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Obamacare Has Arrived in the Supreme Court
The Foundry: Conservative Policy News Blog from The Heritage Foundation ^ | September 28, 2011 at 11:00 am | Hans von Spakovsky

Posted on 09/28/2011 12:24:42 PM PDT by Hunton Peck

The National Federation of Independent Business (NFIB) stole a march on the Obama Administration this morning by filing a petition with the U.S. Supreme Court appealing the 11th Circuit’s Obamacare decision.

The Department of Justice (DOJ) had announced on Monday that it was not going to ask all 11 judges of the 11th Circuit Court of Appeals to review en banc the August 12 decision of a three-judge panel of the 11th Circuit that found the individual mandate unconstitutional. This opened up a path to an appeal by DOJ to the Supremes.

However, with this petition, the NFIB jumped ahead of Eric Holder’s slow-moving DOJ (which until Monday had done everything it could to slow-walk this case filed by 26 states and the NFIB). The NFIB is obviously not appealing the three-judge panel’s opinion about the unconstitutionality of the individual mandate. But the NFIB is appealing the portion of the panel’s decision that held that the unconstitutional individual mandate could be severed from the Obamacare legislation.

The NFIB is asking the Court to overrule this holding, since “Congress itself deemed [the mandate] ‘essential’ to the Act’s new insurance regulations.” Given that the 11th and 6th Circuits have issued “directly conflicting final judgments about the facial constitutionality of [Obamacare’s] mandate,” the case is one that the Court should obviously take up given its interest in eliminating conflicting opinions in the courts of appeal.

What also differentiates this particular case from the many other lawsuits that have been filed against Obamacare is the “all star” lineup of Supreme Court litigators that the NFIB and the 26 states have lined up to argue their case before the Supreme Court. It includes Michael Carvin, a former DOJ official who has argued (and won) numerous cases before the Court; Gregory Katsas, a former DOJ official who was a clerk to Justice Clarence Thomas; Kevin Marshal, another former DOJ official and Thomas clerk; Hashim Mooppan, a former Justice Antonin Scalia clerk; and Randy Barnett, a nationally recognized constitutional scholar and professor at Georgetown.

The lawyers for the states include Paul Clement, former Bush Administration Solicitor General; Lee Casey, another former DOJ official who clerked for Alex Kozinski, who is now the Chief Judge of the Ninth Circuit; and David Rivkin, another Supreme Court litigator with wide experience in the government, including in the White House and the DOJ.

The government lawyers in the DOJ’s Office of the Solicitor General who will be arguing the constitutionality of Obamacare will have their work cut out for them.


TOPICS: Breaking News; Business/Economy; Constitution/Conservatism; Government; News/Current Events
KEYWORDS: 0bamacair; 0bamacare; 0bamaqueer; 11thcircuit; johnmccain; mccain2012; mccainforpresident; obamacare; socializedmedicine; voteformccain
Good move to speed up Holder's slow-roll strategy.
1 posted on 09/28/2011 12:24:45 PM PDT by Hunton Peck
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To: Hunton Peck

Oh goody, now Anthony Kennedy can show us his true colors that much faster.


2 posted on 09/28/2011 12:32:28 PM PDT by FlipWilson
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To: Hunton Peck

What was the reason the DOJ didn’t appeal to the entire circuit? I haven’t read an explanation. I am assuming that they thought that the circuit would rule against them and maybe even void the entire law, and that they didn’t want that to be what they had to appeal from.


3 posted on 09/28/2011 12:34:20 PM PDT by Defiant (Calling all citizens from all over the world, this is Captain America calling.)
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To: Defiant

Those were Rush’s thoughts.


4 posted on 09/28/2011 12:37:32 PM PDT by mtnwmn (Liberalism leads to Socialism)
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To: Hunton Peck

The first people to read the bill?


5 posted on 09/28/2011 12:51:33 PM PDT by Libloather (The epitome of civility.)
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To: Libloather

Let’s hope for payback for insulting the Supermes at the State of the Union... B*t*Y Slap him a good one!


6 posted on 09/28/2011 1:10:39 PM PDT by celtic gal
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To: celtic gal

What you are inferring is that our country is ruled purely by emotions and not by constitutional jurisprudence.

Sadly enough, you’re probably right.


7 posted on 09/28/2011 1:18:02 PM PDT by 353FMG (Liberalism is Satan's handiwork.)
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To: onyx; RedMDer; Lady Jag; The Cajun; tubebender; musicman; trisham; DJ MacWoW; vox_freedom; ...

.. Ping!

Mods, should this go in Breaking?


8 posted on 09/28/2011 1:28:11 PM PDT by STARWISE (The overlords are in place .. we are a nation under siege .. pray, go Galt & hunker down)
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To: Hunton Peck

Time for Sotomayor to recuse herself!!!!!


9 posted on 09/28/2011 1:30:16 PM PDT by vigilence
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To: Hunton Peck

Just a quick FYI, the cost to appeal ANYTHING to the SCOTUS is going to be north of $50,000.

Whether they take it or not.


10 posted on 09/28/2011 1:35:33 PM PDT by proudpapa (Palin-West - 2012)
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To: onyx; RedMDer; Lady Jag; The Cajun; tubebender; musicman; trisham; DJ MacWoW; vox_freedom; ...

**Politico - updated 9/28/11 4:23pm

Breaking News: Justice Department to ask Supreme Court to uphold individual mandate in health reform law

Justice Department to ask for Supreme Court review of health care law

Excerpt:

The Justice Department plans to file a petition later Wednesday asking the court to review its recent defeat in the 11th Circuit Court of Appeals in the case brought by 26 states and the National Federation of Independent Business, a department spokesperson said. The court ruled that the law’s requirement that nearly all Americans buy insurance is unconstitutional.

Read more: http://www.politico.com/news/stories/0911/64649.html#ixzz1ZHVASOKO


11 posted on 09/28/2011 1:36:23 PM PDT by STARWISE (The overlords are in place .. we are a nation under siege .. pray, go Galt & hunker down)
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To: Pride in the USA

HAHAHAHA! This is GREAT! I know you were listening to Rush this morning, so this will make sense to you. The NFIB just got out in front of the ODumbo parade, and look at the list of their litigators. Thank you, NFIB!


12 posted on 09/28/2011 1:37:35 PM PDT by lonevoice (The Fresh Prince of Bill Ayers, impeach we much)
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To: STARWISE
should this go in Breaking?

I agree. To paraphrase: "This is a big effin deal."

13 posted on 09/28/2011 1:40:55 PM PDT by lonevoice (The Fresh Prince of Bill Ayers, impeach we much)
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To: Libloather
The first people to read the bill?

Bingo!

14 posted on 09/28/2011 1:43:39 PM PDT by Faith
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bump!


15 posted on 09/28/2011 1:54:29 PM PDT by trisham (Zen is not easy. It takes effort to attain nothingness. And then what do you have? Bupkis.)
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To: vigilence

Agree...but it’s not going to happen. Obviously, it would weaken Obozo’s chances.


16 posted on 09/28/2011 2:00:24 PM PDT by GoldenPup
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To: GoldenPup

related

http://www.freerepublic.com/focus/news/2721639/posts?page=1


17 posted on 09/28/2011 2:12:28 PM PDT by Dubya-M-DeesWent2SyriaStupid! (PDS=someone that doesnt dream dates up of a Palin announcement;nor act as Palins campaign manager)
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To: FlipWilson

Anthony Kennedy is the most powerful man in America. In his hands rests the fate of this country. Let’s just pray that this power does not go to his head and that he does the right thing.


18 posted on 09/28/2011 2:22:22 PM PDT by fhayek
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To: vigilence
Time for Sotomayor to recuse herself!!!!!

You're going to turn blue holding your breath like that.

19 posted on 09/28/2011 2:30:44 PM PDT by hattend (If I wanted you dead, you'd be dead. - Cameron Connor)
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To: STARWISE

I PRAY that the justices do the right thing and remove this albatros from around our necks!


20 posted on 09/28/2011 2:30:44 PM PDT by LUV W (The current candidates?...none of them are pushing MY buttons! RUN SARAH....R U N!!!!)
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To: fhayek

“Anthony Kennedy is the most powerful man in America. In his hands rests the fate of this country.”

Any sane, rational person sees ObamaCare will destroy this country. I confident Kennedy will vote to kill it.


21 posted on 09/28/2011 2:35:32 PM PDT by navydad
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To: 353FMG; Hunton Peck; FlipWilson; Defiant; mtnwmn; Libloather; celtic gal; STARWISE; vigilence; ...
What you are inferring is that our country is ruled purely by emotions and not by constitutional jurisprudence. Sadly enough, you’re probably right.

Given that an appeal to SCOTUS is nothing more than a flick of the game-spinner on the "How well did Anthony Kennedy sleep last night" board game, a 5-4 decision at best means constitutional jurisprudence doesn't have too damn much to do with the process.

22 posted on 09/28/2011 2:36:25 PM PDT by sam_paine (X .................................)
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To: Hunton Peck

On which side of the bed will Kennedy get up when they hear this one?


23 posted on 09/28/2011 2:39:19 PM PDT by PapaNew
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To: Hunton Peck

The nation’s choice. Who pays - the individual or the taxpayer?


24 posted on 09/28/2011 2:49:10 PM PDT by ex-snook ("above all things, truth beareth away the victory")
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To: navydad
Any sane, rational person sees ObamaCare will destroy this country. I confident Kennedy will vote to kill it.

Much in the same way we would criticize liberals for judicial activism, it doesn't matter what a sane, rational person thinks of a law - the Supreme Court should be deciding if this law is constitutional or not.

My thought is that the individual mandate will be struck down, but Kennedy not having the cajones to invalidate the whole law based on inseverability.

25 posted on 09/28/2011 2:50:55 PM PDT by Dan Nunn (Support the NRA!)
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To: Dan Nunn

Agreed. sane, rational = constitutional.


26 posted on 09/28/2011 2:57:53 PM PDT by navydad
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To: celtic gal

Here’s hoping they aren’t so petty. I’d very much like to be able to have some faith in somebody involved in our government.

I know, terribly selfish of me.


27 posted on 09/28/2011 2:58:35 PM PDT by rockinqsranch (Dems, Libs, Socialists, call 'em what you will, they ALL have fairies livin' in their trees.)
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To: sam_paine

Will Elena recuse herself?


28 posted on 09/28/2011 2:59:41 PM PDT by Dubya-M-DeesWent2SyriaStupid! (Rock you like a hermancain!)
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To: Hunton Peck

The evidence substantiating the necessity for Sotamywhore to recuse herself needs to be stated clearly and with force and in public.


29 posted on 09/28/2011 3:10:30 PM PDT by Track9 (Make War!!)
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To: rockinqsranch; celtic gal

“...Here’s hoping they aren’t so petty. I’d very much like to be able to have some faith in somebody involved in our government. I know, terribly selfish of me...”

Nah...not selfish. You just want your country back, same as the rest of us, they things we grew up believing in, the same culture, the same ideals and aspirations that being an American and benig part of America was all about before the liberals decided that communism was “you know, not all that bad” (in the words of Whoopie Goldberg) and they set about f***ing up all that was good and decent in the country - because basically, at the end of the day, they’re little more than hateful, jealous, spiteful, small-minded idiots; and deep inside themselves, they KNOW it.

You’re just expressing what millions of other Americans want. We ALL want to wake up one morning and know that there are still Patriots in the fedgov that will stop these socialist lunatics from wrecking everything 100%.

It’s most assuredly NOT selfish (and yes, I got the sarcasm), but I think we’re well past the point of “wishing it were so”...

Ultimately it will be up to US to force these subversive dirtbags out of office and authority.

History has shown that this ideology we are battling doesn’t take too kindly to “the bourgeoisie” refusing to lay down and be raped.

I think they’ll find out though, this time, in THIS land, it won’t be so easy.

THIS bourgeoisie fights back...


30 posted on 09/28/2011 3:18:16 PM PDT by NFHale (The Second Amendment - By Any Means Necessary.)
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Rule ObamaCare UnConstitutional and immediatly toss it. Please do the right thing Supreme Court!


31 posted on 09/28/2011 3:19:16 PM PDT by NoRedTape
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To: Dan Nunn
My thought is that the individual mandate will be struck down, but Kennedy not having the cajones to invalidate the whole law based on inseverability.

I beg to differ.

The basic reason given for the appeal IS the Serverability issue.

The rest of it (including individual mandate) is secondary. For now.

JMHO, this is going to turn into less of a question of "Is Justice Kennedy going to have a bad hair day" than "Does the ENTIRE court believe in the Constitution and the Rule of Law", because if that atrocious mess gets upheld in any part, the people who voted for it can credit themselves with the destruction of their jobs along with the very things they swore to uphold and defend.

Somebody's just drawn a line in the sand, not just filed an appeal.

No wiggle room, no BS, no more half measures. Either the Law means something or it doesn't.

32 posted on 09/28/2011 3:38:28 PM PDT by Unrepentant VN Vet ((479 and a wakeup) Truth, I know, always resides wherever brave men still have ammunition.)
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To: Unrepentant VN Vet

As I understand it, if the mandate is struck down, it makes the rest of the act unworkable; the non-health-care system will quickly run out of money if the socialists can’t seize money from our bank accounts every month for this new atrocity. Do I understand this correctly, UVNV?


33 posted on 09/28/2011 3:53:54 PM PDT by American Quilter (aka American Hobbit)
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To: American Quilter
As I understand(stood) it, if one part is struck down as un-Constitutional, the whole thing is as during passage, "they" (pelosi, reid, bam and company) didn't realize there was no sever-ability clause in the bill (which evidently is a pretty common thing under normal circumstances). They can't just "strip" pieces out of it out and march right along.
Hope the Supreme's still like feeling "supreme"; cause if they don't smack this one down hard they'll be nothing more than a kangaroo court in a failed country.

/Sleep well, Kennedy.

34 posted on 09/28/2011 4:15:46 PM PDT by Michael Barnes (Obamaa+ Downgrade)
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To: Michael Barnes

So that means that if the mandate is ruled unconstitutional, the whole act is overturned?


35 posted on 09/28/2011 4:24:19 PM PDT by American Quilter (aka American Hobbit)
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To: vigilence
Time for Sotomayor to recuse herself!!!!!

We'll see...

36 posted on 09/28/2011 4:38:11 PM PDT by b4its2late ("Pray for Obama. Psalm 109:8")
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To: Hunton Peck

Doesn’t Kagan have to recuse herself on this, since she was Solicitor General?


37 posted on 09/28/2011 4:43:03 PM PDT by Shadow44
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To: Shadow44

She should, but I think impeachment would be the only formal recourse if she doesn’t do it on her own.


38 posted on 09/28/2011 4:50:28 PM PDT by Hunton Peck (See my FR homepage for a list of businesses that support WI Gov. Scott Walker)
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Lets pray


39 posted on 09/28/2011 5:21:50 PM PDT by Def Conservative (Herman Cain: "I am not a social-issue crusader")
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To: FlipWilson

That’s what I said when this big gubmint Obamanation was passed.

The most powerful man in America is a Kennedy.

Not drunken Ted, assasinated John who would be labeled an evil teabagger by today’s Dems but Anthony.

After repeal, we have to implement free market solutions. I like Ryans plan. It looks a lot like Milton Friedmans plan. But stops a bit short for political purposes.


40 posted on 09/28/2011 5:25:13 PM PDT by Eric Blair 2084 (I don't always drink beer, but when I do, I prefer to drink a bunch of them. Stay thirsty my FRiends)
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To: American Quilter

“So that means that if the mandate is ruled unconstitutional, the whole act is overturned?”

My understanding is that the lack of a severability clause just gives the court the right to throw out the entire law if one part of it is found unconstitutional. One lower court judge (Vinson of FL) did just that. However, the 11th circuit only struck down the individual mandate, leaving the rest of the law in place. I believe the Supremes have one of 3 choices:

1. Let the entire law stand.

2. Strike down parts of the law-like the individual mandate.

3. Strike down the entire law.

Because there is no severability clause(and this was the case because they had to pass the Senate version of the bill, which was written in a hurry just before Christmas 2009 and was meant to be just a draft, but they could not amend it after Scott Brown’s election in January 2010), the Supremes should find it much easier and more justifiable to go with option #3.


41 posted on 09/28/2011 6:36:45 PM PDT by lquist1
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To: NFHale

A great rant. Thanks for your response.


42 posted on 09/28/2011 7:40:40 PM PDT by rockinqsranch (Dems, Libs, Socialists, call 'em what you will, they ALL have fairies livin' in their trees.)
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To: lonevoice

The NFIB finally jumped the U.S. Chamber of Commerce; they were caught sleeping with the Democrats.


43 posted on 09/28/2011 11:46:13 PM PDT by Loud Mime (The Obama voters are dumber than you think, meaner than you can imagine)
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To: American Quilter

Judge Vinson in the district court vacated the entire law because of the unconstitutional mandate and sever-ability. The 11th Circuit, then, vacated the mandate but left the rest of the law intact. The SCOTUS is considering sever-ability. The ruling will determine whether the law remains or is vacated entirely.


44 posted on 09/29/2011 6:38:46 AM PDT by katieanna
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To: Hunton Peck

National referendum on this one, please!


45 posted on 09/29/2011 8:28:12 AM PDT by LurkedLongEnough
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To: rockinqsranch

Didn’t mean to butt in... Just letting you know you’re not alone.


46 posted on 09/29/2011 8:46:48 AM PDT by NFHale (The Second Amendment - By Any Means Necessary.)
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To: Hunton Peck

This isn’t what Holder and/or Barry wanted to happen. Now with our side doing this as Rush said yesterday, it is now speeded up at the USSC.


47 posted on 09/29/2011 9:26:43 AM PDT by shield (Rev 2:9 Woe unto those who say they are Judahites and are not, but are of the syna GOG ue of Satan.)
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