4 of 5
4
Conservative Supreme Court Irony
Posted: 04 April 2012 06:57 PM   [ Ignore ]   [ # 46 ]
Sr. Member
Avatar
RankRankRankRankRankRankRankRankRankRank
Total Posts:  3349
Joined  2007-11-21
TimB - 04 April 2012 02:14 PM

...And OTOH there are already laws in place that have been passed against drugs of abuse that can influence the cost of healthcare to society.  Where is the “limiting principle” on these laws?

Brian: “If any of those laws are justified based on the cost of health care (and the Commerce Clause) then please identify them (along with the justification).  Otherwise I’ll take the challenge as a red herring.”

The federal enforcement of the drug laws are justified by the Fed power over interstate commerce.  Hence the feds bust medical marijuana distributors in California, despite state law allowing it.

Were you conscious of taking the bunny hop over the health care justification to reach the commerce clause?

Profile
 
 
Posted: 04 April 2012 07:10 PM   [ Ignore ]   [ # 47 ]
Sr. Member
Avatar
RankRankRankRankRankRankRankRankRankRank
Total Posts:  3349
Joined  2007-11-21
TimB - 04 April 2012 02:29 PM

Brian: “...It (the argument) is that the Constitutional justification for the health care law serves as a broad justification for just about anything the government wants…”

Only if the Supreme Court decides to interpret thusly in any given case that comes before it.

Hence the importance of a guiding principle that the Court can follow.  The defense provided nothing.  It’s not the plaintiff’s job to do the work of the defense.  That’s the argument regardless of your objections to it.  It’s not a spurious argument like the one you provided in its place.

Where I believe that you are deluding yourself is in believing that the Justices are motivated by philosophical concepts such as the Constitution limiting the power of the government, moreso than by their personal partisan proclivities.

Once we throw out the arguments and the reasoning reflected in the justices’ questions I suppose we have little left on which to go other than ideology.  grin

Otherwise, how is it that of the 9 justices, each of whom we can assume are extraordinarily intelligent (some more than others), can so consistently be adamantly split in partisan decisions with the same 4 on one side, and the same 5 on the other?

They have different judicial philosophies.  That’s how.  Those in the broadly originalist camp try to take the language of the law and (to a lesser degree) the intent of the law into account when applying the law to individual cases.  Liberal jurisprudence is harder to pin down.  I’m sure there must be a concise description of it someplace (I’ve yet to run across it; maybe it’s in Breyer’s relatively recent book), but generally speaking a liberal justices can drift further from the moorings of the language of the law in ruling on the law.  They’re more likely to take international law into account, and stuff like that.  It’s very easy to accommodate the demands of ideology consistently with the latter approach, assuming I’m representing it fairly.  It’s not quite as easy in the former case.  Scalia, for example, had to account for his support of federal commerce clause powers clamping down on California cannabis.

Profile
 
 
Posted: 04 April 2012 10:08 PM   [ Ignore ]   [ # 48 ]
Sr. Member
Avatar
RankRankRankRankRankRankRankRankRankRank
Total Posts:  6012
Joined  2009-02-26

BTW, welcome back Bryan, I have missed your extraordinary debating skills….. cheese

While I (halfheartedly) agree with your analysis, let me ask you what your personal feelings are. Do you believe that forcing everyone to participate in some form of healthcare insurance which will be needed by everyone is comparable to forcing people to eat broccoli, which people can do without? IOW there is no substitute for healtcare which will be costly, but there are plenty substitutes (healthwise) for broccoli, some of them cheaper.

[ Edited: 04 April 2012 10:12 PM by Write4U ]
 Signature 

Art is the creation of that which evokes an emotional response, leading to thoughts of the noblest kind.
W4U

Profile
 
 
Posted: 04 April 2012 11:25 PM   [ Ignore ]   [ # 49 ]
Sr. Member
Avatar
RankRankRankRankRankRankRankRankRankRank
Total Posts:  3349
Joined  2007-11-21
Write4U - 04 April 2012 10:08 PM

BTW, welcome back Bryan, I have missed your extraordinary debating skills….. cheese

While I (halfheartedly) agree with your analysis, let me ask you what your personal feelings are. Do you believe that forcing everyone to participate in some form of healthcare insurance which will be needed by everyone is comparable to forcing people to eat broccoli, which people can do without?

They are comparable merely as potential exercises of federal power under an uncircumscribed commerce clause.  Everything is “unique” unto itself, so the argument that health care is “unique” isn’t an argument.  Broccoli is also unique because it isn’t cauliflower, spinach, veal cutlets or anything else but broccoli.

It’s notable that Obama himself made a similar argument while opposing Hillary Clinton’s health care plan during the Democratic primary.

IOW there is no substitute for healtcare which will be costly, but there are plenty substitutes (healthwise) for broccoli, some of them cheaper.

The issue with broccoli isn’t necessarily health.  It’s the commerce clause power.  Maybe the government wants to make sure broccoli is affordable, or protect jobs by making sure broccoli farmers don’t go out of business.  People not eating broccoli has an effect on the broccoli market, so the government (with the aforementioned broad power) can enforce a broccoli mandate.  It doesn’t need to be about health.  The commerce clause is distinct from the health issue.  And it goes without saying that the argument that healthcare is “unique” doesn’t automatically qualify it for coverage under the commerce clause.  If the problem really in insoluble without a federal government solution (which is highly doubtful, IMO) then perhaps the solution is an amendment.  That’s how the income tax was eventually justified, after all.  Amending the Constitution shouldn’t *always* be up to the Supreme Court.  wink

Profile
 
 
Posted: 05 April 2012 12:29 AM   [ Ignore ]   [ # 50 ]
Sr. Member
Avatar
RankRankRankRankRankRankRankRankRankRank
Total Posts:  6012
Joined  2009-02-26
Bryan - 04 April 2012 11:25 PM
Write4U - 04 April 2012 10:08 PM

BTW, welcome back Bryan, I have missed your extraordinary debating skills….. cheese

While I (halfheartedly) agree with your analysis, let me ask you what your personal feelings are. Do you believe that forcing everyone to participate in some form of healthcare insurance which will be needed by everyone is comparable to forcing people to eat broccoli, which people can do without?

They are comparable merely as potential exercises of federal power under an uncircumscribed commerce clause.  Everything is “unique” unto itself, so the argument that health care is “unique” isn’t an argument.  Broccoli is also unique because it isn’t cauliflower, spinach, veal cutlets or anything else but broccoli.

Broccoli is only unique among vegetables. Health is only unique unto itself. There are no flavors of health which one can choose from as a desired commodity. Health is not a commodity of choice, it is a condition common to all and some illnesses (including old age) will be thrust upon all of us, regardless of our wishes.

It’s notable that Obama himself made a similar argument while opposing Hillary Clinton’s health care plan during the Democratic primary.

IOW there is no substitute for healtcare which will be costly, but there are plenty substitutes (healthwise) for broccoli, some of them cheaper.

The issue with broccoli isn’t necessarily health.  It’s the commerce clause power.  Maybe the government wants to make sure broccoli is affordable, or protect jobs by making sure broccoli farmers don’t go out of business.  People not eating broccoli has an effect on the broccoli market, so the government (with the aforementioned broad power) can enforce a broccoli mandate.  It doesn’t need to be about health.  The commerce clause is distinct from the health issue.  And it goes without saying that the argument that healthcare is “unique” doesn’t automatically qualify it for coverage under the commerce clause.  If the problem really in insoluble without a federal government solution (which is highly doubtful, IMO) then perhaps the solution is an amendment.  That’s how the income tax was eventually justified, after all.  Amending the Constitution shouldn’t *always* be up to the Supreme Court.  wink

Who brought up the “commerce clause” as the compelling a priori constitutional consideration? If we were to judge all government programs by that standard, we’d only have an army and interstate commerce regulations. If the individual States are so independent what are their representatives doing in congress? Talking about interstate commerce such as a bridge to nowhere?
I always believed that the Federal government had a constitutional duty to protect and advance the welfare of all the (individual States’) citizens. Is that not why a sovereign State joins a union of states. When a state needs assistance with their own Medicaid programs, they go running to the feds, no? Should federal government send them packing as not being covered by the “commerce law”?
This has nothing to do with the sale or price of broccoli. It is in the “general welfare of the citizenry”.

[ Edited: 10 April 2012 02:30 AM by Write4U ]
 Signature 

Art is the creation of that which evokes an emotional response, leading to thoughts of the noblest kind.
W4U

Profile
 
 
Posted: 09 April 2012 01:13 PM   [ Ignore ]   [ # 51 ]
Sr. Member
RankRankRankRankRankRankRankRankRankRank
Total Posts:  3052
Joined  2011-11-04

As a lay person in the area of the Supreme Court and the field of law and jurisprudence, I suppose arguments such as Justices being in “the broadly originalist camp” or not may provide some understanding as to how each group of justices so consistently come down on the partisan side of any given case.  As a student of behavior, however, it looks more to me that their interpretations and decisions are controlled more by partisan contingencies, rather than any strict rule governed behavior. 

The recent conservative District Court Justice’s silly admonishment and homework assignment to the Justice Dept, to explain the President’s comment, being a case in point.

 Signature 

As a fabrication of our own consciousness, our assignations of meaning are no less “real”, but since humans and the fabrications of our consciousness are routinely fraught with error, it makes sense, to me, to, sometimes, question such fabrications.

Profile
 
 
Posted: 09 April 2012 04:10 PM   [ Ignore ]   [ # 52 ]
Moderator
RankRankRankRankRankRankRankRankRankRank
Total Posts:  5551
Joined  2010-06-16

Everyone understands logic and uses it almost constantly to make decisions.  However, there are situations which cause people to use reverse logic.  Rather than premise 1 then premise 2 then conclusion, or the more complex cases where there are a whole set of premises, it goes like this, “I believe X.  I have premises A to W.  How can I start with my conclusion of X and work backwards to arrive at a ‘logical’ justification for my belief?”

Some time ago, for the fun of it, I read a fair number of controversial Supreme Court decisions.  It was fascinating to see how hard they worked to “interpret” sentences and phrases in the Constitution to arrive at the decision they wanted.  Scalia is a master at doing this.  Clarence Thomas doesn’t fit into this spectrum since he’s just Scalia’s “Uncle Tom” who doesn’t bother thinking anything through but just says “Yaas suh, Justice Scalia” and votes the same way.

Judges whose decisions agree with the opinions of a person are considered originalist and those whose don’t are called activists. 

Occam

 Signature 

Succinctness, clarity’s core.

Profile
 
 
Posted: 09 April 2012 05:24 PM   [ Ignore ]   [ # 53 ]
Sr. Member
RankRankRankRankRankRankRankRankRankRank
Total Posts:  3052
Joined  2011-11-04

Occam:...Some time ago, for the fun of it, I read a fair number of controversial Supreme Court decisions.  It was fascinating to see how hard they worked to “interpret” sentences and phrases in the Constitution to arrive at the decision they wanted… 

Not having your superior IQ, it is not “fun” for me to read Supreme Court decisions, but to the extent that I have “scanned” some, I have a similar impression that they work hard to come up with the interpretation that fits what they want.

 Signature 

As a fabrication of our own consciousness, our assignations of meaning are no less “real”, but since humans and the fabrications of our consciousness are routinely fraught with error, it makes sense, to me, to, sometimes, question such fabrications.

Profile
 
 
Posted: 10 April 2012 01:05 AM   [ Ignore ]   [ # 54 ]
Sr. Member
Avatar
RankRankRankRankRankRankRankRankRankRank
Total Posts:  6012
Joined  2009-02-26

I just heard that by the time these elections will be over, something like 4 Billion dollars will have been spent on “free speech” as a result of the SCOTUS ruling.

If my math is correct, this sum would support employment for 10,000 people @ $40,000.00p/yr, for 10 years…. go figure!

 Signature 

Art is the creation of that which evokes an emotional response, leading to thoughts of the noblest kind.
W4U

Profile
 
 
Posted: 10 April 2012 02:23 AM   [ Ignore ]   [ # 55 ]
Sr. Member
Avatar
RankRankRankRankRankRankRankRankRankRank
Total Posts:  6012
Joined  2009-02-26

Incidentally, while we are talking about “interstate commerce” (quid pro quo).  Here is a humorous example of political quid pro quo by science.

http://www.msnbc.msn.com/id/26315908/ns/msnbc_tv-rachel_maddow_show/#46999941

 Signature 

Art is the creation of that which evokes an emotional response, leading to thoughts of the noblest kind.
W4U

Profile
 
 
Posted: 10 April 2012 06:09 AM   [ Ignore ]   [ # 56 ]
Sr. Member
Avatar
RankRankRankRankRankRankRankRankRankRank
Total Posts:  3121
Joined  2008-04-07

LINK

 Signature 

Turn off Fox News - Bad News For America
(Atheists are myth understood)

Profile
 
 
Posted: 11 April 2012 04:32 AM   [ Ignore ]   [ # 57 ]
Sr. Member
Avatar
RankRankRankRankRankRankRankRankRankRank
Total Posts:  3349
Joined  2007-11-21
Write4U - 05 April 2012 12:29 AM

Broccoli is only unique among vegetables. Health is only unique unto itself. There are no flavors of health which one can choose from as a desired commodity.

Heart health, digestive health, dental health ...

Health is not a commodity of choice, it is a condition common to all and some illnesses (including old age) will be thrust upon all of us, regardless of our wishes.

Health care is a commodity of choice.  A very popular one.  We do not choose ill health, but we do choose treatment for ill health.

Who brought up the “commerce clause” as the compelling a priori constitutional consideration?

It is the Constitutional justification the government attorneys are using to defend the ACA before the Supreme Court.  They started out defending based on the taxing power, iirc.  Whatever it was, it didn’t work out well.

If we were to judge all government programs by that standard, we’d only have an army and interstate commerce regulations.

Uh, yeah, but not relevant.

If the individual States are so independent what are their representatives doing in congress?

The states have no representatives in Congress since the passage of the 17th Amendment.  Before that time, senators represented state governments.  All congressional representation is of the people of a state.  The people and the states are held to possess power according to the 10th Amendment.  And it isn’t really that the states are “independent” (did I even use that term?), it is that the Constitution specifically limits federal government power.  It puts a number of things like defense and foreign relations under the federal government while leaving most governmental power to the state governments.

Talking about interstate commerce such as a bridge to nowhere?

The “bridge to nowhere” was planned for Alaska.  There’s no interstate commerce involved, unless (I suppose) the bridge is imported from another state.

I always believed that the Federal government had a constitutional duty to protect and advance the welfare of all the (individual States’) citizens. Is that not why a sovereign State joins a union of states. When a state needs assistance with their own Medicaid programs, they go running to the feds, no?

Maybe two states were added to the Union after the creation of Medicare.

Should federal government send them packing as not being covered by the “commerce law”?

It’s not the applicable law.  Medicaid programs are administered by the states.  The federal government assists with funding and controls how the states administer the programs by threatening to cut off funding.  For example:
http://www.nationalpartnership.org/site/News2?abbr=daily2_&page=NewsArticle&id=32535

This has nothing to do with the sale or price of broccoli. It is in the “general welfare of the citizenry”.

If the “general welfare” clause allows the government to do anything then why did the Framers add the 10th Amendment?  If “general welfare” has no principled limits then we have the same type of challenge.  The Court could find *anything* constitutional depending on whether it holds the opinion that the law promotes the general welfare.  So there’s another way to make you eat broccoli.  wink

The issue boils down to preserving our system of government.  Recognizing very broad powers in clauses not intended to provide those broad powers repeals the 10th Amendment.

Profile
 
 
Posted: 28 June 2012 10:38 AM   [ Ignore ]   [ # 58 ]
Sr. Member
RankRankRankRankRankRankRankRankRankRank
Total Posts:  3052
Joined  2011-11-04
TimB - 30 March 2012 02:49 PM

The Supreme Court is ideally above political considerations, but it apparently, in fact is not.  The health care bill which they may strike down, and more specifically the mandate that everyone pay premiums, is ironically the most conservative approach to addressing the problem.  That is unless the most severe and conservative option is put in place, i.e., that we simply do not provide even emergency healthcare to the uninsured.  (Justice Scolia, btw, seemed to suggest this as a realistic option.) 

The conservative Justices may strike down the individual mandate, leaving the only realistic option for paying for healthcare, to be to raise taxes to pay for the healthcare of the uninsured.  Being a non-conservative progressive, this is fine by me, except that it is not politically viable as long as the conservatives in Congress can block it, because they have pledged not to raise taxes for such things.

The market is betting that the mandate will be struck down.  I might take the opposing bet, depending on the odds.  The conservative Justices are in a position in which they want to strike down Obamacare, but if they do, they are, in effect, striking down the most realistic conservative option for dealing with the problem of paying for healthcare that is going to be provided anyway.  So a small bet, if given 2:1 odds, and I would take the position that Obamacare stands.  In fact, it could even be a 6-3 decision in support of the healthcare bill, as Justice Roberts could join Kennedy if the decision goes that way, just so he can write the opinion with a conservative slant.

Well, Tim , your bet would have paid off.  It was a gutsy bet, considering back in March, the prevailing opinion was that the healthcare law would be struck down, because the supporting team did not provide a good argument.  You were right about Roberts being the deciding opinion, but wrong about Kennedy being on the side of the healthcare constituionality.  He, a liberal justice, voted against it.  I think this supports the idea that there was ambivalence of the justices about “Obamacare” being actually a conservative solution to healthcare vs. a law pressed thorough by a Democratic president.

 Signature 

As a fabrication of our own consciousness, our assignations of meaning are no less “real”, but since humans and the fabrications of our consciousness are routinely fraught with error, it makes sense, to me, to, sometimes, question such fabrications.

Profile
 
 
Posted: 28 June 2012 10:45 AM   [ Ignore ]   [ # 59 ]
Sr. Member
Avatar
RankRankRankRankRankRankRankRankRankRank
Total Posts:  1191
Joined  2011-08-01
TimB - 28 June 2012 10:38 AM

You were right about Roberts being the deciding opinion, but wrong about Kennedy being on the side of the healthcare constituionality.  He, a liberal justice, voted against it.  I think this supports the idea that there was ambivalence of the justices about “Obamacare” being actually a conservative solution to healthcare vs. a law pressed thorough by a Democratic president.

Kennedy is a liberal??? You must be thinking of the other Kennedys!  LOL

 Signature 

Free in Kentucky
—Humanist
“I am patient with stupidity but not with those who are proud of it.”—Edith Sitwell

Profile
 
 
Posted: 28 June 2012 11:40 AM   [ Ignore ]   [ # 60 ]
Sr. Member
RankRankRankRankRankRankRankRankRankRank
Total Posts:  3052
Joined  2011-11-04
FreeInKy - 28 June 2012 10:45 AM
TimB - 28 June 2012 10:38 AM

You were right about Roberts being the deciding opinion, but wrong about Kennedy being on the side of the healthcare constituionality.  He, a liberal justice, voted against it.  I think this supports the idea that there was ambivalence of the justices about “Obamacare” being actually a conservative solution to healthcare vs. a law pressed thorough by a Democratic president.

Kennedy is a liberal??? You must be thinking of the other Kennedys!  LOL

Right, I misspoke.  I should have said more prone to occassionally taking the “liberal” stance than the other conservative justices. But, these days, Richard Nixon would be considered a liberal.

 Signature 

As a fabrication of our own consciousness, our assignations of meaning are no less “real”, but since humans and the fabrications of our consciousness are routinely fraught with error, it makes sense, to me, to, sometimes, question such fabrications.

Profile
 
 
   
4 of 5
4