Again, I’ll let General Fried explain to you what a contrary opinion by Kennedy, Scalia, Roberts, Thomas or Alito represent:
“[H]yperbolic, hostile rhetoric redolent of Tea Party–inspired slogans … masquerading as questions … So now all of a sudden the free-market alternative becomes unconstitutional and terribly intrusive where a government imposition and government-run project would not be? I don’t get it. Well, I do get it. It’s politics. … Politics, politics, politics. You look at the wonderful decision by Jeff Sutton, who is as much of a 24-karat gold conservative as anyone could be. He is a godfather to the Federalist Society. Look at his opinion. Or look at Larry Silberman’s opinion. I don’t understand what’s gotten into people. Well, I do I’m afraid, but it’s politics, not anything else.”
So yeah, if any of our Tea Party Justices allow politics to enter into their decision and overturn this law, I will absolutely dismiss it as nothing more than an abuse of power for politics’ sake.
I guess the guy is so far gone that he doesn’t even understand how hilarious it is to call a government-imposed requirement to buy something a “free-market alternative”..
I personally think Wickard was terribly wrongly decided… but decided it was, and it’s been good law for sixty years.
One reason I disfavor activist judges is that when a judge decides based on what he thinks is wise social policy instead of what the plain text says, he injects unpredictability into the law. We have sixty years worth of reliance on Wickard in front of us. Again I say that the ACA is unwise, but I don’t think it should be unconstitutional. Because the fundamental question of constitutionality was settled sixty years ago.
And my opinion is not, obviously, being driven by politics.
What about the distinction that Wickard (or Filburn, I forget who was what) could either quit farming or find a wheat substitute if he found the wheat market sufficiently onerous?
Which excuses your posting vacuous arguments why, exactly?
When you know darn well – because you’ve read it in a dozen threads – that the response to argument A is rejoinder B, the intellectually honest thing to come up with a response to the rejoinder, not just keep repeating the first argument as if you’ve no idea what the response to it is. You just look pathetic.
Nor is it even remotely convincing to produce the opinion of someone appointed by Ronald Reagan; firstly because for those who aren’t partisans, the fact that someone has some sort of connection to Reagan does not make them sainted by association, and secondly, because it’s perfectly obvious that you wouldn’t give two figs what Ronald Reagan’s solicitor general thought if he disagreed with you.
One of the appellate judges who held that the mandate was unconstitutional was – gasp! – a Clinton appointee; but anyone simply pasting that opinion as if it settled all argument should not be much credited for their intelligence, originality of thought, or openmindedness. Unfortunately, neither should you.
There are intelligent arguments to be made in defense of the act; cutting and pasting isn’t one of them.
It can be; the first ruling is going to cause people and groups to regard the matter as settled, and act accordingly. Consider Kelo; in the years since it’s been decided, any number of companies and individuals have factored that into their real estate decisonmaking. Reversing that case now would produce financial windfalls for some and ruin for others.
I think it was a horrible decision, and I’d prefer to see it reversed … but then I’m not someone who invested my life savings into a business predicated on a city making an eminent domain claim, or sold my house for less than I wanted to because I figured it’d be seized if I didn’t.
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Agreed. The Justices’ questions don’t reveal much indication about their decisions.
I predict a 5-4 decision to declare the Affordable Care Act unconsitutional because the 10th amendment permits the federal government to regulate commerce but not compels individuals to participate in specific commerce.
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To which the answer is, “not so,” as we know from Wickard v. Filburn, when the Supreme Court ruled that Congress had the constitutional right under the Commerce clause to force Wickard to buy wheat on the open market, because his non-participation in said commerce had an adverse effect on the economy.
In addition there is Jacobson v. The Commonwealth of Massachusetts. In 1905 a unanimous Court upheld the imposition of a fine for refusing to submit to a state-mandated smallpox vaccination, Jacobson’s refusal of which endangered the community at large.
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I did not opine. I stated a prediction. I’m not going to argue against you. Aside from Justice Kagan who replaced Justice Stevens, this is the same court that ruled 5-4 in the Citizens United case, so I would not expect them to follow the precedent of cases you mentioned. I’ll eat my words if I turn out to be wrong in a few weeks.
I don’t find any language in Wickard to suggest that the Wickard court thought it relevant that Filburn could quit farming.
The question was: can Congress regulate interstate commerce by limiting wheat production of a farmer who grows all his wheat for personal, in-state use?
Answer: yes. because the farmer won’t be buying wheat shipped in interstate commerce if he grows his own.
That’s the answer. You don’t like it, get a time machine and talk some sense into Justice Jackson – who, I might add, wrote for a unanimous court.
Look, I have spent much of my SDMB life trying to explain to leftists that “constitutional” is not the same thing as “wise.” every time the Court considers an issue, it seems there’s at least one addled commentator here up in arms about how the Court must consider how bad an idea one side of the issue is and rule accordingly. That’s not the Court’s job. The Court’s job is to interpret the text of the Constitution.
They did so in 1943, and we have developed sixty years of jurisprudence supporting it. It’s done.
I do think Shayna is mistaken to attribute invidious motives to justices who disagree. I am willing to bet she cheered the Court that said, in 2003, that Bowers v. Hardwick was wrong when it was decided, and wrong [today]. That court also overturned precedent, and they did so because (in my view) they were righting a wrong, not because the Constitution commanded it.
I think the justices who decide cases with a mixture of their sense of right and wrong are not evil, or hopeless slaves to partisanship. They just have a different vision of the proper role of the judiciary than I do.
Justices that vote against the ACA’s mandate may be partisan, sure – or they may be interested in correcting the wrongness of Wickard, come what may. I disagree with the approach, but I don’t demonize them. I recognize that they are exercising a different vision of the judiciary’s role than I have.
Medicaid’s current idea of poverty level is ludicrous. Perhaps the expansion would take care of that. But the lien against your estate aspect is kind of a deal breaker. That changes it from insurance into a medical loan.
Rubbish. I attribute invidious motives for exactly the same reason General Fried does, having nothing whatsoever to do with how they may or may not eventually rule, but based solely on the — what did he call them again? — oh yes, “barrage of hyperbolic, hostile rhetoric redolent of Tea Party–inspired slogans … masquerading as questions.”
Hmm, does that Clinton appointee have 8 years experience and 25 cases actually argued before The Supreme Court of the United States on his CV? Because unless he does, he hasn’t risen to the level of expertise on the matter that General Fried has.
Cutting and pasting is perfectly acceptable when the pasted text makes the same point one wishes to make. On the other hand, dismissing an argument because the words appear in a quote box hardly qualifies as an “intelligent argument” to me. YMOV. So be it.
It’s true that when Fried was the SG, the Court was much quieter. But I don’t agree that today’s practice in other cases differs greatly from the instant case.
In other words, what you hear today in many cases is pointed, adversarial questioning. At least in my opinion, the questioning over this case was not dramatically different from cases heard last term, or the term before that.
I guess we will agree to disagree. I would submit that there is no such language in that opinion because nobody made it. There wasn’t a question of forcing Filburn to continue farming or buying wheat, so the absence of such language is not surprising.
I tend to agree with you that it is not that much of a stretch to say that the ruling, in effect, forced Filburn to participate in wheat commerce. It’s not like it’s that easy to uproot your life and change your profession over a minor government regulation.
But this law makes it absolutely impossible. That’s where I see the difference.
I predicted on fantasyscotus that this law would be upheld 7-2 for the reasons you stated (with Alito and Thomas dissenting). It looks like that pick will be wrong and it seems as if Scalia, Roberts, and Kennedy are not just automatically banking this in the Wickard/Raich folder.
What, because they asked a bunch of questions? I don’t think oral argument really means much in the grand scheme of things. The answers to their questions are in the briefs, after all.