E-mails have emerged between Kagan and Harvard Professor Laurence Tribe where Kagan discusses the legislation in passing and expressly support[s it]. In discovery obtaining by Judicial Watch, then-Solicitor General Elena Kagan writes to Tribe, who was serving in the Justice Department, “I hear they have the votes, Larry!! Simply amazing.” Tribe started the email exchange with a message with a subject line of “fingers and toes crossed today!” However, the primary reason for the message appears to be a planned dinner. He wrote: “So health care is basically done! [R]emarkable. And with the Stupak group accepting the magic of what amounts to a signing statement on steroids!”
smoothoperator wrote:They should strike it down, along with the more than 90% of federal laws that are literally unconstitutional. However, I don't trust the supremes to put the constitution ahead of their personal agendas.
mojo84 wrote:They'll probably refer to the South African constitution.
74novaman wrote:There was a promising decision released recently slapping down the EPA for infringing on property rights....
So its possible they might actually check the Constitution for how to steer on this one...a few of them at least.
AEA wrote:There is no such thing as "affordable healthcare".
Only a Lib slang for another Govt takeover.
srothstein wrote:There are two separate legal questions that the court must answer. One of them will definitely influence how they vote on the second. I don't have a lot of hope for the proper ruling on either.
The most important question to most people is if the government can mandate the purchase of any product, either through criminal penalties or a tax based on non-compliance. To me, the most important precedent on this is the purchase of insurance for a car. Remember that they have recognized that travel is a right, which means that the mode is irrelevant legally. While there is a difference in who the insurance protects, it is still requiring the purchase of a product. I think both mandates are unconstitutional but I am not nearly as sure that the court will agree with me as I would like to be.
The second question is if ruling one clause of a law invalidates the whole law. The healthcare law was passed without the customary severance clause in it that protects laws if one section is struck down. I do not see the court wanting to strike down the whole law and there is quite a bit of good in it. I do not see them wanting to make a ruling that changes established law on what is struck down. Since I don't see a way for them to rule on just this clause, I think this question may affect their thinking on the first question.
So I do not have a lot of hope for this law being struck down at all.
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