and questions during the oral arguments. Yet, I do not think that the case with the current Supreme Court, and that they fairly clearly reveal their positions during oral arguments?
    I don't necessarily think they reveal your positions, but even when playing Devil's advocate, you can often glean their sympathies by how forcefully they argue with the advocates and whether they feed them softballs.
  6. 28 Mar '12 19:00 / 1 edit
    Originally posted by sh76
    I don't necessarily think they reveal your positions, but even when playing Devil's advocate, you can often glean their sympathies by how forcefully they argue with the advocates and whether they feed them softballs.
    True. Good point about the softballs. I was just wondering.

    I was wondering your sense after listening to the audio if it reasonably possible to get at least a 5-4 to uphold the law in its entirety.

    Edit: Harry Reid and Jeffrey Toobin (of CNN) had a little disagreement yesterday on the subject.

    http://www.huffingtonpost.com/2012/03/28/harry-reid-jeffrey-toobin-supreme-court-obamacare_n_1384756.html
  7. Standard member sh76
    Civis Americanus Sum
    28 Mar '12 19:13 / 1 edit
    Originally posted by moon1969
    True. Good point about the softballs. I was just wondering.

    I was wondering your sense after listening to the audio if it reasonably possible to get at least a 5-4 to uphold the law in its entirety.

    Edit: Harry Reid and Jeffrey Toobin (of CNN) had a little disagreement yesterday on the subject.

    http://www.huffingtonpost.com/2012/03/28/harry-reid-jeffrey-toobin-supreme-court-obamacare_n_1384756.html
    Possible? Sure. I do think the mandate will come down to a 5-4 vote. Though I think the greater chance is that it will be struck down,I certainly do not think it is a foregone conclusion.
  8. 28 Mar '12 19:53
    From the Houston Chronicle today.

    The final day of healthcare debate at Supreme Court

    Things have gone from bad to worse for the Obama administration at the nation's highest court. For the second consecutive day, the court's conservative justices asked the administration's lawyers tough and sometimes hostile questions about the healthcare overhaul widely known as ObamaCare. Yesterday, it looked as if the law's individual mandate was in grave jeopardy. Today, it's the entire law.


    http://blog.chron.com/txpotomac/2012/03/at-supreme-court-things-go-from-bad-to-worse-for-obama-healthcare-law/
  9. 28 Mar '12 20:12 / 1 edit
    Originally posted by moon1969

    Lastly, I do not know why the authors of the bill just didn't merely add an incremental amount to the income tax, and then provide an exemption to that income tax increase if one has health insurance, and thus just avoid the words "mandate" or "penalty" altogether.


    1. Overconfidence. Liberals even today are still ridiculing the very notion that th version of the one passed by the Senate. It had to be the already passed version or nothing.
    Please ignore this post and look at the next one in the list.
  10. 28 Mar '12 20:13
    Originally posted by moon1969

    Lastly, I do not know why the authors of the bill just didn't merely add an incremental amount to the income tax, and then provide an exemption to that income tax increase if one has health insurance, and thus just avoid the words "mandate" or "penalty" altogether.
    1. Overconfidence. Liberals even today are still ridiculing the very notion that there is even a legitimate question of Constitutionality. Nancy Pelosi totally refused to answer a question about Constitutionality when asked by a reporter, apparently because the question was thought to be beneath her.

    2. Scott Brown. Democrats were rolling along with their 60-40 majority in the Senate. Normally bills like this have to go back and forth a number of times before a final version is passed by both houses of congress. The version the Senate passed was pretty much still a rough draft. When Scott Brown got elected, suddenly no changed version of the bill could pass the Senate. But the version already passed could be rammed through the House. And that's pretty much what Obama did. Bullied the last Democratic hold outs to pass the bill. He didn't have the option of offering a compromised version of the one passed by the Senate. It had to be the already passed version or nothing.
  11. 28 Mar '12 20:16
    Nancy Pelosi showing how seriously the Democrats considered the issue 2 years ago.

    http://cnsnews.com/node/55971
  12. 28 Mar '12 20:18
    Originally posted by techsouth
    1. Overconfidence. Liberals even today are still ridiculing the very notion that there is even a legitimate question of Constitutionality. Nancy Pelosi totally refused to answer a question about Constitutionality when asked by a reporter, apparently because the question was thought to be beneath her.

    2. Scott Brown. Democrats were rolling along with ...[text shortened]... version of the one passed by the Senate. It had to be the already passed version or nothing.
    I believe the term is arrogance, not overconfidence. Also, the election of Scott Brown and the hilarity that insued after he was elected with Obamacare should give you a sense for the disdain democrats have for democracy if things don't go their way.....
  13. Subscriber no1marauder
    It's Nice to Be Nice
    28 Mar '12 21:08
    Originally posted by sh76
    Edwin Kneedler, deputy solicitor general said today "there are only a few provisions that are non-severable from the mandate" (paraphrasing from memory). The government is arguing that it will be up to Congress to decide how to amend the Act if the mandate goes and/or up to others affected to bring causes of action to get other provisions struck down.

    Clemen ...[text shortened]... ted him.

    The severablity issue could go either way, but it is hardly a cut and dried issue.
    The Obama administration has taken a legally dubious and politically suicidal position in the court on severability merely to appease the insurance industry (which opposes the Act anyway). It's so typical of the big money Democratic Party that it makes me want to scream.
  14. Subscriber no1marauder
    It's Nice to Be Nice
    28 Mar '12 21:27
    Originally posted by techsouth
    1. Overconfidence. Liberals even today are still ridiculing the very notion that there is even a legitimate question of Constitutionality. Nancy Pelosi totally refused to answer a question about Constitutionality when asked by a reporter, apparently because the question was thought to be beneath her.

    2. Scott Brown. Democrats were rolling along with ...[text shortened]... version of the one passed by the Senate. It had to be the already passed version or nothing.
    If you recall, the House version had a "public option". It's hard to see how the individual mandate would be constitutionally objectionable if one had the choice of buying a private insurance or from the government; we are required to pay many things to the government.

    I always thought the mandate might fall, but until today I thought the idea that the whole bill might go down was very far-fetched; of the dozens of judges who have looked at the case, only 1 (Vinson in Florida) has found the mandate non-severable. But after reviewing the transcript today, I'm inclined to think that there is a very good chance that this Supreme Court might strike the whole bill down. This will be the biggest and most far reaching case of judicial activism since at least Lochner and probably the biggest of all time; never before has the Supreme Court struck down such a wide ranging governmental solution to an undoubted problem of the first magnitude which was put in place by the people's elected representatives on such hyper-technical grounds. It truly boggles the mind.
  15. 28 Mar '12 21:38
    Originally posted by techsouth
    1. Overconfidence. Liberals even today are still ridiculing the very notion that there is even a legitimate question of Constitutionality. Nancy Pelosi totally refused to answer a question about Constitutionality when asked by a reporter, apparently because the question was thought to be beneath her.
    We are required to pay medicare taxes and that has been upheld by the Supreme Court.