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evilweasel posted:No, see, those people already have had Obamacare. They liked having insurance. If it suddenly gets taken away from them they're not going to go "yeah, down with Obamacare", they're going to want their health insurance back. And they're going to be very unhappy when they realize that their state legislature could easily give it back to them at no cost to the state. Say it's Obama's fault enough and that's what it will be. The GOP has two whole years to say it was Obama's fault. I have never heard the man's name spoken around here without a thick coating of venom on top, and I live in loving New Jersey.
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Nov 9, 2014 16:37
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computer parts posted:Number of times people actually care about the Supreme Court as a separate entity:   It happens, it's just rare. And surprise surprise it usually happens when a sane court pisses off paleoconservatives!
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Nov 9, 2014 16:37
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Oxxidation posted:Say it's Obama's fault enough and that's what it will be. The GOP has two whole years to say it was Obama's fault. Unless the supreme court strikes the whole thing down as unsustainable (which would require arguing that congress had the intention of passing a law that would self destruct), what would happen in the case of a repeal of federal subsidies is that people would be left with contracted policies and no subsidy. Meaning a few million people having to pay more that they can afford the month after the ruling comes down. Even if they initially blame Obama, at that point the GOP will actually have to cast a vote for something, as the "fix" would be outside of Obama's hand. They'd have to cast a vote for repealing the whole thing, or fixing the whole thing. In other words, they wouldn't be able to just sit back and let Obama take the blame. They'd have to either intentionally remove healthcare from a bunch of people, intentionally let a bunch of people go broke, or something like that. At which point they wouldn't be just blaming Obama. joepinetree fucked around with this message at 17:24 on Nov 9, 2014 |
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Nov 9, 2014 17:10
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joepinetree posted:Unless the supreme court strikes the whole thing down as unsustainable (which would require arguing that congress had the intention of passing a law that would self destruct), what would happen in the case of a repeal of federal subsidies is that people would be left with contracted policies and no subsidy. Meaning a few million people having to pay more that they can afford the month after the ruling comes down. The argument is not that the subsidies are unconstitutional, the argument is that supposedly the law limits the subsidies to state exchanges. No part of the law would be struck down - they'd say that the IRS practice of giving subsidies on healthcare.gov had to stop. There'd be no chance to make an issue of the lack of a severability clause again.
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Nov 9, 2014 18:54
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evilweasel posted:The argument is not that the subsidies are unconstitutional, the argument is that supposedly the law limits the subsidies to state exchanges. No part of the law would be struck down - they'd say that the IRS practice of giving subsidies on healthcare.gov had to stop. There'd be no chance to make an issue of the lack of a severability clause again. My point is not about the plausibility or likelihood of such an action, only that it'd be the only way to avoid some fallout for republicans.
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Nov 9, 2014 20:46
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Oxxidation posted:Say it's Obama's fault enough and that's what it will be. The GOP has two whole years to say it was Obama's fault. As opposed to the 14 years the Dems have been saying it's Bush's fault?
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Nov 10, 2014 01:01
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ActusRhesus posted:As opposed to the 14 years the Dems have been saying it's Bush's fault? Yah except this time it isn't true.
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Nov 10, 2014 01:15
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evilweasel posted:The argument is not that the subsidies are unconstitutional, the argument is that supposedly the law limits the subsidies to state exchanges. No part of the law would be struck down - they'd say that the IRS practice of giving subsidies on healthcare.gov had to stop. There'd be no chance to make an issue of the lack of a severability clause again. Why do i see the surprise being that if it does get struck down congress will pass "Get rid of the stuff we don't like and we'll fix one of the things that got our boy John Roberts up and broke." The political calculus is insane if any part of it gets touched.
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Nov 10, 2014 02:26
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Since the right wing of the court has such a chubby for "original intent," doesn't that resolve the ambiguity since everyone who wrote the ACA is still around?
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Nov 10, 2014 14:56
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Bubbacub posted:Since the right wing of the court has such a chubby for "original intent," doesn't that resolve the ambiguity since everyone who wrote the ACA is still around? You can't trust what the Senator tells you their intent was. You have to feel it in your gut as a Supreme Court Justice.
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Nov 10, 2014 14:58
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Devor posted:You can't trust what the Senator tells you their intent was. You have to feel it in your gut as a Supreme Court Justice. The irony is killing me. Oh god, it hurts.
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Nov 10, 2014 15:19
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Bubbacub posted:Since the right wing of the court has such a chubby for "original intent," doesn't that resolve the ambiguity since everyone who wrote the ACA is still around? Original Intent means "whatever the founding fathers would have said about this". This would be Legislative History, which originalists have always rejected.
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Nov 10, 2014 16:25
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computer parts posted:Number of times people actually care about the Supreme Court as a separate entity: Protip, you forgot to type a list there. Oh? Oh, right 
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Nov 10, 2014 16:30
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ComradeCosmobot posted:Original Intent means "whatever the founding fathers would have said about this". This would be Legislative History, which originalists have always rejected. How does that work for, say, XIVth Amendment (or any other one passed in a later period of American history)?
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Nov 10, 2014 16:31
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OddObserver posted:How does that work for, say, XIVth Amendment (or any other one passed in a later period of American history)? Theoretically, you should look at the original intent when it was passed. In practice, you'll have things like the Voting Rights Act case where the 14th was interpreted to limit Congress's power to abrogate the sovereignty of states despite being passed by a Congress that was enforcing a military occupation on recalcitrant states and had ordered them to approve the 14th Amendment if they wanted to ever be a state again and would have laughed themselves hoarse at the idea where they're still just applying the "original intent" of the founders because in practice 'orginalism' is a political philosophy rather than an interpretive philosophy.
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Nov 10, 2014 16:37
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evilweasel posted:Theoretically, you should look at the original intent when it was passed. excuse me sir dred scott is still good law the supreme court just said so
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Nov 10, 2014 17:40
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This thread makes me really uncomfortable with the con law classes I took in law school. I went in with a ba and ma in American history, and thought I'd love conlaw. But we never even learned the concept of scrutiny, all we focused on was political gerrymandering. My law school was a quarter system, and con law was only 9 weeks long. Reading EWs and ARs and Wars posts has really shown me how little constitutional law I learned. And I'm in a field where I don't touch any of these issues, but I'm about to start a job where I probably will. About the only line of cases I'm familiar with Troxel and the ICWA, since it's family law and i practice(d) in a tribal area. To add content: what the hell should I be reading in my free time to re/teach myself the basics. I'm not going to get an E and E in constitutional law, because Jesus there's got to be something less law schooly.
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Nov 10, 2014 17:46
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evilweasel posted:Theoretically, you should look at the original intent when it was passed. But there's that whole part in the amendment about equal protection of the states regardless of the states' color, creed, or previous condition of disenfranchising the gently caress out of the poor or the darker-skinned 
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Nov 10, 2014 17:54
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ComradeCosmobot posted:Original Intent means "whatever the founding fathers would have said about this". This would be Legislative History, which originalists have always rejected. This is true. For you see, the Constitution is like the Torah. The document was literally perfect the section the last signature was added. Subsequent developments have been mere heresies and innovations that taint the original divine message of the document and we should be working like rabbinical scholars to try our best to restore the original intent of the document as conceived by men of unfathomable genius, the likes of whom our nation may never see again. I have heard an apologist for Scalia use roughly this kind of wording before. It's borderline Bioshock sentiment.
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Nov 10, 2014 18:00
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ProperGanderPusher posted:This is true. For you see, the Constitution is like the Torah. The document was literally perfect the section the last signature was added. Subsequent developments have been mere heresies and innovations that taint the original divine message of the document and we should be working like rabbinical scholars to try our best to restore the original intent of the document as conceived by men of unfathomable genius, the likes of whom our nation may never see again. ahahahah the best part is that it's literally the opposite of how Jews interpret Torah
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Nov 10, 2014 18:05
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Hot Dog Day #91 posted:To add content: what the hell should I be reading in my free time to re/teach myself the basics. I'm not going to get an E and E in constitutional law, because Jesus there's got to be something less law schooly. Here you go. Surprisingly cheap and readable, for what it is. C-man's awesome.
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Nov 10, 2014 18:13
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Yeah, Chemerinsky's great. If you'd rather not do the casebook, he has a more readable con law supplement that most of us used in law school to explain the black letter law when we had a hard time with cases. This is going to sound dumb, but the Wikipedia articles on the topic aren't that bad either. For instance, the strict scrutiny one is pretty good.
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Nov 10, 2014 18:23
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So how much liquor should I be stockpiling for the decision on King v. Burwell?
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Nov 10, 2014 21:06
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Not much.
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Nov 10, 2014 21:19
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Green Crayons posted:Not much. Don't want to be hospitalized with alcohol poisoning when the SCOTUS un-reforms healthcare.
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Nov 10, 2014 21:24
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FAUXTON posted:Don't want to be hospitalized with alcohol poisoning when the SCOTUS un-reforms healthcare. Well SCOTUSblog thinks it's a big nothing but my pessimism for the Roberts court knows no bounds.
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Nov 10, 2014 21:25
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ProperGanderPusher posted:This is true. For you see, the Constitution is like the Torah. The document was literally perfect the section the last signature was added. Subsequent developments have been mere heresies and innovations that taint the original divine message of the document and we should be working like rabbinical scholars to try our best to restore the original intent of the document as conceived by men of unfathomable genius, the likes of whom our nation may never see again. I was going to go on a long originalism rant, but I cut most of it out. There is a serious amount of founder worship connected to originalism, but the academic grounding of originalism isn't that the founders were right, its that they're all we've got. Assuming a law has not been amended, the only people who ever expressed consent to the law through the democratic processes are the people alive at the time of the laws enactment. Those people obviously consented based on their understanding of the law. If you believe that consent of the governed is necessary for the validity of our laws, then we must look back to that original understanding, because that is the only version to which the people have expressed their consent. If the people do not like that understanding, then they should use the democratic process to rescind their consent and adopt a new understanding. To be clear, I'm not an originalist, and I think I disagree with literally every premise of the argument I just wrote, but that's the basic originalist argument summarized. It's not that original intent is best, it's that anything else is non-democratic. Also, while it has roots in formalism, originalism is primarily a political movement aimed primarily at rolling back the progress of the Warren Court.
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Nov 10, 2014 21:38
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It's a nice thing that we don't live in a democracy and that our government was set up and established to protect people from these exact pitfalls of a pure democracy.
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Nov 10, 2014 21:43
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Zeitgueist posted:Well SCOTUSblog thinks it's a big nothing but my pessimism for the Roberts court knows no bounds. Here's the basic facts, from which you can draw your own conclusions: As to "why'd they take the case": Four justices are required to take a case. Presumably, these are the four anti-ACA votes: Thomas, Scalia, Alito, and Kennedy. They don't need to think they'll win in order to want to take the case, but it's presumably going to be something they think about. So you can assume they voted to take it because they think they've got it in the bag, or they think Roberts was with them once, why not give it a shot. Also, normally they would never take this case - there is no circuit split as the DC judgment was vacated and the interpretive rule here is well known and not going to be changed (if it's not ambiguious, do what it says, if it's ambiguious defer to the agency implementing it) - all they're going to be doing is applying that rule. The Supreme Court does not usually do this: it's happy to let a judgment that's probably wrong but doesn't announce a bad rule of law sit there because they can't correct everything. That interpretation favors that they took it for political reasons because the conservatives want to take another swing at the law. Alternatively, perhaps everyone just wants to settle this stupid thing once and for all and are taking the case to short-circuit people litigating over it for years and just want to slap down a stupid argument quickly (I think this is hardly likely, but it is possible). That's basically what you can read into the decision to take it. As to what would happen: What an unfavorable decision would hold would be that by the text of the law subsidies were only available on state exchanges. So you'd run into a problem with only states that did not establish their own exchange. States that use the federal exchange could have done so for two reasons: (1) Their exchange failed miserably or otherwise didn't want to set up their own or (2) because down with Obamacare. For (1), those states can officially declare the Federal exchange their state exchange and get out of this problem pretty quickly. For (2), then things get dicey. Those states obviously have governments that want to destroy Obamacare, but Republicans have started admitting full repeal is not going to happen. So you have the question of what the politics are and what the end result will be. Democrats, obviously, will loudly decry the decision and push for two things: (1) to correct the text of the law (not going to happen) and (2) force each state to declare the federal exchange is their exchange, allowing subsidies again, or set up their own exchange. Republicans will push for (1) full repeal (also not going to happen) or (2) to exempt individuals in states without an exchange from the mandate. I personally believe Democrats would win that battle in most places: when you can beat the drum that your state government can, with the stroke of a pen, give you back your heathcare at no cost to the state, you place Republicans in a very bad position. Obviously there's parallels to Medicaid, where Republicans could and did refuse to expand Medicaid and denied people health insurance for obviously political reasons. However those people never actually got any health insurance so this was less real to them than having had insurance for a year and a half then suddenly having it taken away. People will be furious and I don't think that even in states with the most inept Democrats and the most politically astute Republicans that the Democrats can lose that messaging battle. And even with medicaid, many red states actually did take the expansion. At the end of the day I think that Roberts still won't be willing to go this far on an obviously untenable legal argument. If he does though, I think you'd see most states get rapidly fixed and that Republicans would take a beating in local elections over it (though the timing means it would be about as far from an election that matters as it could be).
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Nov 10, 2014 21:52
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Also, from reviewing SCOTUSblog the blog itself doesn't seem have a published opinion, they're publishing articles from all sides about it (including some from the challengers). I certainly wouldn't say they think it's not a big deal.
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Nov 10, 2014 22:06
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As an aside, I think both the Halbig majority and dissent were wrong: the text requires federal subsidies such that any other interpretation is contrary to statutory text, such that a Republican president can't legally withdraw them.
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Nov 10, 2014 22:09
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WhiskeyJuvenile posted:As an aside, I think both the Halbig majority and dissent were wrong: the text requires federal subsidies such that any other interpretation is contrary to statutory text, such that a Republican president can't legally withdraw them. I agree with this as well: the reason being that the statute is clear that the Federal exchange is a state exchange as defined by the text. The HHS Secretary acts on the state's behalf when establishing the exchange and under the law there is no such thing as a non-state exchange.
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Nov 10, 2014 22:14
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evilweasel posted:No, see, those people already have had Obamacare. They liked having insurance. If it suddenly gets taken away from them they're not going to go "yeah, down with Obamacare", they're going to want their health insurance back. And they're going to be very unhappy when they realize that their state legislature could easily give it back to them at no cost to the state. You're assuming that the Republicans can't separate "Obamacare" from "my insurance."
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Nov 10, 2014 22:15
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evilweasel posted:I agree with this as well: the reason being that the statute is clear that the Federal exchange is a state exchange as defined by the text. The HHS Secretary acts on the state's behalf when establishing the exchange and under the law there is no such thing as a non-state exchange. It's my dream that this is why they took the case. They're going to say exactly that and tell everyone to shut up. I'm sure I'll be horribly disappointed. At least it lasted long enough in Texas to keep my step dad alive.
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Nov 10, 2014 22:18
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OK, thank you. quote:At the end of the day I think that Roberts still won't be willing to go this far on an obviously untenable legal argument. If he does though, I think you'd see most states get rapidly fixed and that Republicans would take a beating in local elections over it (though the timing means it would be about as far from an election that matters as it could be). Yeah that's what makes me think it's going to be bad.
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Nov 10, 2014 22:21
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VideoTapir posted:You're assuming that the Republicans can't separate "Obamacare" from "my insurance." The people who are at risk are only the people who signed up on healthcare.gov. A situation like Kentucky with people who have their heath insurance through something they didn't know was Obamacare (it's not Obamacare, its Kynect!) isn't going to happen here. The people affected are the ones who are most aware their insurance is Obamacare. evilweasel fucked around with this message at 22:24 on Nov 10, 2014 |
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Nov 10, 2014 22:22
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It makes sense. The democrats hosed up so the SC had to strike down part of the law. Your responsible republican state government had to step in and fix it. That's what the political ads will say, at least.
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Nov 10, 2014 22:22
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Mr. Nice! posted:It makes sense. The democrats hosed up so the SC had to strike down part of the law. Your responsible republican state government had to step in and fix it. That's what the political ads will say, at least. It is darkly hilarious that this could actually work. Fortunately I think the Republican base will be screaming loudly enough to keep those poors away from healthcare that they won't be able to swing it.
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Nov 10, 2014 22:24
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I drive by the Florida Democratic Party's office almost every day. I want to just go in there and yell at them for how loving stupid they are with television ads. The loving republican ads down here were some insidious poo poo. They were full of blatant lies and outdated statistics presented as fact. The democrats, otoh, were a bunch of spineless shits. The only one that actually went after an opponent and called him out on his poo poo while still actually explaining why things are good instead of boogeymanning it up won her race.
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Nov 10, 2014 22:40
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The following is a nice piece on the origins of this current issue, and highlights how really centralized the opposition to ACA is: http://kaiserhealthnews.org/news/how-obamacare-went-south-in-mississippi/ The short version: the week the 2012 supreme court decision came down, CATO and other conservative think tanks quickly reversed course and had republican led states pull their state exchange plans, even in cases where they had already contracted with vendors for the state exchanges. Even at the loss of millions of dollars worth of previously contracted services it became imperative to have federal, and not state, exchanges in place.
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Nov 10, 2014 22:41
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