1. Justice Alito topped Justice Kagan at page 11, lines 7-13. Kagan had just sprung her elaborate clerks-writing-memos hypothetical, and Alito said "Well... if I had those clerks, I had the same clerks and Amanda wrote the memo, and I received it and I said, This is a great memo, who wrote it? Would the answer be it was written by Will, because Amanda stepped into Will's shoes?" Kagan had to respond to the laughter in the courtroom: "He's good."
2. Justice Sotomayor stumbles at page 16, line 2, after raising a principle of statutory interpretation from last year's Bond case (the chemicals-on-the-doorknob case, where the Court read a federal statute not to criminalize a matter that lay within the traditional powers of the state). She'd just spoken for a page and a half, and the petitioners' lawyer Michael A. Carvin was beginning to explain that this principle had never been applied in the context of a condition on federal spending. Sotomayor interrupted to "Oh, we did it -- we said it last year." But she just meant to repeat her point about Bond, which wasn't about conditional spending.
3. But it was that discussion of conditional spending that first lit up Justice Kennedy. He brought up the problem of a condition on spending that's so extreme that it should be read as coercion, and if it's coercion, it doesn't fit the conditional spending category at all. It is, in reality, regulation, and Congress lacks a power to require the states to set up the exchanges. Carvin weakly observes that the government hadn't made that that argument, and Kennedy says "Sometimes we think of things the government doesn't." This is the point discussed in my earlier post, which caused me to predict that the government would win the case, based on the constitutional avoidance move, to which, in fact,
4. Justice Scalia rushes to assist Carvin on that dangerous point raised by Kennedy. The constitutional avoidance doctrine is only used when you can find ambiguity in the statute. That's helpful, but it means Carvin must fend off all efforts to tease some ambiguity into the provision. Carvin stumbles at this point. He seems to think Kennedy was calling conditional spending into question. But Kennedy was only talking about conditions that are so dire that they are understood as requirements (that is, the feds have made the states an offer they can't refuse).
5. Justices Ginsburg and Sotomayor pummel Carvin about saying something different from what he'd argued in the previous Obamacare case, and the Chief Justice, at page 25, lines 10-12, makes a wisecrack that might not amuse those who don't like what he did back then: "Mr. Carvin, we've heard talk about this other case. Did you win that other case?"
6. The Chief Justice, at page 27, offers Carvin "in extra ten minutes and maybe we'll give you a little bit more of a chance to talk," and Kagan, perhaps amusing herself, says "Well, then, I'll ask a question." Carvin hears the cue that it's amateur comedy time and cracks: "Well, if you're going to ruin my ten minutes." And Kagan boldly speaks for a full page, mostly just repeating a point Justice Ginsburg had made earlier.
7. The standing question certainly seems to have dropped out of the case.
8. Nice line by the Solicitor General: "Their reading forces HHS to establish rump Exchanges that are doomed to fail."
9. The Solicitor General is luring the Justices into making sense of the statute, but Scalia resists, sarcastically: "There are no statutes that make no sense…. Every statute must make sense and we will -- we will twist the words as necessary to make it make -- that can't be the rule…. [I]s it not the case that if the only reasonable interpretation of a particular provision produces disastrous consequences in the rest of the statute, it nonetheless means what it says?"
10. Justice Alito draws the Solicitor General into the question summarized at #3, above. The SG seems to stall for time by calling the question "novel." Kennedy is activated. He's serious about the coercion idea. The SG regroups: If this is a reason to interpret the statute "our way," go ahead, but he doesn't want to concede that the conditions are coercive. Also, if these dire consequences really were the incentive impose on the states, the states should have received clear notice.
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71 comments:
I wonder whether many of the arguments going on would be the same if it were just one state that had refused to establish an exchange. Would we still be talking about dire effects and the statute collapsing if Virginia were the only one and it was simply a hypothetical, a possibility that other states might change their minds? I'm not sure that we would and yet the issue would still be exactly the same. Seems to me, then, that the idea that the statute won't function under the petitioner's reading if many states don't establish an exchange is worthless. Even if it's proper criterion that statutes should be read with a presumption that the statue has to "work," one might think that if it works with one dissenting state, that's good enough and the rest is, you know, fortunes of war or whatever.
2 average clerks (A&B) may not be as good as an excellent clerk (C) who is already taking on the tough work and wouldn't need the review of an average clerk.
I get that "if there are two interpretations, and one is constitutional and the other isn't, we interpret it the former way", however, we still need to establish that there are two reasonable interpretations. Is it reasonable to interpret a statute in a way that clearly contradicts the actual text?
It was unconstitutionally coercive for the feds to condition receipt of Medicaid dollars on states' "agreeing" to expand Medicaid programs, so states that chose not to do it, like Wisconsin, were not penalized, but did not get to share in the added goodies offered by the feds. This had the effect of harming the stated federal goal of universal coverage, but SCOTUS recognized it was a choice the states could make if they chose to forego the cash. States just can't be forced to expand to pay for care for those who would have been eligible and cannot be threatened with removal of existing support, but they don't get the extra cash either.
Is it different with subsidies offered to individuals in states that create their own exchanges to make the individual mandate work? Citizens in states that do not create such exchanges lose the cash goodies, just like those states did with Medicare expansion. These non-subsidized individuals are not subject to the mandate, and therefore don't have the tax penalty. Some will buy policies off the exchange, some won't. This is a choice the states made, just like with Medicaid expansion.
Is Kennedy saying that the feds cannot coerce the states into creating exchanges, but the individuals still get the subsidies anyway? That's not how the Medicaid ruiling went. No expansion, no goodies.
Maybe the difference is that the states were getting the dollars in the Medicaid expansion while individuals are getting the dollars in the individual mandate.
Whatever happens, it's a great law and Obama is a great president.
I don't get how the coercion point about the state establishing an exchange is coercion in the same way that the Medicaid expansion was coercion. There really is no comparison. The Medicaid expansion coercion the Fed Gov. was demanding that the state expand medicare and pay tens of $billions more in perpetuity so as to not lose $100s of billions on the existing program in perpetuity.
In this case a state like Wisconsin would lose perhaps $1/2 billion a year from the subsidies, but its citizens and business would not be subject to the mandates ... in exchange for the small (relative) cost of setting up an exchange.
In contrast Wisconsin spends $7 billion a year on Medicaid spending (an amount which the federal government matches). So $7 billion per year was at risk to Wisconsin (in perpetuity) for the Medicaid expansion.
IN comparison the Obamacare subsidies does not seem like a "regulation" in the same way the Medicaid expansion was a regulation. There has to be some threshold. Is AK going to define that for us?
Otherwise everything could become coercion. For example, to get road and bridge money, your state has to build and have roads and bridges. Would that be coercion? "Force your state to build road and bridges so that it can get road and bridge money?
When the three female justice were pummeling Calvin with their interruptions and frivolity and chiding him about his prior argument, I wish he had come back something about "sometimes a tax is a penalty and sometimes a penalty is a tax, no?"
I was generally impressed by Verricelli, but he basically admitted the "five words" matter and they make a problem that makes the program fail and thus should be interpreted away. Scalia and Alito pressed the point that it isn't the role of the courts to fix a bad program but that it should be the legislature. The inconvenience of the people voting one party out of power shouldn't change that dynamic.
I have higher hopes for Kennedy based on his questioning.
That's helpful, but it means Carvin must fend off all efforts to tease some ambiguity into the provision. Carvin stumbles at this point.
Because it's all a game. It's not like there's a principle at stake or anything.
Sweet Jesus, watching poor Verrilli dance like that makes me long to see him on Dancing with the Stars, showing off his paso doble.
We have two equally possible outcomes:
1. 5-4 in favor of the government with Kennedy in the majority and this opens the door to a vast increase in presidential power and administrative law that essentially bypasses Congress in most things.
2. 5-4 decision in favor of the plaintiff with stern instructions that this is matter for Congress to resolve. Boehner and McConnell will cave to the Democrats and media lackeys where we end up with a new Obamacare that is even worse.
Neither outcome is good.
The answer to Kennedy's question: The conditional spending wasn't so severe the state's were obligated to set up exchanges. 37 states didn't and they had been warned that by not doing so their residents might not receive the federal subsidies. So the conditional spending in the statute could not have crossed the line from incentive into compulsion.
Yes, what PB said.
The mostly leftist commentariat keeps writing about things like a death spiral. Why should we think that even a devastating SCOTUS decision in this case would cause a death spiral?
The remaining parts of the law would still be law.
Obamacare needs a wooden stake in its heart. A weak SCOTUS correction will not kill it.
Kennedy was only talking about conditions that are so dire that they are understood as requirements (that is, the feds have made the states an offer they can't refuse).
This is one of those areas where they get so deep in the weeds that you can only say, "huh?"
The fact is that the states did refuse. So clearly it wasn't that coercive.
Beyond that, I don't know what Kennedy's point was.
"The mostly leftist commentariat keeps writing about things like a death spiral. Why should we think that even a devastating SCOTUS decision in this case would cause a death spiral?"
There'd be a death spiral if the Court ruled against the government and Congress couldn't pass anything until 2017. I'm not sure Boehner and McConnell would be able to get enough Republicans to pass a "fix" (certainly without massive concessions, which the Dems would then almost definitely not agree to).
The best bet for the GOP at this point is to work the ACA into enough of a campaign issue that they hold Congress and gain the White House in 2017 (or at least have enough of public opinion on their side so that even Democrats will be willing to replace ACA then). The issue now is to sell the public on their replacement--dismantle parts of the ACA piece by piece--so that by 2017 this can be done.
Right now, I can't see Obama agreeing with any overhaul or replacement so we have gridlock until then. And total repeal just isn't going to happen. We're either going to have to live with this mess as it slowly hobbles the economy and makes health care worse, or figure out what to replace it with.
"The fact is that the states did refuse. So clearly it wasn't that coercive."
The idea is that they weren't coerced under the Obama interpretation--which is that the subsidies were not conditional on setting up a state exchange. The petitioners' interpretation is that the subsidies WERE conditional, and if the government had withheld the subsidies, that would have been the coercion.
Though I don't see how it is coercive to simply withhold funds the states wouldn't have gotten anyway--it's different from taking funds that they were already counting on.
"Seems to me, then, that the idea that the statute won't function under the petitioner's reading if many states don't establish an exchange is worthless."
But then, you are not a liberal Justice, nor is your name Kennedy.
"I don't get how the coercion point about the state establishing an exchange is coercion in the same way that the Medicaid expansion was coercion. There really is no comparison."
If they say there is, there is.
After reading the arguments, it seems like the Court will rule that all these provisions, when read together, create absurd results. The Court will then say that absurd results is the same as a finding they are ambiguous, which means that it's up to the IRS to sort it out and the Court will defer to any reasonable interpretation the IRS gives.
Alito alludes to this toward a he end when he says that the Court would have to change its interpretive approach with respect to tax credits.
The challenger's lawyer referred to "illegal aliens" a few times, a term you don't hear much anymore. The solicitor general called them the "unlawfully documented," which was a new term for me.
"After reading the arguments, it seems like the Court will rule that all these provisions, when read together, create absurd results. The Court will then say that absurd results is the same as a finding they are ambiguous, which means that it's up to the IRS to sort it out and the Court will defer to any reasonable interpretation the IRS gives."
Well, if they rule that way, then Congress knows what to do in the future--pass a statute that is just a mishmash of absurd text, let the executive branch do whatever it likes. Democracy!
If the tax subsidies disappear, does the mandate to buy insurance also disappear?
Brando,
Roberts told the Solicitor General that it means the next administration can just change the regulations.
This is the logical conclusion of the administrative state, and the imperial presidency.
I don't know why people keep arguing the law as though there are objective ways to define these things.
For how long will you be suckers?
I understand why Professor Althouse does it. Her job depends on the unspoken agreement that the law is the law and that it means what it says.
But c'mon. How many years past Roe V Wade to we need before we realize that judges are political creatures?
They aren't there to interpret the law. They are there to side with liberals or conservatives or perhaps libertarians and to push their dogma upon the rest of us.
I'm going to say this will be 6-3 for the government, as Roberts and Kennedy don't want to ruin Obamacare.
The law and the constitution be damned.
"Unlawfully documented" sounds like a slam against Obamas executive "memoranda."
I had a fake ID so I could drink at bars before I reached the age the government thought best for me to wait.
I was unlawfully documented. I suppose the illegals probably have fake or borrowed IDs as well
Of course you are wrong "law prof". The Court already struck down the part of the law it found Coercive in NATIONAL FEDERATION OF INDEPENDENT
BUSINESS v. SEBELIUS:
"We disagree. The Court today limits the financial pressure the Secretary may apply to induce States to accept the terms of the Medicaid expansion. As a practical matter, that means States may now choose to reject the expansion; that is the whole point. But that does not mean all or even any will. Some States may indeed decline to participate, either because they are unsure they will be able to afford their share of the new funding obligations,or because they are unwilling to commit the administrative resources necessary to support the expansion. Other States, however, may voluntarily sign up, finding the idea of expanding Medicaid coverage attractive, particularly given the level of federal funding the Act offers at the outset.
We have no way of knowing how many States will accept the terms of the expansion, but we do not believe Congress would have wanted the whole Act to fall, simply because some may choose not to participate". @ pg. 57, 58.
It says right there that the states have a choice of whether to accept the expansion of Medicaid by setting up an exchange--- therefore, since the subsidies come from that expansion, they have the right to accept/ reject the ability of their citizens to get subsidies. The Sibelius ruling definitely recognizes that the STATE EXCHANGES are where the subsidies come from, and that the subsidies don't exist if no exchange is created. Congress never thought that 2/3 would reject the subsidies.
"They must either accept a basic change in the nature of Medicaid, or risk losing all Medicaid funding. The remedy for that constitutional violation is to preclude the Federal Government from imposing such a sanction. That remedy does not require striking down other portions of the Affordable Care Act.
The Framers created a Federal Government of limited powers, and assigned to this Court the duty of enforcing those limits. The Court does so today. But the Court does not express any opinion on the wisdom of the Affordable Care Act. Under the Constitution, that judgment is reserved to the people." Ibid @59
And the people have spoken in states that did not expand medicare. ACA is unworkable as it stands
To Justice Kennedy: You mean it would be unconstitutional for the federal government to do with the health care exchanges what they already do with the Highway Trust Fund and a multitude of other government programs?
Brando, I don't understand the "death spiral" concept.
I have not read the ACA, but I don't think there's a paragraph that says "everything here is null and void, and the law is dead, if the economic concepts underlying it don't hold up."
How is this abomination supposed to go away if it's underfunded, or ruins either the insurance industry or the health-care industry?
Ellison said,
"How is this abomination supposed to go away if it's underfunded, or ruins either the insurance industry or the health-care industry?"
Because it is economically unworkable as it stands-- the people have spoken.
They must either rewrite or repeal.
If we judge the law on "intent" it's a failure that no amount of judicial wrangling can fix.
1. You couldn't keep your existing insurance.
2. You couldn't keep your existing doctor
3. It didn't save $2500 for a family
4. It didn't provide insurance for the 47 million that were claimed to be without insurance.
Yes, and I lost my multi-year insurance because of Obamacare.
But what will kill the law? Not right-wing hope that it cannot work. Not attention to the fact that it is a disaster. Obamacare can withstand these simple storms, much as anti-drug laws and anti-gun laws withstand arguments.
This is not a debate. It's policy, and law. The goddamned thing won't die on its own. It has no suicide clause.
Very interesting commentary here. This is the stuff I come to read.
I wonder if the Supremes ever visit blogs like this (i.e. legal blogs, Volokh comes to immediate mind) as they go through their deliberations. Crowdsourcing your thinking is a great way to get around most sides of an issue. I'd hate to think that the outcomes of these hearings are reliant on how prepared and adept the presenter is at thinking on his feet. Once SCOTUS' questions are out to the public it is a simple thing to see what certain blogs have to say in response... just to be sure that you are exposed to as many of the arguments as possible
That would taste a little like democracy.
I don't understand how anyone can claim the believe in Justice but make situational exceptions because their ruling might have bad consequences for other people.
Mallory's King Arthur knew this. It was the basis for his philosophy of channeling Might for Right. Else, why bother putting his wife and best friend on trial for breaking the law?
Anyone who is weighing the fallout from their decision on a point of law does not belong on the Supreme Court. Its a perversion of Justice.
It comes down to whether the court concludes that, in the provisions relating to the availability of subsidies, the ACA is ambiguous or not. If the court finds that the ACA is ambiguous on that point, it's just a matter of which ground will be cited for ruling in favor of the Govt. There will be many to choose from.
As for whether the constitutional avoidance principle should apply here, Scalia got the Solictor to concede that it only applies if the statute is ambiguous. Verilli tried to qualify that, but didn't get too far. If the statute is clear, there is no wiggle room for the court to rewrite it.
Nor is the Govt making the claim that there is any constitutional problem with the ACA even if it is read as petitioners urge the court to do. Justice Alito raised that issue with the Solicitor General early in the Govt's argument, and Verilli tried to have it both ways -- no, the Govt is not claiming that there is a constitutional problem if petitioners win, and we would defend the statute if it were challenged on the grounds that Kennedy was musing about, but the issue may well be serious enough to bring into play the constitutional avoidance canon.
Alito also raised the possibility of staying the court's mandate if the ruling is in favor of petitioners, effectively giving the Govt and the states some time to make the necessary adjustments. As Alito noted, the court did that in Northern Pipeline, a case in which the court held unconstitutional a large part of bankruptcy court jurisdiction. There was some back and forth about whether that was a practical solution.
If it all comes down to Justice Kennedy, you could almost feel his pain -- he's in a bit of a pickle. While he seemed quite focused on the parade of horribles that was trotted out, he also seemed to think that the relevant provisions were not ambiguous. What is a man in the middle supposed to do?
I wouldn't be surprised if the Govt ends up winning 5-4, but I wouldn't be especially confident that it will come out that way. Alito is a very inventive, and probably very persuasive, fellow and he could well convince Kennedy by knocking down all those horribles. he could also convince him that, come what may, the statute is not ambiguous, and so only the political branches can fix the problem they created by passing such a poorly written statute. I think Alito will turn out to be the key player if petitioners end up on the winning side of a 5-4 vote.
"If interpreting [a statute] one way is unconstitutional, you interpret it the other way."
That only makes sense if you must interpret the statute because it is ambiguous. Otherwise, you have the judiciary unconstitutionally legislating to avoid an unconstitutional statute. And down the rabbit hole we go.
And I see that I should have read point 4 before posting - you covered my point.
"Anyone who is weighing the fallout from their decision on a point of law does not belong on the Supreme Court. Its a perversion of Justice."
Would empty the bench of quite a few liberal judges. Perversion rules.
So it's a circus?
No TV!! Because the lawyers (?) would grandstand?
So, the Solicitor General describes Obamacare as nonviable. The pro-choice policy of the Party should direct them to abort this unwanted clump of policies. However, the selective nature of their religion directs them to keep the progressive tax scheme and abort the unwanted clumps of cells that place an undue burden on their political, fiscal, and social welfare.
Kennedy's questions about coercion don't really make much sense- much of what the federal government does in "cooperation" with the states has already been declared constitutional, and the situation with the ACA subsidies is no different than what is done with age-old Medicaid today and for the last 50 years. It is clearly different from the Medicaid expansion that was declared unconstitutional.
All I can think is that either Kennedy is getting senile, or he is attempting to get some liberals on the court to put in writing that they agree that such carrot-tactics by the federal government are unconstitutional.
Also, if these dire consequences really were the incentive impose on the states, the states should have received clear notice.
How about, if they were so coercive, 37 States would have those exchanges.
I'm thinking 6-3, with the Chief and Kennedy joining the liberals.
Kagan certainly comes across as a lightweight, doesn't she?
The topic was brought up by Kennedy about the constitutionality of giving out a big money treat to the states and then taking it away. The way it should have been answered is,
"The way the law is written, they weren't eligible for it in the first place if they didn't establish their own exchange. The administration sought to interpret the law to achieve their own goals, not uphold the law. They had plenty of time to go to Congress to correct this, but they didn't. If they had followed the law and with the greater realization by the states that they must establish their own exchanges to get federal money, more may have done so and the loss of "money treat" may not have existed at all. The fault lies with the administration for willing to accept and subvert a poorly written law."
My last comment on this: In general the liberal political players view the law as so malleable they are "defining legal deviancy down" to the point where laws are almost meaningless or at best capriciously applied. It's not a matter of sensible people having differences of opinions, but evidence of a complete lack of moral or ethical standards.
"Whatever happens, it's a great law and Obama is a great president. "
Yes and it will be even better when it is gone so the left doesn't have to watch the implosion. It is a bad law and contains all sorts of perverse incentives. Doctors are dropping out and will continue to do so. You will know the worst is apparent, even to the left, when Congress or Obama starts to make physician participation mandatory, like Massachusetts is trying to do.
Assuming you make $40,000/year, there is no individual mandate if all the plans cost more than $267/month. Effectively ending subsidies guts the mandate in Red States.
Does anyone ever read laws? 30 odd states didn't establish exchanges. Was there nobody in any state who raised the concern that they would lose subsidies if the state did not establish an exchange? Did no one in the media read the entire law? What about all the Congressional aids, etc.
Similar to the "like your doctor, keep your doctor" mess last year. Why didn't anyone in the media whose job was to cover Obamacare ever point out that the president was not being truthful. Why didn't Republicans attack Obama at the time? Are we to believe that no Republican staffers read and understood the law?
Hard to make sense of it all.
Thanks to our possessed media I don't think the general public remembers or ever knew that the states that didn't set up subsidies didn't get those subsidies. It seems that the chief justices are no better informed.
substitute "exchanges" for first "subsidies"
Prof. Althouse: do you think the text is ambiguous on the point in question (per your 4.)?
It doesn't seem ambiguous to me. If one can define ambiguity to mean "has unintended consequences or doesn't work out 100% as intended despite the actual text," then I'm not sure why what's written really matters at all. Pass some law, point out later the law isn't working exactly as you wanted it to, sue, have the Court interpret the law to mean some text that'll "work" better/achieve your intended end better than what you actually passed. I mean, it's a form of government...but I don't remember voting for that. Maybe I don't get to. Oh well.
We finally get to see how the sausage is made but -- more importantly -- who gets to see who Legally calls it sausage.
Althouse's job as a teacher is over: there is no legal Constitution to teach anymore.
I am Laslo.
Can someone name ONE thing where the Constitution still grants us Free Will, without bringing in abortion?
Moses wrote the Second Amendment -- it is the only response to the abrogation of the Ten Commandments.
Moses was a bad-ass dude.
Blood on the right doorsteps,
I am Laslo.
If the Court upholds the law, it will have to do so on the basis of a novel principle of statutory interpretation that will read something like this:
"If the plain reading of unambiguous language in a law undercuts a policy of the executive branch, then the Court will not follow the plain reading of the law and, instead, will rewrite the law so that it no longer undercuts the executive branch's policy."
An example of the Rule of Law? Not likely.
? for you lawyers. Which holds more weight in the decision making at the SC? Oral arguments or the written briefs?
I think the USSC should rule in favor of Progressives in this one. If a court is supposed to rule with Solomon like impartiality, but holds to a doctrine that they torture the English language to rule in favor of the statute, then the Court is essentially abrogating its duty as set forth in the Constitution.
Better to dispense with the idea that the Court is not political than continue the farce.
@ paminwi asks: "? for you lawyers. Which holds more weight in the decision making at the SC? Oral arguments or the written briefs?"
When Chief Justice Roberts was still in private practice, and was (I think) the person who had handled more cases before the Supreme Court than anyone else, he said more than once that the Justices have their own agendas, and oral argument rarely changed the outcome of a case. I draw the inference that briefs probably didn't change many outcomes either.
The decision in this case was already made, in the minds of at least 5 justices, long before today's theatrical performance.
On Kennedy, I wonder whether his "coercion" questions should be interpreted as a sign that he wants to uphold the IRS interpretation and save the law, or as a pointer toward another path.
Two of the liberals joined the conservatives in holding that the Medicaid expansion was invalid because it was coercive, but could be saved by some judicial tinkering. Under a "coercion" rationale, perhaps the dread 5-4 scenario could be avoided in this case, because 1 or 2 liberals would get on board. Kennedy would like that, I think. So would Roberts.
But if the conclusion is that the law is invalid because it's coercive, that doesn't mean that the law should be upheld as written, but rather that, to be upheld, it would need to be changed to be non-coercive. On Medicaid expansion the Court could see an obvious way to save the
law from its infirmity, by eliminating the coercive element. Perhaps it would in this case decide that it could craft a remedy that would remove the coercion. More likely, it seems to me, the Court would say that the IRS regulation as written is invalid as contrary to the statute, but the matter will be stayed for 6 months or 12 months to give Congress an opportunity to fix the law. Alito would like that.
As I've said before, the Republicans will cave, and Obamacare will continue to bedevil us.
Bob Ellison wrote:
But what will kill the law?
Has a bureaucracy ever really been done away with in the past 50-odd years? I can't think of any.
Why should this bureaucracy be any different? Just because its establishing law is poorly written? No.
Public Address Announcer:
NOW BATTING, IN FIRTH POSUITION, THE CENTER FIELDER, FROM SAC-RA-MEN-TO CAL-I-FOR-NIA, THE SWITCH HITTING ANTHONY KENNEDY.
Laslo Spatula said...
Can someone name ONE thing where the Constitution still grants us Free Will, without bringing in abortion?
We have free will. But its exercise is becoming more and more likely to be subject to punishment.
Neither Michael Cannon (scroll down for transcript)
nor Jonathon Adler seem distressed by Kennedy's coercion argument. Their take is well worth checking out!
"unlawfully documented,"= Fake ID's?
Hagar said...
"Unlawfully documented" sounds like a slam against Obamas executive "memoranda."
It does, but that was the government counsel using that term, wasn't it? In which case, it was just a speak-o.
mccullough said...
I had a fake ID so I could drink at bars before I reached the age the government thought best for me to wait.
I was unlawfully documented. I suppose the illegals probably have fake or borrowed IDs as well
3/4/15, 3:23 PM
Oy, I posted my wiseassery before I read to McCullough's apt conclusion. I'll just shut up now.
paminwi: I work for a state appellate court. I can't speak for other courts, but in ours, briefs definitely hold more sway than oral arguments. However, neither matters as much as the judge's own research and review in chambers. Briefs can be amazingly bad, emphasizing the wrong issues, missing the important cases, or just so poorly written that they wouldn't persuade a dog to chew a bone. (This is probably not as true in the Supreme Court. I hope not, anyway.) If a lawyer has written a bad brief, it's unlikely that the oral argument will be much better. And even when the briefs and arguments are great, in the end, the judge is going to rule in the direction that the judge's own research indicates is good law, no matter what the lawyers say.
Anyway, by oral argument, the judges and law clerks have read the briefs and researched the case, and unless the case is really close, the judges are often fairly sure they know how they're going to rule. Sometimes a brilliant oral argument will knock things the other way, but not all that frequently.
What's often really happening in oral argument is that the judges are listening to each other -- paying attention to which points trouble the other judges and how the other judges seem to view the issues, to get a sense whether the questioning judge has missed something important or seems to be lining up with the majority. Or a judge may be playing devil's advocate -- asking a challenging question to the side the judge favors, for instance, in order to get the advocate to lay out a strong argument that may bring the rest of the panel along. So, you can't always tell what a judge is going to do by listening to the questions at oral argument.
GODFATHER SAID,
"Two of the liberals joined the conservatives in holding that the Medicaid expansion was invalid because it was coercive, but could be saved by some judicial tinkering. Under a "coercion" rationale, perhaps the dread 5-4 scenario could be avoided in this case, because 1 or 2 liberals would get on board. Kennedy would like that, I think. So would Roberts."
They a;ready struck the Unconstitutional coercive stipulation from the law. by striking down the provision that the states would actually LOSE Medicaid dollars if they failed to set up an exchange. They also said that the states would have a choice to expand medicaid and for their residents that qualified to receive subsidies--
See NATIONAL FEDERATION OF INDEPENDENT
BUSINESS v. SEBELIUS: @ 57, 58, 59
Madison Man:
The Civil Aeronautics Board was abolished. That was in the early 1980s and is the only agency in U.S. history to well and truly disappear.
MadisonMan said...
"Has a bureaucracy ever really been done away with in the past 50-odd years? I can't think of any.
The Interstate Commerce Commission is the only one that springs to mind.
PB said...
We have two equally possible outcomes:
In either case, at least 44% of the government lawyers will be wrong.
The Constitution doesn't say that it can be changed by precedents, so why do so many people take this charade seriously?
It's like a sports game of some kind, represented by phrases like "Justice Alito topped", "Justice Sotomayor stumbles", "Justice Scalia rushes", "Justices Ginsburg and Sotomayor pummel" to describe the spewing of intricate bullshit.
Fernandinande said...
"The Constitution doesn't say that it can be changed by precedents...."
The Constitution vests in the Supreme Court "the judicial power" of the United States. That phrase is not empty: "In endowing this Court with 'judicial Power,' the Constitution presupposed an historic content for that phrase, and relied on assumption by the judiciary of authority only over issues which are appropriate for disposition by judges...Both by what they said and by what they implied, the framers of the Judiciary Article gave merely the outlines of what were to them the familiar operations of the English judicial system and its manifestations on this side of the ocean before the Union." Coleman v. Miller, 307 U.S. 433, 460-1 (opinion of Frankfurter, J.). I would doubt the notion that the original understanding did not anticipate that the Supreme Court would need to gloss the Constitution and statutes of the United States een if Hamilton had not alluded to the familiar notion of stare decisis in Federalist 78. The Constitution is law; and although neither the English nor Colonial courts had dealt with a written constitution before, they had assuredly dealt with law, choice-of-law, and hierarchy-of-law problems. It seems perfectly obvious to me that while the framers didn't expect the Court to change the Constitution by precedent (consider the reaction to Chisholm v. Georgia), they would certainly have expected it to elaborate doctrinal flesh onto Constitutional bone.
Did anyone notice Ginsberg doesn't even know the difference between Medicaid and Medicare (see the early discussion on standing). That's how far removed she is from subpar -- or, at least, unpleasant -- healthcare. There's no waiting in an uncomfortable reception area, with the great unwashed masses, for Ruth. She will never experience the hell this law has wrought.
@sunsong, here's Adler on the coercion argument (1:24:26 -----> 1:24:41). After watching the entire debate, including the Q&A at the end, I'm willing to venture a few SCOTUS clerks watched it, too.
http://www.fed-soc.org/multimedia/detail/affordable-care-act-subsidies-debate-event-audiovideo
"Hard to make sense of it all."
It's easier when you realize that the Democrats and the Republicans are just the Blue Squad and the Red Squad of Team Big Gov. They only pretend to be rivals.
"Mr. Carvin, we've heard talk about this other case. Did you win that other case?"
Mr. Carvin, isn't it true that you argued, in the previous case, a certain line of legal logic, but we ruled against you and explained why your legal reasoning was inapposite?
And so wouldn't it be unfair to expect you to make that same legal argument now? Haven't we already instructed you NOT to make such an argument? Haven't we already ruled that what you argued in that earlier case is NOT a proper reading of the law?
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