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

[Colonel Hogan]

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:

Implied powers, in the United States, are those powers authorized by a document (from the Constitution) that, while not stated, seem to be implied by powers expressly stated. When George Washington asked Alexander Hamilton to defend the constitutionality of the First Bank of the United States against the protests of Thomas Jefferson, James Madison, and Attorney General Edmund Randolph, Hamilton produced what has now become the classic statement for implied powers. Hamilton argued that the sovereign duties of a government implied the right to use means adequate to its ends. Although the United States government was sovereign only as to certain objects, it was impossible to define all the means which it should use, because it was impossible for the founders to anticipate all future exigencies. Hamilton noted that the "general welfare clause" and the "necessary and proper clause" gave elasticity to the constitution. Hamilton won the argument with Washington, who signed his Bank Bill into law.

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:

“Section 18041 refutes the argument that Congress believed it was offering the States a deal they would not refuse. That section provides that, if a State elects not to establish an Exchange, the Secretary “shall . . . establish and operate such Exchange within the State.” 42 U. S. C. §18041(c)(1)(A). The whole point of that provision is to create a federal fallback in case a State chooses not to establish its own Exchange. Contrary to petitioners’ argument, Congress did not believe it was offering States a deal they would not refuse — it expressly addressed what would happen if a State did refuse the deal.”

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.

 

[BoyNextDoor]

"...the law supposes that your wife acts under your direction".

"If the law supposes that," said Mr. Bumble, squeezing his hat emphatically in both hands, "the law is a ass - a idiot".

I think that about sums it up.

 

[Conager]

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.

 

[eyer]

Or in the case of idiot extremists like Eyer...

Allow that starving ego to bellow once more of how you have me on ignore...

...but, in fact, read my every word.

You should really failingly fumble around instead with Scalia's truly marvelous dissent...

...so you can show us all in real time what a pitiful lemming of the collective you truly are.

Just like you, Corporal RINO Butthurt, the Court has now fully shown it's politically-correct, popularity statist panties for all to see...

...today marked a turning day where it will never again - most deservedly - be seen for anything but for the partisanly corrupt branch of absolutely corrupt government it has become.

The republic is lost...

...the Supremes now plainly sing the USSA's tune.

 

[Aglaopheme]

Is it wrong that all of that just got me wet?

 

[CyranoJ]

The case was an incredibly naked, obvious last-ditch attempt to kill the ACA by brute technicality. That the SCOTUS refused to play along in this instance is to its credit. Choosing to allow its interpretive brief to be used essentially as a Technicality Cudgel, against the extremely clear intention of a piece of legislation, would have been the real abuse of power.

Not that it's a good thing that the legislation as drafted was even potentially vulnerable to this absurd gambit, of course. It isn't, and that speaks to the incredibly Byzantine process in which it was drafted and passed. But that's really a problem of the over-the-top partisan insanity in whose teeth the whole legislative effort proceeded; the SCOTUS simply chose this time to decline to join in that insanity, it can't of course resolve the broader issue of broken politics in Congress and can only attempt to act sensibly on what it is given.

This of course is what truly pisses Scalia off, since he has certainly never been hesitant to abuse the Court's power and stretch its interpretive brief absurdly when doing so favoured some pet wingnut cause or partisan interest (Citizens United, Hobby Lobby, Bush v. Gore). Watching the likes of him talk about the Court's "proper role" is like watching neo-Confederates fantasize about how the Civil War was all about "state's rights." There have been days to wonder darkly about how the power of the SCOTUS is being used, and what for, and what its future implications might be; this simply isn't one of them.

 

[BoyNextDoor]

Is it wrong that all of that just got me wet?

so. very. wrong.

 

[eyer]

Scalia's Best Burns...

1) “The Court holds that when the Patient Protection and Affordable Care Act says ‘Exchange established by the State’ it means ‘Exchange established by the State or the Federal Government.’ That is of course quite absurd, and the Court’s 21 pages of explanation make it no less so.”

2) “This case requires us to decide whether someone who buys insurance on an Exchange established by the Secretary gets tax credits. You would think the answer would be obvious—so obvious there would hardly be a need for the Supreme Court to hear a case about it. In order to receive any money under §36B, an individual must enroll in an insurance plan through an ‘Exchange established by the State.’ The Secretary of Health and Human Services is not a State. So an Exchange established by the Secretary is not an Exchange established by the State—which means people who buy health insurance through such an Exchange get no money under §36B.”

3) “Words no longer have meaning if an Exchange that is not established by a State is ‘established by the State.’”

4) “Under all the usual rules of interpretation, in short, the Government should lose this case. But normal rules of interpretation seem always to yield to the overriding principle of the present Court: The Affordable Care Act must be saved.”

5) “The Court interprets §36B to award tax credits on both federal and state Exchanges. It accepts that the ‘most natural sense’ of the phrase ‘Exchange established by the State’ is an Exchange established by a State. Ante, at 11. (Understatement, thy name is an opinion on the Afford- able Care Act!) Yet the opinion continues, with no semblance of shame, that ‘it is also possible that the phrase refers to all Exchanges—both State and Federal.’ Ante, at 13. (Impossible possibility, thy name is an opinion on the Affordable Care Act!)”

6) “Today’s interpretation is not merely unnatural; it is unheard of. Who would ever have dreamt that ‘Exchange established by the State’ means ‘Exchange established by the State or the Federal Government’?”

7) … “’State’ means ‘each of the 50 States and the District of Columbia.’ 42 U. S. C. §18024(d). Because the Secretary is neither one of the 50 States nor the District of Columbia, that definition positively contradicts the eccentric theory that an Exchange established by the Secretary has been established by the State.”

8) “It is bad enough for a court to cross out ‘by the State’ once. But seven times?”

9) “It is probably piling on to add that the Congress that wrote the Affordable Care Act knew how to equate two different types of Exchanges when it wanted to do so. The Act includes a clause providing that ‘[a] territory that . . . establishes . . . an Exchange . . . shall be treated as a State’ for certain purposes. §18043(a) (emphasis added). Tellingly, it does not include a comparable clause providing that the Secretary shall be treated as a State for purposes of §36B when she establishes an Exchange.”

10) “Faced with overwhelming confirmation that ‘Exchange established by the State’ means what it looks like it means, the Court comes up with argument after feeble argument to support its contrary interpretation. None of its tries comes close to establishing the implausible con- clusion that Congress used ‘by the State’ to mean ‘by the State or not by the State.’”

11) “The Court’s next bit of interpretive jiggery-pokery involves other parts of the Act that purportedly presuppose the availability of tax credits on both federal and state Exchanges.”

12) “Pure applesauce.”

13) “For its next defense of the indefensible, the Court turns to the Affordable Care Act’s design and purposes.”

14) “Having gone wrong in consulting statutory purpose at all, the Court goes wrong again in analyzing it.”

15) “Perhaps sensing the dismal failure of its efforts to show that ‘established by the State’ means ‘established by the State or the Federal Government,’ the Court tries to palm off the pertinent statutory phrase as ‘inartful drafting.’”

16) “The Court’s decision reflects the philosophy that judges should endure whatever interpretive distortions it takes in order to correct a supposed flaw in the statutory machinery. That philosophy ignores the American people’s decision to give Congress ‘[a]ll legislative Powers’ enumerated in the Constitution. Art. I, §1. They made Congress, not this Court, responsible for both making laws and mending them. This Court holds only the judicial power—the power to pronounce the law as Congress has enacted it. We lack the prerogative to repair laws that do not work out in practice, just as the people lack the ability to throw us out of office if they dislike the solutions we concoct. We must always remember, therefore, that ‘[o]ur task is to apply the text, not to improve upon it.’”

17) “More importantly, the Court forgets that ours is a government of laws and not of men. That means we are governed by the terms of our laws, not by the unenacted will of our lawmakers.”

18) What a parody today’s decision makes of Hamilton’s assurances to the people of New York: ‘The legislature not only commands the purse but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over . . . the purse; no direction . . . of the wealth of society, and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL but merely judgment.”

19) “Having transformed two major parts of the law, the Court today has turned its attention to a third. The Act that Congress passed makes tax credits available only on an ‘Exchange established by the State.’ This Court, however, concludes that this limitation would prevent the rest of the Act from working as well as hoped. So it rewrites the law to make tax credits available everywhere. We should start calling this law SCOTUScare.”

20) “Perhaps the Patient Protection and Affordable Care Act will attain the enduring status of the Social Security Act or the Taft-Hartley Act; perhaps not. But this Court’s two decisions on the Act will surely be remembered through the years. The somersaults of statutory interpretation they have performed (‘penalty’ means tax, ‘further [Medicaid] payments to the State’ means only incremental Medicaid payments to the State, ‘established by the State’ means not established by the State) will be cited by litigants endlessly, to the confusion of honest jurisprudence. And the cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites.”

21) “I dissent.”

http://thefederalist.com/2015/06/25...aw-scotuscare-and-20-other-epic-scalia-burns/

 

[Aglaopheme]

Scalia is the epitome of low hanging fruit. I may be a tad less jaded on this day because of the 6-3 decision.

 

[Aglaopheme]

so. very. wrong.

Trying to type with my hand over my eye, head down....I can't help it.....

 

[eyer]

Scalia is the epitome of low hanging fruit. I may be a tad less jaded on this day because of the 6-3 decision.

Actually, the lowest hanging fruit in this regard...

...is the bozo who simply favors a decision because it goes the way it feels.

 

[Aglaopheme]

Or the bozo that only cut and pastes a reply on a thread of well though out, well informed, and well formed opinions.

I could be a bozo here too but at least my words were my own and were true.

 

[Colonel Hogan]

The case was an incredibly naked, obvious last-ditch attempt to kill the ACA by brute technicality. That the SCOTUS refused to play along in this instance is to its credit. Choosing to allow its interpretive brief to be used essentially as a Technicality Cudgel, against the extremely clear intention of a piece of legislation, would have been the real abuse of power.

Not that it's a good thing that the legislation as drafted was even potentially vulnerable to this absurd gambit, of course. It isn't, and that speaks to the incredibly Byzantine process in which it was drafted and passed. But that's really a problem of the over-the-top partisan insanity in whose teeth the whole legislative effort proceeded; the SCOTUS simply chose this time to decline to join in that insanity, it can't of course resolve the broader issue of broken politics in Congress and can only attempt to act sensibly on what it is given.

I beg to differ. The Court "played along" by the simple act of hearing the case. I would not quibble with your characterization that the petition was an attempt to kill the ACA by "brute technicality." And that is precisely the type of controversy that the Court does itself no favor by consenting to "resolve."

"Acting sensibly" would have meant tossing the petition in the trash and allowing the law -- it was signed by the President, remember? -- and the IRS rule allowing tax credits for the federally mandated exchanges to continue unscathed.

Never mind issuing a transparently gratuitous opinion. No pressing public need was served that the Court could not have better met through its silence.

 

[Palamino19]

The original post is quite interesting.

My only response is that it is not the supreme court's role to make their decision in any particular way, there are multiple interpretations that could all make a case lose or win.

They chose a different route than what others would have wanted, but their route still won the vote.

Additionally, they are not ruling on the law, they are ruling on the case presented to them.

This is not a refutation of the original post, merely saying, they made their decision based on the case, it is not entirely unprecedented, and that is that for now.

 

[eyer]

I could be a bozo here too but at least my words were my own and were true.

"true" of your own feelings, I have no doubt...

...will you next insist that you feel, too, that you're an independent thinker, and not a progressive partisan hack at all?

 

[eyer]

I beg to differ. The Court "played along" by the simple act of hearing the case. I would not quibble with your characterization that the petition was an attempt to kill the ACA by "brute technicality." And that is precisely the type of controversy that the Court does itself no favor by consenting to "resolve."

"Acting sensibly" would have meant tossing the petition in the trash and allowing the law -- it was signed by the President, remember? -- and the IRS rule allowing tax credits for the federally mandated exchanges to continue unscathed.

Never mind issuing a transparently gratuitous opinion. No pressing public need was served that the Court could not have better met through its silence.

You're actually pissed that the majority showed its partisan ass by ruling...

...rather than not showing it by keeping silent?

Too friggin' rich...

 

[CyranoJ]

I beg to differ. The Court "played along" by the simple act of hearing the case. I would not quibble with your characterization that the petition was an attempt to kill the ACA by "brute technicality." And that is precisely the type of controversy that the Court does itself no favor by consenting to "resolve."

"Acting sensibly" would have meant tossing the petition in the trash and allowing the law -- it was signed by the President, remember? -- and the IRS rule allowing tax credits for the federally mandated exchanges to continue unscathed.

Well, there's a case to made for that view, granted. Except that the SCOTUS weighing in unmistakable fashion does arguably discourage further feckless and irresponsible challenges to (and attempts to gut) the law, which do after all cost time and money that could be otherwise spent. That kind of shaping of the landscape of court and legal processes is part of a Supreme Court's purpose and the most basic reason for it to agree to hear cases; and given the amount of time and resources that ACA's opponents are clearly prepared to expend in attempts to sink it, consequences be damned, I would argue against the proposition that its hearing this case or issuing a ruling on it was "gratuitous" in this instance. The "gratuitous" business was already happening and would have continued to clog the court system downriver in absence of a clear signal not to bother.

 

[snugglestruggle]

In the light of todays SCOTUS decision, NO is the new YES.

 

[Aglaopheme]

Yes, you're right every partisan hack is here talking about getting off on reading opinions on an important decision by the Supreme Court. I 100% agree with you. Have a grand evening. Now both of us ought to quite cluttering up this thread. Agreed?

 

[Colonel Hogan]

The original post is quite interesting.

My only response is that it is not the supreme court's role to make their decision in any particular way, there are multiple interpretations that could all make a case lose or win.

They chose a different route than what others would have wanted, but their route still won the vote.

Additionally, they are not ruling on the law, they are ruling on the case presented to them.

This is not a refutation of the original post, merely saying, they made their decision based on the case, it is not entirely unprecedented, and that is that for now.

The only point I would make to you is that the Supreme Court MUST rule on matters of law PRIMARILY. They are an appellate court. The final one in the federal appeals process. That is ALL appellate courts typically do.

The original jurisdiction of the U.S. Supreme Court is specifically limited to that stipulated in Article III, Section 2 of the United States Constitution and Title 28 of the United States Code, section 1251.

In criminal cases, for example, the Supreme Court has absolutely no authority to overturn a verdict of guilt or innocence based on the factual evidence adjudicated at trial. Criminals "win" appeals and are granted new trials based solely on reversible errors in the judicial process.

 

[Colonel Hogan]

Yes, you're right every partisan hack is here talking about getting off on reading opinions on an important decision by the Supreme Court. I 100% agree with you. Have a grand evening. Now both of us ought to quite cluttering up this thread. Agreed?

Wait. Before you go.....just how wet are you?

 

[Aglaopheme]

You've no idea....

I'm just gonna sit in the kiddie pool and watch and learn and yearn.....by all means....carry on.....please?

 

[CyranoJ]

Wait. Before you go.....just how wet are you?

Is there an appropriate unit of measurement?

Borneos? Cythereas?

Zoolanders?

 

[Palamino19]

The only point I would make to you is that the Supreme Court MUST rule on matters of law PRIMARILY. They are an appellate court. The final one in the federal appeals process. That is ALL appellate courts typically do.

The original jurisdiction of the U.S. Supreme Court is specifically limited to that stipulated in Article III, Section 2 of the United States Constitution and Title 28 of the United States Code, section 1251.

In criminal cases, for example, the Supreme Court has absolutely no authority to overturn a verdict of guilt or innocence based on the factual evidence adjudicated at trial. Criminals "win" appeals and are granted new trials based solely on reversible errors in the judicial process.

I know this, but there is a distinction, which it is clear you know. They cannot judge on the law based on itself, they are generally solely judging the legal framework of that case as it has been handled so far in courts.

A lot of people don't get this fact. No new evidence. The reality is, they are judging on procedure, not broadly judging on the law except where previous procedure has made that possible, which is not all that common.

 

[Aglaopheme]

Darn it! I'm still here cheapen this discussion. Yes there is. Depending on ones attire or lack there of. The size of the wet spot or the degree to which it'll drip. The direction all depends on the position. Down the thighs, towards the.....I can't......sorry OP and everyone else contributing in a meaningful fashion here. Going quietly into lurk mode.