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The Power of the SCOTUS II: "Release the Kagan!"

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Re: The Power of the SCOTUS II: "Release the Kagan!"

bronconick said:
Is the entire act tied together? As in if one part gets struck down, does the whole thing fail? The thing that is being argued is the individual mandate. If that solely gets ruled unconstitutional and the rest stands, what happens is for-profit insurance in this country ceases to exist.
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I thought I heard the Obama administration went all or nothing for the defense. Whether or not the Supremes can sever it anyway I don't know.
 
Re: The Power of the SCOTUS II: "Release the Kagan!"

bronconick said:
Is the entire act tied together? As in if one part gets struck down, does the whole thing fail? The thing that is being argued is the individual mandate. If that solely gets ruled unconstitutional and the rest stands, what happens is for-profit insurance in this country ceases to exist.
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A severability clause (meaning the mandate is able to be separated from the rest of the law) was not included in the bill. Still, the government can - and will - argue that the mandate is severable.

In the past Roberts has bought that argument. We'll see.
 
Re: The Power of the SCOTUS II: "Release the Kagan!"

Craig P. said:
Social Security is a completely different implementation, and it's financed using an income tax, something that is explicitly permitted by the Constitution.
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Not to mention that there are instances where one is not paying Social Security taxes, when they aren't working, for example. The insurance mandate is different, just like it's different from mandatory automobile insurance and the like, because it comes effects nearly anyone who is alive, without taking another step, such as working a job, owning a car, etc.
 
Re: The Power of the SCOTUS II: "Release the Kagan!"

When this gets struck down we'll all be one step closer to bankruptcy.
 
Re: The Power of the SCOTUS II: "Release the Kagan!"

WeWantMore said:
Not to mention that there are instances where one is not paying Social Security taxes, when they aren't working, for example. The insurance mandate is different, just like it's different from mandatory automobile insurance and the like, because it comes effects nearly anyone who is alive, without taking another step, such as working a job, owning a car, etc.
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So a single-payer system funded by taxes would NOT be the government overstepping its bounds, but mandating private insurance and subsidizing it for poor people is?

I think both righties and lefties would agree that this is pretty tortured logic - the single-payer system would represent a much larger increase in government scope.
 
Re: The Power of the SCOTUS II: "Release the Kagan!"

LynahFan said:
So a single-payer system funded by taxes would NOT be the government overstepping its bounds, but mandating private insurance and subsidizing it for poor people is?

I think both righties and lefties would agree that this is pretty tortured logic - the single-payer system would represent a much larger increase in government scope.
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I would say yes and yes to both of your points. But you know, ifs and buts, candy and nuts, etc. This is what they decided to do, its constitutionality is murky, here we are.
 
Re: The Power of the SCOTUS II: "Release the Kagan!"

LynahFan said:
So a single-payer system funded by taxes would NOT be the government overstepping its bounds, but mandating private insurance and subsidizing it for poor people is?

I think both righties and lefties would agree that this is pretty tortured logic - the single-payer system would represent a much larger increase in government scope.
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Either way, you are forcing people to buy something. That is the problem. That is the overstep of Congress. This was proven during FDR's reign, and I seriously mean reign, that fascist dictator.
 
Re: The Power of the SCOTUS II: "Release the Kagan!"

FlagDUDE08 said:
The case has begun: http://www.reuters.com/article/2012/03/27/us-usa-healthcare-court-idUSBRE82L1CJ20120327

We'll probably see a few more cites of how FDR tried to do the same thing in his New Deal.
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The National Recovery Act struck down by SCOTUS back in 1935. Some of the findings seem apt:

To summarize and conclude upon this point: Section 3 of the Recovery Act (15 USCA 703) is without precedent. It supplies no standards for any trade, industry, or activity. It does not undertake to prescribe rules of conduct to be applied to particular states of fact determined by appropriate administrative procedure. Instead of prescribing rules of conduct, it authorizes the making of codes to prescribe them. For that legislative undertaking, section 3 sets up no standards, aside from the statement of the general aims of rehabilitation, correction, and expansion described in section 1. In view of the scope of that broad declaration and of the nature of the few restrictions that are imposed, the discretion of the President in approving or prescribing codes, and thus enacting laws for the government of trade and industry throughout the country, is virtually unfettered. We think that the code-making authority thus conferred is an unconstitutional delegation of legislative power.
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Finally, in a very restrictive reading of what constituted interstate commerce,[45] Hughes held that the "'current' or 'flow'" of commerce involved was simply too minute to constitute interstate commerce, and subsequently Congress had no power under the Commerce Clause to enact legislation affecting such commercial transactions.[46] The Court dismissed with a bare paragraph the government's ability to regulate wages and hours.[47] Although the government had argued that the national economic emergency required special consideration, Hughes disagreed. The dire economic circumstances the country faced did not justify the overbroad delegation or overreach of the Act, the majority concluded. "Extraordinary conditions may call for extraordinary remedies. But the argument necessarily stops short of an attempt to justify action which lies outside the sphere of constitutional authority. Extraordinary conditions do not create or enlarge constitutional power."[48]
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Thanks to Wiki

Can a case be made that the NIRA and Obamacare are an overreach of the Congress and/or the Executive Branch??
 
Re: The Power of the SCOTUS II: "Release the Kagan!"

WeWantMore said:
Not to mention that there are instances where one is not paying Social Security taxes, when they aren't working, for example. The insurance mandate is different, just like it's different from mandatory automobile insurance and the like, because it comes effects nearly anyone who is alive, without taking another step, such as working a job, owning a car, etc.
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Also, while this is an incredible oversimplification, I read somewhere that if you want to regulate people, you can do it at the state level (if the state constitution allows), while at the Federal level you can only regulate things.

The Bill of Rights prescribes specific areas where the Federal government is not allowed to restrict individuals' actions in a variety of important areas.
 
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Re: The Power of the SCOTUS II: "Release the Kagan!"

I thought part of the Unitary Executive Theory was that the Executive could do whatever he wanted? So Roberts, Scalia and Thomas should be on board with this.
 
Re: The Power of the SCOTUS II: "Release the Kagan!"

LynahFan said:
So a single-payer system funded by taxes would NOT be the government overstepping its bounds, but mandating private insurance and subsidizing it for poor people is?
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hmm....sort of describes Medicare, except that the government-paid part of the benefit is not unlimited, so that people can supplement the government-paid coverage with private policies.
 
Re: The Power of the SCOTUS II: "Release the Kagan!"

Priceless said:
I thought part of the Unitary Executive Theory was that the Executive could do whatever he wanted? So Roberts, Scalia and Thomas should be on board with this.
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I would hate to use this argument, but "It Depends". :)

Say if there is a mass epidemic and the Executive Branch bans interstate travel (clearly against the law) to cut down the spread of the disease. Would this illegal action be legal in this circumstance?
 
Re: The Power of the SCOTUS II: "Release the Kagan!"

LynahFan said:
So a single-payer system funded by taxes would NOT be the government overstepping its bounds, but mandating private insurance and subsidizing it for poor people is?
Click to expand...

If it had been funded by income taxes, the funding vehicle would have been Constitutional.

If it had been a single-payer system, then the General Welfare clause at least can be argued to cover it, though I don't know how the Supreme Court typically views it, but that didn't have a prayer of making it through the legislature. That's different from mandating individuals to do something. The fact that it would be an affirmative benefit (we shall provide this) rather than an individual mandate (you shall do this) certainly does put a different slant on things.

I think it's fair to argue about whether mandating that individuals have insurance passes muster under the Commerce clause. Personally, I think that the way the individual mandate bits were designed were all intended to deal with the impossibility of an effective per-head tax due to Article I Section 9 (the important bit reading, "No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken").
 
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Re: The Power of the SCOTUS II: "Release the Kagan!"

How bad is the government's argument when the liberal justices interrupt him and feed him leading questions and do a better job of defending his positions than he did himself? It came across as a bit unseemly, no? I mean, I'd hope they'd be a little more subtle.

Funny line about everyone will die someday, does that mean that the federal government has the right to compel everyone to buy burial insurance? quick-witted answer, too, at first glance, except upon inspection it laid bare the tautology of the argument.
 
Re: The Power of the SCOTUS II: "Release the Kagan!"

FreshFish said:
How bad is the government's argument when the liberal justices interrupt him and feed him leading questions and do a better job of defending his positions than he did himself? It came across as a bit unseemly, no? I mean, I'd hope they'd be a little more subtle.
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I don't know, it was funny, but I don't know about unseemly. It's kind of what they're supposed to do.
 
Re: The Power of the SCOTUS II: "Release the Kagan!"

We're all going bankrupt. I hope everyone is happy. Now we can't collect any money from the deadbeats. They can all just gamble, go to the emergency room, and suck the coffers dry.
 
Re: The Power of the SCOTUS II: "Release the Kagan!"

joecct said:
I would hate to use this argument, but "It Depends". :)

Say if there is a mass epidemic and the Executive Branch bans interstate travel (clearly against the law) to cut down the spread of the disease. Would this illegal action be legal in this circumstance?
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Jack Ryan would tell you that the Constitution is not a suicide pact.
 
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