Scalia then and now on ACA

[THE_DEVIL]

Before


Here's what he said back then, addressing an attorney who was proposing that only the mandate be struck down:
Let's consider how -- how your approach, severing as little as possible, thereby increases the deference that we're showing to Congress. It seems to me it puts Congress in this position: This Act is still in full effect. There is going to be this deficit that used to be made up by the mandatory coverage provision. All that money has to come from somewhere. You can't repeal the rest of the Act because you're not going to get 60 votes in the Senate to repeal the rest. It's not a matter of enacting a new Act. You got to get 60 votes to repeal it. So, the rest of the Act is going to be the law.[/QUOTE]After

Congress, in theory, could avoid these problems by passing a simple, one-sentence amendment to the Affordable Care Act. The entire basis for the lawsuit is the meaning of a four-word phrase, "established by the state." And during oral arguments, Scaliasuggested Congress would do just that, or at least something like it:

What about -- what about Congress? You really think Congress is just going to sit there while -- while all of the disastrous consequences ensue? I mean, how often have we come out with a decision such as the -- you know, the bankruptcy court decision? Congress adjusts, enacts a statute that -- that takes care of the problem. It happens all the time. Why is that not going to happen here?

 

[Lone Clone]

Originally posted by THE_DEVIL:
Before


Here's what he said back then, addressing an attorney who was proposing that only the mandate be struck down:
Let's consider how -- how your approach, severing as little as possible, thereby increases the deference that we're showing to Congress. It seems to me it puts Congress in this position: This Act is still in full effect. There is going to be this deficit that used to be made up by the mandatory coverage provision. All that money has to come from somewhere. You can't repeal the rest of the Act because you're not going to get 60 votes in the Senate to repeal the rest. It's not a matter of enacting a new Act. You got to get 60 votes to repeal it. So, the rest of the Act is going to be the law.

After

Congress, in theory, could avoid these problems by passing a simple, one-sentence amendment to the Affordable Care Act. The entire basis for the lawsuit is the meaning of a four-word phrase, "established by the state." And during oral arguments, Scaliasuggested Congress would do just that, or at least something like it:

What about -- what about Congress? You really think Congress is just going to sit there while -- while all of the disastrous consequences ensue? I mean, how often have we come out with a decision such as the -- you know, the bankruptcy court decision? Congress adjusts, enacts a statute that -- that takes care of the problem. It happens all the time. Why is that not going to happen here?[/QUOTE] Are you trying to imply there's an inconsistency?

 

[dandh]

He's talking about two completely different things.

But, I'm not shocked or even dismayed that the devil would try to deceive.

 

[aflachawk]

Originally posted by dandh:
He's talking about two completely different things.  

But, I'm not shocked or even dismayed that the devil would try to deceive.

He is in the process of making a decision. Unlike the libs on the court who already have their minds made up.
Posted from Rivals Mobile

 

[theiacowtipper]

Originally posted by aflachawk:

Originally posted by dandh:
He's talking about two completely different things. Â

But, I'm not shocked or even dismayed that the devil would try to deceive.

He is in the process of making a decision. Unlike the libs on the court who already have their minds made up.

Posted from Rivals Mobile

Are you seriously attempting to say that Scalia, Thomas, and Alito didn't have their minds made up prior to entering the arguments?

 

[jthawk]

Originally posted by aflachawk:

Originally posted by dandh:
He's talking about two completely different things.  

But, I'm not shocked or even dismayed that the devil would try to deceive.

He is in the process of making a decision. Unlike the libs on the court who already have their minds made up.
Posted from Rivals Mobile

Or as the NYT calls them-the Moderates. For the Times, the court is comprised of conservative and moderate judges-LMAO
Posted from Rivals Mobile

 

[aflachawk]

Originally posted by theiacowtipper:

Originally posted by aflachawk:

Originally posted by dandh:
He's talking about two completely different things. Â

But, I'm not shocked or even dismayed that the devil would try to deceive.

He is in the process of making a decision. Unlike the libs on the court who already have their minds made up.


Posted from Rivals Mobile

Are you seriously attempting to say that Scalia, Thomas, and Alito didn't have their minds made up prior to entering the arguments?

Yes, matter of fact I believe that's pretty obvious given their questions. I believe the main thing they try and figure out is how does this square with the constitution, the liberal members, on the other hand, are always looking on advancing their political agenda. Its obvious from watching national pols that that cons look at the constitution as a kind of guiding light. Libs look at it as some thing to get around. That was obvious with BHO's decision to do what he did with illegal immigrants. He is on record 22 times saying he did not have the constitutional authority to do it, then the politics became more important to him than the law.

 

[theiacowtipper]

Originally posted by aflachawk:

Originally posted by theiacowtipper:

Originally posted by aflachawk:

Originally posted by dandh:
He's talking about two completely different things. Â

But, I'm not shocked or even dismayed that the devil would try to deceive.

He is in the process of making a decision. Unlike the libs on the court who already have their minds made up.



Posted from Rivals Mobile

Are you seriously attempting to say that Scalia, Thomas, and Alito didn't have their minds made up prior to entering the arguments?

Yes, matter of fact I believe that's pretty obvious given their questions. I believe the main thing they try and figure out is how does this square with the constitution, the liberal members, on the other hand, are always looking on advancing their political agenda. Its obvious from watching national pols that that cons look at the constitution as a kind of guiding light. Libs look at it as some thing to get around. That was obvious with BHO's decision to do what he did with illegal immigrants. He is on record 22 times saying he did not have the constitutional authority to do it, then the politics became more important to him than the law.

You must have read a different transcript of the questioning than I did. It was very clear from the first question that seven of the justices had made up their mind prior to the first statement being made, the exceptions being Roberts and Kennedy. To deny that is to deny reality. The rest of your statement is irrelevant to the current discussion of the thread. Obama's actions may or may not be constitutional, but the are irrelevant to the ACA.

Your bolded statement is nonsense. They look at it as a document that should be used as a bludgeon when it is to their benefit, and as a fluid document when it is not. When the cons fight for equal protection as hard as they fight for the right to bear arms let me know.

 

[naturalmwa]

Originally posted by theiacowtipper:

Originally posted by aflachawk:

Yes, matter of fact I believe that's pretty obvious given their questions. I believe the main thing they try and figure out is how does this square with the constitution, the liberal members, on the other hand, are always looking on advancing their political agenda. Its obvious from watching national pols that that cons look at the constitution as a kind of guiding light. Libs look at it as some thing to get around. That was obvious with BHO's decision to do what he did with illegal immigrants. He is on record 22 times saying he did not have the constitutional authority to do it, then the politics became more important to him than the law.

You must have read a different transcript of the questioning than I did. It was very clear from the first question that seven of the justices had made up their mind prior to the first statement being made, the exceptions being Roberts and Kennedy. To deny that is to deny reality. The rest of your statement is irrelevant to the current discussion of the thread. Obama's actions may or may not be constitutional, but the are irrelevant to the ACA.

Your bolded statement is nonsense. They look at it as a document that should be used as a bludgeon when it is to their benefit, and as a fluid document when it is not. When the cons fight for equal protection as hard as they fight for the right to bear arms let me know.

+1

 

[slieb85]

Originally posted by naturalmwa:

Originally posted by theiacowtipper:

Originally posted by aflachawk:

Yes, matter of fact I believe that's pretty obvious given their questions. I believe the main thing they try and figure out is how does this square with the constitution, the liberal members, on the other hand, are always looking on advancing their political agenda. Its obvious from watching national pols that that cons look at the constitution as a kind of guiding light. Libs look at it as some thing to get around. That was obvious with BHO's decision to do what he did with illegal immigrants. He is on record 22 times saying he did not have the constitutional authority to do it, then the politics became more important to him than the law.

You must have read a different transcript of the questioning than I did. It was very clear from the first question that seven of the justices had made up their mind prior to the first statement being made, the exceptions being Roberts and Kennedy. To deny that is to deny reality. The rest of your statement is irrelevant to the current discussion of the thread. Obama's actions may or may not be constitutional, but the are irrelevant to the ACA.

Your bolded statement is nonsense. They look at it as a document that should be used as a bludgeon when it is to their benefit, and as a fluid document when it is not. When the cons fight for equal protection as hard as they fight for the right to bear arms let me know.

+1

+2. That was an ass-whoopin.

I can't stand the rhetoric that somehow the new Republican Party has the monopoly on Constitutional interpretation, or even more specifically, on the desire to act within the bounds of the Constitution. 9 very bright and generally morally sound people are going to investigate this, and come to their interpretation of if it is Constitutional or not. The idea that any group are more "Constitutionally sound" than the other group is nonsense. Some Justices are better than others (I think Scalia is better than Thomas for the consistently right and that Kagan is better than Sotomayor for the consistently left, I think Kennedy and Breyer are the two best), but they are all very bright and accomplished people. To act like their decisions are against what the Constitution means is silly. They just have a different interpretation of Constitutionality than you do.

 

[Lone Clone]

Originally posted by slieb85:

Originally posted by naturalmwa:

Originally posted by theiacowtipper:

Originally posted by aflachawk:

Yes, matter of fact I believe that's pretty obvious given their questions. I believe the main thing they try and figure out is how does this square with the constitution, the liberal members, on the other hand, are always looking on advancing their political agenda. Its obvious from watching national pols that that cons look at the constitution as a kind of guiding light. Libs look at it as some thing to get around. That was obvious with BHO's decision to do what he did with illegal immigrants. He is on record 22 times saying he did not have the constitutional authority to do it, then the politics became more important to him than the law.

You must have read a different transcript of the questioning than I did. It was very clear from the first question that seven of the justices had made up their mind prior to the first statement being made, the exceptions being Roberts and Kennedy. To deny that is to deny reality. The rest of your statement is irrelevant to the current discussion of the thread. Obama's actions may or may not be constitutional, but the are irrelevant to the ACA.

Your bolded statement is nonsense. They look at it as a document that should be used as a bludgeon when it is to their benefit, and as a fluid document when it is not. When the cons fight for equal protection as hard as they fight for the right to bear arms let me know.

+1

+2. That was an ass-whoopin.

I can't stand the rhetoric that somehow the new Republican Party has the monopoly on Constitutional interpretation, or even more specifically, on the desire to act within the bounds of the Constitution. 9 very bright and generally morally sound people are going to investigate this, and come to their interpretation of if it is Constitutional or not. The idea that any group are more "Constitutionally sound" than the other group is nonsense. Some Justices are better than others (I think Scalia is better than Thomas for the consistently right and that Kagan is better than Sotomayor for the consistently left, I think Kennedy and Breyer are the two best), but they are all very bright and accomplished people. To act like their decisions are against what the Constitution means is silly. They just have a different interpretation of Constitutionality than you do.

I think you're right, but I also think the liberal justices are more likely to be result-driven than are the conservatives. Ginsburg seems to be wholly result-driven. And I disagree with the idea that they are trying to implement an ideology. I think they are trying to get the result they think would be best for the country; the effect is to further an ideology, but I don't think that's the primary goal.

This isn't exclusive to liberals. I think Roberts pulled the "it's a tax" decision out of his butt because he didn't want to overturn Obamacare. I think the five justices that called an end to the recount of Florida in 2000 did so because once the court had voted 6-3 to throw out the latest decision by SCOFLA, they were trying to spare the country further chaos to no possible purpose.

But if you look at the justices, now and before, who specifically talk about the result of various rulings, you find that a preponderance of them are on the left.

 

[slieb85]

Originally posted by Lone Clone:

Originally posted by slieb85:

Originally posted by naturalmwa:

Originally posted by theiacowtipper:

Originally posted by aflachawk:

Yes, matter of fact I believe that's pretty obvious given their questions. I believe the main thing they try and figure out is how does this square with the constitution, the liberal members, on the other hand, are always looking on advancing their political agenda. Its obvious from watching national pols that that cons look at the constitution as a kind of guiding light. Libs look at it as some thing to get around. That was obvious with BHO's decision to do what he did with illegal immigrants. He is on record 22 times saying he did not have the constitutional authority to do it, then the politics became more important to him than the law.

You must have read a different transcript of the questioning than I did. It was very clear from the first question that seven of the justices had made up their mind prior to the first statement being made, the exceptions being Roberts and Kennedy. To deny that is to deny reality. The rest of your statement is irrelevant to the current discussion of the thread. Obama's actions may or may not be constitutional, but the are irrelevant to the ACA.

Your bolded statement is nonsense. They look at it as a document that should be used as a bludgeon when it is to their benefit, and as a fluid document when it is not. When the cons fight for equal protection as hard as they fight for the right to bear arms let me know.

+1

+2. That was an ass-whoopin.

I can't stand the rhetoric that somehow the new Republican Party has the monopoly on Constitutional interpretation, or even more specifically, on the desire to act within the bounds of the Constitution. 9 very bright and generally morally sound people are going to investigate this, and come to their interpretation of if it is Constitutional or not. The idea that any group are more "Constitutionally sound" than the other group is nonsense. Some Justices are better than others (I think Scalia is better than Thomas for the consistently right and that Kagan is better than Sotomayor for the consistently left, I think Kennedy and Breyer are the two best), but they are all very bright and accomplished people. To act like their decisions are against what the Constitution means is silly. They just have a different interpretation of Constitutionality than you do.

I think you're right, but I also think the liberal justices are more likely to be result-driven than are the conservatives. Ginsburg seems to be wholly result-driven. And I disagree with the idea that they are trying to implement an ideology. I think they are trying to get the result they think would be best for the country; the effect is to further an ideology, but I don't think that's the primary goal.

This isn't exclusive to liberals. I think Roberts pulled the "it's a tax" decision out of his butt because he didn't want to overturn Obamacare. I think the five justices that called an end to the recount of Florida in 2000 did so because once the court had voted 6-3 to throw out the latest decision by SCOFLA, they were trying to spare the country further chaos to no possible purpose.

But if you look at the justices, now and before, who specifically talk about the result of various rulings, you find that a preponderance of them are on the left.

I mean, Breyer pretty much outright admits that he's result driven. In the sense that he analyzes the results that would happen and if those results are within constitutional bounds. I just don't think that is necessarily against the Constitution, so to speak. There are multiple ways to view constitutional interpretation, and I think it's rather unfair to claim that "result-driven" is using the Constitution as a guiding light less than the way a strict originalist uses it.

I agree with both of your points with Roberts and Bush/Gore. And there are plenty others. Going all the way back to Marbury. They all fudge it from time to time. But, I don't think an approach like Breyer's is per se fudging. I think he can fudge just as Scalia can. If that makes sense.

 

[naturalmwa]

Originally posted by Lone Clone:

I think you're right, but I also think the liberal justices are more likely to be result-driven than are the conservatives. Ginsburg seems to be wholly result-driven. And I disagree with the idea that they are trying to implement an ideology. I think they are trying to get the result they think would be best for the country; the effect is to further an ideology, but I don't think that's the primary goal.

This isn't exclusive to liberals. I think Roberts pulled the "it's a tax" decision out of his butt because he didn't want to overturn Obamacare. I think the five justices that called an end to the recount of Florida in 2000 did so because once the court had voted 6-3 to throw out the latest decision by SCOFLA, they were trying to spare the country further chaos to no possible purpose.

But if you look at the justices, now and before, who specifically talk about the result of various rulings, you find that a preponderance of them are on the left.

I've always thought liberals were more practical than cons too, but its nice to get confirmation.

 

[Lone Clone]

Originally posted by slieb85:

Originally posted by Lone Clone:

Originally posted by slieb85:

Originally posted by naturalmwa:

Originally posted by theiacowtipper:

Originally posted by aflachawk:

Yes, matter of fact I believe that's pretty obvious given their questions. I believe the main thing they try and figure out is how does this square with the constitution, the liberal members, on the other hand, are always looking on advancing their political agenda. Its obvious from watching national pols that that cons look at the constitution as a kind of guiding light. Libs look at it as some thing to get around. That was obvious with BHO's decision to do what he did with illegal immigrants. He is on record 22 times saying he did not have the constitutional authority to do it, then the politics became more important to him than the law.

You must have read a different transcript of the questioning than I did. It was very clear from the first question that seven of the justices had made up their mind prior to the first statement being made, the exceptions being Roberts and Kennedy. To deny that is to deny reality. The rest of your statement is irrelevant to the current discussion of the thread. Obama's actions may or may not be constitutional, but the are irrelevant to the ACA.

Your bolded statement is nonsense. They look at it as a document that should be used as a bludgeon when it is to their benefit, and as a fluid document when it is not. When the cons fight for equal protection as hard as they fight for the right to bear arms let me know.

+1

+2. That was an ass-whoopin.

I can't stand the rhetoric that somehow the new Republican Party has the monopoly on Constitutional interpretation, or even more specifically, on the desire to act within the bounds of the Constitution. 9 very bright and generally morally sound people are going to investigate this, and come to their interpretation of if it is Constitutional or not. The idea that any group are more "Constitutionally sound" than the other group is nonsense. Some Justices are better than others (I think Scalia is better than Thomas for the consistently right and that Kagan is better than Sotomayor for the consistently left, I think Kennedy and Breyer are the two best), but they are all very bright and accomplished people. To act like their decisions are against what the Constitution means is silly. They just have a different interpretation of Constitutionality than you do.

I think you're right, but I also think the liberal justices are more likely to be result-driven than are the conservatives. Ginsburg seems to be wholly result-driven. And I disagree with the idea that they are trying to implement an ideology. I think they are trying to get the result they think would be best for the country; the effect is to further an ideology, but I don't think that's the primary goal.

This isn't exclusive to liberals. I think Roberts pulled the "it's a tax" decision out of his butt because he didn't want to overturn Obamacare. I think the five justices that called an end to the recount of Florida in 2000 did so because once the court had voted 6-3 to throw out the latest decision by SCOFLA, they were trying to spare the country further chaos to no possible purpose.

But if you look at the justices, now and before, who specifically talk about the result of various rulings, you find that a preponderance of them are on the left.

I mean, Breyer pretty much outright admits that he's result driven. In the sense that he analyzes the results that would happen and if those results are within constitutional bounds. I just don't think that is necessarily against the Constitution, so to speak. There are multiple ways to view constitutional interpretation, and I think it's rather unfair to claim that "result-driven" is using the Constitution as a guiding light less than the way a strict originalist uses it.

I agree with both of your points with Roberts and Bush/Gore. And there are plenty others. Going all the way back to Marbury. They all fudge it from time to time. But, I don't think an approach like Breyer's is per se fudging. I think he can fudge just as Scalia can. If that makes sense.
======================
Agree with most of that, but I don't think ruling by result is as legitimate as the originalist perspective. Ruling by result is legislating. It's the cart before the horse. It's determining what you think the best result would be, then finding a way to support it with the Constitution. The other is looking at the Constitution, determining what it means, and letting the chips fall where they might, even if that means a disaster.

I don't think Breyer or Ginsburg are fudging. I think they just have a far different view of their role than the conservatives (and far different than the Founders intended). The problem with that view is that if all 9 of them had it, there would be nobody to apply the Constitution.

 

[slieb85]

Originally posted by Lone Clone:

Agree with most of that, but I don't think ruling by result is as legitimate as the originalist perspective. Ruling by result is legislating. It's the cart before the horse. It's determining what you think the best result would be, then finding a way to support it with the Constitution. The other is looking at the Constitution, determining what it means, and letting the chips fall where they might, even if that means a disaster.

I don't think Breyer or Ginsburg are fudging. I think they just have a far different view of their role than the conservatives (and far different than the Founders intended). The problem with that view is that if all 9 of them had it, there would be nobody to apply the Constitution.

I think it's different, honestly. I'll try to cook up a scenario that illustrates the difference in my mind during my next class and post it.

Essentially something where the results of applying the literal text of the statute would produce a result that violates someone's 14th/5th/2nd/1st Amendment rights. In that case, Breyer would say, "let's see what would happen if we took the statute at it's face, okay, it's infringing on Constitutional rights, even though the text, through the originalist interpretation, seems to be perfectly constitutional, it's application under that reading would lead to an unconstitutional result, and we can't assume Congress enacted a statute that would lead to unconstitutional results." That to me is "result-driven", but not "I want this to say something different because of my politics", which is what I feel a lot of Conservatives accuse the liberal members of the court of doing.

I've seen it play out in cases before, but con law was a year ago and I've forgotten most of it. I think we might have had it in a conflicts of laws case this year where the originalist reading would lead to an unconstitutional result, I'll see if I can find that.