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falk

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About falk

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  1. falk

    Obamacare

    Again, with due respect, the Court has determined beforehand -- in unanimous decisions as well no less -- that this interpretation of the commerce clause is inadequate. Now, don't get me wrong, a faulty and overly-broad interpretation of the clause can lead to examples of judicial activism practiced by both ends of the court, originalist and contextualist/purposivist. My qualm with your assessment is primarily based around the evidence that you've cited to back your claim. For obvious reasons, the Founding Fathers did not create a commerce clause to look at individual transactions subject to federal regulation. They obviously intended to create a clause that would provide the government with an ability to regulate on the whole, assessing the extent to which gross impacts on society may be changed based on the actions, emphasis on actions, of corporate or individualistic entities. So the misunderstanding seems to be that you would assess the clause based on a transactional understanding, while the majority of jurisprudential thought on the topic assesses it based on a understanding of aggregate impact. Subsequently, based on the fact that we can clearly see that this idea is followed in the courts, the following determinations would logically conclude that -- because of the wide reach and breadth of economic issues -- the congress would be the primary agent of intervention, not the courts by mechanism of contract. If we assume that the clause deals with a transactional nature of understanding, then the courts would be effectively flooded with now very litigious, very specific areas of administrative law that Congress, with its "actual experience," should have the prerogative in dealing with, not the courts. If you disagree with that assessment, fine, but realize you effectively give an unfounded and unprecedented level of power to the courts instead. Why? Because the engaged lower standard by which economic issues are reviewed in courts typically defer to Congress as a result of the commerce clause and plenary powers. The political institutions were inherently the institutions that the Founding Fathers thought appropriate in dealing with economic matters, not the courts. So if you agree with the Founding Fathers, it would make sense to agree that a broad, existential understanding of the commerce clause does not in fact defer to a limited understanding by the courts, but rather an understanding of the "arena of experience" that Congress has in the matter, in deference to their expertise. Essentially, my argument is that my interpretation of the commerce clause defers to the people in a way that the Founding Fathers would have preferred, given the lower standard of judicial review that is typically used in the consideration of financial decisions. Yours, while on face value giving way to business and the right of business association, actually constricts that said power because it limits the political process and shifts the arena of power more in the direction of an unelected court, possibly even giving way to some sort of modern Lochner era.
  2. falk

    Obamacare

    Sounds good, please let me know what you find! As you might be able to tell, I have a deep and professionally vested interest in the law and the court; I'm sure anything you find on the matter would be of similar interest to me as much as it would be to you!
  3. falk

    Obamacare

    I see what you're saying, the only thing that I would raise an issue with is the phrasing of the particular term "party lines." However, I think we can both agree -- because you also seem to have strong opinions on the court, many of which I respect greatly -- that the court, in closer and more controversial decisions, tends to be divided on more doctrinal lines. Judges rarely leave their professions, so you have defense bar/trial bar type lawyers turned judges, both of whom practice and excel in very different things as a result (Defense bar lawyers tend to refer to standing of a case, thus leaning towards a more textual, originalist approach while trial bar lawyers often pursue more aggressive, open interpretations of legal text etc.) I think background and jurisprudential record should be considered more important, and I think it dangerous to amalgamate the two into one, because then we accept the premise that the execution and assessment of the law are inherently motivated by politics. I think there's similarly a good case to make that Scalia and many of the more maybe ideological judges were conveniently doctrinal -- which I believe you are referring to -- willingly dropping the pretense of their judicial ideology when inapplicable. I get that. I just want to acknowledge that the good, if not overwhelming, majority of cases do not fall on these lines.
  4. falk

    Obamacare

    I feel like I have to come in and defend the work of the court as not necessarily divided "firmly on party lines." The appointment process certainly has, but I do not believe that the actual Court itself has. Unless you were suggesting that everything but the Court divides firmly on party lines, I think the core intent of what I had said was more primarily oriented around saying that I believed Roberts to be a political figure oriented more around the institution of the Court than party lines; similar to how a First Lady may be a political figure in traditionally being entrusted to keep the prestige of the White House in maintenance and decoration, work that is rarely divided firmly on party lines.
  5. falk

    Obamacare

    That's actually a really interesting take on it because I agree with you that the process will likely be politicized and that's exactly why I think Chief Justice Roberts will side with the liberals on the court to reverse this decision. If you look at Chief Justice Roberts' confirmation hearings, he talks a lot about the reputation of the Court and, in essence, its relevance and respect as an institution. His time on the bench has been marked by an uptick in unanimous decisions and a lack of sweeping decisions on core political doctrines relating to legislation, a indication that Roberts isn't somebody who looks to use the Court as a vehicle to drive his personal policy ambitions. That's why Roberts -- with NFIB v. Sebelius when this exact issue came into consideration -- pulled an almost Marshall-esque political maneuver by being the only justice who thought the law was constitutional under one provision and not the other. That doesn't symbolize a lack of fidelity to his jurisprudential doctrine as much as it symbolizes his fidelity to the institution of the court, making sure that it garners the respect and credibility of Washington as an impartial institution that works as somewhat of an incrementalist entity. So if anything, I would suggest the political nature of the case would make Roberts side with the liberal half of the Court, reversing the decision and upholding the law.
  6. falk

    Obamacare

    Interesting, do you not think that the enormity of the insurance market -- especially the health care sector -- in the economy warrants Court deference to Congress to interfere, citing the broad scope of the commerce clause in interstate commerce? For one, we can agree surely that everyone is in the insurance "market", whether one actually buys insurance or not. The practical considerations by the Court should then logically conclude that -- because the commerce clause doesn't only allow for the regulation of active, transactional commerce -- Congress is merely trying to rectify the issue of a high number of uninsured Americans that individual states cannot address on their own. We should be able to agree that the movement of millions from uninsured to insured would dramatically affect interstate commerce. The decision of you or I to not purchase health insurance is a decision that has dramatic consequences on interstate commerce, so of course the Courts must defer to Congress on the regulatory scope of the matter.
  7. falk

    Obamacare

    On a more conceptual sense, do you think that even if the bill was reviewed specifically under the lens of commerce-clause application, that the individual mandate would be found unconstitutional?
  8. falk

    Obamacare

    A few questions: Under what context would the debate change to one about the commerce clause? Even if it does turn into a debate about the commerce clause, can you explain why the decision would then be upheld? Asking out of curiosity seeing as how I still don't necessarily understand that argument.
  9. falk

    Obamacare

    If we agree that the primary issue was one of standing and not the heated epistemological jurisprudential debate around federalism and the commerce clause, then surely we can agree that any sort of appeal to the highest court would result in a reversal of this sweeping decision made in Texas.
  10. falk

    Obamacare

    Okay, so basically you are primarily arguing that the Court found the individual mandate to be constitutional based on the fact that it was a tax. This being the case because of the constitutional theory that while the government can regulate interstate commerce, it may not force it. I am arguing that the court's argument was more based on standing. Now, was what you reference part of the court's decision? Sure. But primarily the court found issue with the application of the Anti-Injunction Act and, subsequently, standing for the challenge. This makes sense as well in an abstract sense: remember that Roberts used to be a member of the defense bar, defending corporate interests, and a significant amount of cases that he tried before his time on the bench were oriented around arguments of standing. So it makes sense that he would have based his defense of the provision around an issue of standing, or lack thereof.
  11. falk

    Obamacare

    Okay, I think we can agree with the select application of severability in this case, but that's not my main argument. I am suggesting that your interpretation of the Supreme Court's view on the individual mandate was not particularly correct, and as a result severability is not even relevant.
  12. falk

    Obamacare

    No, with all due respect, the Court's application of the commerce clause was restricted significantly in scope to only a few questions in NFIB. In NFIB the main point of contention behind the individual mandate was actually standing, with provided the court a sufficient reason to maintain its application in the ACA. I agreed with you to an extent about the individual mandate, however the reasoning that you provided is not particularly correct with respect to the greater application of the commerce clause. And the decision would throw a wrench in the ACA, if the court stipulated some form of remedy that would include injunctive relief -- because it does not, I would say that the decision does not "throw a wrench" in the ACA.
  13. falk

    Obamacare

    If we can agree that NFIB v. Sebelius, in a number of different opinions, opined that the individual mandate was constitutional, I find it difficult to see the court changing it's opinion on the topic just a few years later. Because the main jurisprudential thrust behind this particular decision was oriented around saying that the individual mandate was unconstitutional, and because the entire bill could not operate in its core intent without it, that decision effectively made the whole bill moot. This issue has already been directly adjudicated by the courts, as we agreed upon, and I cannot see the court changing its opinion just years after it issued it.
  14. falk

    Obamacare

    Under what circumstances do you think a higher court would uphold the decision made by this court? Legitimately curious
  15. falk

    Obamacare

    I doubt this decision will have any actual impact other than move the topic of healthcare back to the forefront of political debate (where it has been already for years.) 1. The court refused to issue an injunction. 2. The decision will almost certainly be reversed on appeal.
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