Over half of all states(26) are now suing to stop Obamacare

[danefan]

The Dems should continue to point out that while 2 Federal Judges have declared it unconstitutional.....2 Fedearl judges have also ruled to the contrary, upholding the law.

In other words - today's decisions doesn't mean squat. The only one that matters is the one that happens in the Supreme Court which won't happen for at least another year.

Danefan, speak to us about "severability." The lack of a "non-severability clause" is apparently the basis upon which Judge Vinson threw out the entire Obamacare bill, instead of just that portion he found unconstitutional. As I recall, the Dems purposefully left out a non-severability clause because it would have allowed allowed opponents to chip away at the bill one bite at a time.

Is severability a legitimate issue? Why or why not?

The Supreme Court has repeatedly held that even without an explicit severability clause in a bill, the presumptiuon is that Congress intends for each provision of a law to be evaluated on its own, unless a party can show that Congress would not have passed the bill without the unconstitutional provisions.

I believe that Congress has long operated on both sides of aisle under this presumption and my understanding is that they generally only include a non-severability clause if they feel it necessary to have the bill stand as a whole.

I haven't read the latest decision, but I imagine the argument is that Congress would not have passed the Health Care bill without the mandate as the bill lacks any real effectiveness if the mandate isn't in it. I think that's a legit argument.

The question in my mind really is whether the madate is Constitutional. The severability issue is secondary, IMO because as I said above without the mandate whatever is left in the bill worth keeping will probably pass as standalones anyway (e.g. 26-year child allowance, pre-existing conditions, etc...).

[OL FU]

Also, I understand to some extent jurisdiction and the process of going to appellate courts, but in a case like this where everybody knows it will end up in the Supreme Court and the issue is a huge one that impacts everyone, why doesn't the Supreme Court cut out the BS and just hear the case. Are there times when the Supreme Court steps in prior to appellate courts hearing the case.

I think Bush V Gore was one example where this occurred?

As I'm sure you know, the Supreme Court is a court of limited jurisdiction. It only has appelate jurisdiction except in limited circumstances (e.g. cases involving ambassadors and conflicts between two or more states).

The Supreme Court can hear cases on appeal from either the Federal Courts of Appeal or on appeal from the Highest Court in a particluar state.

The latter is why It heard the Bush v. Gore case on a appeal (appealed from the Florida Supreme Court) - although arguably it should have fallen under the "political question" doctrine and not been granted Cert anyway - but that's a different debate.

The reason why the Health Care case should not go right to the Supreme Court is a good one - all of the Circuit Courts of Appeal to which the 4 cases will be appealed may come down the same way - either for or against the law. If that is the case then you don't even have a circuit split and you might not see a SCOTUS case to begin with.

Thanks much. I had didn't realize that the case could come from the state supreme court directly to the US Supreme Court. Thanks for clarifying.

[danefan]

As I'm sure you know, the Supreme Court is a court of limited jurisdiction. It only has appelate jurisdiction except in limited circumstances (e.g. cases involving ambassadors and conflicts between two or more states).

The Supreme Court can hear cases on appeal from either the Federal Courts of Appeal or on appeal from the Highest Court in a particluar state.

The latter is why It heard the Bush v. Gore case on a appeal (appealed from the Florida Supreme Court) - although arguably it should have fallen under the "political question" doctrine and not been granted Cert anyway - but that's a different debate.

The reason why the Health Care case should not go right to the Supreme Court is a good one - all of the Circuit Courts of Appeal to which the 4 cases will be appealed may come down the same way - either for or against the law. If that is the case then you don't even have a circuit split and you might not see a SCOTUS case to begin with.

Thanks much. I had didn't realize that the case could come from the state supreme court directly to the US Supreme Court. Thanks for clarifying.

Most casese coming from from the State high courts are criminal cases. Bush v. Gore was very rare.

[OL FU]

Thanks much. I had didn't realize that the case could come from the state supreme court directly to the US Supreme Court. Thanks for clarifying.

Most casese coming from from the State high courts are criminal cases. Bush v. Gore was very rare.

That is why I think I assumed that the Supreme Court could re-order jurisdiction based on impotance of the case. If BvG had gone through the courts of appeal we may not have had a president (which may not have been such a bad thing)

[danefan]

Most casese coming from from the State high courts are criminal cases. Bush v. Gore was very rare.

That is why I think I assumed that the Supreme Court could re-order jurisdiction based on impotance of the case. If BvG had gone through the courts of appeal we may not have had a president (which may not have been such a bad thing)

Well there is a theory that the only reason BvG even got to the Florida Supreme Court was actually to get it to SCOTUS sooner.

That won't work with the Health Care Act though because its a Federal law.

[BDKJMU]

Another good read on the recent decision:
http://online.wsj.com/article/SB1000142 ... sNewsThird" onclick="window.open(this.href);return false;

[danefan]

Looks like we may get a SCOTUS decision before the 2012 election at least.

http://nyti.ms/dJssD9" onclick="window.open(this.href);return false;

[OL FU]

Looks like we may get a SCOTUS decision before the 2012 election at least.

http://nyti.ms/dJssD9" onclick="window.open(this.href);return false;

I am not too concerned about whether it is before or after the election, but it certainly needs to happen before most of the law kicks in in 2014(?).

[danefan]

Looks like we may get a SCOTUS decision before the 2012 election at least.

http://nyti.ms/dJssD9" onclick="window.open(this.href);return false;

I am not too concerned about whether it is before or after the election, but it certainly needs to happen before most of the law kicks in in 2014(?).

I think 2014 is th effective date for the mandate to kick in.

It will definitely happen before then if its going to happen at all. It's not the type of factually or techicallyintense case that will take long to prep and argue. It's a pretty straight forward question. ........ The answer on the other hand........not so straight forward.

[danefan]

Well this one flew under the radar around here

http://blogs.abcnews.com/thenote/2011/0 ... w-3-2.html" onclick="window.open(this.href);return false;

3-2 now for Obama

[OL FU]

Well this one flew under the radar around here

http://blogs.abcnews.com/thenote/2011/0 ... w-3-2.html" onclick="window.open(this.href);return false;

3-2 now for Obama

Whichever side we non-judicial people fall on, it shows, in many ways, what a sham the "impartial judiciary" is. Three dems to two repubs

[danefan]

Well this one flew under the radar around here

http://blogs.abcnews.com/thenote/2011/0 ... w-3-2.html" onclick="window.open(this.href);return false;

3-2 now for Obama

Whichever side we non-judicial people fall on, it shows, in many ways, what a sham the "impartial judiciary" is. Three dems to two repubs

Yup. Sounds like some venue/docket shopping going on in the early battles. Won't matter though when we get to the Appeals level with 3 or more judges. May even go to en banc decision and then you'll have a split bench for sure.

[FargoBison]

Judge Roger Vinson issues stay of own ruling

U.S. District Judge Roger Vinson ruled Thursday that implementation of the health law can proceed — but he gave the Obama administration just seven days to file an appeal.

Vinson issued a stay of his own Jan. 31 ruling that declared the entire health care reform law unconstitutional. He chastised the government for not interpreting that ruling as an immediate injunction to stop implementing the new law.

But in a twist, he said he interpreted the Justice Department’s request for clarity as a motion to stay, which he granted.

“Because the defendants have stated that they intend to file a subsequent motion to stay if I were to ‘clarify’ that I had intended my declaratory judgment to have immediate injunction-like effect (which I just did), I will save time in this time-is-of-the-essence case by treating the motion to clarify as one requesting a stay as well,” Vinson said.

Vinson criticized the Justice Department for not following normal procedure and requesting a stay.

“It was not expected that they would effectively ignore the order and declaratory judgment for two and one-half weeks, continue to implement the Act, and only then file a belated motion to 'clarify,'” Vinson wrote.

Vinson is trying to push the government into quickly resolving the case, requiring them to file an expedited appeal to the 11th Circuit or Supreme Court. In his ruling, Vinson repeated what he has said previously — that “the citizens of this country have an interest in having this case resolved as soon as practically possible.”

http://www.politico.com/news/stories/0311/50596.html" onclick="window.open(this.href);return false;

[danefan]

Judge Roger Vinson issues stay of own ruling

U.S. District Judge Roger Vinson ruled Thursday that implementation of the health law can proceed — but he gave the Obama administration just seven days to file an appeal.

Vinson issued a stay of his own Jan. 31 ruling that declared the entire health care reform law unconstitutional. He chastised the government for not interpreting that ruling as an immediate injunction to stop implementing the new law.

But in a twist, he said he interpreted the Justice Department’s request for clarity as a motion to stay, which he granted.

“Because the defendants have stated that they intend to file a subsequent motion to stay if I were to ‘clarify’ that I had intended my declaratory judgment to have immediate injunction-like effect (which I just did), I will save time in this time-is-of-the-essence case by treating the motion to clarify as one requesting a stay as well,” Vinson said.

Vinson criticized the Justice Department for not following normal procedure and requesting a stay.

“It was not expected that they would effectively ignore the order and declaratory judgment for two and one-half weeks, continue to implement the Act, and only then file a belated motion to 'clarify,'” Vinson wrote.

Vinson is trying to push the government into quickly resolving the case, requiring them to file an expedited appeal to the 11th Circuit or Supreme Court. In his ruling, Vinson repeated what he has said previously — that “the citizens of this country have an interest in having this case resolved as soon as practically possible.”

http://www.politico.com/news/stories/0311/50596.html" onclick="window.open(this.href);return false;

I haven't really figured out how a Federal District Court judge can change the Federal Rules of Appellate procedure Rule 4:

(a) Appeal in a Civil Case.
(1) Time for Filing a Notice of Appeal.

(A) In a civil case, except as provided in Rules 4(a)(1)(B), 4(a)(4), and 4(c), the notice of appeal required by Rule 3 must be filed with the district clerk within 30 days after the judgment or order appealed from is entered.

(B) When the United States or its officer or agency is a party, the notice of appeal may be filed by any party within 60 days after the judgment or order appealed from is entered.

(C) An appeal from an order granting or denying an application for a writ of error coram nobis is an appeal in a civil case for purposes of Rule 4(a).

[YoUDeeMan]

I haven't really figured out how a Federal District Court judge can change the Federal Rules of Appellate procedure Rule 4:

(a) Appeal in a Civil Case.
(1) Time for Filing a Notice of Appeal.

(A) In a civil case, except as provided in Rules 4(a)(1)(B), 4(a)(4), and 4(c), the notice of appeal required by Rule 3 must be filed with the district clerk within 30 days after the judgment or order appealed from is entered.

(B) When the United States or its officer or agency is a party, the notice of appeal may be filed by any party within 60 days after the judgment or order appealed from is entered.

(C) An appeal from an order granting or denying an application for a writ of error coram nobis is an appeal in a civil case for purposes of Rule 4(a).

Maybe District Judge Roger Vinson is really Judge Dredd. Who's going to argue with him?