WELCOME TO THE OFFICIAL RICHARD E GERSTEIN JUSTICE BUILDING BLOG. THIS BLOG IS DEDICATED TO JUSTICE BUILDING RUMOR, HUMOR, AND A DISCUSSION ABOUT AND BETWEEN THE JUDGES, LAWYERS AND THE DEDICATED SUPPORT STAFF, CLERKS, COURT REPORTERS, AND CORRECTIONAL OFFICERS WHO LABOR IN THE WORLD OF MIAMI'S CRIMINAL JUSTICE. POST YOUR COMMENTS, OR SEND RUMPOLE A PRIVATE EMAIL AT HOWARDROARK21@GMAIL.COM

Monday, March 26, 2012

HEALTH CARE BATTLE AT THE SUPREME COURT

Starting today the Supreme Court begins three days of historic arguments on the challenges to the current health care law.  The case will receive a total of six hours of oral arguments,  the most the court has scheduled in the last forty years. 


In this corner, sporting a natty salt and pepper mustache is Donald Verrilli Jr., the Solicitor General of the United States.  This will be Mr. Verrilli's lucky thirteenth argument before the high court and he will be defending the law. 


In this tea party/US Chamber of Commerce sponsored corner  is
 Paul D. Clement, a former Solicitor General of the United States (under the Bush-duh! administration). Mr. Clement, the current darling of the right,  will be arguing his 54th case before the U.S. Supreme Court.  Mr. Clement has argued more cases before the Supreme Court since 2000 than any other lawyer. He is a formidable opponent. 


During the three days of oral arguments, the court will address four separate issues and both Mr. Verrilli and Mr. Clement will handle three of the issues.  On Monday the court will spend 90 minutes on our favourite issue: "why are we here?" otherwise known as the jurisdictional issue. Specifically the court will examine whether the 1867 Anti Injunction Act which forbids suits for the purposes of restraining the assessment or collection of taxes applies to this case and makes the rest of the arguments moot for lack of jurisdiction. 


But Tuesday is when the fireworks will really  fly when Verrilli and Clement face off for two hours of oral argument (two hours!!) on the issue of whether the law's "mandate" requiring everyone to obtain health insurance is constitutional. Does the interstate commerce clause of the constitution give congress the power to pass a law with such a requirement? 


For those of you who have been to a Federalist Society meeting you know how the commerce clause argument bugs conservatives. The commerce clause  has been used to uphold laws as varied as civil rights laws (remember Katzenbach v. McClung,  379 U.S. 294 (1964) and Ollie's Barbecue?) and laws preventing farmers from eating the wheat they grew (Wickard v. Filburn  317 U.S. 111 (1942) has always been a thorn in the side of the Tea  party/Federalist/Scalia/Thomas crowd). 


The question for legal theorists has never been about whether discrimination is OK, but whether the constitution specifically prohibits it and whether the use of the interstate commerce clause has just been a legal fiction to boot strap social legislation engineered by the courts. In other words is it good to decide cases by whose Ox is gored?  Because if the courts can do that (which you might agree with like the civil rights cases) what can't they do (like stop you from eating  the wheat you grow)? Just don't mention Bush v. Gore to conservatives because that makes them  uncomfortable. 


Rumpole predicts that the mandate argument is where Scalia and Thomas see the meat of this case and a hunting they will go with Roberts and Alito to get "Two sides Tony"  Kennedy on their side of the issue.


The  schedule for the remaining arguments  is  that for ninety minutes on Wednesday morning the court will hear arguments on severability and at 1:00 pm  Wednesday there will be an hour of arguments on expanding medicaid under the challenged legislation. No truth that ESPN will be broadcasting the arguments live but for you appellate nerds, the SCOTUS blog will have audio and transcripts of the previous days arguments on line. 


See You In Court.

22 comments:

Anonymous said...

wow 4:04 am. i am impressed.

DS sez: said...

Once again the Herald makes a big deal of nothing. The Herald had two stories on the Ultra Music Festival . One article said 165,000 were expected to attend.
The second artcle tries to make a big deal out of "At least 15 arrested " and that Miami Fire-Rescue responded to about 60 calls
Sounds like .01 of 1 % arrested.

DS

Anonymous said...

Rumpole,

your kidding me? This who health care thing only comes down to Justice Kennedy? Who would have thought that only one man's vote really matters in something so important as healthcare.

Anonymous said...

http://www.bizjournals.com/southflorida/blog/morning-edition/2012/03/class-action-against-greenberg-traurig.html

CAPTAIN said...
This comment has been removed by the author.
CAPTAIN said...

The Captain Reports:

Very impressive this Clement. Argued 49 times before the Supreme Court as Solicitor General and Deputy SG. This will actually be his 56th argument according to the NY Times. He apparently is billing at $1,000 per hour; not bad if you can get it. He clerked for Scalia in a past life and edited for the Law Review at Harvard when
none other than Obama was its President.

The interesting thing about the Anti-Injunction Act being argued today is that neither side believes it applies. So the Court had to appoint an attorney to argue the issue. 

Here's my question? Are they paying that attorney CJA rates?

I read somewhere that our own Judge Alex Ferrer sat on a mock panel as a Supreme Court justice to hear oral arguments for this case. Anyone know anything about this?

Cap Out .....

Anonymous said...

New topic of discussion-- why does love hurt so much?

Dr. Leonard "Bones" McCoy

Mr. Chief Justice-Designate Milton Hirsch said...

I participated as CHIEF JUSTICE in mock arguments on the health care case, as I will soon be the REAL CHIEF JUSTICE of the United States Supreme Court.

Anonymous said...

Calling the shumie-- too depressed to work.

Anonymous said...

Yesterday's topic was love. Today can we just talk about bangin? Just getting a hottie and a room and going at it over and over again for hours at a time until your bodies, covered in sweat and bruises from bites and scratches, collapse in a tangled heap of arms and legs and you lie there panting and happy for the fulfillment of the moment.

Anonymous said...

Can someone explain this one-- wanting to be with someone so badly that it hurts so you try to forget about them only they keep flooding your mind with thoughts of what might be?

the trialmasster said...

I find all of the srguments before the Supreme Court to be very boring. Give a trial jury any day/

CAPTAIN said...

North of the Border:

In Broweird, Brown was convicted of "aiding an unmarried runaway". Did anyone know this was a crime? This is a first degree misdemeanor. Judge Imperato sentenced Brown to the maximum, 364BCJ.

Cap Out ....

Anonymous said...

@10:08,
Because when it comes to matters of the heart, the heart can be touched very easily especially when someone unexpectedly enters into your life.

Anonymous said...

I do not practice in Broward county, so was a bit puzzled to see the previous post refers to a sentence of 364BCJ

I assume this means Broward County Jail. This lead me to question the acronym DCJ. I always used it to mean "days in County Jail". Does it actually mean "Dade County Jail"??

I've never heard anyone say "MCJ" in Monroe.

Anyone else under this possibly mistaken belief?

Anonymous said...

Serious stuff kids:

http://www.miamiherald.com/2012/03/26/2715433/miami-attorneys-accuse-judge-of.html

Guess when the attorneys "eff up" their next strategy is to blame the judge.

Anonymous said...

this guy tien sounds like a real tool

Anonymous said...

4:26, ur stoopid

Anonymous said...

Looks like Rosinek may get the tomahawk. Maybe he will be replaced by a judge more his junior, someone lower on the totem pole.

I would hate to see him get scalped over this.

But I understand there is a lot of wampum at stake here. Maybe the parties can get together and pow wow over their differences.

I have real reservations about rushing to judgement, however. Rosinek has always seemed fair to me, for a pale face. What do you say kemosabe?

George Frobisher said...

Clement commands $1000 per hour for corporate clients, but in this case the politically-conservative advocate agreed to a flat fee of $250,000.00

Anonymous said...

I have dealt with tein and find him to be a liar!


By Judge Dresnick

Anonymous said...

Uh oh...

Looks like the kid wasn't an angel on earth, and was just a regular teenager. And the racist was punched in the nose and had a head injury? Gee, when I hypothesized that Martin may have punched him in the face trying to knock Zimmerman out, I had no idea that was what the evidence would show.

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