[Twenty-seven] states/state attorneys general file lawsuit on health care bill

[Dos Equis]

Pa. Judge Strikes Obamacare Insurance Mandate
Tuesday, 13 Sep 2011

The insurance-buying mandate in President Barack Obama’s health-care reform legislation is unconstitutional, a federal judge in Pennsylvania ruled.

U.S. District Judge Christopher C. Conner in Harrisburg today said Congress exceeded its powers under the federal constitution when it included in the act Obama signed into law last year a provision requiring almost all Americans to have medical insurance starting in 2014.

“The federal government,” Conner said, “is one of limited enumerated powers, and Congress’s efforts to remedy the ailing health care and health insurance markets must fit squarely within the boundaries of those powers.”

Three federal appeals courts have weighed in on the issue since June 29. A Cincinnati panel backed the provision, 2-1, while one in Atlanta voted it down by the same margin. The U.S. appeals court in Richmond on Sept. 8 rejected two separate challenges on jurisdictional grounds.

The Harrisburg ruling, if appealed, would be heard by the U.S. Court of Appeals in Philadelphia, which hasn’t yet ruled on the merits of the Patient Protection and Affordable Care Act.

Tracy Schmaler, a spokeswoman for the U.S. Justice Department, didn’t immediately reply to voice-mail and e-mail requests for comment.

http://www.newsmax.com/Newsfront/BBEXCLUDE-BNALL-BNSTAFF-BNTEAMS/2011/09/13/id/410829

[Dos Equis]

'Obamacare' Closer to Supreme Court Review After Administration Declines to Appeal Latest Ruling
Published September 26, 2011
Associated Press

The Obama administration has decided not to ask a federal appeals court in Atlanta for further review of a ruling striking down the centerpiece of President Barack Obama's sweeping health care overhaul.

The administration's decision makes it more likely that the U.S. Supreme Court would hear a case on the health care overhaul in the court's term starting next month, and render its verdict on the law in the midst of the 2012 presidential election campaign.

Justice Department spokeswoman Tracy Schmaler disclosed the administration's decision. She declined to elaborate on next moves.

The Atlanta circuit ruling sided with 26 states that had sued to stop the law from taking effect. In another case, the 6th U.S. Circuit Court of Appeals in Cincinnati upheld the individual mandate in June.

A three-judge panel of the 4th U.S. Circuit Court of Appeals in Richmond, Va., rejected two lawsuits on technical grounds. In one, it ruled that the penalty for not buying insurance amounts to a tax and that a tax can't be challenged before it's collected. In the other, the panel said the plaintiff, the state of Virginia, lacked legal standing to file its lawsuit.

In a ruling in August, a divided three-judge panel of the 11th Circuit Court of Appeals in Atlanta concluded Congress overstepped its authority when lawmakers passed the individual mandate provision that requires people to buy health insurance. The administration could have asked the full 11th circuit court to hear the case, potentially delaying high court review.

The U.S. Circuit Court of Appeals for the District of Columbia, the fourth appeals court to deal with a case over the law, heard oral arguments last Friday but hasn't issued a ruling.

The Supreme Court is widely expected to have the final say on the law, especially now that the appeals courts that have considered the law have disagreed, and one of them has struck down a key provision.

The real question has been over timing, which has political as well as legal ramifications.

In order to hear and decide the case by late June, when the court wraps up its work until resuming in October, the justices would have to act by January to accept and schedule an appeal.

It typically takes a couple of months or more from the time an appeal is filed at the court until the justices decide whether or not to hear it.

In arguments leading up to the appeals court decision in Atlanta, the Obama administration said the legislative branch was using a "quintessential" power -- its constitutional ability to regulate interstate commerce, including the health care industry -- when it passed the overhaul law. Administration officials said at the time they were confident the 11th Circuit ruling would not stand.

In that August ruling, Chief Judge Joel Dubina and Circuit Judge Frank Hull said that lawmakers cannot require residents to "enter into contracts with private insurance companies for the purchase of an expensive product from the time they are born until the time they die."

In a lengthy dissent, Circuit Judge Stanley Marcus accused the majority of ignoring the "undeniable fact that Congress' commerce power has grown exponentially over the past two centuries." He wrote that Congress generally has the constitutional authority to create rules regulating large areas of the national economy.

http://www.foxnews.com/politics/2011/09/26/obamacare-closer-to-supreme-court-review-after-administration-declines-to/

[Skip8282]

Damn, how scary is Marcus' dissent.  The government's been taking more and more so we should just keep giving them more and more. 

[Dos Equis]

Damn, how scary is Marcus' dissent.  The government's been taking more and more so we should just keep giving them more and more. 

Scary indeed.

[Dos Equis]

Obama's Healthcare Law Appealed to Supreme Court
Wednesday, 28 Sep 2011

Twenty-six states and a small business group appealed Wednesday to the Supreme Court seeking to strike down all of President Barack Obama's signature healthcare law while the administration defended it.

The states and National Federation of Independent Business argued the entire law should be invalidated because Congress exceeded its powers requiring that Americans buy health insurance or face a penalty.

They urged the high court to quickly decide the issue in its upcoming term, which begins next week and lasts through June 2012.

The Obama administration filed its own appeal in which the Justice Department argued the so-called individual mandate was constitutional and said the issue was appropriate for Supreme Court review.

"Throughout history, there have been similar challenges to other landmark legislation such as the Social Security Act, the Civil Rights Act, and the Voting Rights Act, and all of those challenges failed," the Justice Department said.

"We believe the challenges to Affordable Care Act ... will also ultimately fail and that the Supreme Court will uphold the law," the department said in a statement.

White House adviser Stephanie Cutter said the administration asked the Supreme Court to hear the case "so that we can put these challenges to rest and continue moving forward implementing the law to lower the cost of health care and make it more secure for all Americans."

At issue was a ruling by a U.S. appeals court in Atlanta in August that declared unconstitutional the individual insurance requirement, but refused to strike down the entire law.

The ruling by the appeals court in Atlanta conflicted with rulings by other appeals courts that have upheld the law or have rejected legal challenges, including a lawsuit by the state of Virginia that was dismissed earlier this month on procedural grounds.

The law, passed by Congress and signed by Obama in 2010 after a bruising political battle, is expected to be a major issue in the 2012 elections as Obama seeks another four-year term. Republican presidential candidates oppose it.

EXPANDING COVERAGE

Obama, a Democrat, has championed the law as a major accomplishment of his presidency and as a way to try to slow soaring healthcare costs while expanding health insurance coverage to the more than 30 million Americans without it.

The Supreme Court long has been expected to have the final word on the law's constitutionality. The dispute has important legal, political and financial implications for companies in the healthcare field.

Florida Attorney General Pam Bondi said the states sought Supreme Court review of their lawsuit.

"This health care law is an affront on Americans' individual liberty, and we will not allow the federal government to violate our constitutional rights," she said.

Legal experts have said the nine-member Supreme Court, with a conservative majority and four liberals, most likely will be closely divided on whether the individual mandate requiring insurance purchases exceeded the power of Congress.

The Obama administration earlier this week said it decided against asking the full U.S. Appeals Court for the 11th Circuit to review the August ruling by a three-judge panel of the court that found the insurance requirement unconstitutional.

That decision cleared the way for the administration to go to the Supreme Court.

The states in their appeal also argued the law's expansion of Medicaid, a federal-state partnership that provides health care to low-income Americans, was unconstitutionally coercive, forced upon the states. (Additional reporting by Jeremy Pelofsky and Karen Pierog in Chicago, Editing by Will Dunham and Jackie Frank)

http://www.newsmax.com/Newsfront/obama-health-supreme-court/2011/09/28/id/412630

[Dos Equis]

Health Care Law Looms Over New Supreme Court Term
Published October 01, 2011
Associated Press

In this March 23, 2010 file photo, President Barack Obama is applauded after signing the health care bill in the East Room of the White House in Washington

The nine justices of the Supreme Court, who serve without seeking election, soon will have to decide whether to insert themselves into the center of the presidential campaign next year.

The high court begins its new term Monday, and President Obama's health care overhaul, which affects almost everyone in the country, is squarely in its sights.

The Obama administration's request last week that the justices resolve whether the health care law is constitutional makes it more likely than not that they will deliver their verdict by June 2012, just as Obama and his Republican opponent charge toward the fall campaign.

Already, GOP presidential contenders use virtually every debate and speech to assail Obama's major domestic accomplishment, which aims to extend health insurance to more than 30 million people now without coverage.

If as now expected the justices agree to review the law's constitutionality, those deliberations would certainly define the court's coming term. Their decision could rank as the court's most significant since the December 2000 ruling that effectively sealed George W. Bush's election as president.

Health care is only one of several issues that the court could hear that would make for a "fantastic Supreme Court term," said former acting Solicitor General Neal Katyal, now in private practice at the Hogan Lovells law firm.

Other high-profile cases on the horizon concern immigration and affirmative action, hot-button issues at any time and only more so in an election year.

Less likely, though still with a chance to make it to the court this year are cases involving gay marriage and the landmark Voting Rights Act that some Southern states argue has outlived its usefulness.

Decisions about whether to even to consider health care, affirmative action and immigration are a month off or more.

In the meantime, the justices will take up a First Amendment case looking at the regulation of television broadcasts as well as a couple of appeals involving the Fourth Amendment protections against unreasonable searches and seizures. One of those cases is a digital age dispute over the government's power to track a suspect's movement using a GPS device, without first getting a judge's approval.

Among the cases involving criminal defendants is one from an inmate awaiting execution in Alabama who missed a deadline to appeal his death sentence because the big-firm lawyers in New York who had been handling his case for free moved on to new jobs and letters from the court clerk sat in the firm's mailroom before being returned to sender.

The case of Cory Maples, convicted 15 years ago in the shooting deaths of two men, presents the question: "How much poor representation can one criminal defendant receive" before it violates the Constitution? said University of Maryland law professor Sherrilyn Ifill.

A lawsuit over a baby's passport also will be before the court in a case that has a taste of Middle East politics and a fight between the president and Congress.

Jerusalem-born Menachem Zivotofsky's parents want his U.S. passport to list his birthplace as Israel even though U.S. policy does not recognize the once-divided city as belonging to Israel. Congress, though, passed a law in 2002 giving Jerusalem-born U.S. citizens that option. Presidents of both parties have directed the State Department to ignore the law, saying it wrongly interferes with the president's powers.

Just over a third of the 48 cases the court has so far agreed to hear are of interest to the business sector, according to the U.S. Chamber of Commerce. But that list includes few big-ticket cases, unlike last term's victories for business interests in major cases seeking to limit consumer and employee access to the courts. Foremost among those was the decision to throw out a class-action lawsuit on behalf of up to 1.6 million female Wal-Mart employees.

The absence of high-profile business cases comes as something of a relief to Allison Zieve, the general counsel for Public Citizen, a not-for-profit group that calls itself a countervailing force to corporate power.

"The court seems more open to the plaintiffs' side in smaller civil rights cases. Smaller cases may be better for consumers," Zieve said.

The nation's major broadcasters are focused on one case that has the potential to reshape regulation of the airwaves. The federal appeals court in New York threw out the Federal Communications Commission's rules that apply when children are likely to be watching. That includes a ban on the use of curse words as well as fines against broadcasters who showed a woman's nude buttocks on a 2003 episode of ABC's "NYPD Blue."

The television networks argue that the policy is inconsistently applied and outdated, taking in only broadcast television and leaving unregulated the same content if transmitted on cable TV or over the Internet.

"Singling out broadcast television doesn't make much more sense anymore," said Jonathan Cohn, a former Justice Department official. Cohn's law firm, Sidley, Austin, represents Fox Television Stations in the case. The administration is defending the FCC's indecency policy.

In an earlier version of the same case, the justices and lawyers discussed the policy for an hour without uttering any of the offending words.

The court is beginning its second year with the same complement of justices after consecutive terms of welcoming new members, Sonia Sotomayor and then Elena Kagan.

Those two justices, on the liberal-leaning side of the court, voted together on almost every case last year. The same was true for Chief Justice John Roberts and Justice Samuel Alito on the other side of the ideological spectrum.

Last year, Kagan sat out seven of the 12 cases the court heard in its first month because of her prior work as the Obama administration's top Supreme Court lawyer. This October, she will be absent from just one case, involving Congress' power to give copyright protection to works by foreign composers, directors and other artists, among them Sergei Prokofiev's "Peter and the Wolf," that long have been in the public domain.

There have been various calls for Kagan, as well as for Justices Antonin Scalia and Clarence Thomas, to sit out the health care case, but no indication that any of those justices intends to do so. Critics cite Kagan's former administration position, Scalia's address to the U.S. House tea party caucus, which opposes the law, and the public advocacy against the law by Thomas' wife, Ginny.

Also unlikely in the next year, with the presidential election imminent, is a retirement, At 78, Justice Ruth Bader Ginsburg is the oldest justice, but has said repeatedly she's not going anywhere anytime soon.

http://www.foxnews.com/politics/2011/10/01/health-care-law-looms-over-new-supreme-court-term/

[Dos Equis]

Kagan, Thomas Targeted in Hopes of Swaying Supreme Court's Health Care Ruling
Published October 02, 2011
FoxNews.com

FILE: In this Oct. 8, 2010, file photo, members of the Supreme Court gather for a group portrait at the Supreme Court in Washington. Seated from left are: Associate Justices Clarence Thomas, Antonin Scalia, Chief Justice John Roberts, Associate Justices Anthony M. Kennedy, and Ruth Bader Ginsburg. Standing, from left are: Associate Justices Sonia Sotomayor, Stephen Breyer, Samuel Alito Jr., and Elena Kagan.

WASHINGTON -- The Supreme Court hasn't even agreed yet to take the case questioning the constitutionality of the individual mandate -- the centerpiece of President Obama's health care law -- but already arguments are lined up to remove justices from trying to weigh in on deliberations.

Justice Elena Kagan's role in the Obama administration as it was formulating the legal defense for the health care law disqualifies her from participating in the decision, say groups who call the former solicitor general incapable of being objective. Kagan says she was not involved in developing the legal strategy of the Affordable Care Act, but opponents of the law have requested records of the administration's deliberation process to see who participated.

Conversely, liberal groups and some Democrats in Congress say Justice Clarence Thomas can't be jurisprudent because his wife worked for organizations that actively opposed the health care law. On Thursday, 20 House Democrats requested a federal investigation into whether Thomas broke federal disclosure laws by not listing his wife's pay on a disclosure form for 21 years -- even though her job at the time was no secret.

"The forms are simple and straightforward. Given that we now know he correctly completed them in at least five earlier years, it's hardly plausible -- indeed it's close to unbelievable -- that Justice Thomas did not understand the instructions," said Common Cause President Bob Edgar.

On Thursday, the Obama administration requested the court take up the case and deliver its verdict by June 2012, as Obama and his Republican opponent gear up for the fall campaign. That request got the backing of retired Supreme Court Justice John Paul Stevens, suggesting that the court could be inclined to take it.

Twenty-six states and the National Federation of Independent Business would be opposing party to the case.

Tom Dupree, a former Justice Department official in the George W. Bush administration, said the justices will likely decide in the next few months when and whether it will hear the case, but a lot of combined factors "make it a pretty difficult invitation for the Supreme Court to turn down."

"You have a case that presents very important constitutional questions arising from the administration's signature domestic initiative and now you have both the states that are challenging the law as well as the administration itself telling the Supreme Court you need to decide this issue now," Dupree told Fox News.

If it does take the case, pressure to sit it out will be especially acute on Kagan and Thomas, and possibly Justice Antonin Scalia, who spoke to a Tea Party group about potential weaknesses in the law last year.

No mechanism exists to force a justice to sit out a case, though Kagan sat out 28 cases in her first year on the court last year because of her prior work as the Obama administration's top Supreme Court lawyer.

This October, she has already announced she will be absent from one case, regarding Congress' power to give copyright protection to works by foreign composers, directors and other artists, among them Sergei Prokofiev's "Peter and the Wolf," that long have been in the public domain.

But calling it a "humongously important case," Dupree said he doesn't think any justice will will decline to participate.

"Absolutely not," he told Fox News. "There's a good possibility it could be decided by a one-vote margin, and in that circumstance, where you have folks lining up on both sides of the political aisle trying to get whatever advantage they can, it doesn't surprise me that there are calls for recusal. But I think at the end of the day, Kagan and Thomas are both deciding this case."

Texas attorney general Greg Abbott, whose state is one of the parties in the suit, said the calls for recusal are "very predictable whenever you're dealing with a case of this magnitude."

But he projected that "when it's all said and done, all nine justices on the court will participate in the case."

Abbott added that the decision will likely come down to a 5-4 ruling, meaning only Justice Anthony Kennedy, who was appointed by President Ronald Reagan, will be the swing vote.

"Here's the very important thing," he said. "Twice in the past 16 years, Justice Kennedy has voted to strike down and act of Congress as going beyond the limit of the Commerce Clause. That is the legal theory upon which the states rest their claim. If Justice Kennedy votes again saying that Congress exceeded their authority on the Commerce Clause, I think that should prove a victory for the states in our challenge against Obamacare."

http://www.foxnews.com/politics/2011/10/02/kagan-thomas-targeted-in-hopes-swaying-supreme-courts-health-care-ruling/

[Soul Crusher]

Court Ruling Proves: Kagan Must Recuse
Townhall.com ^ | October 19, 2011 | Terry Jeffrey


U.S. District Judge Ellen Huvelle, a Clinton appointee, ironically provided evidence last week that seals the case that Justice Elena Kagan is required by law to recuse herself from cases challenging Obamacare.

The law in question is 28 U.S.C. 455. It mandates that a justice "shall disqualify himself in any proceeding in which his impartiality might be reasonably questioned" or "(w)here he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceedings ..."

Here is why Kagan must recuse:

In December 2009, the Senate passed the Patient Protection and Affordable Care Act -- or "Obamacare." Its fate then moved to the House. Within days, states were threatening to challenge Obamacare in court if it were enacted.

Kagan was then President Obama's solicitor general. Her job was to defend his administration's positions in federal court disputes.

Anticipating the threatened lawsuits, Obama's Justice Department did not waste time.

CNSNews.com gained documentation of this from the limited number of documents DOJ did release as the result of a Freedom of Information Act request CNSNews.com filed on May 25, 2010. (DOJ initially stalled on releasing any documents in response to this FOIA. On Nov. 23, 2010, the Media Research Center, of which CNSNews.com is a division, sued DOJ over the mater. On March 15, 2011, DOJ released 65 pages of emails and withheld others.)

The released documents included a Jan. 8, 2010, email that Brian Hauck, senior counsel to Associate Attorney General Tom Perrelli, sent to Neal Katyal, Kagan's top deputy.

"Tom wants to put together a group to get thinking about how to defend against inevitable challenges to the health care proposals that are pending, and hoped that OSG (Office of Solicitor General Kagan) could participate," Hauck wrote. "Could you figure out the right person or people for that? More the merrier. He is hoping to meet next week if we can."

Three minutes after receiving this, Katyal responded enthusiastically. "Absolutely right on. Let's crush them," he wrote. "I'll speak with Elena and designate someone."

Thirty-eight seconds later, Katyal forwarded Hauck's email to Kagan, suggesting Kagan assign him to this case.

"I am happy to do this if you are okay with it," Katyal said to Kagan.

About three minutes later, Kagan personally assigned her top deputy to handle the Obamacare issue. "You should do it," she emailed Katyal.

More than two hours then passed. Then at 1:05 p.m., Katyal sent another email to Hauck indicating no ambiguity about what he understood to be Kagan's intentions.

"Brian," Katyal wrote, "Elena would definitely like OSG to be involved in this set of issues. I will handle this myself, along with an Assistant from my office, (here the name of the assistant is redacted) and we will bring Elena in as needed."

Katyal went on to say: "I will be out of the office from Jan. 12-15 though, so if we could do it the following week, it'd be ideal."

Hauck responded: "Great. We may end up having to go ahead with the meeting without you ..."

DOJ did hold the meeting without Katyal. But someone -- apparently from Kagan's office -- reported on the meeting to Katyal via email. This person's name has been redacted.

"I attended the meeting today," the unnamed person emailed Katyal. "Tom P(erreli) led it, and there were folks from Civil, OLC (Office of Legal Counsel) and Antitrust. The basic plan is to do some anticipatory thinking about claims that will be asserted and how we will defend against them. It turns out that Civil has already started this, and hopes to produce some model briefs or memos. The big areas of possible litigation are --"

Here heavy black ink covers more than two lines redacted from the email.

After the redaction, the email says: "The expectation is that a bill could pass and be signed by mid-February, so we could be in litigation soon after."

Further down, the email says: "I spoke to Ian (Gershengorn, the deputy assistant attorney general in the civil division) afterwards and told him we would like to be involved and to please keep us in the loop."

Five minutes later, Katyal emailed back: "Great. I appreciate it. I want to make sure that our office is heavily involved even in the dct (District Court). Also one random q -- (here the text is redacted again)."

Judicial Watch also filed a FOIA with DOJ seeking Kagan-related documents. Like Media Research Center, Judicial Watch also sued seeking to make DOJ comply. The court joined the two cases.

DOJ argued it could redact the lines it removed from the email the unnamed DOJ official sent to Kagan's deputy describing the January 2010 meeting planning the defense of Obamacare because they were covered by attorney work-product privilege. Judicial Watch argued DOJ could not do this because Obamacare had not been enacted then, let alone challenged.

Judge Huvelle let the redaction stand -- accepting the conclusion that in January 2010 people working under Kagan's supervision were working as "advisers" on the anticipated Obamacare litigation.

"Rather, when government attorneys act as 'legal advisers' to an agency considering litigation that may arise from challenge to a government program, a specific claim is not required to justify assertion of this privilege," Huvelle wrote in an opinion blocking the release of any further Kagan-related documents as a result of the FOIA requests.

"In this case," she said, "DOJ has explained -- and the unredacted material makes clear -- that the emails, including the redacted material, discussed legal defense of the forthcoming health care legislation in response to an anticipated court challenge."

Five months before Obama nominated Kagan to the Court, Kagan assigned her top deputy to do work that made him a "legal adviser" on the anticipated Obamacare cases. That deputy went on to argue some of those cases in federal court.

Can Kagan's impartiality in these cases be reasonable questioned? It would be unreasonable not to.



--------------------------------------------------------------------------------

[Dos Equis]

Sounds like she shouldn't be involved. 

[Soul Crusher]

http://www.cnsnews.com/news/article/kagan-tribe-day-obamacare-passed-i-hear-they-have-votes-larry-simply-amazing


She needs to recuse herself.

[Dos Equis]

http://www.cnsnews.com/news/article/kagan-tribe-day-obamacare-passed-i-hear-they-have-votes-larry-simply-amazing


She needs to recuse herself.

Agree.  She was giddy over the bill being passed. 

[Dos Equis]

Sen. Lee: Justice Must Disclose Kagan-Obamacare
Saturday, 12 Nov 2011
By Henry J. Reske

The Justice Department must disclose all documents relating to any work Supreme Court Justice Elena Kagan may have been involved in regarding the formulation of the legal defense for President Barack Obama’s signature health care law so a fair assessment of whether she should step aside from the case can be made, Sen. Mike Lee, R-Utah, said.

Lee’s comments came in a question and answer session following his speech to the Federalist Society’s National Lawyers Convention. Before ascending to the Supreme Court, Kagan had served as the nation’s solicitor general, responsible for representing the federal government before the Supreme Court. The office had worked on strategy for defending Obamacare, but Kagan has maintained she did not play any substantial role and should not remove herself from considering the case should in come before the high court.

“I haven’t seen enough to be able to make that assessment,” Lee said when asked if she should recuse herself. “I think it is a legitimate question that is why I asked Attorney General (Eric) Holder whether he intends to comply fully with the requests for documents submitted by the House Judiciary Committee a week ago today.

“I think this is immensely important because as you know Justice Kagan served as solicitor general prior to going on to the Supreme Court and the solicitor general is responsible not just for handling litigation in which the United States is a party before the Supreme Court but also in managing the federal government’s efforts in all appellate litigation everywhere and frequently the solicitor general is brought in to consult on issues that are either pending in lower courts or in some cases even litigation that is contemplated but not yet field. So I think it’s important that the attorney general respond to this.”

Lee said that Holder, in response, maintained that Kagen has been “walled off” from the issue and it’s not a problem. Lee said he then told him, “If that’s the case Mr. Holder I’m sure you will feel very comfortable responding to our request for documents.”

The issue of recusal on Obamacare has become a key sticking point between the right and the left because both sides fear the case could be decided by a single vote. Conservatives have been pressing for Kagan’s recusal for her previous work while defenders of the law are pressing for Justice Clarence Thomas to recuse because of his wife’s work with groups that oppose the law. The decision to recuse is generally up to the individual justice. While the court has not yet decided to hear a case concerning the constitutionality of the law, it is widely expected to soon.

In his formal address to the Federalist Society, Lee focused on the role of the Constitution in the formation of the U.S. government and limited government. Lee said he refused to believe the power of Congress goes so far as to require citizens to buy health insurance and where to go to the doctor and how to pay for it, adding, “I refuse to concede that Congress’ power goes that far.”

“We in the political branches of government who are died in the wool advocates of federalism need to stick to federalism,” he said. “Federalism is the answer not just because it leads to right results but because it is the right result and it is the law.

"At the end of the day it may be that we’ve simply allowed the political branches to get away with this too long. They haven’t’ had to answer these difficult questions. As Benjamin Franklin was often quoted as saying, ‘they will cheat without scruple who can without fear.’ As long as members of Congress aren’t ever asked the question, even if it’s only by a small handful of their constituents where do you get this power to vote for bill X or resolution Y. As long as they don’t feel that pressure they’re not going to restrain their own power.”

http://www.newsmax.com/InsideCover/Lee-Justice-Kagan-Obamacare/2011/11/12/id/417752

[Dos Equis]

 


Supreme Court to Hear Challenge to Obama Health Care Law
Published November 14, 2011
FoxNews.com

A new wrinkle has surfaced in the implementation of the federal health care law that critics argue will impose a significant penalty on women and marriage.
The U.S. Supreme Court will hear a challenge to President Obama's signature law on health care, it said Monday in an announcement that has nearly as much impact on partisan politics as the final decision has on the law itself.

The challenge in the case, brought by 26 states out of Florida, is based on the constitutionality of the individual mandate in the Patient Accountability and Affordable Care Act, which requires that all Americans purchase health insurance.

The nine-member court will also look at severability, meaning if the mandate falls, could the rest of the law survive since it is primarily built on the revenues collected by forcing people to buy health care.

"We look forward to presenting oral argument and defending our position that the individual mandate is unconstitutional, that the entire law fails if one part fails, that the Anti-Injunction Act does not apply, and that Medicaid's expansion is unlawfully coercive," said Florida Attorney General Pam Bondi.

The case is one that all sides want heard. But hearing the case this session -- arguments could come in March -- means that a ruling will come in June -- in the heat of the 2012 election cycle.

Some argue that a defeat for Obama would be as beneficial as a victory since it would take away an economic and philosophical argument that Republicans have used to bash the law that will impact roughly 18 percent of the nation's annual gross domestic product.  Others say nothing good could come for Obama if his premier legislative victory is declared unconstitutional.

If the mandate is wiped off the map but the law itself isn't, the president would be able to promote aspects that most Americans say they accept, including leaving 26 year olds on their parents insurance and not allowing insurers to reject clients with pre-existing conditions.

"Thanks to the Affordable Care Act, 1 million more young Americans have health insurance, women are getting mammograms and preventive services without paying an extra penny out of their own pocket and insurance companies have to spend more of your premiums on health care instead of advertising and bonuses," White House Communications Director Dan Pfeiffer said in a statement.

The 11th Circuit Court, where the case comes from, has ruled in favor of the opponents. Texas Attorney General Greg Abbott, said the high court brings the challenge one step closer to elimination.

"Given the substantial implementation costs associated with this 2,700-page law--and the unconstitutional mandate that it will impose on all Americans -- we are pleased that the Supreme Court has moved quickly and agreed to hear this very important case," he said.

Former House Speaker Newt Gingrich, a Republican presidential candidate who has made repeal and replacement of the law the first plank of his economic plan, tweeted that he is "pleased" the court has agreed to hear the case.

[Straw Man]

I wonder if Clarence Thomas will recuse himself (rhetorical question alert - I'm well aware that he won't or at the very least will fight it every step of the way)

http://voices.washingtonpost.com/44/2011/02/house-democrats-say-justice-th.html

http://www.newyorker.com/reporting/2011/08/29/110829fa_fact_toobin?currentPage=all

[Dos Equis]

Sen. Sessions: 'Deeply Disturbed' Over Kagan's Role in Obamacare
Wednesday, 16 Nov 2011
By Martin Gould

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inShare inShare0 Republican pressure is growing for Supreme Court Justice Elena Kagan to step down from the vital hearing that will decide the future of America’s healthcare next year.

Alabama Sen. Jeff Sessions is leading the charge saying that newly released emails seem to show that Kagan was heavily involved in policy discussions on how to make sure Obamacare passed through Congress.

Now Sessions is putting pressure on embattled Attorney General Eric Holder – who, at the time was Kagan’s boss – to come clean on what she knew and when she knew it.

Sessions, who sits on the Senate Judiciary Committee, told Holder he is “deeply disturbed,” that the emails were not released at Kagan’s confirmation hearings in June last year.

Kagan is responsible for making the decision whether she should recuse herself from the case when the Supreme Court hears challenges to President Barack Obama’s signature law next spring. A decision on the constitutionality of the law is expected by late June or July, just in time for the two political parties’ National Conventions.

She has to decide whether her role as Obama’s Solicitor General at the time the law was drawn up and passed could be seen as an unacceptable conflict of interest. The law says, “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”

It goes on to say they should also quit a case “where he has a personal bias or prejudice concerning a party.”

Sessions, who was attorney general of Alabama before he took his seat in the Senate in 1997, fired off a letter to Holder on Tuesday, demanding written testimony on why the emails were not presented before.

“I am deeply disturbed by these developments and believe that the Justice Department should have provided these documents to the Senate Judiciary Committee during Justice Kagan’s confirmation hearing,” he wrote.

“The Department’s failure to provide this information to Congress … as well as your apparent inattention to these matters, is unacceptable.”

In the emails, Kagan expresses her delight that the act was passing through Congress and is kept up to date with its progress.

In perhaps the most damaging email chain from January 2010, two weeks before Obamacare was passed by the Senate, Brian Hauck, the senior counsel to Associate Attorney General Tom Perelli wrote to Kagan’s deputy Neal Katyal, saying that Perelli wanted “to put together a group to get thinking about how to defend against the inevitable challenges to the health care proposals that are pending.”

Katyal immediately replied, “Absolutely right on. Let’s crush them. I’ll speak to Elena and designate someone,” and forwarded Hauck’s email to Kagan with a note saying, “I am happy to do this if you are ok with it.”

Within minutes Kagan responded, “You should do it.” And Katyal, who went on to become acting solicitor general after Kagan was elevated to the Supreme Court, emailed Hauck saying, “Brian, Elena would definitely like OSG (Office of the Solicitor General) to be involved in this set of issues.”

He told Hauck “I will handle this myself,” along with an assistant “and will bring in Elena as needed.”

Kagan has said that she first became aware that she was being considered as a potential Supreme Court justice on March 5, 2010. Seventeen days later the House of Representatives passed Obamacare and she sent an email to Justice Department adviser Laurence Tribe saying, “I hear they have the votes, Larry!! Simply amazing.”

Holder told the Senate Justice oversight committee that he recalled instances in which staff members would “physically, literally move” Kagan out of the room when Obamacare was being discussed. During her confirmation hearings she said her involvement in the matter was limited to one meeting where the matter came up briefly.

Another conservative who thinks Kagan has a conflict of interest in the case is Newt Gingrich , who told Newsmax.TV  in an exclusive interview that she should step down from the case.

“It is unconscionable that a person who actually advised in the writing of Obamacare will now sit in judgment on what they help write," the presidential candidate said.  “I think clearly Kagan should recuse herself. It’s clearly a conflict of interest, and I think a very bad judicial setting for her to now be rendering judgment on the bill she helped write.”


As to how the high court will rule in the case, Gingrich says: “You never quite know, but my hunch is that they are going to decide that it is unconstitutional to have a mandate” to buy health insurance.

If Kagan planned to recuse herself the court would normally have announced that she took no part in deliberations when it announced it would hear the case. On Monday the court docket showed that she had taken no part in several cases, but not the vital one “Florida et al vs. Department of Health and Human Services.”

The left has also called on conservative Justice Clarence Thomas to step down as his wife Virginia heads the lobbying group Liberty Central which has been at the forefront of challenges to Obamacare. He too has shown no sign that he will.

But the case against Thomas is not seen to be as strong as that against Kagan, who conservatives say helped craft the law’s defense.

Utah’s two Republican senators, Orrin Hatch and Mike Lee, have both questioned whether she should hear the case. And Louisiana GOP Rep. John Fleming said this week, “Before the Supreme Court case is heard, we need to know if Justice Elena Kagan helped the Obama administration prepare its defense for Obamacare when she was solicitor general.

“The Justice Department must answer serious questions about whether Justice Kagan has an inherent conflict of interest, which would demand that she recuse herself from the Obamacare case,” Fleming added.

But Russell Wheeler, visiting fellow at the Brookings Institute, told The Christian Post, “If she really thought her impartiality was compromised, she would step down.

“No justice wants to say that he or she didn’t have prior contact with the case only to be proven wrong in the near future. No Justice is going to try and pull a fast one, especially in today’s high tech society where the truth will eventually be found out.”

http://www.newsmax.com/Headline/sessions-kagan-obamacare-emails/2011/11/16/id/418276

[Dos Equis]

Obama Health Care Law: Supreme Court Sets Dates To Hear Oral Arguments
First Posted: 12/19/11 12:05 PM ET Updated: 12/19/11 01:06 PM ET

WASHINGTON -- March madness is coming to the Supreme Court next year. The justices have designated three days, March 26 to March 28, as the oral argument dates for the health care cases.

The Court agreed to hear the challenges to the Affordable Care Act in November, setting aside an extraordinary five and a half hours for oral argument.

The main event will be on Tuesday, March 27, when the Court will take up the constitutionality of the health care law's minimum coverage requirement. That provision, commonly called the individual mandate, requires virtually all Americans to purchase health insurance or pay a penalty. The Court has set aside two hours for argument over whether Congress' passage of the individual mandate exceeded the legislature's powers to regulate interstate commerce or lay and collect taxes under Article I of the Constitution.

On Monday, March 26, the Court will hear an hour of argument over whether a Reconstruction-era federal statute, the Anti-Injunction Act, bars the justices from making a decision on the individual mandate's constitutionality until after the provision goes into effect in 2014.

The Court will consider two additional issues on Wednesday, March 28. Ninety minutes will be dedicated to whether the individual mandate is so central to the health care overhaul that the entire law must fall should the justices find the mandate itself unconstitutional. An additional hour of argument will address 26 states' claim that the law improperly expands Medicaid by coercively conditioning states' receipt of federal funds on their participation in the new health care exchange system.

These three days of oral argument will occur almost exactly two years after President Barack Obama signed the Affordable Care Act, sparking a slew of lawsuits across the country.

The four courts of appeals to consider the issues now before the Supreme Court have split on the constitutionality of the individual mandate and the application of the Anti-Injunction Act, but have all rejected the challengers' arguments about state coercion and the centrality of the individual mandate.

The justices' decision in the health care cases will likely come down at the end of June.

http://www.huffingtonpost.com/2011/12/19/obama-health-care-law-supreme-court_n_1158039.html

[Dos Equis]

Going down in flames.  I hope. 


Obama Administration Defends Health Care Overhaul in First Supreme Court Brief
By Lee Ross
Published January 06, 2012
FoxNews.com

WASHINGTON –  Arguing that President Obama's health care law was designed to fix an intractable national problem of exploding costs during a crisis, the administration submitted its opening brief to the Supreme Court Friday defending the law as both necessary and constitutional.

The 63-page brief is the first salvo in one of four cases accepted by the high court challenging the controversial health care law. Those cases will be heard in March. This filing is specifically focused on the suit challenging the law's so-called individual mandate, or requirement to buy health insurance. 

Critics of the law, including the 11th Circuit U.S. Court of Appeals which struck it down, contend the Affordable Care Act goes too far in forcing Americans to obtain insurance or face a financial penalty.

The government continued to argue that the law is permissible under the Constitution's Commerce Clause allowing the feds to regulate economic activity in the states. "As Congress found, the minimum coverage provision is thus necessary to achieve Congress's concededly valid objective of reforming the interstate market in health insurance," wrote Solicitor General Don Verrilli.

Those reforms include forcing insurance providers to relax their coverage standards and ultimately make their coverage more affordable. Without the premiums coming in from all people now forced into the system, the law collapses. "The minimum coverage provision is key to the viability of the Act," Verrilli said, calling the law's focus on the insurance aspect of health care eminently reasonable.

A fundamental question before the court is whether this law, or any, can force Americans to buy something or face a penalty. Opponents say that's a step too far for the government to take. In this instance, they say the government can't force Americans who choose not to buy health insurance into paying for coverage.

In separate briefs, Florida and 25 other states urged the Supreme Court to throw out the entire health care law if the individual mandate is struck down. Dozens of GOP senators also filed a brief critical of the law.

The administration contends that health care is unique because all people, regardless of their insurance coverage, must eventually participate in the health care marketplace and that the collective costs from the uninsured drive up the costs for the rest -- $1,000 per family, according to the government. Verrilli said "this is classic economic regulation of economic conduct."

Another issue before the court in this case is how to punish people who don't obtain insurance. The law says people are to be penalized for non-participation. Opponents say there is no justification for such a penalty. They wonder how else could the government punish citizens, be it for not eating a certain vegetable or any number of non-actions.

It's a non-issue, according to government. "That Congress used the word 'penalty' in the minimum coverage provision, rather than 'tax,' is immaterial to whether it was a proper exercise of Congress's power over taxation," Verrilli explained.

In a background discussion with reporters before the brief was submitted, a senior administration official answered critics, saying it is "wildly unrealistic" that Congress would pass, for instance, a compulsory broccoli consumption law. The key, he argued, is that the health care law is specifically targeted to the economics of 17.6 percent of the U.S. economy, and is therefore covered under the Commerce Clause.

The response from the 26 states and others challenging the individual mandate is due next month.

Two other primary briefs are expected at the court Friday in the cases challenging whether the rest of the Affordable Care Act can survive if the individual mandate is struck down and whether federal tax law prohibits litigation until the ACA goes into effect.

http://www.foxnews.com/politics/2012/01/06/obama-administration-makes-health-care-overhaul-case-to-supreme-court/?test=latestnews

[Shockwave]

it's funny.  Dems advocate punishing people who burden society with ER walk-in visits.  Repubs want to just take care of anyone with a boo-boo for free.

It's a sad state of affairs when the Repubs are the party of "we'll take care of you - no need for personal responsibility!"

I used to like you 240.

Look at what you have become.

Every single post Ive read from you reads like this "yes, they are doing this, but (insert whatever name) did it before and you didnt complain, so its ok."

Whiskey. Tango. Foxtrot.

Youve become pathetic 240, pathetic. You remind me of Brian from Family Guy.. its not that you give a shit about whats going on, you just have to be on the other side of whoever youre talking to.
Sad.

[Soul Crusher]

The obamabots defend the mandate saying that poor and middle class people will get subsidies if they can't afford it.   well what happens when the govt goes broke and can't afford to provide the subsidies any longer?   the lower and middle class slobs will be mandated to buy private insurance they can't afford by force of law! 

Only the most evil person could defend this economic slavery. 

[Dos Equis]

Supreme Court Allows New Plaintiffs in Health Care Law Challenge
by Shannon Bream | January 17, 2012

The Supreme Court on Tuesday allowed the addition of two new business owners to a suit challenging the health care law that was in question because one of the original business owners attached to the case has gone bankrupt.

Supporters of President Obama’s health care law argued that her bankruptcy made Mary Brown ineligible to continue on as a plaintiff, suggesting the entire case could fall apart because of a lack of standing.

Other business owners were attached to the case, but the Justice Department would not stipulate that they met the standards for establishing standing in this case.

But the Justice Department did not formally challenge the addition of business owners Dana Grimes and Dave Klemencic. Grimes lives in Greenwich, N.Y., and owns a building/home contracting services business.  Klemencic is from West Virginia and owns a flooring company.
 
http://politics.blogs.foxnews.com/2012/01/17/supreme-court-allows-new-plaintiffs-health-care-law-challenge/?test=latestnews

[Dos Equis]

Debate heats up over whether Kagan should participate in Supreme Court's health care law ruling
By Shannon Bream
Published January 26, 2012
FoxNews.com
 
With just weeks until the U.S. Supreme Court considers the constitutionality of President Obama's health care law, there are new calls for Justice Elena Kagan to recuse herself from the case.

Her critics point to a 2010 case regarding a San Francisco health measure, in which then-Solicitor General Kagan's office filed an amicus brief touting the newly passed health care law.

In May 2010, after Kagan had been nominated to the nation's highest court, Principal Deputy Solicitor General Neal Katyal sent her a memo outlining the cases in which she had "substantially participated." Kaytal specifically referenced the Golden Gate case, noting that it had been "discussed with Elena several times."

That's enough to convince Heritage Foundation Senior Legal Fellow Hans von Spakovsky that Kagan shouldn't take part in the current health care case before the high court.

"I don't see how any ethical lawyer adhering to professional codes of conduct could not consider that they need to recuse themselves from this case," he said.

Earlier this week, the Supreme Court denied a motion by the group Freedom Watch, which has called for Kagan's recusal. Freedom Watch's motion asked for permission to take part in the oral arguments scheduled for March 26 to 28. That motion was denied, and Kagan took no part in its consideration.

Other legal scholars say Kagan is in the clear, noting that the issues in the Golden Gate case are distinct from those in the case now pending at the Supreme Court.

"Absolutely different cases, absolutely two different sets of issues, and it does not in any way support the idea that Justice Kagan should recuse herself," Elizabeth Wydra, chief counsel at the Constitutional Accountability Center said.

Wydra says repeated attempts by Freedom Watch could hurt their credibility with the court, adding, "The arguments are, frankly, looking a little desperate."

Kagan isn't the only justice under scrutiny. A number of Democratic lawmakers have also called for Justice Clarence Thomas to take himself off the case. They say his wife's work for a group looking to repeal the health care law creates a conflict of interest.

Chief Justice John Roberts, clearly aware of recusal calls by outside groups, addressed the issue in his yearend report issued in December. In it, Roberts stated that he has "complete confidence" in the capability of his colleagues to make their own decisions.

http://www.foxnews.com/politics/2012/01/26/debate-heats-up-over-whether-kagan-should-participate-in-supreme-courts-health/?intcmp=trending

[Dos Equis]

Quinnipiac: Most Americans Want Obamacare Repealed
Friday, 24 Feb 2012
By Paul Scicchitano

A new poll by Quinnipiac University finds that most Americans, including independent voters, believe that the U.S. Supreme Court should strike down Obamacare.

The poll, released late Thursday, found that 50 percent of voters and 51 percent of independent voters want the high court to overturn President Obama’s controversial healthcare reform law. In contrast, only 39 percent of voters and 37 percent of independent voters do not want the high court to take action.

The poll found that most voters — 66 percent — believe the economy is in a recession while a slight majority — 54 percent — believe it has begun to recover.

"Voters have begun to change their minds about the economy. They are humming, not yet singing, 'Happy Days Are Here Again,' but there seems to be a sense that things are getting a bit better. But President Barack Obama is not singing along as there is little uptick in his job approval numbers and the share of voters who think he deserves a second term in the Oval Office," said Peter A. Brown, assistant director of the Quinnipiac University Polling Institute, which conducted the national poll.

http://www.newsmax.com/Newsfront/quinnipiac-poll-repeal-obamacare/2012/02/24/id/430515

[Soul Crusher]

http://www.usatoday.com/news/politics/story/2012-02-23/swing-states-health-care-obama/53260222/1


Getting killed in the swing states on thugbamacare.   

[Dos Equis]

Florida AG Bondi to Newsmax: How We’ll Defeat Obamacare
Friday, 23 Mar 2012
By Martin Gould and Kathleen Walter

President Barack Obama’s healthcare initiative is the biggest attempt at a government overreach in U.S. history, Pam Bondi, Florida’s attorney general, who is leading the fight against the program, tells Newsmax.TV.

And that is why Bondi is confident the Supreme Court will vote to overturn the Affordable Care Act after three days of hearings next week.

“We’re optimistic that they will rule in our favor because this is so much bigger than healthcare,” said Bondi in an exclusive interview. “It’s the biggest attempt at an overreach in our history. So we have to fight it and we have to stop it.

“That’s why 26 states, along with the National Federation of Independent Business, are challenging this and that’s why we have been given an unprecedented amount of time, six hours, in front of the court.”

The hearing will start on Monday and go through Wednesday. Attorney Paul Clement will argue the states’ case before the nine justices, while solicitor general Donald Verrilli will defend the law.

“The bottom line is this: the Constitution’s limits on the federal power are real and they must be respected, even if they are inconvenient for the Obama administration’s goal to take over one-sixth of our economy,” said Bondi, a Republican.

The states’ main case is that it is unconstitutional for the federal government to insist that citizens buy anything, including health insurance. “If they can force us to do this, they can force us to do anything,” said Bondi.

Part of Bondi’s optimism is that there has already been a bipartisan decision in favor of striking down the law in the Atlanta-based 11th Circuit Court of Appeals. “People were playing the numbers game … saying we were going to lose because they had two Clinton appointees and a Bush appointee and look at the opinion we got out of it.”

She is confident that all Supreme Court justices will follow the law and not be guided by their own political views. “I believe when they hear our argument that they will know that this is such an overreach by the federal government,” she said.

Bondi said the Supreme Court case will be split into four distinct parts:

•   Monday there will be arguments on the anti-injunction aspect of the case, which states that a tax cannot be challenged until it is paid;

•   Tuesday is “the big day” when arguments on the constitutionality of the individual mandate will be heard;

•   Wednesday morning is on severability – whether any part of the act can remain if the individual mandate is struck down;

•   Wednesday afternoon will be arguments whether Washington can instruct states to expand Medicaid.

On the lesser-known aspects of the case, Bondi said she believes the government should accept the states’ argument about anti-injunction, otherwise, she said, it would mean there could be no arguments about the law until it is fully up and running. “What are they saying? It’s not a tax, it’s not a tax, it’s not a tax. How many times have you heard our president say that?”

And she said she is also confident about the Medicaid issue. “Our argument’s going to be that Congress cannot force us to increase our Medicaid that would put our state out of business or threaten all the states by losing all of our funding. It’s clearly coercion by the federal government and our Constitution protects us from coercion.”

At the end of it all, Bondi said she believes that “Obamacare will be no more.”

“That’s our hope. That’s what the law should be. It’s unconstitutional and we’re going to do everything in our power to present the best argument possible.”

http://www.newsmax.com/Newsfront/BondiObamacareSupremeunconstitutional/2012/03/23/id/433728

[Dos Equis]

Bachi?  

White House claims Supreme Court will find health care law 'constitutional'
Published March 25, 2012
FoxNews.com

A top adviser to President Obama insisted Sunday that the federal health care overhaul will be upheld after the Supreme Court hears arguments in a landmark challenge to the policy this coming week.

"We're confident that it'll be constitutional," senior White House adviser David Plouffe told "Fox News Sunday."

Plouffe also claimed Republicans will rue the day they branded the overhaul "ObamaCare," suggesting that years into the future they will "regret" not being able to claim credit for the fundamental changes to health care in America.

He said a "small portion" of people are experiencing those changes now, but predicted many more Americans would realize the benefits by the end of the decade.

The health care law will eventually require most Americans to buy health insurance, while providing federal subsidies for millions. The so-called "individual mandate" to buy insurance is at the heart of the Supreme Court challenge, with critics calling the requirement unconstitutional.

Plouffe claimed Americans ultimately don't want to "refight" the battle over the law, or "start over" the health care reform process.

http://www.foxnews.com/politics/2012/03/25/white-house-claims-supreme-court-will-find-health-care-law-constitutional/