A Self-Refuting Metaphor

The Times reports on the challenge to ObamaCare in a Federla court in Virginia.  The judge was sympathetic to the notion that maybe the lack of severability language meant the whole thing should be tossed. 

But I like this self-refuting metaphor that came up in the discussion of the individual mandate.  The government lawyer tried to explain that Congress' right to regulate activity under the Commerce Clasue also gave them the right to regulate non-activity, i.e., the non-purchase of health insurance.  Here we go:

Virginia’s solicitor general, E. Duncan Getchell Jr., told Judge Hudson that in compelling citizens to purchase a commercial product like insurance, the government was exercising authority that is “unprecedented, unlimited, and unsupportable in any serious regime of delegated, enumerated powers.”

Ian H. Gershengorn, a deputy assistant United States attorney general, responded that the failure to obtain insurance was an active decision about when and how to pay for medical care, which everyone inevitably needs.

“You cannot opt out of the health care market,” Mr. Gershengorn said. “Nobody can tell if they’re the one that’s going to be hit by the bus.”

Well, hold on - I may not be able to predict with any particular confidence that I will be hit by a bus, struck by lightning, or otherwise snuffed so quickly that I won't need any significant health care coverage over the course of my life.  But in fact, there will be people who experience just such a fate.  If those people spent their walking around money on pleasurable pursuits rather than insurance, well, they may have had a better life before their untimely departure, and who are we to deny them their brief happiness?

Let's also note that if a person's hobbies include skydiving, drag racing, off-roading, and juggling chainsaws they might be very wise not to be worried about end-of-life care when he's old.

And finally, people whose best friend is Dr. Kevorkian might have the very rational belief that their insurance is wildly overpriced because their end-of-life care won't cost much more than a bottle of Scotch and a few pills (Not advocating, just identifying.)

Puzzling.  Obviously Congress can force people to save for their retirement by way of the Social Security tax, regardless of their own sense of an optimal lifetime saving strategy.  And if health care were a new universal entitlement funded by a new tax, there would not be any traction with the argument that people might want to opt out of both the insurance and the tax.

But if pigs had wings, jihadists would fly them into buildings.  The new insurance is not a tax and it is not being defended under Congress' taxing power.  And if the Constitution really grants Congress the power to regulate any activity or inactivity under the Commerce clause, well, what limits are left to their power?

JUST RUMINATING:  France spent decades promoting policies that would raise its birth rate to get its population on a par with its rival, Germany.  Closer to home, people in the US fret about the demographics of Social Security and Medicare and wonder where we can get the influx of young workers to pay for the elderly.

Since the decision to not have a baby clearly impacts both national defense and the health of our economy, it is obvious that under the Commerce Clause Congress can regulate abortion, and ban it.  Right?

And don't even get me started on sexual practices.  Comnsidering what this country spends on HIV and AIDS research, surely the Commerce Clause grants Congress vast power to regulate sexual habits.  Or it ought to, right?  A decision to not use a condom impacts all of us, and clearly could be criminalized, or at least taxed.

I just know libs will line up behind these prudent expansions of government power.

Comments

[Ignatz Ratzkywatzky]

--What a crappy article.--

Hey it was the NYT.
It was a cyber article so I couldn't use it to wrap the fish, so waddya want?

[Walter]

Darth Aggie*,

Hookers are a good example of the type of profession that can be, and is, regulated by the feds. The reason you do not see Justice bringing equal protection claims against local pimps is most likely because they settle before indictment.* Masturbation is the classic Wickard v. Filburn issue. Private production may inhibit public transactions--therefore the lack of commerce may be regulated.

Kidding aside, I hate Roe, but I am not excited about going back to a pre-Griswold world either. For better or worse, the Supremes have said that when there are Constitutional provisions on both sides of an issue, the government has to take both into account.

Andruil,

Per my friendly voice in DC, the best bang for your buck is to write several smaller checks to candidates but overnight them to a member of the leadership.

1. The leader you choose gets credit for helping, and thus votes in conference, and
2. The leader is better positioned to help you when necessary in DC.**
3. Keep individual checks under $200 and nothing gets reported, so you don't get those nasty solicitation calls.

______________
*Heck of a game Saturday, wasn't it?

** For kicks, rent "Live Nude Girls Unite", if only to see the union negotiations between ladies of the night and management in Littler Mendelson's SF conference rooms.

*** Purist that I am, I only ask for the "VIP" whitehouse tickets so I don't have to stand in line with the hoi polloi.

[Danube of Thought]

"you people are afraid to engage with any of the ideas I offer up."

Pleased to say that I cannot identify a single one of this fool's ideas.

[jimmyk]

I'm pretty sure the long history of banking regulations includes legislation that repealed previous legislation. I guess Gramm-Leach-Bliley only repealed part of Glass-Steagall. The First and Second Banks of the US didn't have their charters renewed, I believe. If only all legislation would automatically expire unless renewed, we'd be better off.

[Clarice]

I loved Gwen in her starring role as debate "moderator". Ptui.

[Old Lurker]

LUN is a Bloomberg story setting up the opening moves in Mel's mortgage mess nightmare. Getting sued is no fun. Getting sued by folks who print money is even worse.

[Ignatz Ratzkywatzky]

--Getting sued by folks who print money is even worse.--

Especially for $47 billion.

[jimmyk]

Speaking of lawsuits and folks who print money, there is now a lawsuit against Bernanke over part of Dodd-Frank (the so-called Durbin amendment) brought by a bank in Minnesota. LUN

[Janet]

Out buying groceries at Safeway in my Sturbridge Tea Party t-shirt & I got stopped again. A shopper wanted to know where she could get one. I invited her over & gave her one. In this lib area it feels nice to run into someone like minded. I'm hoping wearing the t-shirt will make others bolder too.

[Walter]

Extraneus,

The way I've heard it (from someone who used to be on staff) is that if she does not run for Majority Leader/Speaker, she will retire from Congress.

He points out, however, that the liberals who voted for her are more likely to retain their seats than the quislings who supported her only when she was less toxic.

[Chubby]

((That libertarian propaganda diagram with the two axes has amused me for years.))

I think you have something there. Like Rob Crawford, I had to split the difference on most of the questions. And even though I "disagreed strongly" on several social questions like gay adoption etc., I came out smack dab in the center on social issues.

Economic Left/Right: 2.25
Social Libertarian/Authoritarian: -0.15

[MJW]

For a Notre Dame law review article discussing more than anyone probably wants to know about severablity, go here, and click "One-Click Download" at the top of the page.

The gist is that the lack of a severability clause does not necessarily mean that the entire statute is thrown out if a section is declared invalid. Instead, "[u]nless it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law." Champlin Refining Co. v. Corporation Commission, 286 U.S. 210 (1932). This test was reaffirmed in Buckley v. Valeo, 424 U.S. 1 (1976).

Also, severability clause doesn't ensure the rest of the statute will stand if some parts are found invalid, but it establishes a presumption that it will.

[JM Hanes]

Jim Miller:

"Are those two axes the only possible axes? Are there people who would evaluate political choices using very different axes?"

Are there some who let complexity trump utility?

hit:

Thanks for supplying the Compass! Since I'm baring all today, here's where I land on the long form:

Half way between Gandhi and Friedman. I can live with that.

[Captain Hate]

And in DE they are making fun of O'Donell for saying there is no separation of church and state phrase in the constitution while ignoring that Coons couldn't name the five freedoms guaranteed in the 1st Amendment.

Can you imagine the howler that Bite-me would give to that question? I'm more emotionally invested in that race than any other.

[Chubby]

Jim, do you think it's possible for any quiz to render a true or truer analysis?

[JM Hanes]

Folks who find it really frustrating when survey questions aren't tailored to the answers they would like to give are actually a demographic in their own right. There are a lot of tests which purposely require you to make uncomfortable choices.

[Porchlight]

LOL - check out Iowahawk making fun of Gwenster and Kos on Twitter:

Iowahawk: #koshistoryquiz

[Porchlight]

More fun from other tweeters here:

#koshistoryquiz

[Danube of Thought]

MJW, from your description it sounds like the court applies the same test whether or not there is a severability clause, except for the presumption. In this case, I don't think it's a close call: the gov't has made a big to-do about how the mandate is essential to the whole thing.

[Melinda Romanoff]

OL-

Holding back only $872 Million for a $47 Billion problem is wee bit of a problem for BAC (Stock symbol for B of A.

ZH has this little nugget laid bare from the earnings report.

[Clarice]

I agree with DoT..re the severability clauseand Obamacare.

[Old Lurker]

I know, Mel, I know.

[Pagar]

Naked Capitalism has the $47 billion problem this empty threats edition.

Mel, hope you haven't already posted this one.

Your links are always good.

[memomachine]

Hmmmm.

Under this logic where the Commerce Clause allows Congress to manage anything *not* involved in inter-state commerce then the First Amendment not only enjoins Congress from establishing a religion but also allows Congress to establish a religion.

It's a dessert topping *and* a floor wax!

[Melinda Romanoff]

OL-

And the band hasn't even gotten back from the Intermission...

[Melinda Romanoff]

Pagar-

I think this is more likely a gambit to get to the front of the line come bust-up.

[Old Lurker]

If the SCOTUS upholds such an expansive right of Congress to say anything related to money is within its reach to micromanage, and since that reading would seem to make about 90% of the words in the Constitution and BofR "inoperable", might congress then also determine that the courts are a waste of money too?

Just askin.

[Extraneus]

One of the tweets at that Iowahawk page:

Breaking: VFW PAC Endorses Pentagon Shooter

[Thomas Collins]

I suspect Palin was intentionally setting a trap. Make a 1773 reference and watch the progosphere, in Pavlovian fashion, pounce without checking on the date of the Boston Tea Party (or pounce while automatically assuming that Palin's reference was to the Declaration when her words more logically would apply to the Tea Party, especially in light of the fact that the most prominent and effective counter-ObamaPelosiReid movement took the name Tea Party). This makes my day. The progosclerotic effete elite once again is bested by Palin.

Palin is the Garry Kasparov of power politics. She thinks moves ahead of her opponents.

[matt]

is "off with their heads" a severability clause?

these days according to the statists, the Constitution is whatever they say it means, as we have been so informed.

When they can legislate an outcome, they will. When they can litigate an outcome, they will. Heads, they win. Tails, they win.

Where I think there is a huge opportunity is in rolling back the Health Care Bill. If the next session de-funds huge swathes, the bureaucracy can be stunted.

Unfortunately it will also have to be a multi step process undertaken over years.While one session can de-fund, the next can re-fund.

The first step must be de-funding, but then it will require either a veto proof majority or control of Congress and the White House to extirpate this and half a dozen of the worst excesses. I don't know if the "leadership" has the will to do so. They seem to have the attention span of a gnat.

Where I see the Republicans falling down is in a lack of cohesion and unity. Everyone wants to be seen as Tea Party friendly except a very few socialist roaders, and perhaps half of the candidates running actually might somehow fit that bill. Between the Republican establishment and the RINOs, they don't get it.

And I still don't see anyone tying it into a coherent, easily digestible message.

1 - we don't have any money left, so we can't afford it.

2 - government has proven time and again to be extremely wasteful and inefficient

3 - Every major social and educational program but a few has been a horrible bust.

4 - We really do need to follow the Constitution.

Just a couple of thoughts on a wonderfully stormy afternoon in So Cal.

[Clarice]

Thomas, How can that be? As a Berkeley professor I shared dinner with as a guest a few months ago, sputtered when I admitted to liking Palin," She went to five different colleges before she graduated?" The unstated kicker being that none of them were prestigious Ivy League or East Coast top womens colleges . Palin s Kasparpv, now now....

[Clarice]

matt, they stuck together admirably on the Act itself.

[narciso]

And Rove was belittling if not outright dissing the Tea Party in Spiegel. I don't think she intended it as a trap, she probably
assumed it was common knowledge among the commentariat, which probably once upon a time
it was

[Cecil Turner]

I'm kinda likin' this whole idea. Next time my wife harangues me for sitting here doing nothing, I'm gonna tell her: "Honey, I'm busy engaging in interstate commerce!"

She might buy it . . . once.

[Elliott]

Walter and MJW on the same thread!*

______________
*Have the ruminations of the Dork Lord yet been duly considered?

[daddy]

JiB,

I'm sitting in the ex Soviet Republic of Kazakhstan. When I try to take your Political quiz it tells me that I am forbidden to do so. Hah!

Sorta' fitting ain't it. So while you guys are Libertarians and Conservatives and Moderates, put me down as in the category labeled "Gulag."

[Cough up that hairball, Miller!!!]

You like 'self-refuting metaphors'?

How's dis?

For the past week, the Alaska Senate race has been dominated by the story of Miller's tenure at the Fairbanks North Star Bureau and how his employment there ended. That's the story that prompted the increasingly petulant Miller to declare he would no longer answer questions about his past. That became impossible once his goon squad "arrested" a reporter trying to question Miller about the story. That action made it national news.

And it's what John King wanted to talk about last night on CNN. He finally forced Miller to admit what he's been trying to hide all this time--he was disciplined in that job for violating ethics policy.

On John King's show, Miller first dodged questions about his time at the borough: "I'll admit I'm a man of many flaws. I'm not going to sit back and say that I've conducted my life perfectly. I will tell you that anything that I've done that's not right, it's been accounted for and it's been taken care of and I move on and I learn from mistakes."

King later asked him more directly: "Is this a fair statement in your view? That at the time this happened, you were disciplined for something but it had nothing to do with the reason you left the agency down the road."

"Absolutely, that's a fair statement," Miller said.

[Thomas Collins]

Clarice, I think I'm going to use the "Palin is the Garry Kasparov of power politics" line when I see some of my prog friends over the Thanksgiving Holiday, just for the joy of seeing them get beet red in the face!

[Cough up that hairball, Miller!!!]

"you people are afraid to engage with any of the ideas I offer up."

But, but they just want you to discuss things rationally.

What's the problema?

Let me tell you. The difference between a Regressive and a Progressive is much like
the ages old war between the sexes.

When you encounter a Regressive who is capable of dialogue, just think about the male of the species, then subtract reason and accountability, and you have a girlie
Regressive.

[Thomas Collins]

This is too much fun. Apparently one of the folks who fell for Palin's trap was the moderator of the Palin-Biden Veep debate. See LUN.

[Captain Hate]

You like 'self-refuting metaphors'?

How's dis?

Where was the metaphor?

[Cough up that hairball, Miller!!!]

Or there's this;

When Einstein was asked to explain the difference between genius and stupidity, the sage said, "Genius has it's limits"

[Cough up that hairball, Miller!!!]

Tea-Bagger is a metaphor for

"Americanus Ignoramus"

[Captain Hate]

Apparently one of the folks who fell for Palin's trap was the moderator of the Palin-Biden Veep debate.

That's ok; Glenn didn't seem miffed by Bite-me's innovative account of the recent history of Lebanon either.

[Melinda Romanoff]

Cap'n-

A slight mis-statement.

It was camphor.

[Clarice]

Hi, Elliott! Smooches. Hope all is well.

[Melinda Romanoff]

I see cocktail hour was opened early on the East Coast.

[Captain Hate]

Mel, I'm wondering how many voices are screaming for attention in that lunatic's otherwise empty head. There might be a massive implosion on 11/3. The good news is that the repeal of Bammycare might restore an efficacious flow of psychotropics.

[Elliott]

TC, if perchance one of those friends were to respond, "How's that? Crushed by big blue in the end?," I hope you would not miss the opportunity to reply, "No, a leading opponent of a puffed up strongman."

[matt]

comrade daddy;

make sure your papers are in order when exiting the worker's paradise. Watch for the men in bad suits and Lada's (or maybe it's Hyundais these days).

And if you are detained, just shout out "Hooray for President Nazarbayev!". That will go a long way.

[Melinda Romanoff]

It'd be like trying to get the barkeep's attention, on payday Friday, in an steelworker's bar.

Too loud, and there's going to be a fight before 9.

[Captain Hate]

So while you guys are Libertarians and Conservatives and Moderates, put me down as in the category labeled "Gulag."

If enough nutjobs in your state write in Lena Polackski, you can send that message from home.

[scott]

OT: I just watched the Coons/O'Donnell debate from this morning. Is Coons an attorney? Is it common for Senate candidates to debate Constitutional Amendments? It seems odd to me. Watching the whole video, I thought O'Donnell handled the first amendment issue pretty well. She seems to be trying to score debate points albeit inartfully. I think she even realized Coons' paraphrase was not really correct. What is the point of "you should know the 16th amendment" gotcha questions to somebody who isn't an attorney? What a bunch of crap. I don't think she'll pull it off but man, Coons is a real elitist jackass.

[Thomas Collins]

Thanks for that great response, Elliott! Now I have a comeback if one of my friends (amazingly, they are still friends) plays the Big Blue card on my Kasparov/Palin comment.

[Clarice]

If nothing else today's Palin/O'Donnell adventures have further embarrassed the media and revealed again that the notion that Dems are smart and Republicans stupid, is a decades old media construct lacking foundation.

[Pagar]

Mark Folkestad, I don't know it would do on a
island, in Alaska but we use Magic Jack. It gives you free calls as shown

"YES! The United States, Canada, Puerto Rico AND the U.S. Virgin Islands are included in our free local and long distance plan"

LUN

A lot of us in the VFW use it because you can call from anywhere in the world as long as you are calling another Magic Jack number.

We've gone to our second year of usage and are very pleased.

[Jim Miller]

Extraneous - There's some decent background on rare earths in this Wikipedia article. By the way, they are not "earths", and they are not especially rare, as elements go.

(I've used it a couple of times in my own posts on this subject.)

To be fairness to the NYT, some of their earlier articles on the subject have covered both the elements and their uses.

[Ignatz Ratzkywatzky]

--Tea-Bagger is a metaphor for

"Americanus Ignoramus"--

I know actual reality is a crashing bore to the reality based community cleo, but you didn't use the term Tea Bagger, so your rhetoric as usual is a non sequitor in the world the rest of humanity actually lives in.

[Cecil Turner]

"Genius has it's limits"

Now there's a good example (of self-refuting anyway).

[Elliott]

Thanks, Clarice. All is well here and I'm looking forward to Nov. 3.

TC, I'd be delighted should it prove useful. It speaks well of all you that you are still friends.

[daddy]

Elliott,

I'll be in Paris tomorrow. Why don't you come on over and we can torch some Citrones on the Champs d'Elysées. "Viva La retirement pensions!"

PS, You better bring the petrol since there's none at the Airport.

[Jim Miller]

"Do you think it's possible for any quiz to render a true or truer analysis?"

Chubby - It's tricky because many voters don't really have an ideological view of the political world. (I've argued that my senior senator, Patty Murray, doesn't have one, either. That's quite unusual for politicians, but common for voters.) If a voter votes for incumbents when times are good, and against them when times are bad, you can't really put that voter anywhere on that diagram.

And even for voters that do, some have concerns that don't really fit on that diagram. In some past elections, you could use an ordinary left-right economic axis and a separate one on foreign involvement (interventionist-isolationist) to describe most voters, but not all.

(Just to make things even more complex, what works to describe voters in one election may not work in another election.)

And then there are voters, all over the world, who judge political events on how they affect their tribe. A good politician is friendly to their tribe, a bad one, unfriendly. I don't see any way to fit that kind of thinking on that libertarian diagram.

It's been many years since I've looked at the academic literature, so I should probably stop there.

(Now back to puzzling over Gallup's generic results.)

[Danube of Thought]

I don't think this fool knows what " metaphor" means.

[daddy]

"If enough nutjobs in your state write in Lena Polackski, you can send that message from home."

Captain,

Well Alaska did used to be a Russian Gulag at one time, so samo samo?

Anyhow, Lisa just got caught with her name illegally listed on an FEC form of a Native PAC that is endorsing her and has purchased over 1 million dollars worth of attack ads against Joe Miller. ">http://community.adn.com/adn/node/153769"> It was something of a surprise to see Murkowski's name on the bottom of a Federal Election Commission form that requires Alaskans Standing Together to "avow that it's not working with any candidate or party committee--that it's truly independent."

"Groups making independent expenditures are prohibited by law from coordinating with the candidates they're backing."

"How could Murkowski certify their independence without cooperating or consulting, at the very least, with Alaskans Standing Together?"

Good question.

But thankfully reading through the story we are told by a Murcowsky spokesperson that it was just a paperwork error, honest mistake, could'a happened to anyone, so move along folks and lets go back to bad mouthing Joe Miller for not filing on time his own FEC forms, that he was never even sent in the first place by the Election Committee folks.

[Pagar]

O/T but has there bargain bin books at $3.00 each if you buy three or more. They start off with a Sean Hannity, but I didn't check for that type so not sure what else they have. Of course, they still do free shipping

[Pagar]

Well, the LUN works anyway, but it is
http://www.betterworldbooks.com

With that error, I'm giving up for the night.
Too tired to post correctly.

[anduril]

Hey, any bitches about Murkowski should be addressed to the VAN NESS FELDMAN, P.C. POLITICAL ACTION COMMITTEE.

MURKOWSKI, LISA $1,000 04/13/2009
MURKOWSKI, LISA $2,000 06/08/2009
MURKOWSKI, LISA $1,000 07/15/2009
MURKOWSKI, LISA $1,000 10/05/2009
MURKOWSKI, LISA $1,000 02/01/2010

Booooring!

[Cough up that hairball, Miller!!!]

"If nothing else today's Palin/O'Donnell adventures have further embarrassed the media and revealed again that the notion that Dems are smart and Republicans stupid, is a decades old media construct lacking foundation."

GAWD !

[Jane]

The gist is that the lack of a severability clause does not necessarily mean that the entire statute is thrown out if a section is declared invalid. Instead, "[u]nless it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law."

I think that is wrong. I think you are defining what happens if there is a severability clause - absent that, if one part fails it all fails.

Now that is not to say they won't try and change that.

[Old Lurker]

What an ass.

[Old Lurker]

Not you, Jane. Of course I broke my own rule of DFTT.

[caro]

JMH,you,me and Friedman. We're the only ones even in that quadrant on the world "map".

How can that be?

[narciso]

Miller didn't become a candidate till May, so it seems not out of the ordinary that a firm
with interests with Alaska, would invest in
their Senior Senator, even Sarah gave her a contribution, last June

[glasater]

Wow!

Barney Frank gives $200K to his campaign

[Elliott]

daddy,

I must await the telephone repairman. Have some hot chocolate at Angelina's for me.

[Army of Davids]

When the media once again tries to blame free markets for the housing meltdown remember this.....

Fannie and Freddie own MERS.

Fannie and Freddie facilitated 50% of the secondary mortgage market since 2000.

Fannie and Freddie execs Franklin Raines, Jamie Gorelick and Jim Johnson were "Friends of Angelo"

[JM Hanes]

"Booooring!"

It must be Unintended Irony Day.

[Janet]

That is something glasater! Sean Bielat is such a great candidate...calm, smiling, confident. If voters are paying attention at all, there is no way Barney Frank should win.

[JM Hanes]

caro: "How can that be?"

Mind meld?

[anduril]

Miller didn't become a candidate till May, so it seems not out of the ordinary that a firm with clients who have interests with in Alaska, would invest in their Senior Senator

Did I say any differently? It makes excellent sense to invest in a Senior Senator like that--I would never dream of suggesting that that wasn't a smart move. That's why I talked about "smart money." After all, if your client has a problem with, say, a regulatory agency, it probably doesn't hurt to have one of the Senior Senator's staffers call over and say, hey, such and such law firm has some questions about some regulation or other--can you explain it for them? Wink, wink.

But I'm open to alternative views--maybe you can suggest some other reason law firms form PACs and have their employees "voluntarily" chip in? Congress makes the rules, senators and reps need money, and they have something of value to offer law firms. You can count on it that corporate clients catch on pretty quickly when it comes to figuring out which law firms have "good connections" and which don't. Call it pump priming. You make your contributions and likely get many times the amount back in fees. Or maybe I'm just cynical. But I like to think I'm not. I like to think I'd quit practice before I gave money to Nancy Pelosi or Harry Reid--just for starters.

[anduril]

Oh, I forgot: boooooooring!

[Bill in AZ sez it's time for Zero to resign]

caro, heh - I'm on Friedmans's dot too.

[anduril]

I'm full of great ideas tonight. Here's a thought experiment: I wonder whether any of the special interests that got goodies through the stimulus were represented by attorneys in any way, and whether any of those attorneys "gave at the office?" What do you say--would that have been "not out of the ordinary?" Or did our honorable representatives just throw money at the special interests neither asking nor expecting anything in return? My guess is that where there's money on a scale like that there will be attorneys, and they will know the name of the game.

[caro]

I'm there,JMH.

[JM Hanes]

"But I'm open to alternative views"

I'd say D'oh is pretty much the only alternative.

[caro]

BinAZ,we are in the best of company!

[anduril]

Barney Fwank gives $200K to his campaign

I'll bet he had a hissy fit over having to spend his own money. I wonder whether Justice for Jonathan Pollard (no, I won't link) has an associated PAC? If so, they must have been good for some money for Fwank.

[MJW]

Jane, the quote on severability was from Champlin Refining Co. v. Corporation Commission. If there was a severability in that case, the court neglected to mention it. Likewise for Buckley v. Valeo, which quoted Chaplin.

In INS v. Chadha, a case that did involve a statute with a severability clause, the court said:

Only recently this Court reaffirmed that the invalid portions of a statute are to be severed

"[u]nless it is evident that [p932] the Legislature would not have enacted those provisions which are within its power, independently of that which is not."

Buckley v. Valeo, 424 U.S. 1, 108 (1976), quoting Champlin Refining Co. v. Corporation Comm'n of Oklahoma, 286 U.S. 210, 234 (1932). Here, however, we need not embark on that elusive inquiry, since Congress itself has provided the answer to the question of severability in § 406 of the Immigration and Nationality Act, note following 8 U.S.C. § 1101 which provides:

If any particular provision of this Act, or the application thereof to any person or circumstance, is held invalid, the remainder of the Act and the application of such provision to other persons or circumstances shall not be affected thereby.

(Emphasis added.) This language is unambiguous, and gives rise to a presumption that Congress did not intend the validity of the Act as a whole, or of any part of the Act, to depend upon whether the veto clause of § 244(c)(2) was invalid. The one-House veto provision in § 244(c)(2) is clearly a "particular provision" of the Act as that language is used in the severability clause. Congress clearly intended "the remainder of the Act" to stand if "any particular provision" were held invalid. Congress could not have more plainly authorized the presumption that the provision for a one-House veto in § 244(c)(2) is severable from the remainder of § 244 and the Act of which it is a part. See Electric Bond & Share Co. v. SEC, 303 U.S. 419, 434 (1938).

(INS v. Chadha is an interesting case in several ways, besides the fact that it nicely summarizes the rules for severability with and without a severability clause.)

[Jane]

Have some hot chocolate at Angelina's for me.

Is that the place next to the Maurice?

[PD]

Out buying groceries at Safeway in my Sturbridge Tea Party t-shirt & I got stopped again. A shopper wanted to know where she could get one. I invited her over & gave her one. In this lib area it feels nice to run into someone like minded. I'm hoping wearing the t-shirt will make others bolder too.

Janet the tea-vangelist!

[Jane]

MJW,

I believe you, but it makes no sense. Why have a severability clause at all if someone gets to pretend it means nothing?

[PD]

"Genius has it's limits"

Particularly as regards spelling.

[PD]

Barney Fwank gives $200K to his campaign

Russ Feingold has criticized his oppenent Ron Johnson for spending his own money on his campaign ("trying to buy a Senate seat"), so I'm expecting he'll be objecting to Barney's expenditure.

Flush Russ 2010

[PD]

*opponent*

Talk about spelling!

[anduril]

Russ Feingold has criticized his oppenent Ron Johnson for spending his own money on his campaign

As I was saying, the many, many PACs out there like Van Ness Feldman are hardly going to give money to challengers--a fact that Feingold is well aware of. As a result, if both candidates restrict their spending to campaign contributions the incumbent--most other things being equal--will naturally be at a disadvantage.

[MJW]

Jane, I don't think the severability clause means nothing; it provides a stong presumtion that the rest of the statute stands even if a portion is found valid. In INS v. Chadha, the court said that the existence of the clause meant they "need not embark on that elusive inquiry, since Congress itself has provided the answer to the question of severability." It is conceivable, though, that a court would invalidate such a fundamental aspect of a statute that what remained wasn't a sensible law.

[MJW]

...portion is found invalid...

[Jane]

I don't think the severability clause means nothing; it provides a stong presumtion that the rest of the statute stands even if a portion is found valid.

I've had a tough day and I'm really tired, so forgive me, but isn't it exactly the opposite? Isn't it supposed to say that if one part of the statute fails it all should fail?

The centerpiece of Obamacare is the individual mandate. How does the rest of the bill remain without that?

[MJW]

I should have mentioned that the Obamacare law illustrates the significance of a severability clause. If the mandate is found to be unconstitutional, then because it lacks the clause, the court may reasonably conclude that without the "linchpin" mandate, congress would never have passed the law. If it had a severability clause, the court would probably assume that congress intended the rest of the law to remain in effect.

[Melinda Romanoff]

Caro-

I presume you and I are similar to this leetle picture.

Or, the "Friedman" position, as it is more commonly known. Appealing only to long term partners and Austrians.