I think the California Supreme Court telling the 9th Circuit that the Prop 8 challengers have standing makes sense, the alternative perhaps defensible on some level (the executive chooses when to appeal etc.), but just seems unfair on various levels. After all, the public is given an end around when public officials don't govern how they like and if they pass such a measure (support or oppose the process), should the powers that be then find a backdoor method to make their efforts effectually inert? The alternative here might have been for some a desired way to punt, but it didn't really feel right to me, even if again, an argument can be made.*
First and foremost is the so-called “individual mandate,” which goes into effect on January 1, 2014: it requires virtually all Americans to obtain health insurance or pay a fine.I emailed the author of this Scotusblog "in plain English" analysis, challenging it on two grounds -- my past hobbyhorse that "virtually all Americans" do not have that so-called Hobson's Choice and for the lesser reason that the "tax penalty" or even "penalty" is quite arguably not a "fine." A fine that is merely attached via your taxes is a somewhat curious use of the term, particularly in "plain English." I noted the first issue was much more important to me, citing in part Walter Dellinger (former Solicitor General, has debated the constitutional issues here and testified to Congress on the point) noting those who make less than 18K don't pay.
The reply:
Thanks for your email, and for your words about the blog. I appreciate where you’re coming from and put some thought into the framing of that point, but there’s just not enough space to explain all of the nuances to non-lawyers in a Plain English column, so we have to make some editorial choices. It certainly wasn’t intended to mislead or advocate on the issue.
Oh please. First, the article is not two sentences long or anything. There was enough space to note in a few words that the "fine" kicks in only if you make enough money and so forth, which doesn't cover a substantial group of people -- surely not "virtually" no one. The point is not that there is an "intent" to mislead or advocate, but that the word choice is misleading and/or as I said "argumentative" (as applied to "fine"). It's one thing for some reporter to try this (which alone is annoying) but she's a lawyer and knows better, particularly my argument that "fine" has constitutional (such as the Eighth Amendment) connotations. And, this is a basic point, not some tiny nuance or something.
The framing here misleads and in the process colors the "common sense" or "Plain English" statement of the question. Like "Obamacare," people we assume to be neutrally discussing the issue, and very well they might be trying to do this, are misleading people about the issues. When called upon it, they repeatedly try to defend themselves by saying that they had to mislead (not admitting they did, mind you) since the alternative would be a too wordy or confusing product. The latter just what they did.
This promotes "media bias," if not the simplistic left/right kind.
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* [Update] This does advance the possibility that the USSC will hear the case, but various options are available. State standing does not necessarily -- though it would seem logical -- mean federal standing. Also, and I think this is best, the 9th Cir. could (with possible en banc review) focus on Prop 8 alone.
A Romer v. Evans type ruling could argue it, as compared to some state that didn't target same sex couples in this fashion (the district court findings will help here, the appellate court often inclined, at times as required by precedent, to follow them if deemed reasonable), would be limited in scope. It would not protect SSM as such and would be limited to California's specific experience. USSC review could be avoided.