Broccoli

[The Mad Monk]

That would be quite lame if the Court basically said they are striking down the whole thing because TLDR.

Why? That's how it was passed.

[DinoDoc]

So you think the court is not in the mood to do their job based on one data point?

No.

KENNEDY: When you say judicial restraint, you are echoing the earlier premise that it increases the judicial power if the judiciary strikes down other provisions of the Act. I suggest to you it might be quite the opposite. We would be exercising the judicial power if . . . one provision was stricken and the others remained to impose a risk on insurance companies that Congress had never intended. By reason of this Court, we would have a new regime that Congress did not provide for, did not consider. That, it seems to me, can be argued at least to be a more extreme exercise of judicial power than to strike — than striking the whole.

There's other hints here from the Day 3 hearing as well: http://www.washingtonpost.com/blogs/...nxgS_blog.html

[MrFun]

[ATTACH=CONFIG]171430[/ATTACH]

Are there any Republican politicians who genuinely and consistently support the idea of smaller government?

.

[Aeson]

KENNEDY: When you say judicial restraint, you are echoing the earlier premise that it increases the judicial power if the judiciary strikes down other provisions of the Act. I suggest to you it might be quite the opposite. We would be exercising the judicial power if . . . one provision was stricken and the others remained to impose a risk on insurance companies that Congress had never intended. By reason of this Court, we would have a new regime that Congress did not provide for, did not consider. That, it seems to me, can be argued at least to be a more extreme exercise of judicial power than to strike — than striking the whole.

[kentonio]

When you say judicial restraint, you are echoing the earlier premise that it increases the judicial power if the judiciary strikes down other provisions of the Act. I suggest to you it might be quite the opposite. We would be exercising the judicial power if . . . one provision was stricken and the others remained to impose a risk on insurance companies that Congress had never intended. By reason of this Court, we would have a new regime that Congress did not provide for, did not consider. That, it seems to me, can be argued at least to be a more extreme exercise of judicial power than to strike — than striking the whole.

Ridiculous argument. The SC can strike down things they find unconstitutional, to strike down things that are not in any way unconstitutional is the SC trying to do governments job for it, which is absolutely terrifying. If they do this then every justice who voted for it should be immediately impeached for overreaching their authority.

[Felch]

When I want a lesson U.S. Constitutional law, I always make sure to ignore the Supreme Court Justice and run immediately to the ignorant Brit.

[kentonio]

Ok, please explain how the SC striking down constitutional law which has been legally passed by your elected representatives is in fact ok?

[Felch]

You're assuming the law is constitutional. If it isn't constitutional it should be struck down. The Supremes can't excise parts of a law, since that's a law-making power, and is reserved by Congress. They either strike down the whole law or none of it. Congress then goes back and rebuilds the law. Check the link to Rubin's report, the Supremes explain it quite well. Essentially, there are interconnected aspects of the law, and you need a publicly responsible branch like Congress to balance the competing interests. The SCOTUS shouldn't be in the business of fine tuning legislation.

[kentonio]

You're assuming the law is constitutional. If it isn't constitutional it should be struck down. The Supremes can't excise parts of a law, since that's a law-making power, and is reserved by Congress. They either strike down the whole law or none of it. Congress then goes back and rebuilds the law. Check the link to Rubin's report, the Supremes explain it quite well. Essentially, there are interconnected aspects of the law, and you need a publicly responsible branch like Congress to balance the competing interests. The SCOTUS shouldn't be in the business of fine tuning legislation.

Then please explain why they are debating whether they should strike down part or the whole if its such a no brainer? Also please explain why so many people are shocked by the idea that the whole thing could be struck down.

[Imran Siddiqui]

re: Felch - Well, you know, aside from the whole Presumption of Severability and all that.

[Ogie Oglethorpe]

Because without the individual madate it isn't the same law. The larder full of 'goodies' the law intended to provide was premised on a funding mechanism of the mandate. Without the mandate the other provisions now become unfunded and legislative intent can not be inferred that they would have survived otherwise, knowing they are unfunded. SCOTUS is attempting to minimize their usurpation of legislative perogatives, and Kennedy is attempting to not set precedent wherein SCOTUS get to line item accept provisions of laws for the very same reason the President does not have line item veto powers.

[Aeson]

If a clause would fundamentally change the effect of other causes, eliminating that clause would be to essentially enact new legislation from the bench. Striking down the law entirely would not dictate legislation. Congress would still be free to pass the bill again without the unconstitutional clause, thus ensuring that the legislation is done by Congress and not the SC.

[Felch]

Because a significant part of the population ignore the Constitution whenever it's inconvenient for them. We can't punish them for their political beliefs, we have to debate them in the public sphere.

[Felch]

re: Felch - Well, you know, aside from the whole Presumption of Severability and all that.

Have you read the bill in question? Neither have the SCOTUS Justices. It's thousands of pages. The Severability Doctrine can't be responsibly applied in this case, since nobody knows what the outcome will be.

[DinoDoc]

re: Felch - Well, you know, aside from the whole Presumption of Severability and all that.

Given that Congress specifically struck the Severability clause from the version they passed (it was in the House Version but not the Senate one that passed), should that presumption exist in this case? It would seem to weaken the case for it IMO.