A federal judge in Florida has agreed with a federal judge in Virginia that Obamacare, passed into law by Congress, is unconstitutional.
Well, we all know just how angry the right wing talking heads get when it comes to activist judges endeavoring to countermand laws approved by the representatives of the people!
Go get ’em, Fox News!
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You are applying logic, you’ll make their heads explode….
I’m still waiting for them to weigh in on Brown vs. The Board of Ed of Topeka, Kansas, Bush v. Gore, etc.
An activist judge is not someone who merely countermands laws approved by the representatives of the people. An activist judge is one who rules on laws according to his own whims regardless of precedent or original intent.
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Obamacare is blatantly unconstitutional on several counts, the most prominent of which is the individual mandate. It would take an activist judge to allow the individual mandate to stand.
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The judge writes:
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“I must reluctantly conclude that Congress exceeded the bounds of its authority in passing the act with the individual mandate. That is not to say, of course, that Congress is without power to address the problems and inequities in our health care system. The health care market is more than one-sixth of the national economy, and without doubt Congress has the power to reform and regulate this market. That has not been disputed in this case. The principal dispute has been about how Congress chose to exercise that power here…”
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“While the individual mandate was clearly ‘necessary and essential’ to the act as drafted, it is not ‘necessary and essential’ to health care reform in general,” he continued. “Because the individual mandate is unconstitutional and not severable, the entire act must be declared void.”
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Read more: http://www.foxnews.com/politics/2011/01/31/judges-ruling-health-care-lawsuit-shift-momentum-coverage-debate/#ixzz1Cf8rmt3k
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Yes, I quoted Fox News.
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The point is that the judge doesn’t deny congress has the authority to regulate healthcare, he says the mandate to buy insurance is unconstitutional and inseparable from the law as passed, therefore the whole thing must voided.
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The complete opinion is here: http://www.scribd.com/doc/47905937/Health-Care-Ruling-by-Judge-Vinson
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I’ve read the first ten pages so far and it’s quite accessible to the layman.
Actually, given the popular use of the term, an activist judge appears to be one who makes a decision that a Republican doesn’t like.
Michael hits the nail on the head.
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If the GOP doesn’t like it, then haul out the slogans.
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But if the GOP likes it? Well, then there’s obviously no such activism.
There’s a reason for that. Because conservatives have a small government emphasis, they’re more less likely (though not immune) to try to push for big government interventions. Progressivism, which started as a movement in the late 19th century, wasn’t a force at the time of the constitution’s drafting.
Yeah, that’s kind of the point I was trying to make.
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Conservatives have a small-government emphasis in name only. The truth is that they expand government and raise taxes just as much as liberals/Democrats do. Every presidential administration since WWII, for example, has expanded government Republican and Democrat alike. Conservatives haven’t truly pushed for limited government since they were taken over by the Right Wing. The only difference between the two aisles is which aspects of government they want to expand.
“Conservatives have a small-government emphasis in name only. The truth is that they expand government and raise taxes just as much as liberals/Democrats do. Every presidential administration since WWII, for example, has expanded government Republican and Democrat alike. Conservatives haven’t truly pushed for limited government since they were taken over by the Right Wing. The only difference between the two aisles is which aspects of government they want to expand.”
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You’re confusing conservative with Republican. The two are not always the same. While conservatives tend to call the Republican party home, the Rockefeller wing of the party is usually embarrassed by them.
There’s a Rockefeller wing of the party? Where? How much of the current conservative population in Washington do they represent?
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The “conservatives” of today are not the conservatives of Barry Goldwater, Rockefeller or Ronald Reagan. Those who are, like Ron Paul, are an exception.
An activist judge is not someone who merely countermands laws approved by the representatives of the people. An activist judge is one who rules on laws according to his own whims regardless of precedent or original intent.
Which is what happened in this case.
Setting aside the merits of the individual mandate (which was a Republican idea until Democrats began supporting it), the judge struck down the entire law because of one section that he found unconstitutional.
This flies in the face of judicial precedent, which has been to strike the offense parts of the law, leaving the rest intact.
See here for analysis.
I don’t know which side the insurance companies would come down on with this ruling. The Virginia ruling was, for the insurance companies, the worst possible ruling; they would suffer all the regulations of the PPA and receive none of the mandated customers. This one returns us to the status quo of two years ago. Whether you think that status quo is sustainable over the long-term depends on whether or not you feel the death spiral of the insurance companies due to increasing costs and a dwindling customer base due to costs is likely to happen.
Setting aside the merits of the individual mandate (which was a Republican idea until Democrats began supporting it), the judge struck down the entire law because of one section that he found unconstitutional.
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Yes, but the thing is, that section was essential for the rest of the Act. The individual mandate is necessary to subsidize the other parts, like covering preexisting conditions. Otherwise insurance companies will be stuck paying the bills of seriously ill people, without having the insurance premiums of healthy people to offset the cost. J Vinson pointed out that even the Government conceded that the individual mandate was essential to the entire scheme (which they apparently stated more than a dozen times in their brief).
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The other problem with that argument is that what you’re suggesting is called “severability,” which is that if an unconstitutional provision can be severed from the rest of the statute, the only that provision is excised. It’s a normal rule of legal interpretation, but in addition, most statutes with controversial sections include language directing the courts to sever any provisions they strike down and leave the rest intact. This Act originally had such a provision. It was removed from the final draft. The editorial you linked to suggests that was “an apparent oversight” in the final version. That is frankly dumb. It isn’t a mere oversight when an important provision is removed from a statute. That is especially unconvincing where, as here, severability would be a really bad idea given that the most legally controversial aspect is necessary to fund the rest. Without the individual mandate, the whole thing needs to be whacked, because the entire house of cards collapses without it. Probably the drafters were thinking either (a) if we lose the mandate, we need to kill the bill anyway, or (b) if we include a severability clause we’re almost inviting a conservative judge to strike down the mandate and leave the popular bits intact without a funding provision, or (c) both. As it happened, J Vinson took the removal of the clause as an argument against severing the mandate from the rest.
This flies in the face of judicial precedent, which has been to strike the offense parts of the law, leaving the rest intact.
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That’s only partly true. When possible, the courts try to strike down only the offending parts of a law. There is a related rule of interpretation that, where there are two possible interpretations and one is constitutional, and the other unconstitutional, the constitutional interpretation is held to be the correct one. The goal is, where possible, to give effect to the intentions of the legislature. That simply wouldn’t work here. It would have made the unsustainable status quo you mentioned even more dire.
Then you should be arguing against the automobile insurance mandate as well.
I’d prefer single-payer, myself, but if we’re going to keep using health insurance, everybody should have to buy into it.
“Then you should be arguing against the automobile insurance mandate as well.”
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No, no, no, no Dana. This is an extremely inaccurate comparison. You can choose not to drive. You can’t choose not to need medical care even if the only doctors you see are the one that delivers you into the world and the one that declares you out of it.
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“I’d prefer single-payer, myself, but if we’re going to keep using health insurance, everybody should have to buy into it.”
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And what else would you have the government force you to buy, Dana? Healthy food? A treadmill? A laptop? An electric car? Once you give them that power, history has shown it won’t stop there.
What’s more, he defends his ruling by quoting the position of a well known left of center politician made during a recent election:
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ROBERTS: Senator, she suggests that you’re falling short here by mandating coverage for children but not mandating it for their parents. What do you say?
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OBAMA: …[I] mean, if a mandate was the solution, we can try that to solve homelessness by mandating that everybody buy a house. The reason they don’t have a house is they don’t have the money.
Excellent decision, Judge!
Hey lefties! I’m surprised LOlbermann having another fit and quitting MSNBC hasn’t been discussed. I’m sure that was the fault of FOX News, too.
LOL…er, I mean…LOlbermann. Hah!
Shux.
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Never three billy goats around when you want them.
Sorry, I can’t take the below situation seriously:
A law is passed forbidding people to marry the consenting adult of their choice. This is later deemed unconstitutional. The judge who did this is criticized by many on the right for overturnong the will of the people. Even his sexuality is brought up as a means of arguing that he was biased.
A law is passes to help provide health insurance for more Americans. The requirement is that people will need to buy health insurance (keep in mind that car owners have to buy car insurance). This is deemed inconstitutional (oddly enough by people who normally favor personal responsibility. You will get sick. That’s unavoidable and more people buying health insurance when they are still healthy lowers the burden for everyone).
But hey, you can disagree with the law and find it unconstitutional. That’s fine. I just have trouble with the hypocrisy. If you are at least consistent, fine, but the Palins and others will not be. We all know this.
So, we are left with a philosophy in which social justice is activism and should be avoided but protecting our pocket books continue to be the most important thing in the world. OK.
“Sorry, I can’t take the below situation seriously:
A law is passed forbidding people to marry the consenting adult of their choice. This is later deemed unconstitutional. The judge who did this is criticized by many on the right for overturnong the will of the people. Even his sexuality is brought up as a means of arguing that he was biased.”
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The situation is different. You had an established precedent of marriage being defined as consisting of the union of a man and a woman. There was nothing in the annals of jurisprudence that I’m aware of to contradict this, and a judge decides it’s time for a change. That was activism in its purest form.
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“A law is passes to help provide health insurance for more Americans. The requirement is that people will need to buy health insurance (keep in mind that car owners have to buy car insurance). This is deemed inconstitutional (oddly enough by people who normally favor personal responsibility. You will get sick. That’s unavoidable and more people buying health insurance when they are still healthy lowers the burden for everyone).”
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Philosophically, I’ve always had a problem with mandatory car insurance, but there is a huge difference. First, as far as I know, mandatory car insurance laws are passed on a state level, which is different from a federal mandate. At least with car insurance, you have the option of not driving if you don’t want to pay for insurance. With mandatory medical insurance, you have no such out. If you survived the womb and are an American citizen, you must pay. That is different.
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And btw, “social justice”, like “substantive due process,” sounds good, but it really means nothing.
It kinda points out how toothless the Obamacare package was. Forcing people to buy health care removes personal choice from the equation. Either you go free universal health care for all or you don’t, not the malformed mutant freak-law that went through.
“The situation is different. You had an established precedent of marriage being defined as consisting of the union of a man and a woman.”
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Actually, I think that the established precedent of marriage (in America) was defined as two consenting adults ratifying their love in a governmentally recognized union. Of course, another precedent in America is restricting the availability of a license from being issued to undesirable persons (Native Americans, Chinese, mixed races, and now same-sex.)
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Of course, there is also the established precedent of the courts declaring the established law is unconstitutional even if said law has been in place for many decades (Loving vs the state of Virginia.)
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“At least with car insurance, you have the option of not driving if you don’t want to pay for insurance. “
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And, yet, no one seems to be suggesting that if you are without health insurance, you have the option of not contracting cancer.
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The point of car insurance is to protect others from your personal mistakes. This is why liability insurance is manditory, but comprehensive insurance is only required when your car is owned by someone else.
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People without health insurance still receive medical care. They are still in the health care industry, they just aren’t paying for it.
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Consider the health care industry as a private social club. You can pay a huge fee to a private company for your membership card (private health coverage.) Some jobs will give you access to the club (corporate health coverage.) But, the law states that if you are a citizen and want in, you can just walk in. How long do you think it would be before the same government lobbyists who are paying our senators to block health care reform (and, it is happening, the company I work for has lobbyists paying senators to block health care reform repeal) would get the government to take over the private club, pay for it with tax money, and say it is publicly owned by the fact that the law states they have to admit any citizen who walks in (public parks)?
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I’ve recently learned that this really isn’t a left / right issue. There are just as many reasons for the right to support a person taking responsibility for themselves rather than force the government to care for their inability (or in some cases their desire not to) plan for the inevitable illness or accident.
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The real issue is that health insurance companies get paid in premiums, invest that money to increase their holdings, and then use every trick in the book (including some penciled in the margins) to not pay out when the situation they promised to cover occurs. They are, essentially, private golf courses who advertize lush greens and competant caddies and an open bar for members, but are strangely always “under construction” when certain people come to visit.
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Theno
Actually, I think that the established precedent of marriage (in America) was defined as two consenting adults ratifying their love in a governmentally recognized union.
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Well, there is that Supreme Court ruling that denied a constitutional right to same sex marriage, and the fact that no state government in the first 200+ years of the republic granted a marriage license to a same-sex couple, but apart from leaving out important caveats you’re right about what the law used to be. No, seriously, you’re arguing precedent, so find me a case or statute before the 21st century that supports your interpretation. Find me a single same-sex marriage license before the year 2000. (NB: Hawaii came close.) Your better argument is the next one you make– that precedents can be set aside, as in Loving v. Virginia. Laws change. Sometimes even for the better. It is never helpful to confuse what the law is, or what it used to be, for what it ought to be. I support gay marriage. But I’m honest enough to admit it’s a departure from precedent.
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In any event, the problem that the supporters of this act have is that they are completely ignoring the analysis that Vinson advances in his opinion. They confuse what the law is with what it ought to be. Suppose that the Act really is a dramatic improvement. That doesn’t mean that the government has the power to impose it. Vinson’s conclusion is that, if this is an acceptable application of the Commerce and Necessary and Proper clauses, then we might as well stop even pretending that the Federal government has enumerated powers. I suspect that most big-government people would prefer exactly that. But that would require a significant revision of the Constitution. Obtain the authority to pass laws before passing them, please.
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State governments do not have enumerated powers, which is one reason that your auto insurance comparison fails. They’re not bound by the Commerce Clause’s perimeter. When a state government compels its citizens to obtain auto insurance (for the reasons you suggest– to protect other motorists), they are drawing on a different reservoir of power. It isn’t the same analysis.
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The other problem I see with your (and Marcus’s) analogy is that someone deciding whether to obtain health insurance isn’t in the same situation as someone deciding whether to buy car insurance. Someone who prefers not to, or cannot afford to, buy car insurance can in fact decide not to drive. In many places that’s a tough decision– public transportation is nonexistent or lousy in much of the country– but it is a possibility. By making the decision to drive, a person does voluntarily accept regulations, like licensing, insurance, auto registration, etc. The health insurance mandate doesn’t even allow for the Hobson’s choice that pedestrians in rural areas face. It also isn’t very persuasive to argue that people without insurance are still participating in the health industry because they can get emergency care. The fact that person A will give charity to person B to stop person B from dying doesn’t necessarily confer obligations on person B. (Though if it did, the welfare debates of the mid 1990s would have gotten even more interesting.) Besides, the health insurance mandate went even beyond the auto insurance mandates. Auto insurance, as you mentioned, exists primarily to protect other people; the only true requirement is a fairly modest liability package. The individual mandate didn’t just require catastrophic insurance to potentially pay back the costs the system might absorb if an uninsured person showed up in the emergency room; it required all human beings in this country to be covered by a policy approved by the US Government, presumably for their own good.
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In a brief moment of lucidity recently, Paul Krugman observed that the left/right debate is developing in ways that may be as irreconcilable as the abortion debate. If an abortion opponent truly believes that abortion is infanticide, it doesn’t leave much room for compromise. Similarly, if a small government conservative truly perceives governmental meddling and taxes as theft, the room for compromise is fairly constrained. Health care is an aspect of that. Opponents truly believe that it is wrong– possibly outright immoral— for the government to compel people to buy services from an approved list. They don’t want a nanny state, and they don’t want the government to take their property to give it to another person, which is essentially how insurance operates– everyone pays in premiums, and the insurance company uses the premiums to invest and cover the expenses of claimants. It may be a good deal for you to sign up for, but it has a very different feeling if it’s coerced by the government. Note that this objection doesn’t change even if the government coercion makes life better for a lot of people.
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So, ultimately, there are two different objections to the health care reform, one about what the law is under the US Constitution, and the other about what the law ought to be. (1) Congress has extensive powers under the Commerce Clause, but not this extensive. (2) Even if it were legal to pass this legislation, it would still be wrong, because it infringes on the liberty of people who don’t want to pay into the insurance system in order to subsidize other people.
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Judge Vinson addressed (1) only. If you want to disagree with him, that’s what you should focus on. Please don’t pretend that opponents don’t have a plausible argument in debate (1), because it’s disingenuous and insulting. If you want to argue that the health care law was a good and noble thing, that’s fine, but please understand it’s a different argument.
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In case you were wondering what I think, I definitely think that the objection in debate (1) has merit, and I’m inclined to oppose health care reform under argument (2) as well. (Argument (2) basically boils down to believing that it’s a good thing that we have the enumerated powers described in argument (1), and I do believe that.)
Spoken like a true white guy. Go without the social justice for a while and then come back and tell us it means nothing. All it’s gonna take is someone sticking you with a child support bill and you’ll be *all about* the social justice. Or your version of it.
Now imagine if you came from a background of slavery followed by Jim Crow followed by denial that slavery + Jim Crow should have had lasting effects on your demographic population.
Or imagine if you came from a background of enforced servitude plus being owned by the other gender and yours was the last citizen demographic allowed the vote and you’ve only had the right to control your own body since 1973 and people are *still* trying to control your body *for* you to this day but at the same time, denying there’s any discrimination against your demographic at all, despite pages and pages of statistics proving otherwise. (I particularly like the Bureau of Labor Statistics wage tables showing that even though there weren’t enough male kindergarten teachers to bother posting their number on the chart, they’re still getting paid more than females in their field who far, far outnumber them.)
There’s nothing in the Constitution that says we are supposed to pay for a standing army with income taxes. Take care of that problem and then come back and regale us with tales of how oppressed you are because your taxes are funding something you don’t like. Because really, that’s what it boils down to.
sigh. every time we take a step forward in this country we end up taking another two back.
I think you’re being generous in saying that we’ll only take two.
They could have saved so much trouble if instead of a tax if you don’t have insurance, they give you a tax break if you do.
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Also think it’s funny that the Dems find themselves having to defend a portion of the bill they only stuck in there to sway Republicans. (Who of course had decided they would be more likely to do better in the coming elections if they just sat on their hands and held their breath until their faces turned blue instead of doing their f-ing jobs. The sad thing is that it appears they were right.)
Malcolm, my ancestors were slaves so I am not overly moved by established precedent, as it is often discriminatory.
The judge in California did not grant a right. He pointed out that the majority choosing arbitrarily to deny it for the minority was not constitutional. Consenting adults can enter into legally binding relationships.
Social justice does mean something. I can point to dozens of cases, from Brown vs Board of education that are examples of this. Those cases were criticized as well by those who cited precedent and lamented activist judges. It’s hard to tell if a political philosophy is just consistently on the wrong side if history or is oblivious to actual history.
But I’m getting talking points from you, so….
“Malcolm, my ancestors were slaves so I am not overly moved by established precedent, as it is often discriminatory.”
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A little tip for you. Anyone with roots in eastern Europe also has slave ancestors. That’s why the people from those areas are known as “Slavic.” As Pole, I certainly fit this definition, but it has about as much to do with this debate as your ancestry.
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But the point of “activist judges” is that they don’t keep with precedent. You said you want consistency, then just admit you have no problem with activist judges as long as they rule how you like.
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Yes, Brown was a text-book activist decision. I never personally had to deal with busing, but those I know, both black and white, hated it. Chris Rock has a terrific riff on the effects of waking up to catch a 5am bus to school to deal with scary white kids.
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As for “social justice,” it’s either justice or it’s not. Justice is something that occurs as recompense for a committed crime, and even there is a subjective concept. Once we start adding adjectives like “social” to it, we make the concept even more arbitrary. You can’t define it other than to say you know it when you see it. Of course, the problem is that other people see different things as “socially just” or unjust, rendering the whole phrase as meaning, “Something I like.”
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“It’s hard to tell if a political philosophy is just consistently on the wrong side if history or is oblivious to actual history.”
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There’s not a day I don’t wonder that about progressives.
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“But I’m getting talking points from you, so….”
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If by talking points you mean that I quoted the actual decision to support my point that the judge was not acting as an activist, then guilty as charged.
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Yes, I quoted a Fox News story, but then I posted a link to the actual decision and admitted that I was only ten pages into it at the time, which is ten pages (now 30 pages) more than I bet you’ll read of it. If reading the source material is gathering talking points, so be it.
Malcolm: There’s not a day I don’t wonder that about progressives.
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Actually, funny, my favorite president was a progressive and a Republican.
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Probably did more in his two terms than the majority of Presidents.
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Of course, I’m talking about Theodore Roosevelt.
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Today, he would be cast as a RINO, because no one should use the federal government in that manner.
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In fact, Beck (shudder) did his best to paint TR’s main antagonists (Morgan, et al) as saintly men. Which is a laugh.
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But on a different note, I am impressed Malcom. You actually voice your opinion well, and seem to be fairly informed.
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I may not agree with you, but at least I’d rather have someone who actually is willing to discuss it in a rational way.
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(And yes, I do know about TR’s downfalls in light of today’s society, but what that man did…. just wow)
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TAC
Travis,
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Thank you. I appreciate the compliment.
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I’m not a fan of TR’s presidency because of his progressivism, but he was arguably the most fascinating man to ever hold the office.
Bzzzt!
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Wrong!
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Thanks for playing, though!
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As a descendant of Bohemian draft-dodgers, i was interested in this (false) etymology, and looked it up.
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From Wikipedia:
“A little tip for you. Anyone with roots in eastern Europe also has slave ancestors. ”
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Yes, well I doubt that most people with Eastern European roots in this country are still dealing with the after affects of their ancestral slavery the way African Americans still are.
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“As for “social justice,” it’s either justice or it’s not. Justice is something that occurs as recompense for a committed crime, and even there is a subjective concept. Once we start adding adjectives like “social” to it, we make the concept even more arbitrary.”
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Yes, as there are those who feel that there should be no category of “Hate Crime”, because it’s either a crime or not. But adjectives exist for a reason, to qualify and emphasize a term that is otherwise open to several definitions or interpretations. You may not hold that social justice works as a valid concept of dealing with human rights and equality, but you can’t dismiss that there are many who do and that thus it is a very real term and belief.
Darn it, Weber, you beat me to the etymological punch!! Curse you and the keyboard you rode in on!!
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Suffice it to say, Malcolm, I’d say chances are good that your forebears weren’t slaves in this very country.
“The English word Slav is derived from the Middle English word sclave, which was borrowed from Medieval Latin sclavus “slave,”[12] itself a borrowing and Byzantine Greek σκλάβος sklábos “slave,” which was in turn apparently derived from a misunderstanding of the Slavic autonym (denoting a speaker of their own languages).”
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Your quote, not mine. There’s a reason for the misunderstanding.
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slave (n.)
late 13c., “person who is the property of another,” from O.Fr. esclave (13c.), from M.L. Sclavus “slave” (cf. It. schiavo, Fr. esclave, Sp. esclavo), originally “Slav” (see Slav), so called because of the many Slavs sold into slavery by conquering peoples.
This sense development arose in the consequence of the wars waged by Otto the Great and his successors against the Slavs, a great number of whom they took captive and sold into slavery. [Klein]
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source:
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http://www.etymonline.com/index.php?term=slave
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I merely reversed the order in how the word slave came about. My point still stands.
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“Yes, as there are those who feel that there should be no category of “Hate Crime”, because it’s either a crime or not. But adjectives exist for a reason, to qualify and emphasize a term that is otherwise open to several definitions or interpretations. You may not hold that social justice works as a valid concept of dealing with human rights and equality, but you can’t dismiss that there are many who do and that thus it is a very real term and belief.”
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And I’ll admit to holding that view of hate crimes.
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Human rights and equality are concepts that occurred long before the concept of “social justice” and that phrase does nothing to further our understanding of them.
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Social justice has come to be a catch all for socialist schemes ranging from progressive taxation to property redistribution, nothing more.
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“Yes, well I doubt that most people with Eastern European roots in this country are still dealing with the after affects of their ancestral slavery the way African Americans still are.”
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“Suffice it to say, Malcolm, I’d say chances are good that your forebears weren’t slaves in this very country.”
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It’s true that Otto the Great isn’t holding me back anymore, but my point was that slavery doesn’t enter into whether or not a judge is an activist. It only figures into whether or not he approves of judicial activism.
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But this judge flying in the face of precedent (by negating the whole law, rather than part) isn’t activism? How’s that now?
Malcolm Robertson: “A little tip for you. Anyone with roots in eastern Europe also has slave ancestors. That’s why the people from those areas are known as “Slavic.” As Pole, I certainly fit this definition, but it has about as much to do with this debate as your ancestry.”
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Umm, Malcolm, I’d disagree with you on that sweeping generalization. There are TWO very large communities in Eastern Europe that would be very offended by being deemed “Slavs”: One are the Magyar and the other are the Români (better known as Hungarians and Romanians, respectively). Of course, there are also the Shqiptarët, the Hellenes, and the Türkler (Albanians Greeks, and Turks, respectively) further to the south though none of those groups are typically considered “Eastern Europeans.” And, if we want to extend a bit more to the northern end of “Eastern Europe,” we’ll find the Eestlased (Estonians), and even further east into “Eastern Europe,” one will find a number of Turkic and Mongol peoples (though it’s probably safe to say that most Eastern European and Russian Empire emigrés were of Slavic stock (or Jewish).
Don’t forget the Balts (Lithuanians and Latvians) or the Roma (Gypsies).
Sorry, Malcolm, the term “Slav” predates the false etymology of “slave” – it’s a classic example of a folk etymology arising from the fact that two words with nothing actually in common sound alike.
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If a German ever offers you a drink asn says “Here’s a gift for you”… Don’t drink it.
“Umm, Malcolm, I’d disagree with you on that sweeping generalization.”
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You are right. I should have said, “Most with European roots” instead of “anyone.” I stand chastised.
To be fair, Democrats and Leftist-types complain about activist judges, too, they just don’t often call them that. Many pundits are still ranting about the Citizen’s United case from last year, for example.
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As for me, I like judges who are active in limiting government power.
Absolutely we complain about “activist judges.” In fact, judicial activism is something we spend a lot of time working to help and fight, in turn. Why do you think we like trial lawyers so much?
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Seriously, though, it’s not an issue of the “left complaining about activist judges” so much as the hypocrisy involved here. Actually, what the left has a problem with is the apparent motivation of specific decisions. It’s rarely about the judge him (or her)self, unless the judge has a history of making deeply questionable legal arguments (cf: Clarence Thomas). But that’s an evidence-based conclusion based on legal analysis. On the other hand, the right claims NOT TO HAVE OR SUPPORT “activist judges” and rails against one ruling as if that is the sum total of the judge’s history and character. Then, the right claims that their judges “only (and ‘strictly’) follow the law” without nagging liabilities like “empathy” (by which they mean “ethics”). Now, it’s one thing to complain that there is judicial activism; it’s entirely different to claim “your side” isn’t activist when clearly it’s as activist (or more, currently) than the “other side.” One is a valid objection; the other is hypocrisy.
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Ultimately, here’s the problem: the law is supposed to be objective and disinterested. Political agendas are supposed to be left behind when the judge puts on the robes. Is this a naive ideal? Probably. But it is the ideal.
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Nor am I completely against judicial activism when it’s in the interest of serving justice, and it’s really not that complicated to tell the difference between righting an injustice (in law or in society) and a political agenda. Desegregating schools: okay, it was judicial activism, but it clearly righted a social inequality. Stopping the healthcare bill full stop, including recision and pre-existing condition limitations: this was judicial activism in the name of corporate abuse. (Same with Citizen’s United, by the way. The court decision went much farther than simply righting the infringement of this guy’s 1st Amendment case (which he should have won, btw). This is what the uproar on the “left” is about: corporations having the same rights as citizens (people), but all the shelters and legal power of corporations, which we don’t, including unlimited contributions (which actually gives corporations more rights than individual citizens).)
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So, there is a radical difference between the left and the right’s positions on judicial activism (in the main — I’m sure there’s some nitwit on the left who thinks any judgment that disagrees with him is somehow “judicial activism,” just like the right appears to be doing now, but I’m talking about the general trends in which there are overwhelmingly clear narratives to the right’s approach to this).
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For me, I like judges who judge based on evidence, ethics, and the law in the best interest of the commons. Crazy, I know. But here I am, with “We the people…”
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AD
Somewhere i was reading – maybe one of the comments here, in which case i’m sorry for repeating it – two judges appointed by Republican Presidents have ruled against the law … and two appointed by Democrats have ruled in favour of it.
Hmmm. This opinion is largely irrelevant. ObamaCare was headed for the Supreme Court anyway. The only opinion that truly matters regarding the constitutionality of ObamaCare is Justice Kennedy as, ultimately, I suspect he will be casting the final vote on the matter.
I’m missing something here. Which part of the Constitution was violated by the individual mandate?
I’d also like to know why this judge in Florida was displaying such activism as to declare the whole law unconstitutional when he seems to have only found fault with the individual mandate.
Two reasons:
1) An earlier version of the bill had a severability clause in it; that clause was removed in the version of the bill that was passed. The judge reached the reasonable conclusion that the change was made deliberately by Congress, so their intent was to have the entire law go down if any part went down.
2) The attorneys for the Federal government also argued that the mandate could not be severed from the rest of the bill.
Given that, it seems pretty obvious.
It’s amazing how much baggage people want to pile on to this issue. Let’s cut all that aside and go right to the core of the matter:
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The Constitution grants Congress the right to regulate interstate commerce. (Article I, Section 8: To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
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Does that right include the right to compel every single American to purchase a good or service, whether they wish to or not, that cannot be sold across state lines?
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If so, then there is literally nothing Congress cannot do, as it can be somehow be interpreted to affect “interstate commerce.”
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The nation needs jobs, and the government owns GM. It would be a boon for everyone to buy a GM vehicle.
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The housing market is depressed, hurting the economy. Plus we have a problem with homeless people. Everyone who can afford to must buy a house, bringing down the rental market where more people can afford apartments (until they can afford a house.)
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The government is planning on regulating the health care market. It has a fiscal obligation to the taxpayers to minimize expenses, so they can require everyone to eat healthy and exercise regularly. (If you take the king’s gold, you play the king’s tune. If the government is in charge of your health care, then they have to have a say in your health.)
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Domestic security is a major issue, as is crime. Every household must buy at least one firearm — which will also help the gun industry.
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All logical extensions of Obamacare, stripped of all the partisan baggage and BS everyone else wants to bring up. (“It was a Republican idea first!” “Obama was against the mandate in 2008!” And all the rest.)
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The primary duty of the Judiciary is to interpret the Constitution, and decide what does and does not fit within it. Marbury v. Madison established that; this decision is based purely on deciding on whether a specific law is within the scope of the Constitution or not. You can’t get closer to the original intent of the Constitution.
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Liberals think conservatives are all greedy, evil corporate pawns and hateful, racist bigots. Conservatives think liberals are naive idiots who just want to control everything about people’s lives to make things better, whether or not it will actually work or if those being controlled want to be controlled. Yay, it’s all been said.
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Anyone else feel like actually discussing the issue at hand? Or do you all just want to keep flinging feces at each other?
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I suspect I already know the answer, so I’m putting up my Gallagher sheeting.
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J.
OK, Jay, let’s talk interstate commerce.
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The Interstate Commerce Act was enacted in order to give relief to American farmers whose livlihoods were in jeopardy due to the way the railroad companies were doing business.
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The Act insisted that shipping rates had to be, “reasonable and just.” Also, that price discrimination against small markets was now illegal.
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These statements remind me of how my father’s cataract surgery cost him thousands out of pocket, in addition to his $500+/month insurance policy, whereas my uncle’s cataract surgery by the same doctor at the same hospital in the same time frame cost $0 out of pocket.
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While the rates were up front, the service provided were unexpected. And, the service did not compare to the rates paid. One would think that a $500/month policy would get you better service than $70/month. Especially if the rates are “reasonable and just.”
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Also, the price discrimination is quite evident in the health insurance industry. Women pay more than men. Different geographic areas pay more or less than others. Some people get their allergies covered, others do not. I get mental health covered, my girlfriend (who pays more) does not. She gets chiropractor visits covered, I do not.
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That is the Commerce part of “Interstae Commerce,” so lets talk about the Interstate part. Cigna is a global health care company. And, yet, they can’t sell across state lines? I honestly don’t know how that works, but I do know that when Katrina hit, American Family “lost” a lot of money because they showed so much profit from other areas of the country that they didn’t qualify for government dissaster assistance. Their solution was to break up into smaller, regional companies such as American Family South, American Family Mid-West, etc. The company showed much greater profits the year of Hugo than during the year of Katrina.
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According to a coworker who works in government relations, the health insurance companies are lobbying against the ability to sell across state lines because if they could, they might face the same situation American Family did should a big disaster hit.
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“The government is planning on regulating the health care market. It has a fiscal obligation to the taxpayers to minimize expenses, so they can require everyone to eat healthy and exercise regularly. (If you take the king’s gold, you play the king’s tune. If the government is in charge of your health care, then they have to have a say in your health.)”
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Jay, you are putting the cart before the horse, here.
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The government already has a fiscal obligation in regards to health care. Something that talking heads don’t seem to want to address is that every single one of us is already a part of the health care industry. The reform bill doesn’t add anyone to the health care industry, it adds people to the health insurance industry. Doctors and hospitals have the same patients.
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If a 20-year old worker at McDonald’s gets into a car crash on his way to work, who pays for his ambulance ride and hospital stay? The government does. Because, McDonald’s doesn’t give insurance benefits to its part time employees, and at that salary there is no way to expect him to be able to afford private insurance.
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If a 12-year old suddenly has heart palpatations in school and is rushed to the hospital, who pays for it. Sometimes, the child’s parent’s insurance. But, sometimes the insurance company declares the child “obese” and the heart condition to be “pre-existing” and cancels the coverage. In that instance, the government pays for it.
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If a 45-year old is diagnosed with cancer, who pays for his treatments? Sometimes, his or her health insurance. But, sometimes the insurance company cancels his coverage. In this instance, the patient will get minimum care, bills and collection calls for the rest of his short life, and then the government picks up the tab. Or, the hospital eats it and passes the cost along to future patients in the form of increased overhead costs.
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Our health care industry is considered one of the worst in the world because of these costs (and others, don’t get me started on the pharmaceutical mess) that get passed around and inflated.
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Theno
Thenodrin (or anybody else),
What is the difference between the first two examples and the third? I would think they would all result in the parties being sent to collections (the parents of the child instead of the child itself) instead of the government covering it.
I’m not up on all the rules, I just know I have friends falling into the McDonalds-stlye example that are dealing with collections. One of the main complaints about the current system that I always hear is of the government covering the expense for the uninsured, but I don’t see it in practice.
Just for the record, Jay: Saying something inflammatory and then following up with something to the effect of, And now here come the flames, here we go, I’m gonna get it now is the sort of passive/aggressive tactic that really doesn’t get very far with me.
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PAD
My apologies, PAD. Sometimes I forget where I’m talking — that’s the sort of thing I normally save for my own blog, or a particularly odious couple of ones where I dive right in and duke it out. It wasn’t appropriate here, and I’ll try to be more careful in the future.
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J.
The problem with coming up with “logical extensions” is that healthcare is in a very unique situation. Any other “good or service” you can think of has a simple rule – you want it, you have to pay for it. Emergency rooms and the like don’t work that way. If care is truly needed, it has to be provided. That changes the rules a bit.
What I am trying to get to here is what part of the Constitution is specifically violated by the individual mandate? It sounds like less of a violation than an interpretation of what regulating interstate commerce should include.
Also, my understanding is that the Constitution does not give the Supreme Court the authority to decide what is or is not constitutional. That was a responsibility that they decided to take for themselves in the court case you sighted but it isn’t actually in the Constitution either.
Rebecca, they are saying that REFUSING to engage in commerce by buying a specific product is in itself an act of commerce. That merely for the privilege of living, we have to buy something from a private entity.
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And no, the car insurance analogy doesn’t hold. For one, if you don’t want auto insurance, don’t get a car. Or move to a state that doesn’t require it, like New Hampshire — because auto insurance is regulated on the state level, not the federal level.
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It’s a horrifically dangerous precedent, a totally unprecedented assertion of power by the federal government. And it must be stopped.
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J.
OTOH, modern medical is inherently an interstate process.
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Also, it is quite possible – and would be 100% Constitutional – for the Federal government to require insurance as a condition of operating a motor vehicle on any highway or road that has been fully or partially federally funded.
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(BTW – did you know that there is a Federal statute regarding speeding on the Interstate system? Max $1000/1 year misdemeanor, according to a lawyer acquaintance…)
It comes down to a question of paying for a service for convenience or paying for a service because it’s a necessity. My Chrysler’s starter died a few weeks ago. I don’t have the funds to get it fixed, so it sits under a large mound of snow looking like a sedan sundae. I don’t HAVE to get that service. I slip while trying to get the snow off the car, my arm is severed in a Mulliganesque fount of blood. I either get the services of a doctor or I wind up all dead. It’s not a wait-and-fix-it-later thing unless I’ve suddenly become the Black Knight.
The link below is to an opinion that postulates that Obama is well aware of the constitutional problems the health care bill has and that is it really a means to an end and that end is Medicare For All.
http://www.occasionalplanet.org/2010/12/29/health-care-reform-is-the-president-crazy-like-a-fox/?sms_ss=facebook&at_xt=4d1baf31f3556161%2C0
George, one popular theory is that Obama knew that ObamaCare would fail, and then we’d have to go to single-provider (putting the entire private health insurance industry out of business, and making us all government dependents). I dunno if that’s the case or not, but I do know that killing it before it starts and then fails will likely head off that tactic.
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J.
That seems too clever by half. If this bill goes down in flames what are the odds that the congress, now with fewer advocates and more opponents, will then enact an even MORE (use the word of your choosing; radical, progressive, complicated, revolutionary, whatever) bill?
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It’s fun to think that the government is so Machiavellian but the truth is they are not nearly smart enough to be the puppet masters the conspiracy buffs imagine.
“I’d also like to know why this judge in Florida was displaying such activism as to declare the whole law unconstitutional when he seems to have only found fault with the individual mandate.”
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Becauuuuse…usually complex laws have what is called a “severability clause”, which says that if a court strikes down one part, all other parts remain enforceable. But Obamacare’s authors insisted that without mandatory insurance, the law’s other provisions wouldn’t work – and removed the severability clause before the law was passed.
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Vinson relied on what CONGRESS MEMBERS and THE ADMINISTRATION said in DEFENSE of the mandate to reason that without it, the rest of the law won’t work. using their own arguments in favor of it, he compared the 2,600 page law to a precision watch whose many parts operate in tandem. If one part can’t work, nobody can.
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On this house of cards was the argument for passage of ObamaCare made – and it is on that house of cards that it will fall.
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That’s why.
The mandate has nothing to do with people being rejected for pre-existing conditions. Nothing to do with extending the age of coverage for dependents. Nothing to do with lifetime coverage limits.
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Instead, the judge simply decided to throw it all out because he could.
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This ruling meets the very definition of judicial activism that so many on the Right rail against. Which means there’s complete hypocrisy involved, as usual.
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Meanwhile, the GOP continues to waste everybody’s time in the Senate by trying to force a repeal vote – by attaching it as an amendment to an unrelated bill, not surprisingly – when they know it won’t pass.
At this rate it may well be that any attempts to repeal the bill are a waste of time, since there may not be a bill to repeal.
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Maybe some of the liberal ire should be directed at the folks who drafted such a lousy bill and the experts who assured them that it was perfectly viable. Maybe the “we need to pass it to know what’s in it” “Read it? Who has time to read it?” philosophy was almost doomed to get a bill that would have some fatal flaws.
I don’t know whether the bill was viable or not. Apparently all it takes these days is a friendly judge, and they’re not all that difficult to find, it seems.
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No, I prefer to focus much of my ire at the party who wants to overturn the bill without offering ANYTHING to replace it whatsoever.
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They simply want the health care bill to go away and health care reform to die. Health insurance provider bending you over? Suck it up, America. That’s the Republican way!
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Oh, and has anybody seen those new Tea Party members of Congress turning down the insurance they so desperately do not want the rest of America to have? Just curious.
Maybe they should replace it with whatever it is that all those companies and unions–700+ and rising–that are getting waivers exempting them from the bill are using. I mean if it’s so great why would the UFCW need to ignore it?
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Anyway, there was never any doubt that the bill would face a supreme court challenge but it now appears even money that it will actually be thrown out. If the bill turns out to be unconstitutional ANYTHING the republicans put out that passes that hurdle will be a better bill, even if it only helps 10 people. They will have the lowest of low bars.
I’d rather get rid of the insurance companies, but unfortunately that isn’t going to happen any time soon.
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They will have the lowest of low bars.
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And yet, sadly, they’re just as likely to ignore it altogether, as it’s what they’ve done to this point.
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In the end, the health care bill was a nuclear option. The GOP ignored the little reforms that, had they agreed to them, there probably wouldn’t be this health care bill.
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And now even polls are showing that the public has come around to parts of the bill, as well. So, I don’t think anybody can discount the possibility of a backlash against the GOP if a bunch of people suddenly find their health insurance torn away again. That, and I don’t really care to make predictions about what the USSC will think or how they may decide.
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But, I thank you Bill for at least respecting my opinions on this. And, after all, that’s all this is, contrary to what some(one) might think.
well, it’s an issue that requires respect for valid opinions, if anything is to get done. I think there has been way too much demagoguery on both sides. I don’t think democrats are deliberately trying to destroy the health care industry or republicans are trying to kill people. It’s a complex issue and people who resort to those kind of eyerolling whoppers are just too lazy to deal with the complexities.
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But, as with the global warming stuff, it’s the gloom and doom, good vs evil (and if you disagree with me you’re evil) talking heads who seem to drive the debate.
Of course this is heading to the Supreme Court. However this brings up something I have discussed for years. How can someone like Elena Kagan, who was appointed by Obama, in any way be expected to be impartial in her ruling? She’s making a ruling on a law and mandate passed by the guy who nominated her to a lifetime appointment to the bench.
Normal judges are expected to excuse themselves when there is a conflict of interest and this is clearly a conflict of interest.
The Supreme Court needs two alternates who can step in in these cases and/or a Constitutional Amendment that forbids justices from ruling on laws passed by the President who appointed them.
If a Justice is appointed in the second month of a president’s first term, and he’s re-elected, that justice should sit there and twiddle his or her thumbs for 8 years?
If they are asked to rule on cases involving a Federal law then I would say yes but the majority of the cases they hear have nothing to do with Federal law. The Supreme Court only hears a handful of cases and every one of them should be important. Don’t you think that we are owed every opportunity for a fair verdict?
I know this is thread necromancy (although not nearly as bad as another instance of it this morning), but I thought this was worth pointing out to Joel:
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Health care challenge could trigger recusal debate
http://news.yahoo.com/s/yblog_thelookout/20110216/ts_yblog_thelookout/healthcare-challenge-could-trigger-recusal-debate
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So, it appears the precedent has long been set, and any argument against Kagan has already been applied and readily ignored by other current Justices.
Joel,
No. That would set up a whole bunch of bad precedents and a legal mess. I expect judges like Kagan and Sotomayor to be honest an impartial, just as I would Scalia under Reagan or Alito and Roberts under Bush.
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If they actually worked on the case, that’s different. Otherwise, chances are they will side with the president that picked them…because their views and philosophy align and that’s why the president picked them in the first place.
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Besides, I don’t have to tell you that judges tend to surprise those who picked them – Souter – often also.
“…chances are they will side with the president that picked them…because their views and philosophy align and that’s why the president picked them in the first place.”
Precisely! Hence the phrase: “Elections have consequences.”
But Jerome, Sotomayor herself argued for the Obama Administration about health care mandates before being placed on the bench. She has a clear conflict of interest.
If a judge was given a job while in college by an individual and then later a case involving that individual came into their court they would have to excuse themselves as there is no way to be impartial. Obama appointed them both to their jobs and there is no way they can be impartial.
By that logic, all the Reagan and Bush I Justice appointees should have recused themselves from Bush v. Gore.
Allyn,
“An activist judge is not someone who merely countermands laws approved by the representatives of the people. An activist judge is one who rules on laws according to his own whims regardless of precedent or original intent.
Which is what happened in this case.”
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No. It is not. Please see my prior post. this was judged on the law and by the way Obamacare SPECIFICALLY was sold and set up.
“Setting aside the merits of the individual mandate (which was a Republican idea until Democrats began supporting it), the judge struck down the entire law because of one section that he found unconstitutional.”
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Never mind “who started it”. The mandate is in there. maybe the Republicans stuck it in because the smart ones knew it would help kill it. Who knows? Doesn’t matter. What does is that this is being judged on the legality of the case at hand, that being Obamacare.
“This flies in the face of judicial precedent, which has been to strike the offense parts of the law, leaving the rest intact.”
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Well, it’s without precedent that the government would mandate people to purchase something simply for being alive, for one thing. And # 2, as I’ve stated, typically complex laws have a “severability clause”, saying that if a court strikes down one part or parts, all other parts remain enforceable. but Obamacare’s AUTHORS insisted that without mandatory insurance, the law’s other privisions wouldn’t work – and removed the severability clause before the law was passed.
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So judge Vinson relied on what CONGRESS MEMBERS and THE ADMINISTRATION said in DEFENSE of the mandate to reason that without it, the rest of the law won’t work. using their own arguments in favor of it, he compared the 2,600 page law to a precision watch whose many parts operate in tandem. If one part can’t work, nobody can.
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On this house of cards was the argument for passage of ObamaCare made – and it is on that house of cards that it will fall.
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That’s why.
Never mind “who started it”. The mandate is in there. maybe the Republicans stuck it in because the smart ones knew it would help kill it. Who knows? Doesn’t matter. What does is that this is being judged on the legality of the case at hand, that being Obamacare.
Actually, Jerome, it does matter to me that the Individual Mandate is a Republican idea.
It matters to me because, at one time, Republicans actually gave a dámņ about their country and the lives and wellbeing of their constituents.
It matters to me because, at one time, Republicans actually had ideas and solutions to the problems facing the country.
It matters to me because, at one time, I wasn’t ashamed to call myself a Republican.
I want to know what happened to the Republicans who championed civil rights. I want to know what happened to the Republicans who championed electoral reform. I want to know what happened to the Republicans who curbed the excesses of business and fought for better working conditions. I want to know what happened to my party, the party of Abraham Lincoln and Theodore Roosevelt and Dwight D. Eisenhower.
I want to know why Republicans think it’s okay to champion policies that will deny Americans access to health care. I want to know why Republicans think it’s okay to favor policies that destroy good paying jobs in this country. I want to know why Republicans think that it’s good business to play Russian roulette with the nation’s finances by threatening a government shutdown and default. I want to know why Republicans think that businesses are more important constituents than the individuals who live in their districts.
So it does matter to me, Jerome, to remember that as recently as fifteen years ago, Republicans had ideas and they were willing to work with the opposition to make the country better. I want the Republican Party to look in the mirror and ask themselves when they because a party of selfishness, cruelty, and inhumanity.
I want the Republican Party to be better.
That’s why the idea of the Individual Mandate and where it came from matters to me.
Allyn,
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Your concerns line up with what we conservatives name the “Rockefeller Wing” of the Republican party, named after Vice-President Nelson Rockefeller. Today this wing is represented by Senators Snow, and Collins as well as General Powell (by his own admission.)Since the New Deal they’ve pretty much run as “Democrat Lite.”
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Your beef is with the conservative wing, but you seem to buy into a couple of common myths in the process.
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“I want to know why Republicans think it’s okay to champion policies that will deny Americans access to health care.”
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Conservatives don’t believe it’s the role of government to provide health care. However, because we don’t think it’s the role of government does not mean we want people to go without. We’ve put out ideas like opening up Health Insurance to out of state providers, and thus introducing real market choices into the mix. Sadly, these solutions aren’t sexy enough to get media attention.
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” I want to know why Republicans think that it’s good business to play Russian roulette with the nation’s finances by threatening a government shutdown and default.”
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Why is this our fault? Why doesn’t the other side get knocked for refusing to cooperate with people put in power by the last election?
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“I want to know why Republicans think that businesses are more important constituents than the individuals who live in their districts.”
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The majority of their constituents don’t feel that way if they keep voting Republicans in.
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“So it does matter to me, Jerome, to remember that as recently as fifteen years ago, Republicans had ideas and they were willing to work with the opposition to make the country better. I want the Republican Party to look in the mirror and ask themselves when they because a party of selfishness, cruelty, and inhumanity.”
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Fifteen years ago puts roughly at the time of First Republican takeover of the house since Eisenhower. There was a government shut-down that they got blamed for. They were characterized as wanting to starve school children, and wishing to cut off social security.
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It’s no different now. If the Democrats wanted to work with Republicans, they wouldn’t have placed Pelosi and Reid as their congressional leadership.
Well, I respect the philosophical position that the government shouldn’t provide health care, period.
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The only thing that irks me is that lots of republican politicians and pundits are leery of coming out and saying so, probably because polls show that a majority of Americans want the government to provide universal health care, and are even willing to pay more taxes for it.
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They mention practical reasons, when they’re really opposed to it philosophicaly.
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Personally, I disagree with you guys. Health care is like the police and the firemen. The free market does a lot of things well, but life and death shouldn’t be in the hands of people worried about profits.
“The free market does a lot of things well, but life and death shouldn’t be in the hands of people worried about profits.”
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But government bureaucrats will be just as worried about staying within budget, and observing the regulations set forth by their own department. I’ve had numerous dealings with both government and corporate bureaucracies, and ninety percent of the time, it’s easier to overcome corporate red tape than it is government. The corporation needs you to choose their business or they don’t get your money.
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The government bureaucrat gets paid whether you like the job they do or not, and his job isn’t affected by elections.
Malcolm, I don’t deny that government bureaucrats can be incompetent, but the thing is, many times mediocre service is better than no service. Also, you’re not forced to choose between private and public health care and stick with the choice. You guys would still be able to buy private health insurance even if you had a public system.
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I live in Brazil, a much poorer country than the US. But we have universal health coverage. My uncle is low middle-class, and he has no private health insurance. And he still had access to surgery that he needed for a chronic disease, even though it took months in a waiting list. In the US, he’d be screwed.
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I’m a bit better off than my uncle, and I have a private health plan. I (and my Dad, who is my dependent) have access to better doctors and better hospitals than my uncle, but we can still resort to the public system if we need something our private plan don’t cover.
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The public system is a safety net for those who are poor, or careless, or have “pre-existing” conditions. It can be a safety net with many holes, but it’s better than no safety net at all.
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Now, I know there is the argument that the US has cutting edge medicine because it’s mostly a competitive, private health industry. Even if that is true (and I’m not sure, is the US so much more advanced than Canada or Japan) I think cutting edge medicine for the few is still too high a price when millions can go without coverage.
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Malcolm: “But government bureaucrats will be just as worried about staying within budget, and observing the regulations set forth by their own department.”
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True, but not really comparable. Theoretically the nonprofit agency is just aiming to stay in its annual budget projections. If by the end of the fiscal year they exceed it by, say, 5%, they will review it and see if they need to expand their budget or clamp down on excess spending. For-profit companies look at what they made during the fiscal year, determine that they made, say, a 3% profit and then decide where they can charge more money and increase their profit margins for the next fiscal year.
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In one model you have an organization trying to not too greatly exceed a budget but may still do so (as so many government agencies do.) With the other you have an organization always attempting to make a profit and increase its shareholder’s (when they have them) bottom line as well.
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Theoretically, you should be paying less for the one with nonprofit intentions.
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Sorry, just noticed that I left a bit out of the one line.
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For-profit companies look at what they made during the fiscal year, determine that they made, say, a 3% profit and then decide where they can charge more money, cut benefits and costs and thus increase their profit margins for the next fiscal year.
“The mandate has nothing to do with people being rejected for pre-existing conditions. Nothing to do with extending the age of coverage for dependents. Nothing to do with lifetime coverage limits.”
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Uh, all those things cost money and are interconnected which is why Obama’s own people said the rest of the law wouldn’t work without the mandate. So the judge is simply following the law. you don’t get to argue thsat something is essential for the rest of a bill to pass and then when it is struck down, keep only those parts you like.
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They should have set it up better. they didn’t.
” Instead, the judge simply decided to throw it all out because he could.”
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No, because Obama’s own people argued the law was unworkable without the mandate. If it’s unworkable without the mandate and the mandate is unconstitutional and they didn’t insert a severability clause to protect the parts of the bill they do like, they the entire bill ins unworkable and unconstitutional and must be thrown out
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“This ruling meets the very definition of judicial activism that so many on the Right rail against. Which means there’s complete hypocrisy involved, as usual.”
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No. It doesn’t and it isn’t. Your reading comprehension skills and understanding of the law are simply lacking. As usual.
Your reading comprehension skills and understanding of the law are simply lacking. As usual.
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And you’re a complete asshat who continues to respond to my posts instead of ignoring them. As usual.
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Oh, and here’s another hint: see that little word at the bottom of my post? The one that says ‘Reply’? Try clicking it some time; you’ll be amazed.
News Alert – Dog Bites Man.
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Yes, Republicans are hypocritical. So are Democrats and pretty much every elected official.
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A similar question is if the left, who are so fond of judges as bastions of freedom, rally to support this judge? Of course not. I wouldn’t expect them to.
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Course, I’m not saying anything anyone doesn’t know (who doesn’t have blinders on, of course).
“But, I thank you Bill for at least respecting my opinions on this. And, after all, that’s all this is, contrary to what some(one) might think.”
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No. This has nothing to do with opinions – or feelings or emotions. It has to do with you stating “the judge threw out the case because he felt like it” and my simply pointing out that no, the ruling had a basis in law and the way the bill was constructed, little elements you and others who simply want to go on your usual rants against the GOP, Fox News, “hypocrisy” continue to ignore.
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The judge could not simply throw out the one part and keep the others because the bill was not constructed that way and Obama’s people even said without the individual mandate it was UNWORKABLE. Why is that so hard to understand? But instead of arguing the merits of the law or the ruling, people want to go on their usual rants/talking points.
The part I’m still trying to figure out is why this health “plan”, first proposed by the Republicans in 1994 at the urging of Newt Gingrich in order to head off what they feared would be a single-payer system under Clinton, keeps being referred to as “ObamaCare”. Wouldn’t “GingrichCare” be a more accurate label for it? (Of course, the Democrats in Congress can’t admit to it, because that would be tantamount to admitting that Republicans might have a good idea every once in a while, and Republicans can’t admit it, because then they’d look like hypocrites and/or idiots for fighting it…)
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Incidentally, if we’re going to go by polls, according to the information I’ve been able to find, most of the people who dislike this plan dislike it because it doesn’t go far enough – it appears a number of our fellow citizens would really prefer to see a Canadian-style single-payer system.
That’s what makes me the saddest about politics…
That’d be me, Jonathan; I wish the idea that “this is really a feint to enact single-payer” wasn’t so balls-out absurd as to be a non-starter.
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While I think this plan has a lot of good points to it, its Rube-Goldbergian complexity was just asking for trouble, and I can’t say I’m remotely surprised that something like this happened.
“Precisely! Hence the phrase: “Elections have consequences.”
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Yes, they do!
Unless, apparently, you’re the GOP in 2009, in which case you ignore the results of the election and attempt to make sure precisely zero gets done. But hey, dem’s the breaks, right?
“Unless, apparently, you’re the GOP in 2009, in which case you ignore the results of the election and attempt to make sure precisely zero gets done. But hey, dem’s the breaks, right?”
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Uh, yeah, Tim, dem’s the breaks. That Obama was able to finally replace two liberal members of the Supreme Court – which ensures that the balance on most issues will remain close rather than 7-2 for a decade or so on most of the “big issues” alone is proof of that.
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Also, from passing a health care bill to DADT, I would say it is ludicrous to say Obama accomplished nothing.
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But if you have won a pretty sizable victory as president and then have overwhelming majorities in both houses and you STILL have to come up with a clusterf–k of a bill that seems like it was made up as it went along, and can’t get the support of the moderate, independent citizens – you know, those pesky dolts who insist on having a say in their government – then maybe there was a failure of leadership.
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A little less “We won” arrogance and more bipartisanship from your side would have ensured overwhelming passage of the health care bill and many other things.
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But just like Bush with Social Security in 2005, political capital was wasted on lack of courage and conviction by members and leadership at the top.
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Elections only have consequences if one is wise about reading the mood of the electorate and still show a strong enough political will to CONVINCE people that what you’re doing, though controversial and possibly painful, is right.
Uh, yeah, Tim, dem’s the breaks. That Obama was able to finally replace two liberal members of the Supreme Court – which ensures that the balance on most issues will remain close rather than 7-2 for a decade or so on most of the “big issues” alone is proof of that.
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I have absolutely no idea how that relates to my point.
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Also, from passing a health care bill to DADT, I would say it is ludicrous to say Obama accomplished nothing.
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Nor did I say he did. I said, as you yourself quoted, that the GOP was attempting to make sure precisely zero got done. They succeeded more often than they failed, but that doesn’t mean they had a perfect game.
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How’s that reading comprehension course coming along?
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But if you have won a pretty sizable victory as president and then have overwhelming majorities in both houses and you STILL have to come up with a clusterf–k of a bill that seems like it was made up as it went along, and can’t get the support of the moderate, independent citizens – you know, those pesky dolts who insist on having a say in their government – then maybe there was a failure of leadership.
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That, believe it or not, I almost completely agree with. I think Obama could have come up with a far better bill than what actually emerged, as I think I said elsewhere on the thread. I wouldn’t put all of the blame at his head, but more of it belongs there than I’d like.
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A little less “We won” arrogance and more bipartisanship from your side would have ensured overwhelming passage of the health care bill and many other things.
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Aaaaaand we’re back to near-total disagreement. So far as I can tell, Obama started with his compromise position and then bargained even further to the right. That’s not a lack of bipartisanship; it’s a lack of basic bargaining technique.
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He’s done things like that a lot — started with a relatively bipartisan position and then been shocked to discover that the GOP just gets emboldened by it. When you’ve got people like McConnell explicitly saying that their top priority is to ensure Obama’s failure, that’s the point at which you say, “fine, have it your way” and play hardball. Obama has so far not done that, and I’m saddened by it. But to claim that it’s a lack of bipartisanship is to move the goalposts so far down the field that they’re in the hockey rink down the block, followed by attacking the goalie.
As one of the token “conservatives,” I tend to define “activist judge” as one who discovers a right within the Constitution that had heretofore not been observed. Abortion, for example — regardless of one’s opinion of the issue (I’m squishily pro-choice), the reasoning in Roe v. Wade is downright fantastic, talking about “penumbras” and whatnot.
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Or gay marriage — I’m more solidly in favor of that one, but I believe it should be dealt with legislatively, at the state level. Like we did here in New Hampshire. It raises some problems when it comes to the “full faith and credit” clause, but we should be able to work that out.
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Here, there was no new right being recognized, no form of activism — just a judge saying “that law you passed? It doesn’t comply with the Constitution.” And as noted, among the many, many flaws in the bill, there was no severability clause — something that’s pretty much boilerplate on most bills, but was omitted here. And the whole law would fail without the individual mandate — there would be no reason for someone to get insurance until they needed it, and that kinda wrecks the whole “insurance” aspect of the deal.
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It’s an essential part of the whole program (unlike the 1099 provision, the prescription requirement for using a medical savings account, the medical device tax, and a host of other flaws).
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But back to the topic at hand… a judge who finds a law unconstitutional, and strikes it down? Hardly “activist.” Hëll, I’d say he’s doing the job as purely as possible.
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J.
That’s not the topic at hand, actually. The topic is that it’s further proof that this whole “activist judges” business thrown around by the Fox Holes is just another canard for them to hurl when faced with a decision they don’t like. But if it supports their agenda, then they’re mute.
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And you can come up with all the excuses you want as to how, no, these judges are just doing their jobs. Which is, of course, exactly what they’re doing when they’re making the rulings that the Fox Holes decry. If they were making rulings that favored Obamacare, Fox would be up in arms and, very likely, their followers–like well trained Fox puppies–would be serving up their talking points like tennis balls and swatting them over the net without an instant of self-reflection.
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To paraphrase Rick from “Casablanca,” the movie with quotes to fit any occasion: I don’t mind a hypocrite. I object to a cut-rate one.
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PAD
What conservatives would or would not do in a hypothetical situation is an easy argument to make since hypotheticals can’t really be refuted. I think that if it were GW Bush proposing new rules that would allow the president to shut down the Internet during an emergency, said emergency as defined by the president and “shall not be subject to judicial review.” (!!!) there would be some howls of protest from the left on the unconstitutional abuse of power by jackbooted repuglican yadda yadda yadda…but it’s hardly an argument worth making. Besides, does anyone doubt at this point that an awful lot of the righteous anger at government policies pre-Obama was more directed at the government and not the policies? We have a lot of the same old same old going on but the anger and urgency for change has become strangely muted.
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As for this ruling, I think Adam Serwer got it right-“Simply dismissing the “broccoli mandate” as silly or citing legal precedent won’t be enough to win that argument — liberals need to find a concise way to articulate both why the individual mandate is constitutional and why it doesn’t simply open the door to limitless government abuse, and thus far, they haven’t found one.”
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All the sniping at alleged conservative hypocrisy will not advance the survival of the bill one iota, but it may be the best they have. 2012 is shaping up as a referendum on this bill and if 2010 was any indication, it’s not a great position to be backing it. remember that democrats were told that supporting the bill would be a big booster for them come re-election time. that did not happen. How many will be willing to stake their future on things turning around in the next 2 years?
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Not that the GOP is incapable of holding the equivalent of a royal flush and still losing to a pair of Sevens, because they are. I’d still give odds for Obama to win re-election, if only because the GOP 2012 candidates look weak and the best people they have won’t be viable until 2016.
I disagreed with the premise — that the judge striking down ObamaCare was doing so out of any kind of “activism.” And I was careful to state what I have always thought of what defines “activist judges.”
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Stick up for Fox News? Nah. They’ve got far more money that I do; they can afford to hire advocates. Better advocates than me.
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But as someone who is not that fond of “activist judges” — as I defined above — I felt it appropriate to challenge the usage of the term in an area where I thought it didn’t apply.
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J.
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Peter David: “Which is, of course, exactly what they’re doing when they’re making the rulings that the Fox Holes decry. If they were making rulings that favored Obamacare, Fox would be up in arms and, very likely, their followers–like well trained Fox puppies–would be serving up their talking points like tennis balls and swatting them over the net without an instant of self-reflection.
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Bill Mulligan: “What conservatives would or would not do in a hypothetical situation is an easy argument to make since hypotheticals can’t really be refuted.”
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Peter, you’re somewhat wrong and, Bill, it’s not a hypothetical about what they would do. There have been more challenges to “ObamaCare” so far than just two and the rulings in Virginia and Florida have not been the only two rulings. Fox News’s response to the many rulings that didn’t declare ObamaCare illegal, unconstitutional or the work of Satan himself? They just didn’t bother reporting on them. For example: Prior to the U.S. District ruling from the Virginia challenge that Fox News trumpeted as loudly as they could and for weeks on end; a federal judge in Virginia upheld the law. Fox News’s response to the ruling? Mention it (almost in passing) the day of the news and then not discuss it again.
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Also, a federal judge in Michigan dismissed a challenge to ObamaCare back in early October. The Fox News response? Barely a blip. It didn’t fit the story they wanted to tell. One of the few news blips I did see from them about it was to point out that judge on the case was appointed by President Bill Clinton and thus an activist judge.
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Jay Tea: “I disagreed with the premise — that the judge striking down ObamaCare was doing so out of any kind of “activism.” And I was careful to state what I have always thought of what defines “activist judges.””
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Jay, I know this is really, rally hard for you, but try to actually read what Peter wrote about what the point was. Right here, (http://www.peterdavid.net/index.php/2011/01/31/curse-those-activist-judges/comment-page-1/#comment-291890) right above the post you typed he actually explained (again) what he was actually saying and you’re still not quite showing signs of getting the point.
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Reread it. Reread it again. Think about it. Then maybe you’ll be on the same page as the discussion.
Ahhh, I see, Jerry. I should have realized. If Fox howled about the “activist judges” ruling in favor of Obamacare, there would be the concern that watchers of Fox would be saying, “Wait…judges are ruling in favor of it? So…maybe it’s not so horrible a notion, then…?” And they wouldn’t want to risk that.
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Personally, I think they’re giving their viewers way too much credit, but hey, it’s their narrative.
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Ah, I see my mistake. I saw “Activist judges” in the title and in the posting, and presumed that it was essential to the entire premise. So I focused on addressing what I saw as the misuse of that term, instead of joining in on the “Fox News and right wing talking heads” (of which I am a very insignificant member of) “stink.”
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On that topic… nah, not much interest.
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No, Jay, it’s sarcasm about the “activist judges” talking point and not about Fox News itself. It’s about the fact that the label “activist judges” is pretty much a meaningless bumper sticker sound-byte that really only means “I don’t like that ruling” and nothing more 99.9% of the time.
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Ninth Circuit Court of Appeals makes a ruling that conservatives don’t like? Weeks of crying about them being the most liberal set of “activist judges” in the country and maybe someone should even look into removing them from the bench. The exact same Ninth Circuit Court of Appeals makes a ruling a month later that conservatives like? Hey, these guys know what they’re talking about (and are interestingly referred to as “the court” or some such generic far more often than they are called by the full Ninth Circuit Court of Appeals title when such decisions happen.) A lone judge rules to overturn a new law or prop that conservatives like? The most vile form of “activist judge” scum on the earth! And this “activist judge” scum is undermining an election result and the will of the American people and leading us to fascism like some third world tin pot dictator’s country! A lone judge rules against a new law or prop that conservatives like? This guy is serving his country, serving the Constitution, serving the people and maybe serving God himself.
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Now, there are certainly people on the left who complain about rulings from the very same court that they themselves praised prior to that ruling. Hypocrisy knows no political affiliation. However, there is nothing on the left that equals the scale and mindless stupidity of the “activist judges” criers on the right.
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Uhm… Chopped a bit off there…
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o, Jay, it’s sarcasm about the “activist judges” talking point and not about Fox News itself or about how conservative talking heads stink.
Even though I vote Republican 90% of the time, I agree with you on activist judging and the fact that republicans complain about it too much then use it for their own purposes. To just blame Fox News is getting old, however, your opinion is respected. Finally though, the bill may have been put into action by the representatives of the people but it was put into effect against the Will of the majority of the people. Our representatives were not listening to our voices.
“Finally though, the bill may have been put into action by the representatives of the people but it was put into effect against the Will of the majority of the people.”
Proof? Have you polled the entire population of the country?
“Our representatives were not listening to our voices.”
No šhìŧ, where have you been the last 100 years or so…
Our representatives were not listening to our voices.
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Do we really need to give the usual examples of how the “will of the majority” can still be wrong?
Do I really have to post the statistics regarding the majority of the people’s view about interracial marriage back when the courts were busy overturning it?
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Sure, “the will of the majority” can be wrong, but judicial fiat can be just as wrong. Dred Scott v. Sanford is a prime example of this.
You realize, of course, that the Dred Scott decision was in accordance with both the laws as passed by legislators, and the vaguely-defined “will of the people”…
Humm… the will of the people, let’s see this, quoted from wikipedia:
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“Between 2003 to 2009, 17 opinion polls showed a simple majority of the public supports a single-payer system in the United States.”
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But I can’t blame the Republicans for the fiasco. I blame Obama. There is overwhelming popular support for a much more “socialist” health care system in the U.S. but Obama still somehow failed to capitalize on that, and produced some half-assed, mutant reform to appease the Republicans.
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Appeasement invites attack, as we all know, except for the “intelligent” Obama and the Dems, it seems. Dude, if you’re going to be called a socialist no matter what you do, then go all the way.
I can’t blame the Republicans for the fiasco. I blame Obama. There is overwhelming popular support for a much more “socialist” health care system in the U.S. but Obama still somehow failed to capitalize on that, and produced some half-assed, mutant reform to appease the Republicans.
I look forward to the books that are written a decade from now about the inner workings of the Obama administration during the push to enact any health care reform play last year.
I also blame Obama for the mess that was made of debating and enacting it. There were very simple solutions — “Medicare for All” would have achieved a Canadian-style single payer system easily, or Wyden-Bennett, which would have been the PPA on steroids (and also had the benefit of being a bipartisan plan).
I see two problems with what happened with health care reform.
The first, Obama wasn’t truly sold on health care reform. It was a plank of his platform, but it has long been a plank of the Democratic platform. Health care reform wasn’t a priority for Obama, and it took him by surprise that people glommed to that.
The second, Obama wanted the plan to come out of Congress. He didn’t want to repeat the HillaryCare fiasco, where the Clinton administration developed a very good policy in private, then presented it to Congress, which cut the legislative branch out of the process and upset stakeholders immensely. By letting Congress hash out the issues, a compromise policy would grow organically, and it would likely be bipartisan and non-controversial. Obama was probably overly naive in believing that the Republicans were willing to be honest brokers.
Bost of these contributed to the lack of leadership Obama showed on the health care reform issue. If it happened, even if it were a plan that simply nibbled around the edges, he was cool with that, but if it didn’t happen, he’d be okay with that. He gave a few speeches, but no arm twisting of Congressional Democrats unless they wanted something further to the left, like a public option or a Medicare buy-in.
To quote Spock, “Only Nixon can go to China.” If the PPA falls in the courts or if the Republicans manage to sabotage it legislatively in the next three or four years, it’s going to take a Republican to resurrect universal health care. It won’t be a Democrat (because if PPA falls, Democratic leadership on the issue will be tarnished for a generation), and it won’t be individual mandate (because the right is doing a very good job right now of discrediting their own idea). The resulting plan will probably be single payer, and it will probably be framed in libertarian terms (“If you want to live a free life, you have to be alive enough so you can live it to the fullest” or some similar slogan). Ironically, I think the business community in general would be more supportive of single payer than the individual/employer mandate hybrid system; single payer would take a lot of expenses off their books and would make manufacturing competitive with overseas firms because health care costs would no longer be passed down into the price of the product.
I’ve talked with my company president about this before. Yes, businesses would love to get out of having to deal with insurance. Not only because of the cost to businesses, and especially small businesses like the one I work for, but because of the extra costs above and beyond that.
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Basically, my company spends a month every year reviewing our insurance plan and the options that are available. Whether other companies have better options, and so on. It’s insanely time consuming. So it’s not that the company wants us to get screwed, but they’re shouldering a greater cost than the portion of insurance that they pay for us each month.
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I have to think though that insurance companies would salivate at the chance to deal directly with individuals and families than through employers like mine. After all, many people can’t even make the effort to file their taxes. So how many would make informed decisions about their insurance options if they had to go through all the information themselves?
Do we really want to set the precedent of having the government make us buy something “for our own good”?
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“In a classic example of “something that would’ve been more useful yesterday,” Senate Democrats today held a hearing in the Judiciary Committee on the constitutionality of the individual mandate. One of the guests was Charles Fried, a prominent Harvard Law professor. When Sen. Ðìçk Durbin (D-IL) asked a question of Fried today about the so-called “broccoli mandate” hypothetical — which gets to the question of whether the government can regulate all forms of inactivity, and if so, what if anything is off-limits? — Fried shared an answer that was refreshingly blunt, as relayed by Avik Roy: (emphasis mine)
Sen. Durbin: The point raised by Senator Lee – the “buy your vegetables, eat your vegetables” point? I’d like you ask to comment on that because that is the one I’m hearing most often. By people who are saying “Well, if the government can require me to buy health insurance, can it require me to have a membership in a gym, or eat vegetables?” We’ve heard from Professor Dellinger on that point, would you like to comment?
Prof. Fried: Yes. We hear that quite a lot. It was put by Judge Vinson, and I think it was put by Professor Barnett in terms of eating your vegetables, and for reasons I set out in my testimony, that would be a violation of the 5th and the 14th Amendment, to force you to eat something. But to force you to pay for something? I don’t see why not. It may not be a good idea, but I don’t see why it’s unconstitutional.
Well, then that’s good to know. Obesity crisis, your days are numbered!
For a bit of context, Fried was generally considered a conservative legal thinker in the past, but in 2008 he openly supported Barack Obama over John McCain, citing Sarah Palin as the primary reason for his choice. So that gives you some perspective on where he’s coming from.”