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It's quite funny that past arguments on why the mandate is not severable from the rest of the bill comes back to haunt the bill's supporters.
On December 16 2018 01:41 xDaunt wrote:Show nested quote +On December 16 2018 01:16 xDaunt wrote:
This judge’s decision striking Obamacare is quite interesting. He reasons 1) Obamacare was only upheld as being constitutional on the grounds that it is a tax, 2) the removal of the individual mandate removes the tax, and 3) Obamacare is not constitutional under the commerce clause per the hybrid majority opinion from the first Obamacare case. I should be more precise in my explanation of 2) above. Congress’s removal of the penalty associated with the individual mandate is what removes the tax status of Obamacare. EDIT: I just finished reading through the opinion. It is remarkably well-written and well-reasoned. Obamacare is dead. I have no doubt that the case will make its way back up to the Supreme Court, but the result is going to be the same. In fact, some of the liberal justices will likely join the conservative majority.
I wish I were as optimistic as you are, but I think Roberts and Kavanaugh will find a way to justify the new 0-tax as still a tax, or that the mandate suddenly functions as severable even though Congress said it was not 
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On December 16 2018 04:24 Danglars wrote:It's quite funny that past arguments on why the mandate is not severable from the rest of the bill comes back to haunt the bill's supporters. Show nested quote +On December 16 2018 01:41 xDaunt wrote:On December 16 2018 01:16 xDaunt wrote:
This judge’s decision striking Obamacare is quite interesting. He reasons 1) Obamacare was only upheld as being constitutional on the grounds that it is a tax, 2) the removal of the individual mandate removes the tax, and 3) Obamacare is not constitutional under the commerce clause per the hybrid majority opinion from the first Obamacare case. I should be more precise in my explanation of 2) above. Congress’s removal of the penalty associated with the individual mandate is what removes the tax status of Obamacare. EDIT: I just finished reading through the opinion. It is remarkably well-written and well-reasoned. Obamacare is dead. I have no doubt that the case will make its way back up to the Supreme Court, but the result is going to be the same. In fact, some of the liberal justices will likely join the conservative majority. I wish I were as optimistic as you are, but I think Roberts and Kavanaugh will find a way to justify the new 0-tax as still a tax, or that the mandate suddenly functions as severable even though Congress said it was not
If it's not severable, 2017 Congress couldn't repeal it, no? They would've needed 60 votes, and couldn't use reconciliation.
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On December 16 2018 03:02 GreenHorizons wrote:Show nested quote +On December 16 2018 02:58 xDaunt wrote:
All of these foreign collusion narratives as they pertain to Trump and his team are patently retarded. That much has been obvious for a very long time. The best explanation that I have heard for why Mueller and the DOJ have pushed it so hard is that they are trying to create a post hoc rationalization for having abused NSA surveillance on Trump and his team for political reasons. This is the essence of what Nunez was highlighting during his press conference last year. If the worst thing that happens after our intelligence agencies illegally spy on a presidential candidate (let alone a president if that's the case) is that they lose their jobs (they probably would have lost anyway) enough for you to want to take away their ability to do it, or are you still willing to sacrifice that liberty for the security you think it provides?
Bush era democrats (rank and file) and libertarians were right about this issue and Republicans generally got bamboozled. It sounds sh***y that it took me until it got turned against "my guys" for me to realize that but it is what it is.
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On December 16 2018 04:51 ReditusSum wrote:Show nested quote +On December 16 2018 03:02 GreenHorizons wrote:On December 16 2018 02:58 xDaunt wrote:
All of these foreign collusion narratives as they pertain to Trump and his team are patently retarded. That much has been obvious for a very long time. The best explanation that I have heard for why Mueller and the DOJ have pushed it so hard is that they are trying to create a post hoc rationalization for having abused NSA surveillance on Trump and his team for political reasons. This is the essence of what Nunez was highlighting during his press conference last year. If the worst thing that happens after our intelligence agencies illegally spy on a presidential candidate (let alone a president if that's the case) is that they lose their jobs (they probably would have lost anyway) enough for you to want to take away their ability to do it, or are you still willing to sacrifice that liberty for the security you think it provides? Bush era democrats (rank and file) and libertarians were right about this issue and Republicans generally got bamboozled. It sounds sh***y that it took me until it got turned against "my guys" for me to realize that but it is what it is.
It might be immensely productive to turn a critical eye on more views that might also fit that sort of hindsight perspective. A preventative strategy toward finding out the way you did on this may make a critical difference in being able to do something about it.
The potential to do something about invasive domestic surveillance may have passed since many of the Democrats opinions have seen a comparable shift in the opposite direction.
EDIT: Funny tidbit for your discussion in the thread: Even if they convicted Trump and put him in jail that wouldn't overcome their core problem which is Republicans willing to sacrifice their seat to impeach Trump. So we would effectively have Trump being president from a cell.
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On December 16 2018 04:50 ChristianS wrote:Show nested quote +On December 16 2018 04:24 Danglars wrote:It's quite funny that past arguments on why the mandate is not severable from the rest of the bill comes back to haunt the bill's supporters. On December 16 2018 01:41 xDaunt wrote:On December 16 2018 01:16 xDaunt wrote:
This judge’s decision striking Obamacare is quite interesting. He reasons 1) Obamacare was only upheld as being constitutional on the grounds that it is a tax, 2) the removal of the individual mandate removes the tax, and 3) Obamacare is not constitutional under the commerce clause per the hybrid majority opinion from the first Obamacare case. I should be more precise in my explanation of 2) above. Congress’s removal of the penalty associated with the individual mandate is what removes the tax status of Obamacare. EDIT: I just finished reading through the opinion. It is remarkably well-written and well-reasoned. Obamacare is dead. I have no doubt that the case will make its way back up to the Supreme Court, but the result is going to be the same. In fact, some of the liberal justices will likely join the conservative majority. I wish I were as optimistic as you are, but I think Roberts and Kavanaugh will find a way to justify the new 0-tax as still a tax, or that the mandate suddenly functions as severable even though Congress said it was not If it's not severable, 2017 Congress couldn't repeal it, no? They would've needed 60 votes, and couldn't use reconciliation.
Severability is within the text and for courts, not any kind of determination on what Congress can and can't do. You're just talking about the restrictions from the Byrd Rule on budget reconciliation bills.
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On December 16 2018 04:24 Danglars wrote:It's quite funny that past arguments on why the mandate is not severable from the rest of the bill comes back to haunt the bill's supporters. Show nested quote +On December 16 2018 01:41 xDaunt wrote:On December 16 2018 01:16 xDaunt wrote:
This judge’s decision striking Obamacare is quite interesting. He reasons 1) Obamacare was only upheld as being constitutional on the grounds that it is a tax, 2) the removal of the individual mandate removes the tax, and 3) Obamacare is not constitutional under the commerce clause per the hybrid majority opinion from the first Obamacare case. I should be more precise in my explanation of 2) above. Congress’s removal of the penalty associated with the individual mandate is what removes the tax status of Obamacare. EDIT: I just finished reading through the opinion. It is remarkably well-written and well-reasoned. Obamacare is dead. I have no doubt that the case will make its way back up to the Supreme Court, but the result is going to be the same. In fact, some of the liberal justices will likely join the conservative majority. I wish I were as optimistic as you are, but I think Roberts and Kavanaugh will find a way to justify the new 0-tax as still a tax, or that the mandate suddenly functions as severable even though Congress said it was not
They can’t still call it a tax. They could only justify it as a tax previously because of the revenue component. That’s the beauty of this decision. The judge took their reasoning and reapplied it directly to the new circumstances. The four liberal justices may still say it is permissible on commerce clause grounds, but I can’t imagine them calling it a tax.
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On December 16 2018 04:50 ChristianS wrote:Show nested quote +On December 16 2018 04:24 Danglars wrote:It's quite funny that past arguments on why the mandate is not severable from the rest of the bill comes back to haunt the bill's supporters. On December 16 2018 01:41 xDaunt wrote:On December 16 2018 01:16 xDaunt wrote:
This judge’s decision striking Obamacare is quite interesting. He reasons 1) Obamacare was only upheld as being constitutional on the grounds that it is a tax, 2) the removal of the individual mandate removes the tax, and 3) Obamacare is not constitutional under the commerce clause per the hybrid majority opinion from the first Obamacare case. I should be more precise in my explanation of 2) above. Congress’s removal of the penalty associated with the individual mandate is what removes the tax status of Obamacare. EDIT: I just finished reading through the opinion. It is remarkably well-written and well-reasoned. Obamacare is dead. I have no doubt that the case will make its way back up to the Supreme Court, but the result is going to be the same. In fact, some of the liberal justices will likely join the conservative majority. I wish I were as optimistic as you are, but I think Roberts and Kavanaugh will find a way to justify the new 0-tax as still a tax, or that the mandate suddenly functions as severable even though Congress said it was not If it's not severable, 2017 Congress couldn't repeal it, no? They would've needed 60 votes, and couldn't use reconciliation.
Severability is a judicial doctrine. It doesn’t bind the legislature.
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On December 16 2018 03:16 ChristianS wrote:
I will ask this about O'Connor's opinion, though. The 2017 repeal claimed to be limited to just the individual mandate. Otherwise, they couldn't have passed it by reconciliation. So if O'Connor figures the individual mandate is inseparable, why is it not the 2017 repeal being thrown out? Apparently the 2012 Congress's actions were constitutional, while the 2017 Congress's actions were not; so why throw out the 2012 Congress's bill just to make the 2017 Congress's bill fit within the constitution again? Hell, couldn't a liberal justice argue just as plausibly that it's the 2017 tax bill, not Obamacare, that was unconstitutional and inseparable, and therefore must be thrown out in its entirety?
I'm not an expert in this, but I believe that the answer lies in the rules of statutory construction. The judiciary is somewhat limited in how it can interpret statutes and what it can do with them.
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On December 16 2018 05:31 xDaunt wrote:Show nested quote +On December 16 2018 04:50 ChristianS wrote:On December 16 2018 04:24 Danglars wrote:It's quite funny that past arguments on why the mandate is not severable from the rest of the bill comes back to haunt the bill's supporters. On December 16 2018 01:41 xDaunt wrote:On December 16 2018 01:16 xDaunt wrote:
This judge’s decision striking Obamacare is quite interesting. He reasons 1) Obamacare was only upheld as being constitutional on the grounds that it is a tax, 2) the removal of the individual mandate removes the tax, and 3) Obamacare is not constitutional under the commerce clause per the hybrid majority opinion from the first Obamacare case. I should be more precise in my explanation of 2) above. Congress’s removal of the penalty associated with the individual mandate is what removes the tax status of Obamacare. EDIT: I just finished reading through the opinion. It is remarkably well-written and well-reasoned. Obamacare is dead. I have no doubt that the case will make its way back up to the Supreme Court, but the result is going to be the same. In fact, some of the liberal justices will likely join the conservative majority. I wish I were as optimistic as you are, but I think Roberts and Kavanaugh will find a way to justify the new 0-tax as still a tax, or that the mandate suddenly functions as severable even though Congress said it was not If it's not severable, 2017 Congress couldn't repeal it, no? They would've needed 60 votes, and couldn't use reconciliation. Severability is a judicial doctrine. It doesn’t bind the legislature.
But the point is that Congress couldn't pass A (ACA repeal), so they pass B (just individual mandate repeal). The court says B is unconstitutional, and reinterprets it as A. But since Congress couldn't pass A, literally the only way to get this outcome is for them to pass something unconstitutional and hand off the baton to the courts saying "here, you'll have to do the rest."
You get how this is blatantly abuses the notion of democratic rule, right? The court has effectively been drafted into enacting policy which Congress wanted to pass but couldn't find the votes.
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On December 16 2018 06:56 ChristianS wrote:Show nested quote +On December 16 2018 05:31 xDaunt wrote:On December 16 2018 04:50 ChristianS wrote:On December 16 2018 04:24 Danglars wrote:It's quite funny that past arguments on why the mandate is not severable from the rest of the bill comes back to haunt the bill's supporters. On December 16 2018 01:41 xDaunt wrote:On December 16 2018 01:16 xDaunt wrote:
This judge’s decision striking Obamacare is quite interesting. He reasons 1) Obamacare was only upheld as being constitutional on the grounds that it is a tax, 2) the removal of the individual mandate removes the tax, and 3) Obamacare is not constitutional under the commerce clause per the hybrid majority opinion from the first Obamacare case. I should be more precise in my explanation of 2) above. Congress’s removal of the penalty associated with the individual mandate is what removes the tax status of Obamacare. EDIT: I just finished reading through the opinion. It is remarkably well-written and well-reasoned. Obamacare is dead. I have no doubt that the case will make its way back up to the Supreme Court, but the result is going to be the same. In fact, some of the liberal justices will likely join the conservative majority. I wish I were as optimistic as you are, but I think Roberts and Kavanaugh will find a way to justify the new 0-tax as still a tax, or that the mandate suddenly functions as severable even though Congress said it was not If it's not severable, 2017 Congress couldn't repeal it, no? They would've needed 60 votes, and couldn't use reconciliation. Severability is a judicial doctrine. It doesn’t bind the legislature. But the point is that Congress couldn't pass A (ACA repeal), so they pass B (just individual mandate repeal). The court says B is unconstitutional, and reinterprets it as A. But since Congress couldn't pass A, literally the only way to get this outcome is for them to pass something unconstitutional and hand off the baton to the courts saying "here, you'll have to do the rest." You get how this is blatantly abuses the notion of democratic rule, right? The court has effectively been drafted into enacting policy which Congress wanted to pass but couldn't find the votes.
No, it does not abuse democratic rule. If the legislators are too dumb to understand the significance of what they pass (some of the people who opposed repealing voting for Obamacare voted for removing the penalty), that’s on them. The courts have to take what is given to them. They are not supposed to legislate.
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ChristianS, also keep in mind that Congress did not repeal the mandate. The mandate is still there. The penalty-tax (following subsection) is set to zero. Had Congress actually repealed, this ruling and entire case wouldn’t have existed.
See the problem with calling it a repeal?
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ChristianS doesn't care about the nuance so much as the ultimate result: the effective repeal of Obamacare. There's nothing undemocratic about what happened. Obamacare was a terrible law when it was passed. The Supreme Court had to bend itself into a pretzel to save it. Congress inadvertently knocked out the underpinnings of how the law was saved. And now Obamacare is gone, and Congress is free to create something new and better to replace it.
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I could be missing something here but my understanding of NFIB v. Sebelius was that the only thing found unconstitutional about Obamacare was the individual mandate. Now that the individual mandate is gone, there is no longer any provision of ACA that violates the commerce clause. So presumably the judges decision is not that the law is unconstitutional (that would be a pretty stupid argument). His decision is that Congress cant sever the mandate, and therefore if Congress attempts to sever it, his job is to strike down the whole law rather than hold that the act of severing one part of it must be reversed. In other words his opinion says that when congress severs one part of a statute even though it cant do so, that means the whole statute has been repealed by Congress? Or alternatively, when Congress severs one part of a statute even though it cant do so, the remainder of the statute is unconstitutional? This doesnt strike me as an impeccable argument.
EDIT: Ah, looks like it has to do with the mandate and the penalty being two different things. Nonetheless if Congress lacks the power to sever those two, it would seem that the court would need to hold that congress' act of severing them was unlawful, and therefore they are now no longer severed. There has to be precedent on that exact issue.
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On December 16 2018 08:20 Doodsmack wrote:
I could be missing something here but my understanding of NFIB v. Sebelius was that the only thing found unconstitutional about Obamacare was the individual mandate. Now that the individual mandate is gone, there is no longer any provision of ACA that violates the commerce clause. So presumably the judges decision is not that the law is unconstitutional (that would be a pretty stupid argument). His decision is that Congress cant sever the mandate, and therefore if Congress attempts to sever it, his job is to strike down the whole law rather than hold that the act of severing one part of it must be reversed. In other words his opinion says that when congress severs one part of a statute even though it cant do so, that means the whole statute has been repealed by Congress? Or alternatively, when Congress severs one part of a statute even though it cant do so, the remainder of the statute is unconstitutional? This doesnt strike me as an impeccable argument.
In NFIB, the Court found that the mandate was constitutional because it was a tax. They bent over backwards to reach this result on sole grounds that the penalty raised revenues. Five justices ruled that the mandate was not constitutional under the commerce clause. So now that the revenue raising portion of the mandate is gone, the mandate is no longer a tax. Thus we're left with the commerce clause, under which it is presumably not constitutional per NFIB.
And you can't sever the mandate, either. Every justice in NFIB correctly agreed that the mandate is a necessary component of the overall scheme of Obamacare. The law simply doesn't work without it for obvious reasons.
Judge O'Connor went through all of this detail in his opinion. Give it a read. It's remarkably readable and understandable for a judicial decision.
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On December 16 2018 08:25 xDaunt wrote:Show nested quote +On December 16 2018 08:20 Doodsmack wrote:
I could be missing something here but my understanding of NFIB v. Sebelius was that the only thing found unconstitutional about Obamacare was the individual mandate. Now that the individual mandate is gone, there is no longer any provision of ACA that violates the commerce clause. So presumably the judges decision is not that the law is unconstitutional (that would be a pretty stupid argument). His decision is that Congress cant sever the mandate, and therefore if Congress attempts to sever it, his job is to strike down the whole law rather than hold that the act of severing one part of it must be reversed. In other words his opinion says that when congress severs one part of a statute even though it cant do so, that means the whole statute has been repealed by Congress? Or alternatively, when Congress severs one part of a statute even though it cant do so, the remainder of the statute is unconstitutional? This doesnt strike me as an impeccable argument. In NFIB, the Court found that the mandate was constitutional because it was a tax. They bent over backwards to reach this result on sole grounds that the penalty raised revenues. Five justices ruled that the mandate was not constitutional under the commerce clause. So now that the revenue raising portion of the mandate is gone, the mandate is no longer a tax. Thus we're left with the commerce clause, under which it is presumably not constitutional per NFIB. And you can't sever the mandate, either. Every justice in NFIB correctly agreed that the mandate is a necessary component of the overall scheme of Obamacare. The law simply doesn't work without it for obvious reasons. Judge O'Connor went through all of this detail in his opinion. Give it a read. It's remarkably readable and understandable for a judicial decision.
So Congress has the power to sever the penalty but not the mandate?
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On December 16 2018 02:58 xDaunt wrote:
The best explanation that I have heard for why Mueller and the DOJ have pushed it so hard is that they are trying to create a post hoc rationalization for having abused NSA surveillance on Trump and his team for political reasons. This is the essence of what Nunez was highlighting during his press conference last year.
This is needless to say a partisan conspiracy theory. BTW the press conference that Nunes had occurred after he met with Flynn's 30 year old staffer who apparently showed him documents about unmasking. H.R. McMaster later said there was nothing wrong with the unmasking that occurred and promptly fired the 30 year old. This unmasking is the basis of Nunes' press conference.
National security adviser H.R. McMaster has reportedly determined that Susan Rice, who served in his role during the Obama administration, did not do anything wrong amid accusations of “unmasking” the identities of Trump associates.
Republican lawmakers are trying to conclude whether Rice revealed the identities of Trump transition team members that were redacted in intelligence reports. Bloomberg on Thursday cited two intelligence officials saying that McMaster had found no evidence of wrongdoing.
The news comes the same day Circa reported that McMaster sent Rice a letter at the end of April informing her that she would keep her security clearance and that the National Security Council would waive her “need to know” requirement.
thehill.com
And it is probably this unmasking that provided the evidence that Flynn lied to the FBI (not the FBI interviewers' impressions of whether Flynn exhibited signs of lying while speaking).
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On December 16 2018 08:27 Doodsmack wrote:Show nested quote +On December 16 2018 08:25 xDaunt wrote:On December 16 2018 08:20 Doodsmack wrote:
I could be missing something here but my understanding of NFIB v. Sebelius was that the only thing found unconstitutional about Obamacare was the individual mandate. Now that the individual mandate is gone, there is no longer any provision of ACA that violates the commerce clause. So presumably the judges decision is not that the law is unconstitutional (that would be a pretty stupid argument). His decision is that Congress cant sever the mandate, and therefore if Congress attempts to sever it, his job is to strike down the whole law rather than hold that the act of severing one part of it must be reversed. In other words his opinion says that when congress severs one part of a statute even though it cant do so, that means the whole statute has been repealed by Congress? Or alternatively, when Congress severs one part of a statute even though it cant do so, the remainder of the statute is unconstitutional? This doesnt strike me as an impeccable argument. In NFIB, the Court found that the mandate was constitutional because it was a tax. They bent over backwards to reach this result on sole grounds that the penalty raised revenues. Five justices ruled that the mandate was not constitutional under the commerce clause. So now that the revenue raising portion of the mandate is gone, the mandate is no longer a tax. Thus we're left with the commerce clause, under which it is presumably not constitutional per NFIB. And you can't sever the mandate, either. Every justice in NFIB correctly agreed that the mandate is a necessary component of the overall scheme of Obamacare. The law simply doesn't work without it for obvious reasons. Judge O'Connor went through all of this detail in his opinion. Give it a read. It's remarkably readable and understandable for a judicial decision. So Congress has the power to sever the penalty but not the mandate?
Like I said before, severance is a judicial thing. Not something Congress does. Congress can pass whatever it wants subject to it being constitutional. The "mistake" that Congress made is that it eliminated the constitutional basis for the mandate. Upon recognizing that, the court looked to see whether the mandate could be severed given that it was no longer constitutional, and concluded that it could not.
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I could see Roberts deciding that the tax still exists, it's just set at a value of zero, which can be changed at any time. And this in turn forms some basis for holding that the mandate is still a tax on the whole. I have a hard time believing Roberts would hold ACA to be unconstitutional after NFIB.
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On December 16 2018 09:01 Doodsmack wrote:
I could see Roberts deciding that the tax still exists, it's just set at a value of zero, which can be changed at any time. And this in turn forms some basis for holding that the mandate is still a tax on the whole. I have a hard time believing Roberts would hold ACA to be unconstitutional after NFIB.
Won't happen. The only reason why the Court found it was a tax was because there was a revenue component. Without it, not even the liberal justices will rule it's a tax.
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It's still on the books, it just needs to have its value increased to 1 cent to be generating revenue. If Roberts is willing to say it's a tax in the first place, surely he's willing to find an interpretation to say that it's still a tax despite having its value changed.
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EPT
