Sponsored Content




Intermarkets' Privacy Policy
Support


Donate to Ace of Spades HQ!



Recent Entries
Absent Friends
Bandersnatch 2024
GnuBreed 2024
Captain Hate 2023
moon_over_vermont 2023
westminsterdogshow 2023
Ann Wilson(Empire1) 2022
Dave In Texas 2022
Jesse in D.C. 2022
OregonMuse 2022
redc1c4 2021
Tami 2021
Chavez the Hugo 2020
Ibguy 2020
Rickl 2019
Joffen 2014
AoSHQ Writers Group
A site for members of the Horde to post their stories seeking beta readers, editing help, brainstorming, and story ideas. Also to share links to potential publishing outlets, writing help sites, and videos posting tips to get published. Contact OrangeEnt for info:
maildrop62 at proton dot me
Cutting The Cord And Email Security
Moron Meet-Ups

NoVaMoMe 2024: 06/08/2024
Arlington, VA
Details to follow


Texas MoMe 2024: 10/18/2024-10/19/2024 Corsicana,TX
Contact Ben Had for info





















« Top Headline Comments 1-14-11 | Main | Left Still Making Stuff Up, Claiming Loughner Got His Ideas From DAVID-WYNN: MILLER »
January 14, 2011

Kansas Seeks to Join Multistate ObamaCare Lawsuit; Brings Number of States Suing to 26

Following the elections, newly GOP-led states Ohio, Wisconsin, and Wyoming also asked permission to join. A decision from the district judge in the multistate suit is expected at any time. Virginia filed its own lawsuit and already saw success at the district court. Oklahoma just filed its own lawsuit against ObamaCare.

That brings the number of states suing the federal government to 26. As Ilya Somin writes, it shouldn't matter legally if one state sues or all of them. But it still helps to show widespread objection:

But in politically sensitive cases such as this one, legal arguments are not the only factors that matter. The Supreme Court is usually reluctant to strike down a major federal law that has strong support from the president and his party and is a big part of their political agenda. In this case, however, the law in question is unpopular with the general public. . . . And the states’ action is an indication that it is also disliked by a large part of the political elite. Widespread popular and elite opposition gives the Court the political cover that it would need to strike down the law. If the political winds continue to blow against the law, the justices can be confident that a decision to strike it down won’t create a dangerous backlash against the Court.

There is a bit of variation in the arguments raised in each lawsuit, as I discussed here, so it's still good that there's more than one on track. Appellate courts, including the Supreme Court, won't reach arguments raised for the first time on appeal. Having more than one lawsuit also gives various circuit courts of appeals a crack at it, providing a fuller record for the Supreme Court to ultimately consider. As I wrote before, sometimes it's strategically helpful to give the Supreme Court justices (ahem, Kennedy) some room to maneuver.

There's some psychology that individuals are more likely to respond positively if they have options. As far as result goes, it doesn't matter how ObamaCare gets knocked down, only that it gets knocked down. That's just a simple "yes or no" question. But sometimes you have to make the "yes or no" question more attractive. Psychologically you can do that by turning it into a multiple choice problem. Give the judge options A, B, and C, -- various reasons to knock down the law . . . say the Commerce Clause, Tax Clause, and General Welfare Clause arguments against ObamaCare. Option D is to uphold the healthcare law. The judge or justice faced with the multiple choice version has an opportunity to be clever (and you know how judges love to get "clever"), saying "no" to one or two of A, B, and C, while still ultimately finding the law unconstitutional.

I've seen this at work myself when I was clerking. A judge would get off track thinking about the options, when the real answer should have been a simple: "no way."

As far as Somin's "political cover" argument, there's some unfortunate truth to the idea that Supreme Court justices sometimes consider the legitimacy of the Court in the eyes of the public and not just the legitimacy of the legislation it is called on to review. In light of accelerated backlash against judges who issue unpopular decisions, it's no wonder.


digg this
posted by Gabriel Malor at 07:38 AM

| Access Comments




Recent Comments
Wolfus Aurelius, Dreaming of Elsewhere [/i] [/b]: "Morning, insomaniacals! I actually slept about en ..."

Braenyard: "Stefanie Lambert, an election integrity attorney w ..."

Epobirs: "The offending file(s) will usually make itself obv ..."

Epobirs: "Max Gail (Wojo) is apparently still around. He has ..."

Braenyard: "I don't mind renaming a file but going through 50 ..."

Epobirs: "New Tricks was more a more conventional police pro ..."

Epobirs: "I've usually gotten around the problem by copying ..."

Jim[/i][/b][/s][/u]: "New Tricks was the Brit version of Barney Miller, ..."

irongrampa: "Sitting here listening to music, mostly oldies tha ..."

publius, Rascally Mr. Miley (w6EFb): ">> says you have 3 files with names too long for ..."

Epobirs: "New Tricks was on a lot longer than that. 2003-201 ..."

Braenyard: "Those 4bbl Holley's are light on the gas if you're ..."

Recent Entries
Search


Polls! Polls! Polls!
Frequently Asked Questions
The (Almost) Complete Paul Anka Integrity Kick
Top Top Tens
Greatest Hitjobs

The Ace of Spades HQ Sex-for-Money Skankathon
A D&D Guide to the Democratic Candidates
Margaret Cho: Just Not Funny
More Margaret Cho Abuse
Margaret Cho: Still Not Funny
Iraqi Prisoner Claims He Was Raped... By Woman
Wonkette Announces "Morning Zoo" Format
John Kerry's "Plan" Causes Surrender of Moqtada al-Sadr's Militia
World Muslim Leaders Apologize for Nick Berg's Beheading
Michael Moore Goes on Lunchtime Manhattan Death-Spree
Milestone: Oliver Willis Posts 400th "Fake News Article" Referencing Britney Spears
Liberal Economists Rue a "New Decade of Greed"
Artificial Insouciance: Maureen Dowd's Word Processor Revolts Against Her Numbing Imbecility
Intelligence Officials Eye Blogs for Tips
They Done Found Us Out, Cletus: Intrepid Internet Detective Figures Out Our Master Plan
Shock: Josh Marshall Almost Mentions Sarin Discovery in Iraq
Leather-Clad Biker Freaks Terrorize Australian Town
When Clinton Was President, Torture Was Cool
What Wonkette Means When She Explains What Tina Brown Means
Wonkette's Stand-Up Act
Wankette HQ Gay-Rumors Du Jour
Here's What's Bugging Me: Goose and Slider
My Own Micah Wright Style Confession of Dishonesty
Outraged "Conservatives" React to the FMA
An On-Line Impression of Dennis Miller Having Sex with a Kodiak Bear
The Story the Rightwing Media Refuses to Report!
Our Lunch with David "Glengarry Glen Ross" Mamet
The House of Love: Paul Krugman
A Michael Moore Mystery (TM)
The Dowd-O-Matic!
Liberal Consistency and Other Myths
Kepler's Laws of Liberal Media Bias
John Kerry-- The Splunge! Candidate
"Divisive" Politics & "Attacks on Patriotism" (very long)
The Donkey ("The Raven" parody)
Powered by
Movable Type 2.64