One more point. If severability was initially included and subsequently removed, it is declarative of the fact that the author and signatories intentionally did not want severability to be included. Therefore, it should be excluded.
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One more point. If severability was initially included and subsequently removed, it is declarative of the fact that the author and signatories intentionally did not want severability to be included. Therefore, it should be excluded.
[QUOTE=Wild Walleye;415355]One more point. If severability was initially included and subsequently removed, it is declarative of the fact that the author and signatories intentionally did not want severability to be included. Therefore, it should be excluded.[/QUOTE]You don't have to take my word for it. Vinson himself acknowledges my point: "the absence of such a clause, in and of itself, does not raise a presumption against severability. .." P. 67 of Vinson's opinion (quoting Supreme Court decision in New York v. USA). As an example, if Vinson instead had addressed a challenge to the 1099 provision and found that provision unconstitutional, there is little doubt that he would have held this provision to be severable. The point, again, is that lack of a severability clause does not automatically mean that if one provision is held unconstitutional, then all of ObamaCare fails.
Why is this significant? Because many are predicting that this issue will go to the Supreme Court. These same folks predict that Kennedy will be the deciding vote, because he frequently swings between the liberal and conservative wings of the court. Kennedy is known for lacking a particular part of the anatomy: a spine. He tends to split the baby. So, as a baby-splitter, many also are predicting that Kennedy would hold that the individual mandate violates the Constitution but that this portion of ObamaCare [b]is[/b] Severable, and therefore the remainder of ObamaCare can stand. In so doing, he would be giving something to each side, consistent with his reputation.
I don't think he would do that here. Kennedy sided with the conservative majority in the Lopez case, which is where the Supreme Court started setting limits again on the Commerce Clause. But, he definitely has a reputation of trying to be friends with both camps. So, he could easily agree with the conservatives on the Commerce Clause and the liberals on the severability issue.
[QUOTE=Stan Da Man;415365]You don't have to take my word for it. Vinson himself acknowledges my point: "the absence of such a clause, in and of itself, does not raise a presumption against severability. .." P. 67 of Vinson's opinion (quoting Supreme Court decision in New York v. USA). As an example, if Vinson instead had addressed a challenge to the 1099 provision and found that provision unconstitutional, there is little doubt that he would have held this provision to be severable.[/quote]Excellent point. In a contract between two parties, either party can argue that the absence of such a clause is indicative of the understanding between the parties and that severability is not in the spirit of the original agreement. Obviously, the other side would argue that severability, despite the omission of an explicit mention in the document, is valid.
You example is excellent. I agree that such a finding on the 1099 issue would likely have resulted in the issue being severed. However, in Vinson's finding the unconstitutional mandate is so inextricably interwoven in the fabric of the law and the fact that the law is dependent upon this extra-constitutional "taking" therefore the issues could not be severed.
[quote=]The point, again, is that lack of a severability clause does not automatically mean that if one provision is held unconstitutional, then all of ObamaCare fails.[/quote]Agreed. However, the fact that Vinson did not sever, and opined on the nonseverability, means that the law is unconstitutional and by virtue of the ruling there is an ipso facto injunction on its implementation.
[quote=]Why is this significant? Because many are predicting that this issue will go to the Supreme Court. These same folks predict that Kennedy will be the deciding vote, because he frequently swings between the liberal and conservative wings of the court. Kennedy is known for lacking a particular part of the anatomy: a spine. He tends to split the baby. So, as a baby-splitter, many also are predicting that Kennedy would hold that the individual mandate violates the Constitution but that this portion of ObamaCare [b]is[/b] Severable, and therefore the remainder of ObamaCare can stand. In so doing, he would be giving something to each side, consistent with his reputation.[/quote]Agreed. A federal judge has ruled that the Law is unconstitutional. The supremes will decide. The Kennedy factor is all the more reason for having Kagan recuse herself.
[quote=]I don't think he would do that here. Kennedy sided with the conservative majority in the Lopez case, which is where the Supreme Court started setting limits again on the Commerce Clause. But, he definitely has a reputation of trying to be friends with both camps. So, he could easily agree with the conservatives on the Commerce Clause and the liberals on the severability issue.[/QUOTE]Will the Supremes be able to consider the issue of severability? If so, I will be interested in Harry Reid's reasoning behind behind taking severability out of the law.
By the way, the Obama administration has already been found in contempt for dismissing a judge's ruling regarding the offshore drilling moratorium.
By the way, Obama is totally f-ing up this Egypt situation. What started as a protest against rising food prices is now a total mess replete with WH flip flopping. Right or wrong, Eqypt under Mubarak has been one of our, for lack of a better word, allies in the region. I can assure you that the Muslim Brotherhood will be no more benevolent a ruler than Mubarak (think Mullahs in Iran). This is Iran part II. Barrack Hussein "Jimmy Carter" Obama.
Do a little reading on the Muslim Brotherhood and their role in the spread of global terrorism. Anybody remember what was going on in Beriut '80-'83? How about the primary export of the Bekaa Valley? Hint: "_ _ rrorism"
I agree. And, I don't mean to imply that I think the individual mandate is severable. I agree with you (and Vinson's holding) that it isn't. There was some commentary here, and there's been much in the media, that the lack of a severability clause would automatically result in all of ObamaCare being stricken if any portion of it was held invalid, and that isn't the case. Kennedy would have to do some real mental gymnastics to find that the individual mandate is severable, but you frequently get that sort of thing out of the Supreme Court.
So, the legal fate of Obamacare probably will come down to how Kennedy parses the issues associated with the Commerce Clause. Vinson found that the Commerce Clause cannot be stretched to allow Congress to regulate inactivity, [i]not purchasing[/i] Health insurance. Few courts would dispute this, even the ones that upheld ObamaCare. Instead, however, they have twisted the argument. They frame the issue as whether the Commerce Clause gives Congress has the power to regulate "economic decisions". Framed this way, they find that Congress clearly has the power to regulate economic decisions, and that everyone who doesn't purchase insurance has necessarily made an economic decision, even if they never gave the matter a thought in the first place.
Using the test announced by the courts upholding ObamaCare, it isn't much of a stretch to argue that Congress can regulate absolutely anything, so long as there's a whiff of economics in there somewhere along the lines. That's a pretty big stretch. Nevertheless, two Democrat appointees have so held, and there likely will be four disingenuous Supreme Court justices who agree. Personally, I don't think Kagan will recuse herself. She should, but why let a little thing like the appearance of impropriety get in the way.
Stan and WW – Severability.
While you both make good points regarding the recent ruling on ObamaCare, I've worked with several attorneys over the years and what it usually comes down to after all the fancy foot work, smoke and mirrors is WHAT DOES THE CONTRACT SAY. In this case the fact there was a severability clause in an earlier version of the bill but it was not in the bill which became law argues for the law stands as a whole or falls as a whole. Due to Kagens involvement in ObamaCare prior to her appointment to the Supreme Court she should recues herself from the hearing making it a slam dunk for the bill going down. I don't expect a Democrat to understand the words honor or decency so I doubt she will.
Esten – Medical Service Academies.
You allude to the United States Military – Naval – Air Force and Coast Guard Academies as examples of how physicians can be trained. These academies combined produce a little more than 4, 000 graduates per year from all 4 academies with 8 year commitments at a cost of several hundred thousand dollars per graduate for what is a undergraduate degree. (I am a little familiar with this since my daughter graduated from USMA West Point)
Physician training usually takes 4 years under grad. 3 years medical school, and 2 to 4 years internship and residency before they are really ready to be out practicing. Now you're trying to tell me you want to produce physicians in 4 years from similar facilities as the service academies? If so I would volunteer you to be the first patient for brain surgery by one of your new 4 year medical wonders.
Obama and Egypt.
Obama's poll numbers are beginning to sink like a stone again due to his policy (does he really have one) toward the current unrest in Egypt. WW is right, if you want Iran II let the Muslin Brotherhood size the reins of power. To make matters worse this fool we have for a president is making polite overtures to them! I told you Obama was going to make Jimmy Carter look good!
[QUOTE=Doppelganger;415377]Due to Kagens involvement in ObamaCare prior to her appointment to the Supreme Court she should recues herself from the hearing making it a slam dunk for the bill going down. I don't expect a Democrat to understand the words honor or decency so I doubt she will.[/QUOTE]I tend to agree. But, here are two more scenarios. First, let's say Kagan did recuse herself. It would probably never happen. But, assume for a moment that she has an involuntary spasm at the precise moment when they ask for a showing of hands if anyone wants to recuse herself. Then, assume that Kennedy sides with the three liberal justices and the four conservative justices vote as we would expect. It's a 4-4 tie. What happens? The decision of the lower courts stand. But, what happens if there are different decisions among multiple circuit courts, and the Supreme Court grants review of all of them? They all stand. We have ObamaCare in some states but not others, depending on what the Courts of Appeal decide on the way up to the Supreme Court. A fine mess, but altogether possible.
Second and more likely, though, the Supreme Court will punt on this issue as long as it can. Some ObamaCare provisions go into effect before 2014, but the most dramatic measures don't kick in until then. The rest is just taxes to punish the rich. So, what likely will occur is that the Supreme Court will do [i][b]nothing[/b][/i] Until 2013, at the earliest. That way, they can wait and see whether Republicans re-take the White House and Senate in the 2012 election and they can just let Republicans obliterate this abomination. The Supremes wouldn't need to get their dainty little hands dirty, which usually is their preferred course of action. They'll act, but probably only if they have to.
In the news today: Federal judge in Mississippi throws out suit challenging constitutionality of the Affordable Care Act.
And this judge, Keith Starrett, was appointed by Bush. Who to believe? Vinson? Starrett?
Don't get your hopes up too much. Odds are Obama is re-elected and Supreme Court upholds the law. Of course, that probably won't stop Repubs in their endless quest to help the rich and slam the poor.
[QUOTE=Wild Walleye;415352]Rockharders and Esten revile the Constitution.[/QUOTE]Walleye hates poor people.
After all, this is the same guy who told us hunger is a good motivator. I guess the GOP plan is to 'motivate' the poor enough so they will go out and get all those good paying jobs out there.
[QUOTE=Esten; 415383]In the news today: Federal judge in Mississippi throws out suit challenging constitutionality of the Affordable Care Act.
[/QUOTE]He didn't totally throw it out.
[quote]The Huffington Post reported: "The judge, Keith Starret, who serves on the U.S. District Court for the Southern District of Mississippi, ruled that plaintiffs suing over the coming implementation of the individual mandate did not demonstrate sufficient standing for him to take the case. He "granted in part" the administrations motion to dismiss the case, but gave the plaintiffs 30 days to amend their complaint." [/quote]
Excellent point Stan and as you already know we have different rulings from different Federal District Judges now. The next round will be to wait for the Appeal Courts decisions which I doubt will be unanimous which would set up the scenario you outline.
I see Virginia's Attorney General has requested a 'fast track' to the Supreme Court and the Government's attorneys are fighting it to delay the issue reaching the Court as long as possible. I suspect this tactic is being used by Holder to have as much of ObamaCare implemented prior to the Supreme Court hearing the case as possible in the hope of swaying the Court's decision (Kennedy).
If that's not bad enough, now China's national aviation corp is trying to use a near bankrupt California aviation firm as a partner to bid on the next generation of helicopters for Marine One. Wow, the ChiComs are going to try and get the contract to build the helio for the president, wonderful!
As far as Egypt goes, I wonder how Obama would have liked it if some other foreign leader was telling him to step down during the Tea Party rallies in 2010, sort of the same thing with him suggesting Egypt's president leave? Maybe Obama should stay out of other countries politics or perhaps he is trying to redirect attention away from his failed presidency?
[QUOTE=Esten;415383]I guess the GOP plan is to 'motivate' the poor enough so they will go out and get all those good paying jobs out there.[/QUOTE]Actually, they can start with entry level jobs (like the rest of us did), and then they can work their way up the ladder to the "[i]good paying jobs[/i]" after they've demonstrated some work ethic (like the rest of us did).
[QUOTE=Esten; 415383]In the news today: Federal judge in Mississippi throws out suit challenging constitutionality of the Affordable Care Act.
And this judge, Keith Starrett, was appointed by Bush. Who to believe? Vinson? Starrett? [/quote]So what? A federal judge has declared it unconstitutional. Do you think that an unrelated ruling in another state somehow overrules the outcome of the prior adjudication?
[quote=]Don't get your hopes up too much. Odds are Obama is re-elected[/quote]Which odds are those? I believe FDR is the only US pres to be reelected with unemployment greater than 8.
[quote=]and Supreme Court upholds the law.[/quote]I guess that is why BHO is fighting the effort to fast track to the supremes.
[quote=]Of course, that probably won't stop Repubs in their endless quest to help the rich and slam the poor.[/quote]I am sure that their efforts will remain consistent with past practices.
[quote=]Walleye hates poor people.[/quote]Not true. I hate being a poor people. Therefore, I get off my ass and do everything I can to get ahead.
It appears that Esten, Obama and their ilk hate the poor. Everything they do either drives up the cost of living, including prices for food, fuel and health care or reduces employment opportunities. How does that help the poor? It doesn't.
[quote=]After all, this is the same guy who told us hunger is a good motivator. I guess the GOP plan is to 'motivate' the poor enough so they will go out and get all those good paying jobs out there.[/QUOTE]That approach has worked since the dawn of mankind.
Your approach is to have the productive members feed the nonproductive (including some who actually need help) thereby eliminating the source of motivation for nonproductive people, who could actually be out there producing. Great plan.
[QUOTE=Doppelganger;415392]As far as Egypt goes, I wonder how Obama would have liked it if some other foreign leader was telling him to step down during the Tea Party rallies in 2010, sort of the same thing with him suggesting Egypt's president leave? Maybe Obama should stay out of other countries politics or perhaps he is trying to redirect attention away from his failed presidency?[/QUOTE]Nothing tells the world that you are in command of the issues like having two of your spokespeople (Hillary and Biden) publicly state that your administration is on both sides of the issue.
Because our douchebag president thinks crowds in the street must be indicative of strong community organizing, we are throwing our support behind the Muslim Brotherhood as opposed to Mubarak. What is worse is that the press and this administration are calling the protesters "pro-democracy" with absolutely no basis for making that assessment. Please show me a democratic government with a large contingency from the Muslim Brotherhood or their ilk.
I think that the back story on this is that BHO thinks that in order for us to be loved by the Muslim World, we have to dump Israel. He has clearly been anti-Israel for a long time. However, I think he sees dumping one of the very few Islamic leaders who maintains peace with Israel as a step in the right direction.
It is incredible to look at the destruction Obama has wreaked upon us in just two short years. He has destroyed our economy, attempted to destroy our healthcare industry, trampled the constitution, increased global fuel and food costs, and has helped to send the Middle East back to a circa-'78 complexion. Wow, how's that hope and change working for you?
[QUOTE=Punter 127;415386]He didn't totally throw it out.[/QUOTE]He didn't throw it out at all. He gave them 30 days to amend.
[url]http://www.hattiesburgamerican.com/article/20110203/NEWS01/110203027/Judge-dismisses-Miss-lawsuit-against-Obamacare[/url]
And, the dismissal with leave to amend had nothing to do with Constitutionality. This just held that the plaintiffs hadn't demonstrated standing (a procedural issue) because they hadn't shown imminent injury. If the judge had addressed Constitutionality and held that ObamaCare passes muster, he would not have granted leave to amend.
The upshot: This case doesn't even go on the scorecard yet. There simply hasn't been a decision on the merits. And, if standing is a problem, there may never be a decision on the merits.
[QUOTE=Wild Walleye;415405]It is incredible to look at the destruction Obama has wreaked upon us in just two short years. He has destroyed our economy, attempted to destroy our healthcare industry, trampled the constitution, increased global fuel and food costs, and has helped to send the Middle East back to a circa-'78 complexion. Wow, how's that hope and change working for you?[/QUOTE]It's George Bush's fault!
[QUOTE=Stan Da Man;415408]And, the dismissal with leave to amend had nothing to do with Constitutionality. This just held that the plaintiffs hadn't demonstrated standing (a procedural issue) because they hadn't shown imminent injury. If the judge had addressed Constitutionality and held that ObamaCare passes muster, he would not have granted leave to amend.[/QUOTE]Stan,
Liberals never let the facts stop them from uttering a good sound bite.
Thanks,
Jackson