(CNN) Breaking: Florida Federal Judge Strikes Down Key Parts of Healthcare Bill as Unconstitutional

[Predicto]

wouldnt the judge qualify as an expert too?

So would the other judges, the ones that found it wasn't unconstitutional. :whoknows: Its going to go to the Supreme Court, precisely because it is actually a close isse.

[mardi gras skin]

Its the 10th page of the thread. so, the arguments have been made.

Actually, I'd like to hear a response to nonnie's post. Not that I think you guys are posting to keep me entertained or anything...

[SnyderShrugged]

So would the other judges, the ones that found it wasn't unconstitutional. :whoknows: Its going to go to the Supreme Court, precisely because it is actually a close isse.

yes

[Predicto]

The evolution of the discussion in this thread tells me either that the supporters of ObamaCare don't know how to refute the case or that they're just not around. Not sure which, but they've disappeared, from this thread at least.

What could we say that would be of interest to you? I could just selectively quote from blogs that disagree with the decision, but that wouldn't be of much use.

I actually am a constitutional law expert. I do it for a living. But I usually pipe up only when I see someone mangling a constitutional issue, completely missing the meaning of a decision, or misrepresenting basic constitutional jurisprudence.

In this case, we all understand what the point is, and what the arguments are, and the question is a close one, so I don't have much to add. We will know the final answer eventually.

[Tulane Skins Fan]

Actually, I'd like to hear a response to nonnie's post. Not that I think you guys are posting to keep me entertained or anything...

The USA Today op ed?

Here's what I posted earlier that is a link to an actually unbiased legal analysis of the issue: http://www.dcbar.org/for_lawyers/resources/publications/washington_lawyer/january_2011/obamacare.cfm

Its from the DC Bar and it came out before Vinson's ruling. It explains both sides of the issues well.

[Wrong Direction]

Its the 10th page of the thread. so, the arguments have been made.

By the way, I read the DC Bar link you wrote and thought it was informative. Of the three primary issues they raised, I think the court will settle on the "is the penalty a tax" issue easiest. In a nutshell, but somehow not directly mentioned there, I don't believe they'll rule it is a tax precisely because it was sold to the American people as not a tax...in other words, on false pretenses if indeed it is a tax. They mention that Obama said it wasn't a tax, but they don't mention that by implication, the American people and even members of Congress were misled about what they were voting on at the time if it indeed is a tax.

Of the three arguments, I think that's going to be the Administration's toughest to make both politically and legally.

[Tulane Skins Fan]

By the way, I read the DC Bar link you wrote and thought it was informative. Of the three primary issues they raised, I think the court will settle on the "is the penalty a tax" issue easiest. In a nutshell, but somehow not directly mentioned there, I don't believe they'll rule it is a tax precisely because it was sold to the American people as not a tax...in other words, on false pretenses if indeed it is a tax. They mention that Obama said it wasn't a tax, but they don't mention that by implication, the American people and even members of Congress were misled about what they were voting on at the time if it indeed is a tax.

Of the three arguments, I think that's going to be the Administration's toughest to make both politically and legally.

Hmm. You could be right.

I can say that there is case law out there, not specifically from the SC, that basically says "don't tell me what the politics were of the law." Courts do look to legislative intent though, in the right circumstances.

Like I've said all along, I think its very close, but I think its constitutional. I would not be surprised either way.

I will point out that the score is not 2-2 though in judges. I think its actually 14-2 in favor of the bill being constitutional, because I think that 12 cases have been thrown out on the standing issue. I don't know if that is a real issue going forward but it would be a great way for the SC to punt on a highly charged political and emotional issue.

[Wrong Direction]

I also got a sense reading that of why the replace portion of the R agenda is so important. At it's simplest, if an alternative without a mandate is on the table, that makes the reasonable and necessary case somewhat harder to make.

---------- Post added February-3rd-2011 at 05:22 PM ----------

Hmm. You could be right.

I can say that there is case law out there, not specifically from the SC, that basically says "don't tell me what the politics were of the law." Courts do look to legislative intent though, in the right circumstances.

Like I've said all along, I think its very close, but I think its constitutional. I would not be surprised either way.

I will point out that the score is not 2-2 though in judges. I think its actually 14-2 in favor of the bill being constitutional, because I think that 12 cases have been thrown out on the standing issue. I don't know if that is a real issue going forward but it would be a great way for the SC to punt on a highly charged political and emotional issue.

Yeah, I'm aware of the intent issue as well.

I really don't think they'll punt on this one unless they hold off a decision until after election 2012.

[Tulane Skins Fan]

I also got a sense reading that of why the replace portion of the R agenda is so important. At it's simplest, if an alternative without a mandate is on the table, that makes the reasonable and necessary case somewhat harder to make.

---------- Post added February-3rd-2011 at 05:22 PM ----------

Yeah, I'm aware of the intent issue as well.

I really don't think they'll punt on this one unless they hold off a decision until after election 2012.

They might not. But politics is something the SC has a reputation for trying to avoid. And truthfully, this is a close legal issue, but even moreso its a political issue.

If they do rule on the commerce clause/tax clause/necessary and proper clause, no matter how they rule, its going to be a game changer.

[twa]

You would think a lawyer wouldn't count cases thrown out for standing a victory....unless he was biased :poke: :evilg:

[Wrong Direction]

What could we say that would be of interest to you? I could just selectively quote from blogs that disagree with the decision, but that wouldn't be of much use.

I actually am a constitutional law expert. I do it for a living. But I usually pipe up only when I see someone mangling a constitutional issue, completely missing the meaning of a decision, or misrepresenting basic constitutional jurisprudence.

In this case, we all understand what the point is, and what the arguments are, and the question is a close one, so I don't have much to add. We will know the final answer eventually.

Actually, with that post you've come a long way from where others are earlier in the thread.

No that's entirely false. The two judges who are ruling against the Commerse Clause explaination are certainly ignoring 80 years of precident and established case law. They are being your typical activist judges trying to advocate not for how the law is interpreted today; but how they think the law should be interpreted.....

But that doesn't mean the supreme court won't side with them. It will likely come down to what side of the bed Kennedy wakes up on.

[DRSmith]

They might not. But politics is something the SC has a reputation for trying to avoid. And truthfully, this is a close legal issue, but even moreso its a political issue.

If they do rule on the commerce clause/tax clause/necessary and proper clause, no matter how they rule, its going to be a game changer.

Of late the SCOTUS seems to be becoming more political with Thomas's wife having a tea party group and Salias going to adress the tea party group at congress it is clear this will come down to justice Kennedy

[mardi gras skin]

They might not. But politics is something the SC has a reputation for trying to avoid. And truthfully, this is a close legal issue, but even moreso its a political issue.

If they do rule on the commerce clause/tax clause/necessary and proper clause, no matter how they rule, its going to be a game changer.

According to the article you posted, politics looks to be a major factor.

“You start off with proposition that the Supreme Court will bend over backward to uphold acts of Congress. That’s principle Number One. [The Court] always [has]. The smart money says that’s what they’ll do this time, because they have the doctrine of the presumption of constitutionality. They especially want to uphold the bill if it’s popular. So the smart money says, Of course they’ll uphold the bill,” Barnett says.

“Then you start changing the assumptions. If the Court perceives that the bill is unpopular, if the Court perceives that it was passed by a bare partisan majority,” Barnett says it might balk at supporting it, adding: “It’s the first substantial legislation that’s passed by a bare partisan majority.”

As for the argument that the Court has not struck down social programs, including Social Security, Medicare, and civil rights, those “all passed with bipartisan support,” Barnett notes.

“So if one or both houses of a changing Congress” weaken in their support for the legislation, “and if [the justices] see Democrats who voted for the bill running away from it, at that point I think they would be open to valid constitutional objections to the [mandate]. And since I think there are valid constitutional objections to it, I think there could be five votes to strike down. If it’s unpopular, then I think there very well could be five votes to strike this bill down,” Barnett says.

[twa]

He makes good points,and consent of the governed does factor in for good or ill

[Predicto]

Actually, with that post you've come a long way from where others are earlier in the thread.

Well, JMS does not speak for me, although he does make a good point.

The fact is, not many years ago, there would have been little question that this was constititional. However, concerted GOP efforts to appoint only the most conservative possible judges have pushed the courts steadily to the right. This is especially true on the Supreme Court and the DC Circuit, and now all sorts of established precedents are being called into question. The conservative majority currently on the Court has shown themselves to be quite the judicial activists when they want to be. So now I consider this case a very close call, where it might not have been one in the past.

You may or may not think this shift to the right is a good or necessary thing. There is no point to arguing about that. But it certainly has happened. I think that was JMS's point.

[Wrong Direction]

Well, JMS does not speak for me, although he does make a good point.

The fact is, not many years ago, there would have been little question that this was constititional. However, concerted GOP efforts to appoint only the most conservative possible judges have pushed the courts have moved steadily to the right. This is especially true on the Supreme Court and the DC Circuit, and now all sorts of established precedents are being called into question. The conservative majority currently on the Court has shown themselves to be quite the judicial activists when they want to be. So now I consider this case a very close call, where it might not have been one in the past.

You may or may not think this shift to the right is a good or necessary thing. There is no point to arguing about that. But it certainly has happened. I think that was JMS's point.

Incorrect. JMS said the judges ignored 80 years worth of precedent when they clearly not only didn't ignore it, but they addressed it as they deemed appropriate.

And yes, it's probably good that we don't get into the judicial activism conversation. We do differ, though I'm not a constitutional law expert.

[Predicto]

Incorrect. JMS said the judges ignored 80 years worth of precedent when they clearly not only didn't ignore it, but they addressed it as they deemed appropriate.

Well, when they agree with you, you say they addressed it. When they disagree with you, you say they ignored precedent.

And yes, it's probably good that we don't get into the judicial activism conversation. We do differ, though I'm not a constitutional law expert.

I probably should not call myself an expert, because I'm not an expert in the same sense as a published Con Law professor. I'm just an attorney who researches and writes for the judges of an appellate court. On the other hand, I do know a hell of a lot more about con law than Andrew Napolitano.

And besides, there are plenty of genuine con law experts out there who are conservative and who disagree with me on this, so I can't claim to have the absolutely correct answer. It's not a math problem, and there is no absolutely correct answer. Constitutional interpretation is tricky stuff, and it changes over time, but its still the best system of legal governance I know of.

[shk75]

Well, JMS does not speak for me, although he does make a good point.

The fact is, not many years ago, there would have been little question that this was constititional. However, concerted GOP efforts to appoint only the most conservative possible judges have pushed the courts have moved steadily to the right. This is especially true on the Supreme Court and the DC Circuit, and now all sorts of established precedents are being called into question. The conservative majority currently on the Court has shown themselves to be quite the judicial activists when they want to be. So now I consider this case a very close call, where it might not have been one in the past.

You may or may not think this shift to the right is a good or necessary thing. There is no point to arguing about that. But it certainly has happened. I think that was JMS's point.

The shift to the right is not just in the courts it is in US politics in general. The last real era of leftist politics died when LBJ was no longer in office. That is why Obama "shoved his reform down our throats" lol because any politician knows there are certain policy "windows" that only come around once every 40 or 50 years. LBJ wanted universal care but he settled for an incremental approach and only enacted Medicare/Aid. Obama wanted universal care but he settled for his reforms and he knew he had to do it quickly or else the window would close and who knows when the next opportunity would come since there has been a steady shift to the right in the last 50 years.

[aREDSKIN]

Constitutional interpretation is tricky stuff, and it changes over time, but its still the best system of legal governance I know of.

So then the issue of PRECEDENCE Is FLUID, not absolute, and not to be taken "that seriously" especially when new facts and situations occur?

[Drockvb]

I am looking forward to getting on a Government provided plan. It's way cheaper than what i pay now.

[Bliz]

So then the issue of PRECEDENCE Is FLUID, not absolute, and not to be taken "that seriously" especially when new facts and situations occur?

That's a very glib interpretation of what Predicto said, but in a manner of speaking, yes. The highest state and federal courts in the land (only the US Supreme Court and state equivalents, NOT the lower federal or state courts) have the authority to revisit precedent and modify or overturn it if appropriate. It is fluid only in the sense that the body of precedent is continually supplemented through each new decision that comes down, and through the occasional decision to break with precedent.

That does NOT mean it is "not to be taken 'that seriously'." The decision to abandon or overturn precedent is generally made cautiously and extremely carefully, and pretty rarely. Not willy-nilly. New facts and situations arise all the time. Precedent generally gives a pretty good roadmap of how they should be dealt with, by explaining how we have dealt with analogous questions.

[Tulane Skins Fan]

You would think a lawyer wouldn't count cases thrown out for standing a victory....unless he was biased :poke: :evilg:

Why is that biased?

[Wrong Direction]

The shift to the right is not just in the courts it is in US politics in general. The last real era of leftist politics died when LBJ was no longer in office. That is why Obama "shoved his reform down our throats" lol because any politician knows there are certain policy "windows" that only come around once every 40 or 50 years. LBJ wanted universal care but he settled for an incremental approach and only enacted Medicare/Aid. Obama wanted universal care but he settled for his reforms and he knew he had to do it quickly or else the window would close and who knows when the next opportunity would come since there has been a steady shift to the right in the last 50 years.

An interesting read, but also quite boring, is The Politics of Medicare.

This books revisits the politics of when Medicare was first passed into law. Talk about getting snookered, the R's strategy blew up big time. LBJ wanted Medicare, the healthcare equivalent to Social Security. Republicans said no. They wanted only a program for the sick and poor, and they wanted to give states control. Both parties sparred over this for a while, but the Democrats had super majorities of both houses at the time. What did LBJ do? He said ok to the Republicans and to himself, so Congress passed both Medicare and the Republican alternative, Medicaid.

Talk about a D'Oh moment for Republicans.

[aREDSKIN]

Isn't this just the end game the Dems really want??

Bernie Sanders, the “independent” but self-described socialist senator from Vermont, told MSNBC yesterday he has a novel idea for reforming health care — get rid of all the private health insurance companies:

“I hope to be able to get waivers from Congress and the White House to allow us to do so. At the end of the day, if you are going to provide health care to all of our people in a cost effective way, you have to get rid of the health insurance companies, not profiteering and bureaucracy,” he said.

http://www.theblaze.com/stories/sen-bernie-sanders-get-rid-of-all-private-insurance-companies/

[NavyDave]

So liberals believe that Socialized Healthcare and mandated personal insurance should be a constitutional right.

So the correct ruling by the federal judge in Florida should be ignored by Obama just like he did with the ruling about the oil drilling moratorium being found unconstitutional but is still dragging his feet when it comes to giving out permits, which means he is now in Contempt of court. You can bet the house Obama Admin will be in contempt again when it comes to Obamacare.