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Powered by Guardian.co.ukThis article titled “Supreme court health care day 3 – live” was written by Jim Newell, for guardian.co.uk on Wednesday 28th March 2012 18.45 UTC

2.44pm: And the second session of the day has adjourned – the Most Important Legal Proceeding Since The Trial Of Jesus Christ is over! Let’s see if worrywart Jeffrey Toobin escaped before his head exploded:

Toobin will survive. Again: Toobin will survive. The healthcare reform law though? We’ll have to wait a couple of months before we know about that.

2.31pm: Another thing to keep in mind about the “severability” of the individual mandate: legislators didn’t (forgot to?) include a “severability clause” in the healthcare law, which would have prevented the court from throwing out the whole bill if it found one provision – such as, say, an individual mandate – unconstitutional. That doesn’t mean it is obligated to throw out the whole bill if there’s one one provision it finds unconstitutional, and doing so would be a radical act. But if the whole thing was tossed, Democratic lawmakers would deserve part of the blame for their carelessness.

 

2.16pm: In the afternoon session, Paul Clement tried to argue that the provision for states to expand their Medicaid programs, a part of the bill expected to bring coverage for 15 million low-income Americans and children, unfairly coerces the states. The way the program would work: The federal government would pick up the states’ full tab for new enrollees through 2014, after which it would pick up a mere 90%.

This “coercion” claim is expected to be Clement’s most challenging argument, and as the Wall Street Journal liveblog notes, liberal justices were all over him as this afternoon’s session began. Stephen Breyer, for example:

Justice Stephen Breyer, meanwhile, has been hitting Mr. Clement hard on his most central claim: that the federal government will force states to leave the Medicaid program entirely if they don’t go along with the expansion under the health law. States say that they are afraid that this will destroy their budgets, which rely heavily on Medicaid funds.

Justice Breyer says that that isn’t the case — it’s up to the Health and Human Services Secretary to decide whether to kick them out altogether, and administrative law requires the secretary and other federal government officials to act reasonably, he argues. “Now, does that relieve you of your fear?” he asked.

1.51pm: Meanwhile, on the campaign trail, Rick Santorum just wants to be left alone with his lunch.

 

1.46pm: The court’s audio and transcript (PDF) from this morning’s session are online.

1.29pm: Our correspondent Chris McGreal lined up at 4am to be sure of a seat in court today. Here’s his take:

Wednesday morning’s session boiled down to dueling between the court’s liberal and conservative justices over who should have the authority to decide the fate of the rest of the health care legislation if its core, mandatory medical insurance, is ruled unconstitutional. Justice Scalia was the most aggressive in pressing the idea that it is not up to the supreme court to wade through the remainder of the legislation to decide what should remain and what should not.

He appeared firmly in favour of striking down the whole law if the individual mandate is declared unconstitutional – and gave a clear sign that he thinks it is when he argued that it would be better to throw out the whole law and let Congress begin again.

“Whether we strike it all down or leave some of it in place, the congressional process will never be the same. One way or another, Congress is going to have to reconsider this, and why isn’t it better to have them reconsider it – what – what should I say – in toto, rather than having some things already in the law which you have to eliminate before you can move on to consider everything on balance?” he said.

Some of the more liberal judges were open to the idea that it need not be the end of the health reform law. Justice Sotomayor suggested that if the individual mandate is ruled out, the rest could he allowed to stand while Congress amends the legislation to make it workable.

Justice Kagan said the legislation did not have to be perfect for it to be viable. She said the law was in any case a compromise reached in Congress. “And the question is always, does Congress want half a loaf. Is half a loaf better than no loaf?” she said.

Justice Breyer argued that there are many aspects of the legislation not directly related to the individual mandate. “I would say the Breast Feeding Act, the getting doctors to serve underserved areas, the biosimilar thing and drug regulation… those have nothing to do with the stuff that we’ve been talking about yesterday and the day before, okay? So if you ask me at that level, I would say, sure, they have nothing to do with it, they could stand on their own,” he said.

1.16pm: So the takes following this morning’s session don’t seem as gloomy for the law’s prospects as yesterday, but it was still hardly a walk in the park for the government’s lawyers. The four liberal justices seem intent on preserving the law even without an individual mandate – although, as we gleaned yesterday, they’re also intent on preserving the individual mandate. Justice Scalia, meanwhile, sounds eager to destroy the entire law with a sledgehammer as soon as possible, for various constitutional and political and congressional procedure-based reasons (whatever works, basically.) Justices Roberts and Kennedy simply would like to ask more questions, and perhaps play devil’s advocate on occasion, to mess with our heads.

The key issue is to what degree removing the individual mandate would disrupt interlocking parts of the bill. Scalia best exemplified the absolutist’s take: “My approach would be to say that if you take the heart out of this statute, the statute’s gone.” This neatly echoed the argument of the plaintiff’s lawyer, Paul Clement, who put it, “If the individual mandate is unconstitutional, then the rest of the act cannot stand.”

Perhaps there’s a bit of nuance the absolutists overlook, however? The individual mandate may be the heart of the health insurance finance mechanism in the law – if you require insurers to offer coverage to applicants with pre-existing conditions, then you need a lever for universality that keeps healthier folks in the risk pool to prevent the so-called health insurance “death spiral”, while offering generous government subsidies to further induce them into participation. But if the individual mandate was struck down, wouldn’t this just leave a bad, ineffective public policy in its wake that Congress would have to clear up (some way, somehow?) Some would say that the United States government has plenty of bad public policies in place, but that doesn’t mean they’re the concern of the supreme court.

And even if the mandate/pre-existing conditions/subsidies interlocking complex was excised, much of the rest of the bill – the set-up of state health insurance exchanges, high risk pools, the expansion of Medicaid, and more – could still stand without leading to the collapse of the healthcare market.

Of course, the afternoon session will deal the federal government’s ability to hoist healthcare mandates upon the states, so the conservative justices could simply rule all of the other stuff unconstitutional too.

12.39pm: Just like Chief Justice Roberts, Justice Antonin Scalia seems unusually concerned congressional vote-counting, which – last we checked – is not his job as an arbiter of constitutionality. It sounds like he, and others on his side, might be looking for an excuse to invalidate the whole law as a practical necessity:

12.26pm: The Romney press shop has sent out a notice that former president George HW Bush will endorse Mitt Romney in Houston today, just as he did back in December. Now it is super-official, though, we guess. He now leads his son, former President George W. Bush, 2-0 in total Mitt Romney 2012 presidential endorsements.

12.25pm: Apparently we had some argumentative comedy today, during the president’s alleged train/plane wreck inside the Supreme Court:

Who hit who with the chair or the barbed wire? These Supreme Court justices play too many violent video games.

12.16pm: Lyle Denniston at SCOTUSblog has an interesting, practical take – that some justices may not be interested in striking down the individual mandate alone because it would be too much of a pain to figure out what to do afterwards:

The Supreme Court spent 91 minutes Wednesday operating on the assumption that it would strike down the key feature of the new health care law, but may have convinced itself in the end not to do that because of just how hard it would be to decide what to do after that. A common reaction, across the bench, was that the Justices themselves did not want the onerous task of going through the remainder of the entire 2,700 pages of the law and deciding what to keep and what to throw out, and most seemed to think that should be left to Congress.

12.08pm: The morning session has adjourned. Here’s CNN/New Yorker legal analyst Jeffrey Toobin, giving his latest apocalyptic, sky-is-falling tweet that will terrify Obamacare supporters for the rest of the day whether it has merit or not:

11.59am: The Los Angeles Times has the latest from inside, and its take, at least, is that conservative justices want to tear down the whole law if the individual mandate is invalidated. Oh, they’re feeling frisky today:

The Supreme Court’s conservative justices said Wednesday they are prepared to strike down President Obama’ s health care act entirely.

Picking up where they left off Tuesday, the conservatives said they thought a decision striking down the individual mandate means the whole statute should fall with it.

The court’s conservatives sounded as though they had determined for themselves that the 2,700 page law must be declared unconstitutional.

“One way or another, Congress will have to revisit it in toto,” said Justice Antonin Scalia.

Agreeing, Justice Anthony Kennedy said it would be an “extreme proposition” to allow the various insurance regulations to stand after the mandate was struck down.

11.38am: Longtime Democratic Representative Bobby Rush was kicked off the House floor this morning for donning a hoodie in honor of dead Florida teen Trayvon Martin. Rush supposedly violated chamber rules against wearing hats. Hats!

 

11.31am: The Wall Street Journal live blog, fed by its reporters in the Supreme Court indicates that things are, again, shockingly, breaking down along ideological lines!

Liberal justices are making a strong case for “salvaging” the law even in the event of the individual mandate being ruled unconstitutional; and Chief Justice Roberts – considered, along with Justice Kennedy, one of the two conservative justices who remain open to upholding the law – is exploring another, well, another option:

Chief Justice John Roberts has asked several questions of Mr. Clement that further the case for striking down the whole law, and echo other remarks from Justices Alito and Scalia.

He has suggested that the whole of the health-law should be considered to be linked to the individual mandate because its myriad of other provisions, such as black-lung payments, were actually included as sweeteners to pass the main bill. Without them, Congress “would not have been able to cobble together the votes to get it approved,” he said.

So now Chief Justice John Roberts fancies himself the House Majority Whip, checking out vote counts?

11.14am: Supporters of the health care law – or at least defenders of its constitutionality – dug up all the bitterness they could muster in some sweeping reactions to the liberals’ rough day in court Tuesday.

Slate legal writer Dahlia Lithwick, for example, nearly gave up on modernity, community, and hope altogether:

This morning in America’s highest court, freedom seems to be less about the absence of constraint than about the absence of shared responsibility, community, or real concern for those who don’t want anything so much as healthy children, or to be cared for when they are old. Until today, I couldn’t really understand why this case was framed as a discussion of “liberty.” This case isn’t so much about freedom from government-mandated broccoli or gyms. It’s about freedom from our obligations to one another, freedom from the modern world in which we live. It’s about the freedom to ignore the injured, walk away from those in peril, to never pick up the phone or eat food that’s been inspected. It’s about the freedom to be left alone. And now we know the court is worried about freedom: the freedom to live like it’s 1804.

The New Yorker’s John Cassidy gave up on humanity, calling the case “a bad joke”:

But, of course, this case isn’t ultimately about the law—it is about politics. The four ultra-conservative justices on the court—Alito, Roberts, Scalia, and Thomas—are in the vanguard of a movement to roll back the federal government and undermine its authority to tackle market failures. The movement began in the nineteen-eighties, when the Federalist Society got its start and Ronald Reagan appointed one of its members, Scalia, to the court—and for thirty years it has been gathering strength.

Thus the creation of a new legal theory to sink Obamacare: the idea that while the federal government might well have the authority to regulate economic activity, it doesn’t have the right to regulate inactivity—such as sitting around and refusing to buy health insurance. Now, it is as plain as the spectacles on Antonin Scalia’s nose that opting out of the health-care market is about as realistic as opting out of dying. But necessity is the mother of invention. And, judging by his questions this morning, it is this invention that Kennedy has fastened on.

As I said at the beginning, it’s a bad joke—upon us all.

And Mother Jones’ Adam Serwer poured a few tons of salt into Solicitor General Donald Verrilli’s wounds:

Stepping up to the podium, Verrilli stammered as he began his argument. He coughed, he cleared his throat, he took a drink of water. And that was before he even finished the first part of his argument. Sounding less like a world-class lawyer and more like a teenager giving an oral presentation for the first time, Verrilli delivered a rambling, apprehensive legal defense of liberalism’s biggest domestic accomplishment since the 1960s – and one that may well have doubled as its eulogy.

Reactions on the conservative side, meanwhile, are all more or less in line with that of Senator Ron Johnson, who apparently thought he was watching Braveheart during the hearing:

10.43am: Mitt Romney is now even more deeply engaged in a spat with Russian President Dmitri Medvedev, writing at Foreign Policy, “It is not an accident that Mr. Medvedev is now busy attacking me. The Russians clearly prefer to do business with the current incumbent of the White House.” As president, Mitt Romney will… never do business with Russia, or something.

9.57am: If you’re looking to kill a few hundred hours reading something, The New York Times Magazine’s Matt Bai has written an impossibly detailed 10,000-word account of how last year’s debt ceiling negotiations between President Obama and Speaker John Boehner went. (They went poorly.)

9.45am: Good morning. This is Jim Newell in Washington, ready to cover the final day of oral arguments in the Supreme Court health care case, and assorted other political item. There will be two sessions at the court today. At 10am, justices will hear arguments relating to whether the whole health care law should be struck down if the individual mandate is found to be unconstitutional. The second, at 1pm, deals with the health care law’s Medicaid expansion and issues of states’ rights.

While we wait for the excitement to begin, here’s Ryan Devereaux‘s summary of Supreme Court and campaign news today.

President Barack Obama’s signature health care law appears to be in peril, as a number of the Supreme Court’s more conservative judges continue to raise questions about the legislation’s constitutionality. The court’s decision is expected in June. Given the centrality of the Affordable Care Act to the president’s first term, the Supreme Court challenge will undoubtedly impact his efforts at re-election and the arguments of his challengers.

Newt Gingrich has admitted he can’t win the GOP presidential nomination outright and is cutting his staff in order to focus on winning at the Republican convention this summer. Tuesday night Gingrich’s campaign manager announced one third of the former House speaker’s staff would be leaving soon. The Gingrich camp believes neither Mitt Romney nor Rick Santorum will collect enough delegate votes to clinch the nomination. They hope to “take it to Obama” with Gingrich’s “big ideas”, which currently reportedly include a $2.50-a-gallon gasoline and two or three other things.

Mitt Romney appeared on the Tonight Show with Jay Leno Tuesday evening. The Republican frontrunner played a game of word association with Leno and joked about his rival Rick Santorum’s recent struggles with the media, suggesting the former Pennsylvania senator could serve as “press secretary” in a Romney administration. Romney resisted Leno’s attempts to go into detail about who he’d like to enlist as a vice president. He did, however, suggest he would be okay with Santorum filling the role. “I’m happy with him saying he’d like to be part of an administration with me, nothing wrong with that, if he’s the V.P. that’s better,” Romney said. “I’d rather be the president. Let him be the vice president.”

A new poll finds President Obama leading his Republican rivals in three important swing states. According to the latest Quinnipiac survey, Obama beats Mitt Romney and Rick Santorum in Florida, Ohio and Pennsylvania. In Florida, Obama leads Romney 49% to 42%, and Santorum 50% to 37%. Obama has an advantage of 47% to 41% over Romney in Ohio, and beats Santorum 47% to 40%. The race is closer in Pennsylvania, where Obama tops Romney 45% to 42 %, though Romney is well within the margin of error. Obama beats Santorum in home state of Pennsylvania 48% to 41%.

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Powered by Guardian.co.ukThis article titled “Why Obama’s healthcare reform is the court’s supreme test” was written by Jason Farago, for guardian.co.uk on Monday 26th March 2012 15.01 UTC

In October 2009, a reporter from something called the Cybercast News Service – a strange outfit run by the same people who put a giant ad in New York’s Times Square screaming “Don’t Believe the Liberal Media!” – asked Nancy Pelosi a question about the pending healthcare legislation. “Madam Speaker,” he asked, “where specifically does the constitution grant Congress the authority to enact an individual health insurance mandate?” The then-speaker couldn’t believe it. “Are you serious? Are you serious?” she asked, and laughed the guy out of the room.

That was about the reaction most serious conservative legal scholars had, too, when a few outliers groused that Congress had no right to require Americans to obtain healthcare. Their disapproval often went hand in hand with the strange constitution-worship of those early Tea Party days, complete with tricorn hats, irrational defenses of states’ rights, and, not incidentally, a bit of uncertainty about the president’s birth certificate. Within Congress, where Republicans led by Charles Grassley tried for months to forge a bipartisan deal, nobody except a few crusaders, among them Michele Bachmann and Jim DeMint, ever proposed that the Affordable Care Act would contravene the rules of the road.

But here we are, not three years later, and the signal accomplishment of Barack Obama’s presidency could be headed for the rubbish heap – by order not of the lawmakers, but of the supreme court. The sun is shining, the capital’s cherry blossoms are in bloom, but outside the courthouse people stood in line (or paid others to do so) for so long you’d think a new iPad was being released. It’s the biggest show in a tiny town, and the justices know they’re being watched. Otherwise, they would never have scheduled three days of oral arguments – the longest parley the court has permitted in nearly half a century.

Monday is for completists only, but could be revealing: the justices will go through some procedural arguments to determine whether they should rule on the act’s constitutionality now or wait until its central planks comes into force in 2014. Though the debate will be dry – it hinges on the Anti-Injunction Act, an arcane piece of tax law from the 1860s – the circumstances of the argument certainly aren’t. Neither the administration nor the law’s opponents claim that the court can’t rule yet; instead, it was the justices themselves who introduced this so-called “orphan argument” and appointed a hotshot DC attorney to make the case. If the justices decide they want to duck the whole issue, we may get a hint Monday.

The real red meat doesn’t come until Tuesday, when the justices will consider whether the “individual mandate”, or the requirement that Americans buy healthcare, falls under the commerce clause. That provision, in Article 1 of the constitution, lets Congress make laws that “regulate Commerce … among the several States,” and it is one of the most fundamental powers assigned to the legislature. The galling justification of the Obamacare opponents is that the mandate impermissibly forces the uninsured to “enter into commerce” – as if the 50 million Americans with no health insurance had never participated in a $2tn industry and were all living in Unabomber-like isolation. Two judges in Atlanta endorsed this argument (in a decision that cited the actual Boston Tea Party), but several conservative appellate judges, including a former clerk for Justice Antonin Scalia, were not convinced.

Wednesday is another technical day, hinging partly on states’ participation in Medicaid, but also on whether the court can strike down the individual mandate and leave the rest of the act intact, or whether they have to take it all or nothing.

What this supposed case of the century really amounts to is a political grudge dressed up as a meritless constitutional challenge, and a reminder that a tradition of conservatism that believed in judicial restraint has been superseded by one willing to use the courts to torpedo anything they don’t like. Calling the individual mandate unconstitutional is ridiculous on its face – but it’s even more so when you remember that the Heritage Foundation touted it as an ideal free-market solution to the healthcare crisis back in the 1980s, that it had Newt Gingrich’s backing as recently as the last election cycle, and that poor Mitt Romney signed a nearly identical program into law as governor of Massachusetts. This is not a legal argument; this is a ploy.

And there’s good reason to believe that even this court, with its clear conservative majority, is not going to strike down the most important domestic legislation since the civil rights movement on such flimsy grounds. To be clear, the only reason that this case has a chance of ending with a defeat for the White House is because of the 2006 retirement of Sandra Day O’Connor, and the lurch to the right the court has undergone since her departure. Like nowhere else, the presidency of George W Bush endures in the quiet work of the smiling John Roberts and the scowling Sam Alito, to say nothing of the 62 judges Bush placed on the appellate benches, many of them relatively young and fire-breathing.

But unlike Clarence Thomas, who’ll certainly vote to kill Obamacare and maybe a few decades’ worth of earlier rulings besides, Roberts is neither indifferent to precedent nor deaf to public skepticism about the court’s impartiality. He certainly isn’t the minimalist “umpire” he claimed to be at his 2005 confirmation hearing. None of us, during this first Citizens United election, can still believe that now.

But Roberts, as well as Anthony Kennedy, knows that the court has never recovered from the disgrace of Bush v Gore 12 years ago. John Paul Stevens wrote in his dissent that that case would destroy “the Nation’s confidence in the judge as an impartial guardian of the rule of law”, and he was right. According to a poll this month, fully three out of four Americans think the justices’ political views will determine their decision in this case.

John Roberts surely wants to see the president lose this election as much as any establishment conservative, but it may be the election of 2000, rather than 2012, that really forces the chief justice’s hand. Whether he believes the zany arguments of the act’s opponents have worth is not the central question – because, to be frank, he has more to lose than Barack Obama, if he strikes it down. Obama may get a second chance, but for Roberts, the entire legitimacy of his court is as stake.

I wouldn’t go before a “death panel” to say so, but it seems a safe bet that Roberts and Kennedy will back the administration, if on narrow terms. But in the unlikely event that the justices kill part or all of the Affordable Care Act, it will at least remind us of one unspoken issue in this presidential race: that when we choose a president for four years, we’re also getting supreme court justices for decades more.

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Powered by Guardian.co.ukThis article titled “Police chief hits out at cuts that put his force on “cliff edge”” was written by Sandra Laville, for guardian.co.uk on Wednesday 25th January 2012 22.04 UTC

Last week it was the chair of the Greater Manchester Police Federation who brought the impact of the cuts in policing into sharp focus.

In a letter to Chief Constable Peter Fahy, Chairman elect Ian Hanson, said officers were “working well beyond maintainable limits”, and response teams were “stretched well beyond capacity”.

Today the chief constable of Gloucestershire police goes further, saying his force is “on a cliff edge” as it is faced with making an extra £1.3million cuts on top of reductions of £24 million in its budget.

Chief Constable Tony Melville says he is speaking out in support of both rank and file and senior officers, who say the cuts will leave their chief with little option but to hit at the very heart of front line policing.

“Here in Gloucestershire we are in the middle of the perfect storm,” said Melville. “Never before in my 34 years of policing have I experienced an issue which has galvanised staff and officers in the way this has, and I feel compelled to respond…”he said in a letter to the police authority.

While all forces face a 20 percent grant to their Whitehall grant Melville says a series of local decisions mean he has to find £1.3million more.

“In a small force, a series of local decisions have combined to take us to a metaphorical cliff edge much more quickly than others,” he said. He supported letters sent to the police authority this week from the police federation, the superintendents association and the trade union Unison, as the authority considers increasing the cuts.

“The letters… are written by bodies which represent every part of hte constabulary – both officers and staff spanning all ranks. The content is strong.. but not scaremongering. They air genuine concerns which I share.”
Melville says if he is forced to cut so deeply, policing “will look very different from what the public have come to know and expect”.

In Manchester the feelings expressed last week were similarly strong. The Greater Manchester force is shedding 3,000 posts, which will see it lose 23% of its workforce by 2015 to help save £134m after its annual budget was cut.

Hanson told the chief constable Peter Fahy officers were at breaking point.

“Officers are working well beyond maintainable limits and they cannot sustain this pressure much longer,” Hanson said.

“Response teams are barely able to function on a normal day and then when an incident occurs they are stretched well beyond capacity.

“Officers are seeing their numbers depleted and, despite what some local commanders may tell force command, things are starting to come apart.”

As budgets are being set across the country for the new financial year these are unlikely to be the only discordant voices.

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By Mario Conde

The Calexico City Council passed a resolution denouncing the anti-immigration bill SB1070 that was signed into law recently.

The law signed by Republican Governor Jan Brewer makes it a state misdemeanor crime for anyone to be in the United States unlawfully; requiring police to make an attempt, when practicable, to determine a person’s immigration status if there is reasonable suspicion that the person is an illegal alien; allow police, without warrant, to arrest a person if there is probable cause that the person is an illegal alien or is a legal alien not in possession of registration documents that the person is required to carry by federal law and imposes a fine of $2,500 and jail time when arrested.

Millions marched this past May 1st to protest the immigration bill and to demand an immediate immigration reform. The protest made some effect on the bill as Governor Brewer amended the bill and eliminated the portion that said that police officers could arrest a person based on their appearance.

The Mayor of Phoenix, Arizona, Phil Gordon, has publicly stated his opposition to this anti-immigration bill as well as several other Sheriffs in the state of Arizona. President Barack Obama stated that SB 1070 threatens to “undermine basic notions of fairness that we cherish as Americans, as well as the trust between police and their communities that is so crucial to keeping us safe.”

Mexican President Felipe Calderon met this week with President Obama and touched the subject of this immigration bill and stressed the importance for the Obama Administration to work on an immigration reform that has been put aside in favor of the Health Care Bill.

The City Council has given direction to the City Clerk to send a copy of this resolution to Arizona Governor, Jan Brewer, and California Governor Arnold Schwarzenegger. Calexico is the second city in California after San Francisco has or will consider a similar resolution.

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