Win Some, Lose Some

The ObamaCare mandate loses on appeal in the Eleventh Circuit in Atlanta; this gives us the expected circuit split that should lead to a Supreme Court hearing.

And how will the Supremes decide?  Orin Kerr, writing at ScotusBlog, predicts a final decision in favor of the Obamacare mandate by somewhere between 6-3 and 8-1:

Here are my guesses. Justices Breyer and Ginsburg are pretty obvious votes for the mandate, as they dissented in United States v. Lopez. Justices Kagan and Sotomayor seem like safe votes for the mandate, even if only for the reason that there is almost no opposition to the constitutionality of the mandate in the Democratic establishment from which they were appointed.  Chief Justice Roberts will likely vote to uphold the mandate given the very  expansive views of the Necessary and Proper clause that he signed on to just recently in United States v. Comstock.  I suspect Justice Kennedy will vote to uphold the mandate given his concurring opinion in United States v. Lopez.  And I’m pretty sure Justice Thomas will vote to strike down the mandate given his views of the Commerce Clause.  In contrast, I don’t have good sense of where Justices Scalia and Alito might come out.

Putting the numbers together,  I expect 6 votes for the mandate, 1 against, and 2 uncertain.   If my numbers are right, the mandate will be upheld by a vote of anywhere from 6-3 to 8-1.

Even if he is wrong about Roberts (and that is simply my exertion of the power of positive wishful thinking), Kennedy will swing the 5th vote.

 

Comments

[Ignatz]

Orin Kerr is a squish and usually wrong so I'm buoyed by his opinion.

[Pops]

Those foolish Republicans...all they had to do was mandate a 7,000 dollar fee on each abortion.

[Pops]

If nothing else Scalia's dissent should be a great read.

Why can't the feds mandate we eat peas? Or mandate we take vitamins? Or mandate we not smoke or engage in anal sodomy, or both at once? Or be a Clinton intern?

[Steven W.]

Anthony Kennedy the swing vote? amazing! who'd have thunk it ROFLMAO

[reliapundit]

WHY EVEN BOTHER WITH A SCOTUS HEARING?

JUST EMAIL THE BRIEFS TO KERR.

SCRATCH THAT: DON;T EVEN BOTHER TO EMAIL THE BRIEF: KERR CAN DECIDE WITHOUT THEM.

SHEESH.

[Minimalist Poster]

I don't think the Supreme Court will write the Commerce Clause out of the Constitution for this bill. I think they will consider (though probably not discuss) the way the bill was passed, the waiver process (including the number of waivers granted), the number of states seeking to declare Obamacare unconstitutional and similar factors. I think the liberal judges will then set forth a way to pass a healthcare bill with a mandate that is Constitutional. If it were me, I would rather be remembered as the Justice who laid out the Constitutional path to Obamacare than as a Justice who trashed the Constitution for a flawed and problematic bill.

[Mike]

I think it's kind of silly to try to forecast the vote. I think it is tough to claim that this is not an extension (beyond current bounds) of the Commerce Clause. Once you are into that terrain, it is difficult to predict that, for instance, Chief Justice Roberts will vote to uphold because of how he voted in another Commerce Clause case. But what do I know, Constitutional Law was my least-favorite class during my first year of law school.

[Cecil Turner]

I'll buy that the two dissents in Lopez suggest the respective Justices will support the mandate, but then Kennedy's concurrence should lead to the opposite position, right? And after reading it (the relevant concurrence), it's not obvious to me why that wouldn't be correct.

I'd guess it to be more like 5-4 against, along the usual ideological lines.

[cathyf]

I'm wondering about the possibility of new litigation not on the law itself, but on the "waivers" violating the 14th Amendment. Focusing attention upon the waivers and then suddenly eliminating all of them would hugely shift the politics.

[Danube of Thought]

I wouldn't even venture a guess about what the SCt will do. I do feel certain that it can strike the law down without offending against the principle of stare decisis.

I still have my bet (I got 5-1 odds) with my colleague about the outcome. It's my $10 against his $50.

[sbw]

One shouldn't have to bet on the Supreme Court with the Congress to save us. Oh. One shouldn't have to bet on Congress with the President to save us. Oh.

I guess we're going to have to take the anti-commercial market excesses of Obamacare down ourselves.

[Sara (Pal2Pal)]

Apple pulls iTunes from Christian shopping portal -- Worries arose that the 'Christian Values Network' funds anti-gay groups.

___________

Does this mean we have to find out how a company feels about gays, or abortion, or victimhood of Americans before we shop with a certain site? Who gives a damn what a company thinks anyway if you like and want that particular product? Maybe an individual will want to express his own cares by boycotting or supporting, but why should a company, in business to make money, make shopping a political statement? I do not get it.

[matt]

gee, I think there's that whole problem of the law. The political whoredom of some of these appointees is highly distasteful.

We are in more ways than one back to a repeat of the FDR versus the Constitution crisis, but on steroids.

Isn't the Supreme Court only supposed to consider the facts in evidence before them? If it is only the mandate, then that would be what was before the Court.Do any of the other cases challenge other parts of the bill?

Am I mistaken?

[Clarice]

5-4 against for the reasons cited by Cecil and for the additional practical reason that the commerce clause and federalism have to stand for something.

If I am wrong, I hope the decision comes down when the Dems have been swept out of office and the entire piece of merde is repealed.

[Clarice]

Also because public opinion is steadfastly against it and the sit was brought by more than half of O's 57 states.

[Janet]

from Sara's link -
But according to the Southern Poverty Law Center (SPLC), some of the religious groups are ”active hate groups” engaged in “anti-gay, anti-women” activities.

Here is a bit on the Southern Poverty Law Center founder Morris Dees.
Not sure where Poverty comes in.

[Extraneus]

If they don't weigh in on Wickard v. Filburn, they probably won't worry too much about the Commerce Clause.

[Captain Hate]

O/T Here's some union "mischief" in the Pittsburgh area; note that all 14 comments (the number when I copied this), in a union favorable area, are all pro Verizon: http://www.wtae.com/r/28846881/detail.html

[Captain Hate]

More O/T The Perseid meteor shower is supposed to be pretty good tonight a couple of hours before dawn to eliminate the effects of the full moon.

[Sara (Pal2Pal)]

Unions that pull a strike in this economy are nuts.

I read this morning and now can't find the link, that several AFL-CIO unions are going to boycott the Democrat convention because it is being held in a right-to-work state. They seem to be maddest at having to stay at non-union hotels.

[Ranger]

Well, if the individual mandate is upheld, then we can move on to finally bringing about FDR's dream of transforming Social Security into a mandated private annuity system. Then we can move on to replacing medicare with mandated private insurance as well. We'll still be stuck with medicaid, but think of how much of the future budget deficits can be done away with by transfering the two largest blocks of "madatory" federal spending over to private insurance operations. The individual mandate can be used in so many benificial ways.

[Sara (Pal2Pal)]

Vanderleun:

Is it just me, or could we save a lot of time and money by just sending somebody around to see what Justice Kennedy thinks?

Although there are many bloggers and commenters I would like to meet in person, there are only a handful that I would really like to get to know and hang out with, Gerard is one of those. PUK was one and Alan Kelly of BMEWS, who died suddenly a couple of years ago, was another. Tammy Bruce is also one. And Greg Gutfield and Andy Levy too.

[glasater]

A fantastic idea was just presented on the Kudlow show.

One of his guests suggested that Al Gore challenge BOzo in a primary.

[centralcal]

glasater: One of Hannity's guest hosts on his radio show (don't remember who) was convinced that Gore will challenge Obama.

[Extraneus]

Gore sighing at Obama in a debate? Is there a PayPal link?

[peter]

Will be watching the perseids tonight.

[Pops]

If the Republicans were smart, they would already be drafting a bill in preparation for the Supreme Court deliberation on ObamaCare.

And what would this bill be?

Well, it would mandate every American buy a gun for personnel protection thus upholding the Second Amendment.

It would mandate every American buy abortion insurance to cover the newly mandated 10,000 dollars per abortion bill.

It would mandate Federal Judges pay for all there own travel and parking fees, and also mandate they pay 10,000 dollars a year into a lawyer malpractice fund to pay for lawyers for business attacked by class action lawsuits.

I could go on and on...

[centralcal]

Gore sighing swearing at Obama in a debate?

Just had to tweak it a little bit, Ext. The new Gore is a very angry fat man and much more into swearing these days than sighing. He lost in 2000 and now his pet scam - global warming - is melting instead of the glaciers. He is not a very happy camper.

[Pops]

IT WOULD ALSO HELP IF THEY DRAFT LEGISLATION RAISING THE 700 DOLLAR MANDATE TO A MANDATE THAT ACTUALLY PAYS FOR THE FULL COST OF THE HEALTH INSURANCE PLAN BEING PURCHSED ON THEIR BEHALF.

[Threadkiller]

You said you would end the wars! Bulls#!t!! You said we would lower the seas! Bulls#!t!!

[Clarice]

Prof Ilya Somin at volokh notes that a Clinton appointee voted to hold the mandate unconstitutional.

[Gmax]

the prof is correct. there was only one Republican appointee on that panel and the 2 - 1 decision therefore includes a Bubba appointee by definition. Dontcha know his cocktail party invites have very much dried up?

[Extraneus]

And they say TK isn't funny.

[Jane]

I interrupt all this law talk to announce that our very own Caro, artiste extraordinaire won best of show in a recent art show.

That makes her very cool.

And Sara, I had dinner with Gutfeld and was disappointed.

[matt]

yay, caro!

[Sara (Pal2Pal)]

Oh no Jane. Just how short is he?

[narciso]

Congratulations. Caro, I guess that explains why the Five is so lame, lately, Jane,

[glasater]

Ccal-

I think the fellow on Kudlow's show is Mark Simone? He's unfamiliar to me.

This is about the speculation Gore might challenge Obama. I just love the thought of it all...

[Ignatz]

--If the Republicans were smart...--

they wouldn't be Republicans, Pops, and we wouldn't be in the mess we're in and you wouldn't have more wisdom and political acumen in one of your posts than the RNC has mustered in the last decade or two.

[Ignatz]

LOLed at that Gore line, not once, not twice but even on the third time, TK.

[Janet]

Congrats Caro! Well done.

You said you would end the wars! Bulls#!t!! You said we would lower the seas! Bulls#!t!!

Wonderful, TK! If algore runs for Pres.we can use Ann's picture of "The Prick with a wick" to endlessly mock him.

[centralcal]

glasater - that sounds like the same guy who was guest hosting. Guess he is spreading his Gore hope around.

Congratulations, Caro.

Funny, TK.

[MayBee]

Yay, caro!!!

[Ann]

Congrats Caro! You will always be first place in my book...no matter, what ever! ♥

[Caro]

Hey, thanks all.

That "Prick with a Wick" is one of my all time favorites.

[Caro]

Hearts and hugs to you, Ann.

[Ann]

Hey Maybee

Jake Tapper even loves Sarah:

Better warn him about this pic ...he could get fired! :)

[Threadkiller]

Congratulations caro!

Thanks everybody for the compliments.

[Thomas Collins]

The opinion is probably elsewhere on JOM, but it is probably worth posting again, so I have LUNed it. The severability analysis is at Part VII.

Snaps for caro!

[Frau Roggenbrot]

Don't stop now, caro. More, more, more!

[MayBee]

Ha, Ann!
He was always dying to get an interview with her.
His father in law always seemed to be quite a fan of Sarah's, too.

[Porchlight]

Sarah's gonna win 'em over. That pic is a harbinger of things to come.

MayBee, who is Tapper's father in law?

[Porchlight]

Congratulations, caro!

And TK, you deserve the kind words. I like your style.

[Captain Hate]

The new Gore is a very angry fat man and much more into swearing these days than sighing. He lost in 2000 and now his pet scam - global warming - is melting instead of the glaciers. He is not a very happy camper.

He deserves to be deep fat fried in Hell for those mawkish family weepers he used at more than one of the theater of the grotesques aka donk conventions. He and Silky Pony are both scum for trying to parlay family misfortunes for votes.

[MayBee]

Porch- he was on Twitter. Really great, smart, fun guy. He and Tapper seemed to have a warm relationship. He's also the guy who came up with the line about Sarah Palin ruling the gov't via Facebook- I think when she came up with the "Death Panels" line that supposedly derailed healthcare.

[Porchlight]

Cool, MayBee - thanks. Sounds like Tapper is smart enough to have listened to him at least some of the time.

[Clarice]

Congrats, Caro!! Hello, Ann!

Week wo of my five week and 2 day slavery on the grand jury is over.

[Clarice]

TWO, (woe is me)

[Jane]

Go over to insty and read the latest from Taranto. Obama has given up, and it is just breathtaking. And that was before today's loss.

[MayBee]

I'm going to join clarice's grand jury so she can teach me how to knit.

[Threadkiller]

Thanks for the tip, Jane.

Taranto starts with the same speech I was using to mess with The Bens earlier. The odds.

The you-tube of the speech, which I won’t post again due to JiB’s fragile state, was striking. Now that the teleprompter has become so laughable, when you see how he relied on it in 2008, you really have to wonder what happened to this country.

[MayBee]

Geez, the Taranto piece is so true, Jane. It's like Obama is screaming "I have no clothes! The Republicans will not let me have clothes!"

[Sara (Pal2Pal)]

This may have been posted earlier, but I missed it, if it was.

Always Proud (Video)

Comment of the Week: Newton Wants Palin to Pull the Trigger

[Davod]

Obama may well have given up, but the Dems did quite well in the recent debt negotiations. The Dems also moved the Socialist (Don't let the Dems hide behind the Progressive mask) agenda forward a good bit since Obama became president.

[daddy]

test

[Carol Herman]

test
Bring on the forks! Bring on the plastic reindeer!

If Roberts votes to "keep" the mandate? He jumps on board to control the writing assignments! Never overlook the real job of a chief ... the one Sandra Day O'Connor ripped out of Rehnquist's hands! (Assign the decision to me. To me.)

On the other hand? I smell another KELO!

The supreme court dumps a spectacular dump ... And, the shit rises. If it forms a cloud? Stick initials on it: FDR

Oh, and go ahead. Rend the fabric of this country even further.

[Agent J]

This is a totally unrelated message, I learn by doing, so I am practicing up with and old thread..but it is a great message to watch.