NYCmetsfan
Banned
Which is bull, its horrible and found nowhere in the constitution. Its how much of federal policy has been enacted.
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PoliGAF 2015 |OT| Keep Calm and Diablos On
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Which is bull, its horrible and found nowhere in the constitution. Its how much of federal policy has been enacted.
Metaphoreus
This is semantics, and nothing more
This isn't right. The part of the ACA that is a "contract" would be the part (or parts) that offer federal funding for states implementing some federal program. The insurance reforms don't work like that. States don't accept a federal offer with strings attached by doing nothing--they have to do whatever the attached strings require.
Oh, shit, was oral argument this morning?! I completely forgot.
EDIT:
I think what pigeon is saying is that, while the federal government can give incentives to states to implement its programs through conditional revenue, it cannot do so in a way that is coercive. He isn't saying all such schemes are unconstitutionally coercive. (I know you disagree with the doctrine entirely, though, but it's pretty well settled by this point.)
BertramCooper
Banned
PhoenixDark
Banned
Metaphoreus is Clarence Thomas confirmed.
Poodlestrike
Banned
Please. Everybody knows that you weren't commenting because you were the one giving the argument. Is Scalia as much of a troll in person?
Metaphoreus
This is semantics, and nothing more
I wasn't very clear about it, but yes, basically that's what I meant. NFIB v Sebelius defined a specific limited case where a conditional revenue law was coercive (involving withholding previously granted funds). This would be an opportunity for conservative constitutional scholars to expand that case.
Metaphoreus
This is semantics, and nothing more
There's only one "o" in my pseudonym. (Why does "o" make me think of Super Mario Bros. 2?)
NYCmetsfan
Banned
Its not settled. It was enacted this roberts court and its depth has not been tested. I'm in complete agreement with RBG's dissent on their medicare decision
The doctrine espoused in the previous case says congress can't spend money because state's don't want to deal with changes to their budgets. Well tough, its not their money to spend.
Metaphoreus
This is semantics, and nothing more
Metaphoreus
This is semantics, and nothing more
Ginsburg's dissent was a dissent from an opinion agreed to by 7 justices of the Supreme Court. It's settled.
My point, however, was that the Court has long stated that coercive Spending Clause programs would be unconstitutional. NFIB was the first time they held that a given program crossed the line, but the principle is not of recent vintage.
EDIT: Drat. Sorry for the double post. You people post too slowly.
NYCmetsfan
Banned
3 Justices joined that particular part. 2 dissented and the other 4 held the entire thing had to go.
I would not say that is settled and I think you'd have to see how Kagan and Breyer settle future cases before anyone says its settled. The opinion of 3 isn't settled case law.
I can see the conservatives going along with it because its limits federal power with no basis in the constitution but we know ends justify means to at least 3 of them.
Never mind the fact that even it was upheld I'd expect/hope it to be overturned by future courts because its a horrible law that goes against the very reason the constitution was created. Federal control of federal funds.
Metaphoreus
This is semantics, and nothing more
Roberts' opinion was joined by Breyer and Kagan. Scalia's opinion, which also held the Medicaid expansion unconstitutionally coercive, was joined by Alito, Kennedy, and Thomas. Seven justices agreed that the Medicaid expansion was unconstitutional. It's settled.
T
thepotatoman
Unconfirmed Member
Justice Kagan does a great analogy:
"So I have three clerks, Mr. Carvin. Their names are Will and Elizabeth and Amanda. Okay? So my first clerk, I say, Will, I'd like you to write me a memo. And I say, Elizabeth, I want you to edit Will's memo once he's done.
And then I say, Amanda, listen, if Will is too busy to write the memo, I want you to write such memo.
Now, my question is: If Will is too busy to write the memo and Amanda has to write such memo, should Elizabeth edit the memo?"
(...)
"Because in my chambers, if Elizabeth did not edit the memo, Elizabeth would not be performing her function. In other words, there's a a substitute, and I've set up a substitute. And then I've given I've given instructions: Elizabeth, you write you edit Will's memo, but of course if Amanda writes the memo, the instructions carry over. Elizabeth knows what she's supposed to do. She's supposed to edit Amanda's memo, too."
Maybe she should have said "Elizabeth, I want you to edit the memo written by Will" instead, to make it more perfect.
"So I have three clerks, Mr. Carvin. Their names are Will and Elizabeth and Amanda. Okay? So my first clerk, I say, Will, I'd like you to write me a memo. And I say, Elizabeth, I want you to edit Will's memo once he's done.
And then I say, Amanda, listen, if Will is too busy to write the memo, I want you to write such memo.
Now, my question is: If Will is too busy to write the memo and Amanda has to write such memo, should Elizabeth edit the memo?"
(...)
"Because in my chambers, if Elizabeth did not edit the memo, Elizabeth would not be performing her function. In other words, there's a a substitute, and I've set up a substitute. And then I've given I've given instructions: Elizabeth, you write you edit Will's memo, but of course if Amanda writes the memo, the instructions carry over. Elizabeth knows what she's supposed to do. She's supposed to edit Amanda's memo, too."
Maybe she should have said "Elizabeth, I want you to edit the memo written by Will" instead, to make it more perfect.
Plinko
Wildcard berths that can't beat teams without a winning record should have homefield advantage
LOL. Can't wait for the primaries.
Metaphoreus
This is semantics, and nothing more
I think one big problem with Kagan's analogy is that it deals with ordinary, everyday communications. We implicitly understand that such communication will be sloppy, not precise. Statutes are a different sort of communication--we expect precision, and the rules for interpreting statutes assume that words are used precisely.
EDIT: I'm at page 14 in the transcript right now, and frustrated that Carvin hasn't corrected Breyer's misreading of section 1311(d)(1) (the "An Exchange shall be a governmental agency or non-profit entity established by the State" provision I've discussed before). That's an easy mistake to correct, but if left uncorrected, it can easily undermine the challengers' argument.
Sirpopopop
Member
Funny comment about statutes Metaphoreus.
Metaphoreus
This is semantics, and nothing more
How so?
You can always bring it up in chambers to your colleagues on Friday.
Plinko
Wildcard berths that can't beat teams without a winning record should have homefield advantage
Polls. Lots and lots of meaningless polls.
Metaphoreus
This is semantics, and nothing more
This is why I'm surprised so many people want a spin-off thread!
Anywho, people on Twitter confused @SCOTUSblog with the Supreme Court, as they always do whenever there's a big case pending.
That's been a nice bonus highlight of any big SCOTUS day over the past few cycles. I giggled my butt off at work this morning reading the back-and-forths. No matter how many Tweets @SCOTUSblog puts out clarifying things, we will still see people flaming them for what SCOTUS does. =P
Poodlestrike
Banned
Nah man. It'll be just about primary season by the time we get a decision on King. Full clown car.
Poodlestrike
Banned
Wait, they tried?
Sirpopopop
Member
See: CERCLA.
Code:
5 Mr. Hurst was a veteran for 10 months in
6 1970. He is not eligible for any veterans service
7 because if you've served such a short -- health
8 services. If you serve such a short --This is from page 4 of the transcript. There is no minimum time period of service so long as it wasn't a dishonorable discharge. Carvin talking out of his ass.
Metaphoreus
This is semantics, and nothing more
Verrilli agrees with him. See page 40 of the transcript.
What about it?
Purely symbolic. Gotta get those votes on record to appease the base.
Here's my tea leaves:
* Roberts delivers the opinion of the court, joined by Kennedy and Sotomayor, and finding that making the subsidies conditional on the State establishing an exchange would be unconstitutionally coercive and so the law must be read to allow subsidies on federal exchanges.
* Ginsberg concurs in the judgement, joined by Breyer and Kagan. Possibly, but not definitely, on standing.
* Scalia dissents, joined by Alito and Thomas, and would strike the law. (Small possibility that Thomas dissents separately.)
* Roberts delivers the opinion of the court, joined by Kennedy and Sotomayor, and finding that making the subsidies conditional on the State establishing an exchange would be unconstitutionally coercive and so the law must be read to allow subsidies on federal exchanges.
* Ginsberg concurs in the judgement, joined by Breyer and Kagan. Possibly, but not definitely, on standing.
* Scalia dissents, joined by Alito and Thomas, and would strike the law. (Small possibility that Thomas dissents separately.)
BertramCooper
Banned
Nope.
This is how I see it going. Scalia is going to want to strike down the whole thing again and Roberts won't want to make such a blatantly political move so he'll join up with the left once more.
Metaphoreus
This is semantics, and nothing more
I think Breyer and Kagan would be more likely to join Roberts and Kennedy on a coercion holding than Sotomayor, given that they joined Roberts in NFIB. I don't think anybody will decide this case on the basis of standing, and I'd be a little surprised if anybody even mentioned it aside from chastising someone or another for failing to develop a sufficient evidentiary record.
But even now, I won't venture to guess the outcome. We'll have our answer soon enough.
No, Roberts was pretty quiet.
EDIT: Just one more unsolicited comment about the oral argument. On pages 71 - 73, Verrilli argues that the word "qualified" in the phrase "qualified individuals" should provide independent meaning to the phrase. That's wrong. The statute specifically defines the phrase "qualified individuals," and that phrase is little more than a stand-in for the full statutory definition. They could have used any phrase for that purpose (e.g., rather than "qualified individuals," they could have simply said "X"). The ordinary meaning of "qualified" is irrelevant, because the statute is not referring to a "person qualified to purchase on an Exchange" (Sotomayor's paraphrase), but, "with respect to an Exchange, an individual who (i) is seeking to enroll in a qualified health plan in the invididual market offered through the Exchange; and (2) resides in the State that established the Exchange." So, when you see the phrase "qualified individual" in Title 42 of the US Code, you replace it with the statutory definition. Neither "qualified" nor "individual" bring independent meaning to the term simply because they are the words used in the phrase. (Otherwise, the definition would not have to explain it's referring to "an individual.")
speculawyer
Member
This whole case is such a troll case.
And have you the stories about the plaintiffs? They are actually harmed by getting rid of the law. This is not zealously representing your clients.
Metaphoreus
This is semantics, and nothing more
Depends on how they define "harm," don't you think?
BertramCooper
Banned
The entirety of Roberts' remarks (with a bit of context added):
Like, this is an outright lie, right?
https://sites.google.com/site/healthreformnavigator/ppaca-sec
https://sites.google.com/site/healthreformnavigator/ppaca-sec-1311
https://sites.google.com/site/healthreformnavigator/ppaca-sec-1312
https://sites.google.com/site/healthreformnavigator/ppaca-sec-1412
Are the justices allowed iPads under their robes? Someone explain to me why judges can't just be replaced with natural language processors?
https://sites.google.com/site/healthreformnavigator/ppaca-sec
https://sites.google.com/site/healthreformnavigator/ppaca-sec-1311
https://sites.google.com/site/healthreformnavigator/ppaca-sec-1312
https://sites.google.com/site/healthreformnavigator/ppaca-sec-1412
Are the justices allowed iPads under their robes? Someone explain to me why judges can't just be replaced with natural language processors?
That's what it seemed like to me after reading the transcript, though I think Metaphoreus could be right about Breyer and Kagan versus Sotomayor.
Metaphoreus
This is semantics, and nothing more
No, 36B really is the only provision that defines who receives a tax credit (and how much).
Black Mamba
Member
I don't think anyone will revert to Standing at all. I think all but Sotamayer might join Roberts and then Sotamayer will write a concurrence saying that the reading of the text is unambiguous in favor of the Federal Gov't but even if not Roberts federalism argument is correct. This will be joined by Kagan and Breyer.
everyone = the 6 already listed.
Pretty sure Scalia is just a troll and will go against. Alito probably and Thomas too (though I'm a bit unsure of these two).
Roberts being silent was unexpected. Kennedy worried about federalism is not (I kind of expected it and it's why I harped on the federalism issues yesterday).
I'm going to agree with Metaphoreus (hey I spelled your name right!) on the coercion argument with APKman. I think the Court settled it.
I still can't imagine Roberts aligning with King. If he really wanted to stop the ACA, he would have done it 2 years ago before the Exchanges were in place when he could have stopped the gov't in its tracks rather than expand the Tax Power of the Federal Government. He's not going to expand that power 2 years ago only to significantly harm the ACA 2 years later in mid-stream over something as silly as glossed over language in the text.
Carver did a reasonable job, IMO. Verrilli I've never been much of a fan and thought he was weak at times. But one thing I thought Carver botched was his excuse about him not arguing that the subsidies matter when the destruction of the marketplace and death spirals were brought up. He was caught being a hypocrite and didn't own up to it.
Pigeon, regarding the gov't not making the case for coercion, should it come to that, Verrilli is going to have to argue it isn't coercion because he defends the Federal Gov't and nothing they do is Unconstitutional in his arguments. But of course he believes it is and wants the SCOTUS to think that, which is why the language he used there was the way it was. Kind of like saying "No it's not," while nodding.
Metaphoreus
This is semantics, and nothing more
The audio might change my mind, but I wasn't too impressed by Carvin's performance. He raised some good points at times, but left a bunch of other good points unsaid. I thought Verrilli did a much better job of arguing his side. However, Carvin did have to contend with much more intense questioning than did Verrilli.
Regarding Carvin's appearance in NFIB, the liberals were just trolling him. As an attorney, he argues on behalf of his clients, not himself, and he has different clients in this case than he did in NFIB. (I thought Roberts' question about whether Carvin won that case was hilarious.)
Black Mamba
Member
yeah, it was funny. I still thought his responses were bad. He tried to pretend like the subsidies didn't matter after arguing in the past they did. But that's not that important.
I thought Alito suggesting a stay was interesting, but Verrilli later explained why a 6 month stay was fruitless (it needs to be like 3 years, really).
The government's argument for Obamacare went pretty well today, but let's not celebrate just yet. If you remember back in 2012 when the issue of the mandate was being debated, everyone agreed the solicitor general did a pretty horrible job those first few days, but still wound up winning. Just cause a conservative realizes there'll be dire consequences to something doesn't mean they still won't support it (that's how we still keep getting tax cuts on the rich, after all).
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