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This NBC interview of Justice Sonia Sotomayor by Savannah Guthrie looks to have been conducted in a Catholic Church. Is that so? What accounts for that setting?

Justice Sotomayor does invoke God at one point:

Q: Do you think it’s good for the democratic process for the Court to be deciding these big, social issues of the day?

A: I don’t think of us, the democratic process, as being a static one where the Court announces, and that ends the dialogue. The Court announces, and the dialogue begins, and the approach in some instances has to be changed. But the society manages to do it.

Q: Do you look forward to those big, consequential cases?

A: Oh my God, look forward to them. I don’t think you can say anyone looks forward to controversy. I think that the day a Justice forgets that each decision comes at a cost to someone, then I think that you start losing your humanity.

tdy_guth_sonia_130114.video-260x195

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The recent revelations about the process of writing the opinions in NFIB v. Sebelius explain much about some otherwise puzzling aspects of the opinions. Many have noted, for example, that the Joint Dissent by Justices Scalia, Kennedy, Thomas, and Alito reads like a patchwork. The switch-induced time pressure under which these Justices jointly produced the opinion may have exacerbated the normal difficulties of assembling all the pieces into a unified whole. And the process may have allowed in arguments whose provenance may have been unknown to all of the authoring Justices.

Something like that may have happened with respect to the Joint Dissent’s reasoning about the alleged inseverability of § 5000A and the Medicaid expansion from the rest of the Act. The Joint Dissent’s analysis relied on Christmas tree imagery to argue for inseverability:

The Court has not previously had occasion to consider severability in the context of an omnibus enactment like the ACA, which includes not only many provisions that are ancillary to its central provisions but also many that are entirely unrelated—hitched on because it was a quick way to get them passed despite opposition, or because their proponents could exact their enactment as the quid pro quo for their needed support. When we are confronted with such a so-called “Christmas tree,” a law to which many nongermane ornaments have been attached, we think the proper rule must be that when the tree no longer exists the ornaments are superfluous. We have no reliable basis for knowing which pieces of the Act would have passed on their own. It is certain that many of them would not have, and it is not a proper function of this Court to guess which.

NFIB v. Sebelius, Scalia, Kennedy, Thomas, & Alito, JJ., dissenting.

Where did the Christmas tree imagery come from? Throughout the litigation, there have been references to the PPACA as a Christmas tree. The bill passed the Senate on Christmas Eve, 2009, and it was criticized for being loaded down with “ornaments” to garner different legislators’ votes. But the insertion of the Christmas tree into severability analysis appears to derive from a January 31, 2012 Politico op-ed authored by Senator Mitch McConnell and Carrie Severino. The op-ed states:

The new health law is what we call a “Christmas tree” bill, decorated with countless provisions before it is passed. For example, the “Louisiana Purchase,” which guaranteed hundreds of millions of dollars in special payments to that state’s Medicaid programs. Or the “Cornhusker Kickback,” which, as originally drafted, would have given special treatment to Nebraska to sway a fence-sitting senator. Those provisions include everything from taxes on tanning salons to slush funds for bike paths as ornaments.

The question that will be facing the court is: What happens to the ornaments if the tree falls?

* * *

All the parties — including the Obama administration — agree that the new insurance regulations are so dependent on the mandate they couldn’t function without it. If the trunk of a tree is severed, then the branches fall with it.

The administration nonetheless now argues that the tree’s “ornaments” somehow remain suspended in midair after the tree is gone.

Senator McConnell was the lead signatory on an amicus brief regarding severability that included Ms. Severino as counsel. But that brief did not mention a Christmas tree. Nor, as far as I can tell, did any of the other briefs in NFIB v. Sebelius filed in support of total inseverability.

It may be that whichever Justice authored this portion of the Joint Dissent came up with the Christmas tree image on his own. Or there may be some other source in the litigation that it came from. But it would be interesting if its usage derived in some way from the McConnell/Severino op-ed. For if that’s where it came from, and if all the authoring Justices knew that, it would be surprising that it stayed in the opinion. There are many other ways that they could have made the same point.

Suppose that the opinion had garnered just one more vote. And suppose that the instrument of destruction for all the provisions whose constitutionality has not been questioned had been imagery supplied by the Senate Minority Leader and the Chief Counsel and Policy Director of the Judicial Crisis Network–imagery supplied not in a brief, but rather in an Internet-only op-ed aimed at D.C.’s political and legal elites, imagery that picks up on a talking point tied to the political maneuvering that led to the Act’s Senate passage on Christmas Eve. It’s not hard to predict what sorts of criticisms would have rained down on this part of the opinion.

It very well may be that the imagery did not derive directly from the McConnell/Severino op-ed. Another possibility is that the Christmas tree imagery was just “in the air” in D.C. over the past couple of years. There was no particular source for its usage in the Joint Dissent, but rather it was just part of the available imagery given the season of judicial review of the the PPACA. Perhaps the composing Justice just adopted what was ready at hand. If that’s what happened, the close connection with the McConnell/Severino op-ed suggests a reason for circumspection in one’s choice of imagery. For with respect to the PPACA, the Christmas tree imagery had a political tint given the timing and circumstances of its passage in the Senate on Christmas Eve 2009. That coloring suggests a reason to reach out for some other imagery even though legislatures regularly pass so-called Christmas tree bills, bills which may be appropriately so called even when they are not passed around Christmas time.

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I’ve been told, and I recognize, that Joseph Vining’s writing can be difficult to understand. But if there is one day in recent memory when his comparison of the practice of law to the practice of theology can be understood, it is today. Here are some of his thoughts:

The parallels between the practice of law and the practice of theology are too striking for the lawyer not to see. They are also comforting, which makes them easier to see. For lawyers are required by the customs of the profession in which they are imperceptibly trained from the first day of law school, as well as by its discipline, to behave in ways that any adult, self-respecting, and free man must think either offensive or mad. If the lay citizen faces a dilemma in obeying what he is told is the law, lawyers face it even more. They are taught that they must be more obedient than other citizens, and this is reinforced by etiquette. They stand when an individual in a special robe enters the room where they are to do law, and takes a seat on a raised dais. They stand when that individual leaves the room. The architecture of the room and of the building containing the room is designed to produce respect, even awe. They are punished for anything resembling contempt in their gesture and phrasing, and say, “Yes, your Honor,” when reprimanded. They accept reprimand and correction given in a tone that only children experience outside the courtroom. They address this person to whom they speak, who issues reprimands, corrections, and statements that must be obeyed, with an ancient title, a title of the kind otherwise eliminated from American mouths, beginning with the word “Your” and followed by a word which might be Excellency, Majesty, Reverence, or Grace. In the case at hand, it is Honor. Even the most prominent lawyers appearing before the Supreme Court speak in tones of deference and in elaborate circumlocutions which hide the fact that they are instructing, guiding, or disagreeing with the justices before them; the most careless, ill-informed, foolish, or malicious questions are treated with an elaborate show of seriousness. If lawyers lose the habit of self-effacement and self-abasement they lose credibility and the ear of the judge to whom they are speaking, who turns away if he is not treated with the respect he thinks his due. Lawyers engage in overt and elaborate supplication, as does almost no one else in modern society. They begin, “May it please the court,” and in the end they “pray” for relief. And everything they say must be backed by authority. Indeed, they do best if they say a thing not in their own words but in the form of a quotation from authority, as if the ultimate end of and best demonstration of obedience and self-abasement is to eliminate themselves from view. Despite the seriousness of it all, which bespeaks a conviction that what they decide to say matters, and despite the heat of the argument the words they speak are never claimed to be their own. (And when a man in robes speaks he will say “We” or much more often “The law” or “This Court,” referring not to himself or himself and his colleagues but to the Court speaking over time.) When they get down to business, after their forms of greeting and stationing themselves and in between their modes of address and before their prayers, what do lawyers do? They hurl quotations at each other.

* * *

Where else do free, grown, thinking, and sane men and women behave in this way and in such an atmosphere? Where else do individuals in robes sit on a raised dais in the center of a room designed to evoke awe and respect? Where else do men conceive of themselves as supplicating, and say explicitly that they are praying for relief? Where else can be found men and women dressed in their best and most sober clothes engaging in self-abasement, where respect enforced by custom and discipline, where absence of direct challenge, use of titles, faith demanded at the outset? Where else but the church?

Now of course there are many churches, and the behavior of men and women in them varies in the respects just enumerated and thus in the degree of their resemblance to the legal profession. But in one respect, I think, they do not vary. They all look to authoritative texts. This they do not do just for the regulation of their ritual behavior, for which the authority of the text is almost a matter of definition. At least in the Western world questions about what to do in the world and how to think are settled by appeals to authority. If the authoritative statement is uttered by an official, it is made after reference to an argument about written texts. The agreement of religions on this point, this point of method, and their identity in this regard with law, is remarkable. It matters not whether the religion be hierarchically or pyramidally organized, like the Roman Catholic or the Protestant Episcopal or the Mormon, organized in a more horizontal fashion with occasional convocations to settle issues of basic doctrine, like the Presbyterian or Calvinist  churches, or not formally organized at all except through educational and social institutions, like the Jewish, radical Protestant, and Muslim groups. All value learning in the ancient sense of the term, as lawyers do. They think naturally in terms of authority, as lawyers do. Indeed they have the same difficulty lawyers do in bringing other disciplines to bear in education–the same fear of teaching something other than “the law”–or, in argument, in making reference to psychology, sociology, or even ethics. And they have the same difficulty lawyers do in deciding what the materials of discourse appropriate for analysis should be. Is what a priest or minister says in preaching or counseling evidence from which understanding can be drawn? Is what is said in arguments before courts, in letters of opinion, in counseling or in negotiation, material for legal study? Or would the inclusion of some or all of these make the practice of legal method or theological method impossible and lead to the loss of the legal or the divine?

In fact, a traveler coming upon the United States would have to wonder at the frequency and vehemence of the assertion that ours is a secular state. He would look round at the temples in the centers of towns, containing men in long robes and disputants arguing about, commenting upon, and organizing a canon of received texts, and then observe that there is no tolerance whatever on the question whether individuals shall be subjected to this regime or required on occasion to attend its ceremonies in person. Of course, what he would find on close observation is not slavery but a high degree of belief and willing obedience and an insistence by many, not at all paradoxical, that their freedom depended upon their belief. He would conclude, I think, that the term “secular” was being used in an odd way, and that the Founding Fathers’ aversion to a certain kind of Christianity inconsistent with human dignity, to the silliness of the eighteenth-century English established church with its condescension, corruption, and entwinement with a hierarchical social order, to the Catholicism of the Medicis, Richelieu, Bloody Mary, and Philip, all of which may be thought to have produced the First Amendment, was not, for all that, a rejection of the theological heritage.

If the charge of foolishness stands, it stands against both lawyer and divine. How can they spend their time doing what they do, and respect themselves for it? The theologian has the claim, which the lawyer does not, that the statements to which he confines his attention or pays particularly close attention were made by men into whose ears God was whispering. But this does not in itself produce meaning or understanding. With the exception of sitting popes or convocations, the texts were written by men separated from the present listener and user of them by even more of a gulf, of time, culture, and language, than separates dead and aged judges from the lawyers who appeal to their statements. Why pay such attention to what a smelly, querulous old man, in goatskins, said three thousand years ago if what he says does not command attention by its intrinsic beauty and insight? Why pay attention to passages that are obscure and dull, in a constitution, a statute, an opinion of the justices, or a book of the Bible? Why write commentaries on them, and commentaries upon commentaries? The very selection of religious texts may be conventional, the result of human decisions, perhaps even bargains, threats and pressure in the legislative sessions of ancient convocations. Where is the profit in all this?

Might we not be generous and self-confident enough to say that what lawyers and divines seem to be doing is not what they are really doing? If theologians are asked why they do what they do, they respond that they are trying to save the world and redeem us. They are seeking knowledge of meaning, purpose, the hidden, the invisible. They do it in the only way they know. No one has ever supplied a better. Lawyers are too shy to give the same response, or too wedded to the bravado of tough-mindedness. But it sometimes seems that in a modern, secular American university the law school is the one place where meaning and purpose are discussed in a systematic way. Science cannot allow the presence of mind. But men, law, and theology, not to speak of literature and art, cannot do without it. And it seems to be true of our existence so far, that the presence of mind, the experience and acknowledgment of authority, and a special method of argument and analysis, are all bound together, with authoritarianism and its reflection in institutional and linguistic form tagging along, as imperfection is always known to dog man, perhaps indeed serving as something of a shield against the blinding demands of the fully authoritative. Both lawyer and theologian argue from texts because otherwise there is nothing particular to talk about. They cannot do without texts any more than the novelist can do without life. But there is always something behind the texts. There is no understanding of them without interpretation, and no interpretation without creation and imagination, reaching behind to what is there for us now.

Joseph Vining, The Authoritative and the Authoritarian 188-92 (1986).

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An important but overlooked case due to be decided tomorrow is First American Financial Corp. v. Edwards. The case is about Article III standing. The Court is reviewing a Ninth Circuit decision that set forth a permissive approach to congressionally created standing. I expect that the Court will view the Ninth Circuit’s approach as too permissive but nevertheless conclude that the plaintiff has standing. If there were five sure votes in the opposite direction, I would have expected to see the decision before now. We shall see soon enough.

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In the first six years of the Roberts Court (OT05-OT10), the United States Conference of Catholic Bishops filed seven amicus curiae briefs. Four dealt with religious liberty  (Gonzales v. O Centro Espirita Beneficiente Uniao de Vegetal, CLS v. Martinez, Arizona School Tuition Organization v. Winn, and Hosanna-Tabor v. EEOC), two addressed abortion (Ayotte v. Planned Parenthood and Gonzales v. Carhart), and one dealt with assisted suicide (Gonzales v. Oregon). The table below compares the Justices by whether they voted for the same party supported by the Bishops’ Conference as amicus curiae.

Justice Name

Agreement with Bishops’ Conference as Percentage of Cases

Agreement with Bishops’ Conference as Fraction of Cases

Chief Justice Roberts (Catholic)

100%

7/7

Justice Scalia (Catholic)

100%

7/7

Justice Thomas (Catholic)

100%

7/7

Justice Alito (Catholic)

100%

4/4

Justice Kennedy (Catholic)

71%

5/7

Justice Stevens

50%

2/4

Justice Souter

50%

2/4

Justice O’Connor

50%

1/2

Justice Ginsburg

43%

3/7

Justice Breyer

43%

3/7

Justice Sotomayor (Catholic)

33%

1/3

Justice Kagan

33%

1/3

These statistics reveal a stark division between the Catholic and the non-Catholic Justices, a division that is likely to shape up more and more as one between the Republican appointees (all Catholic) and the Democratic appointees (one of whom is Catholic). The three cases in which the party supported by the Bishops’ Conference garnered the votes of the non-Catholic Justices were all unanimous decisions (Hosanna-Tabor v. EEOC, Gonzales v. O Centro Espirita Beneficiente Uniao de Vegetal, and Ayotte v. Planned Parenthood). The party supported by the Bishops’ Conference did not attract the votes of a single non-Catholic Justice in any split decision.

As noted in connection with the earlier chart showing the same measure in the Rehnquist Court, the point of this measurement is not to demonstrate influence, but rather to define the universe of cases in which the Bishops have an interest in the outcome and to see how hospitable various Justices have been to the claims advanced by the parties supported by the Bishops’ Conference amicus curiae briefs.

[Cross-posted at CLR Forum.]

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By my count, the United States Conference of Catholic Bishops filed amicus curiae briefs in 22 cases during the Rehnquist Court. (For a spreadsheet showing USCCB amicus briefs and Justices’ votes for OT86-OT10, see here. Please let me know if the spreadsheet contains any errors.) Ten of the briefs dealt with religious liberty (encompassing statutory, Free Exercise, and Establishment Clause cases); six addressed abortion; three were about end-of-life issues; two involved the death penalty; and one addressed associational freedom. The chart below provides for crude comparisons among the Justices, placing them in an array of more or less agreement in their votes for the party (petitioner or respondent) supported by the USCCB’s amicus curiae briefs. Direct comparisons cannot be made among all the Justices due to the changing composition of the Court over this time period.

Justice Name

Agreement with Bishops’ Conference as Percentage of Cases

Agreement with Bishops’ Conference as Fraction of Cases

Justice White

100%

10/10

Justice Scalia (Catholic)

86%

19/22

Justice Kennedy (Catholic)            86%

18/21

Chief Justice Rehnquist

82%

18/22

Justice Thomas (Catholic)

79%

11/14

Justice O’Connor

77%

17/22

Justice Breyer

58%

7/12

Justice Souter

53%

8/15

Justice Brennan (Catholic)

43%

3/7

Justice Ginsburg

42%

5/12

Justice Stevens

36%

8/22

Justice Blackmun

20%

2/10

Justice Marshall

13%

1/8

The point of counting votes in this particular way is not to assess the influence of the Bishops’ Conference. It is highly doubtful that the Conference’s presence or absence as amicus curiae has had any effect on how the Justices voted. The point, instead, is to define the universe of cases in which the Bishops have an interest in the outcome and to see how hospitable various Justices have been to the claims advanced by the parties supported by the Bishops’ Conference amicus curiae briefs.

[Cross-posted at CLR Forum]

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I recently posted to SSRN a draft version of the paper that arose out of my participation in the “Everything But the Merits” symposium on the healthcare litigation held at the University of Richmond School of Law last November (11/11/11). The papers from the symposium will be published in the March 2012 issue of the University of Richmond Law Review.

The title of my paper is The Anti-Injunction Act, Congressional Inactivity, and Pre-Enforcement Challenges to Section 5000A of the Tax Code.

Abstract below.

(more…)

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The Supreme Court heard oral argument last week in First American Financial Corp. v. Edwards. The case calls on the Supreme Court to address the relationship between Article III standing and federal causes of action for statutory damages. The Federalist Society recently posted my post-argument podcast on the case.

I don’t have a confident prediction about how the Supreme Court will decide the case. But with four Justices virtually certain to find standing (Breyer, Ginsburg, Kagan, and Sotomayor), the challenge for petitioners is to gain the votes of all of the remaining five Justices. (In this sense, the case is like the upcoming health care cases, and many others.)

The decision will depend on whether all five Justices that petitioners need are persuaded that the interest protected by the statute is sufficiently distinct from the interests protected by well-established causes of action that do not require the plaintiff to show consequential harm.

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Lyle Denniston reports at SCOTUSBlog that five of the six health care cases have been scheduled for discussion at the Supreme Court’s November 10 conference. Just in time for our November 11 “Everything but the Merits” Conference at UR Law School . . .

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We look forward to welcoming Associate Justice Stephen Breyer to the University of Richmond School of Law tomorrow. Breyer will dedicate UR Law’s moot courtroom in honor of Judge Robert Merhige, whose courageous and steadfast judging are a true tribute to the federal judiciary. Details of Justice Breyer’s visit available here.

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I joined Bill Fitzgerald on this evening’s CBS 6 news at 7 to talk about the upcoming Supreme Court term for a few minutes. I was glad Fitzgerald gave me the chance to mention my colleague at the University of Richmond School of Law, Jack Preis, who will be arguing for the respondent in Minneci v. Pollard in November.

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Regardless of what one thinks about the constitutionality of the individual mandate in the Affordable Care Act, there appears to be an emerging bipartisan consensus that (1) its constitutionality should be resolved by the Supreme Court, and (2) the Supreme Court should act sooner rather than later (i.e., by the end of the October 2011 Term rather than in some later term). For example, the news coverage here in Virginia after yesterday’s rulings dismissing Virginia’s challenge and dismissing Liberty University’s challenge included statements urging Supreme Court review by both Republican Governor Bob McDonnell and Democrat Senator Mark Warner (relevant statements quoted below if you don’t want to click through).

In light of yesterday’s rulings, however, there is a real possibility that the Supreme Court could conclude that it lacks jurisdiction to rule on any of the challenges to the individual mandate. Challenges by the states have been dogged by questions about jurisdiction from the outset. The Fourth Circuit’s answer to some of those questions knocked out Virginia’s case. The 26-state mandate challenge in Florida v. HHS has so far dodged jurisdictional bullets because of the presence in that case of private parties, whose standing to challenge the mandate has generally been accepted by the federal courts. But yesterday’s Fourth Circuit ruling in Liberty University v. Geithner has breathed new life into a private-plaintiff jurisdictional problem that the parties to the mandate challenges had left for dead. Specifically, the Fourth Circuit held that the Tax Anti-Injunction Act prohibited individuals subject to the mandate from bringing a pre-enforcement challenge because such a suit was one to restrain the assessment or collection of a tax.

If there is a jurisdictional problem preventing both the private plaintiffs (who are subject to the individual mandate) and the State plaintiffs (who are not subject to the individual mandate) from having a federal court hear their constitutional challenges, then the Supreme Court cannot get to the merits of the mandate challenges any time soon.

One response may be to hope that the Supreme Court reads the Tax Anti-Injunction Act differently from the Fourth Circuit. That response may rest on wishful thinking. I need to study the relevant precedents more closely than I have previously, but Judge Motz’s opinion strikes me as persuasive. (See also the amicus brief filed by two former Commissioners of the IRS, Mortimer Caplin and Sheldon Cohen.)

In any event, there is no need to take a chance and rest the possibility of a mandate-challenge merits decision on speculation about how the Supreme Court will resolve the legal uncertainty about application of the Tax Anti-Injunction Act. The Act sets forth a statutory limitation that Congress can and should change to allow a pre-enforcement challenge to the individual mandate. Importantly, it appears that Congress can make this change effective immediately and can make clear that the change preserves jurisdiction over private-party challenges to the individual mandate that have already been filed. See Hamdan v. Rumsfeld, 548 U.S. 557, 576 (2006) (“We have in the past ‘applied intervening statutes conferring or ousting jurisdiction, whether or not jurisdiction lay when the underlying conduct occurred or when the suit was filed.’”), quoting Landgraf v. USI Film Products, 511 U.S. 244, 274 (1994); see also Landgraf v. USI Film Products, 511 U.S. 244, 274 (1994) (“[I]n Andrus v. Charlestone Stone Products Co.436 U.S. 604, 607-608, n. 6 (1978), we held that, because a statute passed while the case was pending on appeal had eliminated the amount in controversy requirement for federal question cases, the fact that respondent had failed to allege $10,000 in controversy at the commencement of the action was ‘now of no moment.’”). (My assessment of the legal soundness of a “retroactive” jurisdictional cure is based on just a little bit of digging around thus far, and I have not yet vetted the assessment with others, but the foregoing authorities appear to support it. Critical commentary is, of course, welcome on this or any other aspect of the post.)

In sum: The constitutional merits of the challenges to the individual mandate have divided largely (though not cleanly) along party lines, but there appears to be bipartisan agreement that the merits should be decided soon. A legislative fix to the Tax Anti-Injunction Act can eliminate a jurisdictional barrier that presents a serious possibility of causing extensive delay. Congress can and should get rid of that barrier and clear the way to prompt Supreme Court resolution of the constitutional challenges to the individual mandate.

———-

Statement by Gov. McDonnell (R-VA) on the need for prompt Supreme Court review of the constitutionality of the individual mandate:

“As federal courts across the country continue to come to differing conclusions on the merits of cases arguing the unconstitutionality of the federal health care law, today’s decision further exemplifies why these cases should be expedited to the nation’s highest court.  It is the Supreme Court that will ultimately determine whether the federal mandate on every citizen to purchase health insurance violates the U.S. Constitution.  States and businesses continue to expend time and money and languish in uncertainty as they try to come into compliance with a law that may ultimately be ruled unconstitutional. It is exasperating that the President and the Justice Department oppose a prompt resolution of this case through an expedited appeal.  America needs finality in this case.”

Statement by Sen. Mark Warner (D-VA) on the desirability of prompt Supreme Court review of the constitutionality of the individual mandate:

“This is going to end up getting decided by the Supreme Court and candidly, I hope, the sooner the better. I do believe there are a lot of parts of the health care reform law that make sense. I think there are some parts that need to be corrected.”

[Note: The Warner quotation comes directly from the linked video. The accompanying text misquotes Sen. Warner.]

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