Network News

X My Profile
View More Activity
Posted at 4:15 PM ET, 01/31/2011

Yes, but what will Anthony Kennedy say?

By Greg Sargent

As you've heard, a Florida judge has ruled that the individual mandate is unconstitutional, meaning that two GOP-appointed judges have reached that conclusion, versus two Dem-appointed judges who have concluded the opposite. Only in this case, the judge, Roger Vinson, ruled that the individual mandate is not severable from the rest of the law, meaning the entire thing has to be tossed.

I just checked in with Louis Seidman, a professor of constitutional law at Georgetown University, to get his thoughts on the ruling.

* Seidman skewered one of the ruling's core findings -- that the individual mandate is unconstitutional because it constitutes regulating economic inactivity. He argued that the constitution's "necessary and proper clause" explicitly provides for the regulation of anything that "has an effect" on interstate markets.

"If Congress wants to mandate that insurance companies not discriminate against people with preexisting conditions, then Congress could rationally think it's necessary to make sure that people participate in the insurance market" to make the ban on discrimination function properly, he said.

* Seidman, interestingly, said he thought the judge's most controversial decision -- that the mandate is not severable from the overall law, suggesting it needs to be tossed out entirely -- had something to it.

"My own sense about that is that he's probably right," Seidman said. "The various segments of the law are sufficiently intertwined that it's very hard to cut out the mandate and leave the rest unaffected. If [the mandate] is unconstitutional then I tend to agree that you can't just sort of surgically remove one part of it and leave the rest intact."

When I pointed out that there are other legislative means to replicate the mandate, calling into question whether the whole law should be scrapped, he argued that this isn't for the courts to do.

* And finally, Seidman said the decision doesn't matter a whit in the end.

"There is one person in the United States who will decide on this law, and that's Anthony Kennedy," Seidman said. "He's not going to be unduly influenced by what a district judge in Florida says. All of this is just scrimmaging."

Seidman said that Kennedy's previous decisions make it impossible to predict how he'll rule on the individual mandate when it comes before the Supreme Court. Kennedy has sided with the majority in favor of invalidating a law based on a "commerce clause" challenge, Seidman says, but he has also twice come through with a fairly broad reading of the "necessary and proper clause," suggesting he could go either way.

"He's likely to be affected by what the political atmosphere is at the time," Seidman said. "It's going to matter to him whether it looks like the whole law is a mess and needs to be put out of its misery, or whether it looks like it's actually starting to work."

So there you have it.

UPDATE, 4:57 p.m.: To clarify, my sense was that Seidman was not full-throatedly endorsing the idea that the entire law should be ruled unconstitutional if the mandate is, but rather that the mandate does not exist in isolation and that it's not severable from other key provisions.

By Greg Sargent  | January 31, 2011; 4:15 PM ET
Categories:  Health reform  
Save & Share:  Send E-mail   Facebook   Twitter   Digg   Yahoo Buzz   Del.icio.us   StumbleUpon   Technorati   Google Buzz   Previous: Do Americans really hate government?
Next: Happy Hour Roundup

Comments

"Just because Congress has the power to enact measures that are necessary and proper to the execution of its power to regulate commerce – in this case, health care markets – that does not mean that Congress has the power to do anything and everything that, on the margin, facilitates or makes more efficient other federally enacted regulatory measures.

"... Identifying the line to distinguish between permissible and impermissible exercises of the federal government’s power under the Necessary and Proper Clause is the task at hand... Congress can take some steps beyond the scopes of the other enumerated powers, but also reaffirm that federal power is limited, and none of the relevant cases stand for the proposition that it is for Congress, and Congress alone, to determine what may be enacted as necessary and proper to the execution of other constitutional measures.

"... It is beyond dispute that, on the margin, requiring all Americans to purchase health care will reduce the costs of seeking to expand coverage by, for instance, prohibiting health insurers from denying coverage for preexisting conditions. But as I noted in my prior post, the same can be said for any measure that increases the participation of relatively healthy people in health insurance pools or that increases the average health of those that are insured. So unless one wants to adopt the view that any provision adopted as part of some broader legislative scheme is necessary and proper just because Congress says it is so long as there is some plausible justification for it’s relation to the broader scheme, one needs to identify some alternative limit. This is something the individual mandate’s defenders have yet to do."

http://volokh.com/2010/12/13/further-thoughts-on-the-virginia-health-care-ruling-and-the-necessary-and-proper-clause/

Posted by: sbj3 | January 31, 2011 4:23 PM | Report abuse

Considering mandates were originally a Republican idea:

http://www.washingtonmonthly.com/archives/individual/2011_01/027584.php

This whole exercise is amusing.

Posted by: mikefromArlington | January 31, 2011 4:32 PM | Report abuse

I expect the gang of five right wing supreme court stooges, to vote to kill health care reform, just like they voted to let anonymous big money control elections.

They will want to give the Republicans a shot at shaping health care the way the Plutocrats want it shaped.

Posted by: Liam-still | January 31, 2011 4:34 PM | Report abuse

"He argued that the constitution's "necessary and proper clause" explicitly provides for the regulation of anything that "has an effect" on interstate markets."

Greg, really now. You might want to check with the prof whether he really makes this claim, because it is utterly preposterous. Take a look at the text of the N&P Clause. Do you see any words that look remotely like "anything that 'has and effect' on interstate markets" there?

I can assure you the good professor doesn't either. Liberals make a sweeping argument about the clause, but you are butchering even their bad argument.

Please report back and update us when you've sought confirmation of your interpretation/reporting.

Posted by: quarterback1 | January 31, 2011 4:37 PM | Report abuse

They should have just called it a tax on being uninsured and saved themselves a lot of hassle.

Posted by: jnc4p | January 31, 2011 4:37 PM | Report abuse

"They should have just called it a tax on being uninsured and saved themselves a lot of hassle."

There are perhaps even better methods of accomplishing the same thing. For instance, rather than mandating insurance coverage, implement a 90 day waiting period for preexisting conditions when you sign up for insurance. That would be a powerful incentive to carry insurance.

Posted by: bsimon1 | January 31, 2011 4:48 PM | Report abuse

How would calling it a tax on being uninsured make the problem go away?


As for Greg's big question -- what will Kennedy do? -- it's usually a good guess that he will go with some combination of whatever will make him look the most mavericky, whatever inures to the unfettered supremacy of SCOTUS, and the political winds. Mostly it is whatever suits his ego the best, and that usually depends on how others decide.


Posted by: quarterback1 | January 31, 2011 4:48 PM | Report abuse

As I said last night:

"Wow, all this bickering and discussion on whether HC is a right became downright tedious.

IMO the pragmatic (did I really say that?) issue is the ACA as eventually passed. It is a terribly flawed piece of legislation whose largely unknown authors produced something absurd to the point of being unconstitutional in some respects that was passed by a democratically controlled congress with no real understanding of, and for some no care about, its content or cost. "We have to pass it so we can see what's in it."

That was the real travesty and it would be really nice if congress would give us something realistic and affordable for the long run. Politicians think long term? Not a chance. That and partisan divide probably makes this wishful thinking on my part."

Posted by: actuator | January 31, 2011 4:48 PM | Report abuse

Liam,

From the earlier thread, please supply us with the totals of federal spending 1929-32 that show Hoover cut spending, and a link or two. (Hint: spending increased, as did tax rates (sound like one party today?).)

Also please give us some links showing that Republicans controlled the Senat 2007-8 following the 2006 election, because all the links I can find confirm that Dems did.

Anything else you'd like to screw up today? Maybe Citizens United again?

Posted by: quarterback1 | January 31, 2011 4:51 PM | Report abuse

quarterback1:

The N&P clause is far from being the only reason a mandate is constitutional. It is much discussed because that is what the conservatards AGs want to focus on.

Alas for them, Jacobson v. Commonwealth of Massachusetts SCOTUS 1905, will blow their dream of of judicial repeal of HCR. It's only a matter of time.

Unless, of course, Justice Kennedy wants to destroy all the legal doctrine that underlies public health in the USA.

...

Come to think about it, maybe that is part of the plan. After all, they've destroy everything that had to do with campaign finance, Convention Against Torture (a treaty we signed and ratified BTW) and they're on their way to nullify habeas corpus. So, something as trivial as public health...who needs that stuff anyway?

Posted by: grosmec | January 31, 2011 4:53 PM | Report abuse

"He's likely to be affected by what the political atmosphere is at the time," Seidman said. "It's going to matter to him whether it looks like the whole law is a mess and needs to be put out of its misery, or whether it looks like it's actually starting to work."

Don't care what your politics are, or what you think of PPACA, but the idea that the law will be judged not on the law but whether or not it "works" disgusts me. Whether or not the law is working as designed shouldn't even factor into this conversation.

Posted by: NoVAHockey | January 31, 2011 4:55 PM | Report abuse

I would not be to disappointed if the entire bill got thrown out by the five supreme right wing activists, because it will end up with healthcare becoming scarcer and more unaffordable for more and more people.

It will become so bad, that the masses will eventually demand single payer universal health care.

The Republicans and their Plutocratic puppet masters are going to have a free run at turning the working class, into America's version of Egypt's impoverished masses, and then there will be hell to pay.

That is how it always plays out, because Plutocrats never learn the lessons of the past.

Posted by: Liam-still | January 31, 2011 4:55 PM | Report abuse

grosmec,

Your grade for Const Law = F.

Not even going to bother explaining to you.

Posted by: quarterback1 | January 31, 2011 4:57 PM | Report abuse

Worth noting: under this law, a family of four making $40,000 a year would get TEN THOUSAND DOLLARS A YEAR in subsidies to buy private health insurance (which costs $12,000 for their family). If it is overturned, they get NOTHING.

http://healthreform.kff.org/SubsidyCalculator.aspx

I'm so happy Tea Partiers will make sure these kids have the freedom to watch their parents die.

Not to mention, it's flatly bizarre that socialized medicine (Medicare) should be constitutional but this would not be. Rah rah partisanship.

Posted by: theorajones1 | January 31, 2011 4:59 PM | Report abuse

grosmec,

Your grade for Const Law = F.

Not even going to bother explaining to you.

Posted by: quarterback1 | January 31, 2011 4:57 PM | Report abuse

---

Because I'm incapable of doing so.

BB

Posted by: FairlingtonBlade | January 31, 2011 5:00 PM | Report abuse

QB,

When the Wall St crashed happened; Hoover then started cutting back, regardless of what spin you try to put on what the annual budgets called for.

That is a fact, no matter how you try to spin it in your Toon Town Lawyer's Rubber Noggin.

Posted by: Liam-still | January 31, 2011 5:02 PM | Report abuse

"Because I'm incapable of doing so."

Haha, aren't you clever.

Let's try this. How few words could I use to explain that would impress you? Would 10 be too many?

Posted by: quarterback1 | January 31, 2011 5:06 PM | Report abuse

Kagan is going to be forced to recuse herself.

So, even if Kennedy sides with the liberal justices, a 4-4 deadlock means that the Supremes will defer to the decision made by the lower court, meaning the circuit court which handled it before them.

That will be the 11th Circuit, based in Atlanta and covering Florida, Georgia, and Alabama.

*Game Over*

Posted by: KaddafiDelendaEst | January 31, 2011 5:08 PM | Report abuse

Just inhale the potent grapeshot powder in that decision.
http://www.scribd.com/doc/47905280/vinsonruling1-31-11

"It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place."

*TEA-tastic!*

Posted by: KaddafiDelendaEst | January 31, 2011 5:09 PM | Report abuse

It has nothing to do with if it is constitutional or not.

The fix is already in. The gang of five right wing stooges, have already agreed to toss the bill out, and wanted it brought to them. The only way that could happen is if the right judges could be found, to rule that it was unconstitutional.

Scalia has not been spooning with the Koch Boys, for nothing,

And Roberts and Alito have not been doing the Tango with The Heritage Foundation for nothing.

Follow the money. The gang of five right wing activist stooges do.

Posted by: Liam-still | January 31, 2011 5:10 PM | Report abuse

"The fix is already in. The gang of five right wing stooges, have already agreed to toss the bill out, and wanted it brought to them."

You apparently have information no one else does. I'd advise you to call Eric Holder with your proof of this conspiracy.

"The only way that could happen is if the right judges could be found, to rule that it was unconstitutional."

False. SCOTUS can take any case it wants to take.

"Follow the money. The gang of five right wing activist stooges do."

Like I said, you had better call Holder and probably your representatives with your proof of this corruption.

Posted by: quarterback1 | January 31, 2011 5:14 PM | Report abuse

[Liam wept: "The fix is already in."]

mmmm... your tears are delicious.
http://www.youtube.com/watch?v=owzhYNcd4OM

na na na
na na na
we made you
chew your undies

Posted by: KaddafiDelendaEst | January 31, 2011 5:15 PM | Report abuse

Have the Administration's lawyers pointed out to these courts that the US has already mandated people buy insurance -- about two hundred years ago? And before that, Congress mandated that citizens buy muskets and ammunition from private vendors. These are Founding Fathers and Original Intent we're talking about here!

If not, I hope they'll bring it up when the case gets to the Surpreme Court. Justice Kennedy may be a little more susceptible to reason than the Republican judges in the lower courts.

Here's a link to an article about the very ancient insurance mandate:

http://open.salon.com/blog/paul_j_orourke/2010/03/24/news_pres_signs_h-care_insurance_mandate-212_years_ago

Posted by: Spacer | January 31, 2011 5:24 PM | Report abuse

@Theora

As usual I agree with your post...in sentiment at least but may I clarify one thing...the right wing has messed this up over and over again...and I know you don't wish to fall into a right wing trap...

"socialized medicine (Medicare)"
Medicare is not socialized medicine. It is a single payer system which could perhaps be called "socialized insurance". But in reality it's a hybrid of Gov't single payer insurance augmented by a vast system of "private" supplemental insurance to cover the growing Medicare co pays.
The VA IS socialized medicine in our country..Gov't ownership of facilities, paying providers directly as in salaries..and managed by the Gov't.

Again Medicare is simply a Gov't insurance package. Obama screwed the pooch in my estimation by not simply shooting for Medicare for all. The private insurers would have the chance to still compete in the market place for a share of the pie...lower premiums...less payouts..more customers...with good management United/BSBS etal could have still made a nice living...and we would have had universal health care without all this R BS! BTW sentiment was in favor of a single payer solution when this debate began...in surveys across the board...polls from numerous organizations.
including physicians groups.

http://www.wpasinglepayer.org/PollResults.html

Posted by: rukidding7 | January 31, 2011 5:27 PM | Report abuse

Kagan is going to be forced to recuse herself.

So, even if Kennedy sides with the liberal justices, a 4-4 deadlock means that the Supremes will defer to the decision made by the lower court, meaning the circuit court which handled it before them.

That will be the 11th Circuit, based in Atlanta and covering Florida, Georgia, and Alabama.

Chief Judge of the 11th Circuit: Bush-appointee (Reagan nominee) Joel Fredrick Dubina. The hanging judge who denied 'habeus corpus' appeal to NFL death row inmate, Troy Davis (cop killer).

*Game Over*

Posted by: KaddafiDelendaEst | January 31, 2011 5:28 PM | Report abuse

Ultimately, it doesn't matter what Anthony Kennedy says on this issue. What matters is what the American People say.

Clearly, the American People want this BILL REPEALED.


There were several illegitimate actions surrounding this bill, the way Obama got to 60 votes, the Massachusetts law change, reconciliation, the dumping of the bill in the middle of the night, and the BETRAYAL of the American People with Obama going back on his word to be bipartisan in the drafting of this legislation.


Sorry, but this bill HAS TO GO.

The bill should go.


The bill is illegitimate. It's passage was AGAINST the will of the American People.


Our government has been hijacked. I don't care if the liberals want to breeze over that fundamental point - however America is a democracy, and the liberals have not acted accordingly.


Throw them onto the ASHHEAP OF HISTORY.


.

Posted by: RainForestRising | January 31, 2011 5:32 PM | Report abuse

Liam,

Hoover increased Federal Spending by about 75%. Roosevelt increased Federal spending by about 65%.

Posted by: TrollMcWingnut | January 31, 2011 5:32 PM | Report abuse

for theora and spacer:

"The Act is very strong precedent for the federal government imposing taxes and dedicating the tax revenue to medical care for the taxed class... The 1798 Act thus shows that Medicare... is generally consistent with constitutional practice of that period.

"The Act certainly did not order seamen to purchase any form of private insurance, nor did it order them to purchase any other type of private good. The Act is... no precedent at all for a federal mandate to purchase private products."

http://volokh.com/2010/04/02/an-act-for-the-relief-of-sick-and-disabled-seamen/

Posted by: sbj3 | January 31, 2011 5:32 PM | Report abuse

"When the Wall St crashed happened; Hoover then started cutting back, regardless of what spin you try to put on what the annual budgets called for.

That is a fact, no matter how you try to spin it in your Toon Town Lawyer's Rubber Noggin."

I see, so even though the federal government's spending increased substantially each year until 1933, somehow Hoover "started cutting back" right after the 1929 crash. And surpluses changed to increasing deficits in 1930. That's a "fact."

You aren't just spinning; you are flat-out lying.

Hoover did raise tax rates. Perhaps that's where you are confused. Hoover did just what you advocate.

Posted by: quarterback1 | January 31, 2011 5:34 PM | Report abuse

Meanwhile,

Back on Main St., in "Exceptionalist America" we are falling behind.

Posted by: ChuckinDenton | January 31, 2011 5:36 PM | Report abuse

The Pelosi-Obama-Reid triumverate now understand what it’s like to be subjected to a TSA crotch grope.

Their personal dignity has been publicly violated by a federal employee.

*karma*

Posted by: KaddafiDelendaEst | January 31, 2011 5:38 PM | Report abuse

@bsimon:

"...implement a 90 day waiting period for preexisting conditions when you sign up for insurance. That would be a powerful incentive to carry insurance."

Ummm...effectively, we already have an indefinite waiting period. Have you tried to get insurance on your own (ie outside your employer)? In the real world, if you have any significant preexisting conditions, you could wait a lifetime to be offered affordable coverage by _any_ insurer, since the name of the current game for them is risk (and claim) avoidance.

There's plenty of your kind of incentive now - scads of Americans with sometimes minor preexisting conditions live in fear of losing their job, because they may never get coverage again...and those that _have_ lost insurance would give nearly anything to get it back and avoid the risk of health-related impoverishment. Yet there are ~46 million Americans who are now without insurance. Do you really think all those people just need "incentive"?

Posted by: pdqwp | January 31, 2011 5:39 PM | Report abuse

@quarterback1 "How would calling it a tax on being uninsured make the problem go away?"

Because the Sixteenth Amendment pretty much gives Congress carte blanche to do whatever it wants to with the income tax. Just set it up as a deduction you get to take if you submit proof of health care insurance. No insurance = higher taxes.

No different than the deductions/subsidies for battery powered cars, solar, & the other energy efficient items that are in there every year.

http://en.wikipedia.org/wiki/Sixteenth_Amendment_to_the_United_States_Constitution

Posted by: jnc4p | January 31, 2011 5:43 PM | Report abuse

Liam of course is correct in his basic point.
Talk about a Pyrrhic Victory!

Does anybody know the timetable before the Supremes get to finally decide. The more time the worse it gets for the R's...when all those college kids suddenly get dumped from their parent's coverage...when all those folks with preexisting conditions start getting rejected once again..with many others without preexisting conditions developing an illness and facing recession..with all the uninsured continuing to flood the ER's driving up the cost of insurance...this is a gift to the Dems that will keep on giving.

It's not even going to require progressives to say the word "heartless" out loud. The results will speak for themselves and the R's will be exposed as the heartless selfish pigs they truly are!

As your girly boy cheerleader once said..."Bring it on". As Liam has correctly IMHO suggested the resulting backlash will make single payer Medicare for all a reality. Again it was the preferred choice of the people to begin with...only the rightwing nutbags and the fraudsters like Rick the scumbag Scott...who spent millions of his stolen Medicare/Medicaid money fighting this...prevented the will of the people. Again here are the polls from BEFORE the HCR. There was solid support across many groups, including physicians groups, as measured by a variety of organizations for a single payer "Medicare for all" solution.

Read the polls and weep righties...unless like me and Liam you too are for a Medicare for all system...because that's what your stupid fight is going to achieve. All those tens of thousands of college students...struggling under the already heavy burden of tuition..dropped from their family coverage...imagine they'll EVER vote R again? All those with pre existing conditions...all those who end up facing recission..imagine they'll ever vote R again? The R's had total control of Congress and the W.H. for six years..had the effect of 9/11 bringing our nation together...and what did the R's do to solve the health care crisis? Not a freaking thing!!!!

http://www.wpasinglepayer.org/PollResults.html

Posted by: rukidding7 | January 31, 2011 5:43 PM | Report abuse

"They should have just called it a tax on being uninsured and saved themselves a lot of hassle."

True. Even better, they should have just extended Medicare and skipped the whole ridiculous business.

Posted by: wbgonne | January 31, 2011 5:48 PM | Report abuse

I tend to think that the "necessary and proper" clause adds nothing to the issue to be decided. After all, it is simply the grant of the authority to Congress to legislate within its domain.

In the end this will turn on the limits of the commerce clause, I think. Is the regulation of the health care insurance industry within the ambit of congressional authority? Is an overarching construct to provide health insurance to more Americans within the ambit of congressional authority? If the answer to either question is "no" the statute fails. If the answer to both questions is "yes" then the peculiar issue of the mandate can be addressed. Either "Wickard" gets overturned or followed, at that point.

I think the separate issue of overreaching with regard to Medicaid and the fed-state relationship will not be something the Supremes will have difficulty with - states can opt out, as I understand it. If I am wrong about that, let me know.

I think every Circuit will uphold the statute and if the Supremes take the appeal it will be a sign they are ready to jettison "Wickard" as the "outer limit", or else restrict it to its facts.

This is all from memory, of course. I have not read the pleadings since last summer or the briefs since October, I think.

I just do not think the "necessary and proper" enabling language adds one whit to this discussion.

Posted by: mark_in_austin | January 31, 2011 5:48 PM | Report abuse

jnc4p,

Nope. What was proposed above was calling it a tax on being uninsured, not a tax on income.

Posted by: quarterback1 | January 31, 2011 5:50 PM | Report abuse

ruk, we're probably a couple years away from bringing the Supremes to the dance.

Posted by: suekzoo1 | January 31, 2011 5:50 PM | Report abuse

[rukidding7 puffed: "Bring it on"]

Whatever... anyone sight physicians in scrubs and throwing bandages off the roofs of hospitals yet?

*VOID*baby*VOID*

Posted by: KaddafiDelendaEst | January 31, 2011 5:51 PM | Report abuse

Your revolution is over, Mr. Lebowski. Condolences. The bums lost. My advice is to do what your parents did-- get a job, sir.

Posted by: KaddafiDelendaEst | January 31, 2011 5:55 PM | Report abuse

The "necessary and proper" clause enables Congress to legislate. It does not provide a justification for any individual legislation.

Posted by: mark_in_austin | January 31, 2011 5:55 PM | Report abuse

Regardless of how they spin it, the resident Right Wingers are still admitting that Hoover(R) brought about The Great Depression. The claim it was because he spent too much, so I guess that means that they are also admitting that Bush came close to causing a second Great Depression, and just like FDR pulled us out of the first one, Obama is pulling us out of this one.

Oddly enough; even though The Right Wingers are always labeling Democrats as the big spenders, it has been Republicans who have presided over the great Economic Crashes, and Job bleed outs.

I am always amazed at how many right wing numb-skulls keep calling for to let the same Wall St. Robber Barons, and their Republican lapdogs, who caused the Great Depressions, to be the ones to get us out of them.

It is a bit like recommending that wounded people let the those who gut shot them, also perform the surgery to repair them.

Dick Cheney should have been the one to remove the pellet's from that old lawyer's face.

Posted by: Liam-still | January 31, 2011 5:56 PM | Report abuse

Mark, don't you think upholding the mandate would go beyond even Wickard? That was a prohibition on activity, not a mandate to act.

Posted by: quarterback1 | January 31, 2011 5:56 PM | Report abuse

@Sue

Thanks for that info. That simply adds fuel to the fire of the point made by Liam and myself. In a couple of years if an SC ruling should pull the plug on some of these very popular features..which I assume would mean an overnight sea change, and especially if the severibility part is upheld...it's not going to be pretty. All those people tossed of insurance roles are gonna say who did this?

Posted by: rukidding7 | January 31, 2011 5:57 PM | Report abuse

typo correction...recission..not recession.

Posted by: rukidding7 | January 31, 2011 6:00 PM | Report abuse

Your revolution is over, Mrs. Pelosi. Condolences. The bums lost. My advice is to do what your parents did; get a job, madam. The bums will always lose. Do you hear me, Pelosi? The bums will always lose!

Posted by: KaddafiDelendaEst | January 31, 2011 6:00 PM | Report abuse

Good to see that Liam has a consistent story. No matter what the policyor economic facts are, it is always Republicans' fault, even if they followed Democratic policies.

Posted by: quarterback1 | January 31, 2011 6:01 PM | Report abuse

OT - a sober piece on Egypt from Ed Kilgore. Here's the final graph...

"It's tempting to turn on the tube and simply cheer for the unquestioned good guys in the Egyptian drama, the pro-democracy forces, and shake our heads in dismay at the apparent defensiveness and sometimes even cluelessness of administration officials. If Egypt transitions more or less seamlessly into a peaceful, secular multi-party democracy then it may well be time for some serious progressive soul-searching about our past complicity in the previous regime's outrages. But this is not a television show, and the consequences of a false step by the Obama administration for regional peace and domestic prosperity--not to mention the democratic aspirations of the people of Egypt and the Middle East--are a lot more important than current ratings of its behavior in front of the cameras. "

http://www.thedemocraticstrategist.org/strategist/2011/01/progressive_anxiety_on_egypt.php#comments

Posted by: bernielatham | January 31, 2011 6:03 PM | Report abuse

Obama didnt have to go down this road


The Republicans were there at the summit in February - asking Obama to re-negotiate the whole thing.


The reasonable offer was made - and refused by Obama.


.

Posted by: RainForestRising | January 31, 2011 6:03 PM | Report abuse

Shorter ruk: free cotton candy is forever!

Posted by: quarterback1 | January 31, 2011 6:04 PM | Report abuse

Posted by: rukidding7 | January 31, 2011 5:43 PM

It would be very interesting to see The Republicans trying to come up with a bill to prevent Insurance Companies from denying coverage because of pre-existing conditions, without either driving the premiums sky high, or having to provide tax money to subsidize the Insurance Ponzi Scheme Operators.

Posted by: Liam-still | January 31, 2011 6:05 PM | Report abuse

Too late in the day recIssion.

Posted by: rukidding7 | January 31, 2011 6:08 PM | Report abuse

Shorter Q.B.

I am an extremist wingnut with no knowledge of the word NUANCE! I'm not quite bright enough to do nuance because I'm an attorney. We are taught black and white and that's it! You are off the deep deep end my friend! Welcome STRF/Clawrence world.

Posted by: rukidding7 | January 31, 2011 6:10 PM | Report abuse

Bernie,

If neo-cons such as Eliot Abrams, continue to claim that the uprising against Mubarek should be credited to George W. Bush,

Mubarek might get pissed off and toss some very damaging communications about Renditions and torture, from the Bush Admn. over some media transoms.

I be he has plenty of such communications stored away.

Posted by: Liam-still | January 31, 2011 6:11 PM | Report abuse

This is essentially a conservative law, based upon ideas already acceptable (that is, until Obama and the Democrats passed it) to them. They'd rather win the battle and lose the war.

Where were they when they had both Houses and POTUS? And, what the hey, why not deny coverage for tens of thousands-its their own dang fault and there's always Parkland Hospital in Dallas...

Posted by: ChuckinDenton | January 31, 2011 6:11 PM | Report abuse

Chuck

Hey CHUCK why don't you leave to Conservatives to say what Conservative is


You liberals can steal amongst yourselves - give the money out to other people - and then talk to yourselves about how morally superior you are.


How about that?


.

Posted by: RainForestRising | January 31, 2011 6:17 PM | Report abuse

Shorter Q.B.

I am an extremist wingnut with no knowledge of the word NUANCE! I'm not quite bright enough to do nuance because I'm an attorney. We are taught black and white and that's it! You are off the deep deep end my friend! Welcome STRF/Clawrence world.

Posted by: rukidding7 | January 31, 2011 6:10 PM |

....................

Would an actual qualified lawyer threaten to sue me, with the claim that I had libeled his online sock puppet name.

That is what QB actually threatened to do. That was when I started calling him Toon Town Lawyer.

Online Sock Puppet files libel suit, against Online Sock Puppet.

I believe he is at best, a legal aide to a legal aide.

Posted by: Liam-still | January 31, 2011 6:18 PM | Report abuse

QB1, I am looking at W v. F. as holding that the minimal and purely local activity of F., if aggregated, affected commerce among the states.

From that perspective, a person's minimal and purely local activity of not buying health care insurance, if aggregated, affects commerce among the states.

I see the distinction you and many others draw between "activity" and "inactivity" as a thin reed, but an available one, of course. I think the pertinent question is whether we look at the local refusal to enter into the health care insurance market as affecting commerce. Will we continue to deal with the aggregating issue as we have done to uphold federal drug statutes application to non-commercial local transactions?

"Activity" - "inactivity" as the distinction could put many compulsory regulations into question, I think. Example: Failure of my client to post DOL or OSHA warnings is a regulatory offense if client is otherwise affecting commerce under a statutory framework that has been upheld. The inaction is of failing to post is no problem for defined small businesses. So I think the argument will turn on the commerce clause aggregation argument.

Just a guess.

Posted by: mark_in_austin | January 31, 2011 6:18 PM | Report abuse

Liam


Well, don't libel any screen names and you will be OK,


isn't that right?


.

Posted by: RainForestRising | January 31, 2011 6:20 PM | Report abuse

"Regardless of how they spin it, the resident Right Wingers are still admitting that Hoover(R) brought about The Great Depression. The claim it was because he spent too much, so I guess that means that they are also admitting that Bush came close to causing a second Great Depression, and just like FDR pulled us out of the first one, Obama is pulling us out of this one."

Count me as not agreeing to any of your assertions, my friend. Hope you're having a great day! ;-)

Posted by: TrollMcWingnut | January 31, 2011 6:23 PM | Report abuse

High STRF. Good to see you back. I was starting to worry about. I was starting to fear that you had been struck by a bolt of sanity.

Keep up the good work.

Posted by: Liam-still | January 31, 2011 6:26 PM | Report abuse

The charming world of Breitbart and FOX messing up...

"Oops: Fox Nation's Decision To Hype Bizarre Breitbart Claim Backfires
January 31, 2011 9:46 am ET by Jamison Foser

Yesterday, we noted that Fox Nation amplified Breitbart.tv’s paranoid suggestion that CNN "sabotage[d]" Michele Bachmann’s Tea Party response to last week’s State of the Union address. That’s a crazy conspiracy theory for any number of reasons, not least the fact that Fox News itself was responsible for the video feed in question.

Now Breitbart.tv has noted Fox’s responsibility -- and suggests that the right-wing cable channel may have sabotaged the right-wing congresswoman:

UPDATE: Sources who were in the room at the time of broadcast now confirm that the pool camera providing the feed for CNN was Fox News. The Fox News pool camera was set up off-kilter from the tele-prompter feed despite the protestations of the Tea Party Express production team. Developing...
In an update, Fox Nation acknowledges that "Breitbart changes his allegation" -- but can’t quite bring itself to tell readers that the new allegation is that Fox is the guilty party:

UPDATE: Breitbart changes his allegation. Click here to read more. "

http://mediamatters.org/blog/201101310009

Posted by: bernielatham | January 31, 2011 6:29 PM | Report abuse

All, Happy Hour Roundup posted:

http://voices.washingtonpost.com/plum-line/2011/01/happy_hour_roundup_175.html

Posted by: Greg Sargent | January 31, 2011 6:30 PM | Report abuse

@quarterback1 "jnc4p,

Nope. What was proposed above was calling it a tax on being uninsured, not a tax on income."

Yes, but structured through the income tax, like almost everything else is. In fact, I believe the current mandate has the penalties paid as part of the individuals income tax return and is enforced by the IRS?

Posted by: jnc4p | January 31, 2011 6:43 PM | Report abuse

@mark_in_austin "The "necessary and proper" clause enables Congress to legislate. It does not provide a justification for any individual legislation. "

I think they have conflated it with (an overly broad reading of) the Commerce Clause.

Posted by: jnc4p | January 31, 2011 6:46 PM | Report abuse

Shorter Q.B.

I am an extremist wingnut with no knowledge of the word NUANCE! I'm not quite bright enough to do nuance because I'm an attorney. We are taught black and white and that's it! You are off the deep deep end my friend! Welcome STRF/Clawrence world.

Posted by: rukidding7
________________________

Nice to see you are raising the bar on civility and nuance. Well done my edumacated friend!

Posted by: Bailers | January 31, 2011 7:01 PM | Report abuse

Liam writes

Regardless of how they spin it, the resident Right Wingers are still admitting that Hoover(R) brought about The Great Depression. The claim it was because he spent too much, so I guess that means that they are also admitting that Bush came close to causing a second Great Depression, and just like FDR pulled us out of the first one, Obama is pulling us out of this one.

__________________________

You know perfectly well that I blame Bill Clinton for the current Great Recession

And Obama is responsible for prolonging the Great Obama Stagnation.


Clearly, I have listed many times the Clinton policies, and programs which LED DIRECTLY TO TANKING THE ECONOMY AND THROWING MILLIONS OF AMERICAN OUT WORK.


.

Posted by: RainForestRising | January 31, 2011 7:25 PM | Report abuse

Some day there will be an effective troll filter, one which culls ad hominem arguments, snarky invective and the like. I hope.

Posted by: akcrabber | January 31, 2011 7:27 PM | Report abuse

It doesn't seem American to force someone to buy anything ... It will be a win for the constitution if this bill gets tossed.

Posted by: sarno | January 31, 2011 7:53 PM | Report abuse

KDE is confused again. Kagan specifically refused to say that she would recuse herself on HCR. And it is the prerogative of the justice to decide if and when to recuse.

BB

Posted by: FairlingtonBlade | January 31, 2011 9:05 PM | Report abuse

"If Congress wants to mandate that insurance companies not discriminate against people with preexisting conditions, then Congress could rationally think it's necessary to make sure that people participate in the insurance market"
This argument really doesn't make sense. In order to prevent discrimination against people with pre-existing conditions, Congress is allowed to "rationally" make the deal cheaper for insurance companies by imposing a mandate on healthy people?
We are so far beyond "interstate commerce" at this point it's laughable. And yes, I know that the Court has already made a large number of ridiculous arguments basing various other policies on the interstate commerce clause. But is it really sensible to build future law on bad precedent?
Where is the legal boundary between the mandate and any future industry using the power of Congress to impose all sorts of other "mandates"? Is it really appropriate to use the power of the state to support private enterprises by supplying captive customers?
Why is this not the question being asked?

Posted by: rick_desper | February 1, 2011 1:00 AM | Report abuse

[FairlingtonBlade: "Kagan specifically refused to say that she would recuse herself on HCR."]

Which says precisely NOTHING about whether Kagan will.

March of 2010, Florida filed the lawsuit against the Federal health care law. It is and was the job of the Justice Department to defend the Federal health care law.

If (then) Solicitor General Kagan advised or discussed the Justice Department's role in defending the national health care law. then she must disqualify herself from deciding the case.

If Kagan doesn't, then the House Judiciary Committee will investigate her role and she will (ultimately) be impeached when Republicans take the Senate.

... and she knows it.

*Game Over*

Posted by: KaddafiDelendaEst | February 1, 2011 8:47 AM | Report abuse

Post a Comment

We encourage users to analyze, comment on and even challenge washingtonpost.com's articles, blogs, reviews and multimedia features.

User reviews and comments that include profanity or personal attacks or other inappropriate comments or material will be removed from the site. Additionally, entries that are unsigned or contain "signatures" by someone other than the actual author will be removed. Finally, we will take steps to block users who violate any of our posting standards, terms of use or privacy policies or any other policies governing this site. Please review the full rules governing commentaries and discussions.




characters remaining

 
 
RSS Feed
Subscribe to The Post

© 2011 The Washington Post Company