Obama’s law professor: If the Supreme Court strikes down the mandate, they must be biased political hacks

posted at 10:12 pm on February 8, 2011 by Allahpundit

One of the most pitiful, relentlessly irritating op-eds about O-Care that I’ve read since our long national nightmare began in summer ’09. To understand what makes it so grating, you need to know that the author, Laurence Tribe, is not only a Harvard Law prof who taught Obama but a bona fide titan of constitutional jurisprudence on the left. He wrote a famous treatise on the subject and was, in his younger days, a perennial candidate for the Supreme Court when Democrats were in the White House. You might also remember him as the guy who sneered, amusingly, in a letter to Obama that Sotomayor isn’t nearly as smart as she thinks she is, and who endorsed Kagan because he thought she’d be better able to keep Anthony Kennedy from “drifting” towards the right.

You need all of that as background for two reasons. One: If, per his credentials, you’re expecting an argument for the mandate here that’s novel or unusually penetrating, you’re mistaken. His points about the Commerce Clause and Congress’s taxing power are as pedestrian as it gets, stuff you’ve read in a hundred different permutations from liberals over the past 18 months. Two, and more importantly: The point of this op-ed isn’t to make legal arguments at all. Ann Althouse has been destroying Tribe all day long, in three separate posts, on the nuts and bolts of his argument, but taking him seriously enough to respond to him might actually give him too much credit, I think. His goal here isn’t to persuade Times readers that he’s correct on the legal merits; his goal is to persuade Times readers that if the Supreme Court disagrees with him, it is, must, and can only be because they’re right-wing hacks with no regard for the Constitution or for precedent. It’s transparent narrative-building for liberal bien-pensants, a way of moving the Overton window so that any unfavorable ruling, notwithstanding the legal novelty of the mandate or the reasoning of the majority opinion, must be illegitimate. Which is to say, it’s a nakedly political argument dressed up as a plea to keep politics out of law.

The justices aren’t likely to be misled by the reasoning that prompted two of the four federal courts that have ruled on this legislation to invalidate it on the theory that Congress is entitled to regulate only economic “activity,” not “inactivity,” like the decision not to purchase insurance. This distinction is illusory. Individuals who don’t purchase insurance they can afford have made a choice to take a free ride on the health care system. They know that if they need emergency-room care that they can’t pay for, the public will pick up the tab. This conscious choice carries serious economic consequences for the national health care market, which makes it a proper subject for federal regulation…

Given the clear case for the law’s constitutionality, it’s distressing that many assume its fate will be decided by a partisan, closely divided Supreme Court. Justice Antonin Scalia, whom some count as a certain vote against the law, upheld in 2005 Congress’s power to punish those growing marijuana for their own medical use; a ban on homegrown marijuana, he reasoned, might be deemed “necessary and proper” to effectively enforce broader federal regulation of nationwide drug markets. To imagine Justice Scalia would abandon that fundamental understanding of the Constitution’s necessary and proper clause because he was appointed by a Republican president is to insult both his intellect and his integrity

Only a crude prediction that justices will vote based on politics rather than principle would lead anybody to imagine that Chief Justice John Roberts or Justice Samuel Alito would agree with the judges in Florida and Virginia who have ruled against the health care law. Those judges made the confused assertion that what is at stake here is a matter of personal liberty — the right not to purchase what one wishes not to purchase — rather than the reach of national legislative power in a world where no man is an island.

I can tolerate him spoon-feeding talking points to the left about the Court’s supposed illegitimacy, but please, in the name of decency, spare us the condescending, backhanded, surely-they’re-better-than-that tone. John Yoo, who accuses Tribe of coming across “as a teacher instructing the Justices not to disappoint him,” wonders why it shouldn’t also be the case on a matter of first impression like the mandate that Breyer, Ginsburg, Sotomayor, Kagan are left-wing Democratic hacks if they vote to uphold the law — which, let’s face it, they surely will. The votes of Republican appointees like Kennedy, Roberts, Alito, and even Scalia are in doubt here, but there’s no doubt which way our four liberal all-stars will tilt, never mind what further expansion of the Commerce Clause might mean for a government of allegedly limited powers. Exit quotation from one of InstaGlenn’s law-prof correspondents: “[I]t seems to me that the arguments against constitutionality are making supporters sufficiently nervous that they’re doing some battlefield preparation…”


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In his 1908 book, Federal Usurpation, Franklin Pierce wrote the following concerning the Commerce Clause:

“Edmund Randolph, who presented to the Constitutional Convention the Virginia plan, while Attorney-General under the administration of Washington, gave his opinion to Washington, February 12, 1791, on the extent of the power in Congress to regulate commerce, saying that its extent was ‘little more than to establish the forms of commercial intercourse between the states, and to keep the prohibitions which the Constitution imposed upon that intercourse undiminished in their operation; that is, to prevent taxes on imports or exports, preference to one port over another by any regulation of commerce or revenue, and duties upon the entering or clearing of the vessels of one state in the ports of another.’”

So much for Tribe’s assertion that this clause vested Congress with broad power.

Skylolo on February 8, 2011 at 11:20 PM

I don’t care if a USDC judge thinks a law is unconstitutional. It’s not his job to ignore or overturn SCOTUS case law.

Vinson didn’t ignore or overturn the case-law. The strength of the anti-obamacare position is that it fits nicely within the current caselaw. It distinguishes “Activity” from “inactivity,” but the prior case-law dealt only with economic activity. It doesn’t seek to overturn Wickard, or Raich, but proposes a fit that allows all the cases to be read consistently while still overturning Obamacare.

Here, the government’s strech was always to try to convince the court that Congress can constitutionally regulate economic inactivity. Their failure speaks to the weakness of their case.

Revenant on February 8, 2011 at 11:33 PM

In law school we’d always hear about our counterparts at Harvard and how the hardest thing they would have to do in their curriculum was to get in to law school. It’s opinions like that that make me think those rumors were right. How could you possibly have an appreciation of the intent of the founders when being taught by someone who could write an article like that? Obviously, to this man, politics trump the rule of law. I’ve argued cases I didn’t believe in but I would never argue a case I KNEW was wrong.

Either this man knows what he’s arguing is a lie, or he honestly believes the Constitution is whatever his politics say it is. In my opinion, that means he’s either a liar, or a fool.

It’s times like these I’m grateful I learned Con law from a libertarian professor.

Meric1837 on February 8, 2011 at 11:43 PM

Love the condescending tone.

Cindy Munford on February 8, 2011 at 11:51 PM

on the theory that Congress is entitled to regulate only economic “activity,” not “inactivity,” like the decision not to purchase insurance. This distinction is illusory. Individuals who don’t purchase insurance they can afford have made a choice to take a free ride on the health care system. … This conscious choice carries serious economic consequences for the national health care market, which makes it a proper subject for federal regulation…

It’s a standard part of interpreting laws that the reading not render other acts of the legislature to have no effect. The above passage from Mr. Tribe would render the entire history of our republic to be moot. All the time spent discussing and arguing whether one law or another was constitutional would, in retrospect, be a complete waste of time because if Obamacare is within the scope of the Constitution, then there is nothing that is not.

pedestrian on February 8, 2011 at 11:56 PM

Harvard, all of it not just the Law School, thinks of itself as the do all and end all of higher education. This self righteous prof is fairly typical I should think.

jeanie on February 8, 2011 at 11:58 PM

Remember, common law is “law” too.

crr6 on February 8, 2011 at 10:57 PM

No it’s not.

gryphon202

second time I’ve seen you assert that. second time you need to be told that you’re flat wrong.

are you thinking that having a written constitution means that you’re not under common law?
cause that ain’t right.

see Holmes, O W

audiculous on February 8, 2011 at 11:59 PM

Vinson didn’t ignore or overturn the case-law. The strength of the anti-obamacare position is that it fits nicely within the current caselaw. It distinguishes “Activity” from “inactivity,” but the prior case-law dealt only with economic activity. It doesn’t seek to overturn Wickard, or Raich, but proposes a fit that allows all the cases to be read consistently while still overturning Obamacare.

Revenant on February 8, 2011 at 11:33 PM

I don’t think that’s correct, in the sense that SCOTUS has never referred to an “activity/inactivity” distinction, and it has said things which indicate it can regulate inactivity, or the absence of commerce (in Wickard and Heart of Atlanta).

All that aside, you’re talking about Commerce clause case law. The worst part of the Judge’s opinion was when he completely ignored current Necessary and Proper clause doctrine. That’s the strongest argument for the law, and it was by far the weakest part of his opinion. The only way he could get around it was by ignoring the relevant cases and that’s exactly what he did.

All the time spent discussing and arguing whether one law or another was constitutional would, in retrospect, be a complete waste of time because if Obamacare is within the scope of the Constitution, then there is nothing that is not.

pedestrian on February 8, 2011 at 11:56 PM

Well the thing is, the “if this, then anything” argument has been used repeatedly in American history, and clearly each previous time it’s been used, it has been erroneous because, well…it continues to be used. If the creation of the Bank of America had destroyed all limits on federal power, we wouldn’t be having a discussion about the limits on federal power today, would we? For a fun and easy illustration of my point, read pretty much any dissent in a Commerce clause case where the Court upholds the law. The dissenter will inevitably say “because of this case, there are no limits on federal power.” Now read the next Commerce clause case where the law is upheld. Sure enough, the dissent will say “well, now there are no limits on federal power.” But wait, I thought those limits were already gone?

So you see why I’m skeptical of the “if this, then anything” argument to begin with. I think it’s generally a not-so-well-disguised manifestation of the slippery slope or parade of horribles fallacy, and it has little logical
force.

crr6 on February 3, 2011 at 1:37 AM

crr6 on February 9, 2011 at 12:01 AM

Last night, Feb. 7, 2010, the following exchange occurred:

No, I like chicks and don’t love abortion either. Those voices in your head have imagination indeed.
toliver on February 8, 2011 at 12:13 AM

It’s a shame you don’t own up to your own posts. You posted that you were homosexual and you also posted strongly in favor of abortion. Now you try to deny both. Not going to work.
tigerlily on February 8, 2011 at 12:32 AM

Then you’ll just have to dig up some quotes then. Good luck. Since we’re talking about quotes, I seem to recall you posting contemplations of blowing up an abortion clinic during business hours. How’s that lithium problem doing?
toliver on February 8, 2011 at 12:39 AM

You’re on notice, toliver. I expect a full retraction and apology for the above insane, outrageous smear.

As for your quotes, you will find them below. Your very own words, which would lead any adult reading them to conclude that you are both homosexual and pro-abortion, because that is what you say. Why do you lie about it, anyway? Or maybe you think HA commenters don’t know how to read, or don’t have very good memories. I can assure you, the majority here are quite intelligent. (Note: the quotes listed below are not exchanges with me but with other posters. Bolding has been added.)

TOLIVER’S QUOTES:

You obviously don’t know any gays well, like a liberal in Manhattan or SanFran that doesn’t know any conservatives, and is rather ignorant when talking to or about us.
toliver on January 21, 2011 at 10:47 PM

Let’s talk about erections, as they are the physical manifestation of male sexual arousal. So a gay male is supposed to control his hard-ons? He’s supposed to keep it down for hot guys and up for hot chicks? When you can get a boner from looking at and/or thinking about dudes we’ll talk.
toliver on January 21, 2011 at 9:18 PM

(The above from: From: Jim DeMint to join boycott of CPAC by some socially conservative groups posted at 7:09 pm on January 21, 2011 by Allahpundit)

As for being pro abortion, it seems you’re all for it, at least when it comes to minority/poor unborn being killed. Here’s what you said:

Hate to be harsh, but I’ve got to be pragmatic. I don’t find this that disturbing. We don’t need any more wards of the state. Do I wish there were way less pregnancies to be sadly terminated? Yes, of course.
toliver on January 7, 2011 at 12:10 PM

You wrote the above in response to this thread:


Do 41% of all New York City pregnancies end in abortions? posted at 11:36 am on January 7, 2011 by Ed Morrissey

The breakdown by ethnicity is, perhaps, even more startling. Almost 60% of all pregnancy outcomes in NYC for African-American mothers were abortions; among Hispanics, 41.3%. Asians and whites had relatively low percentages of abortion outcomes (22.7% and 20.4%, respectively). ABC points out that the overall number is actually an improvement over 1998, when the citywide rate for abortion outcomes was 46%.

It’s great that you “don’t find it too disturbing” that 41% of all pregnancies in New York end in abortion. According to your “pragmatic” analysis, these troublesome minorities/poor require death, lest they become “wards of the state”. Tell us again how you are not pro-abortion. Harking back to Nazi Germany, I seem to recall reading about a similar sentiment to yours. At that time, “wards of the state” were known as useless eaters; i.e., the handicapped and the Jews. I’m sure the Nazis also wished that there were less handicapped and Jews to be sadly terminated.

To wrap things up, here are two other gems that I came across in the same DeMint thread:


If you want to play the ‘it does not hurt anybody else’ argument (since the attraction argument is shot), are you in favor of all arrangements between adults, regardless of how many? Are those normal forms of expression too?
–How about sex between a person and a consenting animal? That is legal in a few states, you know.
jamarkennedy on January 21, 2011 at 11:32 PM

Really, you are silly. BTW, if your parrot sings “Can’t Help Falling in Love” [Elvis] to you, I don’t care if you get a beaked bj from the bird; just don’t F a kid. Can you see any distinction?
toliver on January 21, 2011 at 11:42 PM

Oh, the church and it’s BS texts -inspired by the Holy Ghost- told us that the Sun revolved around the earth. Learn your history. Geniuses like Copernicus and Galileo were persecuted by morons like you.toliver on January 22, 2011 at 12:32 AM

You have requested that your quotes be “dug up” and here they are. Funny, those “voices in my head” are really your words in print. I have to hand it to you, though. You have employed classic, leftist, no-conscience, say anything, no matter how vile, nerve. And played lots of people here for fools. I have made a concerted effort NOT to engage you. I have no interest in you. However, after ignoring your insults and put downs, when I finally give you a harsh piece of my mind, you cry victim.

You seem to get a thrill out of fooling some people here into believing you are someone that you are not. That is bizarre. Maybe you have two personalities. Maybe that’s why you’re always talking about medications and craziness. Everybody knows that your two opposing claims can’t be true. Were you lying in your previous posts? Or lying now? And again, why are you lying? Are you just crazy? Shakespeare said, “The truth will out”. And it has.

Speaking of truth, I am waiting for you to either provide quotes to prove the despicable smear that you wrote about me, or to retract it, with an apology.

If you don’t see this post and respond, I’ll repost until you do.

tigerlily on February 9, 2011 at 12:03 AM

rather than the reach of national legislative power in a world where no man is an island

That is probably one of the scariest remarks I have ever read. There really is something terribly wrong with this Tribe guy. He certainly sheds some light on Obama though. One can’t help but wonder how Tribe would react if something interfered with his personal liberty in some area he felt strongly about. Talks a good game but I bet he’s as single minded as they come.

jeanie on February 9, 2011 at 12:05 AM

I’ll say it – if the SC votes to uphold this abuse of the Commerce Clause, then the Constitution is literally a dead letter, and this country is over.

Welcome to the tyranny that our forefathers fought against and we used to read about happening somewhere else.

Midas on February 9, 2011 at 12:32 AM

on the theory that Congress is entitled to regulate only economic “activity,” not “inactivity,”

complete and massive headfake here. congress is not empowered to regulate economic activity. they are empowered to regulate commerce.

Fighton03 on February 9, 2011 at 12:35 AM

If the SC votes to uphold this on the basis laid out by Tribe, then the government owns us body and soul. There’s nothing government can’t do and nothing they can’t make us do under the banner of inter-state commerce. It will give Obama and company the go ahead to do just what they please for their own reasons and set a precedent that will change this country forever.

jeanie on February 9, 2011 at 12:41 AM

crr6 on February 3, 2011 at 1:37 AM

crr6 on February 9, 2011 at 12:01 AM

The problem with that argument is that we really have gone to far already. If previous rulings had properly followed the Constitution, then the entire federal health care system would never have been created in the first place, and thus Obamacare would not have been needed in order to make that system workable. But since those rulings have been made, we have to deal with the mess because that’s how the system works. But every now and then the SCOTUS presses the reset button and rolls back some decision that led the Court astray, perhaps many decades previous. This could be one of those cases, but I doubt it. It’s really a clear case of overstepping all the previous bounds, however overstepped those already are.

pedestrian on February 9, 2011 at 12:41 AM

It’s really a clear case of overstepping all the previous bounds, however overstepped those already are.

pedestrian on February 9, 2011 at 12:41 AM

Well then your argument is just that “I think this law goes too far,” not “this would eliminate all limitations on federal power.” I think we both know why you say the latter rather than the former.

crr6 on February 9, 2011 at 12:46 AM

If you feel so confident in your position that the SC could only find that O-care is constitutional under with existing CC of NPC precedent, then why exactly are you here? Surely the nine wise men and women of the SC will see it your way in the end if what you say is correct. So again I ask, why do you come here to argue what, at least in your mind, is a lost effort to overturn what must surely come down on the side of settled law?

Does the fact that you’re a T14 attendee not provide you with enough of an ego boost that you feel the need to slum around here in order to further inflate – what must surely be on overly inflated – ego? As someone in the know, I would advise you to spend less time on message boards among the unwashed heathens and maybe a bit more time considering how to conceal your unchecked ego when in the presence of your future employer. Nothing is more dangerous to unsuspecting clients as a newly minted attorney and few things are more annoying that a noob with an attitude.

volnation on February 8, 2011 at 11:15 PM

Because he’s not actually confident that SCOTUS will uphold the constitutionality of the PPACA. Losing two in a row (McDonald and Citizen’s United) would shake anybody’s confidence.

But hey, if the libs want to pretend that they’re okay with putting all the eggs in the “Scalia’s Raich concurrence” basket, fine by me.

Good Solid B-Plus on February 9, 2011 at 12:50 AM

Well then your argument is just that “I think this law goes too far,” not “this would eliminate all limitations on federal power.” I think we both know why you say the latter rather than the former.

crr6 on February 9, 2011 at 12:46 AM

those two points are not mutually exclusive.

Fighton03 on February 9, 2011 at 12:52 AM

Because he’s not actually confident that SCOTUS will uphold the constitutionality of the PPACA.

I honestly couldn’t make a call either way, and in general I think it’s sort of dumb to make those sorts of predictions, especially with SCOTUS.

I am very, very confident that my side has the better arguments on the merits. Unfortunately, as Judge Vinson’s opinion demonstrated, that doesn’t necessarily mean we’ll win the case.

Losing two in a row (McDonald and Citizen’s United) would shake anybody’s confidence.

Everyone knew those cases would come out the way they did.

But hey, if the libs want to pretend that they’re okay with putting all the eggs in the “Scalia’s Raich concurrence” basket, fine by me.

Good Solid B-Plus on February 9, 2011 at 12:50 AM

Where else would you put your eggs, if not in SCOTUS’ most recent Commerce clause case?

Where are your eggs? In a SCOTUS case enunciating an inactivity/activity distinction? Which one is that?

crr6 on February 9, 2011 at 12:55 AM

gary4205 on February 8, 2011 at 10:21 PM

The last two appointed to the Supreme Court were hand picked by Obama and I doubt they would rule against him no matter what it was concerning. They are indebted to him and he picked people that were as far Left as himself.

old war horse on February 9, 2011 at 12:57 AM

With this in their pocket–you get the wrong person/s in DC and it’s an invitation to dictatorship.

jeanie on February 9, 2011 at 1:00 AM

second time I’ve seen you assert that. second time you need to be told that you’re flat wrong.

are you thinking that having a written constitution means that you’re not under common law?
cause that ain’t right.

see Holmes, O W

audiculous on February 8, 2011 at 11:59 PM

Having a written constitution that specifically enumerates powers in order to limit them, and does not enumerate legislative duties to the courts, does indeed mean that we are not a common law nation.

The enumerated powers of the judiciary all plainly involve mediating disputes that can’t be mediated at the state level. “Precedence” simply means mediating the same disputes in the same way.

Powers are separated for a reason, and Marbury Vs. Madison was a naked power grab. Just because “that’s the way it is” doesn’t make it right, or mean that we have to live with it. So let’s see if the courts have an enforcement mechanism for their “laws.”

gryphon202 on February 9, 2011 at 1:03 AM

So let’s see if the courts have an enforcement mechanism for their “laws.”

gryphon202 on February 9, 2011 at 1:03 AM

Sounds familiar.

crr6 on February 9, 2011 at 1:05 AM

If you feel so confident in your position that the SC could only find that O-care is constitutional under with existing CC of NPC precedent, then why exactly are you here? Surely the nine wise men and women of the SC will see it your way in the end if what you say is correct.

volnation on February 8, 2011 at 11:15 PM

Unfortunately, your second sentence does not logically follow from your first.

crr6 on February 9, 2011 at 1:07 AM

I’m tired of the subversive, deceitful behavior of liberals.

How can they be outed to the public who generally doesn’t care about this stuff until it hits their pocketbooks?

scotash on February 9, 2011 at 1:12 AM

Having a written constitution that specifically enumerates powers in order to limit them, and does not enumerate legislative duties to the courts, does indeed mean that we are not a common law nation.

Powers are separated for a reason, and Marbury Vs. Madison was a naked power grab.

gryphon202 on February 9, 2011 at 1:03 AM

I think you’re wrong on your history here too, by the way. Simply because the words “judicial review” weren’t spelled out in the Constitution, doesn’t mean that the Founders didn’t think it was implicit in the judicial power. Aside from th structural arguments made by Justice Marshall in Marbury (which BTW, I’ve never seen you address) there’s clear evidence the Founders intended judicial review.

From Federalist No. 78

“limitations…can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void.”

crr6 on February 9, 2011 at 1:13 AM

crr6: Do I mis-understand when I decide that you are in favor of the government setting the armed forces against it’s people to enforce it’s will? Even Mubarak had sense enough not to do this. I had hoped we had learned something from the rougher and nastier parts of the civil rights battles. We are no longer the naive folks of those days I think/hope.

jeanie on February 9, 2011 at 1:13 AM

It is misleading because, unlike the channels, instrumentalities, and agents of interstate commerce, activities that substantially affect interstate commerce are not themselves part of interstate commerce, and thus the power to regulate them cannot come from the Commerce Clause alone.

not so friendly as people wish to believe.

Fighton03 on February 9, 2011 at 1:17 AM

crr6: Do I mis-understand when I decide that you are in favor of the government setting the armed forces against it’s people to enforce it’s will?
jeanie on February 9, 2011 at 1:13 AM

LOL. Which Southern state are you from?

crr6 on February 9, 2011 at 1:17 AM

LOL. Which Southern state are you from?

crr6 on February 9, 2011 at 1:17 AM

I live in the ultra-liberal northeast. And..you have evaded my question.

jeanie on February 9, 2011 at 1:21 AM

I am very, very confident that my side has the better arguments on the merits.

crr6 on February 9, 2011 at 12:55 AM

Heh, of course you are pumpkin.

Then, when the SCOTUS rules 5-4 that the PPACA is unconstitutional, you can browbeat them for not having the incredible legal acumen or intelligence of a 2nd year law student.

Clearly, crr, PR and audiculous should be making all our legal decisions as a triumvirate, so we don’t stupidly invest any power in inexperienced philistine rubes like Roberts, Scalia and Alito.

Good Solid B-Plus on February 9, 2011 at 1:22 AM

Law Professor Apologizes

The web has the history and Tribe’s plagiarism and other dishonesty still exists.

Caststeel on February 9, 2011 at 1:24 AM

crr6: I’ll re-word the question then. Do I mis-understand when I assume from your posts that you think the government is justified in using any means it thinks necessary to enforce it’s mandates?

jeanie on February 9, 2011 at 1:26 AM

I live in the ultra-liberal northeast. And..you have evaded my question.

jeanie on February 9, 2011 at 1:21 AM

Jawohl, mein herr. Wir haben moglichkeiten, sie kaufen versicherungen, kamerad.

Good Solid B-Plus on February 9, 2011 at 1:26 AM

Somehow plagiarism and prevarication brings out our trolls to defend unscrupulous behavior by a Haavvarrd liar. Mendacity, thy name is crr6, audicous, PR.

Before you respond, troll, read my 1:24

Caststeel on February 9, 2011 at 1:34 AM

If the Democrats and Prez Obama want to insure that they lose in 2012 and for a long time afterwards–the mandated element of this Bill is the way to go…no matter the outcome in the courts. It may take a while, but it will surely damage them.

jeanie on February 9, 2011 at 1:35 AM

So let’s see if the courts have an enforcement mechanism for their “laws.”

gryphon202 on February 9, 2011 at 1:03 AM

Sounds familiar.

crr6 on February 9, 2011 at 1:05 AM

Your link states that the executive branch of the local government (the mayor) asked the executive branch of the federal government (the President) for assistance, and the latter used his authority granted under Article II of the Constitution (which, for any law students out there, refers to the Executive Branch).

So what “sounds familiar”?

malclave on February 9, 2011 at 1:43 AM

LOL. Which Southern state are you from?

crr6 on February 9, 2011 at 1:17 AM

What an incredibly “inappropriate” question.

malclave on February 9, 2011 at 1:44 AM

What an incredibly “inappropriate” question.

malclave on February 9, 2011 at 1:44 AM

Pretty stupid one, too. Gee, and I thought they didn’t allow sutpid questions in crr’s neck of the woods.

Good Solid B-Plus on February 9, 2011 at 1:47 AM

Malclave, we should probably stop. After all:

Go back to your hole, lest I get you banned scumbag.

crr6 on November 20, 2009 at 12:50 PM

Crr is going to get us teh banh@mmer! Ohnoez!

Good Solid B-Plus on February 9, 2011 at 1:56 AM

The guy doesn’t make a legal argument but some conservative professors have already argued that such mandates are constitutional and cite examples such as the draft and jury duty as examples. Those mandates have survived a multitude of legal challenges under a variety courts. It will be interesting to see where this goes when it hits the supreme court but don;t be surprised if this isn’t decided along partisan lines.

lexhamfox on February 9, 2011 at 2:28 AM

You know, I don’t see Justices Scalia, Alito and Chief Justice Roberts taking this in the spirit I am sure Mr. Tribe was intending. The sad thing is that we will never know what they think about it, I bet it is awesome.

Cindy Munford on February 9, 2011 at 2:31 AM

I rather resent Professor Tribe’s assertion that I am using the health care insurance system or else am a mooch on the emergency rooms and mandated care systems. I am either covered through my job or I pay for it myself, which I rather prefer because then the doctor’s aim is to please ME, not an insurance company or employer. I do not think that so long as I have any ability to pay for my own care that I have any right to demand that others pay for it.

Kevin K. on February 9, 2011 at 2:57 AM

What kinds of minds must liberals have? Put all the infantile word games aside for a moment and just step back and look at the big picture:

Liberals believe that every new, idiotic and insane Ponzi scheme they come up with is something so incredibly brilliant that they Founding Fathers obviously WOULD have wanted it if only they’d been smart enough to think of it themselves.

“Free” health care for everyone; paid for by “free” money the government is borrowing from itself… What could possibly go wrong?

Liberals at the same time believe this is a NEW idea, and also that it was buried inside the five pages of the Constitution, but in a way that everyone who was born before them – and even most “modern” neanderthals – can’t properly read for ourselves.

logis on February 9, 2011 at 4:41 AM

I keep hearing all this talk about the “precedents” of the Commerce Clause being all Obamacare needs to be proven Constitutionally sound…I think it’s about time a precedent was set that limits that clause. I don’t think we’ve seen it yet.

But pedestrian articles like the one the professor wrote tell me that liberals are getting really nervous about this. They can’t really defend it as well as they think they can.

frode on February 9, 2011 at 5:25 AM

Mr. Tribe needs to be disbarred and banned from teaching.

Tuari on February 9, 2011 at 5:34 AM

So much for Tribe’s assertion that this clause vested Congress with broad power.

Skylolo on February 8, 2011 at 11:20 PM

You see : They don’t care. If they can whittle away over time they will render it meaningless. As long as they achieve their desired end all is good / ….no matter the damage.

CWforFreedom on February 9, 2011 at 6:21 AM

This guy has solid credentials………

(Wikipedia) “In 2004, Tribe admitted to plagiarism after reports surfaced that material published by Tribe in 1985 was lifted from material originally published by Henry J. Abraham in 1974.[8][9] The revelation came only three weeks after Charles J. Ogletree, one of Tribe’s peers at the law school publicly confessed to plagiarism and sparked controversy when critics began to view these transgressions along with earlier incidents as evidence of a trend at Harvard Law.[10] Six months later, after an investigation headed by former Harvard President Derek Bok, Harvard President Lawrence Summers and Law School Dean Elena Kagan reprimanded Tribe for “a significant lapse in proper academic practice”, but concluded that Tribe’s error was unintentional.[11] Lawrence R. Velvel, Dean of Massachusetts School of Law and a professor of law, criticized Summers’ and Kagan’s statement, saying “Harvard University is now probably the only school in the country with a University Professor who is an admitted plagiarist.”

alwyr on February 9, 2011 at 6:32 AM

That’s called “PROJECTION”. :)

Dandapani on February 9, 2011 at 7:23 AM

How could common people read, much less understand the Constitution … the way liberals have contorted it through the emanations and glowing penumbra? It takes a certain knack, does it not? After all, it so old anyway, how would you know what it means?

That’s why we need snide, cute, condescending law professors, to help the plebs out.

Or is it just that liberals are hoping you cannot read. Nor reason. Nor think critically?

tarpon on February 9, 2011 at 7:52 AM

It seems to me that Professor Tribe went to Virginia, right after George Bush was elected president and helped the Democrats devise a plan to filibuster and delay George Bush’s judicial appointments. One could say that was preparation for a case such as this, if they were really cynical.

The problem I’ve always had with that is the filibuster had never been used, in such a manner, against the judiciary and the President’s power to nominate. By escalating the use of the filibuster, Professor Tribe is responsible for some of the rancor that exists today, between the parties and he was never elected by anyone.

bflat879 on February 9, 2011 at 7:57 AM

Hey, Prof Tribe. Howzabout, we just defund the monstrosity?

kingsjester on February 9, 2011 at 7:59 AM

One must reject the babbling of leftists and liberals . . . they will lie, cheat, obfuscate and deceive to achieve their ends.

rplat on February 9, 2011 at 8:00 AM

Laurence Tribe complaining of political hacks?

Meanwhile, Osama bin Laden decries all those terrorists.

WannabeAnglican on February 9, 2011 at 8:03 AM

The whole problem with using precedent is that if a court in the pass got it wrong, then the precedent is wrong. Liberals tend to forget that there is a black and white, static document out there that trumps any precedent they can think of. It’s called the Constitution and it was written in plain English.

When they do notice the Constitution, they jump through as many hoops as possible to construe the meaning by adding “intent” that was never there in the first place. The arguments FOR Obamacare are one of the two:

1) There is precedent in previous cases where the Supreme Court ruled that Congress has this power.

That may be true, but that doesn’t make it Constitutional. As I said before, precedent is meaningless when the judge is supposed to rule on the Constitution…which he can go read any time he likes.

2) The Constitution gives Congress the power to force American citizens to make economic transactions that the government stipulates.

It sure is fun watching CRR6 and PR try and prove this. It takes a certain contempt for the Founding Fathers and an extreme ignorance of American history to even start.

Pattosensei on February 9, 2011 at 8:10 AM

I am very, very confident that my side has the better arguments on the merits.

crr6 on February 9, 2011 at 12:55 AM

If YOUR side had the better arguments, especially when this monster was being birthed, how come it took all the arm twisting and smoke-filled backroom deals and sellouts, to get it accomplished.

If YOUR side had the convincing arguments, why was a majority of the American public against this legislation?

If YOUR side was really truthful, they would have told the Little People(Peeps/Sheeples) just to STFU because YOUR side knows best!…Oh wait…that’s what they did say, didn’t they. Only Your side had to use subterfuge, half-truths, lies and misinformation to be able to put out a story that sounded good. It was YOUR side that said, “We have to pass it to find out what’s in it!”.

Why is it YOUR side is always trying to give the rest of us an enema of tripe and socialism, while telling us its good for us?

belad on February 9, 2011 at 8:11 AM

The dissenter will inevitably say “because of this case, there are no limits on federal power.” Now read the next Commerce clause case where the law is upheld. Sure enough, the dissent will say “well, now there are no limits on federal power.” But wait, I thought those limits were already gone?

So you see why I’m skeptical of the “if this, then anything” argument to begin with. I think it’s generally a not-so-well-disguised manifestation of the slippery slope or parade of horribles fallacy, and it has little logical
force.

crr6 on February 3, 2011 at 1:37 AM

Did you read what you wrote? You might as well make the Conservative case for them. Yes they argue about the runaway expansion of Federal government but they don’t mean overnight. The Commerce Clause is in fact being used year after year, decade after decade, to increase the size and scope of government and Obama care is yet another reach.

Whether they grow fast or slow does not matter, there does NOT seem to be a limit on where the Federal government can go unless they are expressly forbidden in the Constitution and even then, 4 justices voted against an individual’s right to own guns recently.

Daemonocracy on February 9, 2011 at 8:23 AM

stuff you’ve read in a hundred different permutations from liberals over the past 18 months.

Kind of like the Harvard “education.” An “education” you could have got from a hundred different schools, at 5 times the cost and debt.

MNHawk on February 9, 2011 at 8:42 AM

Yet again, I am proven correct. It’s only judicial activism, voter fraud or hate speech if Republicans do it….. Why do we put up with these stupid people….. another saying of mine… You can forgive ignorance, but not stupidity. That applies in this case also.

ultracon on February 9, 2011 at 8:45 AM

Tribe deserves a pie in the face…

Khun Joe on February 9, 2011 at 8:48 AM

Individuals who don’t purchase insurance they can afford have made a choice to take a free ride on the health care system.

This argument is driving me insane! Young, healthy people with good incomes are not “free riding on the health care system.” They are making a rational choice to not purchase an expensive health insurance policy and to save the money so that they can pay their own medical bills if necessary. Most young people would be better off saving the $400 a month they are throwing away now on health insurance and putting it into investments that give them a return, and from which they can draw for any health care expenses they might have.

And this principle isn’t limited to healthy young people either. A close relative of mine has lived “off the grid” for 40 years. He pays cash whenever he needs any medical care, and gets a checkup and a stress test every year. He has thousands saved up in case anything major happens. He has DNR orders if anything catastrophic happens.

It may be “a” solution to the “free rider problem” to force healthy people to buy insurance they don’t need, but it is really a stretch to claim it is “necessary.” There are other solutions to the problem that do not involve robbing people of their liberty not to purchase insurance. One would be to deport all the illegal aliens who are the real “free riders.” Another would be to expand, rather than contract, health savings accounts, provide incentives for private companies to offer preapid health plans and affordable mini-med plans, etc. ObamaCare does just the opposite – forcing a brutal individual mandate to purchase health insurance while eliminating HSAs and mini-med plans.

rockmom on February 9, 2011 at 8:56 AM

The founders did not go the trouble of creating a Constitution with expressly enumerated powers, and THEN go back to add ten amendments as a Bill of Rights that expressly protected the people FROM the gov’t by further expressly prohibiting the gov’t to limit some of the peoples’ rights, in order to then:
grant unlimited the gov’t unlimited power through vague language in clauses that describe gov’t duties in a general way.

You don’t even have to go back to Blackstone to understand that in the English Legal tradition (and English common law was expressly recognized by the original states) to see that the specific language always trumps the general language (true for contracts, common law, administrative and statutory law).

exsanguine on February 9, 2011 at 8:56 AM

If this is upheld by the SC, what’s up next for us? Dear leader will regulate everything out of existence from ammo to bibles. Look what he’s doing to our energy and oil. Now they think the Saudis don’t have the reserves that were claimed. Gas is going to skyrocket, along with everything we buy.

Kissmygrits on February 9, 2011 at 9:00 AM

Love the condescending tone.

Cindy Munford on February 8, 2011 at 11:51 PM

Pretty sad, isn’t it? The New York Times is reduced to conjuring up lame op-eds by admitted plagiarists to preach to the choir, reassuring their dwindling true-believing liberal readership that they are still on the correct side while 80% of the country is on the other side.

rockmom on February 9, 2011 at 9:05 AM

A new Democratic threat to health care law

Nearly Nobody on February 9, 2011 at 9:07 AM

rockmom on February 9, 2011 at 8:56 AM

Another solution to the overall problem is to take the whole health care insurance thingy out of the employer’s responsibility. Let everyone get the pre-tax deduction for their individual policy that has nothing to do with the company they work for. If the company wants to pick up the bill, show it as income for the employee, by having the responsibility fall on the individual, the individual can tailor the type of coverage that best suits his/her situation and then allow the insurance providers to offer plans across state lines.

I am 62 and my wife is not going to get pregnant any time soon or ever, why should I have to pay for maternity coverage because someone that works for the ‘company’ is of child-bearing age? I don’t need it and I would rather opt for a MSA and high deductible with catastrophic coverage. I know how and when to visit a physician to take care of something.

belad on February 9, 2011 at 9:09 AM

Either this man knows what he’s arguing is a lie, or he honestly believes the Constitution is whatever his politics say it is. In my opinion, that means he’s either a liar, or a fool.

Meric1837 on February 8, 2011 at 11:43 PM

Honestly and truly, this is, simply, the liberal MO on the Constitution, on economics, on… pick a subject.

Midas on February 9, 2011 at 9:14 AM

Another solution to the overall problem is to take the whole health care insurance thingy out of the employer’s responsibility. Let everyone get the pre-tax deduction for their individual policy that has nothing to do with the company they work for. If the company wants to pick up the bill, show it as income for the employee, by having the responsibility fall on the individual, the individual can tailor the type of coverage that best suits his/her situation and then allow the insurance providers to offer plans across state lines.

I am 62 and my wife is not going to get pregnant any time soon or ever, why should I have to pay for maternity coverage because someone that works for the ‘company’ is of child-bearing age? I don’t need it and I would rather opt for a MSA and high deductible with catastrophic coverage. I know how and when to visit a physician to take care of something.

belad on February 9, 2011 at 9:09 AM

Exactly, there are many ways to skin this cat that do not involve treading on Constitutional rights of individuals. That step should only be taken in extremis, as in the military draft during wartime. A largely government-made “crisis” in health care or a simple policy preference of a bare majority of Congress does not rise to that level at all.

rockmom on February 9, 2011 at 9:17 AM

we’ll win the case.

crr6 on February 9, 2011 at 1:05 AM

Emphasis on “we” is mine…just to drive home how very unbiased and objective our resident law troll is.

Grace_is_sufficient on February 9, 2011 at 9:19 AM

If anyone has turned into a biased political hack, it’s Laurence Tribe.

petefrt on February 9, 2011 at 9:23 AM

Individuals who don’t purchase insurance they can afford have made a choice to take a free ride on the health care system. They know that if they need emergency-room care that they can’t pay for, the public will pick up the tab.

This is the real issue. There is no legal basis for citizens to receive medical care and not pay for it. Medical care is a good, not a right.

Vashta.Nerada on February 9, 2011 at 9:24 AM

rather than the reach of national legislative power in a world where no man is an island.

He forgot to add, “…every little breeze seems to whisper ‘Louise.’”

Akzed on February 9, 2011 at 9:37 AM

I am very, very confident that my side has the better arguments on the merits. crr6 on February 9, 2011 at 12:55 AM

No you’re not, you’re simply in favor of the tyranny of “your side.”

Akzed on February 9, 2011 at 9:40 AM

Aside from th structural arguments made by Justice Marshall in Marbury (which BTW, I’ve never seen you address) there’s clear evidence the Founders intended judicial review.

From Federalist No. 78
“limitations…can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void.”
crr6 on February 9, 2011 at 1:13 AM

And you think that Oboobacare is not an act “contrary to the manifest tenor of the Constitution”?

And BTW, Marbury wasn’t cited as precedent for judicial review until the 1880′s, when Progressives began to need justification to overturn acts of congress that didn’t fit their penchant for extra-constitutional governance.

Akzed on February 9, 2011 at 9:53 AM

“Individuals who don’t purchase insurance they can afford have made a choice to take a free ride on the health care system. They know that if they need emergency-room care that they can’t pay for, the public will pick up the tab.”

This is were his argument fails. The author assume that any one who does not buy health insurance is a low life that is looking to scam the system. If you don’t pay for services rendered, then you are committing theft. I used an ambulance and emergency room once when I had no health insurance. The bills came and I paid them. Why? Because I am/was not the low life Laurence Tribe assumes/assumed.

ernie on February 9, 2011 at 10:12 AM

crr6 will decide who can afford what, and execrate those who disagree.

Fines and confiscations ensue.

Akzed on February 9, 2011 at 10:16 AM

I truly believe Obama has read and understands the Constitution…he just doesn’t like it or agree with what it stands for. His actions are to purposeful for someone who is uninformed…

Ltlgeneral64 on February 9, 2011 at 10:18 AM

ernie on February 9, 2011 at 10:12 AM

I think people who believe as you do, and my son I might add, are the ones who are the strongest opponents. I may not agree with his decision not to take advantage of affordable healthcare through his job but it is his right and he isn’t living off anyone else.

Cindy Munford on February 9, 2011 at 10:21 AM

It is kind of amusing to think that Tribe, who is clearly a Wannabe in terms of SCOTUS, would think that condescension will be persuasive to the actual members of the Court.

txmomof6 on February 9, 2011 at 10:32 AM

rrpjr on February 8, 2011 at 10:20 PM

Wow. That is a really wonderful article!
Long, but well worth the reading.
Everyone here should read this.

Badger40 on February 9, 2011 at 10:34 AM

There is no intellect on Earth more over-rated than that of the law professor.

Professor Blather on February 9, 2011 at 10:38 AM

Then, when the SCOTUS rules 5-4 that the PPACA is unconstitutional, you can browbeat them for not having the incredible legal acumen or intelligence of a 2nd year law student.

Good Solid B-Plus on February 9, 2011 at 1:22 AM

Do Charles Fried, Orin Kerr, Erwin Chemerinsky, Laurence Tribe, and Akhil Amar have legal acumen? You do realize your view is in the minority here, right? It’s pretty much held by a few wingnuts like Randy Barnett, and that’s it.

crr6 on February 9, 2011 at 10:46 AM

I live in the ultra-liberal northeast.

Sure, but where are you from?

And..you have evaded my question.

jeanie on February 9, 2011 at 1:21 AM

You equated racists resisting federal court decisions compelling integration, with citizens protesting a tyrant in Egypt.

crr6 on February 9, 2011 at 10:52 AM

Why is it assumed that people who choose not to purchase insurance, and wind up in the emergency room, don’t intend to pay their bills? The only ones who fit that category are the illegals, imho.

ctmom on February 9, 2011 at 10:53 AM

Do Charles Fried, Orin Kerr, Erwin Chemerinsky, Laurence Tribe, and Akhil Amar have legal acumen? You do realize your view is in the minority here, right? It’s pretty much held by a few wingnuts like Randy Barnett, and that’s it.

crr6 on February 9, 2011 at 10:46 AM

In logic, an argumentum ad populum (Latin: “appeal to the people”) is a fallacious argument that concludes a proposition to be true because many or all people believe it; it alleges: “If many believe so, it is so.”

This type of argument is known by several names,[1] including appeal to the masses, appeal to belief, appeal to the majority, appeal to the people, argument by consensus, authority of the many, and bandwagon fallacy, and in Latin by the names argumentum ad populum (“appeal to the people”), argumentum ad numerum (“appeal to the number”), and consensus gentium (“agreement of the clans”). It is also the basis of a number of social phenomena, including communal reinforcement and the bandwagon effect, the spreading of various religious beliefs, and of the Chinese proverb “three men make a tiger”.

fossten on February 9, 2011 at 10:58 AM

Why is it assumed that people who choose not to purchase insurance, and wind up in the emergency room, don’t intend to pay their bills? The only ones who fit that category are the illegals, imho.

ctmom on February 9, 2011 at 10:53 AM

It’s the only argument (or actually lie) the left has. I’ve had medical procedures twice without insurance. Hospitals and doctors will work with you to make reasonable payment plans.

darwin on February 9, 2011 at 10:59 AM

Do Charles Fried, Orin Kerr, Erwin Chemerinsky, Laurence Tribe, and Akhil Amar have legal acumen? You do realize your view is in the minority here, right? It’s pretty much held by a few wingnuts like Randy Barnett, and that’s it.

crr6 on February 9, 2011 at 10:46 AM

Who cares what they think? People don’t want this … it’s as simple has that, and all the twisted reasoning you attempt will not change that.

darwin on February 9, 2011 at 11:01 AM

In logic, an argumentum ad populum (Latin: “appeal to the people”) is a fallacious argument that concludes a proposition to be true because many or all people believe it; it alleges: “If many believe so, it is so.”

fossten on February 9, 2011 at 10:58 AM

Great, fossten. Can you point out all the logical fallacies in this post:
Then, when the SCOTUS rules 5-4 that the PPACA is unconstitutional, you can browbeat them for not having the incredible legal acumen or intelligence of a 2nd year law student.

Clearly, crr, PR and audiculous should be making all our legal decisions as a triumvirate, so we don’t stupidly invest any power in inexperienced philistine rubes like Roberts, Scalia and Alito.

Good Solid B-Plus on February 9, 2011 at 1:22 AM

crr6 on February 9, 2011 at 11:01 AM

Who cares what they think? People don’t want this … it’s as simple has that, and all the twisted reasoning you attempt will not change that.

darwin on February 9, 2011 at 11:01 AM

Well even if that were true (which it isn’t), what does that have to do with the law’s constitutionality?

crr6 on February 9, 2011 at 11:02 AM

crr6 on February 9, 2011 at 11:01 AM

Do you ask your fellow law students to do your work for you as well? How…unexpected.

fossten on February 9, 2011 at 11:03 AM

Do you ask your fellow law students to do your work for you as well? How…unexpected.

fossten on February 9, 2011 at 11:03 AM

Now, now dear, sulking is unbecoming. Do your assignment.

crr6 on February 9, 2011 at 11:06 AM

Usually it takes one to know one, except in the case of hacks

Tribe is supposed to have said Obama was the brightest student he ever had, which makes Tribe one of the select few who admits to ever having seen Obama at university

entagor on February 9, 2011 at 11:08 AM

Who cares what they think? People don’t want this … it’s as simple has that, and all the twisted reasoning you attempt will not change that.

darwin on February 9, 2011 at 11:01 AM
Well even if that were true (which it isn’t), what does that have to do with the law’s constitutionality?

crr6 on February 9, 2011 at 11:02 AM

The professors you mentioned have absolutely nothing to do with the Constitutionality of the law either as they are not one of the 8 or 9 making the decision. They might make arguments, but they don’t get to decide.

txmomof6 on February 9, 2011 at 11:09 AM

You do realize your view is in the minority here, right?
crr6 on February 9, 2011 at 10:46 AM

In logic, an argumentum ad populum (Latin: “appeal to the people”) is a fallacious argument that concludes a proposition to be true because many or all people believe it; it alleges: “If many believe so, it is so.” This type of argument is known by several names…
fossten on February 9, 2011 at 10:58 AM

I just lump it all under one name: Collectivism.

It’s not just some incredibly gigantic coincidence that collectivism and propaganda have always gone hand in hand. The economic part is the tip of the iceburg — a theology based on an economic theory completely discredited well over a hundred years ago.

Collectivism begins and ends with collective THOUGHT.

To people incapable of analytical thought (i.e., liberals) what the five-page-long Constitution actually SAYS could not possibly be less relevant to anything. All that matters is how they FEEL about it; and that only means one thing: agreeing with whatever happens to be the perceived consensus.

And, of course, to the touchy-feely part of the brain, what 2/3rd’s of the American populiation isn’t a concensus; it’s just a number and ergo meaningless. The real in-crowd is whoever is on TV most often, or claims the most influence among the self-proclaimed “intellectuals.” (And, yes, as barbaric as it seems, some of them actually still use that word.)

logis on February 9, 2011 at 11:10 AM

Now, now dear, sulking is unbecoming. Do your assignment.

crr6 on February 9, 2011 at 11:06 AM

So you switch from whining tu quoque arguments to condescension. Watch out for that shifting sand – it doesn’t match up with your phony ‘logical argument’ persona.

fossten on February 9, 2011 at 11:10 AM

Well even if that were true (which it isn’t), what does that have to do with the law’s constitutionality?

crr6 on February 9, 2011 at 11:02 AM

Your implication that the law is constitutional rests on warped interpretations of the commerce clause. Show me anything the founders wrote or said that comes close to supporting it as constitutional, or even that the commerce clause is being used as intended.

Secondly, the purpose of this law is to provide health insurance to those that supposedly can’t afford it … not to regulate commerce.

darwin on February 9, 2011 at 11:12 AM

A SCOTUS decision interpreting the Constitution is federal law.

crr6 on February 8, 2011 at 10:53 PM

Unless one doesn’t like that decision. For years, many on the Left steadfastly refused to accept the SCOTUS decisions in the Bush V. Gore case in 2000. Including many prominent elected Democrats in Congress, like Dan Inouye of Hawai’i.

Speaking of which, a Bush SCOTUS appointee (Souter) actually ruled in favor of Gore in that case. Was that “judicial activism” too?

Del Dolemonte on February 9, 2011 at 11:12 AM

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