Posted on 03/29/2012 6:36:16 AM PDT by SeekAndFind
After yesterday’s heartening arguments, today’s arguments carry even more importance, because it seems likely the Court will actually reach the severability question.
If there are political consequences for the Court’s decision on the mandate argued yesterday, there could be even more consequences to today’s arguments. If the law is struck down in its entirety, expect the president to dust off his 2010 State of the Union talking points, which charge the Court with what he calls “judicial activism,” but in reality seem to criticize any court decision that finds a law of his unconstitutional.
The justices on both sides seemed skeptical of Paul Clement’s opening arguments for the plaintiffs, asking them to strike down the entire law along with the mandate. When he was prompted by Justice Alito to start arguing his fallback position, he made a solid case that far more than the administration’s set of central provisions actually are tied inextricably to the mandate. Not just community-rating and guaranteed-issue, but also Medicaid, employer mandates, and tax credits, among many other provisions, will be undetermined if left to stand without the mandate. The justices at first seemed unreceptive to his argument that the “shell of the law” left after removing these provisions should fall, with Justices Kennedy and Scalia particularly concerned about how to articulate such a rule.
Later, in response to Deputy Solicitor General Ed Kneedler’s arguments for the administration, the same justices seemed more inclined to make a judgment striking down the whole law. Justice Scalia answered his own question about how to formulate a rule, suggesting that “if you take the heart out of the statute, the statute is gone.” He framed it as a question of first impression because the Court has never before invalidated the very heart of a law, and dealt with severability in that context.
Justice Kennedy on at least two occasions suggested that going into the law to pick and choose which provisions should survive would actually be a more “awesome” exercise of legislative power than striking down the law as a whole. Justice Scalia illustrated the problem by asking if he (or, more likely, his clerks) should read through all 2700 pages of the law to determine which provisions should stand.
Justice Breyer earlier had illustrated the relative aid of the mandate provision and the rest of the bill by holding up a thin booklet next to a thick one with the remaining provisions of the law. He articulated a “pipe dream” in which the parties all got together to agree on a list of peripheral provision to leave in place. Scalia retorted that they should publish a conference report just like the real legislators in Congress.
Justice Kagan was firmly in the administration’s camp, calling their position the more textually honest, because of oft-cited findings of the law explicitly linking the individual mandate with community-rating and guaranteed-issue.
Justice Sotomayor had the opposite take from Justice Kennedy, calling taking any other part of the law down with the mandate an exercise of legislative power.
All in all, Justice Alito and Chief Justice Roberts at least seemed open to voting to strike the whole law, and it seems likely that most or all of the law is going to share the fate of the individual mandate.
The Executive Activism of the current regime is the most blatantly transformative and activist in United States history. It seems that 0bama is taking "whole cloth" and re-writing what the executive can do... crazy EO's (not applied, as in the Hyde-EO to get zer0care passed) (to be applied as in last weeks emergency powers). Deeming that one branch or another is in session or not. Performing ad-hoc unconstitutional line-item-veto, by applying only parts of bills agreed with.
I saw Ken Cucinelli on Greta last night and he said the the severability clause was in the bill when it went to the Senate. It was Harry Reid who knowingly removed it. If it was in there and they took it out, it means they wanted and voted on the bill as a whole. He said he included this information in his brief.
Thomas indeed is mum, but he is the most conservative on the court, and writes incredibly well. So, he'll never rise to be Chief Justice (or shouldn't if he is completely silent). In his case, it's the thinking, opinions and votes that count. [the court can have one, maybe two, mum justices... as the others ask the questions, but not more than that].
It was a calculated risk for the Statist, because if it was serverable, the whole thing fell apart. Ditto that they couldn't bring it back up and add it because by that time the "60th" Vote for "Cloture" i.e. Scott Brown had come on the scene and they couldn't bring it back.
The Death of the Swimmer Kennedy, Scott Brown takes it and now the courts may throw it out because they were to clever by half in trying to fundementally change this nation and have total control.
Don't tell me G_d doesn't work in mysterious ways...
A bigger lesson will be learned as discussed on Bill Bennett today, and that is this will foster a discussion that the Statist have not had as they have been in control and on autopilot and that is, What is the role of the Federal Government?
It was a calculated risk for the Statist, because if it was serverable, the whole thing fell apart. Ditto that they couldn’t bring it back up and add it because by that time the “60th” Vote for “Cloture” i.e. Scott Brown had come on the scene and they couldn’t bring it back.
This really does feel like divine intervention but next time I hope He doesn’t wait so long. I’ve been a nervous wreck! Thanks for the heads up, I will turn on Bill Bennett today.
So basic yet so profound - frightening that it actually had to be uttered and that it becomes news.
I haven't read all of the coverage but did anyone raise the point that if Congress wanted the law to stand should a portion was deemed Unconstitutional, they would have added a severability clause as they have done so many times before?
A very sharp poster on here theorized that the Senate removed severability at the behest of insurance industry lobbyists.
The theory goes that they were only willing to swallow the rest of the Obama crap sandwich if 50 million new paying customers at gunpoint came along with it. If that goes away they wanted to be off the hook for the rest.
If for some reason the Court lets the rest stand, look for the return of Harry and Louise. They are gonna unleash Negative Ad Armageddon on Obama to get this thing repealed.
Nobody is gonna play Charlie Brown and the Football with them and get away with it.
Then you'll really see a game of chicken in congress to see who killed the remnants of Obamacare.
just think Kagan would have been arguing FOR the obamacare and the government lawyer was using HER notes in support of Obamacare. She did not need obamacare arguments since she wrote them.
Nobody is gonna play Charlie Brown and the Football with them and get away with it.
That is exactly Obama’s M.O. (especially during his campaign). At this point he has no one’s trust. This guy and all the socialist “dreams of his father” are not what the American people want. He will have to learn this lesson the hard way (like Carter did).
This is somewhat off subject but something I’ve been thinking about...I know there are a HUGE number of stupid people out there and people on the government dole, relying on it to take care of them. But, it’s my belief that we are an innovative and self-reliant people for the most part.
This socialist government model that Obama and his ilk are implementing can’t stand in the long run with a free people. See, people from most socialist nations were raised knowing nothing else. But there are uprisings from time to time because our very nature is to be free. But, a people like us, born to freedom and knowing all that is valued and desirable in that could never accept anything other than that in the long run. Eventually, we will fight for it again. At least, many of us will.
Charlie Brown and the Football would be Obama’s MO.
Reassure the insurance lobby that the missing severability clause will protect them if the mandate goes down, and then stab them in the back with your SCOTUS arguments.
That would be pure Alinsky.
. But, a people like us, born to freedom and knowing all that is valued and desirable in that could never accept anything other than that in the long run.
To expand on you thoughts, my children are the First generation in my family to be born American. Having been imprisoned in Stalins Gulags, my parents and Grandparents along with many other Americans of foreign descent understand how precious freedom really is. It kills me to see so many of the youth in this country willing to give it away. We need to teach these lessons that others have learned so that all who have struggled for freedom have not done so in vain.
I bet it was removed as a poison pill. With Kagen on the bench she would argue the 1/2 loaf BS in order to rescue parts. it was and is a poison pill.
Oh, I think I can guess which way he's leaning. Can't wait to read his opinion. It'll be one for the ages.
I bet it was removed as a poison pill. With Kagen on the bench she would argue the 1/2 loaf BS in order to rescue parts. it was and is a poison pill.
She really has nothing to stand on. I kept hearing the word “intent”. “what was their intent”? That is easy, their intent (a la Harry Reid) was to remove the severability clause in order to pass it. She has no argument. Both halves of this loaf are toast (pardon the pun)!
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