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Eh tu, @washingtonpost? The question in the case isn't whether a "mandate" would be unconstitutional (per the SCOTUS, it would be), but whether the 2017 Congress *enacted* a mandate (it didn't, and the CTA5 holding otherwise is indefensible).

washingtonpost.com/health/appeals…
It's shocking how so many leading health-care reporters are getting it so wrong--thereby confirming the distorted framing of the challengers.

@nicholas_bagley
And Judge King didn't write that "she would find the mandate constitutional." She wrote--correctly--that there is no mandate!

Nor is there a "requirement" to buy insurance.

@goldsteinamy, please make it right, thanks
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More from @marty_lederman see all

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Marty Lederman
@marty_lederman
1/ Here's what I'm struggling to get at in a nutshell, Jay, Norm & Ezra:

All of us--press critics, think-tankers, podcasters, law profs, etc.--were raised to believe that if and when the truth emerges, that'll have a significant impact ...

@jayrosen_nyu @NormOrnstein @ezraklein
2/ ... on voters and on public officials. That's the basic premise of the modern media, of the First Amendment, etc. And it's why we're ever-frustrated when we think that MTP, the Times, etc., fail to do what they can to expose the truth: We assume it "normalizes" the lies ...
3/ ... and fails to turn on the lightbulbs for those who matter (elected officials, swing voters). If only we had our Welch "Have you no sense of decency?" moment; our exposure of the "smoking gun" tape; our Cronkite exposes of Vietnam; our Abu Ghraib photos--then, surely, ...
Read 12 tweets
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Marty Lederman
@marty_lederman
1/ Have @chucktodd and others like him really been so naive and gullible? I doubt it, but I also don't care all that much. The more interesting & important inquiry, methinks, ...

pressthink.org/2019/12/the-ch…
2/ is to identify the *harms* caused when @MeetThePress continues its business as usual w/guests such as Kellyanne Conway, Ted Cruz, et al., who so freely & unashamedly spout patent nonsense and self-professed "alternative facts."
3/ I'm skeptical that it causes an "epistemological crisis," or that, in @Kasparov63's words, it misinforms, exhausts critics, or "annihilate[s] truth.” The mine run of viewers of MtP, or the readers of the @nytimes, etc., aren't fooled (I hope not, anyway) when those outlets ...
Read 13 tweets
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Marty Lederman
@marty_lederman
1/ @NoahRFeldman and @tribelaw are engaged in what may truly, and literally, be described as a paradigmatic *academic* debate about whether the House has already impeached Trump or whether it'll do so only when it exhibits the articles to the Senate.
2/ AFAIK, *nothing* turns on this question except rhetoric.

For what it's worth, however--i.e., nothing!--I think Larry's probably right about the technical question. Or at least, he is according to the terms of the House Resolution itself.

congress.gov/116/bills/hres…
3/ H.Res. 755 states that the House "resolves" two distinct things: (i) "That Donald John Trump, President of the United States, *is* impeached for high crimes and misdemeanors"; "and" (ii) "that the following articles of impeachment be exhibited to the United States Senate."
Read 8 tweets

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JMHendersonSr❌
@JMHendersonSr
Let's assume that every family has achievers, and has survivors. And, to keep it interesting, the occasional Fredo thrown in

Who admits that they were the Fredo in their family?
Sports? Definitely the Fredo of the bunch.

Social relationships? Definitely the Fredo of the bunch.
I struggled nearly my entire life with low self-image so even though I wrote briefs that won at #SCOTUS, I sort of thought of myself as the Fredo attorney in our family.
Read 23 tweets
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Josh Blackman
@JoshMBlackman
1/ Belated thread on Gundy v. US. I plan to teach this case in class when I cover the non-delegation doctrine. The Gorsuch dissent provides a thorough overview of the doctrine from CJ Marshall to the New Deal to the present. #SCOTUS
2/ Alito's decision to concur in judgment made the vote 5-3. Had Alito went along with Gorsuch, the vote would have been 4-4, and the lower court would have been affirmed by an equally-divided margin. In such a case, Gorsuch would not have been able to write a separate opinion.
3/ Alito probably cringed at joining an opinion that would declare unconstitutional regulations that punish sex offenders. But here, he took one for the team, and in the process, signaled that he would reconsider reviving the non-delegation doctrine in an appropriate case
Read 27 tweets
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Josh Blackman
@JoshMBlackman
1/ I can see 5 paths forward for #SCOTUS on the census case. First, if the Court rules against the government, then the issue can be neatly resolved in advance of the June 30 deadline. I see this path as unlikely--based on assignments, it looks like J. Alito has the majority.
2/ Second, the Court could request supplemental letter briefs about whether, in fact, the June 30 deadline is the real deadline. The Plaintiffs have suggested that the real deadline is October 31.
3/ However, there is a problem with requesting this information: such a request underscores the fact that the Court is deciding the case on an expedited deadline. In other words, speed, rather than accuracy, may be the deciding factor. That move would convey the wrong message.
Read 26 tweets
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Chris Geidner
@chrisgeidner
Off to #SCOTUS.
#SCOTUS, February 25, 2019.
"[F]ederal judges are appointed for life, not for eternity," the Supreme Court rules in addressing a 9th Circuit cases that included the vote of Judge Reinhardt, who participated in the vote on the case, Yovino v. Rizo, but died before the vote was released. #SCOTUS
Read 9 tweets
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Chris Geidner
@chrisgeidner
In the Census citizenship questionnaire case, a lot of movement. The district court judge, Judge Furman, today denied DOJ's attempt to stop the upcoming trial. documentcloud.org/documents/5021…
Furman: "Defendants [i.e., DOJ, Commerce, etc.] suffer no substantive, cognizable harm whatsoever in proceeding to trial as scheduled."
However, DOJ already went to the 2nd Circuit last night, asking for a similar stay of the upcoming trial, which is to begin on Nov. 5. documentcloud.org/documents/5021…
Read 11 tweets

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