In reality, legal arguments typically have two sides and dismissing one as specious (or frivolous) is almost always unwarranted and undermines the credibility of the critic, in this case the editorial writer of the Times. The editorial gets off on the wrong foot here.There is an old argumentative tactic of characterizing the opponent's argument as frivolous, not passing the "laugh test," etc. Sometimes that should work, but it's overused, notably in the NYT.
In this case, the argument the NYT would like readers to feel free to dismiss out of hand is based on the Origination Clause.
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The "laugh test" argument only works with those who already agree with you. When you see an editorial (or a politician) making this kind of argument, you know they know they can't persuade anyone who doesn't already agree with them. They're just trying to rally the true believers.
Consider 9/11 truthers. I'm offended to have to listen to their arguments. I was taunted by a local truther for not having the courage to have a public debate with him. No. I won't dignify that with a response.
Here's an excellent Skeptoid episode about refusing to dignify certain arguments with serious debate.
If you think the 9/11 truthers are bad, try the Kennedy assassination truthers. I wore book reviews of Edward Epstein's books on Oswald and the Warren Commission, boy of which are excellent. I got a page long comment from a Kennedy truther demanding that I apologize for doubting all the crazies.
The NY Times is going all global warming on the ACA. It is a rolling disaster and, like Humpty Dumpty, it will never be pit back together. They STILL don't have a back end.
Ann Althouse: "I was taunted by a local truther for not having the courage to have a public debate with him."
Do you recall what happened to the liberal editor of Popular Mechanics when they did a takedown of the crazy lefty 9-11 truther claims?
Mustn't go against the hive-mind.
I will mention, once more, that I brought up the origination clause on various blogs, including legal ones, back when Obamacare was first passed. And told by all kinds of trained legal minds that I was an idiot to belive that the Constitution actually said what it said. After all, all the senate had to do was wave a magic wand, completely substitute one bill for another, and Abracadabra wowzee Shazam!, the bill wholly written in the senate and never read by anyone has now originated in the house.
Can I feel vindicated now that it's in court? And ask why all these brilliant legal minds couldn't see what a poor innocent boiler operator saw years ago?
Oh, another BTW. I asked several early teen Scouts working on their Citizenship in the Nation merit badge, for which I'm a counselor, their opinion based on the circumstances of the ACA's passage. The unanimous answer so far from teenagers having read the Constitution- ACA originated in the Senate. So the real question here is- are highly educated judges as smart as teenagers, or are they blinded by pnumbras and emanations and educated so much that they are unable to see the truth?
Origination Clause?
Dude, that was, like, way more than 20 years ago.
Ezra Klein says it's older than a hundred years old!!
(in Keanu voice)"...whoa...."
The problem for the NYT is that the origination argument is a pretty good legal claim, and the courts will have to take it seriously, whatever its political merits might be.
I don't think I've yet understood what the argument against the origination clause is.
Other than, it's not really a clause and any fig leaf will get rid of it.
I thought that Roberts' decision in the earlier ACA case made this one a slam dunk loss for the Dems. The bill clearly originated in the Senate.
Look..everyone knows that the Dems slammed this one through without a single Republican vote. They still needed to violate Congressional rules, customs and traditions to do it. The Supreme Court already showed it was willing to play ball with Obama once...why wouldn't they again?
Why won't those damn righties just move on?
What difference does it make?
The NYT said: "[The ACA] is providing benefits to tens of millions of Americans."
Tangential point, but isn't the number 8 million? (and that's counting those that lost their original insurance because of the ACA).
Regardless, when the deductibles are known there could be non-racist lynching. I expect ANY excuse will be viable when O'care loses it's last supporter.
I work with an older Jewish guy whose wife is a flaming liberal. Their son just turned 26 and they signed him up for Obamacare. She is livid that there's a $6000 deductible before insurance starts providing ANYTHING.
Let's please elect a Republican House and Senate in 2014 and a Republican House, Senate, and President in 2016. Then we can repeal Obamacare and replace it with a workable system to improve the provision of health care to all Americans, including those who can't afford to pay full health insurance premiums. But to do that we really need to get the ideologues like Hillary Clinton (remember "Hillarycare"?) out of the way.
Why would I trust the NYT's lawyers' or law advisers' opinions any more than I would the NYT itsownself? And that's zero, zip, zilch, nada for the NYT.
Perhaps I misremember the shady circumstances surrounding the passage of the ACA, but if memory serves, Senate Democrats at the time considered the ACA a revenue bill. Under the Senate's parliamentary rules in force at the time, revenue bills (and revenue bills alone) could not be subjected to filibuster. Senate Democrats were desperate to avoid a Republican filibuster of the ACA legislation. To avoid a stalemate they used the shell bill that originated from the House because all agreed that particular bill WAS, in fact, a revenue bill. The substitution, in turn, was intended to make the ACA a filibuster-proof revenue bill.
"To avoid a stalemate they used the shell bill that originated from the House because all agreed that particular bill WAS, in fact, a revenue bill. The substitution, in turn, was intended to make the ACA a filibuster-proof revenue bill."
Read Randy Barnett's argument at the link. They did use a shell, but the shell wasn't even a revenue raising bill. It was a bill with tax credits, which lose money. They don't raise money, and the origination clause specifies revenue raising.
The Origination Clause is in the Constitution plain as day. Unfortunately, the Constitution only means what 5+ supreme court justices (deliberately not capitalized) say it means. You can count on preumbras and angles dancing on the heads of pins to explain away what is obvious. As Orwell said, some things are so dumb that only an intellectual can believe them.
We all know how this works - I see this often with government regulations - let's say we have a cat. The government says this is not a cat, it's a dog. We see that it's a cat, but the regulation says we "shall put a leash on the dog, walk it to the park, and play fetch with a Frisbee". The regulation will define "dog" as a "four legged pet that may or may not go woof". Therefore, the federal Pet Agency inspector will show up and issue you a notice of violation because you did not put a leash on your cat, walk it to the local park, and throw a Frisbee at it.
Therefore, if the Senate says it was a revenue bill that originated in the house, then it's a revenue bill. It doesn't matter that the bill dealt with tax credits, because the Senate says the bill was somehow related to revenue. Repealing everything but the House Bill number, and replacing the entire bill with the ACA, and changing the name, doesn't matter. The bill number is the same, ergo it was a revenue bill that originated in the House.
Harold "Can I feel vindicated now that it's in court? And ask why all these brilliant legal minds couldn't see what a poor innocent boiler operator saw years ago?"
Because you have morals, and they only have ambitions.
Harold said...
. . . And ask why all these brilliant legal minds couldn't see what a poor innocent boiler operator saw years ago?
Exactly. And I'm not trying to hijack this thread, but your comment reminded me of something I once mused about, regarding 'why haven't lawyers thought of this'. Try not to laugh. I really want to know.
Is it legal for two adults to pose the following personal wager? "Let's have a staring contest. Bet you $50 you blink before I do"
If that is legal, then how about an arm wrestle bet? "Bet you $50 I can beat you 2 out of 3 in arm wrestling"?
Is that legal?
Then if so, that bings in body to body contact. Then why is this not also legal (and please excuse the crudity)? "Bet you can't make me come, using only your mouth."
And if that physical contact bet is legal, then I have just shown a way to make prostitution legal, no? Just make it a bet, instead of a money quid pro quo.
Someone set me straight here.
P.S. Only a man would think of such a thing, right?
Althouse wrote:
"Consider 9/11 truthers. I'm offended to have to listen to their arguments. I was taunted by a local truther for not having the courage to have a public debate with him. No. I won't dignify that with a response."
I was having a debate with a discussion about the missing jet which turned into a discussion on conspiracy, which turned into a discussion on 9/11. And, it turns out, they were a truther. And got very offended when I said the conspiracy made no sense. And that the "facts" which the truther relies on to prove that there was a conspiracy aren't really facts at all.
But the conversation immediately broke down and I'm not sure we've spoken since.
It just goes to show you - it's not worth debating a Truther.
Drago wrote:
Ann Althouse: "I was taunted by a local truther for not having the courage to have a public debate with him."
Do you recall what happened to the liberal editor of Popular Mechanics when they did a takedown of the crazy lefty 9-11 truther claims?
Mustn't go against the hive-mind.
believing in trutherism has to be one of the stupidest beliefs possible. JFK is a conspiracy about two gunmen shooting one man as opposed to one gunmen shooting one man. But even that conspiracy is farcical.
Trutherism requires you to beleive in a plot so convoluted it boggled the mind.
If the word amendments means that you can strip the entire contents of a bill not even about raising revenue and turn it into a completely different bill about a tax/raising revenue, then the originality on clause LITERALLY is meaningless. Because the senate then would have the power to create bills that raise revenue, simply by having the House submit a bill, any bill, to the senate.
The senate would be originating by amending.
Someonehastosayit wrote:
And if that physical contact bet is legal, then I have just shown a way to make prostitution legal, no? Just make it a bet, instead of a money quid pro quo.
I'm wondering if you could get around prostittuiton by saying you are filming a porn movie. And the John would be paying the actress for appearing in the movie.
Harold I made the same observation back then. if not the origination clause that does the ACA in some tax issue will. The court won't formally overturn itself but the tax ruling or rulings will make it largely inoperative. Of course I could be wrong but most likely K in Colorado is right nothwithstanding JR's linguistic logic.
Do you recall what happened to the liberal editor of Popular Mechanics when they did a takedown of the crazy lefty 9-11 truther claims?
Last I checked, 9/11 craziness was non-partisan (or bipartisan).
I've seen a few more "right" crazies on that one, in fact, though they're not absent on the "left", either.
(As jr said, the entire idea of a 9/11 conspiracy makes no sense.
You expect me to believe that the Government concocted that giant plot to lure us into war, and was so good at it that "nobody" believes anything but the cover story...
And then the same government didn't bother to plant WMDs in Iraq?
Yeah, that makes lots of sense.)
I still don't know why the govt is not allowed to get between a woman and her doctor on the issue of abortion in the first trimester based on the notion of privacy, but the govt can get between everybody and their doctor at all other times,as shown by the ACA.
The obvious answer is that we have a government of men and not laws.
I thought that this was a very clever trap that John Roberts laid. That so many lefties were crowing over his ruling only bolsters my assertion that non-functioning frontal lobes is a mandatory prerequisite for being a lefty.
Sigivald wrote:
Last I checked, 9/11 craziness was non-partisan (or bipartisan).
I've seen a few more "right" crazies on that one, in fact, though they're not absent on the "left", either.
I saw some libertarian crazies who beleived this, but when it comes to foreign policy they are leftists. Jesse Ventura, for example, is not really conservatives, so much as libertarian mixed with crazy. Very few conservative conservatives were making claims about how Bush and the govt were involved.
I like the headline they used for the crazy white chick of privilege who cold-cocked an African American male in the face with her elbow.
"Despite calls for release, activist in occupy case gets three months"
Despite my calls to get abramson's job and salary, I don't even get three months time at her job with her salary!
I didn't know that calls for release were part of the legal process when sentencing someone who was convicted of racial assault or otherwise.
This is a case that will fall under the political question doctrine as the House Rules provide a complete solution to what ANY member of the House feels is a violation of the origination clause. It is called a Blue Slip and a Google search can find any number of illustrations/explanations of it. One that seems sound is:
"If the Senate, either intentionally or inadvertently, originates a revenue-raising bill, any Member of the House has the option of calling up a "blue-slip resolution" (named after the color of paper it is printed on after passage) to send the measure back to the Senate. The resolution gets immediate consideration as a matter of constitutional privilege, is debatable for an hour and is not subject to amendment (though it may be tabled or referred to committee)."
I would say the Origination Clause is a prerogative of the House, which is usually vigilant in enforcing its role. Why no one raised this at the time is a mystery, but if you snooze you lose.
"I would say the Origination Clause is a prerogative of the House, which is usually vigilant in enforcing its role. Why no one raised this at the time is a mystery, but if you snooze you lose."
Well, the problem for the ACA wasn't the House, it was the fact that the Democrats lost the election in Massachusetts, and so couldn't risk following the actual procedures.
If it was not subject to filibuster, why would anybody in the House bother? The Dems didn't want to, and it would have been pointless for the Republicans.
I can see how maybe the court finds that since the House went along, that is all that is needed to complete the fig leaf.
No, the House acted last. It has a procedure-- which I first heard about in the first few classes of Income Tax I in law school back in the 70's when they actually taught law instead of crit theory- that could have been invoked to kick the bill back to the Senate if ANYBODY thought that the Senate had violated the origination clause. The plain and simple fact is that it has become accepted practice for the Senate to find a House Tax Bill and strip it completely and replace it with something else entirely. Happens ALL the time. The distinction Barnett and company are trying to make is that the House Bill in question didn't raise revenue, it lost it since it provided for tax credits. OK, if I had a fee paying client I'd make that argument, and with enough practice I could keep a straight face, but I don't think we will ever know whether that is a distinction that makes any difference. Given the availability of the Blue Slip procedure, these plaintiffs are going to run dead into the Political Question doctrine-- there are 435 House Members who are presumptively experts in protecting their institutional prerogatives, a procedure to do so was readily available and the failure of any member to invoke it could, and most likely will, be viewed as dispositive.
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