Striking Down PPACA in Its Entirety...

Ann H

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One paragraph from an article today in Politico explains well why many feel the Justices will strike down the entire PPACA law if they strike the mandate or any major portion:
5) Cruel and unusual punishment
Scalia told the government lawyer, Deputy Solicitor General Edwin Kneedler, that going through the text of the whole law would run counter to the Eighth Amendment — the one forbidding cruel and unusual punishment.

JUSTICE SCALIA: "And do you really expect the Court to do that? Or do you expect us to — to give this function to our law clerks? Is this not totally unrealistic? That we are going to go through this enormous bill item by item and decide each one?"

Justice Stephen Breyer, in an exchange with Clement, seemed equally appalled at the prospect.

JUSTICE BREYER: "When I look through the rest of it, I have all kinds of stuff in there. And I haven't read every word of that, I promise. As you pointed out, there is biosimilarity, there is breast feeding, there is promoting nurses and doctors to serve underserved areas, there is the CLASS Act, et cetera.

"What do you suggest we do? I mean, should we appoint a special master with an instruction? Should we go back to the district court? You haven't argued most of these…So what do you propose that we do other than spend a year reading all this and have you argument all this?

...Ginsburg also argued that it wasn't the Court's job to pick and choose- it was Congress's. JUSTICE GINSBURG: "And what we're really talking about is who is the proper party to take out what isn't infected by the Court's holding — with all these provisions where there may be no standing, one institution clearly does have standing, and that's Congress. And if Congress doesn't want the provisions that are not infected to stand, Congress can take care of it."
By the way, the entire article is exceptional. You can read it here:Supreme Court health care: Seven key moments from SCOTUS, Day 3 - POLITICO.com
 
Re: Strking Down PPACA in Its Entirety...

The severability clause was not included in the law.

The justices have no desire to go through the entire law, line by line, and decide which parts are constitutional, which aren't.

FWIW, I think there is a very good chance they throw it all out and tell Congress to start all over.

It probably has nothing to do with Obummer criticizing the Court during the SOTU last year.
 
Re: Strking Down PPACA in Its Entirety...

The severability clause was not included in the law.

The justices have no desire to go through the entire law, line by line, and decide which parts are constitutional, which aren't.

FWIW, I think there is a very good chance they throw it all out and tell Congress to start all over.

It probably has nothing to do with Obummer criticizing the Court during the SOTU last year.

Probably doesn't but I'm sure some of them are happy they get to shove this back up his ass while doing thier jobs at the same time.
 
Re: Strking Down PPACA in Its Entirety...

One paragraph from an article today in Politico explains well why many feel the Justices will strike down the entire PPACA law if they strike the mandate or any major portion:
5) Cruel and unusual punishment
Scalia told the government lawyer, Deputy Solicitor General Edwin Kneedler, that going through the text of the whole law would run counter to the Eighth Amendment — the one forbidding cruel and unusual punishment.

JUSTICE SCALIA: "And do you really expect the Court to do that? Or do you expect us to — to give this function to our law clerks? Is this not totally unrealistic? That we are going to go through this enormous bill item by item and decide each one?"

Justice Stephen Breyer, in an exchange with Clement, seemed equally appalled at the prospect.

JUSTICE BREYER: "When I look through the rest of it, I have all kinds of stuff in there. And I haven't read every word of that, I promise. As you pointed out, there is biosimilarity, there is breast feeding, there is promoting nurses and doctors to serve underserved areas, there is the CLASS Act, et cetera.

"What do you suggest we do? I mean, should we appoint a special master with an instruction? Should we go back to the district court? You haven't argued most of these…So what do you propose that we do other than spend a year reading all this and have you argument all this?

...Ginsburg also argued that it wasn't the Court's job to pick and choose- it was Congress's. JUSTICE GINSBURG: "And what we're really talking about is who is the proper party to take out what isn't infected by the Court's holding — with all these provisions where there may be no standing, one institution clearly does have standing, and that's Congress. And if Congress doesn't want the provisions that are not infected to stand, Congress can take care of it."
By the way, the entire article is exceptional. You can read it here:Supreme Court health care: Seven key moments from SCOTUS, Day 3 - POLITICO.com

This law is the biggest monstrosity ever placed upon the American people. It is tyranny in its purest form.
 
Re: Strking Down PPACA in Its Entirety...

I think it is almost certain the we will not see judiciary activism if the mandate is deemed unconditional.
 
Re: Strking Down PPACA in Its Entirety...

The justices have no desire to go through the entire law, line by line, and decide which parts are constitutional, which aren't.

.

In regard to severability, it is more than just whether they are constitutional. The judges are being asked to decide whether congress would have still approved certain pieces even if they knew the mandate was not going to be there. As you said, the fact that they deliberately left the severability clause out means that they were approving it as an "all-or-not" beast.

For example, the court is not being asked to decide whether guranteed-issue is constititional but if the court shoots down the mandate they are asking the court to decide whether the revenue from the mandate was a prerequisite to enacting guaranteed issue. And then there are a hundred issues like that right behind it. Screw that. Congress didnt even put any thought into most of those issues and no one read the bill anyway. How the hell can the court be expected to figure it out.

Even the libs on the court are saying, "why would it not just make more sense to let congress look at it and decide what it still wants?"

Makes sense right? He, he. The little problem with that is that a dem congress enacted it and it is now on the verge of being handed back to a republican congress and it is not the job of the court to worry about that. Congress is Congress.

Quick question for Obama: Having fun yet?
 
As I recall severability was in the House version but (for whatever reason) not the Senate bill.

I find it interesting how many folks, inside the beltway and in the lame stream media were saying there was no way the challenge would make it to SCOTUS, or if it did, would be dismissed with a waive of the hand.

I think a lot of folks have been caught off guard by some of the comments and questions from the bench. Not just the conservatives, but even Sotomayor jumped in the fray.

Of course it isn't over until the fat lady sings, but my money says the mandate is dead in the water and close to 50 - 50 the entire thing is sunk.

Either way, it will give the pubs something to talk about in the fall. Then it will be up to them to come up with a replacement.
 
This could also stir the public about why they don't like the mandate nor the way the law was passed. Even if SCOTUS doesn't strike it, the "repeal and replace" movement caught some steam.
 
As I recall severability was in the House version but (for whatever reason) not the Senate bill.

.

Not a major point but I think it was not included in either the house or the senate version. It was left to be added in the final language that was to be the outcome of the conference committee between the house and the senate on the two bills. Except that conference committee never happened because Dufus and Company decided to run it through the reconciliation process, which is just a means of adjusting budget line items- and was bastardized. Haste makes waste, eh?

I now place the odds of the mandate going down at about 75% and the odds of most of the rest of the bill being sent back to Congress at about 75% . Maybe if there is clear standout section in the bill that does not require the court to do any work to determine that it has nothing to do with the mandate, they might let that stand but they are not going to read that whole bill and think the entire thing through.

Some might argue that I reached the 75% numbers based on the fact that I am anti-Obamare and so am already prewired to say that. Not so. I said up until the court hearing that I simply didnt know and that odds were about 50% but that I would have to hear the hearings to see where Kennedy seemed to stand. I did that. Now I have moved that number from 50% to 75%.

Next in regard to severability I have moved that number from 50% to 75% (for the bulk of the rest of the bill, maybe a couple exceptions if they easily stand out) because I dont think the issue divides along lib/conservative court lines. Even the libs were struggling to think through whether they might be helping or hurting Obama by taking the heart of the bill out and letting the rest of it stand and that maybe Congress should just get it handed back and re-enact what they still want. Scalia is a non-starter. He already said that he wont do it. And Ginzberg was so overdosed on the kool-aid you can't tell what she will do. She wants to do the lib thing but it isnt clear what the lib thing to do here is (just talking the severability issue- she made up her mind on the mandate long ago). That must be disorienting for her.

I dont doubt they will give Obama something just to be politically correct. I just dont think it will be anything important as far as health reform goes. Probably a section on mine safety regulations in Kentucky and a few things like that. I dont know. They dont know either. Today is the first day they meet in conference. And most of them have probably charged their clerks with reading the whole frigging bill and seeing what looks standalone in there. If they see some easy pickings, the libs will preserve those. If everyone starts getting a headache right off, I think they will just trash the whole thing. They actually do have other cases to work on even though this is the major case. And they scheduled lots and lots of time for it but I dont think they planned to spend the entire spring sorting through Obamacare after they have done their thing and addressed the constitutional issues presented to the court.

What a mess.
 
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Maybe if there is clear standout section in the bill that does not require the court to do any work to determine that it has nothing to do with the mandate, they might let that stand but they are not going to read that whole bill and think the entire thing through.

Can't blame them.

If they strike the mandate but opt to leave the rest isn't there a chance some other portion of the law will come back before the court again? They certainly don't want to spend any more time on this in the future.

Ginzberg was so overdosed on the kool-aid you can't tell what she will do. She wants to do the lib thing but it isnt clear what the lib thing to do here is (just talking the severability issue- she made up her mind on the mandate long ago). That must be disorienting for her.

The little bit I saw of her seemed to indicate she was not quite "with it". Maybe it was just me, but she seemed to have difficulty following some of the arguments.

Our local AG was interviewed the other day and he said this was a seminal moment for jurisprudence and this case, regardless of outcome, will be discussed in law school for quite some time.
 
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