Two Years On: Obamacare

Neither of those laws would be upheld, no matter how the ACA case turns out. Both are textbook violations of the First Amendment.

9-0. In fact, they would never get cert because every single Court of Appeals would strike them down.

That said, the federal government can and has used the spending power to attach conditions to federal dollars at least peripherally related to speech. Rust v. Sullivan is the big one, an abortion-related case.

 

If it is 9-0 in favor of Obamacare it would certainly put an end to idea that The Supreme Court is political.

 

Your real Bill of Rights battle is going to be with regards to shaping the contours of the Second Amendment. For years, you could argue, gun control laws are attempts to intrude on the Bill of Rights.

 

I think if the majority gets Scalia, even if it's 6-3 or 5-4, it would be tough to complain about a politically motivated decision.

 

If inaction can really be action, and a tax isn't a tax, and a mandate isn't a mandate, then I don't see why compulsion to speech has to be restriction on speech.

 

To answer Mizzou from way back --

It depends on how it was struck down.

If the mandate was severed and struck, they'd likely try to pass a simple bill that called the mandate a tax.

The GOP would block.

The rest is implemented, and then the insurance industry goes absolutely berserk.

 

I've missed a lot of the discussion since last night, but a few notes:

1. Dooley, I'm really not sure about the constitutionality. I don't like the ACA, but I'm generally predisposed to think it's constitutional. But I'm not sure about this for the reasons I've stated. I'm not hiding the ball or trying to fit an argument to create an outcome. Before reading Bond v. U.S. and Randy Barnett's briefs, I thought it was safe, 7-2. Now I'm not so sure.

2. Dick, I don't even know if the tax argument will get four votes, let alone five. There are several reasons reason why this likely won't be considered a tax. First, it's not intended to raise revenue, but rather influence actions (according to Justice Ginsburg). Second, it would allow the government to impose a national law by making all the penalties monetary — so long as it is collected through Title 26 of the U.S. Code. Even some of the "liberal" justices won't want that outcome.

 

Oh I agree with you. But keep in mind that I am decidedly an amateur at this. I am sure professionals could come up with much more nuanced versions that would (or perhaps could) potentially pass muster. So ultimately we're at a place where the "it's a tax" and "that's what elections are for" justification obtains. And then that whole First Amendment thingy's much less of the bulwark of freedom it was intended to be.

 

Assuming that "other" or "no religion" are options, how is the second a First Amendment violation? Has the Supreme Court ever held that compelled speech to the government is a violation of the First Amendment?

(And Rust v. Sullivan might best be seen as an issue of Congress determining what cannot be said when someone is employed as a contractor for the government.)

 

When the judges are saying things like "You don't expect us to read all of this?" I get the sense that it will be all or nothing. I could be wrong.

If the whole thing gets thrown out, I'd going to be very curious how that impacts November's election. I think it might actually hurt republicans who wouldn't be able to say, "You need to elect me so I can strike down Obamacare!"

If it gets thrown out and Obama wins, does he try to wait and see if he gets a majority again? I don't think he'll ever have the advantage in the Senate that he had when this got passed.

 

Well, here's the thing. Without getting us too far afield...

There's a way to do it, but it involves a lot of risk and, also, buy in from Democratic Senators -- and buy in to them losing some of their individual power. Not easy to do. We're talking a massive, massive whip operation... So this is far-fetched, but this is how it could be done.

Senate rules are adopted by a new Senate by just passing all the previous rules Senates have adopted. So on the first day of a new Senate, only 50+1 vote is required to do anything.

If the Dems narrowly hold the Senate -- say 51-49 or even 50-50 +Biden... You might be able to convince the Dems to rejigger the rules on the opening day to tailor the filibuster more narrowly. And then, if you took the House, you might could get an amendment through on a party line vote.

Alternatively, you could stick the amendment in a Budget resolution, which has different filibuster rules.

Those are the only avenues I can see. You'd have to hold all three chambers and you'd have to do some parliamentary dancing.