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(R) Trisha Calvarese
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President (To Win Colorado)
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(R) Donald Trump
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CO-01 (Denver)
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(D) Diana DeGette*
90%
CO-02 (Boulder-ish)
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90%
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(R) Lauren Boebert
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(D) Yadira Caraveo
(R) Gabe Evans
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DEMOCRATS
REPUBLICANS
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State House Majority
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DEMOCRATS
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95%
5%
March 28, 2010 08:59 PM UTC
18 Comments
He should be paying for his attack out of his own pocket or campaign committee.
He should be paying for his attack out of his own pocket or campaign committee.
..to simply agree to have your name added to a lawsuit? His office is not actively controlling the lawsuit, is it? Not that I excuse his participation, but of all objections, use of tax dollars seems weak.
How would PN communicate without Photoshop?
Former Justice Dubofksy, in a Bell Center email, said that the suit has little chance of success. That means that it has some chance of success. That’s enough to make it not frivolous, leaving aside the crucial point that the vote count in the USSC is probably already at least at 4.
As a legal historian, I have been wondering what pundits said when at the time that the Schechter lawsuit challenging FDR’s NIRA was filed. Likewise with U.S. v. Butler and the AAA. Did all the blogger-analogues say “Clearly the Commerce clause supports FDR”? Did they say “Obviously, the AAA will succeed because of the breadth of the taxing power”?
Likewise with the tobacco litigation, I know that when the tobacco litigation was filed–and the AGs joined in–most law professors thought that litigation had no chance of going anywhere.
From what I can tell, our A.G. has just put his name on a pleading at this point. He spent a little time on it, too, I am sure. But the cost is quite small.
I do agree, though, that the claims in the lawsuit filed in Florida regarding the cost imposed on the states are political posturing. (But, I have enough humility to know that I may be wrong.)
And, efforts within the states to pass legislation or referenda against the supreme federal law are pure stupidity.
I am not at all unhappy that Attorney General has joined in a challenge to elements of the constitutionality of a plan that penalizes Americans who choose not to buy the product of for-private health insurance companies.
Tom Russell
Not a google monkey or a sock puppet nor a nom de blog–instead a real person with a first name and a last name and real email address
trussell@law.du.edu
of challenging Suthers’ action by pointing out just how darn good the outcomes of health care legislation will be? Not sure I see what that has to do with the legal viability of a constitutional challenge, but then, that’s why I’m asking a law professor …
First, my personal view is that the health care legislation is bad and commits us to exactly the wrong things. However, I will leave that aside.
Let’s assume the health care legislation is, as Martha Stewart would say, “a good thing.”
If, by the time that the lawsuit reaches the USSC there are good results from the legislation, then I think that is likely to have an impact on the voting. USSC results are often political first and then doctrinal.
The hope, today, that the legislation will have good results should not be enough to stop the AGs from suing. The good things about the legislation are overstated. For instance, today in the NYT we see health insurance companies saying, “well, we do have to cover pre-existing conditions in children, but that’s only if we cover the children, and we’re not so sure that we have to– certainly not before 2014.”
Like AG Suthers, I’m still stuck on penalizing someone with a tax if that person refuses to buy insurance. That’s new territory constitutionally speaking, and politically it’s a hot potato.
Disregard anyone who comments on the constitutionality by first saying “Clearly” or “Obviously.”
Tom Russell
More lefties who support the most extreme right-wing tactics in order to try to punish those who aren’t quite progressive enough.
That way lies madness. You saw what happened to Christopher Hitchens, didn’t you?
You are now combining three issues by the way. One is the actual constitutionality of this bill (which you have never addressed), the second is the politicization of this Court, and the third is the merits of the bill for you as a progressive. Those three issues are unrelated.
is not “the most extreme right-wing tactics.” Frankly, most of the responses to the AGs’ lawsuit are the same kind of responses lefties (and civil libertarians) had when righties defended torture and indefinite detention. “Stop complaining! It’s keeping us safer!” doesn’t answer the criticism. Neither does “Look at all the children who will be insured!”
And it sounds like Tom is addressing the constitutionality a few places. He says compelling someone to engage in commercial activity is uncharted territory. That’s debatable, but Tom has made points on the merits of the suit.
First, my point to Tom is not to stop complaining, nor that the bill is a good thing. I don’t think that’s relevant to the debate. My point has been that the lawsuit is meritless. Tom disagrees, that’s fine.
But Tom as an expert in the field should have a stronger objection to the constitutionality of the bill than that its benefits are overstated, or that Scaly Tony is likely to do whatever he wants anyway, so why worry?
So far the only objection I’ve seen is that it uses the commerce clause, like just about everything else the federal government has done for 220 years. Phoenix Rising posted a 1792 law written by the Founding Fathers mandating that people purchase weapons. So if Tom thinks mandates are uncharted territory, I think he should have a response to that.
Filing frivolous lawsuits to assert states’ rights in order to impress teabaggers is pretty extreme in my view. Perhaps not the most extreme (there’s still cop-killing, I guess). I think a self-proclaimed liberal who endorses such a strategy for tactical reasons is being foolish, just as Christopher Hitchens was when he endorsed the impeachment of Bill Clinton claiming it was because of the bombing of Sudan.
If I come here saying I’m a math expert, and comment on the CBO score of the health bill and say it has a serious mathematical error, I should be able to point out what it is and explain it. If instead I just say the bill shouldn’t be doing this or that, it’s irrelevant to my critique and to my expertise. In that case I’m complaining as a political observer, not as a professional.
http://www.latimes.com/news/na…
Just wondering, since he’s on the anti-reform suit with Suthers.
Also seems like he would have a better chance of victory challenging the Utah (attempted) land grab. But then I guess upholding the Constitution is a selective thing, isn’t it?
Maybe Progress Now isn’t targeting lawyers with this email?
You goddamn null null elitist!
Are you trying to tell us that you’re not Triguardian?
It’s awfully lonely out there without the hive….
Seriously, though, we already have laws that mandate that people, under various circumstances, buy the product of for-profit insurance companies (liability insurance). The difference here is that it is not tied to any particular activity (e.g., driving), but rather mandated for everyone. It’s not impossible for a holding to pivot on that distinction, but I don’t see it.
Furthermore, a lot of our tax dollars go to for-profit companies, as governments contract out services. In this case, government just eliminated the middle man (i.e., government). Again, a holding can pivot on that, but….
I disagree with your last statement, if you mean that you’re not at all unhappy about it as a matter of public policy. I actually agree that getting everyone into the insurance pool is one component of successful and comprehensive healthcare reform. If we went to universal single-payer, as many of us would prefer, then everyone would be in the insurance pool via the federal government and our tax contribution. That we are continuing to use private rather than public agents to deliver that service is not, in and of itself, an issue for me.
The distinction between public and private sectors is not dichotomous. Each involve spectra projected toward the other and overlapping in the middle. The public sector becomes more and more “private-sector-like” a more outsourcing and more incorporation of market incentive-mechanisms are employed. The private sector, conversely, becomes more and more “public-sector-like” the more highly it is regulated. A heavily regulated private sector service provider can be more “public-sector-like” than a heavily outsourced and marketized public sector system of services provision.
The health insurance industry isn’t regulated enough yet by this small step, but it is more regulated than it was, and in some critical ways. We’re moving in the right direction.
If people don’t want to buy health insurance, then they’re banned from emergency rooms, walk-up medical clinics, the works. If EMTs are called, and the person is uninsured by choice, then the EMTs walk.
Then I have no problem with it.
From Suther’s office said he did think the Commerce Clause applied to the health care system but that he thought that the “mandate” was unconstitutional. Since the mandate is actually a tax penalty and doesn’t carry a criminal penalty, how does this lawsuit have any validity? Aren’t they arguing the power to tax? When I look at my paycheck and see FICA, I know that the federal government is taking money for services I don’t have a choice in buying; Medicare and Social Security. Wont those programs serve as precedent in this case?
n/t
from a legal point of view this mandate is not identical to a tax because a tax goes to the government to pay for government supplied services, while this is a mandate to buy something directly from a private firm. Court rulings have hinged on far finer distinctions than that.
Of course, we already have mandates to buy insurance from private insurance companies, in the form of auto liability insurance. Again, the distinction is that that mandate is triggered by the choice to enjoy the privilege of being licensed to drive, whereas the health insurance mandate is triggered by mere residency in the country. And, again, court rulings have hinged on finer distinctions than that.
So, from a legal analytical point of view, there is no a priori reason for declaring that there is, absolutely and without doubt, no legal merit to the case. One can only say that there appears to be no legal merit to the case.