Mark Your Calendars For The Mandate Decision

The Supreme Court takes up the ObamaCare mandate, wth a decision expected next June:

The Supreme Court agreed to hear appeals from just one decision, from the United States Court of Appeals for the 11th Circuit, in Atlanta, the only one so far striking down the mandate. The decision, from a divided three-judge panel, said the mandate overstepped Congressional authority and could not be justified by the constitutional power “to regulate commerce” or “to lay and collect taxes.”

The appeals court went no further, though, severing the mandate from the rest of the law.

On Monday, the justices agreed to decide not only whether the mandate is constitutional but also, if it is not, how much of the balance of the law, the Patient Protection and Affordable Care Act, must fall along with it.

In a statement issued soon after the decision, the Obama administration restated their argument that the mandate is perfectly constitutional.

“We know the Affordable Care Act is constitutional and are confident the Supreme Court will agree,” said Dan Pfeiffer, the White House communications director.

But even the White House has said that the mandate is “absolutely intertwined” with two other provisions — one forbidding insurers to turn away applicants, the other barring them from taking account of pre-existing conditions.

Last August Orin Kerr, inspired by the 11th Circuit decision, had predicted that ObamaCare would pass muster with the Supremes, garnering six to eight votes.

Well - if the Supremes uphold the law, it will

(a) energize conservatives who will see a Republican President as the only path to repeal;

(b) placate moderates who will figure it's Constitutional if the courts say it is;

(c) rally libs who are never happier than when in "I Told You So" mode.

The net effect will help Obama.

Conversely, if the Supremes shoot down the law it will:

(a) energize conservatives who won't trust Obama to jettison his only legacy;

(b) placate moderates who will figure that since the courts have struck it down, they don't need to worry about it;

(c) rally libs to the defense of their Roosevelt fantasies and re-open the pubilc option debate.

The net effect will be to, hmm, help Obama?  Naaah - if a Constitutional Law lecturer's proudest accomplisment is found to be unconstitutional, that can't be helpful.

Comments

[rse]

I think it's a good time to revisit the Tim Hawkins video on the govt as candyman.

LUN

[Appalled]

I do not see repeal coming from the Supremes, unless they are so appalled by the legislative fiasco associated by PPACA's passage, that they decide to make a jusdgement on the political system. Why? I think some sitting justices have made decisions on the Commerce Clause (particularly in respect to a case involving California and medicinal marijuana) that they will have to ignore, in order to bring about the desired result.

[Clarice]

Heh, just yesterday politico, the WH's semi official news organ said a SCOTUS decision declaring the mandate unconstitutional would be the deah knell of the tea party. Does TM think he's smarter than politico?

I've been with randy Barnett from the outset and I think he Court will rule the mandate unconstitutional..

[Porchlight]

If they uphold it, I am thinking his victory laps will not be welcome to the majority of Americans who detest and fear this thing.

If they strike it down, and employers heave a huge sigh of relief, and start hiring again, and those numbers move the unemployment needle in time for November...that could be good for O, and he will certainly take credit for it no matter what the reason.

[Benjamin Franklin]

"Well - if the Supremes uphold the law, it will

(a) energize conservatives who will see a Republican President as the only path to repeal;

(b) placate moderates who will figure it's Constitutional if the courts say it is;

(c) rally libs who are never happier than when in "I Told You So" mode.

The net effect will help Obama.

Conversely, if the Supremes shoot down the law it will:

(a) energize conservatives who won't trust Obama to jettison his only legacy;

(b) placate moderates who will figure that since the courts have struck it down, they don't need to worry about it;

(c) rally libs to the defense of their Roosevelt fantasies and re-open the pubilc option debate.

The net effect will be to, hmm, help Obama?'

Per, my comments on this in last thread..a few thoughts.

1.) The Supremes are still smarting (whether they admit or not) from Bush V Gore and their 'one time' intervention in a National Election, means they must take a little more care in their selection process.

'Nuff said.

[Clarice]

According to Volokh Conspiracy the ct granted cert on THREE of the Obamacare cases..I'm afraid until they or SCOTUS blog does more we're in the blind because the reporters covering this story don't know shit.

[Clarice]

Here we go, LI has more critical detail:

As reported in USA Today:

The Supeme court said today it will hear arguments on the constitutionality of the Obama health care plan by March of next year, Reuters reports.

The timing means the court will deliver its decision in the summer, only a few months before the 2012 presidential election, USA TODAY’s Joan Biskupic reports.

The determination was part of a series of Orders released by the Court this morning. The cases accepted are the Florida litigations, limited to the following questions:

FLORIDA, ET AL. V. DEPT. OF H&HS, ET AL. – “The petition for a writ of certiorari is granted limited to Question 1 presented by the petition.”

Question 1 was “Whether Congress had the power under Article I of the Constitution to enact the minimum coverage provision.”

DEPT. OF H&HS, ET AL. V. FLORIDA, ET AL. The petition for a writ of certiorari is granted. In addition to Question 1 presented by the petition, the parties are directed to brief and argue the following question: “Whether the suit brought by respondents to challenge the minimum coverage provision of the Patient Protection and Affordable Care Act is barred by the Anti-Injunction Act, 26 U.S.C. §7421(a).”

NAT. FED’N INDEP. BUSINESS V. SEBELIUS, SEC. OF H&HS, ET AL., FLORIDA, ET AL. V. DEPT. OF H&HS, ET AL. – The petition for a writ of certiorari in No. 11-393 is granted. The petition for a writ of certiorari in No. 11-400 is granted limited to the issue of severability presented by Question 3 of the petition.

When you add it all up, the Court will address the mandate, whether the lawsuit is barred because the mandate is a tax which has not yet come into effect, and whether the mandate is severable. In other words, just about all of the important legal...

[Captain Hate]

If they strike it down, and employers heave a huge sigh of relief, and start hiring again, and those numbers move the unemployment needle in time for November...that could be good for O, and he will certainly take credit for it no matter what the reason.

I don't see any way that he can benefit from however the SC rules. It has been consistently unpopular and there's no reason to think he isn't inexorably tied to it, even though he didn't write a word of it.

[Ignatz]

--I think some sitting justices have made decisions on the Commerce Clause (particularly in respect to a case involving California and medicinal marijuana) that they will have to ignore, in order to bring about the desired result.--

That case dealt more with the commerce clause as it relates to federalism and states rights, no?
The issues with Barrycare are much more directed to whether there are any limits on the power of the commerce clause, regardless of state's rights.

[Porchlight]

Was it Ann who suggested that Iowahawk write a Camp Granada-style paean to the Occupoopers?

Her wish is his command!

Iowahawk: With Apologies to Allan Sherman

[Extraneus]

Shouldn't we start planning for the mandates that will follow if the law is upheld?

I guess forced weight-loss and tobacco cessation programs will come before all the carbon stuff.

[Cecil Turner]

It seems to me a clear reading of the constitutional issues would require an expanded interpretation of either the commerce clause or the necessary and proper clause to encompass, well, everything in order to sustain the statute (which requires everyone to buy health care, essentially). And either of those courses would have the result of invalidating the entire concept of enumerated powers.

I recognize SCOTUS specializes in anything but a clear reading, but find the various arguments about how the justices will vote (especially Kerr's, who apparently reasons that either a concurrence or dissent in Lopez suggests a 'yea') unconvincing. If I had to handicap the ruling, I'd guess it's the same as in Lopez, with Roberts and Alito filling in for Rehnquist and O'Connor, and Kennedy again casting the deciding vote. Moreover, it's hard to see how belaboring a deeply unpopular issue championed by liberals can do anything but help conservatives (despite lots of powerless sound and fury from the left . . . a la Bush v. Gore and Citizens United).

Shorter prediction: expect a 5-4 ruling against, and the issue will serve to help the right.

[Janet]

I guess forced weight-loss and tobacco cessation programs will come before all the carbon stuff.

Nooooooooo! I get hit with a double whammy! :(
Will I get a pass if I'm an Amish-Evangelical?

[Jack is Back!]

If they hear arguments in the Spring, doesn't that mean a ruling before the November election? Or can they delay the decision so as not to influence the election, especially if it becomes an election issue?

Also, this SCOTUS is much different than the one in 2000. You have 4 new members - Roberts, Alito, Sotomayer, Kagan. That makes it even steven and puts Kennedy once again in the driver's seat.

I wonder if any of the State Attorney Generals will bring up the Kagan cheerleading emails in their arguments:) I know they want but its fun to dream of something Monty Python like.

[Benjamin Franklin]

To make things even MORE interesting, I think Kagan SHOULD recuse herself........

[Porchlight]

I think a ruling is expected in June, JiB.

[JM Hanes]

Per SCOTUS Blog

Florida v. Department of Health and Human Services:

Whether Congress exceeds its enumerated powers and violate basic principles of federalism when it coerces states into accepting onerous conditions that it could not impose directly by threatening to withhold all federal funding under the single largest grant-in-aid program, or whether the limitation on Congress‘s spending power that this Court recognized in South Dakota v. Dole, 483 U.S. 203 (1987), no longer applies.

National Federation of Independent Business v. Sebelius:

Issue: Whether the Affordable Care Act must be invalidated in its entirety because it is nonseverable from the individual mandate that exceeds Congress’s limited and enumerated powers under the Constitution.

U.S. Department of Health and Human Services v. Florida:

Issue: (1) Whether Congress had the power under Article I of the Constitution to enact the minimum coverage provision; and (2)Whether the suit brought by respondents to challenge the minimum coverage provision of the Patient Protection and Affordable Care Act is barred by the Anti-Injunction Act, 26 U.S.C. §7421(a).

[narciso]

Over on Twitter, Allah is already throwing himself on the mercy of the Ant Overlords, because of Silberman's insulting opinion,

[JM Hanes]

I see Clarice was there first! But that's only because my power went out when I hit the preview button. :-)

Vindication for the much despised 10thers! This issue has never been riper, and the Supremes have finally decided to confront the question head on. It seems really significant to me that they chose to hang it on the State Attorneys General challenge in Florida v HSS. I also don't see how they can possibly avoid implicating commerce & taxation in the final States vs Feds equation, even if the horse didn't explicitly ride in on those issues.

The Anti-Injuction Act seems incredibly important to me as well. The issue of individual standing to sue, and/or to do so preemptively before demonstrable, unique, individual harm has occurred has been a hobbyhorse of mine for a long, long time. If the Supremes rule against the Anti-Injunction Act, it seems to me they open the door to constitutional challenges before a law takes effect. Inveigh against the Birthers all you like, but the fact that those cases died on the rock of standing and jurisdiction should have concerned even the most dismissive among us.

[Clarice]

TK, may no believe it but I have been "dismissive" only because (a) I find it hard to believe any court would touch this post-election; and ((2) precedent on standing.

The Obamacare cases might be different because prior to the Act taking effect years of preparation are called for by the feds and states and millions of tax dollars expended in that effort--PLUS--thousands and thousands of individual decisions may make the issue moot in effect--for example employers stopping hc insurance; insurance companies leaving the field; doctors closing up shop.

It so fundamentally alters 1/6 of the economy even before the actual effective date.

[Ignatz]

Some of the lawyers could explain this better no doubt, but on the narrow issue of severability I believe it is probably largely irrelevant whether the statute itself contains a clause regarding severability.
Judges are asked to determine severability fairly frequently. In my own case it regards a malicious prosecution suit that I intend to file if the local appellate court ever disposes of the lame suit we were forced to defend.
One of the issue in a malicious prosecution suit is, if only some of the causes of action were malicious a suit for MP can only go forward if the court determines the causes were in fact severable from each other. If not, then one must prevail completely on every cause of action to proceed with an MP.

[MarkO]

"Do you have more freedom than you did 4 years ago?"

Or, does anyone care anymore?

[Jack is Back!]

What do you all think?

Should the candidates stay vocal on repealing if elected and continue to make it a political and election issue?'

Or do you think they will defer being assertive since it is under judicial consideration?

I think this is still a political and electoral issue and the candidates and whoever the nominee is that they should continue to oppose and supprt repeal vigorously. Let Obama defend it during the campaigning much like he will have to defend his economic policies, his class warfare rhethoric and his ill-opinion of the American people and our exceptionalism.

Keep him on the defensive while talking about what you would do to righten the ship including a wholesale removal of all these summarily appointed leftish bureaucrats.

[Rick Ballard]

Who would you vote for to write the majority decision? I'm torn between Roberts and Thomas. I'd really like to see a strong change obviating the stare decis of Wickard v Filburn and elevating the 10th to its proper stature. Thomas might be the better choice due to the clarity of exposition in presenting the logic of the determination process.

[Captain Hate]

Should the candidates stay vocal on repealing if elected and continue to make it a political and election issue?'

Absolutely; it's a winning issue. Why would you give it up? Even Duke and Duke should figure that out.....

[Cecil Turner]

Who would you vote for to write the majority decision? I'm torn between Roberts and Thomas.

I'd prefer Thomas (and he could use his Lopez concurrence with minimal modification), but I seriously doubt he'd be able to get 4 other votes. Roberts is the obvious choice.

[Ignatz]

--Should the candidates stay vocal on repealing if elected and continue to make it a political and election issue?--

Absolutely.
If SCOTUS neuters it, it's a club to thump the power grab by Barry in defiance of the people's wishes.
If SCOTUS upholds it, it's a club to thump the power grab by Barry that has the support of an imperial court in defiance of the people's wishes.

[henry]

OT- Dem party chairman predicts Walker recall will see $100 million in spending. They also intend to call the Lt Gov and three senators. The key question, will Obama and the unions put up the $50 million this guy wants to spend in a recall 6 months before the 2012 elections?

[Clarice]

Iggy, Some people have said hat since here was no severability clause if the mandate goes it all goes. There have been cases ruling otherwise. Here, I think the distinction is irrelevant because--and I think the govt has conceded this--if the mandate goes, the entire thing is untenable.

[Frau Gesetzfrage]

How can there be a mandate when (a gazillion) waivers have been issued?

[GMAX]

Only small and insignificant companies got a waiver. I know this for a fact because Nancy Pelosi told me so...

[Appalled]

I vote for Scalia writing the majority opinion upholding the statute, and blowing the minds of Conservatives all over the nation.

[Old Lurker]

JiB, to be silent is to imply, wrongly, that the court is the last word on a bad law. Just because the court rules that a bad law is constitutional does not make it a good law. Politicians have all been guilty of punting tough things to the court (Bush on Campaign Finance) then washing their hands as if they have no responsibility for the outcome.

If the court rules Obamacare constitutional, I would run on the intent to work for its repeal anyway, and then I would use that to educate voters on the danger of appointing zealots and dummies to the court in the first place.

Rub their noses in it.

[sbw]

Appalled, you tease for the self-pleasure of it. It's unbecoming and not interesting at all to look at.

[Old Lurker]

"Just because the court rules that a bad law is constitutional does not make it a good law." Hell, I should have said that it does not even make it constitutional (Kelo).

[Appalled]

sbw:

I really do think there is a good chance of Scalia voting to uphold, and if he does, he will at least write a concurring opinion.

If I said Thomas would write it -- that would be teasing.

[Appalled]

And one another note, sbw. I do write for my own pleasure. Why shouldn't I? I do sometime write to get a reaction -- that's clarifying, frequently interesting. I'm not getting paid to do this -- so what other motive would I have? Persuasion? I sometime persuade, I guess, but probably less than I think. I sometimes do it to engage, or, on occasion, figure out where I am on something.

I have googled my past punditry on occasion. That is humbling. In 2008, I figured in 21012, we would be facing Palin duking it out with Huckabee and losing.

[boris]

Any SCOTUS justice who can uphold unrestricted government authority over individuals as long as it's used "sparingly" for "good cause" ... does not belong on the court.

[Porchlight]

I think the original question asked who do you vote for, or prefer, to write the opinion.

So Appalled, if it is truly your *preference* for Scalia to vote to uphold and "blow conservatives' minds," I would also read that as an unserious and semi-malicious comment.

This is highly destructive litigation. Anyone who wants it to be upheld solely in order to be able to laugh at conservatives has problems.

[bgates]

the Obama administration restated their argument that the mandate is perfectly constitutional.

Oh, good. I'd forgotten exactly how their reasoning went. Well, it comes from the minds of two distinguished Constitutional law professors (Sheriff Joe's not just a foreign policy guru and financial ethicist, you know), so even if I don't find it convincing I know I'll be able to admire the power and subtlety of their logic. Fortunately, the Times quotes it for us in full:

“We know the Affordable Care Act is constitutional and are confident the Supreme Court will agree,”

aha.

[Clarice]

From BOTW:

"In enacting ObamaCare, Congress claimed that the power to force individuals to purchase medical insurance from private companies is a legitimate exercise of its authority "to regulate Commerce . . . among the several States." The 11th Circuit Court of Appeals, in Florida v. Department of Health and Human Service v. Florida, held that Congress had exceeded its authority. Other appellate courts have disagreed, making a Supreme Court review all but inevitable.

If the court holds that the coercive insurance provision is unconstitutional--an outcome that is by no means assured--then the severability question will determine the fate of the rest of the law. As we explained Feb. 1, the trial judge in the Florida case held that it was not severable, which is to say that it is so essential to ObamaCare's legal scheme that if it falls, the entire law has to.
The 11th Circuit struck down that aspect of his ruling, and no other appellate court has held the provision to be inseverable. Yet both parties to the case now take the position that the provision is not severable. The state plaintiffs, like most Americans, would like to be done with the whole monstrosity that is ObamaCare, whereas the administration presumably thinks inseverability would raise the stakes and make the court shy about striking down the law. The justices are entirely free, however, to hold that both sides are wrong and the 11th Circuit was right."

[Extraneus]

What if the court declares the mandate unconstitutional, but lets the rest of the act stand? (Logic: The government can't force people to buy something, but they can tax the citizenry in order to give it to them.) Democrats would prefer that scenario over the status quo, now that all the curve-bending "deficit neutral" b.s. is out of the way.

[boris]

"in order to be able to laugh at conservatives ..."

Hostility to conservatives and conservatism (hate the sinner hate the sin) is a reflexive attitude (present to some degree in most yoots) that has systematically been cultivated for at least 2 generations.

[Porchlight]

litigation s/b legislation, sorry

[Appalled]

I will get briefly serious, because that seems required here by the blog police.

1. PPACA is a dreadful piece of legislation that should be repealed by Congress. It's repeal is the best reason, in my opinion, to vote for the GOP candidate.

2. The commerce clause has been loosely interpreted by the Supreme Court, and is almost always interpreted in favor of the government. My prediction is that trend will continue. Scalia, for example, felt it was a proper use of the commerce power to prevent someone growing their own medicinal marijuana for their own use, and in his concurrence, he used language similar to that cited in several cases upholding Obamacare. I don't think an about face is a great idea -- it will look hugely political, and it is terribly corrosive for the Supreme Court to act like a political body.

3. If Scalia votes the way I think he might, I believe a lot of posters will suffer from exploding minds. Though Scalia is nothing if he isn't consistant, and he is far less troubled by whether an issue is left or right than partisans of left or right think.

[Frau Gesetzfrage]

Today is my fifty-fifth wedding anniversary (civil ceremony at the Cologne city hall, )and I'm thinking a lot about Agent J whose marriage was almost as long.

[sbw]

because that seems required here by the blog police.

That's equally unserious.

[Appalled]

Extraneus:

If the mandate is ruled unconsitutional, PPACA will create the situation known in the insurance industry as the "death spiral", as only the sick will buy the insurance that must be available to everyone at a reasonable price.

Congress would have to revisit healthcare under that scenario.

[Appalled]

sbw:

I don't take willful misunderstanding of a position seriously, and feel no obligation to take it seriously. YMMV.

[boris]

"terribly corrosive for the Supreme Court to act ... political"

WTF? When individual liberty becomes a political issue the fucking court better damn well get "terribly corrosive" and "political".

[Janet]

Congratulations, Frau. How wonderful!

[centralcal]

Wow, Frau! Congratulations and a very happy anniversary to you!

[boris]

"... misunderstanding of a position ..."

The reading comprehension putdown fails.

[Extraneus]

Congratulations to Frau and Herr Gesetzfrage!

[Rick Ballard]

JiB,

I believe that Appalled has supplied the complete answer to your question with his observations regarding Scalia. Repeal cannot be left to the Nine Dwarfs who should be forced to spend two hours per day reviewing current photographs of the Kelo property.

The President's wholesale incompetence in all aspects of his lack of performance make it difficult to select one or even three or four items upon which to concentrate fire. The campaign against him is going to be more of a rolling barrage along a wide front than a series of Predator strikes on a few select targets.

It's a matter of reinforcement rather than instruction - the President has already convinced the Muddle that he's not the man for any serious job. The wholesale corruption permeating the administration is a nice addition to a rationale for not voting for Obama but I'm not sure it's even necessary.

[Clarice]

I think the trick, frau is to enjoy it while you got it. And Congratulations!

[Cecil Turner]

If Scalia votes the way I think he might, I believe a lot of posters will suffer from exploding minds.

I find this sort of thing tiresome. Scalia is in fact one of the justices most prone to brilliantly argued impracticality (e.g., his Hamdi concurrence/dissent), and I for one would not be very surprised by a holding for constitutionality. That wouldn't make the holding a better decision, however.

One would hope the rather ridiculous desire to count political coup would be overshadowed by concern over damage to governmental institutions. It's hard to imagine what limits actually exist on Congress if it's allowed to mandate individual purchases on whatever legislation du jour is on the table. And it's equally hard to imagine liberals would be happy with the expanded powers when the GOP takes over control of it (which will likely happen very soon). I guess I could be happy with that, but I think I'd prefer some rationality in what leeway we allow to the kleptocrats.

[Benjamin Franklin]

Intriguing. What are these structures in China?

http://www.wired.com/dangerroom/2011/11/china-gigantic/

[Ignatz]

--And it's equally hard to imagine liberals would be happy with the expanded powers when the GOP takes over control of it (which will likely happen very soon).--

Yeah, but they know the GOP would never do anything to force the left to repudiate their position, like, say, compelling every citizen to purchase at least one firearm for their home and one for their auto to protect themselves at all times (and to thwart the interference with interstate commerce that criminals inflict, of course) and to be in violation of the commerce clause if they don't have at least one concealed firearm on their person at all times.

[Benjamin Franklin]

"Scalia is in fact one of the justices most prone to brilliantly argued impracticality"

It's called 'salvaging one's legacy'. He, like others, have been back-peddling ever since Bush V. Gore. Brilliant, isn't the first word that comes to mind with this character.

[Frau Hochzeitstag]

Thanks, if my husband had been sentenced to a 55-year prison term, he would have been released long ago for good behavior and patience. He also talks me out of my political nightmares which now seem daily: If Kagan were a conservative, there would be riotous protesters waving torches and pitchforks in front of the SC. She is more dangerous imo than the hispanic weisenheimer.

[Porchlight]

Congratulations, Frau! That's wonderful.

Agree about Kagan and the wise Latina.

[Sara (Pal2Pal)]

Re: Kagan recusing.

Since there is a law saying she must recuse if she expressed an opinion on the merits or demonstrated impartiality, how can she avoid recusing after her email all excited about Obamacare passing surfaced.

According to 28 USC 455, a Supreme Court justice must recuse from “any proceeding in which his impartiality might reasonably be questioned.” The law also says a justice must recuse anytime he has “expressed an opinion concerning the merits of the particular case in controversy” while he “served in governmental employment.”

[OldTimer]

Well, upon news of the Supremes taking on Obamacare, my thought process cataputed way over to the last line of defense. What if the ruling gives Obamacare a pass and the public comes to realize that if the court can force this issue, they can force any issue. "Tyranny" will become the word most repeated in American households until the miscreants of the court system are brought to justice and the rule of law is restored. No one seems to be talking about resolving the steady erosion of our liberties perpetrated by the court, simply by utilizing the impeachment process provided for in our Constitution and undertaken by both houses of Congress. We would need a 2/3 vote in the Senate to impeach and a 2012 conservative landslide victory to succeed.

Maybe if the Kagan's and Sotomayor's of the ruling class understood the awakening of the American people to the remedial solution of impeachment trials, common sense would prevail.

[Benjamin Franklin]

Sara;

I truly agree with you on Kagan

[Appalled]

Kagan won't recuse if Thomas does not recuse. (You want Thomas to recuse, too, BF?)

[jimmyk]

The law also says a justice must recuse anytime he has “expressed an opinion concerning the merits of the particular case in controversy” while he “served in governmental employment.”

I suspect the "out" will be that she could have been excited about the law passing without implying any judgment about the "merits of the particular case." For example, some legislation might pass that would directly benefit me, and I could jump for joy about that, and it wouldn't necessarily have anything to do with my view about its constitutionality.

I'm not saying I would buy this excuse, but she will make it, because she is no doubt drooling for the opportunity to hear on this case. And there is equally no doubt in my mind that she already knows how she will vote.

[Old Lurker]

Old Timer, in the case that the court affirms this bad law, then that simply means all of the checks and balances, save one, have failed. S**t happens.

The one check remaining is the ability to elect a Congress that will repeal the law and a President who will sign the repeal into law. We can do that 12 months from now since the President, all of the Reps and 1/3 of the Senate are all up for grabs.

[Clarice]

I do not believe that (despite the language)28 USC 455 applies to SCOTUS. If one assumes it did, who would decide when recusal was warranted and enforce it?

[Extraneus]

What was wrong with Bush v. Gore? Is it some sort of lib article of faith that the SC shouldn't have taken the case, or that it was wrongly decided?

[Old Lurker]

" And there is equally no doubt in my mind that she already knows how she will vote."

And in fact Obama surely nailed that down before he appointed her, constitutional scholar that he is...

[Clarice]

From Wikipedia:

"One of the most notable disputes over recusal in U.S. Supreme Court history took place in 1946, when Justice Hugo Black participated in deciding the Jewell Ridge Coal case although a former law partner of Black's argued for the prevailing side. The losing party in the 5–4 decision sought reargument on the ground that Black should have been disqualified; Black declined to recuse himself and the decision stood, but Justice Robert H. Jackson wrote a short opinion suggesting that the decision that Black should sit in the case was Black's alone and the Court did not endorse it. The dispute aggravated infighting between Black and Jackson and it has been suggested that this was one of the reasons that when Chief Justice Harlan Fiske Stone died, President Harry S. Truman appointed Fred M. Vinson to succeed Stone rather than promote a sitting Associate Justice to the Chief Justice.

In 1973, then-Associate Justice Rehnquist wrote a lengthy in-chambers opinion declining to recuse himself in Laird v. Tatum, a case challenging the validity of certain arrests, even though Rehnquist had previously served as a White House lawyer who had opined that the arrest program was valid. In 2004, Justice Antonin Scalia declined to recuse himself in a case to which Vice President Dick Cheney was a party in his official capacity, despite the contention of several environmental groups that Scalia's participation created an appearance of impropriety in view of the fact that Scalia had recently participated in a widely publicized hunting trip with the Vice President. The same year, however, Scalia recused himself in Elk Grove Unified School District v. Newdow, a First Amendment case challenging inclusion of the words "under God" in the Pledge of Allegiance, after giving a public speech in which Scalia stated his view that Newdow's claims were meritless."

[peter]

I think the criticism of Gore v Bush was that it wasn't a matter of Federal Law. We should have just let Scofflaw steal the Presidential Election for the Dems.

[narciso]

From this excerpt, the Crampton Harris tie was more than an occasional thing, that would have prevented recusal:

http://books.google.com/books?id=gq-pOED4TSUC&pg=PT119&lpg=PT119&dq=jewell+ridge+coal;+harris,+crampton&source=bl&ots=8c9cw4tNaP&sig=NgY5O635HV8h-7wdbTq2c5cT37E&hl=en&ei=m5TBTvS_DvSr2AXdvMiMBQ&sa=X&oi=book_result&ct=result&resnum=4&ved=0CC4Q6AEwAzgK#v=onepage&q=jewell%20ridge%20coal%3B%20harris%2C%20crampton&f=false

[JM Hanes]

Supremes Bless Obamacare:

1) Nothing gave more life to the Tea Parties than Obamacare, and if it survives, the movement will be reenergized. If the decision comes late in the campaign, though, time for cranking up the volume may be uncomfortably short.

2) The general public's consistent resistance to Obamacare has not been based on constitutional objections. It's not going to get more popular, costs will keep rising with the spectre of worse to come closing in.

3) Democrats won't be able to use SCOTUS as a punching bag (which pretty much takes the Citizens United meme off the table too).

4) Mitt Romney's craven 10th Amendment argument against Obamacare will be toast. I can only hope he sees that coming and starts flip flopping soon enough, should he end up as our nominee.

Supremes Reject Obamacare:

1) Assuming it's a split decision, Obama will be running against SCOTUS, but also against the grain of anti-Obamacare public opinion.

2) The Democratic bureaucracy will be thrown into total disarray, and the public will not like, or be reassured by, the chaos which ensues.

3) Republicans will be step into the breach with fully formed healthcare plans of their own, while Democrats scramble to put Humpty Dumpty back together or design a whole new approach from scratch.

4) Will there be anything left that Obama won't be running against? Will an entirely negative campaign (with nothing to show for 4 years in office) inspire a down and out public who want hope and change more than ever?

5) If Romney is our nominee, Dems will have a hard time casting him as the usual Republican healthcare Darth Vadar; his craven 10th Amendment position will be vindicated; he'll be able to concentrate on promoting a brighter future.

6) No matter who wins the Election 2012, the trajectory of American governance will be fundamentally altered.

[Benjamin Franklin]

"Kagan won't recuse if Thomas does not recuse. (You want Thomas to recuse, too, BF?)"

Appalled;

It's a squidginz difference with Thomas. Although it could be argued his spouse is, in no way, the proxy for his activist leanings, the odor of bias still lingers. But, Kagan is a much easier call.

I am more interested in the politics of SCOTUS. The dynamics of Kagan's recusal would make it more evident, just what drives
the Supreme's lack of Constitutional objectivity.

[Ignatz]

--I can only hope he sees that coming and starts flip flopping soon enough, should he end up as our nominee.--

If there is one area of politics in which I am fully confident it is Mitt's ability to make like a salmon on hot sand in a timely manner.

[Clarice]

I'm taking heart in the SCOTUS decision to hear three cases which cover all the major issues. It suggests to me they recognize the momentous change this legislation entails and the need to leave nothing hanging in the air .

Is it constitutional?
Is it severable it not?
By whom and when can the legislation be challenged.

And hearing these altogether in an unprecedented 5 1/2 hour oral argument is a reflection to me that they understand the public antipathy to it and one way or the other these questions must all be resolved and soon.

[Clarice]

*Is it severable iF not*

[Ignatz]

Herman Cain is likeable but kind of hopeless, isn't he?

[Ignatz]

--And hearing these altogether in an unprecedented 5 1/2 hour oral argument...--

Does oral argument mean as little at SCOTUS as it does at the state appellate level, where it usually means almost nothing?

[OldTimer]

Of course you're right, OL. My point was that maybe if leftist federal judges began to realize the public's disdain for their anti-constitutional rulings and a growing desire for impeachment trials, maybe to save their prestigious jobs, these judges would actually begin to refer to the Constitution for their rulings (rather than imposing their political ideology by judicial fiat).

But then, that puts way too much hope in the liberal mind to act in constitutional righteousness. So....never mind.

[centralcal]

Twice I have posted an O/T about Michelle O - along with an excerpt and a link to HotAir and neither time has the comment posted.

She apparently handled out sterling silver brooches and cufflinks engraved with "made exclusively for Michelle Obama" on them.

Anyway, typepad doesn't like me today, and I am not liking M.O. spending taxpayer money on baubles touting herself - she isn't POTUS!

[maryrose]

Kagan should recuse because we already know her opinion of the law and how she would vote. She won't of course because her being nominated was contingent on her voting in favor of Obamacare. I still think this will be voted down. Requiring every citizen to buy something is an affront to our liberty and an assault on justice for all. These are the basic tenets of our constitution.

[centralcal]

Funny, my abbreviated comment posted just fine, but the other two that linked to HotAir did not. Can we not link to HA or something?

[Melinda Romanoff]

c-cal-

Do you mean this well thought out plan by the FLOTUS?

[maryrose]

centracal: Handing out baubles promoting yourself is the true sign ofa narcicist. I am convinced that Moochelle is jealous of all the attention Barack gets which is why she dresses so outlandishly. Everything she does lacks dignity and grace. Didn't her mother teach her proper manners while she was growing up?When I compare her to Laura Bush she certainly lacks that inner sense of peace and confidence. She's more of a "look at me and what I'm doing" kind of person. She seems to like to boss people around,Obama especially. When he is cashiered in 12 I bet he gives her the boot.

[Benjamin Franklin]

" Republicans will be step into the breach with fully formed healthcare plans of their own,"

See? This is the problem I have with your pov, jmh. You are stuck in that Disney fantasy that pits absolute good against penultimate evil.

You, IMO, are smarter than that. But, then, you won't see this anyway,right?

[JM Hanes]

Appalled:

"I vote for Scalia writing the majority opinion upholding the statute, and blowing the minds of Conservatives all over the nation."

LOL! I thought that was pretty funny. Lighten up folks!

"....in his concurrence, he used language similar to that cited in several cases upholding Obamacare."

Could you be a little more specific? I recall thinking that his concurrence in the marajuana case actually seemed more anomalous than consistent with his larger opus, although I do think he has departed from conservative political orthodoxy more often than folks seem to credit him with doing.

I'll proffer a stretch on the flip side of the coin. I'm not so sure I'd count Justice Breyer out as a possible swing vote. It's notoriously difficult to extrapolate from oral arguments to rulings, but as I mentioned in an earlier thread, I was encouraged by Breyer's concern over the government's defense of warrantless GPS tracking:

If you win this case, then there is nothing to prevent the police or the government from monitoring 24 hours a day the public movement of every citizen of the United States,” Breyer said. “So if you win, you suddenly produce what sounds like 1984 from their brief."

It's not especially surprising that a liberal Justice might be inclined to restrict the government's policing powers, but it made me wonder if Justice Breyer might be susceptible to the expansion of powers and intrusion argument against Obamacare -- especially if the IRS is charged with "tracking" incomes and insurance coverage? The fact that it will take a couple hundred thousand new IRS employees to do it speaks volumes about what a departure from past practice it represents.

[maryrose]

JMH:
When I heard that Breyer statement I immediately thought how that line of reasoning would affect a ruling on Obamacare. I think the vote ultimately will surprise us.
As to Bush vs. Gore- the Supreme Court had to step in. They were using different standards in every district to count votes. It was chaotic and ludicrous. The Florida Supreme Court totally bungled the ruling and their decision had to be appealed. Sour grapes reaction to settled law. Kelo on the other hand was decided incorrectly.

[centralcal]

Yep, that is the link, Mel. Twice I posted it and twice it disappeared into the ether!

maryrose: It doesn't matter what her mother did or did not teach her - she is damned near 50 years old and she should have picked up all sorts of clues about proper, ladylike behavior. She is ugly within, ugly without. We have seen more of her bare skin above and below than any other FLOTUS, and even when her body is "covered" it is done so poorly - showing navel indentations, ripples in her butt, impressions of thong underwear, etc.

[Extraneus]

Cain has a brain-lock, too.

So Cain is fading, fair or not; the MSM, taking direction from the Administration, is obviously trying to get Mitt the nomination, and now Drudge says that Newt is leading? Ay yi yi, as daddy would say.

Can Sarah Palin still get in on this? How about Daniels or Pawlenty? Jindal?

I'm still pulling for Perry, btw, but I can't justify sending him money at this point.

In this most golden opportunity since 1980, can we really not find a candidate who can kick Obama's ass from sea to shining sea?

I don't know about doom, but it's dispiriting.

[Janet]

Here is an old ad for Obama for the Illinois Senate. Really interesting. He sure doesn't use Hussein in the ad!

[maryrose]

EXT:
Don't be discouraged. Obama will be a one term president. No one wants the next four years to be a repeat of his first term.
I concur with CaptH. Obama will not win Ohio. Now Colorado is another story. However change is needed . Everyone is tired of the shuck and jive show. As they used to say in vaudeville-time to get the hook.

[JM Hanes]

There's at least one silver lining here, no matter which way the decision goes. Short of being carried off to the emergency room, I'd say there's no way Ruth Bader Ginsberg retires with one of the biggest cases in her career on the table. So, I don't see any more SCOTUS appointments in Obama's future, unless he can scrape up a second term.

[maryrose]

Janet:
Remember during the campaign when we dare not speak the name Hussein. He was like Voldemort-or he who can"t be named.

[maryrose]

JMH:
Agreed!

[Old Lurker]

Maryrose, if he is reelected, the next four years will be much worse than the last four.

[Sara (Pal2Pal)]

Speaking of health care. Just got off phone with my daughter, who started the conversation, "Mom, I need to vent." Uh oh.

She moved a few months ago and was looking for a new doctor in the new area for herself and her college age daughter because they were both due for their depo provera birth control shots. She paid just over $15 at the existing doctor, new doctor's office quoted over $75 for the same service per person. They cited Aetna not paying for these shots and gave her a number to call Aetna. Well, in calling Aetna, she was connected to Habib in Pakistan. Turns out, he turned the claim down, thinking the birth control shot was a cosmetic thing like Botox.

Outsourcing to Pakistan? What is with that?

[Benjamin Franklin]

Water is the new OIL. What better place to begin the new shortage of non-renewable sources than Texas?

http://www.nytimes.com/2011/11/13/us/a-small-town-almost-waterless-takes-a-big-gamble.html?_r=3&hp

— On her way to work recently, Jackie Levingston, the volunteer mayor of this ranching town east of Waco, stopped at an office in City Hall to pay her water bill. “Before there’s no water left to buy,” she said, making a sad joke.

Allison V. Smith for The Texas Tribune

The Groesbeck water tower, far left, built in 2010.
Groesbeck, which has received no measurable rainfall since April, ranks near the top of the state’s list of communities in danger of running out of water. The most intense drought in Texas history has caused the water against the dam dividing the Navasota River, Groesbeck’s sole source of water, to fall 44 inches below its normal level.

Local leaders are attempting a quick fix, lest the town, whose population is 4,328, run out of water by Thanksgiving, something Ms. Levingston recently warned was possible. The local paper, The Groesbeck Journal, ends virtually every water-related article with the admonition “Continue to pray for rain!”