9 Nines

Thanks. My main players stalled out.

Can of peanuts. 1000s of years ago, people had no peanuts. Good gift?

Watch the ball go.

Why do they allow that fan to blow that horn during the Rams game?

I am not an attorney, so I do not really know but it seems to be general consensus in a lot of legal circles, both conservatives and liberal, that this judge made a very unorthodox ruling across many questionable decisions. I read a bunch of articles last night, mainly concentrating on conservative oriented ones. Most were bashing this judges stating he was completely radical in his ruling. First intent was needed since the law did not have a severability clause. From I read, if no clause, the next step is to infer what Congress intended to imply if the invalid part severable. The judge refused to do that step. Then once that is established a judge usually follows XXXX doctrine (I forgot what attorneys called it) where the judges eliminates as little else of the law as possible, just removing parts consistent and required with that part that was ruled invalid. Not only did the judge not do that, he went well beyond what the plaintiffs were even requesting in the suit. They requested to just eliminate community rating and coverage of pre-existing conditions, which were the parts directly linked to the mandate and keep the rest of it. The judge not only did that, he throw out the entire law - he did the complete opposite of that doctrine - which include throwing out things not have related to the mandate (for example, a tax on tanning beds, a part of the law, is in no way related to the mandate, and much of the other parts of the law that had nothing to do with the mandate.)

Intent is at the very heart of this suit because the question of whether the mandate is severable from the rest of the law was not clear in the code, so the court needs to rely on intent.

The judge literally stated he would not consider the intent of the 2017 Congress, relying on his view of the implied intent of the 2010 Congress that could not change the law to add an explicit severability clause because they had to go with the original draft. It is pretty evident that the 2017 Congress intended for the law to persist making the mandate $0 because they left the rest of the law intact - they did not even remove the mandate (just made it $0.) Their actions imply their intent to keep the rest of the law and many on are on records saying it when they debated it. Again, that judge dismissed any consideration of intent of the 2017 Congress in his ruling. So one older Congress' implied intent is valid but not another Congress's more recent intent? Compare that point to Justice Kavanaugh, who in a 2011 ACA challenge, considered what a hypothetically Congress could do in the future to correct any constitutional challenges when he gave examples of changes they could easily make in his dissent when he felt the challenge then had no standing. So the current judge will not consider the most recent Congress's intent while Kavanaugh considers future Congresses. And Standing is another issue. The plaintiffs showed no damage from the law now and the current judge ignored that basic consideration in deciding standing. Yet Kavanaugh ruled a prior challenge had no standing because the tax would not go into effect until the future - and a future damage, if no changes, is more clear than none. So unless Justice Kavanaugh completely flips in his legal logic in his own ruling, he would likely be an added vote in support of the ACA and would probably rule the lawsuit has no merit and no standing.

Even Conservative attorneys see today's ruling as bad law and paints the subject judge as an activist for making the ruling. For example, http://reason.com/volokh/2018/12/14/breaking-district-court-judge-in-texas-h and http://reason.com/blog/2018/12/14/a-texas-judge-just-ruled-obamacare-uncon The question, though, is which Congress? As Case Western Law Professor and Volokh Conspiracy contributor Jonathan Adler, who is a longtime critic of the health care law, has argued (along with others), the policy statements made as part of the original law don't really matter, not anymore, because last year's Congress told us quite clearly that they did believe the law could stand on its own without a mandate penalty. We don't have to guess at the intent of the Congress that modified the law, because they told us quite clearly that they believed that the rest of the Affordable Care Act could stand in the absence of a tax penalty. Also, based on his past rulings and what he told the Senate, Justice Kavanagh would expectantly support the ACA if this cases reaches the Supreme Court Supreme Court meaning a 6-3 (5-2 from the Justices ruling as they did in 2012 with Kavanaugh joining the 5 in support of the ACA) against the suit, i.e. supporting the ACA, and it could be 7-2, if Justice Gorsuch supported it also. Here is a conservative excerpt of how Judge Kavanaugh ruled on 2011 challenge that came to his court prefaced with "Which is worse: An unelected judge opining on how a mandate to purchase a product could meet constitutional muster, or giving Congress instructions on how to ensure it will? Kavanaugh did both." http://thefederalist.com/2018/07/02/potential-scotus-pick-brett-kavanaugh-wrote-roadmap-saving-obamacare/ In Kavanaugh’s view, the mandate could fit “comfortably” within Congress’ constitutional powers. Even as he “do[es] not take a position here on whether the statute as currently written is justifiable,” Kavanaugh concludes that “the only potential Taxing Clause shortcoming in the current individual mandate provision appears to be relatively slight” (emphasis in the original). Several pages thereafter, Kavanaugh continues to answer a question nobody asked him, giving the legislature instructions on how to remedy the in-his-view minor constitutional infirmity: This discussion about the potential problem with the Government’s Taxing Clause argument also shows how easily Congress could eliminate any such potential problem. For example, Congress might keep the current statutory language and payment amounts and simply add a provision as basic as: “The taxpayer has a lawful choice either to maintain health insurance or make the payment to the IRS required by Section 5000A(a)-(c).” Or Congress might retain the exactions and payment amounts as they are but eliminate the legal mandate language in Section 5000A, instead providing something to the effect of: “An applicable individual without minimum essential coverage must make a payment to the IRS on his or her tax return in the amounts listed in Section 5000A(c).” Or Congress could adopt the approach from the House-passed bill, which expressly created a tax incentive and plainly satisfied the Taxing Clause. Any of those options—and others as well—would ensure that this provision operates as a traditional regulatory tax and readily satisfies the Taxing Clause. Also the current judge literally ignored the intent of the 2017 Congress that brought the Mandate penalty to $0, refusing to considered that it intended for the law to survive without the penalty, while Kavanaugh did the complete opposite, hypothetically arguing that future Congresses could easily change the law with different intent: The last section of Kavanaugh’s opinion explains why he believes the courts should not decide the constitutionality of the individual mandate: “this case could disappear by 2015 because, by then, Congress may fix the alleged constitutional shortcoming and ensure that the Affordable Care Act’s individual mandate provision fits comfortably within Congress’ Taxing Clause power.”

I read something earlier in the week that I now cannot find. It stated that making his report public is in Mueller's hands. Mueller can force it public by indicting President Trump. If he moves to indict the President, it would require the US Attorney General's approval. No matter what the AG does, the report goes public: 1) if the AG accepts it, the report goes public in the court system; or 2) if the AG refuses the indictment, it triggers the report being sent to Congress because of the disagreement. Anyone know the legal basis for 2)?

Here is a picture of the girl who was killed by President Trump's detention camp policy that would not help her in her state of dehydration:

More: Here is the transcript from the Rachel Maddow Show from 11-15-18 when she reported this - that is when the case was already sealed and getting public attention: http://www.msnbc.com/transcripts/rachel-maddow-show/2018-11-15 She notes that the judge, who recused himself from this sealed indictment, vowed* he would recuse himself not from anything Trump or Russian related but from anything on which he worked when he worked at the White House for Trump when he was laying out legal defense for the President. So.................................. * And the one judge on that court on that appeals court who has recused himself on this issue and is not sitting in on any aspect of this case is the old “I`m replaying the tape here” guy. It`s Greg Katsas, it`s one Trump appointee on that D.C. Appeals Court. And he did, after all of that badgering at his confirmation hearing, after all of the efforts to pin him down, he did after all pledge to senators that he would recuse himself from anything he had worked on in the Trump White House, including specifically anything that he had worked on in the Russia investigation, although he would not say exactly what that was. Remember, he said he didn`t work on the Manafort part of the Russia investigation. He didn`t work on the James Comey being fired part of that investigation, but he did work on some other stuff that involved him advising the president about Mueller`s probe. And for whatever reason, he is the one judge who is recused now from this mystery case that today was the occasion for a roughly 30-page-long brief just getting filed by the mystery lawyers. There is the lawyers from Mueller`s team on one side. There is mystery lawyers on the other side representing whoever this mystery person is who is in a big secret fight with the special counsel over a matter that relates to Mueller`s grand jury, and we do not yet know what it is.

@Legaltitan Rachel Maddow made an interesting point on a case that might be this indictment. When the possible related case was heard, a single judge recused himself from the en banc panel on this. The judge in question is a Trump appointment who during his confirmation hearing vowed that he would recuse himself from anything Russian-Trump related. Rachel Maddow had also reported one other interesting tidbit. Judge Greg Katsas, underwent a bizarre confirmation hearing and refused to discuss anything about the nature of his prior legal work for Donald Trump in the Trump-Russia investigation and promised to recuse himself from any cases related in any way to the investigation. Sure enough, he is the only judge to recuse himself in the en banc panel hearings in this sealed matter. That recusal is causing many legal experts to believe that the sealed matter is related to the Special Counsel investigation, and Politico has previously reported as much. https://www.palmerreport.com/analysis/sealed-indictment-mystery-mueller/14737/