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June 27, 2012

Retraction: Ginsberg's Comments Do Not Tip Her Hand

I kept citing her remark that the Court must decide if a bad stalk of broccoli can be cut away, or if the entire bunch must be discarded, for the proposition that she's tipped her hand, that the mandate is already found unconstitutional, and now the question shifts to severability.

Commenter Richard points out that's not all she said -- that's just all I saw quoted. In fact, she reels off all of the questions you'd imagine the Court is considering:

The three cases challenging the constitutionality of the Health Care Act present four questions: First, does Congress have the authority under Article I of the Constitution (the Commerce Clause or the power to tax and spend for the general welfare) to enact the so-called individual mandate?

Second, if the individual mandate-requiring the purchase of insurance or payment of a penalty-is unconstitutional, must the entire Act fall invalid?

Or may the mandate be chopped, like a head of broccoli, from the rest of the Act?

Third, does the Act's expansion of Medicaid exceed Congress' spending power?

Fourth, the big question, inviting the answer everyone is waiting for: Do federal courts lack jurisdiction to entertain a pre-enforcement challenge to the individual mandate in light of the Anti-Injunction Act of 1867.45 That Act prohibits "any person" from suing the federal government to restrain "the assessment or collection of any tax."

Transcript of the remarks here.

Those are simply the four questions they certified for review -- the very four questions they had oral arguments on.

That tells us nothing at all.

Sorry. I just saw this one bit quoted and thought it was all she said. She didn't. She simply reiterated the questions certified for Supreme Court review.

Obviously, all conclusions based on my faulty premise are weakened.

Thanks to Richard J. for correcting me.

Eh, damnit.

I started to say in the comments, "Doesn't anyone else realize how incredibly important this quote is?"

Well, no. Because the full quote reveals absolutely nothing at all.

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posted by Ace at 09:46 PM

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