Leon,

The Capitation issue is a serious one, albeit fraught with ripeness issues.

I’ve nearly completed a much longer article regarding my analysis than what I posted here a few days ago.

More to follow in a couple days.

I believe I heard that a conservative legal foundation has filed suit and is focusing on the individual mandate. Would their standing be based on taxpayer status? I am a little foggy on federal standing law. I know in our state there is standing for issues of public importance (S.C.) and taxpayer standing as well.

With respect to standing for the individual mandate, I understand the requirement does not take effect until 2014 so there may be an issue of ripeness along with standing.

I do query, however, how this may be impacted in the near future if premiums increase substantially and individuals begin to loose company provided coverage as a result of this new legislation. This may increase the level of certainty of increased harm for 2014 that some form of declaritory action may be available.

Just a thought.

If they take it, and rule to repeal, they probably ignite a firestorm, like Bush v Gore in 2000. Although Scalia is known to state firmly “get over it”, people haven’t. Roosevelt didn’t respect much the court’s ruling on NRA. Although we all got over it.

If they take it and rule it constitutional, if for the main reason I’ve heard the pundits claim (not to step on Congress toes), will it encourage civil disobedience or quell it?

If they don’t take it, the most broadly sweeping piece of legislation that effects every individual of every state, is it because it’s above their pay scale?

How come liberals say this is about giving us a right (health care), but they defend it based on economy (Comerce Clause)? Us conservatives seem to see this law as about the government grab of the economy (commerce) and fight it based on rights (individual ones, that is).

All the special deals, i.e. LA Purchase, SIEU examptions, etc., would seem to shout unequal treatment.

Of course, the courts could rule the exemption invalid, give the same deals to everybody, raising the cost of ObamaCare, while still keeping the basic act entact.

All the special deals, i.e. LA Purchase, SIEU examptions, etc., would seem to shout unequal treatment.

Of course, the courts could rule the exemption invalid, give the same deals to everybody, raising the cost of ObamaCare, while still keeping the basic act entact.

Texas Attorney General Greg Abbott was recently interviewed on this subject:

http://alt.coxnewsweb.com/statesman/audio/Embry/AGPODCAST.mp3

I’m not a lawyer, but the argument that access to free health care is a right falls apart without much tugging.

Look for a moment at an actual right — the right to own a gun. I have the constitutional right to own a gun, but am I required to own one? No. Should I want to exercise my right to own a gun, is the government required to buy it for me? No.

but Raich returned the court back to the insanity of upholding the current interpretation of the interstate commerce clause. You can read Justice Thomas’ dissenting opinion in that case for a glimmer of hope for sanity from the bench.

Let’s hope that the individual mandate is a big enough bifurcation from the current precident that it gives the court enough wiggle room to throw this law out without having to overturn 80 years worth of legislation (something that would be awesome but something far too drastic for the court to ever consider).

The key is for the court to decide this current law is a new interpretation of the constitution, and that new interpretation is illegal. If that does not happen the court will not touch this thing with a ten foot pole.

I found this article this morning and found it very interesting indeed:

http://www.americanthinker.com/2010/03/the_supreme_court_and_fdrs_pow.html

And pretty much every publicly traded corporation that has to adjust its books for this and report multi-million dollar losses?

Or if a corp can’t sue, any shareholder of any of these corps whose value takes a dive.

Non-lawyer asking.

I found this while looking into the historical context of the commerce clause:

“It was said by Chief Justice Marshall that it is a matter of public history that the object of vesting in congress the power to regulate commerce with foreign nations and among the several states was to insure uniformity for regulation against conflicting and discriminating state legislation.”

Would this not support an argument to/by the conservative wing of the court that the clause is meant to ensure equal treatment of such commerce by the states, and not to interfere with or actually participate in and/or mandate such commerce?

It isn’t so much about legal precedents and laws, as about freedom. Most of the American script has been about being allowed to do something, where before you were not, or were hassled if you did. For me, I choose to have as little health insurance as i can, and only insure for catastrophe right now. I have fought with my wife over this from day 1. Am I free to choose? What Dem’s don’t seem to understand is No is a logical choice too. I don’t mind the government organizing the structure of society, but I do mind them compelling me to do something. This issue goes all the way back to Roger Williams, who left Massachusettes to found the state of Rhode Island. Forced tithing to the Church, a ‘dissenting’ church at that, was supposed to be a settled issue. You should not be compelled to take part in anything.
Also, as the descendant of an Irishman, there is a long history of compulsion to pay for a state church, and expulsion from participating in free-markets. The ruling power, England, would go to Parliament to get laws written to prevent Irishmen (and Scotsmen) from raising first cattle, then corn for export. The Corn Laws were a great source of hatred toward the government, and caused much immigration to America in search of freedom.. Some of these issues need to be looked at from individual, cultural, and historical angles, and not purely legal ones. The Commerce Clause is crushing the rights of many to engage in entrepreneurship and traditional trade.

A court case even if the Supremes refuse to hear it, will draw attention. The Democrats right now would really, really, like, to get off the Health Care issue.
I feel sure that there is going to be a summer of litigation.

Then there is the old saw that judges read newspapers.
Also, there are more than a few judges on the bench right now that are motivated to find some reason or way to stick it to Obama. They are supposed to be impartial and just judge a case on it’s merits, but they may be tempted to have a long debate on it.

I realize there are challenges filed..
How long to the first battle in this war? Any guesses?
Mark

Is all that is required to bring this case to the SCOTUS. “POWERS RETAINED BY THE STATES AND THE PEOPLE.” Amendment XI, “The power not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, are reserved to the States respectively, or to the people.” Its long over due for States to establish, in addition to the State Attorney General, a judicial Review system in each State.In essence, every law passed in Congress and signed by the President would be reviewed by the body and challenged directly to the SCOTUS. The States will decide whether to go directley to the SCOTUS, or in some cases, to an inferior “Federal Court.” ART III, Section II, Clause II, of the Constitution which outlines Jurisdiction of cases, Reads in Part: “Those in which a State shall be Party, the supreme Court shall have original Jurisdiction.” For the SCOTUS to refuse to hear such a case, would be a flagrnt violation of the above mentioned references and could be cause for any State to refuse to comply with any law that the US Congress passes into Law. Robert Bork spoke about what the constitution actually reads about the general welfare. The constitution refers to: “Promote the General Welfare” Not “Provide the General Welfare”. Bork said that if the latter was true, the US would have to provide everyone equal General Welfare and not discriminate regardless of the persons status. I agree! There is no if about it, the SCOTUS has no choice, but to hear this case.

If you leave no recourse to end this impending tyranny through the Courts, and you leave no recourse to end this tyranny through the ballot box, then you leave those who love freedom no choice but to exercise their 2nd Amendment rights. If you say that it is not likely to be overturned by SCOTUS and it’s unlikely to be repealed, then what choice do people have? Tell them, what choice? It is obvious on its face that this law is unconstitutional on so many levels, not the least of which is you cannot force a person to engage in commerce so that you can regulate that commerce. Address this issue, and not this subterfuge about supremacy and equal protection clauses, address this single issue alone, you cannot!!

14 States acting together against the federal government. Isn’t that in itself unusual. Add this in to the states that are passing laws that counter the federal government on health, gun control, and the moves to take back land that the feds have seized from the states and you have a “cold civil war” with early elements of secession.
If this pot keeps boiling then November is going to be “interesting.”

This question is coming from a simple man, who hasn’t finished college or studied law of any sort. In addition to the existing legal challenges won’t there be a question of paying for services not rendered. From what I understand the taxes start long before the entire bill is implemented. So, isn’t this similar to a contract dispute, or does federal legislation not fall under that kind of purview? I apologize if this is a stupid question.

What about Printz v. US and New York v. US? Any basis there for hope that SCOTUS will overturn?

And very insightful comments below, only sadly more insightful about the commentors’ state of mind than the Courts.

Substituting wishes or preferences for facts (of which there are none to date, except for the actual filings) especially here, is not good. Stating an outcome with finality is dangerous, at least in a world where wrong outcomes are punished by being outcast from the community. We all wish that would happen to all the talking heads from TV over the years, from OJ to Global warming, who were wrong, wrong, wrong, but still show up on television.

This is the start of a series of case (in all likelihood) that will be written and studied for a century, in part, aside from the various legal reasonings that have yet to be revealed, but whether any of the parties will actually go along with the result.

I am actually not too worried about standing: While E.P.A. v. Mass. was an utter disaster for the cause of common sense jurisprudence, the number it did on the Court’s standing jurisprudence is actually a boon here. If the states could manage to get standing to challenge EPA regs based on projections of lost economic activity due to global warming over the course of three decades, they certainly should be able to get it based on the far more imminent harms from a law that will come into full-force in 2014. Well, hopefully. I’m willing to bet dollars-to-donuts that if things went to the Supremes, Ginsberg, Breyer, Stevens, and Souter Sotomeyer would find a way to differentiate it.

From my lowly 3L vantage point, ripeness will probably be the bigger problem, though bigger ripeness problems have been overcome in the past to sustain court challenges. (I.E. how any of the abortion cases ever got litigated.)

As I understand it and trying to verify there are two religious exempt from this insanity. Why not as a member of ANY OF THE RELIGIONS required to abide by this law sue on grounds of religious discrimination given in the First Amendment?

How can congress pick and chose? And please someone explain to me why congress itself is exempt from many of the laws passed that we the people must abide by?

The talk of a 28th amendment seems it would generated a bi-partisanship to force these clowns to be under the same rule of law as we are. How in God’s name do they exclude them self from laws we must obey?

I would like to see the HCR law brought down, but even if the individual mandate is held to be unconstitutional, couldn’t it be changed to a tax refund or deduction to get around the constitutional question? Right now, it is framed as a penalty for not having insurance. To me, that is unconstitutional. But, if the premiums were a tax credit of some sort and those without insurance don’t get the tax benefit, then I would see no constitutional issue.

Of course, this change to a tax benefit would have to pass the congress. That would not be easy now unless done as part of a reconciliation bill. If that is done after January 2011, it too will be difficult.

i’d like to point out we won’t have to repeal anything the fraud has signed if he is removed for ineligibility. it all becomes invalid as he is not actually president. come on people, wake up. there is way out of this mess if we all demand our representatives, courts and military uphold their oath to defend the constitution. WAKE UP PEOPLE, WAKE UP.

-”The states, in and of themselves, are not harmed by virtue of the fact that individual persons within the state will be unconstitutionally required to purchase health insurance.”-

By the US spending the expendable income of individuals within states, it leaves less money for running state government. In my state, Washington, it derives a substantial portion of it’s revenue from sales tax. Money not spent within the state, is tax revenue lost.
The National government is already taking some 20% of every tax dollar spent on health insurance to redistribute to others who can’t pay for insurance. The states so far have gone along with this racket because they get a cut of the action. Now that state budgets are hurting, hopefully they will re-think allowing the fed to farm tax dollars from the states. The Governers have enjoyed the US Congress raising taxes n the states, and sending some of it back, because they can go before the voters and say they increased services without raising taxes. It’s a great big money laundering scam, that the fed has no right to do, but the states have been allowing.
Most of this Medicare stuff, as well as Education, is under the authoruity of the states. The feds can only get compliance by buying off the states with laundered money. It also comes with strings that the state rewrite legislation, or condition acceptance of money by accepting unfunded mandates. The Govenors need to grow a set and stand on their own two feet.
If states take back there own autonomy, it will require cuts in services, and, here’s the explosive part, raising state taxes. Our own aggresiveness towards the T-word, is killing state sovereignty. If we choose to live as independant states again, we will have to pay more money at the state level to avoid paying more taxes in the products we buy, and at the federal level.

I have mentiomed the same thing as Horizon 3 in many other posts.Both sides have trampled on the U.S. Constitution for decades. The Commerce clause has been used in Congress to to justify cases when it applied and also when it didnt apply. There is not been any challenges in either case, Therefore the Commerce clause has become to broad. Horizon 3 states that if the Commmerce clause is rendered void in this instance then previuos cases become Null and Void. I had mentioned in several other posts that rendering it void in this case would make it possible to challenge other decisions on the Commerce clause. Six of one thing and a half dozen of the others. Same thing. I dont think that all other Commerce cases would become Null and Void automatically,however, they would be abled to be challenged on a case by case basis and become Null and Void. The States would do better to challenge on more specific measures such as giving preference to certain religions etc which would be contrary to the General Welfare clause. And I didnt have to go to Berkely Law school to figure it out.

As a service connected disabled Veteran I have a contract with the United States Government to care for my disability and now they are going to change that and charge me. That is a violation of the contract under which I volunteered to serve my country.
“The truth is more important than the facts.” – Frank Lloyd Wright
“Freedom is never more than one generation away from extinction.” — Ronald Reagan
ID 10 T error in the administration

It seems the best part of law suits here would be to gum the whole health care law up to keep as much as possible from taking effect until after the Nov elections. Courts might notice the change in the will of the people if there is a Dem nullification. GOP, citizens and business should focus on slowing it all down until Nov.

I would add that the President has no legislative authority by executive order. And, those citizens not paying for health insurance are not covered by the law, even using a very broad definition of the ‘commerce clause.’ Therefore they would be exempt from the current legislation because they are not involved in interstate commerce.

The American people simply will not obey/comply with this tyrannical monstrosity and it will suffer the same fate as prohibition – and it won’t take 13 years. In the mean time the Mob will establish black market health care: “don worry! afa I break you knee, Louie here gonna get you a knee transplant so fagedaboudit!

If you want to see the libs do a complete 180 on the Constitutionality of the individual mandate, just suggest that the next one will be that every American has to purchase a hand gun! Let the fun begin!

You can be sure of is that as soon as this bill was made available to the public, that there are 1000s of lawyers combing through to find every loophole that could possibly be exploited or exposed.
This recent deal with the corporations exposing costs of unintended consequences, is just the tip of the iceberg.

I have read it in it’s various forms since December when the Senate passed it, there are things in it that will scare the pants off of many state legislatures and courts. Most of which have absolutely nothing to do with health care.