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SCOTUS Day 3: Individual Mandate is Toast; What about the rest of the law? - Open Thread



Justices poised to strike down entire healthcare law

'Plane Wreck' for Obama Administration

Judge Napolitano: Justice Kennedy’s Questioning of Health Care Bill May Prove to Be a Bad Day for Government (Thanks to JohnPhillipSousa for the video). Day 3 tomorrow.

[Politico] Conservative justices attacked the heart of President Barack Obama’s health care law Tuesday, expressing deep skepticism that the government can force Americans to buy insurance. On the second day of oral arguments, the Supreme Court grappled for two hours with that central element of the landmark legislation: the so-called individual mandate. However, through their comments and questions Tuesday, the justices signaled they may defy those expectations.

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It would be nice to have a supreme court that was unbiased

I heard the tape yesterday from Ginsburg's "questioning". She basically starting arguing the government's case for the solicitor general who was doing such a bad job. She said "Correct me if I am wrong, but ..."

Then you have Scalia on the other side of the spectrum. He argued previously (in Gonzales v. Raich) that the federal government could use the commerce clause to regulate growing marijuana in your own home for your own consumption. Now he thinks this healthcare act is an over reach of the commerce clause.

It would be nice to have a supreme court that was unbiased.

We all want progress, but if you're on the wrong road, progress means doing an about-turn and walking back to the right road; in that case, the man who turns back soonest is the most progressive.

-C. S. Lewis

Or libertarian. Or even consistent.

I could go on - trust me.

That's classic Scalia.He's a

That's classic Scalia.

He's a "conservative" and not a "constitutionalist"

and I like using "quotes" to annoy "people".

It's not "annoying" me.

It's not "annoying" me.

They should strike down the

They should strike down the mandate, leave the rest of the law intact, and let Congress decide what to do with it. If they were to "salvage" it like Ginsburg wants to do, that would be legislating, and that's not their job.

If the law has a severability clause, then the only proper thing to do is strike down provisions which are in controversy in the court and are unconstitutional, leaving the remainder intact.

Yes, this creates a pig's breakfast of the health care industry. That's Congress's job to fix it.

It has no severability

It has no severability clause. I do not understand what the discussion is about. Surely some congress critters might have voted against the bill if it did not contain the individual mandate. I remember some saying as much. It is not up to the Supremes to decide whether congress would have wanted just the parts of the bill that They deem okay. If part goes, the whole must go.

Ĵīɣȩ Ɖåđşŏń

"Fully half the quotations found on the internet are either mis-attributed, or outright fabrications." - Abraham Lincoln

Yeah I just figured that out

Yeah I just figured that out a few hours ago. It surprises me of all the people they had working on it, nobody thought to put a severability clause in it.

The "rest of the law" which the media is talking about,

and as you mentioned, Ginsburg tried to address, should not even be discussed, IMHO. I think it's well outside their pervue because there is no "severability clause". (See TX AG Greg Abott comment below). If the mandate fails, or any part fails, the whole thing fails. And Congress gets to start all over.

It's not the Court's fault that Congress didn't include the clause but should have and then decided to cram who-knows-what into a 3K page Act.

Maybe Congress will learn something from this the next time, like read the bill AND make only one law/bill at a time.(Both these things are in a new piece of legislation Dr. Paul just co-sponsored.)

At the very least, stick a "severability clause" in it so the court will be oblidged to look at all the parts. Hell, Sotomayor's there. She helped write the damn thing. Come to think of it, it probably wouldn't take her long to sort the different parts out all by herself.

"If you want something you've never had before, you have to do something you've never done before." Debra Medina

Actually you have it

Actually you have it backwards; a severability clause states that if any provision in a law is deemed invalid by a court, the rest remains in full force and effect.

Now here's the funny part: I looked it up and apparently all those bureaucrats out there who wrote this came up with 2700 pages of laws but not one of them thought to stick a severability clause into it. Now if the court rules the individual mandate unconstitutional, it has to throw out the entire law.

sharkhearted's picture

No actually you read him backwards.

Re-read his post. He is saying exactly the same thing you are: There is NO severability clause in the bill.

You both are saying the same thing and you are correct!

Norfolk, VA

Norfolk, VA

Time to INVESTIGATE the investigators of 9/11. PROSECUTE the prosecutors. EXPOSE the cover-up.

That's why it will be UPHELD!

The gvt's argument is precisely that by getting rid of the mandate the law fails. Ergo, if they they strike down the mandate the law must get struck down. However, by saying that one depends on the other, they were trying to convince the court that the mandate is "necessary and proper". In other words, they are trying to argue that since the mandate is the very thing that allows congress to fulfil its "legitimate" function in legislating health-care, it is Constitutional. Apparently, one of the "conservative" Justices had ruled this way on some item in the past and they are gonna try and flip taht guy (if this whole thing isn't merely a charade).

In short, it is imperative that the mandate be able to be struck down without dumping the whole law. If the SC is convinced the whole law MUST be tossed, they won't toss it!

Don't get me wrong, the whole law SHOULD be dumped. Its just that I don't want the SC to believe it MUST be dumped if the mandate is dumped. That will convince them the mandate is ok to stay.

Then maybe the real issue is

Then maybe the real issue is whether the court should rule from a position of severability by default. Personally, I think it's a half-decent law aside from the mandate. I'd much rather see a total nationalization of health, but that would take cojones, and Obama's haven't dropped yet.


maybe you think I have it backwards because my comment refers to "NO use of Severability" whereas your comment defines "the use of a Severability".

On Obamacare which has NO Severability clause, it seems to me we agree: No mandate, no Obamacare.

"If you want something you've never had before, you have to do something you've never done before." Debra Medina

Probably because the whole thing depends on the mandate

They probably did not add a severability clause because no part stands without the others. If Congress could not separate them, why should the court? I can't see any other result than to throw out the whole law.

Then they should either take

Then they should either take over the entire system or totally deregulate it and leave it alone.

Now if only they gave a sh!t....

about the Constitution when it comes to the Patriot Act, NDAA, etc. Dont tell me Obamacare is outrageous and absolutely unconstitutional if going top war on a President's whim is just. Look like the windfall by the insurance companies jacking up our insurance rates, in preparation for Obamacare, will just go into their pockets!

Visit https://soundcloud.com/politics-of-freedom for all recent Ron Paul interviews, speeches, debates, forums, panels, press conferences, news coverage, and Texas Straight Talk updates!

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If I was in full possession

If I was in full possession of the facts (which includes all that top secrety stuff) and knew Obama was simply acting illegally without the consent of Congress, I might be inclined to agree.

Kneejerk reactions

I bet many of the FOX-slurping neocons who want to "repeal obamacare" don't know what an individual mandate is.

you don't want obamacare

you don't want obamacare repealed?

Do you?

They know it's unconstitutional which is more than I can say for those PMS-NBC liberals.

I'm going to go out on a limb

I'm going to go out on a limb and predict that they will uphold Obamacare in spite of their "reservations" and that by 2014 we will start seeing the first Americans being jailed for not paying their fines for not purchasing health insurance.

I sincerely hope I'm wrong.

I will include the striking

I will include the striking down of this monstrosity bill in my prayers tonight. While the odds look good, the odds also looked good that Ron Paul would win Iowa and Maine. Let's keep our eyes open for similar shenanigans.

That LA Times article.. LOL

"One way or another, Congress will have to revisit it in toto," said Justice Antonin Scalia.

Bahahahhah.. Seriously? Are you sure he didn't say "total"?

revisit 'Africa'?

I love that song by Toto. (sorry, couldn't resist.)

Yeah, he did say total, he just said it in Latin. What's up with the down votes for not knowing Latin?

"If you want something you've never had before, you have to do something you've never done before." Debra Medina

"toto" is also short for

We're not in Kansas anymore.

"in toto" is latin for basically "total", and it's

a common legalese phrase.


I did not know that. Thanks for clarifying.

Yeah the writer could have just paraphrased the judge.

It's not like that many readers are going to get that term off the bat.

If they

Do really strike down the mandate it is like taking the first step in the direction of restoring our Republic.

Good point! It would be the

Good point! It would be the first time in recent memory that someone said "Sorry, the government can't do that because it would violate the constitution." Which is exaclty why I think they will uphold Obamacare. I don't think the court can bring itself to say that the government has limitations.