Friday, August 12, 2011

Your Daily Appellate Court HCR Ruling!



Gather round kids, the 11th Circuit has issued a ruling on HCR.

Let's see who wrote it -- hey, it's a joint opinion by Dubina and Hull!

How special!

And they drop a footnote to explain that this has happened at least twice before in 11th Circuit history, so don't go around thinking there's anything special about it, no siree.

And look at that -- the odd man out, the rugged individualist, Judge Marcus -- he wrote his own dissent!

So now everyone got to write everything they wanted on a matter that will be decided by the Supremes anyway.

And boy did they -- the majority duo wrote a crisp and tight 207(!) page opinion, and Judge Marcus decided to cut his dissent short at the otherwise pithy page 84.

Is everyone happy now?

For those who care about the substance, the Court found the mandate unconstitutional but upheld everything else.

On the mandate's constitutionality, the 11th is now squarely at odds with the always-liberal 6th Circuit, which earlier this summer found the whole enchilada to "hold water," as Vinny Gambino would say.

Someone remind me, what happens again when Circuit Courts split on important Constitutional issues?

21 comments:

  1. Breaking out the cohibas, now.

    Will accept apologies from all who claimed that the suit was frivolous.

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  2. The most I can offer is a nub cigar, they upheld everything else.

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  3. Dubina has one happy daughter now

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  4. The whole stinking edifice collapses without the individual mandate.

    That cohiba is tasting pretty sweet, right now.

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  5. I don't think the argument is frivolous; just wrong. Is it not a mandate to say to one party that the terms of his contract with another shall not include something (Heart of Atlanta) or shall include something else (Darby). Of course it is but it is perfectly constitutional. So too does a mandate that penalizes one party from failing to contract with another. No material difference. The solution to all this is to prevent someone who does not participate from ever receiving federal health funds. I think that is a fine idea (no medicare or medicaid for them). So hopefully the Supremes affirm this silliness. Those tea-bagging types will wonder what hit them then.

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  6. I'm a lawyer. It's hard to explain just how outside the mainstream this kind result would have been just 5-10 years ago.

    I graduated a top law school in '02. If you had written something like this on your 1L Con Law exam you would have gotten an F, because it's not just a wrong view, it's a view that ignores 60 years of precedent.

    To overturn the health care law is to erase the profound turn that the Supreme Court took in 1937 when it rejected the Lochner Era approach and adopted the modern/New Deal era approach to jurisprudence.

    The idea that we're even having this conversation - and the Circuit courts are splitting on this question! - suggests just how far we've come in a very, very short time. The movement conservatives have all come out of the closet - even the ones on the federal bench. They smell a final victory: a return to Gilded Age America.

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  7. TPM - When you were at that "top law school," did you ever study an opinion which allowed the federal government to compel citizens to buy a good or service?

    Don't worry, take your time. This cohiba will last a while.

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  8. Another low point for the 11th.

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  9. I hate to break it to you swlip, but this wont stand. You see, big insurance has had their hand in this all along, and modern day GOP protestation aside, the mandate serves but one purpose -- to protect insurance profits.

    The mandate is the core Republican idea for health care reform. See Bob Dole's plan, and Romenycare.

    Now we all know that big business and the GOPers' are butt buddies from way back, and while this makes a good stick for them to beat the black man with, they will drop it like a hot potato when it hurts the pocket book of their big donors.

    And the answer to this all is very simple. Open Medicare to all. That way if you want a plan that uses 70% of your money to pay for care, you can stick with private insurance. And if you want a plan that uses 96% of your money to go for your care, you can go to Medicare.

    Where is that devotion to choice?

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  10. "The most I can offer is a nub cigar." Don't knock the nub cigar. Those 3 inch 54 ringers are vastly underrated. Makes the commute every evening that much more tolerable. The legal blogosphere has made much of the fact that Hull is a Clinton appointee (but as TNR's Jonathan Cohn points out, really a conservative). But wasn't Marcus a Reagan appointee in the 80's for both US Attorney and district judge? I am too lazy to check as my tee time is right around the corner.

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  11. Godwacked - Your conspiracy theories are insane, but in an amusing way. Why, those damn Republicans are so clever, they passed a law that none of them voted for. It must have been a Jedi mind trick or something. Right? Or is the absence of proof of a conspiracy actually proof of a conspiracy?

    All - You wouldn't know about this story if you relied on the Herald. I have seen nary a mention of it, there. Glad we have SFL to take up the slack.

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  12. swlip, you forget who runs this country boy, at your own peril!!

    And yes, I'm just a big conspiracy theorist! So suck my Gulf of Tonkin!

    Tastes like cherries!

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  13. You need to up the dosage on your meds.

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  14. DBR lifted FLSA story

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  15. Yes, of course. swlip, you can look at two identical plans yet "see" them as two totally different plans, but I'm the one who needs meds.

    There is only one major difference between Obamacare and Romneycare. One was put forward by a black man.

    Revisionist history is the foundation of a reality free universe. Either you dropped too much acid in the 60s, or worse not nearly enough.

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  16. Good Lord, who said anything about Romneycare? I mean, besides the voices in your head? You certainly won't find me defending that clusterf**k.

    Fyi, I wasn't old enough to do any mind-altering substances until the early 80s. I know, I have a lot of catching up to do.

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  17. Fwiw, re: Romneycare, there is an important constitutional distinction between that and ObamaCare. One was enacted by a state, the other by the federal government. States have broader powers than the federal government, for reasons which should be obvious to anyone who wastes time, here.

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  18. Who said anything about Romeneycare??

    Me, and it's applicable relevance in this conversation escapes you because... you're on your forth martini???

    And the Bob Dole plan was to be enacted at the state level too??!! Really.

    You are a funny creature. A virtual duck billed platypus of stale culture and politics.

    Republicans have no trouble forcing anyone to do anything. Want an abortion, well you must get an ultrasound!! It just has to be them that's doing the forcing.

    Liberty my ass.

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  19. I never drink martinis. Straight up Bushmills for me.

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