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Old 11-14-2011, 09:28 AM  
alnorth alnorth is offline
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Supreme Court agrees to hear Obamacare challenge

Oral argument in March. That the Supreme Court agreed to hear the appeal is not really a surprise, but what may be a surprise is the amount of time for oral arguments. The Obamacare supreme court oral argument will be 6 hours, which obliterates the modern record for longest oral argument. (in the earliest days of the court they had days of oral argument, but in the last couple generations, oral argument was typically one hour per case. The prior modern record was 4 hours in 2003 for a campaign finance reform law)

The court will hear arguments on four issues.

#1) The constitutionality of the requirement that almost all Americans obtain health insurance by 2014. (2 hours)

#2) If the mandate in #1 is struck down, will the entire law need to be struck down? (90 minutes)

#3) Does the anti-injunction act bar challenges to Obamacare's mandate. (in other words, if the answer to this question is yes, then the court will not answer #1, #2, and probably #4 at this time. The Obamacare challenge would be thrown out and the people who are opposed to the mandate would have to wait until 2014 to re-file the case) (90 minutes)

#4) The constitutionality of the expansion of Medicaid. (1 hour)

The court refused to hear challenges to the new requirements for employers, so that would stand unless the entire law was tossed.

Update:

Oral Argument Schedule:

Monday, March 26: Issue #3 (its probably fitting that this should be heard first)

Neither side wants to argue that the supreme court can't rule until 2015, so the supreme court appointed an outside attorney to make that argument. This is a rare issue where both the feds and the states agree.

Outside attorney: 40 minutes
Feds: 30 minutes
NFIB and states: 20 minutes

Tuesday, March 27: Issue #1

Feds: 1 hour
States: 30 minutes
NFIB: 30 minutes

Wednesday, March 28: Issues #2 and #4

Issue #2:

The states believe if the mandate is struck down, then the whole law must be struck down, and the feds believe if the mandate is struck down, the ban on pre-existing conditions must also be struck down. Neither side believes that only the mandate can be struck down, leaving the rest of the law intact, so the court appointed an outside attorney to make that argument.

Outside attorney: 30 minutes
Feds: 30 minutes
NFIB and states: 30 minutes

Issue #4:

Feds: 30 minutes
States: 30 minutes

Last edited by alnorth; 03-23-2012 at 09:06 PM..
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Old 11-14-2011, 12:29 PM   #31
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Originally Posted by Direckshun View Post
THEIR livelihood was built directly from opposing this piece of legislation, among others.

They have a vested interest.
Nope. There is nothing here that impacts her ability to earn, one way or the other and there is no indication of prejudgement on his part. No reason to even consider recusal. Kagen, on the other hand, has been a central advocate and gave advice to the administration on this specific legal matter.
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Old 11-14-2011, 12:43 PM   #32
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Here's the actual recusal law:

TITLE 28 > PART I > CHAPTER 21 > § 455

§ 455. Disqualification of justice, judge, or magistrate judge

(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

(b) He shall also disqualify himself in the following circumstances:
(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
(2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;
(3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy;
(4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;
(5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:
(i) Is a party to the proceeding, or an officer, director, or trustee of a party;
(ii) Is acting as a lawyer in the proceeding;
(iii) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;
(iv) Is to the judge’s knowledge likely to be a material witness in the proceeding.
(c) A judge should inform himself about his personal and fiduciary financial interests, and make a reasonable effort to inform himself about the personal financial interests of his spouse and minor children residing in his household.

(d) For the purposes of this section the following words or phrases shall have the meaning indicated:
(1) “proceeding” includes pretrial, trial, appellate review, or other stages of litigation;
(2) the degree of relationship is calculated according to the civil law system;
(3) “fiduciary” includes such relationships as executor, administrator, trustee, and guardian;
(4) “financial interest” means ownership of a legal or equitable interest, however small, or a relationship as director, adviser, or other active participant in the affairs of a party, except that:
(i) Ownership in a mutual or common investment fund that holds securities is not a “financial interest” in such securities unless the judge participates in the management of the fund;
(ii) An office in an educational, religious, charitable, fraternal, or civic organization is not a “financial interest” in securities held by the organization;
(iii) The proprietary interest of a policyholder in a mutual insurance company, of a depositor in a mutual savings association, or a similar proprietary interest, is a “financial interest” in the organization only if the outcome of the proceeding could substantially affect the value of the interest;
(iv) Ownership of government securities is a “financial interest” in the issuer only if the outcome of the proceeding could substantially affect the value of the securities.
(e) No justice, judge, or magistrate judge shall accept from the parties to the proceeding a waiver of any ground for disqualification enumerated in subsection (b). Where the ground for disqualification arises only under subsection (a), waiver may be accepted provided it is preceded by a full disclosure on the record of the basis for disqualification.

(f) Notwithstanding the preceding provisions of this section, if any justice, judge, magistrate judge, or bankruptcy judge to whom a matter has been assigned would be disqualified, after substantial judicial time has been devoted to the matter, because of the appearance or discovery, after the matter was assigned to him or her, that he or she individually or as a fiduciary, or his or her spouse or minor child residing in his or her household, has a financial interest in a party (other than an interest that could be substantially affected by the outcome), disqualification is not required if the justice, judge, magistrate judge, bankruptcy judge, spouse or minor child, as the case may be, divests himself or herself of the interest that provides the grounds for the disqualification.

The general rule (a) is interpreted narrowly, giving the judge the benefit of the doubt. Neither Kagan nor Thomas should be disqualified for that grounds.

Rule (b)1 could apply to either. Has either of them made any statements indicating personal bias or prejudice? I haven't heard any. I invite anyone to submit any that they think apply for review/mockery.

Rule (b)3 does not apply. Kagan did not participate as counselor, advisor, or witness in the Patient Protection and Affordable Care Act. Again, if you want to challenge that, please state your "evidence." I could use a good laugh.

Rule (b)4 seems to apply. It specifically states that a spouse's financial interests are disqualifying. Thomas' wife has a financial interest - she's a paid lobbyist. Nearly $700,000 - which somehow escaped Thomas' mind when he filled out his disclosures. (b)5 iii also seems to apply.
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Old 11-14-2011, 12:45 PM   #33
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Quote:
Originally Posted by orange View Post
Here's the actual recusal law:

TITLE 28 > PART I > CHAPTER 21 > § 455

§ 455. Disqualification of justice, judge, or magistrate judge

(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

(b) He shall also disqualify himself in the following circumstances:
(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
(2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;
(3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy;
(4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;
(5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:
(i) Is a party to the proceeding, or an officer, director, or trustee of a party;
(ii) Is acting as a lawyer in the proceeding;
(iii) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;
(iv) Is to the judge’s knowledge likely to be a material witness in the proceeding.
(c) A judge should inform himself about his personal and fiduciary financial interests, and make a reasonable effort to inform himself about the personal financial interests of his spouse and minor children residing in his household.

(d) For the purposes of this section the following words or phrases shall have the meaning indicated:
(1) “proceeding” includes pretrial, trial, appellate review, or other stages of litigation;
(2) the degree of relationship is calculated according to the civil law system;
(3) “fiduciary” includes such relationships as executor, administrator, trustee, and guardian;
(4) “financial interest” means ownership of a legal or equitable interest, however small, or a relationship as director, adviser, or other active participant in the affairs of a party, except that:
(i) Ownership in a mutual or common investment fund that holds securities is not a “financial interest” in such securities unless the judge participates in the management of the fund;
(ii) An office in an educational, religious, charitable, fraternal, or civic organization is not a “financial interest” in securities held by the organization;
(iii) The proprietary interest of a policyholder in a mutual insurance company, of a depositor in a mutual savings association, or a similar proprietary interest, is a “financial interest” in the organization only if the outcome of the proceeding could substantially affect the value of the interest;
(iv) Ownership of government securities is a “financial interest” in the issuer only if the outcome of the proceeding could substantially affect the value of the securities.
(e) No justice, judge, or magistrate judge shall accept from the parties to the proceeding a waiver of any ground for disqualification enumerated in subsection (b). Where the ground for disqualification arises only under subsection (a), waiver may be accepted provided it is preceded by a full disclosure on the record of the basis for disqualification.

(f) Notwithstanding the preceding provisions of this section, if any justice, judge, magistrate judge, or bankruptcy judge to whom a matter has been assigned would be disqualified, after substantial judicial time has been devoted to the matter, because of the appearance or discovery, after the matter was assigned to him or her, that he or she individually or as a fiduciary, or his or her spouse or minor child residing in his or her household, has a financial interest in a party (other than an interest that could be substantially affected by the outcome), disqualification is not required if the justice, judge, magistrate judge, bankruptcy judge, spouse or minor child, as the case may be, divests himself or herself of the interest that provides the grounds for the disqualification.

The general rule (a) is interpreted narrowly, giving the judge the benefit of the doubt. Neither Kagan nor Thomas should be disqualified for that grounds.

Rule (b)1 could apply to either. Has either of them made any statements indicating personal bias or prejudice? I haven't heard any. I invite anyone to submit any that they think apply for review/mockery.

Rule (b)3 does not apply. Kagan did not participate as counselor, advisor, or witness in the Patient Protection and Affordable Care Act. Again, if you want to challenge that, please state your "evidence." I could use a good laugh.

Rule (b)4 seems to apply. It specifically states that a spouse's financial interests are disqualifying. Thomas' wife has a financial interest - she's a paid lobbyist. Nearly $700,000 - which somehow escaped Thomas' mind when he filled out his disclosures.
Thomas' wife doesn't have a financial interest.
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Old 11-14-2011, 12:47 PM   #34
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Bottom line this is a tax that was not voted on by Congress and should be struck down.
Obamacare wasn't voted on in Congress?
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Old 11-14-2011, 12:49 PM   #35
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Originally Posted by patteeu View Post
Thomas' wife doesn't have a financial interest.
Yes, she does. She's a paid lobbyist for organizations that have and continue to oppose the law.

Now, be sure to tell petegz28 [edit] and patteeu [/edit] his argument that Virginia Thomas doesn't matter is vacuous.

Quote:
Originally Posted by patteeu View Post
You've convinced me. Clarence Thomas's wife should definitely recuse herself.

Last edited by orange; 11-14-2011 at 12:59 PM..
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Old 11-14-2011, 12:51 PM   #36
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Kagen, on the other hand, has been a central advocate and gave advice to the administration on this specific legal matter.
Evidence, please.

Here's a little warm-up derision:
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Old 11-14-2011, 12:53 PM   #37
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Originally Posted by patteeu View Post
Thomas' wife doesn't have a financial interest.
If she doesn't, then that law is nearly useless. A significant aspect of her non-profit career is based upon the ultimate results of this law. If overturned, she can be considered to have been instrumental in the cause. And as a lobbyist and founder of Liberty Central, this would look great.
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Old 11-14-2011, 12:53 PM   #38
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Besides all that - neither Kagan nor Thomas are going to recuse. And it won't matter. This isn't going to be 5-4. And last week's decision in DC Circuit demonstrates that it's not going to be partisan. I could see 8-1 or 7-2 to uphold. Or even unanimous. Neither BEP nor sportsshrink are on the Court, so neither the 1770's Anti-Federalists nor the 1950's Birchers will have a say in the decision.
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Old 11-14-2011, 01:06 PM   #39
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Originally Posted by patteeu View Post
Thomas' wife doesn't have a financial interest.
Then why would Thomas' wife have to recuse herself, as you stated earlier in the thread?
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Old 11-14-2011, 01:10 PM   #40
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the answer is z...
z = 42
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Old 11-14-2011, 01:16 PM   #41
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If she doesn't, then that law is nearly useless. A significant aspect of her non-profit career is based upon the ultimate results of this law. If overturned, she can be considered to have been instrumental in the cause. And as a lobbyist and founder of Liberty Central, this would look great.
Also true.
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Old 11-14-2011, 01:27 PM   #42
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Her livelihood won't be impacted by the decision.

Wow. So a justice with a huge ownership stake in Company X shouldn't recuse themselves from a case involving Company X if losing the stake wouldn't result in "impacting their livelihood".

That's so narrow nobody would ever need to recuse themselves from anything.
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Old 11-14-2011, 01:45 PM   #43
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I do not believe either justice should recuse themselves. Kagan we can dispense with immediately, she never argued or worked in favor of Obamacare, so she is still ostensibly impartial.

Thomas should not recuse himself, because his wife's livelihood does not depend on the decision. She may have lobbied against the law and earned good money doing so, but that line of work is about to end, whether the law is upheld or struck down.

Aside from that, even if there was a decent argument for recusal, neither should do so because the case is too important. a 4-4 tie where all the circuits proceed to drift apart on their merry way is unacceptable. This has a very large impact on the commerce clause, and the decision needs to be nationally binding.
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Old 11-14-2011, 01:46 PM   #44
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Thomas should not recuse himself, because his wife's livelihood does not depend on the decision. She may have lobbied against the law and earned good money doing so, but that line of work is about to end, whether the law is upheld or struck down.
Yeah, just like all those pro-life groups. Once the SCOTUS weighed in on Roe, it's like they all vanished and tried other pursuits.
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Old 11-14-2011, 01:48 PM   #45
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Yeah, just like all those pro-life groups. Once the SCOTUS weighed in on Roe, it's like they all vanished and tried other pursuits.
If she wants to embark on a brand-new line of work (futilely) lobbying for the repeal of the law, fine.
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