February 3, 2011

Will the Supreme Court accept an Obamacare appeal without waiting for a Court of Appeals decision?

That's what Virginia attorney general Kenneth Cuccinelli is attempting to make happen in Virginia v. Sebelius.
Rule 11. Certiorari to a United States Court of Appeals Before Judgment
A petition for a writ of certiorari to review a case pending in a United States court of appeals, before judgment is entered in that court, will be granted only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require im mediate determination in this Court. See 28 U.S.C. §2101(e).
It is extremely rare for the Court to grant certiorari before judgment of a court of appeals.... A quick Westlaw search (in which I certainly may have missed something) indicates that the last time the Court did so — setting aside cases in which the Court took a case and consolidated it with another one coming from the court of appeals, or simply granted cert to vacate and remand in light of a recent decision — was 23 years ago in United States v. Mistretta. There, the district court had declared the newly minted U.S. Sentencing Guidelines unconstitutional as a violation of separation of powers. And the need for quick judicial resolution was extremely pressing — it affected the sentencing of every single federal defendant in the country.
What is the argument for urgency here? So much effort and money are being wasted if it is in fact the case that the reform is void. 

79 comments:

Bender said...

What is the argument for urgency here?

It is not so much the argument for urgency as it is the tactic of the Court taking up a judgment striking down the law.

If the case is taken now, since Kagan has an ethical obligation to recuse herself, having already been an advocate for the law and helping its passage, a 4-4 decision leaves the prior decision striking down the law standing.

If the case goes to the circuit court first, there is a chance (I believe slim) that the judgment would be reversed. In that case, a 4-4 decision would be a defeat.

TWM said...

"What is the argument for urgency here?"

This law is stretching its tentacles throughout the country now - costing us money, establishing bureacracy, and making significant changes in both the public and private sectors that will be, if not impossible, certainly extremely difficult to correct. Holding off for a year or so does incalcuable damage.

So, yes it should be fast tracked.

Naturally Barry does not want this becuase he's hoping he can salvage some or all of it before the election. He's hoping people will lose interest as they often do.

Frankly it would be fun to see him struggle with it except for the damage this monstrosity is doing to our nation.

Bob Ellison said...

What is the argument for foot-dragging the way courts usually do? That creates uncertainty and costs money in many different ways.

The evidence is in; the arguments are made. Rule already, SCOTUS.

Bender said...

To be clear here, we do not need the Supreme Court to rule already.

There is a judgment striking down the law. Two judgments in fact.

Those judgments are fully sufficient to invalidate Obamacare. They are not advisory, they are not merely "opinion," they are binding judgments.

Unless and until reversed, these judgments invalidating Obamacare are the law. So, there is no need for any further review, much less a rush on it, however desirable some might want it.

Bob Ellison said...

I guess I misunderstood the point of the Professor's last two sentences ("What is the argument...reform is void"). The form of it sounded like a plea for time.

garaji mahal said...

Sometimes multiple lawsuits trying to overturn law is okay! Who needs elections.

Kirby Olson said...

Do the two judgements invalidate the law only in Virginia (and whatever other state -- Florida?) or do they do so nationally?

Does the SCOTUS automatically overrule any state supreme court?

Hagar said...

The urgency is that private industry and business will sit there waiting to see what the Supremes are going to do, while the Federal bureaucracy is forging ahead to get as much as they can while the getting is good, and they do not care if it will cost them to reverse course later. In fact, the way they look at it, any additional work is gravy, even if it is to backtrack on work they should not have done in the first place. And someone is going to have to lay into them to make sure they do backtrack.

Glenn Howes said...

Sean Trende on RealClearPolitics.com says this is to avoid the comparatively Democratic heavy 4th Circuit.

lyssalovelyredhead said...

Do the two judgements invalidate the law only in Virginia (and whatever other state -- Florida?) or do they do so nationally?

Does the SCOTUS automatically overrule any state supreme court?


Only FL and VA are bound by the decisions in their courts, but other courts can consider them persuasive when faced with similar questions.

SCOTUS automatically overrules any state supreme court on issues of federal question (such as this one, on the federal constitution). SCOTUS gets no say whatsoever if only a state issue is involved (such as interpretation of a state statute or the state constitution).

- Lyssa

Luke Lea said...

So the Supreme Court is supposed to stop us from wasting our money? A better case could be made if there were irrevocable consequences, such that we couldn't go back once we had started down that road.

AJ Lynch said...

As if private industry and businesses don't have better things to do than implement this Rube Goldbergesque monstrosity called The Patient Protection and Affordable Care Act [did they use an old Pravda editor to come up with that name?]

traditionalguy said...

The entire rigmarole of Appellate process needs to run its course here first to help give the SCOTUS cover for their "Legal Ruling" and not appear to be pushing a coup d'etat upon the Obama regime.

Bender said...

Do the two judgements invalidate the law only in Virginia (and whatever other state -- Florida?) or do they do so nationally?

The two judgments apply fully and completely against the United States federal government. Wherever the federal government seeks to act, it is unconstitutional for them to do so under this law.

And that includes more than the 27 states involved in these litigations, it includes more than the two judicial districts where the case was heard. It includes everywhere the federal government reaches.

Bender said...

The judgments say that it is unconstitutional for defendant Sebilius and her other co-defendants, and their agents and successors, to implement this law. Period.

Not that it is unconstitutional for them to act in certain states, but not others. Rather, these defendants and any else seeking to proceed under the provisions of ObamaCare would be acting contrary to the Constitution.

That means it applies EVERYWHERE.

Original Mike said...

@Bender: And yet, it has been reported that the Administration plans on acting like nothing has happened. Doesn't that violate the oath Obama swore?

pavlova8 said...

So much for democracy. The legislation was duly enacted by both the House and Senate, the elected representatives of the people and signed into law by the President of the United States, who was elected by a substantial majority of the American people. That's obviously not enough authority for some.

Bender said...

The Obama Administration is already in contempt of court for its violation of the rulings in the case involving the illegal moratorium on deepwater-drilling (Hornbeck Offshore Services LLC v. Salazar, 2:10-cv-01663). One should not expect anything different here.

Barack Obama: "Constitution? We ain't got no Constitution. We don't need no Constitution. I don't have to show you any stinking Constitution."

Original Mike said...

Congress and the President are not free to pass any old law they want. Sorry.

AJ Lynch said...

Pavlova:
FYI - even a unanimously passed bill would still need to pass constitutional muster. That is why libruls have been so focused and driven to stack the courts in the last 30 years.

bagoh20 said...

"So much effort and money are being wasted if it is in fact the case that the reform is void."

And even more will be wasted if not.

So the urgency is just how much we waste: billions or trillions. I wonder how many millions per day can be saved by voiding it now. But even if it takes 2 years, the savings is either enormous or incalculable assuming you value liberty.

Hoosier Daddy said...

So much for democracy. The legislation was duly enacted by both the House and Senate, the elected representatives of the people and signed into law by the President of the United States, who was elected by a substantial majority of the American people.

Well not to pick nits but 53-47 isn't a 'substantial majority'. Bush 41 won by a bigger margin than that.

Anyway, that pesky Constitution does have a tendency of getting in the way of our elected leaders doing too much for our own good.

Original Mike said...

"the savings is either enormous or incalculable assuming you value liberty."

Or quality health care.

Ralph L said...

the last time the Court did so
Bush v. Gore?

I thought the judge said the law would remain in place pending appeal, or did I misunderstand.

Bruce Hayden said...

I think that they will wait, at least a bit. Typically, they have waited for a circuit split, and since the cases have not been heard yet by the circuits, there can't be a split yet.

Sure, they could skip that step, but I don't think that they will. Rather, different circuits are likely to view this dispute differently, and providing the take of 3 or 4 circuits would likely benefit the Justices when making their decision.

edutcher said...

The urgency is that, if it went before the Court this October and were struck down, it would not be an issue in 2012.

pavlova8 said...

So much for democracy. The legislation was duly enacted by both the House and Senate, the elected representatives of the people and signed into law by the President of the United States, who was elected by a substantial majority of the American people. That's obviously not enough authority for some.

You forgot all that sticky stuff about consent of the governed. The people have been dead set against this from the start. The legislation was bribed and bullied into existence in a way that, if the media and the Justice Department were honest (asking a lot, I know), would have had Pelosi Galore, Dingy Harry, RahmBO, and a half dozen Senators in jail by now. This was a power grab, pure and simple, and the people used the Constitutional means at their disposal to have it thrown out.

Judicial review, while not necessarily democratic, has been part of the American political, legislative, and judicial scene for 2 centuries. For good or ill, it is also considered part of the framework of democracy in this federal republic.

Hagar said...

Both political parties want it for a 2012 campaign issue, so neither is going to be any help in lighting a fire under the Supremes.

And I bet you dollars against donuts that the bureaucracy is going to proceed "so as to be ready in case the Supreme Court upholds the bill," whether they think the Court will or not, and ignore that "jumped up judge in Florida" as far as they can get away with.

Sloanasaurus said...

You would think the Supreme Court would want the Courts of Appeal to weigh in on the cases. If Anthony Kennedy wants to know whether he can sustain Obamacare but retain a limit to the powers of Congress at the same time, then maybe some smart Circuit Ct judge will come up with a legal principal that accomplishes it.

Pogo said...

"That's obviously not enough authority for some."

It's not.
The Constitution must be followed as well. It's why we separate powers.

Nevertheless, I would bet SCOTUS upholds the law, TOTUS grins broadly, and the end of the nation will have been formally certified.

I suggest we then reincorporate as The Peoples Republic of America.

Coketown said...

Pavlova: I did the heavy lifting for you and found a glossary of terms for U.S. government/civics. http://en.wikibooks.org/wiki/United_States_Government/Civics_Glossary

Pay special attention to such terms as "judicial review," "federalism," and "checks and balances."

If you need help, let me know, doll!

Fen said...

Isn't it interesting how our Lefties here reflexively champion "mob rule" without any consideration for constitution.

Seven Machos said...

I disagree, Althouse. I would think that this Court -- any Supreme Court -- would very much want and hope for a legislative resolution. Judicial fiat tends to create long-lasting problems (Roe, the Kansas City busing fiasco, etc., etc.) whereas a political solution solves problems in a way where everyone should be happy because they know the issue can be revisited forever until it's gotten right.

Lem said...

The Obama administration could not care less about what a Federal Judge says when they want something bad enough.

bagoh20 said...

I think it's an open question as to who benefits politically in 2012 from a repeal before that.

Dems may look like failures to some of their base, but also they will also seem less dangerous to moderates.

Repubs may look victorious, but will lose a major rallying call.

It would be great for the nation to repeal it ASAP, but politically there may be little juice changing hands.

bagoh20 said...

It does seem a little ridiculous to go through all that we have for decades fighting over this with nearly every citizen involved somehow, and every politician betting his career on it, then having entire professions shudder in adjustment, only to, in the end, just ask 9 people to decide it forever. But, that's what we do.

Original Mike said...

"It does seem a little ridiculous to go through all that we have for decades fighting over this with nearly every citizen involved somehow, and every politician betting his career on it, then having entire professions shudder in adjustment, only to, in the end, just ask 9 people to decide it forever. But, that's what we do."

Which is what is so obnoxiuos about the Dems "ram it down their throats while we can" approach. It's been said that the big questions (like the enactment of Medicare) were accomplished by consensus (the veracity of that claim I'm not in a position to defend), but this was a power play pure and simple.

I was beside myself with rage last night when I saw a clip of Chuck Schumer claiming that the Dems were prepared to work with the Repubs on fixing what's wrong with ObamaCare. Fuck you and the horse you rode in on, Chuckie.

Seven Machos said...

There's nothing unconstitutional about Medicare. It's just bad and unsustainable law that will have be changed.

But that's the beauty of a legislature beholden every two or six years to the people, and an executive beholden every four. Right, Democrats?

Beldar said...

The fact that Congress is debating the possible repeal or amendment of this statute is, by itself, an excellent reason for the SCOTUS to hold its hand. The Justices have an opportunity to tap the wisdom and ingenuity of the U.S. Circuit Judges of at least three different federal circuits who are, or are about to be, considering these same arguments. The Justices have healthy egos, but they also respect the process, and in particular, the ways that adhering to the regular process can result in a better final product.

Big Mike said...

I object to your use of the word "reform" in the final sentence, Professor, notwithstanding that the act was titled "Health Care Reform." Reforms connote moving forward in some sense. The fact that the regulations are due to take effect in 2014 but already over 700 organizations of various sorts have had to petition for, and have been granted, exemptions from the provisions of the law clearly indicates that whatever else this law is, it is not any sort of step forward.

Timon said...

"There's nothing unconstitutional about Medicare."

Was that power enumerated, or for which enumerated power is it necessary and proper?

Big Mike said...

BTW, I'm happy with Ken Cuccinelli, and getting happier by the day. The WaPo reported that there's a fellow who's been in prison for 27 years as a serial rapist, and recent DNA testing proved him innocent of two of the four rapes. DNA evidence was either not collected or not preserved in the other two rapes. Cuccinelli, bless his heart, is working with the guy's attorneys to get the guy out of jail on a Writ of Innocence. I'd be surprised if you could find one other AG out of the remaining 49 states who'd do the same.

Almost Ali said...

Solving one of the great mysteries of the SCOTUS-universe:

Obamacare:

Roberts: against.
Alito: against.
Thomas: against.
Scalia: against.

Ginsburg: for.
Bryer: for.
Sotomayer: for.
Kagan: for.

Kennedy: against.

(no yawning, please)

The Drill SGT said...

Althouse, a couple of loegal questions:

1. Does the ruling in Florida tossing out the law, absent a stay by a higher court, make further implementation of the Law illegal in:

a. Florida?
b. By Joining Florida, also in the other 25 states?
c. across the country?
d. nowhere. Obama can defy a Federal judge cuz...

Bonus question: cuz why?

2. If the ruling isn't stayed, what are the Judge's next steps to enforce his ruling:

a. fines?
b. civil contempt?
c. criminal contempt?
d. none of the above
e. other

Seven Machos said...

Timon: Providing for the health care of the poor and elderly is certainly part of the general welfare of the United States. Moreoever, any drug sold in the United States is interstate commerce. Show me the hospital that buys and sells only in the state where it is located. Etc., etc.

Constitutional challenges to Medicare have not even been entertained. You should try one.

Florida said...

"The evidence is in; the arguments are made. Rule already, SCOTUS."

yes, rule ... so we can get on with the next stage.

What is the next stage?

1) The Supreme Court strikes down ObamaCare as unconstitional. Then, the next stage is continuing the purge of corrupt Democrats from all political offices at the national state and local level.

2) The Supreme Court declars that ObamaCare is Constitutional. Then, the next stage is finding new guards for our defense and rewriting the next Constitution to ensure this can never happen again. Restructuruing our entire form of government will be the next stage ... which I call the "Getting In Their Fucking Face" stage.

Either way, ObamaCare is dead and with it the political careers of whose who used violence, intimidation and bribery to inflict this unconstitutional abortion upon a tired, weary unemployed nation.

These Democrats can never again be allowed to wield the reins of power.

Almost Ali said...

Was that power enumerated, or for which enumerated power is it necessary and proper?

I believe it was called the power of Claude Pepper, D-FL.

The Drill SGT said...

Almost Ali said...
Kagan: for.


She was SG when her office argued in court that the law was constiutional and that the states lacked standing.

R.e.c.u.s.a.l

like Bender said.

garaji mahal said...

What is the next stage?

1) The Supreme Court strikes down ObamaCare as unconstitional.


Good one Florida/New Ham. You think this SC will decide against the health insurance industry that wants 35 million customers? Not a chance.

Joe said...

(The Crypto Jew)

So NOW democracy counts? Congress passes a bill 60% of the people hate, but THAT'S democracy and so must be respected? And Congress and the courts refuse to over-turn a bill 50%-plus believe needs over-turning, and THAT'S "DEMOCRACY", eh? So now the Left neither cares for Free Speech OR the Will of the People...

Jay said...

What is the argument for urgency here?

As stated from the insular environment from a public university.

Hint: a majority of the US workforce works at for-profit businesses with senses of urgency.

Jay said...

So much for democracy. The legislation was duly enacted by both the House and Senate, the elected representatives of the people and signed into law by the President of the United States, who was elected by a substantial majority of the American people. That's obviously not enough authority for some.


Er, they changed the rules in the Senate to pass this after Sen Brown was elected.
The complicated two-step process was made necessary because Senate Democrats lost their filibuster-proof supermajority in a special election in January, a setback that caused even some Democratic lawmakers to pronounce the yearlong health care effort dead.

But hey, you have your meme and we wouldn't want that to die or anything...

Timon said...

Seven Machos,

The people who wrote the constitution listed what 'general welfare' refers to. I don't know about that interstate commerece thing, ISTM that Medicare is a participation in interstate commerce, not a regulation of it.

Almost Ali said...

Drill SGT;

I doubt Kagan will recuse herself, nor should she:

"Kagan addressed the issue of recusing herself from the health-care-law decision during her confirmation hearing before the Senate Judiciary Committee as GOP senators pressed her on how much involvement she had had in the White House’s push for the legislation.

Kagan said she never was asked for her opinion on the merits of litigation challenging the law.

“I attended at least one meeting where the existence of the litigation was briefly mentioned,” Kagan said, “but none where any substantive discussion of the litigation occurred.”

In written testimony to the committee before the hearings, Kagan simply responded “no” to questions about whether she had been asked her opinion, offered advice or discussed the legal and constitutional merits of the health-care law." (Link)

Almost Ali said...

Drill SGT:

I don't believe Kagan will recuse herself, nor should she:

"Kagan addressed the issue of recusing herself from the health-care-law decision during her confirmation hearing before the Senate Judiciary Committee as GOP senators pressed her on how much involvement she had had in the White House’s push for the legislation.

Kagan said she never was asked for her opinion on the merits of litigation challenging the law.

“I attended at least one meeting where the existence of the litigation was briefly mentioned,” Kagan said, “but none where any substantive discussion of the litigation occurred.”

In written testimony to the committee before the hearings, Kagan simply responded “no” to questions about whether she had been asked her opinion, offered advice or discussed the legal and constitutional merits of the health-care law." (Link)

(this may be a double post)

The Musket said...

In reply to Pavlov's comment:

Passing this bill wasn't popular - Scott Browns election was in large part a vote by the citizens against the bill. Because Scott Brown was elected, the Senate could not duly pass the bill and congressional rules were broken to get the bill passed.

Despite what Schumer D-NY said, the three branches of our government are Executive, Legislative and Judicial. The judicial branch is supposed to rule on the constitutionality of a bill.

In November 2010 the citizens spoke up at the voting booth. The current attempt to repeal obamacare is our republic at work - we the people spoke up, changed those in power and it appears they may be listening.

If democracy were at work, the law would be dust -- there are far more people that don't want the law than that do. In a simple up/down vote of citizens, the bill never would have passed.

Jay said...

Timon: Providing for the health care of the poor and elderly is certainly part of the general welfare of the United States.

Yet somehow the idea wasn't popularized until almost 200 years after the country was founded...

Terry said...

Wasn't Obama a lecturer on Constitutional law before he became president?
Wasn't his "professorship" touted by his supporters as evidence that Obama was a smart guy?
Yet his administration was blindsided by the argument that the commerce clause can't force a citizen to engage in certain economic activities.
Libs, get over it. Obama is the best you've got and he's a pampered, affirmative action "intellectual". The dude couldn't think his way out of taking freshman English. Obama may pass for genius among the elite, but to this American he looks like a dolt.

Anga2010 said...

What is the urgency when ppl are breaking the law? How fast does it take for the police to show up?
The congress (and executive) have never had the power to violate the constitution. How long do you want to wait?
For my part I would take aggressiver action against law-breakers and null (in a non-violent way) them in the swiftest way possible.

Almost Ali said...

Drill SGT:

I don't believe Kagan will recuse herself, nor should she:

"Kagan addressed the issue of recusing herself from the health-care-law decision during her confirmation hearing before the Senate Judiciary Committee as GOP senators pressed her on how much involvement she had had in the White House’s push for the legislation.

Kagan said she never was asked for her opinion on the merits of litigation challenging the law.

“I attended at least one meeting where the existence of the litigation was briefly mentioned,” Kagan said, “but none where any substantive discussion of the litigation occurred.”

In written testimony to the committee before the hearings, Kagan simply responded “no” to questions about whether she had been asked her opinion, offered advice or discussed the legal and constitutional merits of the health-care law." (Link)

(sorry if this is a double/triple post)

Almost Ali said...

test...

ing

Almost Ali said...

Drill SGT,

I wrote you a very impressive response re Kagan-recusal - but apparently the post contained a fatal error.

Thus I'm forced to sum up my response by simply saying; there's no way in hell Kagan would or should recuse herself.

Elliott A said...

Could someone please explain to a non lawyer exactly how health insurance which cannot and does not ever cross state lines (The law is not about federal entitlements) be considered interstate commerce? Thanks

Big Mike said...

@Almost Ali, you're almost right. There is no way Kagan would recuse herself, but Drill SGT is absolutely correct as to why she should recuse herself.

If you had been through BCT you'd know -- NEVER try to argue with a drill sergeant.

Almost Ali said...

but Drill SGT is absolutely correct as to why she should recuse herself.

As SG, Kagan never rendered an opinion regarding Obamacare. Which, in a manner of speaking, makes her a political virgin.

Seven Machos said...

Jay -- The Founders didn't put one thing in the Constitution about space travel, either. Or the emancipation of slaves.

I was like you once, dude. I thought things I as a libertarian didn't want the federal government doing or the federal government should do are unconstitutional.

I was wrong, like you are wrong. Congressional power has always been understood to be plenary. We live in a pretty awesome representative democracy. You have to go out there and win the argument.

Elliott -- Congress has the power to tax and to spend. This whole law wouldn't have ever been a problem if Congress hadn't have been so pussy and simply labeled what it was doing a tax.

Clay-ipso Facto said...

Seven, I totally agree with you that we have to win the argument within the existing structure, but it doesn't keep us fellow Libertarians from reading the text of the Constitution and its amendments and then looking around and asking, "how the Hell did we get HERE?!?"

The Drill SGT said...
This comment has been removed by the author.
The Drill SGT said...

Big Mike said...
If you had been through BCT you'd know -- NEVER try to argue with a drill sergeant.


As Mike knows, the acceptable range of responses runs the gambit from:

1. Yes, Drill Sergeant!
2. No, Drill Sergeant!
3. No Excuse, Drill Sergeant!

The outcome of any other response is too terrible to contemplate :)

cubanbob said...

7 machos beg to differ. If the founders wanted Congress to have plenary powers they would have granted them to begin with. It took a constitutional amendment to permit the income tax. That the Supreme Court in the past blessed obvious constitutionally invalid Congressional and Executive power grabs does not necessarily mean it will this time.
As it stands today Obamacare is a nullity in 26 states. In those states the law does not exist. There is nothing to enforce or obey in those states in context of Obamacare. Whether one is for it or against it there cannot be a national scheme as envisaged by Obamacare if it is not law in all of the states. This is why it is best to have the court hear all the decided cases now and make its determination as quickly as possible.

As you noted people believe that what they believe to be bad policy is unconstitutional and what they believe to be good policy is constitutional. Sometimes yes,sometimes no. The constitution exists to define the powers of government and nothing else. When desired policy is outside the current constitution the correct way is to amend it to allow the desired policy.

Seven Machos said...

If the founders wanted Congress to have plenary powers they would have granted them to begin with

They did, and they are. Each and every limited power that Congress possesses is a plenary power, unless otherwise indicated within the document.

It took a constitutional amendment to permit the income tax.

Yes. Because before that, the limited powers of the Constitution did not include the power to tax income, plenarily. Get it?

This is why it is best to have the court hear all the decided cases now and make its determination as quickly as possible.

I think this is a terrible idea because it is a gamble on all sides and it vests too much power in the branch of government least responsive to the people. You think about that as you go to bed tonight, surely considering yourself a believer in limited government. What you want is for five of nine people who are wholly unaccountable to removal from power by popular vote to decide your way, thereby overturning a law that was, in fact, created by some 500 people who were all popularly elected.

The best thing would be if the law is changed by Congress.

Erik said...

Seven, I disagree that there would have been no constitutional problem with Obamacare if Congress had just said it was using its taxing power. Let's be precise here. The individual mandate is clearly not a tax. It is a directive that individuals must buy health insurance. The $2000 penalty (or however much it is) is the mechanism by which Congress hopes to enforce the individual mandate. Now, arguably, that penalty provision is a tax (on the non-purchase of health insurance). Even if Congress has the power under its taxing authority to enforce the mandate, it must have some independent power to impose the mandate in the first place. But it doesn't since the mandate to purchase health insurance is not,in any meaningful sense, the regulation of commerce.

Look at it this way. Suppose Congress had passed Obamacare exactly as it is but without the penalty provision and suppose further that these same 27 states challenged the individual mandate as beyond Congress's powers under the Commerce Clause. The government could not defend the law on the ground that the mandate is a "tax." Although the mandate imposes a cost on the individual, it raises no revenue for the government and thus is not a tax. Simply put, Congress's decision to include the penalty provision as an enforcement mechanism does not transform the individual mandate into a "tax."

Seven Machos said...

Erik -- You are way too into the details. Had Congress put forth a tax for $2000 to pay for a scheme that would provide free health care to everyone who doesn't have it, I find it hard to believe that there would be a constitutional issue.

Randy Barnett might be able to gin one up. He's a smart guy. But I can't imagine it would stick.

Erik said...

Seven, I agree that Congress could have done something to achieve its desired aim consistent with existing Commerce Clause precedent. What you suggest may well have a lawful use of its taxing and Commerce Clause powers if Congress had enacted it. But it didn't. The government cannot defend this law by saying that some other law that operates differently but which is designed to accomplish the same thing would have been constitutonal had Congress enacted it.

Seven Machos said...

Erik -- I agree completely. I think the law is grossly unconstitutional. But I'm still mad about Wickard v. Fillburn and my point is that it's a huge and uncertain gamble to allow the Supreme Court to decide this. The best result would obviously, obviously be Congress and Obama changing or rescinding the law.

My analogy would be this: I could take every single penny I have right now in the bank, savings, stocks, etc., and turn it into casino chips and bet it on a single hand of blackjack. If I win, I double my money. If I lose...

Erik said...

Yes, Wickard was an outrageous expansion of the federal government's powers And yes, it would be better if the politcal braches of government corrected the monstrosity that is Obamacare. But that won't happen while Obama is president and would be hard to achieve even if Tea Party-type Republicans controlled the House, the Senate, and the Presidency (which won't happen in 2012). All it would take is for 40 Democrats in the Senate to fillibuster a bill repealing Obamacare. So I think the best hope is for the the Supreme Court to strike it down, which would have the added virtue that the Court would have to establish that there is some significant boundary beyond which Congress may not go when relying on the Commerce Clause.

Mc said...

"Sometimes multiple lawsuits trying to overturn law is okay! Who needs elections."

Sometimes yes, but sometimes multiple legal cases at the same time can have a damaging effect on the rule of law and legal certainty. In the EU regime it's called lis pendens and I'm sure the same rules apply in the States.

Best wishes
Criminal Defence Lawyers in Edinburgh

dehavenje said...

The urgency is that we just have a bunch of knucklehead politicians

MikeR said...

"I think it's an open question as to who benefits politically in 2012 from a repeal before that." Probably, but it would sure be interesting! I recently saw on a liberal blog that someone claimed Obama's impressive accomplishments. I asked, If Obamacare is repealed or annulled, how impressive would his accomplishments be? What would be left that you're proud of? No answer. This is really about all the left has to show for their revolution. I think it would take the heart out of them for a generation.

kent said...

Shorter Pavlova: "Are you serious? Are you serious?"