[Cog]

In the rush to pass the ACA, the Democrats forgot to add a severability clause. Meaning, if one part of Ocare is unconstitutional the entire bill and subsequent law is unconstitutional. LOL

[Pops]

Wait a minute I though Rs were all about opposition to "activist judges"?

$this->bbcode_second_pass_quote('', 'O')ne important distinction in the severability analysis is that Congress changed the individual mandate penalty. Even if a court concludes that the changes in the tax bill render the individual mandate unconstitutional, the idea that the rest of the law would fall on these grounds seems implausible: Congress itself decided that the individual mandate was severable by not also repealing the other components of the ACA. Congress decided this despite having considered more extensive repeal of the ACA for many months leading up to enactment of the tax bill.

The idea that the states could accomplish what Congress repeatedly failed to do through a lawsuit over a small amendment seems far-fetched, to say the least. A decision in the states’ favor would disregard the will of Congress. This disregard could be precisely the reason why the Supreme Court (or any other court) could be loath to walk this plank, especially on the ACA. In King v. Burwell, Chief Justice Roberts ended his majority opinion upholding the availability of premium tax credits in states with the federal marketplace by citing Marbury v. Madison and noting that “in every case we must respect the role of the legislature, and take care not to undo what it has done.”

[Plantagenet]

In an unusual move, the Trump administration didn't defend the ACA in the Texas court case. No DOJ lawyer was there to defend this federal law in federal court. IMHO this sent a signal to the judge that the federal government did NOT support the ACA and would be happy to see the judge overturned it.

This unusual legal maneuver was pioneered by the Obama administration, which first came up with the idea of the federal government and DOJ not defending federal laws in high profile federal court cases, like the DOMA act. No federal DOJ lawyers defended the DOMA act, even though it was duly enacted federal law.

I thought it was perfidious when the Obama administration didn't send anyone to court to defend federal laws that obama didn't like, because the president swears an oath to defend and uphold the nation's laws when he becomes president. As far as I was concerned obama was breaking his oath as president when he failed to defend our laws in court. Now trump is following this awful precedent.

Thats the problem when one party or the other does something awful. The other party adopts the tactic and turns it back on them. If Obama can break his presidential oath because he doesn't like some of the laws, then trump can break his presidential oath when he doesn't like some of the laws.

An appeal of this case will go to the SCOTUS. Don't look for DOJ lawyers to defend the ACA there either.

Cheers!

[Cog]

Congress should have put in a severability clause in the ACA bill. They did not which is why we are here. Remember, "We have to pass it so we know what's in it"?

Well we know now what wasn't in it. A severability clause. The judge in Texas is applying the law as written. It's not his problem the Congress who passed it, was so incompetent that they could forsee problems.

[Pops]

$this->bbcode_second_pass_quote('Plantagenet', 'T')his unusual legal maneuver was pioneered by the Obama administration, which first came up with the idea of the federal government and DOJ not defending federal laws in high profile federal court cases, like the DOMA act. No federal DOJ lawyers defended the DOMA act, even though it was duly enacted federal law.

[Plantagenet]

$this->bbcode_second_pass_quote('Pops', ' ')It is hard for me to fathom just how much Obama scared old white guys

[Pops]

$this->bbcode_second_pass_quote('Plantagenet', 'T')he 1989 case involved a REGULATION issued by the FCC.

[Plantagenet]

$this->bbcode_second_pass_quote('Pops', 'T')he Ford Justice Department refused to defend the post-Watergate campaign finance law

[Pops]

Plant, finally slogged through
EXECUTIVE DEFENSE OF CONGRESSIONAL ACTS by S by DANIEL J. MELTZER
(deputy counsel to the president from January 2009 through May 2010)

There is president although many more examples of defending.
the biggest he talks about are:
Not filing an amicus in Brown vs Board that I mentioned
Bush in the Metro case challenging the 1982 congressional amendment to the Communications Act of 1934 (p1202)
Clinton on Don't Ask, Don't Tell
Obama on DOMA

I'm not sure trump needs encouragement in breaking precedent but that actually was the argument Metzler made for always defending unless no justification

Here from pg 1228 in the original, pdf pg46:
$this->bbcode_second_pass_quote('', 'B')ut I
want to move the discussion to a higher level of generality, for I
believe the most critical question is the attractiveness of a regime in
which each administration views itself as having significant latitude to
refuse to enforce and defend acts of Congress. And I think such a
regime is likely to be less attractive than particular decisions or
theories, for a very simple but important reason: different
administrations are likely to have sharply different views about the
appropriate occasions for, and the appropriate theories underlying,
such decisions.
At the level of individual decisions, I heard it said that if the
George H.W. Bush administration would not defend what it viewed
as invidious reverse discrimination in Metro Broadcasting, the Obama
administration need not defend what it believes to be invidious
discrimination against gays. And one can well imagine that the failure
to defend DOMA could in turn be invoked as a reason for a future
Republican administration to refuse to defend some other statute in
the years ahead.

[Subjectivist]

I don't see anything in the Presidential oath of office rquiring the ffice holder tospport every boneheaded regulation or law. Quite the contrary, if the President believes a law violates the constitution they are required to oppose or work to overturn those laws.

You don't have to agree with any particular President, but their oath is to the constitution, not congressional laws.

[Plantagenet]

$this->bbcode_second_pass_quote('Subjectivist', '
')You don't have to agree with any particular President, but their oath is to the constitution, not congressional laws.

[Pops]

$this->bbcode_second_pass_quote('Subjectivist', 'Y')ou don't have to agree with any particular President, but their oath is to the constitution, not congressional laws.

[Cog]

If the Congress doesn't like the president's enforcement of the laws they pass, they have a remedy right in the US Constitution. Its called removal by impeachment. By the way here is what the president swears to when he is elected.

"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States. "

If a president believes a law is unconstitutional he is well within his power to not enforce it, until such time as the Supreme Court says otherwise. Here is what Thomas Jefferson thought about such things: "If a law is unjust, a man is not only right to disobey it, he is obligated to do so."

[Plantagenet]

$this->bbcode_second_pass_quote('Cog', 'H')ere is what Thomas Jefferson thought about such things: "If a law is unjust, a man is not only right to disobey it, he is obligated to do so."

[Cog]

Or the people themselves can just not obey the law. As millions of people, whom are behind enemy lines are disobeying state gun laws that they don't agree with.

[Plantagenet]

$this->bbcode_second_pass_quote('Cog', 'O')r the people themselves can just not obey the law. As millions of people, whom are behind enemy lines are disobeying state gun laws that they don't agree with.

[Subjectivist]

$this->bbcode_second_pass_quote('Pops', '')$this->bbcode_second_pass_quote('Subjectivist', 'Y')ou don't have to agree with any particular President, but their oath is to the constitution, not congressional laws.

[careinke]

$this->bbcode_second_pass_quote('Plantagenet', '')$this->bbcode_second_pass_quote('Subjectivist', '
')You don't have to agree with any particular President, but their oath is to the constitution, not congressional laws.

[Plantagenet]

$this->bbcode_second_pass_quote('careinke', '
')
You folks need to actually READ the oath of office. I'm not just picking on Plant here, but most of the rest of you as well.

1. Here is the Presidential Oath of office: "I do solemnly swear (or affirm) that I will faithfully execute the office of president of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."

Notice nothing about protecting congressional Laws or other silly notions like respecting previous presidential declarations etc. As a side note, notice "So help me God" is not actually part of this Oath, but most presidents add it. It seems pretty obvious what he is supposed to preserve, protect, and defend. The Constitution.

[Tanada]

$this->bbcode_second_pass_quote('Plantagenet', '')$this->bbcode_second_pass_quote('careinke', '
')
You folks need to actually READ the oath of office. I'm not just picking on Plant here, but most of the rest of you as well.

1. Here is the Presidential Oath of office: "I do solemnly swear (or affirm) that I will faithfully execute the office of president of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."

Notice nothing about protecting congressional Laws or other silly notions like respecting previous presidential declarations etc. As a side note, notice "So help me God" is not actually part of this Oath, but most presidents add it. It seems pretty obvious what he is supposed to preserve, protect, and defend. The Constitution.