Judge Calls Health Law Unconstitutional

[thundley4]

No, the provisions are all severable. So the rest of the law stays intact--as law--even if the USSC rules that the mandate is unconstitutional. But it's unworkable as policy, if that's what you mean, without the mandate, so in that sense it would fall on its face if this decision is finally upheld at the USSC.

Breyer is a pompous ass, but I'm not sure even he would think the mandate makes any Constitutional sense. And, as a sometimes betting man, I'd bet Kennedy casts his lot against it. This may turn out 6-3. Maybe even 7-2...

....Because I'm not 100% sure about Souter voting for this. Really. For all his libness, he has a remarkably mathematical mind that may lead him to see the illogic of the mandate.

Of course we can forget Sotomayor and Ginsburg.

The Dems did not include a severability clause in HCR.

[Godot showed up]

The Dems did not include a severability clause in HCR.

Judges can just declare severability if asked by one side or the other to do so, though.

[ConservativeMobster]

I thought that was the case, but this monster bill has both sides talking so much trash even the lawyer sites I've read differ on their opinions of this.

[thundley4]

Judges can just declare severability if asked by one side or the other to do so, though.

Then that could be appealed, also unless it's the USSC.

[Godot showed up]

Then that could be appealed, also unless it's the USSC.

Oh for sure, and we can hope so. I'm not even sure if Sebelius asked for severability; Hudson may have just done it on his own. Both the 4th Circuit and the USSC can take or leave any part of Hudson's decision, and add whatever they want, assuming it's upheld.

The reason I'm holding out some hope for Souter is that the aggregation of inactivity--it's bad enough that Wickard gave us "aggregation" of intrastate activity at all--lacks any logical limit. The inacivity argument could be applied to aggregate the failure to purchase anything. I suspect that the pure illogic of this may offend Souter's generally theorem-based reasoning.

[Godot showed up]

 



 

I seem to have completely spaced, had a senior moment, and forgotten what year this is, and you were all too kind to correct my ridiculous mistake. Obviously Souter retired in 2009.

[formerlurker]

'Resolving a difference in the Circuits' is one of the classic jurisdictional provinces of the Supreme Court, though it does not HAVE to take the case, nor is it the exclusive way this question would get there.  As far as there being a difference in the Circuits goes, though, there are a surprisingly wide number of situations where Federal agencies have to apply law one way in one State, and differently in another one, due to the States being in different Federal Circuits with different governing rulings on some fine point of evidence law, what exactly certain environmental law regulations mean, etc.

Basically, the cases start out in separate Circuits (And so necessarily different Districts, into which each Circuit is divided).  In each Circuit, it begins with an initial decision by a District Judge; one or both parties willl be unhappy and appeal it, which ultimately generates a Circuit Court (Federal Circuit Court of Appeals, to be more precise) decision and opinion.  When two different Circuits end up issuing conflicting opinions on the same point, it's a given that someone involved will try to get the Supreme Court to issue a writ of certiorari (Meaning that they accept the case for decision) to resolve the discrepancy.  It is optional for the Court to accept these cases, it depends on how serious they think the effect would be.

I am not really following the litigation on these cases, and don't know if a fundamental conflict with the pro-HellCare decision has irrevocably been raised yet.

The first ruling sets a quasi-precedence for the other circuit.    On this issue it is not state specific.   SCOTUS is taking this.    

[formerlurker]

Judges can just declare severability if asked by one side or the other to do so, though.

Definitely not on this - I agree with Heritage, if they agree to it they are cowards.

[formerlurker]

http://blog.heritage.org/2010/12/13/judge-rules-obamacare-mandate-goes-beyond-letter-and-spirit-of-the-constitution/#more-48209

Heritage breaks it down nicely.