-Troika- posted:

Concern trolling: a made up term that means "I disagree with you but I'm too dumb to explain why".

Discendo Vox posted:

It's worth noting that Scalia has seniority- any justice removed other than Scalia would result in him operating as chief justice in the interim. Removing Scalia would put Kennedy in the hotseat, which would be potentially beneficial, but there are others I'd like off the bench first.

Discendo Vox posted:

It's worth noting that Scalia has seniority- any justice removed other than Scalia would result in him operating as chief justice in the interim.

ActusRhesus posted:

Your suspicion is correct. He spoke at a friend's law school. She asked him if in light of his philosophies on textual originalism, he thought Marbury v. Madison's position on judicial review was wrongly decided, and if so, should the Supreme Court just pack it up?

He was not amused.

Discendo Vox posted:

Not My Leg posted:

Not sure what you meant to say here, but that's not how the position of Chief Justice works. Chief Justice is a separate position to which a person must be nominated or confirmed. Roberts is Chief Justice, and so long as he is on the bench he remains Chief Justice, regardless of who else might step down or get removed. The only way Scalia would become interim Chief Justice is if Roberts stepped down, leaving the Chief Justice's seat vacant. In that case, Scalia would be Chief until confirmation of a replacement.

quote:

The Court’s conservatives began to reject the capacious understanding — arrived at during the New Deal — of Congress’ ability to regulate economic activity at the state level, striking down the Gun-Free School Zones Act and part of the Violence Against Women Act. (Exceptions were made for Congress’ ability to pursue conservative policy objectives, such as using federal law to undo state-level efforts to liberalize drug laws.)

quote:

It’s not too late — it’s never too late — to join in the search for a politics in which judicial interference with democracy is not only unnecessary but unthinkable.

FlamingLiberal posted:

SCOTUS is holding a hearing Friday to determine if they will hear the Obamacare subsidies case. They will act before the DC Circuit rehearing occurs.

FlamingLiberal posted:

SCOTUS is holding a hearing Friday to determine if they will hear the Obamacare subsidies case. They will act before the DC Circuit rehearing occurs.

Radish posted:

Also it sounds like the most blatantly political rules-lawyering that would make them an absolute laughing stock if they actually cared about that. IANAL so maybe it has merit but from a layman's perspective the argument is absolutely absurd, especially considering the guy that wrote it says they are wrong (yes that wouldn't be the first time).

quote:

Questioner: You mentioned the health-information [sic] Exchanges for the states, and it is my understanding that if states don’t provide them, then the federal government will provide them for the states.

Gruber: Yeah, so these health-insurance Exchanges, you can go on ma.healthconnector.org and see ours in Massachusetts, will be these new shopping places and they’ll be the place that people go to get their subsidies for health insurance. In the law, it says if the states don’t provide them, the federal backstop will. The federal government has been sort of slow in putting out its backstop, I think partly because they want to sort of squeeze the states to do it. I think what’s important to remember politically about this, is if you’re a state and you don’t set up an Exchange, that means your citizens don’t get their tax credits. But your citizens still pay the taxes that support this bill. So you’re essentially saying to your citizens, you’re going to pay all the taxes to help all the other states in the country. I hope that’s a blatant enough political reality that states will get their act together and realize there are billions of dollars at stake here in setting up these Exchanges, and that they’ll do it. But you know, once again, the politics can get ugly around this.

WhiskeyJuvenile posted:

the other interpretation of that quote being "if you're a state and you don't set up your exchange, the federal government might not have theirs running" (which it didn't) "so your citizens might not get their subsidized health care"

FlamingLiberal posted:

Yeah, the argument is that according to the letter of what is in the ACA, if a state refused to set up their own exchange, people in that state who have to use the federal exchange instead should not be allowed to get their plans subsidized. They claim the law says that a state exchange is the only way you can get your plan subsidized, which is ludicrous. But there are several right wing groups suing over Obamacare on issues like this because they believe if they find just the right weakness in the legislation, SCOTUS will act and then decimate the bill. Obviously if they decide to take this, it's not a good sign. But it would be kind of odd if Roberts did, since he basically saved the law from death two years ago.

hobbesmaster posted:

Could Roberts just want to punt this thing on standing? Standing in this case was never very clear to me.

esquilax posted:

One of the newish developments after the DC court decision is that people discovered video and audio of the guy who wrote it saying the opposite in January 2012 (after it was already passed but before HHS released their rules) complete with reasoning for why federal exchanges can't get subsidies.

...

A lot of the new briefs in these cases reflect this information.

ActusRhesus posted:

serious question...isn't ALL constitutional litigation "rules lawyering"?

Kalman posted:

Sort of irrelevant though, as the opinion of one guy involved in drafting has nothing to do with Congress' views and everyone else in the world thought the opposite of that quote. I mean, yes, one person said it would work that way, but people deny climate change too. It's not even really legislative history in the standard meaning, and the current Court is suspicious of normal legislative history as an interpretive guide, much less this kind of external descriptive statement.

If they cite it in ruling against - which would surprise me - expect a pretty scathing dissent with lots of Scalia quotes about legislative history.

haveblue posted:

"Rules lawyering" means you're acting like a lawyer in an inappropriate context. Arguing before a court is an appropriate context.

esquilax posted:

I can't speak for anyone else but I called it political lawyering because I don't believe the initial academic proponents of the "no subsidies" interpretation actually believed it was more than a typo or poor drafting. Though they may have convinced themselves as they developed their argument.

As opposed to, say, second amendment interpretation where both sides generally believe in their interpretations.

The Warszawa posted:

Zivotofsky v. Kerry was argued yesterday - it's a pretty interesting case about State Department passport policy re: people born in Jerusalem.

ActusRhesus posted:

That's a really interesting case. Reading the coverage on it, I wonder if the analysis would be different if, for example, rather than ZOMG ISRAEL!!!! the issue in question was a family from "Taiwan" not wanting to be documented as coming from "Chinese Taipei," and whether we would care as much about pissing off the Chinese as the Palestinians, or if that example was used in argument. (Too lazy to listen to full argument) But it seems we are somewhat picking and choosing when we choose to recognize a country's self-proclaimed sovereign borders and when we don't...which I suppose is the essence of executive foreign policy decision-making.

hobbesmaster posted:

Could Roberts just want to punt this thing on standing? Standing in this case was never very clear to me.

ActusRhesus posted:

Reading the coverage on it, I wonder if the analysis would be different if, for example, rather than ZOMG ISRAEL!!!! the issue in question was a family from "Taiwan" not wanting to be documented as coming from "Chinese Taipei," and whether we would care as much about pissing off the Chinese as the Palestinians, or if that example was used in argument. (Too lazy to listen to full argument)

ulmont posted:

That example came up in the argument.

ActusRhesus posted:

That's a really interesting case. Reading the coverage on it, I wonder if the analysis would be different if, for example, rather than ZOMG ISRAEL!!!! the issue in question was a family from "Taiwan" not wanting to be documented as coming from "Chinese Taipei," and whether we would care as much about pissing off the Chinese as the Palestinians, or if that example was used in argument. (Too lazy to listen to full argument) But it seems we are somewhat picking and choosing when we choose to recognize a country's self-proclaimed sovereign borders and when we don't...which I suppose is the essence of executive foreign policy decision-making.

Kalman posted:

Well, given that there's a specific rule that Taiwan will be written on request (instead of China, which is what would be written if no request is made)...

quote:

JUSTICE GINSBURG:  I want ­­ and I must
8 interject at this point because you emphasize the Taiwan
9 example and it seems to me it's most distinguishable.
10 Taiwan and China maintained from the beginning there is
11 only one China, and so Taiwan is a place name.  It's a
12 region.  It's in no way recognizing, no ­­ there's no
13 question of recognition in the Taiwan event.
...
20  JUSTICE BREYER:  ­­ which I'd like an answer
21 to.  I don't think that Taiwan is a counterexample since
22 the policy of the State Department in that thing that's
23 FAM, which is the Foreign Affairs Manual, says pretty
24 clearly that if there's a dispute about the larger
25 power, i.e., China, you always can put in your passport
1 the smaller place of birth, like a city or I would think
2 your Taiwan.  So I don't hear the Department or I guess
3 I'm saying the experts saying that the Taiwan example
4 conflicted with their policy.

FlamingLiberal posted:

Yeah, the argument is that according to the letter of what is in the ACA, if a state refused to set up their own exchange, people in that state who have to use the federal exchange instead should not be allowed to get their plans subsidized. They claim the law says that a state exchange is the only way you can get your plan subsidized, which is ludicrous. But there are several right wing groups suing over Obamacare on issues like this because they believe if they find just the right weakness in the legislation, SCOTUS will act and then decimate the bill. Obviously if they decide to take this, it's not a good sign. But it would be kind of odd if Roberts did, since he basically saved the law from death two years ago.

Radish posted:

Also it sounds like the most blatantly political rules-lawyering that would make them an absolute laughing stock if they actually cared about that. IANAL so maybe it has merit but from a layman's perspective the argument is absolutely absurd, especially considering the guy that wrote it says they are wrong (yes that wouldn't be the first time).