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Obama shifts healthcare defense (Necessary and Proper Clause)
The Hill ^ | 3/15/12 | Sam Baker

Posted on 03/16/2012 1:23:18 AM PDT by Libloather

Obama shifts healthcare defense
By Sam Baker - 03/15/12 07:08 PM ET

The Obama administration has shifted its legal arguments as it prepares to defend the president’s healthcare law before the Supreme Court.

Written briefs in the landmark case increasingly have focused on a part of the Constitution that didn’t get much attention in lower courts.

Some legal experts say the shift could steer the case in a direction that would make Justice Antonin Scalia more likely to uphold the healthcare law’s mandate requiring individuals to purchase health insurance.

Oral arguments in the landmark case are set to begin March 26, and the justices are expected to give a ruling in June, just months before the presidential election.

A ruling that the mandate is unconstitutional could make it nearly impossible to implement other parts of the healthcare law—which is exactly the point the Department of Justice is highlighting in its most recent briefs.

Justice has aggressively defended the mandate as its own regulation of economic activity, but is now stepping up a separate argument emphasizing that the mandate is part of a broader regulatory scheme.

The shift moves the focus of Justice’s argument from the Commerce Clause of the Constitution to the Necessary and Proper Clause, which says Congress can make laws that are necessary for carrying out its other powers

The briefs give a long history of failed efforts to expand healthcare coverage and say the new law’s purpose was to reform the overall system.

“The minimum coverage provision is … necessary to achieve Congress’s concededly valid objective of reforming the interstate market in health insurance,” the Justice Department said in its first Supreme Court brief on the merits of the mandate.

The brief argues requiring insurance companies to cover everyone and banning them from charging sick people higher prices are regulations that the Constitution clearly protects. The mandate, Justice argues, is a “necessary and proper” way to carry out those regulations without causing the cost of insurance to skyrocket.

Karen Harned, a lawyer with the National Federation of Independent Business which is a party to the suit challenging the healthcare law, agreed that the debate has shifted toward the necessary and proper clause. But she insisted it’s sill a losing case for the White House.

“They can’t force people to buy cars because of federal safety regulations that raise the price of cars,” Harned said. “They put a new regulation on somebody that causes the price of that prod to go up — they can’t go in and fix it by requiring everybody to buy that product.”

Tim Jost, a Washington and Lee University law professor and a prominent supporter of the healthcare law, said the mandate’s critics invited the new line of defense by urging the court to strike down the entire law. The states say the mandate cannot be “severed” from any of the law’s other provisions. That position basically concedes that the mandate is necessary to make other reforms work, Jost said.

“I think that is their strongest argument,” Jost said of the Necessary and Proper Clause.

Justice is by no means abandoning its argument that the mandate is Constitutional under the Commerce Clause.

Both critics and supporters of the law think the administration could be trying to appeal to Scalia with the shift, as the line between the Commerce Clause and the Necessary and Proper Clause was central to an important decision of Scalia’s.

The case, Gonzales v. Raich, is one of the closest precedents for the healthcare suit. It asked whether the federal government could prevent people from growing their own medical marijuana, in a state where it’s legal, rather than buying marijuana from a sanctioned dispensary.

The court ultimately ruled on Commerce Clause grounds, but Scalia wrote in a separate opinion that it didn’t matter whether the limits on individual growers were an acceptable regulation of commerce. The government could step in as a “necessary and proper” way of carrying out its broader power to criminalize drug use, he wrote.

The Justice Department has been heavily citing Raich since its first filing in any of the challenges to healthcare reform. But it did not draw as strong a parallel in lower courts, even those that upheld the mandate.

Simon Lazarus, a lawyer with the National Senior Citizens Law Center, said the Justice Department may well be targeting Scalia’s vote by describing the mandate in the same terms addressed in his Raich opinion.

“There is simply no way that you could take that even remotely literally and not uphold the mandate,” he said.

Still, Scalia’s staunch conservative record leaves many critics of the law confident he will not rule the healthcare mandate is constitutional, particularly given the politically-charged atmosphere surrounding the case.


TOPICS: Crime/Corruption; Extended News; Government; News/Current Events
KEYWORDS: commiecare; constitution; healthcare; obamacare
Hussein can do what he wants and you'll just have to eat it.
1 posted on 03/16/2012 1:23:23 AM PDT by Libloather
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To: Libloather
"Some legal experts say the shift could steer the case in a direction that would make Justice Antonin Scalia more likely to uphold the healthcare law’s mandate"

Is it just me, or was the coincidence of Scalia being at the State Dinner for Cameron this week and this change of argument on Obamacare being a set up?

2 posted on 03/16/2012 1:47:39 AM PDT by traditional1 (Don't gotsta worry 'bout no mo'gage, don't gotsta worry 'bout no gas; Obama gonna take care o' me!)
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To: Libloather

Voting for Freedom is Voting against Democrats

The Democrat party is chock full of ‘em. The people whose passion is to be as unlikable as they can be—go vote in synchronized choreography, lining up as lemmings to give away their freedom to power junkies who occupy positions in the Democrat party—the line is solid with those angry liberals—hateful, vile, bad company—the angry unemployed by choice, the angry call themselves lesbians in boy haircuts who make nearly every workplace they happen into a miserable thing for those around them, the anti-life smoozies and their friends who bring benefits to their collectivist tables upon which every top is full of other people’s stuff taken by the force of the law and guns—those who stand in line for food stamps and always want more—much more, numbskulls who believe paying union dues is a good investment, proud to be grotesque feminists, druggies, modern day hippies who are in it for the trip—politicians on the take who work hard to invent or steal as many votes as they can—no voter ID required here!—their ranks are replete with every imaginable kind of psychopath, pervert, murderer, rapist, thief, dumb-ass, violent, anarchist, communist, socialist, environmental slave, anti-religion, full of crap—full of themselves loudmouths, anti-property ownership for everyone except them, knuckle-dragging, brainless, and selfish idiots one can imagine.

To be a democrat is to be a villain—whether purposeful or not. To be a democrat is to be the worst kind of person most often produced by a public “education” that teaches nothing of substance, of truth—but produce losers out of more and more wide eyed children by telling them that having high self-esteem is more important than God, more important than country, and far more important than learning anything of substance—such as reading, writing, and arithmetic—let alone economics, history, or shhh (ethics, morality—or even good manners). To be a democrat is to be against freedom in a real sense, not illusionary—but very real—we watch these miscreants as they band together in their collectivists camps to write ever more tax bills, regulations and laws to artificially take control of everything—our lives, our very being, our money, our time, our faith, our freedoms. Erosion is no longer the word—they’re taking every bit of freedom away from us in chunks of Obama directly made or inspired orders from on high.

Oh—Hell—No!

I will not comply.

There is a vote and surely more people will vote freedom rather than for demon inspired democrat power. God help this country if we do. God have mercy on this country if we don’t.


3 posted on 03/16/2012 1:50:28 AM PDT by BamaAndy
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To: Libloather
We may soon find out what was really said at the second swearing in.

If the overturn this, then those bloated bustards will have to explain why they let them spend several hundred billion dollars implementing it. They won't.

4 posted on 03/16/2012 1:50:42 AM PDT by itsahoot (Tag lines are a waste of bandwidth, as are my comments.)
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To: Libloather

Criminalizing mind-altering drug use is a far cry from forcing people to pay for government health insurance.


5 posted on 03/16/2012 2:12:52 AM PDT by skr (May God confound the enemy)
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To: itsahoot

Doesn’t matter. I will not comply. I am not going to hell for paying for abortion.


6 posted on 03/16/2012 2:16:35 AM PDT by Hoosier-Daddy ( "It does no good to be a super power if you have to worry what the neighbors think." BuffaloJack)
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To: Libloather
First, if it's a “tax” for not purchasing something, what are they taxing?

Second, if it's not a “tax” but a fine instead for not purchasing something, then are ALL fines equal and is there due process of law before the fine is administered?

Third, can every person who receives this fine for “violating the law” challenge their specific fine in the courts and if so how far can it go to be upheld or dismissed?

Forth, if a fine is assessed does the court have the authority to reduce the fine as they do with every other statutory violation?

7 posted on 03/16/2012 3:36:19 AM PDT by tobyhill (Fight Fire With Fire)
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To: Libloather
No. Hussein has gone too far, by requiring Catholics to pay for abortifacients or coverage which covers them.

There is a First Amendment objection along with the Commerce Clause, and even more one of 'Equal Protection': Muslims are not required to carry coverage because of a religious objection, but Catholics are supposed to, in spite of one.

8 posted on 03/16/2012 3:52:41 AM PDT by Smokin' Joe (How often God must weep at humans' folly. Stand fast. God knows what He is doing)
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To: traditional1
Nope, it's not just you because as soon as I read it I thought, “that explains why Scalia got invited to hang out with the “cool kids”. These people make me absolutely sick.
9 posted on 03/16/2012 4:01:55 AM PDT by liberalh8ter (Barack has a memory like a steel trap; it's a gift ~ Michelle Obama)
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To: liberalh8ter
"These people make me absolutely sick"

I see these things where Legislation gets shoved up our asses, or corruption is allowed to go un-punished/un-investigated (such as Eligibility), and it takes years to take it to the Courts, meanwhile BILLIONS are spent setting up beauracracies and it is NEVER un-done, and the people hired (to lower un-employment figures) are NEVER shit-canned from useless positons. Just like all the Czars that were created, and their bloated Staffs, the damage is permanent.

Regulatory bodies are created to make meaningless, un-economic, Economy-stifling Rules to appease the wacko-voters, or faggots/dykes, or Illegals, or "Holder's People", etc., and they are NEVER dis-mantled, no matter what.

To expect the USSC to rule against the already-in-place beauracracy and beaurocrats is pissing into the wind, IMHO.


10 posted on 03/16/2012 4:41:23 AM PDT by traditional1 (Don't gotsta worry 'bout no mo'gage, don't gotsta worry 'bout no gas; Obama gonna take care o' me!)
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To: Hoosier-Daddy
Acts 4:19
11 posted on 03/16/2012 4:53:28 AM PDT by Prospero
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To: Libloather

Oh when I was helping treat soldiers addicted to alcohol and drugs-and seeing first hand the affects of the rehab programs we were taught the we are the masters of our own fate. We have no control over what any other might do- Obama will do what he wants. And I will oppose the evil in high places.
As to the Necessary and proper—constitutional defense. It seems the interloper and fraudulent resident of the White House has a much different understanding of necessary and proper than what was understood when the Law of our Constitution was ratified. If the Law is understood according to its meaning when it was adopted— It may be necessary for the unConstitutional legislation to stand for the mandate to be included—but is it proper for the Government to dictate what is proper for the people? The rights of conscience ought not infringed by despotic ruler— and if the law is upheld by a Court divorced from fundamental principles the Divider in Chief will have succeeded in making a growing faction of our society ever more hostile and disenfranchised from participatory government.


12 posted on 03/16/2012 4:54:22 AM PDT by StonyBurk (ring)
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To: traditional1
Yep, we're at the same point in our disdain for American politics. I commented yesterday that I wish we could just skip ahead to the November election and either re-elect Obama and get CWII underway or elect Mitt and get CWII underway...
13 posted on 03/16/2012 5:17:30 AM PDT by liberalh8ter (Barack has a memory like a steel trap; it's a gift ~ Michelle Obama)
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To: liberalh8ter
"re-elect Obama and get CWII underway or elect Mitt and get CWII underway"

The problem will be that if Romney-the-RINO is able to win despite all the Fraud and Illegal voters, he will be no different, but will get the State-Run-Media's "give him time" excuse while he continues the takeover of Society by Big Government meddling.

CWII will become inevitable, but in the meantime, the opposition will continue to be bolstered in numbers by the Illegals that keep pouring across the border.

With any luck, the Jihadists will hit Washington D.C., and we can gain a do-over.

14 posted on 03/16/2012 5:27:43 AM PDT by traditional1 (Don't gotsta worry 'bout no mo'gage, don't gotsta worry 'bout no gas; Obama gonna take care o' me!)
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To: Libloather
"necessary and proper" clause... might as well just refer to the "general welfare" clause as justification for anything you want to do. Madison: "With respect to the words ‘general welfare,’ I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators."
15 posted on 03/16/2012 5:30:22 AM PDT by MrB (The difference between a Humanist and a Satanist - the latter knows whom he's working for)
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To: Libloather
I don't know why that malformed my post, but here's a more readable version... "necessary and proper" clause...
might as well just refer to the "general welfare" clause

as justification for anything you want to do.

Madison:

"With respect to the words ‘general welfare,’ I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators."

16 posted on 03/16/2012 5:32:00 AM PDT by MrB (The difference between a Humanist and a Satanist - the latter knows whom he's working for)
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To: traditional1
Either way, at this point, I see it as our only hope. Even if we were to get someone other than Mitt, the commies will use the next 4 years for organizing and planning. They need to be driven out of our society, not merely pushed back.
17 posted on 03/16/2012 5:32:08 AM PDT by liberalh8ter (Barack has a memory like a steel trap; it's a gift ~ Michelle Obama)
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To: Libloather; Lady Jag; Ev Reeman; familyof5; NewMediaJournal; pallis; Kartographer; SuperLuminal; ...
Constitution Ping!

There is absolutely nothing in the Constitutional Convention, Federalist Papers, State ratifying Convention records to support this horrific and purposeful misuse of the necessary and proper clause.

Necessary laws implement enumerated powers. The entirety of Obamacare fails this test.

Proper laws do not violate our God given, or Constitutionally itemized rights. Obamacare is a direct assault on such rights.

18 posted on 03/16/2012 5:33:07 AM PDT by Jacquerie (No court will save us from ourselves.)
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To: Libloather

At this point, one has to wonder why whether a law is constitutional or not is even an argument. The whole DC establishment tramples in the constitution every chance they get.


19 posted on 03/16/2012 5:33:26 AM PDT by IamConservative (Shall I try and perhaps fail or shall I do nothing without fail?)
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To: Libloather

The Court will favor the RinoCracy. They had hoped to have Mittens crowned and annointed by the Pubbies at this point to make the ruling less controversial, and less of an issue for the fall election.


20 posted on 03/16/2012 5:43:48 AM PDT by mo (If you understand, no explanation is needed. If you don't understand, no explanation is possible.)
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To: All

How will this matter conclude????

ONLY THE BEES KNOW !!!

Only the bees!!!


21 posted on 03/16/2012 5:58:26 AM PDT by ak267
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To: Libloather
It appears that eventually it's going to come down to:

Door #1: Overturn Wickard v. Filburn

Door #2: CWII

22 posted on 03/16/2012 7:34:56 AM PDT by tacticalogic ("Oh, bother!" said Pooh, as he chambered his last round.)
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To: itsahoot

As Mark Levin points out in his excellent new book “Ameritopia”, the Rats “front loaded” the legislation (passed as I recall by 219 to 212) with hundreds of billions of dollars that were allocated without going through constitutional legislative avenues, and with no legislative approval while they had a supermajority in Congress in order to entrench the bureaucratic tentacles of this unconstitutional monstrosity before the next election cycle.

By the time anyone (if they even do) gets around to revoking it, they will be unable to do so due to all the agencies created, the government employees hired, the offices outfitted with computers and furniture and so on.

I hate liberalism. I hate it. Yet here we are, with a president who likely has LESS than a 40% approval rating, and we are going to put Romney against him and likely see Obama win.


23 posted on 03/16/2012 10:28:34 AM PDT by rlmorel (A knife in the chest from a unapologetic liberal is preferable to a knife in the back from a RINO.)
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To: IamConservative

The Constitution has been ignored for so long with NO ramifications or penalty for doing so, that it is being roundly ignored.


24 posted on 03/16/2012 10:30:53 AM PDT by rlmorel (A knife in the chest from a unapologetic liberal is preferable to a knife in the back from a RINO.)
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To: Jacquerie

The left is attempting to justify the Obama regimes actions by comparing the abortion pills mandate to actions taken against polygamy with the Mormons and brutality in Shia law, as practiced by Islamists. First, it should be pointed out that Mormonism began after this nation, and most all of Christendom, had established the higher moral tradition of monogamous marriage. The Government was acting to prevent an immoral and harmful practice. The same can be said when we prevent Islamists from practicing slavery, polygamy, murdering of children and wives, and so forth. Both are instances of the Government stepping in to prevent criminal activity when no other social agencies had the authority to do so. Forcing religious institutions to distribute birth control and abortion pills, and offer abortions is a very different matter. It is making it a crime to practice the Christian doctrine of respecting and honoring human life, given by God. It is also forcing religious institutions and their members to participate in sexual immorality. That is the government establishing the religion of humanism over Christianity. Exactly what the government is prohibited from doing in the 1st Amendment. Government has made a law establishing humanism and that value system, and it is prohibiting religious institutions from practicing higher moral values, even though nothing they are doing directly prevents others from practicing their immorality as promoted by the government.


25 posted on 03/16/2012 10:38:51 AM PDT by pallis
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To: Libloather

“A ruling that the mandate is unconstitutional could make it nearly impossible to implement other parts of the healthcare law—which is exactly the point the Department of Justice is highlighting in its most recent briefs. “

If I follow, they’re saying it’s okay to violate the constitution so long as it helps you do whatever it is you want to do, in this case socialize healthcare. Which makes me wonder why we have a constitution at all.


26 posted on 03/16/2012 11:13:06 AM PDT by Tublecane
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To: Libloather

“The court ultimately ruled on Commerce Clause grounds, but Scalia wrote in a separate opinion that it didn’t matter whether the limits on individual growers were an acceptable regulation of commerce. The government could step in as a ‘necessary and proper’ way of carrying out its broader power to criminalize drug use, he wrote.”

That makes no sense. There isn’t any justification for the Drug War except on commerce clause grounds, so far as I know. Or, should I say, on the phantom modern commerce clause; it’s not actually justified at all.

Anyway, “limits on individual growers” has to be an acceptable regulation of commerce whichever way you cut it: either as an end in itself or as a tiny corner of the larger Drug War.


27 posted on 03/16/2012 11:18:43 AM PDT by Tublecane
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To: skr

“Criminalizing mind-altering drug use is a far cry from forcing people to pay for government health insurance.”

No, it isn’t. For growing and using your own drugs is not commerce any more than mere existence (the basis for falling under the mandate) is. It’s just that SCOTUS precedence since Wickard v. Filburn says growing stuff on your property is not only economic activity but interstate commerce. There is no such precendence for regulating the obviuous non-commerce that is being a breathing adult citizen.


28 posted on 03/16/2012 11:27:43 AM PDT by Tublecane
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To: tobyhill

“if it’s a ‘tax’ for not purchasing something, what are they taxing?”

Existence. Call it the Life Tax.


29 posted on 03/16/2012 11:30:53 AM PDT by Tublecane
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To: rlmorel
I hate liberalism. I hate it.

Especially when the GOPe such as Boehner are in their pocket. He could have undone this since not congress can bind a future congress, but he claimed he couldn’t defund it because of some stupid rule.

If people don't wake up to the fact that we have traitors within, then we are indeed finished as a Republic.

30 posted on 03/16/2012 11:54:05 AM PDT by itsahoot (Tag lines are a waste of bandwidth, as are my comments.)
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To: Jacquerie; Libloather; All

Thanks very much for the ping/post; thread. Waiting...watching. BUMP-TO-THE-TOP!


31 posted on 03/16/2012 4:58:21 PM PDT by PGalt
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To: tacticalogic

Overturn Wickard v. Filburn


32 posted on 03/16/2012 5:29:21 PM PDT by 1010RD (First, Do No Harm)
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To: pallis

There was no and is no Constitutional basis for Federal action against Mormon polygyny. It was unConstitutional then and it still is now. Read the history of it. It was an utter mess.

Now, with government deeply entrenched in our lives through the 16th, Amendment 16 they tinker incessantly.


33 posted on 03/16/2012 5:33:44 PM PDT by 1010RD (First, Do No Harm)
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To: PGalt

The link to Randy Barnett’s analysis of the Necessary and Proper clause in post 18 is superb.


34 posted on 03/16/2012 5:38:31 PM PDT by Jacquerie (No court will save us from ourselves.)
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To: Jacquerie
Don't go quietly into the night. Go out with a BANG! (figuratively, of course).
35 posted on 03/16/2012 5:47:01 PM PDT by ogen hal (First amendment or reeducation camp?)
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To: Tublecane

That’s why Scalia is so dangerous. He’s a big government conservative. How I wish we had 5 more Thomases and in their 40’s.


36 posted on 03/16/2012 5:52:50 PM PDT by 1010RD (First, Do No Harm)
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To: Libloather

“The government could step in as a necessary and proper way of carrying out its broader power “

To establish Forced Federal Labor Camp, U.S. Territory, every citzen age 26, except the Nazi Exempt Ones, who Exempted themselves.

Arbeitsziehungslager, Forced Federal Labor Camp, Fascists’ Exempt.


37 posted on 03/16/2012 6:07:30 PM PDT by Varsity Flight (Phony-Care is the Government Work-Camp: Arbeitsziehungslager)
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To: Smokin' Joe

That’s right, discrimination flat out. Their great mantra, conveniently ignored this time.

Arbeitsziehungslager, Forced Federal Labor Camp 2014, Fascists Exempted themselves....DISCRIMINATION


38 posted on 03/16/2012 6:12:40 PM PDT by Varsity Flight (Phony-Care is the Government Work-Camp: Arbeitsziehungslager)
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To: Libloather; All

A WORD OF CAUTION TO THE MEDIA
by Greta Van Susteren
Mar 16 2012
Sometimes when someone writes an article, others in the media seize upon it and it suddenly gets a ‘life of its own.’ That ‘life of its own’ can start a narrative in the media that is repeated. That is fine if it is correct and does not give a false impression to the public.
(and this is not the author’s fault, but rather how others have already begun to read it.)

_______________________ As the Supreme Court argument date over healthcare approaches, the Obama administration is NOT “shifting” its healthcare defense. (see below.) It is arguing the SAME points it raised in the lower appellate court – including the one that is the subject of this article below (the Necessary and Proper Clause.)

The “Necessary and Proper Clause” is not new to the litigation. It is old. It got plenty of attention in the lower court. (I was even in that Florida Court when it was argued.) That clause, and thus that argument by the Administration using that clause as support, was simply rejected by the lower court so naturally the Obama Administration is now asking the Supreme to review it, to reverse it. This is routine. It is not a shift if you ask the Supreme Court to review an argument you raised in the lower appellate court but which was rejected by that court.

In fact, without first arguing it in the lower court, the Administration would now be barred from raising it FOR THE FIRST TIME in the Supreme Court. You can’t raise new issues in the Supreme Court – you only get issues argued below considered (and upheld or reversed.)

It is appellate practice 101 — you raise every issue you think has merit (as the Administration did in the lower appellate court) and you hope that you are persuasive on one of them to give you the legal victory you seek.

http://gretawire.foxnewsinsider.com/2012/03/16/a-word-of-caution-to-the-media/


39 posted on 03/16/2012 8:52:30 PM PDT by anglian
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To: Jacquerie; All

Fascinating. I’m just finishing the 1st quarter of the link on my 2nd read-through. Fascinating link BUMP!


40 posted on 03/17/2012 9:06:52 PM PDT by PGalt
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To: anglian

Interesting to see Greta chime in on this. Thanks for posting.


41 posted on 03/17/2012 9:11:18 PM PDT by PGalt
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To: PGalt

Barnett is my favorite constitutional geek.

A layman’s interpretation of his paper would make a great vanity wouldn’t it?


42 posted on 03/18/2012 2:06:50 AM PDT by Jacquerie (No court will save us from ourselves.)
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To: tacticalogic

Door number 1 would be quite interesting on the legal/lawful front; but I’m betting the USSC will not dare touch it a it is almost their golden goose. (2nd, I believe, only to Roe v. Wade, because so long as Roe v. Wade stands the USSC can point to it as justification for any ruling which in essence alters the Constitution.)


43 posted on 03/22/2012 10:38:02 AM PDT by OneWingedShark (Q: Why am I here? A: To do Justly, to love mercy, and to walk humbly with my God.)
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To: OneWingedShark

That leaves Door #2. They may wish they’d chosen Door #1.


44 posted on 03/22/2012 10:48:10 AM PDT by tacticalogic ("Oh, bother!" said Pooh, as he chambered his last round.)
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