[johnu]

thepossum, on 2020-November-09, 18:49, said:

Is the pre-emptive pardon being discussed about to pardon an injustice that has not yet occurred or what?

The injustice is that the DOJ has a policy that the president can't be indicted (and tried and sent to prison) while still in office. An unfortunate holdover in thinking from imperial times where the king could do no wrong. A second reason would be that the founders didn't think a criminal would be elected president.

[johnu]

pilowsky, on 2020-November-09, 22:51, said:

Where are the lawyers when you need them?
Pardon - You did it but you have shown so much remorse that the Grand Poo-bah says you are no longer burdened with whatever comes with whatever restrictions normally come with a conviction.

For the Manchurian President, a pardon is given because he saw somebody advocating for a pardon on Fox Propaganda Channel. No remorse is needed or usually given. He probably doesn't even listen to the descriptions of the crimes committed, or the effect on victims.

[johnu]

Another example of the Manchurian President trying to break everything he can before leaving office.

Biden Transition Team Calls on Federal Agency to Declare Winner

The politically appointed head of the GSA is refusing to recognize Biden as the president elect which means the inner workings of government are closed to the Biden team. With inauguration day on January 20, the incoming president and his team need every single day to prepare a new administration that has to be up and running when the transition happens.

[kenberg]

I suppose this forum is not the way to reach out to ,y Republican friends, they aren't reading this, but guys, it's time.


The "Failing Washington Post" with its "Fake News" has in fact been very cautions in calling results.
https://www.washingt....com/elections/

Arizona and Georgia are still listed only as shaded blue which means that Biden has an edge of some size over Trump. Well. in AZ the edge is some 16, 000+ votes, and in GA it is 12,000+ votes. If we go to PA, where WaPo does call Biden the winner, the edge is 45,000+ votes. Biden wins with PA regardless of AZ and GA but those two states could also reasonably be called now, a week after the election, for Biden. Surely finding instances of careless miscounting won't change the result. .And fraud, widespread enough to change the result, is seriously far-fetched. Strong evidence would be required and, to put it mildly and calmly, that evidence is nowhere to be seen. "Somebody on Fox News said so" does not count as evidence. Same with "I lost, therefore there was fraud".

It's hard to walk in the mud without getting dirty. Republicans who care at all about how they or their party is seen have to think about that. There will be another election another time, but this one is over. Maybe it ain't over 'till it's over, but at some point it's over.

[y66]

From Obamacare Is Back in Court. The Stakes Couldn’t Be Higher. by Abbe R Gluck at NYT:

Quote

Today, the newly constituted Supreme Court will hear a challenge to the Affordable Care Act — the seventh in eight years. It is the most challenged statute in modern American history. In addition to the Supreme Court cases, there have been more than 1,700 cases in the lower courts; Republicans in Congress have tried more than 70 times to repeal it; the Trump administration has engaged in an unprecedented array of executive actions to undermine the insurance markets and financially starve the law; red states rebelled against it from the day it was passed; and state initiatives have been enacted by supporters to force states to effectuate it.

And still the Affordable Care Act, which may be the most resilient statute in American history, has done more than survive: It has transformed our health care system and the way Americans think about their right to care. Even prominent Republicans like Eric Cantor, the former House majority leader, have concluded that we cannot go back to the era before the law, when millions fewer people had access. Yet here we are again, at the Supreme Court, for a case so weak that even many conservative legal scholars who oppose the law also oppose the lawsuit.

What is at stake is even more than the nearly one-fifth of our economy that the health care industry represents and what has become a new baseline on coverage for Americans. It is democracy, and the court’s duty to leave political decisions to the elected branches of government.

The legal doctrine of “severability” — at the center of the new case — became something of a household name at the Amy Coney Barrett confirmation hearings. The doctrine requires courts to leave the remainder of statutes standing when one provision is invalidated, unless Congress has clearly indicated otherwise. It requires courts to respect Congress’s actions — and Congress did not wipe the entire law off the books. The Supreme Court, under the settled doctrine, should not either.

The main issue is Congress’s amendment to the Affordable Care Act in 2017. After all those failed attempts to “repeal and replace” the law, Congress was only able to cobble together the votes to zero-out the tax penalty associated with the unpopular insurance mandate — the requirement that everyone get insured or pay a tax.

The Trump administration’s Justice Department and 18 primarily red states are arguing that with no penalty, the mandate is no longer a tax and so is now unconstitutional — because in 2012 the court upheld the mandate under Congress’s taxing power. But that matters little. The mandate has never been fully enforced, and markets have adjusted to a world without it. What matters is that the challengers are also arguing the entire Affordable Care Act is so tied to the mandate that all the other programs in the over 2,000-page law should be struck down with it.

In other words, they are using a challenge to a now insignificant piece of the act to blow it all up.

More

[kenberg]

A question occurs to me: When Congress decided to reduce the penalty to zero for not complying with he requirement to purchase some form of insurance, did they have a discussion about eliminating the requirement? Had they done so, that would spare the Supreme Court, and the rest of us, from having to come up with arcane arguments about separability. I am more than happy, delighted even, to say that I lack the legal expertise to argue about separability. But it seems that no expertise is required to say that keeping the requirement but reducing the penalty to zero for non-compliance sounds pretty stupid. We have a case before the court in which this requirement, with no mechanism for enforcement, is playing a key role. I don't get it.

[Manastorm]

Is it not possible to twist words and give a tax reduction for those who take ACA.

[Winstonm]

kenberg, on 2020-November-10, 10:56, said:

A question occurs to me: When Congress decided to reduce the penalty to zero for not complying with he requirement to purchase some form of insurance, did they have a discussion about eliminating the requirement? Had they done so, that would spare the Supreme Court, and the rest of us, from having to come up with arcane arguments about separability. I am more than happy, delighted even, to say that I lack the legal expertise to argue about separability. But it seems that no expertise is required to say that keeping the requirement but reducing the penalty to zero for non-compliance sounds pretty stupid. We have a case before the court in which this requirement, with no mechanism for enforcement, is playing a key role. I don't get it.

When Joe Biden has talked about his time in the Senate, he speaks of being instructed early on not to judge the other sides' motives; however, I think that is a bit too pragmatic. It appears that for a large part of the GOP, the only reason to continue to attack the ACA is to try to deny the first black president any victories whatsoever. And that is why no one is interested in fixing any problems with the ACA wording. The motive is to destroy. I think that is important to know about your opponent.

[kenberg]

Winstonm, on 2020-November-10, 11:11, said:

When Joe Biden has talked about his time in the Senate, he speaks of being instructed early on not to judge the other sides' motives; however, I think that is a bit too pragmatic. It appears that for a large part of the GOP, the only reason to continue to attack the ACA is to try to deny the first black president any victories whatsoever. And that is why no one is interested in fixing any problems with the ACA wording. The motive is to destroy. I think that is important to know about your opponent.

Ok, but I still ask: As the bill came up to lower the penalty to zero, did anyone of any side suggest or discuss the idea of eliminating the requirement instead of keeping the requirement while eliminating the penalty for non-compliance? Elimination must have occurred to someone, I should hope. And the non-elimination seems to be coming back to bite. And that was predictable, easily predictable.


My guess is that it is one of those two-way things. They can say to those who think that the requirement i is good "Sure, we kept the requirement, of course we did" and then turn around and say to those who think the requirement is too burdensome "Oh we eliminated the burden". And, no surprise, this cute maneuver is causing trouble.


There are times that our elected representatives prefer clever to sensible.

[shyams]

kenberg, on 2020-November-10, 12:00, said:

There are times that our elected representatives prefer clever to sensible.

What you attribute to stupidity may well have been motivated by malice. The idea might have been to create a flaw in an otherwise legal law with the intent that the flaw can one day be exploited to render the entire law text untenable --- something like a poison pill amendment which, on the face of it, did not appear to be damaging.

[kenberg]

shyams, on 2020-November-10, 12:50, said:

What you attribute to stupidity may well have been motivated by malice. The idea might have been to create a flaw in an otherwise legal law with the intent that the flaw can one day be exploited to render the entire law text untenable --- something like a poison pill amendment which, on the face of it, did not appear to be damaging.

Maybe. But then it would be pretty stupid to fall for that trick.


Recent phone conversation:

"Hello Grandpa, this is you oldest grandson."
"Hi, David, how are you?"
"Just fine"
"I don't have a grandson named David."

End of phone conversation

It's a little frightening to think we have people in Congress who fall for obvious scams.




Otherwise put: In order for this to come to pass, someone had to put it forth, apparently nobody, when hearing it, asked if they had inadvertently stumbled onto Saturday Night Live, and then people had to vote it into law.

[Cyberyeti]

https://jezebel.com/...kini-1845613135 at least some people are having fun at his expense

[cherdano]

kenberg, on 2020-November-10, 10:56, said:

A question occurs to me: When Congress decided to reduce the penalty to zero for not complying with he requirement to purchase some form of insurance, did they have a discussion about eliminating the requirement? Had they done so, that would spare the Supreme Court, and the rest of us, from having to come up with arcane arguments about separability. I am more than happy, delighted even, to say that I lack the legal expertise to argue about separability. But it seems that no expertise is required to say that keeping the requirement but reducing the penalty to zero for non-compliance sounds pretty stupid. We have a case before the court in which this requirement, with no mechanism for enforcement, is playing a key role. I don't get it.

Getting rid of the mandate requires 60 Senate votes. Changing the penalty to zero can be done under budget reconciliation, and thus with 51 Senate votes.

Sorry I am just the messenger, I did not make the rules.

[cherdano]

Here is the question you have to ask yourself to decide separability.
Those in Congress who voted to eliminate the penalty, would they have vot3d to eliminate the mandate altogether?

The answer to that question is obvious [i]unless[i/] you are a conservative legal scholar. (To be fair, it's also obvious to must conservative legal commentators/academics - just not to those in power, I.e. attorney generals, judges.)

[Winstonm]

kenberg, on 2020-November-10, 12:00, said:

Ok, but I still ask: As the bill came up to lower the penalty to zero, did anyone of any side suggest or discuss the idea of eliminating the requirement instead of keeping the requirement while eliminating the penalty for non-compliance? Elimination must have occurred to someone, I should hope. And the non-elimination seems to be coming back to bite. And that was predictable, easily predictable.

My guess is that it is one of those two-way things. They can say to those who think that the requirement i is good "Sure, we kept the requirement, of course we did" and then turn around and say to those who think the requirement is too burdensome "Oh we eliminated the burden". And, no surprise, this cute maneuver is causing trouble.


There are times that our elected representatives prefer clever to sensible.

Ken, I could be wrong but I think you are misunderstanding the argument being made to the SCOTUS. The ACA mandate had been found to be legal because of the ability of Congress to tax. The mandate was a tax. The Republican congress was able to repeal this "tax" mandate starting in 2019. So now that the 'tax" is not associated, the argument being made is that there is no longer authority to require coverage, that without the tax the entire ACA is somehow voided.

So there was never any debate about lowering the mandate to zero - the Republicans failed to overturn the ACA so they took the next step they could and eliminated the mandate. The Republicans did not want the ACA is succeed and still don't.

I think you are seriously misjudging the amount of bipartisan cooperation that was possible in 2017 when the mandate was repealed - somewhere between zero and nada.

[johnu]

kenberg, on 2020-November-10, 12:00, said:

Ok, but I still ask: As the bill came up to lower the penalty to zero, did anyone of any side suggest or discuss the idea of eliminating the requirement instead of keeping the requirement while eliminating the penalty for non-compliance? Elimination must have occurred to someone, I should hope. And the non-elimination seems to be coming back to bite. And that was predictable, easily predictable.

Are you kidding?

The repeal of the tax penalty for the individual mandate was done in December 2017. At the time, Republicans controlled the House, and then as now, they also controlled the Senate and White House. I'm sure you have studied the way Republicans run the House and Senate. Democrats had no say in any of the discussions and basically were only allowed to show up and vote for a bill that had already been decided on by Republicans.

The goal of the Republicans was to totally eliminate the ACA but this was the only thing they could think to do. They could have tried to eliminate any penalties for insurance companies that refused to pay for things related to pre-existing conditions, but the pre-existing condition provision is wildly popular so they didn't want to do anything to highlight their hypocrisy. Even now as they support the Supreme Court cases that will indirectly kill the pre-existing condition provisions, Republicans and the Manchurian President are lying with every last breath that they are supporters of the pre-existing condition provisions in the ACA.

[johnu]

cherdano, on 2020-November-10, 15:17, said:

Here is the question you have to ask yourself to decide separability.
Those in Congress who voted to eliminate the penalty, would they have vot3d to eliminate the mandate altogether?

The answer to that question is obvious [i]unless[/] you are a conservative legal scholar. (To be fair, it's also obvious to must conservative legal commentators/academics - just not to those in power, I.e. attorney generals, judges.)

As of July 29, 2017, Republicans have tried to kill the ACA 70 times. I didn't see a later cumulative count.

For those interested in a timeline of Republican efforts to kill the ACA

Timeline: Despite GOP’s Failure To Repeal Obamacare, The ACA Has Changed

[kenberg]

johnu, on 2020-November-10, 15:46, said:

Are you kidding?

The repeal of the tax penalty for the individual mandate was done in December 2017. At the time, Republicans controlled the House, and then as now, they also controlled the Senate and White House. I'm sure you have studied the way Republicans run the House and Senate. Democrats had no say in any of the discussions and basically were only allowed to show up and vote for a bill that had already been decided on by Republicans.

The goal of the Republicans was to totally eliminate the ACA but this was the only thing they could think to do. They could have tried to eliminate any penalties for insurance companies that refused to pay for things related to pre-existing conditions, but the pre-existing condition provision is wildly popular so they didn't want to do anything to highlight their hypocrisy. Even now as they support the Supreme Court cases that will indirectly kill the pre-existing condition provisions, Republicans and the Manchurian President are lying with every last breath that they are supporters of the pre-existing condition provisions in the ACA.

Ah ha. No I was not kidding but there are many things that I did not know. So I looked it up on the Wikipedia as no doubt I should have dome earlier.

At https://en.wikipedia...ility_provision I found


History[edit]
The Patient Protection and Affordable Care Act signed in 2010 imposed a health insurance mandate to take effect in 2014. On June 28, 2012, the Supreme Court of the United States upheld the health insurance mandate as a valid tax, in the case of National Federation of Independent Business v. Sebelius and thus within Congress' taxing power.

The federal tax penalty for violating the mandate was zeroed out by the Tax Cuts and Jobs Act of 2017, starting in 2019. (In order to pass the Senate under reconciliation rules with only 50 votes, the requirement itself is still in effect).^[11] This raised questions about whether the Affordable Care Act was still constitutional.^{[12] [13][14]}



Ok, I get it. It comes down to Senate Rules. Apparently (I have not checked the details but i believe I have the general idea) Senate Rules were such that they could eliminate the penalty by a majority vote but the Rules would require more stuff if they wanted to eliminate the provision.

Now it makes sense. I could not understand how anyone could get up and say "Let's keep the mandate but eliminate the penalty". That just seemed crazy. And it is crazy, but the rules for eliminating the penalty were softer than the rules for eliminating the mandate. So that's what they did.

I was not arguing for the mandate or against the mandate and I certainly was not arguing Constitutional Law. I simply could not imagine any possible explanation for keeping the mandate but eliminating the penalty for not following the mandate. Now I see why. Possibly I understood this at the time, or possibly not, but now it makes sense. Perverse sense, but sense.

Anyway, your comments got me looking in the right direction. Thanks.

[cherdano]

kenberg, on 2020-November-10, 16:30, said:

Ok, I get it. It comes down to Senate Rules. Apparently (I have not checked the details but i believe I have the general idea) Senate Rules were such that they could eliminate the penalty by a majority vote but the Rules would require more stuff if they wanted to eliminate the provision.

Yup.

Quote

[color="#202122"][font="sans-serif"]Now it makes sense.

In my view, that's the wrong conclusion. Senate Rules don't make sense. Governing majorities should be able to govern, without firing taking the Senate parliamentarian (who rules on what can be done under budget reconciliation) out to fancy dinners.

[Winstonm]

cherdano, on 2020-November-10, 17:10, said:

Yup.

In my view, that's the wrong conclusion. Senate Rules don't make sense. Governing majorities should be able to govern, without firing taking the Senate parliamentarian (who rules on what can be done under budget reconciliation) out to fancy dinners.

Even weirder, the rules of the Senate have been written over time by the Senate and they can change those rules - so to blame rules is just a way for the Senate or Senator to try to duck responsibility.