Does anyone give a shit about the law anymore? Really? Did you ever?

And by giving a shit, I mean having the intellectual curiosity and ability to differentiate between the critical details of what the law says, what it means and whether either of these two elements accurately reflect a law’s proper authority.

Or is it only about whether your ox has been gored? Or in the case of idiot extremists like Eyer, does the mere curtailment of “liberty” common to most any prohibitive law serve as its own self-condemnation.

For example, do the presence of “enumerated powers” and authorities within the Constitution serve to discredit or deny the validity of implied powers as well? Hint: the issue has long ago been decided. From Wiki:



Hamilton’s argument also supports the assertion that the Bill of Rights imply a general right of privacy particularly as reflected in references within the First, Third Fourth and Fifth Amendments.

So where does a general acceptance of the principle of implied powers take us? As T. S. Eliot wrote, “The last temptation is the greatest treason: to do the right deed for the wrong reason.” Is Eliot right or wrong? Does it matter? Does the validity of implied powers exempt its most ardent proponents from an ethical responsibility to be bound by ANY limits by which arguably desirable implications might be rationalized, or does the principle itself argue against such limits?

Similarly, if one of the implied powers of the federal judiciary is the power and responsibility of “judicial review” for the very purpose of ensuring Constitutional harmony of legislative and other governmental acts, must not the judiciary itself be bound by parameters which constrain the scope of that review?

Does anyone here have the ability or DESIRE to discuss today’s Supreme Court decision in that context?

I predicted today’s ruling in this forum just over two weeks ago. http://forum.literotica.com/showpost.php?p=68438699&postcount=2

And earlier today I suggested that the original language of the ACA in attempting to grant tax credits for members of state originated health exchanges while denying them to members of a federal originated exchange was a violation of the Equal Protection Clause of the 14th Amendment. I was less than certain of that position, and, as it turns out, I was wise to hedge my bets. Justice Scalia’s reference to Title 26, Section 35 of the U. S. Code in his dissent to today’s opinion illustrates how states must qualify various health insurance plans in order for taxpayers to receive federal tax credits for premium payments to those plans. Thus, there is precedence for wholly volitional state action resulting in legal disparate treatment of citizens under the federal tax code.

But I’m getting ahead of myself.

While today’s ruling is not at all surprising, there is more than ample reason to be distressed by the substance of it no matter which side of the healthcare debate one happens to take. Although I was initially inclined to support the Court’s opinion as a practical matter, that support has faded dramatically upon reading the majority opinion in detail.

That is because the Court did not in any way dispute that Congress had the power to establish separate tax credit rules for state originated health exchanges while withholding those same tax credits for a health exchange established within a state by the federal government. In fact, Justice Roberts wrote precisely the opposite. “If the statutory language is plain,” he wrote, “we must enforce it according to its terms.”

And yet, the Court found ambiguity in the statutory language of Section 36B of the U. S. Code which nonetheless reserves federal tax credits (aka “premium assistance credit amount”) for those taxpayers and dependents “which were enrolled in through an Exchange established by the State under 1311 of the Patient Protection and Affordable Care Act.”

That’s not the worst of it. Having arguably found “ambiguity,” the Court thus armed itself to question Congressional legislative intent. What could Congress possibly have intended in the face of such ambiguous language as “established by the State”?

It is this linguistic gamesmanship that Justice Scalia rightly lampooned in his scathing dissent.

But it gets worse still. Legislative intent is an important element in reviewing statutory construction. It is particularly important with regard to Constitutional provisions made long ago where the full record of public and legislative debate may be less available than it once was. Consider the “necessity of a well-regulated militia” reference in the Second Amendment and the controversy around it which has ensued since its drafting.

Surely, however, it is folly to believe that such intent remains hidden from the Supreme Court with respect to a bill that was signed into law little more than five years ago. And if it was, how might you discern it? Get some Congressmen on the phone or legislative draftsman who was perhaps instrumental in authoring the controversial language in question? Nope.

Ultimately since, as Justice Roberts wrote in his summary, “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them” any or all language arguably counterintuitive to that objective was ipso facto, in the Court’s analysis, contrary to Congressional intent. In so doing, the Court looked to the language of the law as passed as the primary source of the solution to a puzzle of its own creation.

This rationale created what should have been an embarrassing attempt by the Court to “have it both ways.” For example, when petitioners argued that Congress was not worried about the effects of withholding tax credits from states with federal exchanges because, in so doing, Congress specifically intended to offer states a deal they could not possibly refuse, Justice Roberts rejected that argument as follows:



In other words, according to the Chief Justice, Congress could not have RATIONALLY INTENDED to include specific language that would have operated to the detriment of the general ACA purpose of “improving health insurance markets” but armed with the knowledge of the inevitability of a federally mandated exchange if states failed to establish one of their own, Congress COULD RATIONALLY INTEND AND DID, IN FACT, include language which they nonetheless knew to be meaningless.

That is the problem with this case. The Court neither ruled as a matter of law nor specific Congressional intent, but rather general legislative purpose, and that is not its proper role. Since that was its obvious objective that purpose would have been far better served and the Court’s reputation much less soiled had it simply refused to hear the case and let the ACA stand as enacted.

Instead, it engaged in an exercise that was neither necessary nor helpful.


In the past SCOTUS ignored the Constitution when 1) West Virginia became a state, and when they approved the illegal ratification of the 14th Amendment. That is, the States repudiated the 14th Amendment and the GOP threw all of them outta the union to have enough votes to pass the amendment. The Supremes said OK.

http://www.constitution.org/14ll/no14th.htm

So Roberts et al didn't get any cherries yesterday.
 
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I care, but our concept of law itself is faulty. They are written in faulty form with faulty execution. Life manages to transcend and subvert law in a way that should inspire humility, but instead we get hubris.

Too much IF and not enough IF > THEN

Law does over time even out and become more practical if allowed time, but fresh-signed laws are reflective of the process.

Time is the most important factor, while sausage is made.
 
And by giving a shit, I mean having the intellectual curiosity and ability to differentiate between the critical details of what the law says, what it means and whether either of these two elements accurately reflect a law’s proper authority.

Or is it only about whether your ox has been gored? Or in the case of idiot extremists like Eyer, does the mere curtailment of “liberty” common to most any prohibitive law serve as its own self-condemnation.

For example, do the presence of “enumerated powers” and authorities within the Constitution serve to discredit or deny the validity of implied powers as well? Hint: the issue has long ago been decided. From Wiki:



Hamilton’s argument also supports the assertion that the Bill of Rights imply a general right of privacy particularly as reflected in references within the First, Third Fourth and Fifth Amendments.

So where does a general acceptance of the principle of implied powers take us? As T. S. Eliot wrote, “The last temptation is the greatest treason: to do the right deed for the wrong reason.” Is Eliot right or wrong? Does it matter? Does the validity of implied powers exempt its most ardent proponents from an ethical responsibility to be bound by ANY limits by which arguably desirable implications might be rationalized, or does the principle itself argue against such limits?

Similarly, if one of the implied powers of the federal judiciary is the power and responsibility of “judicial review” for the very purpose of ensuring Constitutional harmony of legislative and other governmental acts, must not the judiciary itself be bound by parameters which constrain the scope of that review?

Does anyone here have the ability or DESIRE to discuss today’s Supreme Court decision in that context?

I predicted today’s ruling in this forum just over two weeks ago. http://forum.literotica.com/showpost.php?p=68438699&postcount=2

And earlier today I suggested that the original language of the ACA in attempting to grant tax credits for members of state originated health exchanges while denying them to members of a federal originated exchange was a violation of the Equal Protection Clause of the 14th Amendment. I was less than certain of that position, and, as it turns out, I was wise to hedge my bets. Justice Scalia’s reference to Title 26, Section 35 of the U. S. Code in his dissent to today’s opinion illustrates how states must qualify various health insurance plans in order for taxpayers to receive federal tax credits for premium payments to those plans. Thus, there is precedence for wholly volitional state action resulting in legal disparate treatment of citizens under the federal tax code.

But I’m getting ahead of myself.

While today’s ruling is not at all surprising, there is more than ample reason to be distressed by the substance of it no matter which side of the healthcare debate one happens to take. Although I was initially inclined to support the Court’s opinion as a practical matter, that support has faded dramatically upon reading the majority opinion in detail.

That is because the Court did not in any way dispute that Congress had the power to establish separate tax credit rules for state originated health exchanges while withholding those same tax credits for a health exchange established within a state by the federal government. In fact, Justice Roberts wrote precisely the opposite. “If the statutory language is plain,” he wrote, “we must enforce it according to its terms.”

And yet, the Court found ambiguity in the statutory language of Section 36B of the U. S. Code which nonetheless reserves federal tax credits (aka “premium assistance credit amount”) for those taxpayers and dependents “which were enrolled in through an Exchange established by the State under 1311 of the Patient Protection and Affordable Care Act.”

That’s not the worst of it. Having arguably found “ambiguity,” the Court thus armed itself to question Congressional legislative intent. What could Congress possibly have intended in the face of such ambiguous language as “established by the State”?

It is this linguistic gamesmanship that Justice Scalia rightly lampooned in his scathing dissent.

But it gets worse still. Legislative intent is an important element in reviewing statutory construction. It is particularly important with regard to Constitutional provisions made long ago where the full record of public and legislative debate may be less available than it once was. Consider the “necessity of a well-regulated militia” reference in the Second Amendment and the controversy around it which has ensued since its drafting.

Surely, however, it is folly to believe that such intent remains hidden from the Supreme Court with respect to a bill that was signed into law little more than five years ago. And if it was, how might you discern it? Get some Congressmen on the phone or legislative draftsman who was perhaps instrumental in authoring the controversial language in question? Nope.

Ultimately since, as Justice Roberts wrote in his summary, “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them” any or all language arguably counterintuitive to that objective was ipso facto, in the Court’s analysis, contrary to Congressional intent. In so doing, the Court looked to the language of the law as passed as the primary source of the solution to a puzzle of its own creation.

This rationale created what should have been an embarrassing attempt by the Court to “have it both ways.” For example, when petitioners argued that Congress was not worried about the effects of withholding tax credits from states with federal exchanges because, in so doing, Congress specifically intended to offer states a deal they could not possibly refuse, Justice Roberts rejected that argument as follows:



In other words, according to the Chief Justice, Congress could not have RATIONALLY INTENDED to include specific language that would have operated to the detriment of the general ACA purpose of “improving health insurance markets” but armed with the knowledge of the inevitability of a federally mandated exchange if states failed to establish one of their own, Congress COULD RATIONALLY INTEND AND DID, IN FACT, include language which they nonetheless knew to be meaningless.

That is the problem with this case. The Court neither ruled as a matter of law nor specific Congressional intent, but rather general legislative purpose, and that is not its proper role. Since that was its obvious objective that purpose would have been far better served and the Court’s reputation much less soiled had it simply refused to hear the case and let the ACA stand as enacted.

Instead, it engaged in an exercise that was neither necessary nor helpful.

I enjoyed reading this.
 
The concept of "the law" is meaningless anymore. Court cases decided on previous faulty case law on top of faulty case law means you can, under the right circumstances, in the right court get any decision desired.

There is no such thing as black letter law anymore. Words that have clear meanings are contorted beyond credulity.

This exercise of "what you should have meant" is just the latest.

But it was a banner day for the insurance industry, which is all this was ever about.

A banner day, indeed. Almost as good as the first time Roberts did his back flip.
 
I care, but our concept of law itself is faulty. They are written in faulty form with faulty execution. Life manages to transcend and subvert law in a way that should inspire humility, but instead we get hubris.

Too much IF and not enough IF > THEN

Law does over time even out and become more practical if allowed time, but fresh-signed laws are reflective of the process.

Time is the most important factor, while sausage is made.

When the wording means anything laws are excuses for judges to abuse you. I knew one judge who said her dismissal was a conviction. She said, I'M DISMISSING THE STATES CHARGES AGAINST MR. WHATSHISNAME AND ORDERING HIM TO COMPLY WITH THE CONVICTION ORDER. The guys lawyer said, YOUR HONOR, YOU JUST JUST DISMISSED THE CHARGES! SHE SAID, BUT HE NEEDS ANGER MANAGEMENT!
 
When the wording means anything laws are excuses for judges to abuse you. I knew one judge who said her dismissal was a conviction. She said, I'M DISMISSING THE STATES CHARGES AGAINST MR. WHATSHISNAME AND ORDERING HIM TO COMPLY WITH THE CONVICTION ORDER. The guys lawyer said, YOUR HONOR, YOU JUST JUST DISMISSED THE CHARGES! SHE SAID, BUT HE NEEDS ANGER MANAGEMENT!

It's all the human factor.
 
Well Col. I, like you, am not at all surprised by the decision. Or the convoluted logic used to uphold it.

I am considerably more interested in how the court handles the next case re. 'ShuckNJiveCare' coming it's way. A trap formed of their own devise. Once the court ruled that 'penalties' were in reality 'taxes', the entire Senate originated 'ShuckNJiveCare' Act was in clear violation of the Constitution.

Perhaps the court will rule that it matters not, the law was 'intended' to originate in the House.

Ishmael

I am not quite following you here. Why would an interpretation that a penalty can legally be viewed as a tax be unconstitutional? What article or amendment is violated as a result of that position?

And if the Court has already issued that ruling, in what sense is "the next case" coming their way? Is there another ACA case on which they've granted cert? I am not aware of any.
 
Yours is the Schizophrenic Interpretation. If we can imagine it, it is.

That's more the law enforcement than the judicial branch.

What we're dealing with is unintended consequences. Make a law and fail to interpret all of the offshoots of behavior and it is a bad law.

For instance, Leave No Child Behind sounded good but ended up spawning teaching a test and incentivizing cheating.

Have a rat problem? Start a bounty program...pay people for each rat tail. Then you sponsor rat farms and when you end the program, the rats are all set free, resulting in loss of revenue, time and ground.
 
In the past SCOTUS ignored the Constitution when 1) West Virginia became a state, and when they approved the illegal ratification of the 14th Amendment. That is, the States repudiated the 14th Amendment and the GOP threw all of them outta the union to have enough votes to pass the amendment. The Supremes said OK.

http://www.constitution.org/14ll/no14th.htm

So Roberts et al didn't get any cherries yesterday.

When did the Supremes say OK?

From your link:

7. Congress, in passing the 1867 law that declared the Southern States could not have their seats in either the Senate or House in the next session unless they ratified the "Fourteenth Amendment," took an unprecedented step. No such right — to compel a State by an act of Congress to ratify a constitutional amendment — is to be found anywhere in the Constitution. Nor has this procedure ever been sanctioned by the Supreme Court of the United States.

8. President Andrew Johnson publicly denounced this law as unconstitutional. But it was passed over his veto.

This is the ugly part of the law. A law, no matter how substantively onerous or unconstitutional, is still valid law until it is amended, repealed or overturned by the completed process of judicial review. That process matters. It is precisely how something as morally repugnant as slavery legally existed for nearly a century. Nor is slavery the only example within our legal history of bad law that existed for some period of time before repudiation.

The idea that a morally defective law is no law at all and need not be obeyed is a passionately inspiring philosophy which obviously undergirds principled civil disobedience, but such a notion is itself NOT law.

You and I and a legion of fellow citizens can agree that a law or government act IS unconstitutional, but our collective opinions do not carry the force of law until properly legislated or affirmed by the judiciary.

That is a fact of law. And contrary to the lunatic ravings of some on this forum, that fact does not constitute statism in the commonly understood pejoratively totalitarian sense of the word.
 
Good posts by Palamino19.

In re: the debt ceiling fiasco:

Oops, did you not realize that there are two sides to an impasse?

Sorry but this is an incredibly silly thing to say. There are not "two sides" to an impasse where one side's negotiating position is "do what we tell you or we tear everything down." You don't get to behave like that and then claim that both sides were at fault; that's not how negotiation or responsible government works. If you're comparing that to Tip O'Neill you're basically just straight-up drinking the Kool Aid, which damages your credibility in talking about politics more than just a little.
 
When did the Supremes say OK?

From your link:

7. Congress, in passing the 1867 law that declared the Southern States could not have their seats in either the Senate or House in the next session unless they ratified the "Fourteenth Amendment," took an unprecedented step. No such right — to compel a State by an act of Congress to ratify a constitutional amendment — is to be found anywhere in the Constitution. Nor has this procedure ever been sanctioned by the Supreme Court of the United States.

8. President Andrew Johnson publicly denounced this law as unconstitutional. But it was passed over his veto.

This is the ugly part of the law. A law, no matter how substantively onerous or unconstitutional, is still valid law until it is amended, repealed or overturned by the completed process of judicial review. That process matters. It is precisely how something as morally repugnant as slavery legally existed for nearly a century. Nor is slavery the only example within our legal history of bad law that existed for some period of time before repudiation.

The idea that a morally defective law is no law at all and need not be obeyed is a passionately inspiring philosophy which obviously undergirds principled civil disobedience, but such a notion is itself NOT law.

You and I and a legion of fellow citizens can agree that a law or government act IS unconstitutional, but our collective opinions do not carry the force of law until properly legislated or affirmed by the judiciary.

That is a fact of law. And contrary to the lunatic ravings of some on this forum, that fact does not constitute statism in the commonly understood pejoratively totalitarian sense of the word.

I read somewhere SCOTUS rejected every appeal of the 14th Amendment ratification. The question came up in a discussion about Andrew Johnsons impeachment. That is, Congress impeached Johnson for his refusal to appoint a political patron to a paid position, but the real reason was Johnsons veto of bills pertaining to the 14th Amendment. And that begged the question, why did no one appeal the 14th Amendment (I use begged as literal seek or solicit rather than evade). And the reply was THEY WONT HEAR IT.
 
I am not quite following you here. Why would an interpretation that a penalty can legally be viewed as a tax be unconstitutional? What article or amendment is violated as a result of that position?

And if the Court has already issued that ruling, in what sense is "the next case" coming their way? Is there another ACA case on which they've granted cert? I am not aware of any.

Oh, the ruling isn't unconstitutional at all. Look at Article I Section 7, first sentence.

The court ruled that the penalty is not a penalty but is a tax. A tax is used for the raising of revenue. "ShuckNJiveCare" originated in the Senate, not in the House.

Ishmael
 
When did the Supremes say OK?

From your link:

7. Congress, in passing the 1867 law that declared the Southern States could not have their seats in either the Senate or House in the next session unless they ratified the "Fourteenth Amendment," took an unprecedented step. No such right — to compel a State by an act of Congress to ratify a constitutional amendment — is to be found anywhere in the Constitution. Nor has this procedure ever been sanctioned by the Supreme Court of the United States.

8. President Andrew Johnson publicly denounced this law as unconstitutional. But it was passed over his veto.

This is the ugly part of the law. A law, no matter how substantively onerous or unconstitutional, is still valid law until it is amended, repealed or overturned by the completed process of judicial review. That process matters. It is precisely how something as morally repugnant as slavery legally existed for nearly a century. Nor is slavery the only example within our legal history of bad law that existed for some period of time before repudiation.

The idea that a morally defective law is no law at all and need not be obeyed is a passionately inspiring philosophy which obviously undergirds principled civil disobedience, but such a notion is itself NOT law.

You and I and a legion of fellow citizens can agree that a law or government act IS unconstitutional, but our collective opinions do not carry the force of law until properly legislated or affirmed by the judiciary.

That is a fact of law. And contrary to the lunatic ravings of some on this forum, that fact does not constitute statism in the commonly understood pejoratively totalitarian sense of the word.

http://www.barefootsworld.net/14uncon.html
 
Oh, the ruling isn't unconstitutional at all. Look at Article I Section 7, first sentence.

The court ruled that the penalty is not a penalty but is a tax. A tax is used for the raising of revenue. "ShuckNJiveCare" originated in the Senate, not in the House.

Ishmael

Okay. Distinction understood.
 

Once again, from the link:

In what is considered the leading case, Coleman v. Miller, 507 U. S. 448, 59 S. Ct. 972, the U. S. Supreme Court did not uphold the validity of the 14th Amendment.

In that case, the Court brushed aside constitutional questions as though they did not exist. For instance, the Court made the statement that:

"The legislatures of Georgia, North Carolina and South Carolina had rejected the amendment in November and December, 1866. New governments were erected in those States (and in others) under the direction of Congress. The new legislatures ratified the amendment, that of North Carolina on July 4, 1868, that of South Carolina on July 9, 1868, and that of Georgia on July 21, 1868."

You and the article's author can critique the Court's rationale or absence of it in Coleman all you want, and I will join in that critique in many respects, but to deny that that ruling had the practical affect of validating the ratification process of the 14th Amendment is to be detached from the same reality you would accuse the Court of suffering.

Again, is it bad law? It is not hard to make that case.

Is it settled law over 147 years after the fact? Yes. Most certainly.
 
Once again, from the link:



You and the article's author can critique the Court's rationale or absence of it in Coleman all you want, and I will join in that critique in many respects, but to deny that that ruling had the practical affect of validating the ratification process of the 14th Amendment is to be detached from the same reality you would accuse the Court of suffering.

Again, is it bad law? It is not hard to make that case.

Is it settled law over 147 years after the fact? Yes. Most certainly.

This is the problem with "the law." It is unrealistic of course to hope that every court gets their decisions correct as an actual matter of law. But the concept of having well established or settled law when the underpinnings were wrong leads to compounded errors.
 
I don't give a shit about the law anymore. Stops signs and red lights? Fuck that.
 
I think we're approaching a time where the law means whatever the person with the most power wants it to mean, which leads to anarchy.
 
Good posts by Palamino19.

In re: the debt ceiling fiasco:



Sorry but this is an incredibly silly thing to say. There are not "two sides" to an impasse where one side's negotiating position is "do what we tell you or we tear everything down." You don't get to behave like that and then claim that both sides were at fault; that's not how negotiation or responsible government works. If you're comparing that to Tip O'Neill you're basically just straight-up drinking the Kool Aid, which damages your credibility in talking about politics more than just a little.

The House of Representative has absolute authority over the purse. The Democrats wisely used it to shut down the Vietnam War. Was that unreasonable?

The other side of this impasse that you are not getting is that what they said was do exactly as we say no compromise or we will allow it to be shut down and we will Blame you. In fact we prefer that it be shut down so that we can blame you as a campaign issue.

You're blundering into a Mexican standoff and pointing 21 guys gone insane how dare you. That gun at the other side.

In this case the Republicans were using( badly I might add) the leverage granted to them specifically by the Constitution. The administration and the Senate were using a bluff and the threat of bad publicity. They have no constitutional authority to have any say over the purse, period.

I get that you would have upset that your side was going to lose if the other side prevailed however your side was not holding the cards. The fact that the Republicans chose to fold does not indicate the administration blackmailing them into demanding that the administration continued to spend unfettered.

Either the house has the power of the purse. Or it does not. Republicans had an overwhelming majority in the House. Assuming the next Republican president takes the exact same actions, and the next Republican Senate leader with a Democratic House and demands that the house presents a quote unquote passable bill and demands that the president's priorities for spending or spending cuts be met are you going to be cool with that? Doubt it.
 
This is the problem with "the law." It is unrealistic of course to hope that every court gets their decisions correct as an actual matter of law. But the concept of having well established or settled law when the underpinnings were wrong leads to compounded errors.

Admittedly and regrettably true, but I do not believe that reality justifies a wholesale disrespect for the law or the courts.

I'm not accusing you of that mindset, understand; just commenting on what seems to be a general trend.
 
You might want to try diagramming the second amendment. If you do it properly, according to the rules of English, you will find that the sentence protects BOTH the collective (Militia clause) and individual (the people clause) rights from infringement.

Ishmael

You are proving my point. Application of the law is not about sentence diagramming. The context is clearly that the individual right to bear arms is protected insofar as their participation in a militia is in the interest of the state. Not so that every stick up artist, gang banger, doomsday prepper and psychopath can slaughter our citizens.
 
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