Eric Segall, a self-described “liberal constitutional law professor” who believes the individual mandate is constitutional, argues in Slate that Justice Kagan should recuse herself in the individual mandate litigation.
Can Justice Kagan review the ACA without regard for the personal and professional past and the future of President Obama as well as her prior work in the administration? Can she look at the ambiguous and open-ended Commerce Clause precedents of the court and reach a legal answer with no awareness of the political implications for the president who so recently employed and appointed her? If the answer is yes, she is more robot than judge. If the answer is no, she should recuse herself. And the answer, ultimately, is what Americans will think, and a reasonable American would believe she has a stake in this litigation.
I explained why I don’t think Justice Kagan needs to recuse here, though I believe it’s a closer case than some have acknowledged.
Randolph says:
Well I guess we now know what it takes to get a conservative to call the bill by it’s actual name rather than the misleading buzzword “Obamacare.”
Maybe if Democrats start asking for their senators to step down Republicans will find the basic decency to refer to the party as the “Democratic Party” rather than the “Democrat Party.”
December 8, 2011, 11:49 pmJon Shields says:
That is truly an absurd article. The entire first paragraph (which purports to summarize the article) applies to Sotomayor as well.
Later in the article, he lists all the specific facts of the situation, and says if one of them were different, it might change the recusal calculus (with no reason as to why that particular set of criteria holds). That’s a really convenient analysis.
For example,
“The problem is not that she is reviewing a law passed by the president who appointed her and for whom she worked. The problem is that this specific law is the focal point of the Republican opposition to his re-election campaign, which will take place just a few months after the decision is expected.”
Really? The decision to recuse rests on just exactly how much the opposition opposes the law and the President who signed the law?
Bush appointed members of his staff (such as Judge Kavanaugh on the DC Circuit) to various courts. Should they all recuse themselves in similar situations, depending on how much Democrats oppose various laws signed by Bush?
The intuition of the article is that people can reasonably expect Kagan to rule in favor of the law (given her political views and appointing President), and therefore she should recuse. Except... the exact same logic applies to every other justice. Scalia in particular often speaks out about issues, such as his belief that Roe v. Wade was wrongly decided. Should he recuse himself in any future abortion case?
It is clear from the record that Kagan delegated every last bit of this case/issue to someone else, and had nothing to do with it. That is all there is to it. She played no role, and never expressed an opinion. It is amazing how the vast majority of the article has nothing to do with this central question, and has instead to do with hints based on ideology and circumstance on how a justice might vote.
December 9, 2011, 5:24 amMark N. says:
This seems like a pretty broad standard, since it turns almost entirely on the fact that she might have an interest in the political legacy of Obama, which this bill would impact. But that applies to any judge who has significantly associated with individuals or organizations that take a stand on this bill. For example, certain members of the Supreme Court are known to be closely associated with the Federalist Society, and interested in that Society’s political legacy.
December 9, 2011, 6:34 amAnderson says:
Can she look at the ambiguous and open-ended Commerce Clause precedents of the court and reach a legal answer with no awareness of the political implications for the president who so recently employed and appointed her?
Oliver Wendell Holmes, Jr. — Northern Securities.
Naturally, liberal law profs are not disqualified from being dumbasses by their political stripe.
December 9, 2011, 7:25 amloki13 says:
On the plus side, today I learned that there was Georgia State University College of Law.
On the minus side, I actually read this article and I’m not getting that time back. In the future, Prof. Adler, it would be nice if you indicate ahead of time if there was anything resembling a colorable argument in the article, as opposed to linking to something because a “self-described liberal” posted it. :)
December 9, 2011, 7:58 amAJ says:
The Washington Examiner writes:
“For example, in January 2010, two months before Kagan became aware of her possible nomination to the Supreme Court by President Obama, Holder’s underlings began preparing their defenses of Obamacare. Kagan was “heavily involved” in that planning, according to an email from Neil Katyal, deputy solicitor general. In another email, Katyal explained that he had spoken with Kagan earlier in the day about a Justice Department working group on Obamacare defense preparations and said “Elena would definitely like OSG [Office of the Solicitor General] to be involved in this set of issues.” Kagan would be brought into the working group’s deliberations “as needed.” Since the key issue facing the working group was preparing legal defenses that would be presented by the solicitor general, it is inconceivable to think that official would be excluded from such deliberations.”
Now at best this is merely suggestive of involvement and absent meeting minutes or counter recollections, it only points to the fact that questions should be asked. She’s answered those questions so it’s time to move along.
It mystifies me why this bothers some people. Would it be more accurate to call it Reid-Pelosi-Obamacare? It is his signature domestic accomplishment for his first term that he sacrificed much political capital for and control of the House for. LBJ, Carter, and Clinton could not get something done. Why shouldn’t he get the credit for the political victory? For me, PPACA is less typing but saying that this is a DEM bill is pretty much the truth. How about DEMcare?
December 9, 2011, 8:29 amDilan Esper says:
I don’t mind Obamacare. It’s not the ideological scare word some people say it is– it’s just a longstanding political convention. I remember Romneycare, Clintoncare, and Hillarycare as well. It’s just a verbal portmanteau off “Medicare”.
More generally, i think everyone in politics needs to stop whining about bias for awhile. Everyone seems to think everything is biased against them. It’s as if we’ve stepped out of a world where policy matters and into a world where the only thing that influences politics is Frank Luntz and George Lakoff.
December 9, 2011, 8:52 amSegall on Kagan and Obamacare « says:
[...] Court: Should Elena Kagan recuse herself? – Slate Magazine. (Referenced at HowAppealing and The Volokh Conspiracy) Share this:TwitterFacebookLike this:LikeBe the first to like this post. [...]
December 9, 2011, 9:25 am4C says:
Does anyone, on either side, think any Justice will actually recuse from this case ?
December 9, 2011, 9:37 amJoe says:
I remember Romneycare, Clintoncare, and Hillarycare as well. It’s just a verbal portmanteau off “Medicare”.
I don’t remember “Clintoncare” myself and the only time I am familiar with “Hillarycare” was when it was used in a pejorative sense.
“Romneycare” is actually not favored by me either but the basic point of the reference repeatedly is as a rejoinder to “Obamacare” or to remind people of his support of something like it.
And, as to the usual reference to “Reaganomics” — in fact, the Reagan Administration at least there had a driving influence there respecting the economic policy involved. “Obama” didn’t create the so-called “mandate.” It was an old Republican idea. Calling it “Obamacare” promotes the lie that it was some socialist Obama idea that Republicans principally opposed so we don’t all have to eat broccoli.
It is apparent WHERE it came from, but unlike “Medicare,” it is a misleading personal term [Medicare is a government program for all seniors, while the PPACA relies on private insurance; it is in fact a tad bit ironic that after the failed public option, the resulting legislation has such a name] that for some reason is more favored by opponents than supporters. Curious that.
I can shrug it off but such personalization by the other side of general policy isn’t very helpful either. Medicare wasn’t called “LBJ-Care.” Social Security isn’t “FDR Security.” Claims of bias can be overblown, but on this issue, it has been shown in spades. This is not to say the recusal arguments are reasonable. How Marshall and Taney et. al. managed to decide anything after being major players on one side of major disputes of the day is kind of amazing. I wonder what would have happened if a member of Congress in the 1860s would have been appointed to the bench. Would they be able to decide any Fourteenth Amendment issue?
December 9, 2011, 9:41 amrob bob says:
Cue the wailing and gnashing of teeth by liberals for suggesting that this could possibly be any different than Thomas.
December 9, 2011, 9:48 amAnderson says:
In the future, Prof. Adler, it would be nice if you indicate ahead of time if there was anything resembling a colorable argument in the article
The man did use to write for NRO, Loki. What Prof. Adler has to say is sometimes of interest; what he links to, almost never.
December 9, 2011, 9:49 amJustin says:
And yet Bush v. Gore got a quorum?
December 9, 2011, 9:59 amAJ says:
You didn’t hear of FDR-security or LBJ-care because both of those initiatives were overwhelmingly politically popular at the time and the other side did not see advantage to tie those programs to those Presidents. Something like “Bush tax cuts…for the rich” is far less popular and offers some political advantage. It is no less venomous and no more helpful in making decisions about how to finance the government, but there it is. “Reaganomics” was passed by a Tip O’Neil-controlled House, but because of deficits, it remains controversial (despite the accompanying economic turnaround) and a staple of Democratic revisionism of the 1980’s. Also, there are many facets of “Obamacare”, not simply the mandate. Much of the opposition centers around the suspicion that, like Medicare, the numbers will not simply work out and it will hurt the debt problem, not help it. I will wager that even if the mandate was replaced by a less Constitutionally-controversial tax/spend approach, the sweeping nature of the reform would still have the same level of opposition due to the level that this legislation ingratiates government into the problem. But it is good to hear that you may be able to shrug this one off…eventually.
December 9, 2011, 10:19 amloki13 says:
I’m not sure what to make of this. Here’s my take. Prof. Adler wrote the original article. His take on it was that neither needed to recuse. Some people (such as me) took a little issue with the way he framed it, even though we agreed with his overall conclusion. Now, the problem we had was that he quickly went through the Thomas issue and called it frivolous while differentiating the Kagan issue (before dismissing it), which, IMO, just gives credence to some of the... more colorful commenters here.
So, again IMO, his way of dealing with it is to go and find every person who makes up bad arguments against Kagan? *sigh* I’m not sure he understands how that makes him look worse from the perspective commenters who were originally (mildly) critical.
December 9, 2011, 10:21 amDavid M. Nieporent says:
I take no position on whether she should recuse herself, but...
No, it isn’t.
December 9, 2011, 10:22 amSteve says:
I don’t even understand this argument. A judge should routinely recuse himself or herself from reviewing the major initiatives of the President who appointed him or her? That has obviously never been the standard for recusal, so is there a good reason why we should suddenly adopt it now?
Also, this sentence is positively incoherent: “If the answer is no, she should recuse herself. And the answer, ultimately, is what Americans will think, and a reasonable American would believe she has a stake in this litigation.” As any law professor should know, the “reasonable man” is a theoretical construct, and so the question of “what Americans will think” is actually completely separate from the question of “what a reasonable American would believe.” To give an example, the law expects that a reasonable man will read a contract before signing it, but a great many people fail to do so as an empirical matter.
December 9, 2011, 10:25 amloki13 says:
As I wrote in my first post, I will never have the time back that I spent reading this article. In all seriousness, I really blame Prof. Adler for linking to this. I’m trying to be charitable to the author of the Slate article (legal arguments boiled down for the popular audience will always seem dumber than they might actually be) but... I was expecting something different, or new, or, well, cognizable.
December 9, 2011, 10:38 amDavid M. Nieporent says:
If it’s “pejorative,” it’s only pejorative because people don’t like it. There’s nothing inherently “pejorative” about references to either “Obama” or “care.” Why should people be forced to call it by the misleading “Patient Protection and Affordable Care Act” when it doesn’t protect patients or provide affordable care?
Really? The very first person who ever came up with the idea was a Republican? Who was it, and how do you know? Or do you actually mean that some Republican somewhere once endorsed it? But if that’s the standard, then why can’t we attribute it to Obama, since the Obama Administration had a driving influence there respecting the policy involved?
That seems entirely accurate, regardless of who might have once said something nice about it twenty years ago.
December 9, 2011, 10:43 amCJColucci says:
Prof. Adler was right the first time. Unless his point is to illustrate that opposing arguments are contemptible and silly, it’s hard to see what he’s doing here.
December 9, 2011, 10:50 amSarcastro says:
See, if you preemptively accuse the other side of cheating, it means that win, lose, or draw, you get the moral high ground.
And nothing assuages anxiety like rightousness.
December 9, 2011, 10:54 amloki13 says:
*shrug* It’s like anything else in political terms; everyone wants to get the issue framed lie they want. Currently, the GOP wants to call it Obamacare so they can tie what is a popular issue for their base (repeal of the PPACA) to the President and mobilize them to turn out to vote against him. Here’s my fearless prediction:
1. If the GOP succeeds, and the PPACA goes away, then it will be enshrined as Obamacare. Just like Hillarycare. C’est la vie. Victors get to write history.
2. If they fail, and it becomes entrenched and popular, then the GOP will move away from that framing over the next several years. Don’t want to give the Democrats credit! Then, in about 60 years, there will be a new revisionist movement to tar it as evil under whatever it’s called at that point.
This is the kind of argument that settles itself.
December 9, 2011, 10:55 amMark Field says:
In fact, Lincoln appointed a member of the Cabinet (Chase) and his campaign manager (Davis) to the Court. By the standards of this article, they’d have been disqualified from ruling in, say, Milligan. Marshall was, of course, Secretary of State under Adams and previously in Congress when Congress passed the judiciary reform act which was later reversed by the Jeffersonians. And it goes on and on like this. It’s very likely that no justice ever could meet this test.
Certainly Clarence Thomas couldn’t.
But look, this is typical Slate. It takes contrarian positions for the sake of a “look at me” reaction, regardless of how stupid such arguments are. I can’t imagine why Prof. Adler thought this was worthy of linking; that merely feeds the troll.
December 9, 2011, 11:05 amAnderson says:
In fact, Lincoln appointed a member of the Cabinet (Chase)
Another good example:
Hepburn v. Griswold, 75 U.S. 603 (1870), was a Supreme Court of the United States case in which the Chief Justice, Salmon P. Chase, speaking for the Court, declared certain parts of the legal tender acts to be unconstitutional. This included the issuance of greenbacks, which he was responsible for overseeing during his tenure as Secretary of the Treasury.
December 9, 2011, 11:19 amJon Shields says:
The “heavily involved” quote referred to the office of the Solicitor General — not Kagan herself. I’m amazed they can get away with printing that quote. The actual sentence in Katyal’s e-mail was:
“I want to make sure that our office is heavily involved even in the dct.”
(dct = District Court.)
Kagan assigned Katyal to the matter and there is not one piece of evidence that indicates she had anything to do with it.
If Kagan was in fact “heavily involved” in defending the law in any federal court, she would of course have to recuse herself. But all the actual evidence (the Washington Examiner’s false quotes notwithstanding) indicates that she wasn’t involved at all, let alone “heavily involved.”
December 9, 2011, 11:21 amloki13 says:
Um, Marshall? In Marbury?
December 9, 2011, 11:22 amAnderson says:
Marbury may be a trickier case; the Court was ruling against an Adams appointment, but the holding was soundly Federalist, and the opinion was criticized at the time for its dicta averring that Marbury was indeed entitled to his appointment (but the Court had no jurisdiction).
(And of course Marbury was unanimous, so weren’t *all* the justices Federalist appointees?)
December 9, 2011, 11:36 amJoe says:
A.J.: You didn’t hear of FDR-security or LBJ-care because both of those initiatives were overwhelmingly politically popular at the time and the other side did not see advantage to tie those programs to those Presidents.
What about to their critics? Did they use the terms when talking among themselves? But, the framing is duly noted. The terms are being used for framing purposes, not for their objective validity.
Something like “Bush tax cuts…for the rich” is far less popular and offers some political advantage.
It also is more accurate since they are “tax cuts,” they favor “the rich,” and “Bush” was a very important part in putting them in place. In fact, they were time limited to a decade that overlapped his two terms. PPACA isn’t Medicare. etc.
It is no less venomous and no more helpful in making decisions about how to finance the government, but there it is.
Not sure about that. The very use of a phrase alone is something different — it has more content than some single personal term like “Obamacare.” Not aware of too many who think the tax cuts were unconstitutional threats to liberty either.
“Reaganomics” was passed by a Tip O’Neil-controlled House
So what? They weren’t actually Reagan’s then? Tax cuts pushed by Bush were passed by a Democratic controlled Senate. Doesn’t suddenly not make them “Bush’s” in some important sense.
but because of deficits, it remains controversial (despite the accompanying economic turnaround) and a staple of Democratic revisionism of the 1980’s.
Revisionism how exactly?
Also, there are many facets of “Obamacare”, not simply the mandate. Much of the opposition centers around the suspicion that, like Medicare, the numbers will not simply work out and it will hurt the debt problem, not help it.
Curious how the “mandate” gets so much of the coverage here and elsewhere. Not accepting the statement that Medicare “will not simply work” either. In fact, many who oppose it say “keep your hands off my Medicare.”
The opposition as a whole is not from it ‘hurting the debt problem’ but certain aspects of so-called overly intrusive government, though again, the same people often like that in various cases. In fact, some want MORE government involvement, a truer “Medicare” like program, such as the public option.
I will wager that even if the mandate was replaced by a less Constitutionally-controversial tax/spend approach, the sweeping nature of the reform would still have the same level of opposition due to the level that this legislation ingratiates government into the problem.
You can wage as you wish but I would be wary to take it, in part since I don’t know how “sweeping” it truly is. It in fact works within the current system of private insurance in ways that trouble some people. If it truly was a “Medicare” type law that provided government insurance for all, it might be better.
I also might wager if this same bill or the one you cite was signed by Mitt Romney or Jon Huntsman, it would be a lot less controversial, part of the controversy arising from partisan posturing and misunderstanding what the law does. As compared to what it “seems” to do.
But it is good to hear that you may be able to shrug this one off…eventually.
Charmed, I’m sure.
December 9, 2011, 11:47 amJoe says:
David M. Nieporent: If it’s “pejorative,” it’s only pejorative because people don’t like it. There’s nothing inherently “pejorative” about references to either “Obama” or “care.”
It’s ‘pejorative’ because of the meaning applied to it by the major class of people who started using the word. We can say no word is “inherently” pejorative in a vacuum.
Why should people be forced to call it by the misleading “Patient Protection and Affordable Care Act” when it doesn’t protect patients or provide affordable care?
It is the official name; we don’t call the NY Giants the “NJ Giants” because that is actually where the field is. But, fine, call it something else. “Obamacare” is not imho an accurate term though not sure how it doesn’t “protect” those previously denied care that now are not or not provide “affordable” care to many who now actually do get such care.
Really? The very first person who ever came up with the idea was a Republican? Who was it, and how do you know? Or do you actually mean that some Republican somewhere once endorsed it? But if that’s the standard, then why can’t we attribute it to Obama, since the Obama Administration had a driving influence there respecting the policy involved?
It was put forth as a major alternative to the Clinton proposals in the ‘90s, e.g., not “some Republican” “once” endorsing it. And, putting aside how Obama left it largely to Congress — to the annoyance of some at how long it drawn out — the approach there would be to call it “Obama’s Health Proposal” or something akin to “Reagan’s economics.”
That seems entirely accurate, regardless of who might have once said something nice about it twenty years ago
I don’t think the legislation forces us to eat broccoli, so on that ground alone, I don’t find it “entirely accurate.”
Hey, I think Anderson is right on the framing issue but this sort of thing underlines the sort of framing going on here. It’s silly not to point it out and note that the other side shouldn’t just adopt the framing of their opponents. Should we take “pro-life” or “the death tax” as nothing worth caring about too? I think not.
December 9, 2011, 12:03 pmSteve says:
The constant bickering about the propriety of the “Obamacare” label is quite frustrating to this ACA supporter. Nothing is gained by having 20 back-and-forth comments on the matter every time there is a health care thread. Let it go already.
December 9, 2011, 1:50 pmzuch says:
What a pile’o’crapola. Roberts, Scalia, and Thomas are ex-executive. As was Rehnquist and more than a few others.
And don’t they have thoughts on the Commerce Clause WRT what their previous employers might have wanted (and what future employers might want of the court)?
Pretending that Supreme Court justices are not politically aware is to totally ignore the horrible Dubya v. Gore fiasco.
Cheers,
December 9, 2011, 2:05 pmzuch says:
And how does this compare with someone whose wife has been getting paid to lobby against the PPACA?
Cheers,
December 9, 2011, 2:07 pmSteve says:
Someone who gets paid to lobby against the ACA probably wouldn’t want the law to get struck down, actually, because then there would be nothing more to fight about. It’s like how the banks want to get rid of Dodd-Frank but to their lawyers, lobbyists, compliance officers, etc. it’s a license to print money. Since you asked!
December 9, 2011, 2:13 pmloki13 says:
Perhaps. Another way of looking at it is that a lobbyist who is extremely successful can then pivot and use that success in another field.
For example, imagine a law professor who has gained a modicum of fame and notoriety as the “intellectual” force opposing the PPACA. You might initially posit that they would want to keep the PPACA alive as long as possible, because then there’s nothing to fight about. OTOH, if they win and it’s repealed, they can use their new-found cachet to pivot and spearhead new efforts.
Just sayin’.
December 9, 2011, 2:26 pmAdam says:
Isn’t this an argument that she should recuse herself from every case involving the government (i.e., basically every case)? And more broadly that EVERY newly appointed justice should recuse himself/herself from every case involving the government until the person that appointed them is no longer eligible for re-election?
Sounds pretty silly to me.
December 9, 2011, 2:59 pmAdam says:
No.
Really? Let me translate: “I don’t think this, dear reader, but it’s politically convenient so I’m going to point it out to you so you can chose to think this if you want.”
Agreed.
December 9, 2011, 3:08 pmleo marvin says:
And Kagan might find PPACA unconstitutional to energize the liberal base. Both possible but pretty implausible.
December 9, 2011, 3:46 pmAJ says:
I am officially recusing myself from any further comments regarding the use of Obamacare
December 9, 2011, 3:48 pmrumpelstiltskin says:
It’s typical concern trolling from Adler. He does this all the time.
December 9, 2011, 5:14 pmjosh says:
I’m calling it Obamacare. I call myself a Liberal, too.
December 9, 2011, 5:24 pmJoe says:
Steve: The constant bickering about the propriety of the “Obamacare” label is quite frustrating to this ACA supporter.Nothing is gained by having 20 back-and-forth comments on the matter every time there is a health care thread.
Dilan brought it up; he’s a serious person with nuanced views on the law (he’s against the most infamous aspect on the merits but thinks it clearly is constitutional), so I responded. But, I simply have not seen 20 back-and-forth comments on the matter in each thread.
I remain of the mind that framing matters and on a legal blog, if we want both sides to debate and take things seriously, having the contributors of this blog repeatedly use partisan framing devices in the title of posts or even as categories is not helpful.
December 9, 2011, 5:34 pmzuch says:
Yeah. There’s nothing “pejorative” about “black” or “queer” or “fag” either. Well, at least, out in deep interstellar space, where no one can hear you scream....
Cheers,
December 9, 2011, 6:21 pmMark Field says:
Agreed. If the opponents are going to be childish, we should at least call them on it. It’s no different than when they refer to the “Democrat” party.
December 9, 2011, 6:50 pmleo marvin says:
True. But though some undeniably use “Obamacare” as a partisan dog whistle, ISTM the whistle to noise ratio is much lower for “Obamacare” than it is for most partisan jargon, certainly “Democrat” Party.
December 9, 2011, 8:11 pmMark Field says:
I guess I tend to judge the phrase by the company it keeps. Given the commenters here who use it, the dog whistle is more like a sonic cannon.
December 9, 2011, 8:17 pmAndrew MacKie-Mason says:
By that logic, every Supreme Court justice should recuse in any case where the government is a party until the President who appoints them leaves office.
December 9, 2011, 8:36 pmleo marvin says:
Fair enough.
December 9, 2011, 9:40 pmzuch says:
Medicare was the name adopted by the proponents of such. To the opponents of such, “Medicare” became a token of All That Is Wrong With A’mur’kah (that is to say, short-hand for Welshian “Pinko Commie Socialist!” epithets), and Medicare is still hated by the Republican Party .... uhh, the far right wing ... uhh, actually, one and the same. So when they [the RWers] create this “Obamacare” appellation, it is indeed a dog-whistle and a strong one. Obamacare is like the hated Medicare [a fact that I will pretty much concede; I just wish it was more so]; it is Gawdless Socialism™ and to be opposed by any means possible ... just as Obama himself is a Gawdless (but Moooslim) Socialist. You don’t believe me, just read the coffee-table clutter (or browser links) of any proper Republican household nowadays. This is what explains the amasing circus that is the Republican presidential primary campaign.
Cheers,
December 9, 2011, 10:20 pmzuch says:
Yeah. Hadn’t thought of that for some reason. And doctors don’t want to cure you because that means they won’t get any more money.
Almost like the claim the Republicans will never ban abortion because doing that would make their strongest backers take a rest and go home.
Did you really think that lame ‘argument’ was a winner?
Cheers,
December 10, 2011, 1:04 amDavid M. Nieporent says:
That doesn’t make any sense. It’s not even remotely concern trolling. You don’t understand the concept. Concern trolling is the phenomenon in which one pretends to be a political ally giving advice out of an effort to be helpful, but actually trying to be harmful. (*) For instance, if you showed up at a Republican strategy session and said, “We should press for Clarence Thomas to recuse himself because that will give us the moral high ground with the public,” you would be concern trolling, because the real reason you’re making that argument is because you want to eliminate Thomas’s vote. Since Prof. Adler does not, in fact, ever pretend to be a liberal, and did not do so above (**), he is obviously not “concern trolling.”
(*) It is also almost entirely imaginary, a way for intolerant Internet liberals to shout down people who they disagree with.
(**) Now, it’s possible that Segall is “concern trolling,” but there’s no evidence of it, except that you don’t like his position.
December 11, 2011, 1:18 amDavid M. Nieporent says:
It was? Really? So Tom Delay cosponsored a bill setting forth an individual mandate? Dick Armey? Bob Dole? Can you tell me which significant Republicans “put it forth” at all, let alone as a “major alternative”? I’m not saying that no Republican ever endorsed the idea of a mandate. The Heritage Foundation did speak favorably about the concept for a while in the 1990s. I am saying that it was not a “Republican idea.” Republicans neither invented it nor tried to actually pass it, and the few Republicans who did support it mostly did so on the grounds that it was less bad than Clinton’s proposal, not that they actually liked it.
December 11, 2011, 1:46 amleo marvin says:
Here’s what Newt said last night:
True, he doesn’t say they liked it, and does say the genesis was opposition to HillaryCare. But, whatever the motives, and however happy they were about it, he sure seems to be saying “we were for it before we were against it.”
December 11, 2011, 4:25 pmSegall on Kagan and Obamacare « says:
[...] HowAppealing The Volokh Conspiracy Chequerboard.org Share this:TwitterFacebookLike this:LikeBe the first to like this post. [...]
December 12, 2011, 9:19 amHecklers Vetoes | Future Video says:
[...] must recuse herself from the lawsuit challenging the Affordable Care Act. It became the darling of conservative legal bloggers almost immediately after it was published, but it also misrepresents the law [...]
December 12, 2011, 6:16 pm