SCOTUS Day 3 on the Affordable Care Act – Part 2
March 28, 2012
Posted by AzBlueMeanie:
The last of the arguments before the U.S. Supreme Court on the Affordable Care Act dealt with the expansion of medicaid coverage, and what the challengers to the law call the "coercion" theory — the federal government withholding federal Medicaid funds to states that refuse to participate in the ACA. At its heart, this is a "states' rights" theory of sovereignty.
Lyle Denniston at SCOTUSblog.com summarizes the arguments. Argument recap: Will Medicaid be sacrificed?:
Unless a closing oration by a top government lawyer stirs some real sympathy for the poor, the new health care law’s broad expansion of the Medicaid program that serves the needy may be sacrificed to a historic expression of judicial sympathy for states’ rights. It probably would require the Court to be really bold, to strike down a program passed by Congress under its spending power, and to do so for the first time in 76 years, but the temptation was very much in evidence in the final round of the Court’s hearings this week on the Affordable Care Act. If that happens, it probably would be done by a 5-4 vote.
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The Justices were actively engaged in what was the Court’s first full exploration in history of the theory — never put into actual practice — that the conditions that Congress attaches to money it hands out to the states can be so onerous that they deprive the states of their sovereign independence, coercing them into compliance with federal controls. Chief Justice John G. Roberts, Jr., allowed the argument to run 25 minutes beyond the scheduled hour. The end result was what appeared to be a very sharp division within the Court, straight along ideological lines, with the skeptics about this “coercion theory” quite conspicuously in the minority.
The law of unintended consequences should the Supreme Court strike down the ACA
March 28, 2012
Posted by AzBlueMeanie:
Ed Kilgore at the Politcal Animal blog has an excellent post on the law of unintended consequences should the U.S. Supreme Court strike down the Affordable Care Act on Commerce Clause grounds. American law is built upon judicial precedents, and to strike down the ACA on Commerce Clause grounds would undermine more than 70 years of Commerce Clause judicial precedents, and many legislative acts.
I would caution Mr. Kilgore that this is not a bug but a feature: Tea-Publicans want to repeal the 20th Century. Many of them long to go back to principles in the Articles of Confederation that would replace more than 200 years of Constitutional law principles. They are radicals, not conservatives ("tending or disposed to maintain existing views, conditions, or institutions" – Merriam-Webster Dictionary).
Ed Kilgore writes Commerce Clause Counter-Revolution:
If the individual health insurance purchasing mandate is declared unconstitutional, many conservatives will undoubtedly hail the decision as a heroic act that takes the nation back from the brink of a yawning abyss of federal tyranny, a nation where proud Americans are forced to eat broccoli.
[But] there’s another “floodgates” proposition that needs to be discussed: the possibility that unraveling ObamaCare could unravel decades of Supreme Court Commerce Clause decisions that undergird much of the contemporary landscape of domestic policy and civil rights protections.
NRA spending puts Arizona in fifth place
March 28, 2012
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by David Safier It's a distinction, I guess. Arizona is one of the top 5 states in the amount of spending by the NRA. This includes money spent on political contributions, independent expenditures, electioneering communications and state ballot initiatives. Here are the top 5 (drum roll, please): Virginia: $979,354 Florida: $729,863 Texas: $624,021 Wisconsin: $161,291 … Read more
UPDATE: Arizona Senate votes down contraception bill
March 28, 2012
Posted by AzBlueMeanie: A brief moment of sanity in Arizona? Could it possibly be true? The Arizona Senate today voted down the "Baby Blunt" bill to allow any employer to object to insurance coverage for contraception on religious or moral grounds. Arizona Senate votes down controversial contraception bill: The Arizona Senate on Wednesday voted down … Read more
SCOTUS Day 3 on the Affordable Care Act – Part 1
March 28, 2012
Posted by AzBlueMeanie:
Wednesday morning's argument was on the issue of "severability." For some unexplained reason, Congress did not include a common "severability" clause in the Affordable Care Act. Opponents of the Act seized upon this and tried to argue in the lower courts that this means "all or nothing": if any one part of the Act is struck down, the whole Act must fail. The Courts of Appeals divided on this issue.
It would appear from this morning's Q&A from the Justices that they are not buying the "all or nothing" approach. Court's have frequently implied severability into statutes. The Court also demonstrated no stomach for going through the ACA line by line to determine what provisions would remain should they strike down other provisions, reasonably suggesting that this is best left to the legislative function of Congress.
Lyle Denniston at SCOTUSblog.com has the severability argument summary. Argument recap: A lift for the mandate?:
The Supreme Court spent 91 minutes Wednesday operating on the assumption that it would strike down the key feature of the new health care law, but may have convinced itself in the end not to do that because of just how hard it would be to decide what to do after that. A common reaction, across the bench, was that the Justices themselves did not want the onerous task of going through the remainder of the entire 2,700 pages of the law and deciding what to keep and what to throw out, and most seemed to think that should be left to Congress. They could not come together, however, on just what task they would send across the street for the lawmakers to perform. The net effect may well have shored up support for the individual insurance mandate itself. (emphasis added)
The dilemma could be captured perfectly in two separate comments by Justice Antonin Scalia — first, that it “just couldn’t be right” that all of the myriad provisions of the law unrelated to the mandate had to fall with it, but, later, that if the Court were to strike out the mandate, “then the statute’s gone.” Much of the lively argument focused on just what role the Court would more properly perform in trying to sort out the consequences of nullifying the requirement that virtually every American have health insurance by the year 2014.
Dr. Word asks Romney: When you reach a crossroads, do you turn around?
March 28, 2012
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by David Safier Dr. Word received one of his regular snail mail pitches from Republicans, this time from Mitt Romney. Being a student of metaphor, he is puzzled by the Mitt's metaphorical mixed message. (Please feel free to criticize the Dr.'s overuse of alliteration. He acknowledges he has a problem.) Romney began with: Our country … Read more
Dissecting Tom Friedman
March 28, 2012
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Posted by Bob Lord
One of the jobs I’d love to have is Tom Friedman’s. His job duties are to (a) learn as much as he can about interesting things, (b) travel the world to achieve that end, and (c) write about the stuff he learns. And he gets to squeeze in a few rounds of golf in the process. Not a bad gig. It would be hard to say he doesn’t deserve his position. His thirst for knowledge is incredible, as are his skills at communicating what he learns.
But I have a problem with his conclusion in today’s column, which can be found here, http://www.nytimes.com/2012/03/28/opinion/friedman-elephants-down-under.html?_r=1&ref=opinion, and what I believe is a glaring flaw in his logic.
Don Bivens withdraws from U.S. Senate race
March 28, 2012
Posted by AzBlueMeanie: An announcement from the Don Bivens for U.S. Senate campaign: My family and I entered this U.S. Senate race to help rebuild America's middle class and to restore the American dream for working families. With support from you and from thousands of good people we have carried our positive message across the state, and we have shared our brighter vision … Read more
