The liberal shock at the collapse of ObamaCare’s “Constitutional” arguments
I think it is felt, whether true or not at this point since we really don’t know, that ObamaCare is in real trouble. You can see it everywhere with the NY Time opining that overturning it would be judicial activism and the various and sundry liberal blogs bleating out the same refrain. They’re shocked. They’re stunned. They’ve decided they have to somehow characterize this as they tried to do Bush v. Gore, as a form of judicial malfeasance.
But as Don Surber points out, the arguments against the law aren’t new even if the left tried to wave them off and pretend they were weak.
And so, as John Podhoretz argues:
I diagnose the shock at the powerful Constitutional arguments advanced against Obama’s health-care plan as another example of the self-defeating parochialism of American liberals, who are continually surprised that conservative ideas and conservative arguments are formidable and can only be bested if they are taken seriously: “the strength of the conservative arguments only came as a surprise to [Jeffrey] Toobin, [Linda] Greenhouse and others because they evidently spent two years putting their fingers in their ears and singing, ‘La la la, I’m not listening’ whenever the conservative argument was being advanced.”
Its really not “conservative” ideas we’re talking about here (honestly, they’ve gone along with plenty of laws which shred the Constitution), but instead fundamental ideals on which the country was founded. They were certainly advanced by conservatives in this case. They are powerful ideas and I agree with Podhoretz, that liberals just waved them off. They could not conceive of a law filled to the brim with good intentions (no matter how abysmal its execution or horrendous its cost) could be found as anything but Constitutional.
I can only suggest that their earlier takeover of the public education system left them in a civics class knowledge deficit about what the Constitutions says. Must have happened about the time they decided schools had the job of indoctrinating youth about sex education and the like.
So as the law’s date with SCOTUS approached the left was supremely confident:
Twenty-six states and the National Federation of Independent Business challenged the constitutionality of President Obama’s signature piece of domestic legislation, the Patient Protection and Affordable Care Act. The sophistries on which the Obamaphiles relied to defend their health care power grab were perhaps best summarized by Slate legal columnist Dahlia Lithwick: “That the law is constitutional is best illustrated by the fact that — until recently — the Obama administration expended almost no energy defending it.”
That lack of energy came back to haunt them Tuesday when Solicitor General Donald Verrilli turned in a stammering, barely coherent performance worthy of the public defender in My Cousin Vinny as he struggled to articulate a constitutional defense of Obamacare. The arguments went only slight better for Verrilli yesterday. The administration seemed ill prepared to answer even basic, predictable questions about the law’s constitutional basis.
Absolutely correct. Verrilli was awful and that is acknowledged by both sides (it was like he was arguing for something he just really didn’t believe in at times).
It’s not surprising that liberals, most of whom have not read or shown interest in the arguments of the challengers, were stunned to learn that there really is a constitutional difference between taxing and regulating and between inducing one into commerce and regulating commerce that already exists. It is this failure to understand, let alone imagine that constitutional text has meaning and there are actual limitations on federal power, that explains the stunned reaction of the liberal elite. Like puppies smacked on the nose by a rolled-up copy of the Constitution, they are flabbergasted.
Greg Sargent seems to understand the point:
But there’s another explanation for the botched prediction: Simply put, legal observers of all stripes, and Obamacare’s proponents, including those in the administration, badly misjudged, and were too overconfident about, the tone, attitude and approach that the court’s conservative bloc, particularly Justice Scalia, would take towards the administration’s arguments.
But as usual, tries to make it personal and political instead of acknowledging the power of the arguments against the law:
All of which is to say that the law’s proponents were badly caught off guard by the depth of the conservative bloc’s apparent hostility towards the law and its willingness to embrace the hard right’s arguments against its constitutionality. They didn’t anticipate that this could shape up as an ideological death struggle over the heart and soul of the Obama presidency, which, as E.J. Dionne notes today, is exactly what it has become.
Or in other words, sticking up for the foundational principles underlying the US Constitution is now a “hard right” thing. Any possibility they’ll continue to be “shocked” in the future?
They will if they repeat the “arrogant, dismissive and ill-prepared” tactic in the future.
Again, we don’t know how this will actually end and have to be careful about reading too much into the oral arguments, but that said it is hard not to note how poorly those arguments went for the administration and at least realize that after arrogantly ramming the bill through the Democratic controlled Congress and waving it around triumphantly in the face of those who opposed it, its at least an enjoyable bit of schadenfreude going on right now, isn’t it?