The Supreme Court, bastion of conservatism

[Uncle Ted]

I guess AOC didn't get the memo... don't talk about expanding the court until AFTER the election:

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[Donuthole]

I guess AOC didn't get the memo... don't talk about expanding the court until AFTER the election:

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It actually would be better for AOC's political career if Trump stays in power for another 4 years. 4 more years of Trump and the pendulum is likely to swing much harder to the left than it will right now.

[Jeff Lebowski]

It actually would be better for AOC's political career if Trump stays in power for another 4 years. 4 more years of Trump and the pendulum is likely to swing much harder to the left than it will right now.

This is correct.

[BlueK]

Glad to know that liberals are as good at fear mongering as conservatives.

Wasn't it the ACA that outlawed insurance companies refusing to cover preexisting conditions? The thought is if she's the deciding vote in declaring it unconstitutional that the industry goes back to where it was.

The current case I don't get though. If the rationale in trying to strike down the ACA was that the mandate to buy insurance wasn't Constitutional but Roberts engineered a ruling saying that the penalty since it was collected by the IRS was therefore a tax, and therefore Constitutional. Then once the penalty was taken away some states sued saying the tax is now gone so it's now Unconstitutional! Yippee! But wait, if there is no penalty for not buying insurance then is there an unConstitutional mandate anymore? Nope. The whole argument seems illogical to me, maybe someone can explain it.

[Now who’s the dean?]

The Supreme Court, bastion of conservatism

Wasn't it the ACA that outlawed insurance companies refusing to cover preexisting conditions? The thought is if she's the deciding vote in declaring it unconstitutional that the industry goes back to where it was.

The current case I don't get though. If the rationale in trying to strike down the ACA was that the mandate to buy insurance wasn't Constitutional but Roberts engineered a ruling saying that the penalty since it was collected by the IRS was therefore a tax, and therefore Constitutional. Then once the penalty was taken away some states sued saying the tax is now gone so it's now Unconstitutional! Yippee! But wait, if there is no penalty for not buying insurance than is there an unConstitutional mandate anymore? Nope. The whole argument seems illogical to me, maybe someone can explain it.

I know! What are they even arguing about? Why don’t the idiots just check what the constitution says about it [emoji849]

[wapiti]

I know! What are they even arguing about? Why don’t the idiots just check what the constitution says about it [emoji849]

The ACA is old news. The republican party would be smart to move on from "repeal and replace" or attempts to get the courts to strike it down.

[All-American]

Wasn't it the ACA that outlawed insurance companies refusing to cover preexisting conditions? The thought is if she's the deciding vote in declaring it unconstitutional that the industry goes back to where it was.

The current case I don't get though. If the rationale in trying to strike down the ACA was that the mandate to buy insurance wasn't Constitutional but Roberts engineered a ruling saying that the penalty since it was collected by the IRS was therefore a tax, and therefore Constitutional. Then once the penalty was taken away some states sued saying the tax is now gone so it's now Unconstitutional! Yippee! But wait, if there is no penalty for not buying insurance than is there an unConstitutional mandate anymore? Nope. The whole argument seems illogical to me, maybe someone can explain it.

The logic, as I understand it, is that under the NFIB v. Sebellius ruling, the mandate was constitutional because it was a tax. That holding meant that the Court did not have to consider the next step: if the mandate is unconstitutional, does the entire act fail, or can the mandate be stricken and the rest of the act preserved.

Now the "tax" penalty has been repealed, leaving only the mandate. More precisely, the dollar amount of the penalty was reduced to $0; everything else about the act was left intact. The question now before the Court is whether (1) the mandate, absent the tax penalty, is unconstitutional, and (2) without the mandate the entire law is invalid.

Here is a link to the briefs to the case now before the Court.

https://www.scotusblog.com/case-file...ornia-v-texas/

The first question is a little interesting, in my opinion, but the second one I think is quite clearly "no."

The mandate is now a toothless provision, with effectively no consequences for failure to comply. For all intents and purposes, repealing the tax penalty killed the mandate. So does a toothless mandate violate the constitution? Can Congress pass a law saying everyone has to do something if it allows no means to enforce that provision? Challengers say yes; Congress cannot do anything without an enumerated power, they say, so if Congress is not allowed to do it, it is no defense to say that it wouldn't do anything anyway.

The second question is tricky in that the statute itself declares the mandate to be "essential" to the ACA's operations. In other words, the statute itself suggests the mandate is inseverable, and that finding the mandate unconstitutional renders the whole act unconstitutional. But the simple fact is that Congress considered repealing the entire act, and couldn't do it; then it dropped the tax penalty to zero. This suggests quite strongly that Congress considered the rest of the act as being able to stand on its own without the mandate. I think you could very well get a decision from the Court that says the mandate is unconstitutional absent some effective penalty provision, but that finding the mandate unconstitutional would not void the rest of the act.

Note too that in January we will likely have a democratic president, house, and senate. It will be very easy for them to raise the tax from zero to something above zero and save the act, even if the Court decides the case in such a way that it would be necessary to do so.

[UVACoug]

The logic, as I understand it, is that under the NFIB v. Sebellius ruling, the mandate was constitutional because it was a tax. That holding meant that the Court did not have to consider the next step: if the mandate is unconstitutional, does the entire act fail, or can the mandate be stricken and the rest of the act preserved.

Now the "tax" penalty has been repealed, leaving only the mandate. More precisely, the dollar amount of the penalty was reduced to $0; everything else about the act was left intact. The question now before the Court is whether (1) the mandate, absent the tax penalty, is unconstitutional, and (2) without the mandate the entire law is invalid.

Here is a link to the briefs to the case now before the Court.

https://www.scotusblog.com/case-file...ornia-v-texas/

The first question is a little interesting, in my opinion, but the second one I think is quite clearly "no."

The mandate is now a toothless provision, with effectively no consequences for failure to comply. For all intents and purposes, repealing the tax penalty killed the mandate. So does a toothless mandate violate the constitution? Can Congress pass a law saying everyone has to do something if it allows no means to enforce that provision? Challengers say yes; Congress cannot do anything without an enumerated power, they say, so if Congress is not allowed to do it, it is no defense to say that it wouldn't do anything anyway.

The second question is tricky in that the statute itself declares the mandate to be "essential" to the ACA's operations. In other words, the statute itself suggests the mandate is inseverable, and that finding the mandate unconstitutional renders the whole act unconstitutional. But the simple fact is that Congress considered repealing the entire act, and couldn't do it; then it dropped the tax penalty to zero. This suggests quite strongly that Congress considered the rest of the act as being able to stand on its own without the mandate. I think you could very well get a decision from the Court that says the mandate is unconstitutional absent some effective penalty provision, but that finding the mandate unconstitutional would not void the rest of the act.

Note too that in January we will likely have a democratic president, house, and senate. It will be very easy for them to raise the tax from zero to something above zero and save the act, even if the Court decides the case in such a way that it would be necessary to do so.

The case won’t be decided before January either, so Democrats could moot the whole thing by reimposing the tax after they take office. Not sure they could do it without abolishing the filibuster though, which they’ll probably do regardless.

[UVACoug]

If the election comes down to Pennsylvania, it could very well be decided by the Supreme Court like in 2000 (which would be an utter disaster). The Court should have granted cert on the PA case and issued a ruling before the election. It will be interesting to see what Barret does if the Court takes the case (which they probably will).

[Pelado]

If the election comes down to Pennsylvania, it could very well be decided by the Supreme Court like in 2000 (which would be an utter disaster). The Court should have granted cert on the PA case and issued a ruling before the election. It will be interesting to see what Barret does if the Court takes the case (which they probably will).

I would love for ACB's vote to be the one that sends Trump packing.

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[UVACoug]

I would love for ACB's vote to be the one that sends Trump packing.

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Me too. It could happen. Wouldn’t be surprised if she refused recused though. There’s no real reason for her to, but the “appearance of bias” might sway her. If she votes and upholds the PA Supreme Court decision though, that would shut down any of those complaints.

[falafel]

Me too. It could happen. Wouldn’t be surprised if she refused though. There’s no real reason for her to, but the “appearance of bias” might sway her. If she votes and upholds the PA Supreme Court decision though, that would shut down any of those complaints.

Why would she care about the appearance of bias? Worried she might not be reelected?

[UVACoug]

Sorry ... typo. Meant to say "recused" instead of "refused." Appearance of bias is one of the reasons that judges recuse for (although it's pretty rare).

[falafel]

Sorry ... typo. Meant to say "recused" instead of "refused." Appearance of bias is one of the reasons that judges recuse for (although it's pretty rare).

Right, but by that logic, 3 justices would need to recuse themselves, not just ACB. That's not going to happen.

[UVACoug]

Right, but by that logic, 3 justices would need to recuse themselves, not just ACB. That's not going to happen.

Yep. There's no legitimate reason for her to recuse. A lot of pressure was put on her by Dems during the hearings though to recuse. She might give in to it. I don't think she will, but wouldn't be surprised if she did.