Recently the addition of 500 waivers brought the total number of waivers to over 700 entities that are allowed to "opt" out of the new Health Care Law. Now we see that the Senate has agreed to repeal the 1099 provison for business purchases. This repeal removes an estimated 17 Billion from revenues. 700 companies and unions don't have to pay and now another 17 billion has been bled from the potential revenues. How do they expect to pay for this? Do these issues impact the latest CBO's budget projections?
I don't understand why we're even talking about the health care bill when a federal judge has found it unconstitutional. No one is required to comply with this law any longer. Any attempt by the Obama admin to enforce this bill would be contempt of court!
Do you honestly think that's going to happen? I suspect this will be decided by the Supreme Court. Unless someone specifically ask the Judge for an injunction he's NOT going to go further. Even then he may not grant it. Yes, I understand that his declaring the law "VOID" should be self explanitory...
An injunction isn't needed, the judges decision stands unless and untill a stay is granted pending appeal, which should be fast tracked just like Obama did in challenging the AZ immigration law.
Agree, an injuction should not be needed. However, it's clear the Administration intends to ignore this ruling.
If they do they should be brought before the judge and held in contempt! We can not allow our government to be exempt from the rule of law!
What do you mean if? Isn't it painfully obvious thats exactly what they are doing? The Senate just voted to alter a law that has been declared "VOID" by a Federal Judge. Hell, it's not just the Obama Administration that is ignoring the ruling. The entire Senate is too!
I'd like to think they are allowing the justice department time to prepare their request for a stay... but there is a limit to how long we shoul wait... I wonder where is the media on this???
The Obama Administration is going to press on with the implementation of the law pending appeal of the lower court judge's ruling.
My question is with this judge's ruling, isn't that a defacto injunction without him actually having to put the actual injunction in place?
It seems to me that Lady Love is right and the Obama Administration is in contempt.
Because it's been a mixed bag in the courts. Some have ruled for and some against. Neither side feels sure of how the courts will rule. That being the case, both sides are ignoring the courts. Both sides are preparing to alter the law to meet the ruling. No doubt about it, they are in contempt.
Then if they continue to use tax dollars to implement the law, wouldn't the Obama Administration be committing fraud?
Not fraud. Definitely contempt of court. In order for their to be fraud you need a "theft by deception" element. I don't see that angle here. If you pay for something and you get something....no theft by deception. If the law is ultimately determined unconstitutional any monies collected may have to be returned.
What would it matter? Bush, Cheney and Rumsfeld all admitted to using torture, when it was against the law.
It's already a given that the president and his/her administration are above the law!
That includes Obama too, you know.
How is it okay for any administration to get away with breaking the law?
How did you make the leap from the Senate repealing part of Obamacare to torture?
You said the Obama adm would be committing fraud.
I say, so what? The Bush adm already broke the law/s and nothing happened....obviously in America, the pres is above the law.
Just making that point before you go all righteous on Obama. Righteous was broken a long time ago.
And you sounded, and still do, like you were going to blame everything on Bush, Cheney, and/or Rumsfeld. That's old, out of date, and more than a little lame at this point.
It doesn't matter who the president is. If they broke the law, they should be prosecuted. That includes Bush or your beloved Obama.
Obama's Administration may be breaking some laws by continuing to force this very bad law down the American people's throats. If so, he should be prosecuted. Then he should be impeached and unceremoniously kicked out of office.
Apparently Bush's administration didn't do anything bad enough to get prosecuted for or the Dem-led Congress would have done just that.
As for going righteous, you have no room to talk, LMC.
they want to "opt" out because it will effect their bottom line to the point they will be forced to reduce cost....employees. The fact that these waivers are being granted is an adminission by the Administration that the plan is going to have a negative effect on small business' and union contracts. 40% of the waivers have been granted to Unions.
Does it really surprise anyone that Obama intends to ignore the ruling? Remember, he is a product of Chicago style thug politics....laws are minor inconveniences at best....
This will end up in the Supreme Court and I'm betting they allow the Health Care bill to go forward.....
I believe that most would agree that this is headed to the Supreme Court. Senator Hatch doesn't agree...He seems to see a conflict of interest on the court. Kagan, the most recent appointee of Obama was also a former employee..
"I think that Kagan, who was the solicitor general at the time this was all done, probably should recuse herself, which means it might not be resolved by the Supreme Court,"
Just noticed that two Senators DID NOT vote on the initial Repeal measure yesterday.
Also interesting is that McCaskill (D-MO) voted against the repeal even though his state conducted a state reforendum that resulted in 70% of the people voting against the Health Care Law.
That's not surprising at all... the democrats have an agenda and the hell with the people!! They must be stopped!
Please don't take this the wrong way but McCaskill in Missouri is a her. She is just looking to not be re-elected.
An authority on Constitutional law, Lawrence Tribe, says the health care law is constitutional and will be found so by the Supreme Court.
On Health Care, Justice Will Prevail
THE lawsuits challenging the individual mandate in the health care law, including one in which a federal district judge last week called the law unconstitutional, will ultimately be resolved by the Supreme Court, and pundits are already making bets on how the justices will vote.
But the predictions of a partisan 5-4 split rest on a misunderstanding of the court and the Constitution. The constitutionality of the health care law is not one of those novel, one-off issues, like the outcome of the 2000 presidential election, that have at times created the impression of Supreme Court justices as political actors rather than legal analysts.
Since the New Deal, the court has consistently held that Congress has broad constitutional power to regulate interstate commerce. This includes authority over not just goods moving across state lines, but also the economic choices of individuals within states that have significant effects on interstate markets. By that standard, this law’s constitutionality is open and shut. Does anyone doubt that the multitrillion-dollar health insurance industry is an interstate market that Congress has the power to regulate?
Many new provisions in the law, like the ban on discrimination based on pre-existing conditions, are also undeniably permissible. But they would be undermined if healthy or risk-prone individuals could opt out of insurance, which could lead to unacceptably high premiums for those remaining in the pool. For the system to work, all individuals — healthy and sick, risk-prone and risk-averse — must participate to the extent of their economic ability.
In this regard, the health care law is little different from Social Security. The court unanimously recognized in 1982 that it would be “difficult, if not impossible” to maintain the financial soundness of a Social Security system from which people could opt out. The same analysis holds here: by restricting certain economic choices of individuals, we ensure the vitality of a regulatory regime clearly within Congress’s power to establish.
The justices aren’t likely to be misled by the reasoning that prompted two of the four federal courts that have ruled on this legislation to invalidate it on the theory that Congress is entitled to regulate only economic “activity,” not “inactivity,” like the decision not to purchase insurance. This distinction is illusory. Individuals who don’t purchase insurance they can afford have made a choice to take a free ride on the health care system. They know that if they need emergency-room care that they can’t pay for, the public will pick up the tab. This conscious choice carries serious economic consequences for the national health care market, which makes it a proper subject for federal regulation.
Even if the interstate commerce clause did not suffice to uphold mandatory insurance, the even broader power of Congress to impose taxes would surely do so. After all, the individual mandate is enforced through taxation, even if supporters have been reluctant to point that out.
Given the clear case for the law’s constitutionality, it’s distressing that many assume its fate will be decided by a partisan, closely divided Supreme Court. Justice Antonin Scalia, whom some count as a certain vote against the law, upheld in 2005 Congress’s power to punish those growing marijuana for their own medical use; a ban on homegrown marijuana, he reasoned, might be deemed “necessary and proper” to effectively enforce broader federal regulation of nationwide drug markets. To imagine Justice Scalia would abandon that fundamental understanding of the Constitution’s necessary and proper clause because he was appointed by a Republican president is to insult both his intellect and his integrity.
Justice Anthony Kennedy, whom many unfairly caricature as the “swing vote,” deserves better as well. Yes, his opinion in the 5-4 decision invalidating the federal ban on possession of guns near schools is frequently cited by opponents of the health care law. But that decision in 1995 drew a bright line between commercial choices, all of which Congress has presumptive power to regulate, and conduct like gun possession that is not in itself “commercial” or “economic,” however likely it might be to set off a cascade of economic effects. The decision about how to pay for health care is a quintessentially commercial choice in itself, not merely a decision that might have economic consequences.
Only a crude prediction that justices will vote based on politics rather than principle would lead anybody to imagine that Chief Justice John Roberts or Justice Samuel Alito would agree with the judges in Florida and Virginia who have ruled against the health care law. Those judges made the confused assertion that what is at stake here is a matter of personal liberty — the right not to purchase what one wishes not to purchase — rather than the reach of national legislative power in a world where no man is an island.
It would be asking a lot to expect conservative jurists to smuggle into the commerce clause an unenumerated federal “right” to opt out of the social contract. If Justice Clarence Thomas can be counted a nearly sure vote against the health care law, the only reason is that he alone has publicly and repeatedly stressed his principled disagreement with the whole line of post-1937 cases that interpret Congress’s commerce power broadly.
There is every reason to believe that a strong, nonpartisan majority of justices will do their constitutional duty, set aside how they might have voted had they been members of Congress and treat this constitutional challenge for what it is — a political objection in legal garb.
Laurence H. Tribe, a professor at Harvard Law School, is the author of “The Invisible Constitution.”
Oh come on Ralph! You expect the court to rule that NOT buying something should be controlled by the feds under the commerce clause??? LOL
Please don't ever claim the left values freedom!
I'm not sure what the Supreme Court will do. I don't have much faith in Scaly, Thomas or Alito. I think Tribe is correct in saying what the court should do. I'm not sure they'll do it. There are good reasons for requiring everyone to have insurance, just as for nearly everyone being covered by SS and paying SS tax.
What's your point? If you disagree with Professor Tribe, why don't you explain why?
I guess we'll have to assume that you agree with professors Tribe and Cole that the health reform program is constitutional.
Lawrence Tribe will finally be content when Madame Defarge finishes the scarf she has been knitting for him.
For anyone who's interested in another INFORMED opinion, David Cole professor at Georgetown Law Center said in this week's NY Review of Books:
As Judge Hudson sees it, the health care reform law poses an unprecedented question: Can Congress, under its power to regulate “commerce among the states,” regulate “inactivity” by compelling citizens who are not engaged in commerce to purchase insurance? If it is indeed a novel question, there may be plenty of room for political preconceptions to color legal analysis. And given the current makeup of the Supreme Court, that worries the law’s supporters.
But the concerns are overstated. In fact, defenders of the law have both the better argument and the force of history on their side. Judge Hudson’s decision reads as if it were written at the beginning of the twentieth rather than the twenty-first century. It rests on formalistic distinctions—between “activity” and “inactivity,” and between “taxing” and “regulating”—that recall jurisprudence the Supreme Court has long since abandoned, and abandoned for good reason. To uphold Judge Hudson’s decision would require the rewriting of several major and well-established tenets of constitutional law. Even this Supreme Court, as conservative a court as we have had in living memory, is unlikely to do that.
The objections to health care reform are ultimately founded not on a genuine concern about preserving state prerogative, but on a libertarian opposition to compelling individuals to act for the collective good, no matter who imposes the obligation. The Constitution recognizes no such right, however, so the opponents have opportunistically invoked “states’ rights.” But their arguments fail under either heading. With the help of the filibuster, the opponents of health care reform came close to defeating it politically. The legal case should not be a close call.
Judge Hudson’s reasoning is not without precedent—but the precedents that his rationale reflects have all been overturned. In the early twentieth century, the Supreme Court ruled that the Commerce Clause authorized Congress to regulate only “interstate” business, not “local” business; only “commerce,” not production, manufacturing, farming, or mining. The Court also ruled that Congress could regulate only conduct that “directly” affects interstate commerce, not conduct that “indirectly” affects interstate commerce. Like Judge Hudson, the Supreme Court warned that unless it enforced these formal categorical constraints, there would be no limit to Congress’s power. Thus, for example, in 1936, the Court struck down a federal law that established minimum wages and maximum hours for coal miners, reasoning that mining was local, not interstate; entailed production, not commerce; and had only “indirect” effects on interstate commerce.3 Using this approach, the Court invalidated many of the laws enacted during the early days of the New Deal.
Around 1937, however, the Court reversed course. It recognized what economists (and the Court’s dissenters) had long argued, and what the Depression had driven home—that in a modern-day, interdependent national economy, local production necessarily affects interstate commerce, and there is no meaningful distinction between “direct” and “indirect” effects. In the local, agrarian economy of the Constitution’s framers, it might have made sense to draw such distinctions, but in an industrialized (and now postindustrialized) America, the local and the national economies are inextricably interlinked.
As a result, Congress’s power to regulate “interstate commerce” became, in effect, the power to regulate “commerce” generally. The Court rejected as empty formalisms the distinctions it had previously drawn, between local and interstate, between production and commerce, and between “direct” and “indirect” effects. Since 1937, the Supreme Court has found only two laws to be beyond Congress’s Commerce Clause power. Both laws governed noneconomic activity—simple possession of a gun in a school zone and assaults against women, respectively—and were unconnected to any broader regulation of commerce.4 But the Court has repeatedly made clear that Congress can regulate any economic activity, and even noneconomic activity where doing so is “an essential part of a larger regulation of economic activity.”
On this theory, the Supreme Court has upheld federal laws that restricted farmers’ ability to grow wheat for their own consumption and that made it a crime to grow marijuana for personal medicinal use, even though in both instances the people concerned sought to stay out of the market altogether.5 The Court reasoned that even such personal consumption affects interstate commerce in the aggregate by altering supply and demand, and that therefore leaving it unregulated would undercut Congress’s broader regulatory scheme.
Under these precedents, a citizen’s decision to forgo insurance, like the farmer’s decision to forgo the wheat market and grow wheat at home, easily falls within Congress’s Commerce Clause power. When aggregated, those decisions will shift billions of dollars of costs each year from the uninsured to taxpayers and the insured. As a practical matter, there is no opting out of the health care market, since everyone eventually needs medical treatment, and very few can afford to pay their way when the time comes. (Those who refuse all medical treatment for religious scruples are an exception, but they are exempt from the mandate.) That one might affix the label “inactivity” to a decision to shift one’s own costs to others does not negate the fact that such economic decisions have substantial effects on the insurance market, and that their regulation is “an essential part of a larger regulation of economic activity.”
http://www.nybooks.com/articles/archive … itutional/
reposting someones article is NOT cool Ralph. A link is sufficient.
Especially when its nothing but nonsense! Lol
I posted only part of the article for lady_love's benefit because she no sign of clicking on links. Furthermore, I think NY Review of Books articles can be accessed only by subscribers. And I doubt that either of you are subscribers. LOL has probably never heard of the publication.
I posted opinions from two foremost constitutional law professors and I get nothing in reply indicating that she read them (or you either for that matter) only LOL, LOL, let alone any indication of what in the articles she or you disagree with. Mere rejections out of hand. I'm giving up on trying to have a discussion. It's a waste of time. I'm crushed that you think I'm "uncool!"
Ralph, you know darn good and well that I DO read your links. We have in depth discussions that would not be possible if I didn't. Your post in this case really had NOTHING to do with the OP. It had to do with the Constitutional issue. I was NOT discussing that in the post.
My comment was addressed mostly to LOL, not to you. However, if you look at the comments in the thread both you and LOL have expressed opinions about what the Supreme Court's likely to do. I agree that you and I have had some substantive discussions and even agreed occasionally. :-) As I pointed out above, I think only subscribers to The New York Review of Books can access its articles on line.
Ralph, you and I couldn't be more different politically. Yet, as you stated we agree of several issues. The war being the biggest in my opinion. If two polar opposites can agree on an issue as huge as this, you would think the country could find a way out of this "meat grinder" as you call it. It is my biggest issue with the current Administration.
It’s easy to create convenient interpretations and scratch out a few lines to “prove” the Constitution and Founders are on your side…whichever side that is. Regarding the healthcare legislation, it would depend on what you feel the Constitution means when it charges Government with the responsibility to “Promote the General Welfare” of the nation. I fail to see the distinction between the intent of the present healthcare law and the healthcare that was mandated over 200 years ago for Merchant Marines who were considered private citizens. The law established the first payroll deduction and penalty. We suddenly want to redefine “regulate” and “enumerated powers”.
The Constitution in fact limits state authority…people are confusing the Constitution with the Articles of Confederation. More importantly, what is medicare, but mandated healthcare for the elderly? The arguments are idiotic. Finally, I would ask that you read the Constitution put in place by the Bush administration for the Iraqi government and ask why you are willing to pay for universal healthcare for the Iraqis while you so vehemently deny it to your fellow Americans?
Letters to the NYT on health reform:
http://www.nytimes.com/2011/02/13/opini … ef=opinion
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