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On SCOTUSblog and also a few right wing sources, I've seen mention of Johnathan Gruber's quotes as proof that the subsidies were intended to be used as encouragement for states to adopt their own exchanges, implying that the subsidies would be lost if the state chose not to participate. As someone who was involved with writing the ACA, do his statements on the law's intent have any legal influence on the case? I think he's since recanted his earlier remarks and says that he misspoke. Here's the relevant portion from SCOTUSblog: quote:And even if such a transformation of the text were possible, the result would undermine Congress’s very specific intent with the limitation it placed in Section 36B, which was to induce the states to cooperate with Congress’s desire to have the states establish and operate exchanges by conditioning the availability of credits and subsidies on the states establishing an exchange — an intent confirmed by the ACA’s architect, Jonathan Gruber, when he proclaimed in 2012 that “I guess I’m enough of a believer in democracy to think that when the voters in states see that by not setting up an Exchange, the politicians in their state are costing state residents hundreds of millions and billions of dollars that they’ll eventually throw the guys out. But I don’t know that for sure. And that is really the ultimate threat, is: Will people understand that, gee, if your governor doesn’t set up an Exchange, you’re losing hundreds of millions of dollars of tax credits to be delivered to your citizens?” Please say this isn't as damning as it looks.
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Nov 10, 2014 22:52
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Sentient Desk Lamp posted:On SCOTUSblog and also a few right wing sources, I've seen mention of Johnathan Gruber's quotes as proof that the subsidies were intended to be used as encouragement for states to adopt their own exchanges, implying that the subsidies would be lost if the state chose not to participate. As someone who was involved with writing the ACA, do his statements on the law's intent have any legal influence on the case? I think he's since recanted his earlier remarks and says that he misspoke. Probably not. There's no way you can actually start looking at what people said about how the law worked and get away with saying that the federal exchange wouldn't have subsidies and so the conservatives won't want to go there. They'll want to say whatever they meant, the law says something else and the law means what it says. It's a useful political attack to hide how contemptibly false the legal argument is but it's not relevant.
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Nov 10, 2014 22:57
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evilweasel posted: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. I haven't seen many discussions, including those on SCOTUSblog, that have challengers and supporters engaging each other's arguments. My understanding of the ACA supporter position: 1. Congress clearly intended that the subsidies would apply to all. 2. The definitions of the exchanges are unambiguous. 3. It is inconceivable that Congress would draft legislation to give subsidies to all and then deny them based on a textual interpretation. 4. The IRS gets to decide anyway. 5. Since the ACA envisions a Federal Exchange, there is no reason why the IRS cannot rule that the eligibility requirements have been met with the Feds acting as agents of the States that failed to set up their exchanges. 6. Most of the contemporaneous drafters and architects, the state governments in question, and everybody else, understood that everyone would get the subsidies, and none of the state governments were threatened with the revocation of subsidies. It was understood that the existence of the Federal Exchange was a political concession that would allow states to avoid direct association with the ACA. My understanding of the challenger view: 1. Congress did intend that the subsidies would not apply to states that did not create their exchanges. 2. This was done expressly to encourage recalcitrant State Legislators to do so. 3. They never imagined that the states would refuse to create the exchanges anyway. 4. The ACA does not provide any funding for the creation of the Federal Exchanges. 5. Congress has used this method (of denying generous Federal funding as punishment to states for failing to adopt Federal expansions) many times in the past, so this should be straightforward. 6. The IRS has subverted Congress' true intent, which is that those using Federal Exchange should have been ineligible for subsidies thereby provoking a political reaction for the constituents of the recalcitrant legislators that blocked them. I don't see any challengers rebutting the point that it is logical that the overall intent of the ACA was to provide the subsidies since it does not work properly without them, and that if Congress intended the subsidies to be used as a cudgel they could have made that explicit. I don't see the supporters contending directly with the assertion that Congress intended to punish States for failing to set up their own exchanges by withholding the subsidies. Instead most of the arguments are restating that logical inconsistencies, the regulatory authority of the IRS, etc.
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Nov 10, 2014 23:05
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amanasleep posted:I don't see the supporters contending directly with the assertion that Congress intended to punish States for failing to set up their own exchanges by withholding the subsidies. There is no support whatsoever for that view besides the incorrect statement that Sentient Desk Lamp quoted and that statement is the entire factual support for that argument. If it was actually intended then you'd have a ton of public statements to that effect and the threat would have been made explicitly. After all, what is the point of a threat that nobody is even aware of? It's hard to rebut because it's so flagrantly untrue that there's not much to specifically rebut it because it's so obviously untrue nobody would have even thought to deny it at the time. Furthermore we can ask Congress and every single member who voted for the ACA will deny that interpretation.
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Nov 10, 2014 23:08
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evilweasel posted:There is no support whatsoever for that view besides the incorrect statement that Sentient Desk Lamp quoted and that statement is the entire factual support for that argument. If it was actually intended then you'd have a ton of public statements to that effect and the threat would have been made explicitly. After all, what is the point of a threat that nobody is even aware of? Yes, that is the political problem. Conservatives have discovered that the best argument is one that is so ridiculous that it is hard to rebut because regular argumentation fails to engage. I haven't seen a detailed demolition of it yet, which is probably why we are seeing it fester. edit: I think the type of "textual" arguments being put forth have great appeal to sovereign citizen types who think the law is actual magic words which can be nullified with counterspells. amanasleep fucked around with this message at 23:15 on Nov 10, 2014 |
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Nov 10, 2014 23:13
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Hot Dog Day #91 posted: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. You give me too much credit. Were it not for amendments 4, 5, 6, and 8, I would not have much con law experience either. But having to deal with any of the amendments on a semi-regular basis helps keep the overlying principles honed. For quick reviews, I really liked Emmanuels. Or you can see if your local law school does a used books and supplements sale and see if anyone is unloading last year's barbri stuff.
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Nov 10, 2014 23:14
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amanasleep posted:Yes, that is the political problem. Conservatives have discovered that the best argument is one that is so ridiculous that it is hard to rebut because regular argumentation fails to engage. No, give the textual arguments a little more credit than that: what they're doing is quoting out of context where a reader would assume a term has a certain definition, but it's defined as something else in the cut out portion. It's different than the sovereign citizen nonsense - the people attacking the ACA know this is complete nonsense but basically hope to win through the courts because hey, they almost won last time so why not give it a go.
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Nov 10, 2014 23:18
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SFFA is launching its effort to dismantle affirmative action. Smart move to use organizational standing instead of betting on a test plaintiff. The pleadings (linked in the blog post) are interesting in their attempt to tie modern post-Bakke race-conscious admissions to the anti-Jewish quotas, plus Harvard is a good target to hit because of popular conceptions about the kind of people who get admitted, regardless of color.
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Nov 17, 2014 20:19
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quote:The complaint also contended that Harvard has a policy of giving preferences to applicants whose parents make significant money contributions to the university, and it suggested that “minority students are far less likely to be children of wealth donors." Take THAT trust fund babies!
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Nov 17, 2014 20:28
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ActusRhesus posted:Take THAT trust fund babies! The best part of this is that eliminating legacy and "developmental" admits is proposed as a "potential race-neutral alternative." Leaving aside my idiosyncratic position on legacy admissions as well as the numerous resource-related correlations with those groups most likely resulting in wink-wink totally on merit admissions, I don't think I've ever seen a reform proposed with less intent of effecting change. Still this is so much smarter than Fisher, it has all the little bits of political cover you need.
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Nov 17, 2014 20:34
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The Warszawa posted:
From a Layman's perspective Fisher looked for all the world like a salty mediocre white girl who was angry that her first choice school said no. So what's up with the DC court telling Priests for Life to file for a BC exemption? Are the Supremes going to take it up and permits Chaos to Reign through unbridled RRFA claims?
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Nov 18, 2014 03:58
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Rygar201 posted:From a Layman's perspective Fisher looked for all the world like a salty mediocre white girl who was angry that her first choice school said no. Trust me, it wasn't just from a layman's perspective! Fisher was a case for only the truest of true believers, which is why it was an 8-1 punt.
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Nov 18, 2014 04:02
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The Warszawa posted:Trust me, it wasn't just from a layman's perspective! Fisher was a case for only the truest of true believers, which is why it was an 8-1 punt. Who was the dissenter and how did that justice want to handle things?
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Nov 18, 2014 04:13
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Ogmius815 posted:Who was the dissenter and how did that justice want to handle things? RBG, to affirm upholding the policy.
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Nov 18, 2014 05:20
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Ogmius815 posted:Who was the dissenter and how did that justice want to handle things? RBG, giving zero fucks and chastizing the votes to strike down affirmative action.
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Nov 18, 2014 05:43
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The Warszawa posted:RBG, giving zero fucks and chastizing the votes to strike down affirmative action. When RBG drops her dicta motherfuckers scatter.
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Nov 18, 2014 08:35
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Does anyone have a good breakdown of the DC Circuit's ruling on Priests for Life though? I think the Thinkprogress breakdown is sensible but I probably wouldn't know the difference
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Nov 18, 2014 19:27
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Rygar201 posted:Does anyone have a good breakdown of the DC Circuit's ruling on Priests for Life though? I think the Thinkprogress breakdown is sensible but I probably wouldn't know the difference Seems relatively clean - opting out isn't a burden so it's okay for the default to include birth control. I don't think it's likely to go up.
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Nov 18, 2014 19:30
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SCOTUS is back at work today, and an argument was heard in the free speech case involving a man who was charged with making death threats on social media to people and whether or not that can be classified as 'free speech'.
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Dec 1, 2014 18:17
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FlamingLiberal posted:SCOTUS is back at work today, and an argument was heard in the free speech case involving a man who was charged with making death threats on social media to people and whether or not that can be classified as 'free speech'. Yep, Elonis. It's some interesting stuff - the idea is that speech loses its protection when it's a true threat.
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Dec 1, 2014 18:34
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The Warszawa posted:Yep, Elonis. It's some interesting stuff - the idea is that speech loses its protection when it's a true threat. Yeah. More specifically, the question is what counts as a threat: something that is actually intended to be a threat, or something that a reasonable person would perceive as a threat? Basically, whose viewpoint matters: the speakers, or the listeners?
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Dec 1, 2014 18:37
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http://cdn.arstechnica.net/wp-content/uploads/2014/08/elonisrap.pdf the best part of elonis is probably this amicus submitted by rap music scholars. reminds me of campbell v. acuff-rose, another case where the supreme court had to wrestle with this strange youth music
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Dec 1, 2014 18:40
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evilweasel posted:Yeah. More specifically, the question is what counts as a threat: something that is actually intended to be a threat, or something that a reasonable person would perceive as a threat? Basically, whose viewpoint matters: the speakers, or the listeners? That sounds like a question with no good answers, including punting. I would lean toward the listeners' viewpoint being more credible since they're the prospective victim of something either way. However, I'm worried about it turning into a new SYG-style defense where someone will interpret something as a threat while it wasn't even a fake threat, let alone a real threat - burbtrash killing their kids' peers and getting let off because there was a post on their Facebook about karma or some poo poo. I'd rather err on the side of safety and reasoned discourse online (woe, the insurmountable burden of avoiding something that would remotely resemble a threat while voicing your opinion on  ethics in journalism ) but the end-stage alternative is "lol I was just kidding about raping and murdering Anita Sarkeesian bro" being a successful defense against throwing someone's life into turmoil. Punting leaves the status quo and that's basically a huge shrug.
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Dec 1, 2014 18:59
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FAUXTON posted:That sounds like a question with no good answers, including punting. I would lean toward the listeners' viewpoint being more credible since they're the prospective victim of something either way. However, I'm worried about it turning into a new SYG-style defense where someone will interpret something as a threat while it wasn't even a fake threat, let alone a real threat - burbtrash killing their kids' peers and getting let off because there was a post on their Facebook about karma or some poo poo. I'd rather err on the side of safety and reasoned discourse online (woe, the insurmountable burden of avoiding something that would remotely resemble a threat while voicing your opinion on The "listener's perspective" has a requirement of "would a reasonable person construe this as a threat" so an unreasonable listener isn't protected.
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Dec 1, 2014 19:05
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Isn't "reasonable person" the standard for ordinary threats? Like, we seem to be doing just fine prosecuting regular old threats without enabling "I felt threatened! Rape!" as a defense to murdering someone for yelling "gently caress you", while also not letting someone off with "oh no, I was just joking when I told the bank teller to fill my bag with benjamins if she wanted to live! Ha ha!"
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Dec 1, 2014 19:10
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I'd write some long critique about the supreme court wasting what limited space they've created on their docket for this bullshit except that's all that needs to be said who the gently caress voted for cert for this piece of poo poo
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Dec 1, 2014 19:20
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WhiskeyJuvenile posted:I'd write some long critique about the supreme court wasting what limited space they've created on their docket for this bullshit except that's all that needs to be said frankly i think its a good thing when the supreme court is taking on fewer important cases
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Dec 1, 2014 19:22
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WhiskeyJuvenile posted:I'd write some long critique about the supreme court wasting what limited space they've created on their docket for this bullshit except that's all that needs to be said Circuit split, though it's literally only the 9th using the subjective standard.
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Dec 1, 2014 19:28
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the other problem is that the supreme court doesn't do decisions on the merits briefs alone but has to have its head up its own rear end with oral arguments
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Dec 1, 2014 19:34
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Clarence Thomas Is Right
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Dec 1, 2014 19:34
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WhiskeyJuvenile posted:the other problem is that the supreme court doesn't do decisions on the merits briefs alone but has to have its head up its own rear end with oral arguments I didn't know that Clarence Thomas had an account. efb
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Dec 1, 2014 19:36
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WhiskeyJuvenile posted:the other problem is that the supreme court doesn't do decisions on the merits briefs alone but has to have its head up its own rear end with oral arguments But then we wouldn't have recordings of 1992 oral arguments that started EVERY SINGLE TIME with Rehnquist admonishing the gallery angrily to be quiet because they had more cases to hear. What kind of people chat up the Supreme Court?
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Dec 1, 2014 19:51
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The Warszawa posted:Circuit split, though it's literally only the 9th using the subjective standard. Which is the subjective standard?
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Dec 1, 2014 21:32
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Munkeymon posted:Which is the subjective standard? The one that depends on the intent of the speaker. It is "subjective" because it depends on what the speaker actually intended, rather than the "objective" standard of whether a reasonable person would believe the speaker was making a threat.
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Dec 1, 2014 22:23
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evilweasel posted:The "listener's perspective" has a requirement of "would a reasonable person construe this as a threat" so an unreasonable listener isn't protected. A lot of standards hinge on that reasonable test and fail miserably, particularly pertaining to threat assessment. That's my worry.
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Dec 1, 2014 22:55
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FAUXTON posted:A lot of standards hinge on that reasonable test and fail miserably, particularly pertaining to threat assessment. That's my worry. Eh, we've used tests like whether a law is an "unreasonable burden on free religious exercise" without too much trouble that I can think of.
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Dec 1, 2014 23:13
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FAUXTON posted:A lot of standards hinge on that reasonable test and fail miserably, particularly pertaining to threat assessment. That's my worry. Anything that requires a judgment call is always going to have some bad calls. However, the objective standard is far better than any real alternative - any bright-line rule is going to do far worse.
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Dec 1, 2014 23:19
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VitalSigns posted:Eh, we've used tests like whether a law is an "unreasonable burden on free religious exercise" without too much trouble that I can think of. Unreasonable fear of death or great bodily harm.
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Dec 1, 2014 23:46
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evilweasel posted:Anything that requires a judgment call is always going to have some bad calls. However, the objective standard is far better than any real alternative - any bright-line rule is going to do far worse. I'd argue that the objective standard is the bright line rule. FAUXTON posted:Unreasonable fear of death or great bodily harm. Better than the alternative.
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Dec 1, 2014 23:57
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I wonder how the reasonableness test will work in the future with the current "triggered" generation.
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Dec 2, 2014 01:02
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