(02-02-2011 05:04 AM)Owl 69/70/75 Wrote:  

(02-01-2011 11:59 PM)WMD Owl Wrote:  You all forget Kagan's Office filed a Brief supporting he DoJ's position in the Florida litigation.
Using her prior recusal position, that takes her out of this case... making it a 8 Justice Court.
A 4-4 decision won't work. You need 5-3 to find it unconstitutional.

Agreed, but that's really no change, because she was always going to vote to uphold. Either way you need 5 to overturn, and she's not one of them.

I assume she will recuse, though I don't believe she is obligated to do so. It keeps her looking clean, and it doesn't affect the outcome.

Of course, I can see the democrats searching far and wide to try to trump up some reason why one of the conservative justices should recuse ("Justice So-and-so once went to the doctor and paid cash for it, so he's prejudiced against insurance"), and if he doesn't then Kagan stays and they try to taint the outcome.

The democrats have a LOT at stake here. Will they try to screw the process? I wouldn't put it past them.

Is that right? It seems to me that it would take 5 votes to overturn the lower court decision that it IS unconstitutional... and Kagan is expected to be one of the votes to overturn... meaning that if she recuses, it has the effect of being a vote to UPHOLD the lower court ruling that the bill is unconstitutional... sort of like NFL replay, right? They aren't so much voting on the bill as they are voting on the lower courts ruling on the bill.... or am I wrong here? Usually it doesn't matter with an uneven number on the bench

I KNOW you know this, so ONE of us is confused... and I suspect it is me misreading your comment.

(02-02-2011 11:42 AM)Hambone10 Wrote:  It seems to me that it would take 5 votes to overturn the lower court decision that it IS unconstitutional...

Exactly, but with the caveat that "lower court decision" means the Appellate Court, not the District Court.

Quote:sort of like NFL replay, right? They aren't so much voting on the bill as they are voting on the lower courts ruling on the bill

True.

(02-02-2011 11:42 AM)Hambone10 Wrote:  Is that right? It seems to me that it would take 5 votes to overturn the lower court decision that it IS unconstitutional... and Kagan is expected to be one of the votes to overturn... meaning that if she recuses, it has the effect of being a vote to UPHOLD the lower court ruling that the bill is unconstitutional... sort of like NFL replay, right? They aren't so much voting on the bill as they are voting on the lower courts ruling on the bill.... or am I wrong here? Usually it doesn't matter with an uneven number on the bench

I KNOW you know this, so ONE of us is confused... and I suspect it is me misreading your comment.

I think you're right with one exception - as stated earlier, there is an intermediate appellate court ruling that the SCOTUS will actually rule on. It's not known what that outcome will be. If the appellate court upholds the ruling, you're right ... if the overturn the district court, then Kagan's vote isn't relevant. Of course, the SCOTUS doesn't have to take the case at all in any event (not that it is very likely that they wouldn't).

Aha... that's what I was missing... the "unknown" intermediate decision.

Thank you.

Interesting... If Kagan recuses (as it seems she should) that decision looms HUGE on the outcome. I bet she's hoping the appeals court overturns the decision and thus her recusal becomes somewhat moot.

Yes, I was assuming facts not in evidence. Good catch, Hambone. Since the absent justice would be a recusal in this case, I think the only possible outcome would be letting the lower court ruling stand. Coming through 4th circuit, and given a pretty well-written opinion by the court below, I think there's a fair chance the court of appeals will uphold the lower court--at least on the constitutionality of the mandate, if not the invalidation of the entire statute. I'm not sure what kind of precedents exist for invalidating an entire statute becuase of no severance clause, but at least in this case, the US made such a strong claim that the mandate is an integral part of the entire scheme that I think there's a decent chance of invalidating the entire statute if the mandate fails to pass constitutional muster.

Of course, if the court takes the case from an appeals court that upheld the law, then it would take 5 votes to hold it unconstitutional. I think that was what I was thinking, that the supreme court would combine several cases, including those decided both ways below. When you get different results from different circuits, the court likes to do that to be absolutely certain that to quiet the law. The alternative, as noted in the quoted part below, is that a 4-4 vote leaves you with different law in different parts of the country.

What's really killing them is the great lengths that proponents went to to assert that this is not a tax. If they could argue it under the taxing power instead of interstate commerce, I think it's a slam dunk win for the US. But they don't want to go there politically, and I think any review of the legislative history will pretty much estop them from being able to go there. My personal opinion is that the mandate is probably the best thing in the whole 2000 pages. It's certainly a better idea than the Health Choices Commission.

From Wiki Answers:

The Supreme Court may exercise one of two options when unable to reach a majority opinion: 1) Affirmance by an equally divided court, which allows the decision of the lower court to stand in judgment without resolving the conflict; or 2) Reargument at a later date, preferably before the full court, which allows a final determination.

Affirmance, which carries no precedential weight, presents a thorny problem for the legal community in that it may leave Circuit splits (differing decisions between federal appellate courts on substantially similar issues) or important constitutional questions undefined for years. In most instances, these problems are eventually addressed when the Court grants certiorari on a later case that raises comparable questions.

Read more: http://wiki.answers.com/Q/Has_there_ever...z1CqJi3Pix

(02-02-2011 05:27 PM)Owl 69/70/75 Wrote:  In most instances, these problems are eventually addressed when the Court grants certiorari on a later case that raises comparable questions.

Hence the potential value of something as silly as the "gun" mandate.

I think someone should pass something more akin to the brocolli law alluded to by the court. Perhaps Iowa with corn or Florida with OJ... or Cali with plastic surgery

(02-02-2011 06:30 PM)Hambone10 Wrote:  

(02-02-2011 05:27 PM)Owl 69/70/75 Wrote:  In most instances, these problems are eventually addressed when the Court grants certiorari on a later case that raises comparable questions.

Hence the potential value of something as silly as the "gun" mandate.
I think someone should pass something more akin to the brocolli law alluded to by the court. Perhaps Iowa with corn or Florida with OJ... or Cali with plastic surgery

But there's a problem doing it with a state law. The states don't have to meet the interstate commerce test. In fact, if they meet it they can't do it. So a state law could be upheld without addressing the federal issue here.

good point... which brings me right back to....

Why didn't they just call it a tax and pay for it like Medicare? Give you a deduction for private premiums up to the amount of the "tax". really seems silly... but we ALL know the only reason it wasn't done this way was to try and avoid "the largest tax increase in the history of the world"

I mean, if its such a good idea and everyone will support it, then why lie about it?

(02-02-2011 10:41 PM)Hambone10 Wrote:  I mean, if its such a good idea and everyone will support it, then why lie about it?

Perhaps because what people will support is the lies, not it?

(02-02-2011 05:27 PM)Owl 69/70/75 Wrote:  The Supreme Court may exercise one of two options when unable to reach a majority opinion: 1) Affirmance by an equally divided court, which allows the decision of the lower court to stand in judgment without resolving the conflict; or 2) Reargument at a later date, preferably before the full court, which allows a final determination.

I guess they can't invite Sandra Day O'Connor back as a Celebrity Guest Justice?

Stupid move by the DOJ. Between repeal vote, this and the Waivers debacle, Obamacare is critically wounded.

White House Wants Obamacare on Slow Legal Track

Friday, 04 Feb 2011 01:43 PM

A U.S. Supreme Court showdown over President Barack Obama’s health-care overhaul may be inevitable. His administration is in no rush for the court to get involved.

The Justice Department yesterday said it will oppose Virginia Attorney General Ken Cuccinelli’s request that the court immediately review the law, which a federal trial judge said was unconstitutional. The administration said the high court should follow its usual practice and first let an appeals court rule on Cuccinelli’s challenge.

The government’s approach would give it a chance to rack up lower court victories and perhaps build popular support for the law before the justices take up the case. It might also set the stage for a Supreme Court ruling only months before the 2012 presidential election.

“Litigating through the courts of appeals in the normal course suggests confidence in the government’s case,” said Christopher J. Wright, a lawyer with Wiltshire & Grannis LLP in Washington who has argued 28 Supreme Court cases and isn’t involved in the health-care fight. “In this particular case, it may produce unanimous judgments from appeals courts upholding the law.”

Cuccinelli said in an interview that states and businesses need to know whether the law is constitutional as soon as possible in light of rulings in Virginia and Florida against the administration.

Guidance for States
“What really matters now is getting this decided for the people of this country so we can move on both with health care reform and just economically knowing how we’re going to have to operate,” he said.

The Supreme Court has taken the step being sought by Cuccinelli, known as certiorari before judgment, only a handful of times in the past half century and generally only when the justices are simultaneously considering a related case that has cleared the appellate level.

The chances of the court agreeing to hear the case in the face of government opposition are “zero,” said Carter Phillips, a lawyer in Washington at Sidley Austin LLP who has argued 71 Supreme Court cases.

“I do not think the court will be inclined to decide this question without the benefit of having the views of at least one and probably more than one court of appeals on a very difficult question of constitutional law,” Phillips said.

Final Resolution
Justice Department spokeswoman Tracy Schmaler said in a statement that certiorari before judgment would do little to expedite a final resolution. Cuccinelli said he isn’t explicitly asking the court to hear the case in its current term, which is scheduled to end in late June.

The 4th U.S. Circuit Court of Appeals in Richmond is scheduled to review the Virginia challenge in May -- alongside an appeal of a different judge’s decision upholding the law. A ruling by that court this year would give the losing side time to seek Supreme Court review during its 2011-12 term, which begins in October.

Schmaler also said the provision at the center of the court fight -- the requirement that people either buy insurance or pay a penalty -- doesn’t take effect until 2014.

“There is more than sufficient time for the case to proceed first in the court of appeals,” Schmaler said in the statement. She declined to comment further on the government’s motivations.

Judges Split
Four trial judges around the country have split 2-2 on the law’s constitutionality. In the Virginia case, U.S. District Judge Henry Hudson said in December that the insurance mandate was beyond Congress’s power to regulate interstate commerce.

Several appellate experts said they expect the government to fare better at the next level.

“They are more likely to get favorable decisions out of the courts of appeals,” said John Elwood, a partner at Vinson & Elkins LLP in Washington who served as a law clerk for Justice Anthony Kennedy, the potential swing vote on the nine-member Supreme Court.

The Justice Department might find an especially receptive audience at the 4th Circuit. Although that court developed a reputation as a conservative bastion in the 1990s and 2000s, it may now lean in the other direction. Of the court’s 14 active judges, eight were appointed by Democratic presidents and a ninth, Roger Gregory, was nominated first by Democratic President Bill Clinton and then by Republican George W. Bush.

Party Affiliation
Party affiliation has made the difference so far with health care. The two trial judges who declared the law unconstitutional -- Hudson and Florida’s Roger Vinson -- are both Republican appointees. The judges who upheld the law -- Norman Moon of Virginia and George Caram Steeh of Michigan -- were appointed by Democratic presidents.

The two other appeals courts set to consider the law have a more Republican flavor. The Cincinnati-based 6th Circuit, which will hear the Michigan case later this year, has four Democratic and 10 Republican appointees among its active members. The Atlanta-based 11th Circuit, which would hear an appeal in the Florida case, has five Democratic and six Republican selections.

Appeals courts generally assign cases first to a three- judge panel. Should the government lose at that stage, it could seek review by the full appeals court, perhaps pushing Supreme Court involvement back to the 2012-13 term. And should the government win, it could even urge the Supreme Court not to review the law at all.

Public Support
Delay of any length gives the administration time to win more public support for the law, a factor that some lawyers said might subtly influence the nine justices. Some provisions have already taken effect, including a requirement that young adults be allowed to stay on their parents’ insurance plans until they turn 26.

The administration likely wants “the law to be on the books as long as possible and have people get used to it,” Elwood said. “If it has a feel of familiarity to it, the less likely they are to strike it down.”

Appellate consideration would help the courts home in on the central legal issues, said Drew S. Days III, a professor at Yale Law School and solicitor general under President Bill Clinton. After appeals court consideration, “all the arguments have been played out fully and unwound and elaborated in ways that I think will be helpful to the justices,” Days said.

Cuccinelli said the case involves a “very pure legal argument” and wouldn’t benefit from appeals court rulings. “They’re really just kind of a warm-up for the Supreme Court,” he said.

Copyright 2010 Bloomberg News. All rights reserved.

(02-04-2011 06:54 PM)SumOfAllFears Wrote:  Stupid move by the DOJ. Between repeal vote, this and the Waivers debacle, Obamacare is critically wounded.

Hmmm... maybe. The WH seems to be viewing this as a way to buy additional time to get some favorable lower/appellate court rulings under their belt, and maybe even another chance to sway public opinion. Politically, that seems like a very, very risky strategy to me. But it could work.

Quote:The chances of the court agreeing to hear the case in the face of government opposition are “zero,” said Carter Phillips, a lawyer in Washington at Sidley Austin LLP who has argued 71 Supreme Court cases.

“I do not think the court will be inclined to decide this question without the benefit of having the views of at least one and probably more than one court of appeals on a very difficult question of constitutional law,” Phillips said.

This quote is 100% true. The USSC will not grant cert before the Appellate Courts have a chance to weigh in, especially not with the DOJ in opposition. It simply won't happen.

Quote:The 4th U.S. Circuit Court of Appeals in Richmond is scheduled to review the Virginia challenge in May -- alongside an appeal of a different judge’s decision upholding the law. A ruling by that court this year would give the losing side time to seek Supreme Court review during its 2011-12 term, which begins in October.

I didn't realize the 4th Circuit was going to hear argument that quickly. If the case is heard in May, you could conceivably have a published opinion by the end of August, and an appeal by the loser to USSC within a few days of that. If the USSC were so inclined, it could definitely agree to hear argument on the case as early as January -- just 11 months from now -- and then issue its opinion in early summer. That's a much quicker time-frame than what I have been expecting for these past few months

Quote:Appeals courts generally assign cases first to a three- judge panel. Should the government lose at that stage, it could seek review by the full appeals court, perhaps pushing Supreme Court involvement back to the 2012-13 term.

I doubt that would happen. I think it will go straight from the 3-judge panels (4th Circuit, 6th, 11th, maybe some others) to the USSC.

Quote:Cuccinelli said the case involves a “very pure legal argument” and wouldn’t benefit from appeals court rulings. “They’re really just kind of a warm-up for the Supreme Court,” he said.

Yep.