Love the title of this headline, as if MSNBC was stunned about the ruling:
http://www.msnbc.msn.com/id/38522261/ns/politics/
Similarly, I love the title of your post, given that you know full well how unlikely it would be for the Federal Government to succeed in getting the case dismissed at this early stage.
Quote from: nathanm on August 02, 2010, 01:20:14 PM
Similarly, I love the title of your post, given that you know full well how unlikely it would be for the Federal Government to succeed in getting the case dismissed at this early stage.
Why would I know that? The feds were successful in Arizona re: SB 1070 at an early stage (or does that one not count).
Quote from: guido911 on August 02, 2010, 02:08:50 PM
Why would I know that? The feds were successful in Arizona re: SB 1070 at an early stage (or does that one not count).
Depends on those activist judges 8)
Quote from: guido911 on August 02, 2010, 02:08:50 PM
Why would I know that? The feds were successful in Arizona re: SB 1070 at an early stage (or does that one not count).
The feds got an injunction against enforcement of some parts of the law. That's not remotely equivalent to winning or losing a motion to dismiss at such an early stage. One disposes of the matter immediately and requires essentially that there be no factual dispute to adjudicate, while the other does not. I can't help but think you're being intentionally obtuse.
Funny thing is that many folks called this one the day Obamacare passed. There is no way it could withstand challenge, because it clearly violates the interstate commerce clause.
You can't force people to buy a good or service. You just can't.
Quote from: Gaspar on August 02, 2010, 03:30:25 PM
Funny thing is that many folks called this one the day Obamacare passed. There is no way it could withstand challenge, because it clearly violates the interstate commerce clause.
You can't force people to buy a good or service. You just can't.
They aren't being forced to buy anything. They avoid a tax if they buy the service.
Quote from: swake on August 02, 2010, 03:33:13 PM
They aren't being forced to buy anything. They avoid a tax if they buy the service.
You don't think that's arm-twisting?
Quote from: Gaspar on August 02, 2010, 03:30:25 PM
You can't force people to buy a good or service. You just can't.
You mean like the state making me buy car insurance in order to get my car license plates? Or do you mean like the state making me buy workmen's compensation insurance in order to hire a person? Maybe you mean the annual license fee I pay to have a dog?
Can't?
Quote from: RecycleMichael on August 02, 2010, 03:40:04 PM
You mean like the state making me buy car insurance in order to get my car license plates? Or do you mean like the state making me buy workmen's compensation insurance in order to hire a person? Maybe you mean the annual license fee I pay to have a dog?
Can't?
None of those are the Federal government forcing it on you. That's either state or city. What's at issue is control over interstate commerce.
Quote from: swake on August 02, 2010, 03:33:13 PM
They aren't being forced to buy anything. They avoid a tax if they buy the service.
I like that.
Instead of
Buy this or we will punish you.It's
We will reward you if you buy this (by not punishing you).
Hell of a deal. We should apply that to all kinds of enterprise.
"Buy an iPhone 4 and we won't punch you in the face."
"Eat at Mahoganies, and we won't burn your house down."
"Subscribe to the Tulsa World and our delivery boy won't trench your lawn."
You can save yourself a lot of grief by taking advantage of these fantastic deals!
Give me a break.
Quote from: RecycleMichael on August 02, 2010, 03:40:04 PM
You mean like the state making me buy car insurance in order to get my car license plates? Or do you mean like the state making me buy workmen's compensation insurance in order to hire a person? Maybe you mean the annual license fee I pay to have a dog?
Can't?
You do not have to buy insurance or license plates. Only if you intend to drive on federal/state owned roads.
You do not have to buy workman's comp if you don't hire anyone or if you hire under contract.
The Obamacare bill has a requirement to purchase health insurance or a penalty for failing to do so.
Quote from: nathanm on August 02, 2010, 02:51:37 PM
The feds got an injunction against enforcement of some parts of the law. That's not remotely equivalent to winning or losing a motion to dismiss at such an early stage. One disposes of the matter immediately and requires essentially that there be no factual dispute to adjudicate, while the other does not. I can't help but think you're being intentionally obtuse.
Do you know what an temporary injunction even is? That is a compelling finding since to obtain one the person seeking that relief must "establish four factors: (1) it will suffer irreparable harm if the injunction is not granted, (2) its threatened injury outweighs the harm caused to the opposing party as a result of the injunction, (3) the injunction is not adverse to the public interest, and (4) it has a substantial likelihood of success on the merits of the case."
Dominion Video Satellite, Inc. v. Echostar Satellite Corp., 356 F.3d 1256, 1260 (10th Cir.(Colo.) 2004)(Citation omitted);
Sun Microsystems, Inc. v. Microsoft Corp., 188 F.3d 1115, 1119 (9th Cir. (Cal.) 1999). To meet the "irreparable harm", the movant's purported injury " must be certain, great, actual and not theoretical."
Heideman v. South Salt Lake City, 348 F.3d 1182, 1188-89 (10th Cir. (Utah) 2003). The government's victory was very substantial and most certainly on par with surviving a motion to dismiss (and who cares that only part of the Arizona law was affected, if you read the Virginia case, you would know it was focused on the individual mandate and not the entire Obamacare).
As for the motion to dismiss ruling, which given your post you clearly haven't, you would note the following. In this opinion, the Court determined several preliminary matters apart from the motion to dismiss, such as Virgina having standing to challenge and ripeness, both very significant findings since it now opens the door to the state.
As for your "standard" for motion to dismiss, that is incorrect. In the opinion, you will notice on pages 17-18 the following correct standard: "To survive a Rule 12(b)(6) challenge, a complaint need only state a legally viable cause of action. "A motion to dismiss under Rule 12(b)(6) tests the sufficiency of the complaint; importantly, it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses."" (Citation omitted).
Moreover, the Court made several observations which do not bode well (at least at this point) for the government. For instance, on page 18 it states that the mandate "literally forges new ground and extends Commerce Clause powers beyond its current high water mark". There is even more compelling language similar to the foregoing near the very end of the order.
Nate, knowing lawyers does not make you close to authority on the complexities of constitutional law or even motion practice. Most certainly does not give you any basis for saying anyone is "obtuse". Please free to try again though.
Below is the opinion for all to read.
http://voices.washingtonpost.com/virginiapolitics/Hudson%20opinion%20MTD.pdf
Quote from: Gaspar on August 02, 2010, 03:30:25 PM
Funny thing is that many folks called this one the day Obamacare passed. There is no way it could withstand challenge, because it clearly violates the interstate commerce clause.
You can't force people to buy a good or service. You just can't.
As was said, nobody is being forced to buy anything. You don't have to have health insurance, it isn't required. Taxes have increased in the past right? And you get a tax deduction for having a mortgage? So therefore you are forced to buy a house? I mean seriously...
Quote from: Trogdor on August 02, 2010, 03:57:36 PM
As was said, nobody is being forced to buy anything. You don't have to have health insurance, it isn't required. Taxes have increased in the past right? And you get a tax deduction for having a mortgage? So therefore you are forced to buy a house? I mean seriously...
Nah, you can go without it and get a fine. No differance there at all.
Oh, and you don't HAVE to drive 65, that's just a suggestion, feel free to drive as fast as you want.
Quote from: Trogdor on August 02, 2010, 03:57:36 PM
As was said, nobody is being forced to buy anything. You don't have to have health insurance, it isn't required.
You will simply have to pay a $950 tax penalty for not doing so.
Buy this, or pay a fine. No other option.
The definition of "force" in this instance applies because you cannot avoid the punishment without making the purchase.
To compel, constrain, or oblige (oneself or someone) to do something.
To put or impose (something or someone) forcibly on or upon a person.The constitution was built to protect us from this very form of "force".
The triumph of persuasion over force is the sign of a civilized society. – Mark Skousen
Force always attracts men of low morality. – Albert Einstein
In a republican nation whose citizens are to be led by reason and persuasion and not by force, the art of reasoning becomes of first importance. – Thomas Jefferson, 1824
Quote from: Trogdor on August 02, 2010, 03:57:36 PM
As was said, nobody is being forced to buy anything. You don't have to have health insurance, it isn't required. Taxes have increased in the past right? And you get a tax deduction for having a mortgage? So therefore you are forced to buy a house? I mean seriously...
Excellent point. Obamacare structures the fee/fine as just that. Not as a deduction. It is a new fee/fine levied on the individual for choosing not to buy something.
Your choice not to buy a house comes with no new fees or fines.
Now if they were to rewrite the bill with a tax deduction for purchasing health insurance, we would not be having this conversation. :D
Quote from: guido911 on August 02, 2010, 03:54:10 PM
Do you know what an temporary injunction even is? That is a compelling finding since to obtain one the person seeking that relief must "establish four factors: (1) it will suffer irreparable harm if the injunction is not granted, (2) its threatened injury outweighs the harm caused to the opposing party as a result of the injunction, (3) the injunction is not adverse to the public interest, and (4) it has a substantial likelihood of success on the merits of the case." Dominion Video Satellite, Inc. v. Echostar Satellite Corp., 356 F.3d 1256, 1260 (10th Cir.(Colo.) 2004)(Citation omitted); Sun Microsystems, Inc. v. Microsoft Corp., 188 F.3d 1115, 1119 (9th Cir. (Cal.) 1999). To meet the "irreparable harm", the movant's purported injury " must be certain, great, actual and not theoretical." Heideman v. South Salt Lake City, 348 F.3d 1182, 1188-89 (10th Cir. (Utah) 2003). The government's victory was very substantial and most certainly on par with surviving a motion to dismiss (and who cares that only part of the Arizona law was affected, if you read the Virginia case, you would know it was focused on the individual mandate and not the entire Obamacare).
As for the motion to dismiss ruling, which given your post you clearly haven't, you would note the following. In this opinion, the Court determined several preliminary matters apart from the motion to dismiss, such as Virgina having standing to challenge and ripeness, both very significant findings since it now opens the door to the state.
As for your "standard" for motion to dismiss, that is incorrect. In the opinion, you will notice on pages 17-18 the following correct standard: "To survive a Rule 12(b)(6) challenge, a complaint need only state a legally viable cause of action. "A motion to dismiss under Rule 12(b)(6) tests the sufficiency of the complaint; importantly, it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses."" (Citation omitted).
Moreover, the Court made several observations which do not bode well (at least at this point) for the government. For instance, on page 18 it states that the mandate "literally forges new ground and extends Commerce Clause powers beyond its current high water mark". There is even more compelling language similar to the foregoing near the very end of the order.
Nate, knowing lawyers does not make you close to authority on the complexities of constitutional law or even motion practice. Most certainly does not give you any basis for saying anyone is "obtuse". Please free to try again though.
Below is the opinion for all to read.
http://voices.washingtonpost.com/virginiapolitics/Hudson%20opinion%20MTD.pdf
Meeting the "substantial likelihood of prevailing on the merits" test is by no means a lock on winning at trial. Moreover, you merely restated, in precise legal terms, my colloquial statement of approximately what the standard is for winning a motion to dismiss. I certainly am no lawyer, but you were certainly making a false equivalence in your earlier statement. Or is there some other reason you're arguing over a point of terminology which doesn't in any way rebut my underlying argument?
Quote from: nathanm on August 02, 2010, 06:06:22 PM
Meeting the "substantial likelihood of prevailing on the merits" test is by no means a lock on winning at trial. Moreover, you merely restated, in precise legal terms, my colloquial statement of approximately what the standard is for winning a motion to dismiss. I certainly am no lawyer, but you were certainly making a false equivalence in your earlier statement. Or is there some other reason you're arguing over a point of terminology which doesn't in any way rebut my underlying argument?
For the love of whomever you are in way over your head. First, go back and look at your colloquial standard of review, "no factual dispute to adjudicate". How is that in any way similar to the standard this court applied in the Virgina case and which I quoted. Also, your "standard" is strikingly similar to this standard, "judgment is appropriate if the record evidence shows there is no genuine issue as to any material fact..."."
Milne v. USA Cycling Inc., 575 F.3d 1120, 1130 (10th (Utah) 2009). What's the problem you ask? That's
summary judgment and not a Rule 12(b)(6) dismissal standard.
As for your "argument", I presume you mean this "false equivalence" thing. First, interesting you chose to ignore the two preliminary rulings the court made before taking up the merits of the mtd, that being the finding that the state had standing to sue and that the matter was ripe for adjudication. I guess that too was no small feat in your world; but in mine, that was huge. The other numerous lawsuits filed by the states will point to this decision as precedent or just adopt Virginia's arguments, which will get these other states' collective feet in the door so they can argue other potentially unconstitutional provisions in Obamacare other than the individual mandate.
Second, whether I believe the TRO in Arizona is as significant as what happened in Virgina, it's my right to have that belief. I will not be lectured or called "obtuse" by some wannabe lawyer about what is legally significant. You have no experience, no working understanding of the law (in particular how a granted TRO positions the moving party either throughout litigation or on appeal), and you run your mouth about legal opinions you plainly have not read or understand.
As I said earlier, I don't claim to be an attorney. I've seen plenty of cases, though, where a party that gets a TRO does not prevail at trial. It is by no means a lock.
You have your opinion as to the equivalence of the proceedings in the two cases and I have mine.
I used to watch Perry Mason and Matlock...
Quote from: Conan71 on August 03, 2010, 09:05:38 AM
I used to watch Perry Mason and Matlock...
I stayed at a Holiday Inn Express last...oh, wait a minute.
Quote from: Hoss on August 03, 2010, 09:08:12 AM
I stayed at a Holiday Inn Express last...oh, wait a minute.
Beat me to it!
Now the state of Missouri has rejected it.
About 71 percent of Missouri voters backed a ballot measure, Proposition C, that would prohibit the government from requiring people to have health insurance or from penalizing them for not having it.
Quote from: Gaspar on August 04, 2010, 07:47:57 AM
Now the state of Missouri has rejected it.
About 71 percent of Missouri voters backed a ballot measure, Proposition C, that would prohibit the government from requiring people to have health insurance or from penalizing them for not having it.
I understand something similar to Mo.'s ballot measure will be on Oklahoma's ballot this Nov. Is that accurate?
Quote from: guido911 on August 04, 2010, 01:01:04 PM
I understand something similar to Mo.'s ballot measure will be on Oklahoma's ballot this Nov. Is that accurate?
Actually, that is correct. Now that VA and MO have been successful, we know exactly how to write it.
Quote from: Gaspar on August 04, 2010, 01:16:49 PM
Actually, that is correct. Now that VA and MO have been successful, we know exactly how to write it.
By God we'll write it so it's wide open to litigation anyway.
How long until AG Holder sues Missouri?
Over/under pool?
Quote from: Gaspar on August 04, 2010, 01:16:49 PM
Actually, that is correct. Now that VA and MO have been successful, we know exactly how to write it.
This is going to end in yet another challenge to the commerce clause, and will be decided by the Supreme Court. And unless the SC get's all
Citizen United-y on us, the challenge will probably get swatted down.
And then you can start the bid for secession.
Assume for a moment that refusing to buy health insurance under Obamacare becomes possible/legal without penalty.
If someone who voluntarily opts out of "health insurance" requires health care, can health providers refuse to provide care without proof of ability to pay?
As for the car insurance comparison, (at least in the past) Oklahoma allows a motorist to post a bond as proof of fiscal responsibility in place of insurance. Would a similar provision keep people opposed to mandatory health insurance less unhappy?
Quote from: we vs us on August 04, 2010, 03:54:07 PM
This is going to end in yet another challenge to the commerce clause, and will be decided by the Supreme Court. And unless the SC get's all Citizen United-y on us, the challenge will probably get swatted down.
And then you can start the bid for secession.
"
Citizen United-y"? Why not "
Roe v. Wade-y"? Oh I know, it was an activist conservative court that ruled contrary to your beliefs. Care to explain which part of the Virginia case (or future rulings in cases that have not even been filed yet) amounts to reversible error? I would love to hear your brilliant legal argument.