Senate The Supreme Court

Discussion in 'Community' started by Ghost, Oct 9, 2011.

  1. Ghost Chosen One

    Member Since:
    Oct 13, 2003
    star 6
    Legal experts and constitutional scholars are saying that this term of the Supreme Court, which just recently began, could be the most influential in decades.


    Already on the docket:

    * Nudity and Profanity on TV as Free Speech (FCC v. Fox Television Stations)

    * Electronic Surveillance and the 4th Amendment (United States v. Jones)

    * Prison Strip Searches without Suspicion (Florence v. Board of Chosen Freeholders of the County of Burlington, New Jersey)


    Likely to be added to the docket:

    * Obama's Healthcare Reform Law

    * Arizona's Immigration Law (Arizona v. United States)

    * Affirmative Action in College (Coalition to Defend Affirmative Action, Integration, and Immigrant Rights and Fight for Equality by Any Means Necessary v. Regents of the University of Michigan; Fisher v. University of Texas at Austin)


    Could be added to the docket:

    * Proposition 8 and Same-Sex Marriage


    This CNN article has more information on these cases. You should read it, the Prison Strip Searches case in particular is outrageous. Others cases not on this list could still be added to the docket too.


    What are the likely outcomes of these cases? How significant could these decisions be?


    There is also the possibility that the older two "liberal" justices, Ginsburg and Breyer, might retire. Ginsburg especially, since she has been battling colon cancer and pancreatic cancer, and is already 78. Scalia and Kennedy are also 75. There is also a movement to investigate Clarence Thomas for ethical violations.


    The Supreme Court could create some big news headlines over the next several months. Depending on how much they take on, they could even outshine the jobs/deficit battles in Congress, President Obama, and the Republican Presidential Primaries. The Roberts court has already shown that it's not afraid to overturn over a century of precedent. We'll probably be talking about its decisions all year, and this term for many years to come.
  2. Vaderize03 Manager Emeritus

    Member Since:
    Oct 25, 1999
    star 5
    Which could play to Obama's advantage, if he uses the specter of an unbridled conservative court to rally the base, and scare independents away from Republicans.

    We'll just have to see. I for one, expect Roberts to punt as much as he can. The man just can't resist.

    Peace,

    V-03
  3. DarthBoba Manager Emeritus

    Member Since:
    Jun 29, 2000
    star 9
    Heard about the prison strip searches without cause of suspicion on NPR the other day. The case is beyond ridiculous; IIRC, the prisoner (can't bring myself to use the word 'criminal' in application to this poor man) was pulled over and arrested for a speeding ticket fine that he had paid, but his paying of it hadn't made it through the system to where he was (Essex County, NJ). The deputy told him he was 'sorry, but had to arrest him anyway.' He spent a few days by himself in Essex County jail, then was transferred to Burlington County, where he was placed in general population with felony criminals. He didn't get a hearing for an extended period of time either IIRC, and upon arrival at Burlington he was strip searched without cause. NPR said he was suing Burlington County; didn't say anything about the SC though.

    The whole thing is just a disgrace.
  4. Ghost Chosen One

    Member Since:
    Oct 13, 2003
    star 6
    I agree, it's one of the most ridiculous abuses of power I've read about. I'm surprised I didn't hear about it earlier, this is one of those stories that should be generating a national outrage.

    Any prediction on how it will go in the Supreme Court?
  5. DarthBoba Manager Emeritus

    Member Since:
    Jun 29, 2000
    star 9
    It seems fairly open and shut to me, but I'm no lawyer. Seems like a phone call to Burlington County would have sufficed; there was never any reason to send him to jail there, let alone strip search the man and place him in general population. Definite gross violations of his rights here, I'd say.
  6. Alpha-Red Force Ghost

    Member Since:
    Apr 25, 2004
    star 5
    He didn't get a hearing for an extended period of time either IIRC, and upon arrival at Burlington he was strip searched without cause.

    How did this thing even get up to the U.S. Supreme Court? This seems pretty straightforward, some local judge probably could've awarded him a claim and it would've been done with.
  7. Jedi Merkurian Episode VII Thread-Reaper

    Manager
    Member Since:
    May 25, 2000
    star 6
  8. DarthBoba Manager Emeritus

    Member Since:
    Jun 29, 2000
    star 9
    I'd say the Court will decide fairly (that is to say, without much of any personal bias) on this one. They've had a similar number of socially hot topics appear before them recently-the DC handgun ban for starters-and stuck to a pretty strict, face-value interpretation of what the Constitution has to say on the topic.

    Not sure exactly how the individual mandate interfaces with the Constitution (or whether it does at all for that matter) but I expect the judges to be fair in the matter.
  9. shinjo_jedi Force Ghost

    Member Since:
    May 21, 2002
    star 5
    I don't see them striking it down. Given the Raich decision, they upheld Congress regulating health care in that regard. The argument is rather flimsy, I think, as well as many legal professors, for the mandate being unconstitutional - the power to "regulate Commerce" is vague and gives discretion to Congress on how to act. On top of that, the Court tends to shy away from such political activism.

    On a side note, I will always ponder conservatives that want this struck down. If they do, isn't that an instance of judicial activism?
  10. Kimball_Kinnison Force Ghost

    Member Since:
    Oct 28, 2001
    star 6
    Only if you define judicial activism as striking down laws, which isn't how conservatives define it. (That definition came from David Strauss, in his book The Living Constitution. He's anything but a conservative when it comes to constitutional interpretation.)

    When conservatives talk about judicial activism, they are referring to a ruling that extends the limits given in the Constitution. For example, Kelo v. New London was seen as activist even though it didn't strike down a law, because it extended the Constitution's limits on taking land for "public use" to instead be for "public purpose".

    It is not activist to strike down laws that exceed Congress' authority, while it is activist to uphold laws that would expand that authority beyond what the Constitution provides for. (Similarly, it is activist to strike down a law that is within the authority granted by the Constitution, but it's not activist to uphold a law that is fully authorized.)

    Some definitions of activism also include overturning precedent, but that runs into the same issues. Plessy was an activist ruling that overturned both precedents and the plain-text meaning of the 14th Amendment. It wasn't activist for the Court to overturn that ruling in Brown, because Brown restored a more correct interpretation of the 14th Amendment.

    Upholding the individual mandate would be activist in that it is completely unprecedented for the federal government to mandate economic activity. Previously, government regulation required a voluntary act that brought you under the aegis of the regulation. The individual mandate insists that you can be regulated involuntarily.

    Kimball Kinnison
  11. shinjo_jedi Force Ghost

    Member Since:
    May 21, 2002
    star 5
    I was more referring the term as an aspect of side stepping Congress and striking down the law for political reasons, but yeah.
  12. Kimball_Kinnison Force Ghost

    Member Since:
    Oct 28, 2001
    star 6
    The real issue that makes the question of the mandate activist is a fundamental one: what are the limits of Congress' powers?

    If Congress can pass a law that "regulates commerce" even for people who specifically choose not to participate in that commerce, then the Commerce Clause loses all meaning and has morphed into a general police power rather than a restriction on Congress' powers. This is a course that was started with the highly activist (by almost any definition of the term) ruling in Wickard v. Filburn back in 1942, and has only barely been limited by US v. Lopez (1995) and US v. Morrison (2000).

    The fact that the Court will devote 5 1/2 hours to oral arguments strongly suggests that there are serious, fundamental questions raised by the individual mandate that could have far-reaching effects. If any case is likely to serve as a vehicle for scaling back the Commerce Clause, it's this one.

    Personally, I hope that it restores some sanity to the Commerce Clause. If everything is commerce, and all commerce "affects" interstate commerce, then the Commerce Clause is no limit on Congress, and has essentially been written out of the Constitution by the Court.

    Kimball Kinnison
  13. shinjo_jedi Force Ghost

    Member Since:
    May 21, 2002
    star 5
    I'm not a legal expert, so I tend to not delve too far into the legal argument of this so I limit it to what I learned in my undergraduate ConLaw classes. I believe that the pro-mandate legal team is using the argument that everyone participates in the commerce of health care, regardless if you have it or not, because going without insurance is an economic externality. Not sure if that is sufficient or plausible, but an interesting argument.

    Kimball, what is your position on Gonzales v. Raich in terms of the Commerce Clause and Congress' ability to regulate marijuana as a medical treatment.
  14. Kimball_Kinnison Force Ghost

    Member Since:
    Oct 28, 2001
    star 6
    Honestly, I think it was an abominable decision, and a clear case of activism on Scalia's part*. He performed all manner of pretzel contortions to come up with that majority opinion.

    While I think it is unwise to use drugs like marijuana (let alone the harder ones like cocaine, heroin, etc), the federal government's ability to regulate it should be limited to when it is in the actual act of crossing state lines or international borders. The federal government doesn't have a general police power, and it shouldn't be trying to use the Commerce Clause to make up for that.

    The states, on the other hand, do have a general police power (see the Tenth Amendment, as such power is not granted to the federal government nor denied to the states). If a state wishes to criminalize marijuana within its borders, then that is within its authority. If they choose not to criminalize it, then the federal government shouldn't be able to change that.

    Kimball Kinnison

    * Yes, I am pointing out a clear case of activism on the part of a conservative member of the Court. Both sides do it, and both sides are wrong to do it.
  15. Vaderize03 Manager Emeritus

    Member Since:
    Oct 25, 1999
    star 5
    If Congress can pass a law that "regulates commerce" even for people who specifically choose not to participate in that commerce, then the Commerce Clause loses all meaning and has morphed into a general police power rather than a restriction on Congress' powers.

    This is a very well-stated key point, and in my opinion, it has never been in dispute.

    What is in dispute is whether or not one can truly never "choose" to participate in the health care system. The decision not to purchase insurance has far-reaching effects that rebound nationally; it is much more than just a decision of individual rights.

    Why? Because our health care system, and the ethics of our medical professionals, demand that we treat all who are sick, regardless of their ability to pay. Therefore, refusing to purchase insurance can be defined as making a conscious choice to be a freeloader.

    One can always stay away from medical care for their entire lives, but unless they die in their sleep at home, they are destined to get involved in the health care system at some point. If they are uninsured, and they require care, we all have to pay. That is the main reason for spiraling costs in the US, as "cost-shifting" leads to uncontrollable inflation across the sector. A hospital upcharges to cover the loss from the uninsured and Medicade; physicians who are lowballed by insurance up their basic rates when negotiating with said insurers in the hope of bending their reimbursement curve to a level that will at least give them a little margin after expenses, and the malpractice environment's genesis of defensive medicine have all come together to drive the price of health care into the stratosphere.

    The Court can stike the mandate down, but then what? If health care is not a right, then it is certainly not an entitlement. Many physicians feel that Medicare is a price-fixing scheme-and they are correct. Yet, we are forbidden from passing on the costs of uncompensated care to a medicare patient, and most older americans who are ill are on Medicare. Meanwhile, the cost of running a private practice has skyrocketed, up 20% the last decade alone, while reimbursements have not kept pace with inflation. Malpractice insurance has not gone down either.

    So what's the solution? A truly conservative court would toss Obamacare and Medicare, deeming the latter a price-fixing scheme, and a government-sponsored anti-trust violation. If the market could regulate prices, the inflationary pressures on reimbursements driven by Medicare and the insurance industry as a whole (which pegs it's fees to Medicare pay schedules), would be forced to negotiate with physicians for a reasonable rate for services rendered. I think, under such a system, prices would fall over the long term. Americans should be able to afford basic health without even needing insurance, freeing up the insurance market for catastrophic costs such as hospitalizations or expensive injectable drugs. This would be similar to car insurance: one does not carry it simply to drive a car, but for protection in case of accident.

    If we are going to perpetuate the current system, however, a mandate is key to diluting the pool of patients too expensive to insure by adding more of those who are cheap to insure. Simply tossing the mandate without addressing the fundamental problems underlying our health care system will only make the problem worse.

    Until we are willing to have that discussion, it cannot be limited to a simple matter of "they have no right to tell me what to do". If that's how one truly feels, then medical personnel should have the right to refuse treatment to anyone who can't pay. They cannot, both ethically and legally, and nor should they. If our system were no longer insurance-dominated, there would be no need for the mandate, but as long as it is, and we continue to play this game, then forcing everyone to purchase insurance is really the only legitimate first step to ending the cost-shifting spiral.

    I think America may collapse before we fig
  16. Valairy Scot Force Ghost

    Member Since:
    Sep 16, 2005
    star 5
    V-03 you nailed it.

    I work in the property/casualty, not health insurance field and the whole idea of insurance is creating a large pool of folks who will by and large submit no claims, all to pay the claims of a few - those few being unknown until the time of loss. (Of course, nowadays, a lot submit a lot of claims and many think premiums are like a checking account sitting untouched to be paid back to them whenever a loss occurs. Don't get me started.)

    Health insurance should be no different,but health care is more than just insurance.

    It's morally right to treat the uninsured, despite the impact on pricing. And defensive medicine practices contribute to prices, but can't be helped in our sue-happy society. We DO, ALL, participate in one way or another, in health care.

    It's like mandatory helmet laws for cyclists - it's bitterly opposed by many (my freedom to choose) to which I counter, "Since I have to pay a share of your medical costs, I have the right to ask you to minimize potential damage."

  17. Kimball_Kinnison Force Ghost

    Member Since:
    Oct 28, 2001
    star 6
    The problem with that is Medicare is justified not under the Commerce Clause, but under the Taxing Clause. It's not a matter of telling providers what they can charge, but instead of saying what the government will pay (and then prohibiting them from charging the patients more). Remember, there is nothing unconstitutional[/i] about monopolies. They are merely illegal by statute. As Medicare was implemented by another statute, that would take precedence over anti-trust laws.

    Obamacare, on the other hand, is explicitly not justified under the Taxing Clause. (The courts have, so far, almost unanimously rejected the argument that it is.) Had Obamacare been written as a tax on everyone, and then a tax credit for those who already had insurance, none of these legal challenges would have gotten off the ground, let alone to the Supreme Court.

    You might argue that the mandate is "necessary" for Obamacare to work, but that doesn't make it constitutional. The way Congress crafted it, it pushes the limits of the already-stretched Commerce Clause in a way that essentially destroys any meaningful limit on Congress' powers.

    Under McCulloch v. Maryland (1819), Congress is allowed to perform acts beyond what is listed in the Constitution if those acts are "necessary and proper" to execute an enumerated power. However, as David Kopel discusses, the term "proper" basically means that the act must be an incidental power to the power being exercised. It cannot be an equal or greater power. To quote him:
    To be an incidental power, a power had to be subsidiary to, inferior to, and ?less worthy? (in the language of the time) than the principal power. So if A delegates to B the power to manage A?s farm for five years, B could lease part of the farm to C for a few years, but B could not sell the farm. The power to sell the farm is not an ?incident? of the power to manage a farm. It is a power that is as great as the power to manage the farm.
    Ths individual mandate might be necessary to make Obamacare work as written, but it isn't a proper exercise of power, because the ability to require commerce is equal to the power to regulate voluntary commerce.

    Kimball Kinnison
  18. Vaderize03 Manager Emeritus

    Member Since:
    Oct 25, 1999
    star 5
    Kimball, you're doing what you always do, which is look at the problem in a vacuum and break it down to technicalities.

    What is your solution?

    I offered mine, which is to end the concept of basic health insurance and let the market regulate cost.

    If we are going to continue the way things are, the system will collapse. Period. We simply cannot afford to keep the status quo. I am no fan of Obamacare, but if we are going to allow the health insurance industry, and Medicare (which leads it), to continue on our current path, then everyone must be forced to participate.

    For all the talk about freedom, no-one ever really mentions consequences.

    If one doesn't wish to purchase insurance, fine. Should we let them die if they can't pay? Obviously, that's not a feasible answer, yet it is the natural outcome of refusing to insure in our insurance-driven health care system.

    You talk about taxes. Well, cost-shifting is a tax, and we pay more and more of it each year as all of our premiums skyrocket.

    It's going to collapse, much sooner than anyone realizes. I give it 6 months to a year if Congress doesn't act. The SGR cut alone will force hundreds, if not thousands, of primary care practices across the nation to close come January 1st, 2012, and that's only the beginning.

    I've heard a lot of technical talk from you, but no real answers.

    So tell me, what is your solution?

    Peace,

    V-03
  19. Kimball_Kinnison Force Ghost

    Member Since:
    Oct 28, 2001
    star 6
    And I have no problem with that solution.

    Here's another radical idea: let the states deal with the issue on their own, as the Constitution outlines. In fact, Congress already made it illegal to buy health insurance across state lines, which means that by definition, health insurance isn't interstate commerce. That should then make it outside the reach of the Commerce Clause entirely. (Unless, of course, they want to repeal that prohibition, allowing people to buy across state lines, in which case it does become interstate commerce when crossing state lines.) I've yet to see a hospital that crosses state lines in treating patients, so that's not exactly interstate commerce either.

    Let Massachusetts impose an insurance mandate if they want. If California wants single payer, have at it. If New York wants a public option, they would be free to do so.

    However, as it is structured right now, Obamacare isn't a solution, because it is beyond the government's powers as outlined in the Constitution. If they had structured it as a tax, it would have been legal, but they didn't do that because of the political realities. (also, because if it were a capitation tax, it would have had to be disbursed to the states in proportion to population.)

    Quite simply, you have to look at the world the way it is, and craft a solution within the powers granted to you. If Congress doesn't have the powers to implement the solution they want, then they need to turn the problem over to those who have those powers. In this case, that means handing the problem back to the states. If the states don't want to deal with the problem, they either have to grant that power to Congress (by amending the Constitution) or the problem will be left unsolved.

    No, cost-shifting isn't a tax. Taxes are specifically imposed by and paid to the government. Cost shifting generally is a case between two private entities.

    If my doctor raises his prices because other patients aren't paying their full cost, that isn't a tax on me. If my insurance company's costs go up because of increased regulation, that isn't a tax either, because those extra costs aren't going to the government. It is merely a higher cost.

    A tax it a type of cost, but not all costs are taxes, just like a surgeon is a type of doctor, but not all doctors are surgeons.

    Kimball Kinnison
  20. Ghost Chosen One

    Member Since:
    Oct 13, 2003
    star 6
    The Supreme Court will be taking up Arizona's immigration law.

    Justice Elena Kagan will recuse herself. If the Supreme Court ties 4-4, the lower court's ruling will stand, which in this case strikes down a few sections of that law but not the entire thing.
  21. DarthBoba Manager Emeritus

    Member Since:
    Jun 29, 2000
    star 9
    Gov. Brewer is in for a nasty surprise if you ask me. It'd be different if Arizona didn't share a border with Mexico. The borders are a Federal responsibility, as are relations with foreign nations. Based on its past decisions I'd say the Court will find for the government.
  22. Jabba-wocky Chosen One

    Member Since:
    May 4, 2003
    star 8
    What? Have you been to a hospital before? It's not at all uncommon for them to treat patients across state lines. In fact, one of the key elements of academic medical centers is that they act as secondary and tertiary referral centers for problems that are too complex for local providers to treat.

  23. Jabba-wocky Chosen One

    Member Since:
    May 4, 2003
    star 8
    Apologies for the double post.

    However, I wanted to jump in on the broader discussion of PPACA. While I'll take KK at his word about his problems with the law, I certainly find much of the other conservative opposition intellectually dishonest. What he's describing is a technical problem: a mis-classified tax. This would seem to require rather minor revision to fix.

    Instead, the character of the debate is entirely different. Multiple conservative think tanks and political leaders have called for a repeal of the entire law. How is this a logical response to the problem as you describe it? Likewise, how is it "the beginning of a new, less free America?" If the only problem with is how the fee is classified, then isn't the concept of a mandate perfectly acceptable? It can't simultaneously be a grand existential threat and a minor technical discrepancy.
  24. Kimball_Kinnison Force Ghost

    Member Since:
    Oct 28, 2001
    star 6
    Yes, I've been to a hospital before. With the exception of naval hospital ships (which, being military are already under control of the federal government), every hospital I've ever visited has been a fixed building that didn't move (earthquakes exempted). None of them have crossed state lines, but have been located entirely within one state.

    Just because a patient crossed state lines to arrive at a hospital doesn't mean that the hospital crossed state lines to treat that patient.

    Except that the problem is far more than "a mis-classified tax". Re-classifying Obamacare as a tax will never fly, because of the political realities.

    The issue before the Supreme Court is ultimately about the limits of federal powers. It's about whether the federal government can pass a law that requires you to put yourself under its regulatory powers, by forcing you to participate in commerce. If Congress can do that, then the limits placed on it by the Commerce Clause are meaningless, and the Commerce Clause becomes a general police power, something that has always been reserved solely to the states. (Massachusetts' individual mandate is authorized by its general police power, not by a power to regulate commerce.)

    The Courts can't just take a Commerce Clause issue and say "it would have been constitutional if passed as a tax, so we're going to call it a tax". The proper response from the Supreme Court is to strike down the law on Commerce Clause grounds, and return the issue to Congress for them to consider alternatives that would be constitutional. If the entire law will not work without the mandate, then the entire law should be struck down. It doesn't become constitutional just because you want it to be.

    Kimball Kinnison
  25. Vaderize03 Manager Emeritus

    Member Since:
    Oct 25, 1999
    star 5
    Interesting that Justice Silberman (?sp), a well-respected conservative jurist, disagrees with you there, Kimball.

    Thoughts on his ruling?

    Peace,

    V-03