Free Markets, Free People


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). 

Jennifer Rubin’s take:

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?

~McQ

Twitter: @McQandO

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44 Responses to The liberal shock at the collapse of ObamaCare’s “Constitutional” arguments

  • “…its at least an enjoyable bit of schadenfreude going on right now, isn’t it?”
    —————————————————————————————————————————–
    Oh, yeah. And in the Obamabanana Republic, you takes your pleasures where you find them. There were actually several this week, and not a few from the courts. And it IS FUN to watch these Collectivists in full headless chicken mode when reality asserts itself. It is also kind of awful to see just HOW deeply in delusion they actually are. Oh, the humanity…!!!

  • I have not doubt they could get 99% of what they wanted effectively without getting it thrown out. Really just because they can’t require you to do something, doesn’t mean they can’t make it optional but make your life hell through other means if you don’t play along.

    They failed only because they were arrogant and believe they could further erode what is left of the protections in a two for one deal.

    • @jpm100 The ground has shifted appreciably in the intervening time, though. Not gonna happen…

    • @jpm100 I think the SCOTUS might have found a “single payer” plan more agreeable, at least Constitutionally. But there are other risks with “single payer.” For instance, with the government fully involved in your medical decisions, Roe v Wade would be moot, any subsequent administration to make abortion (or any other medical procedure) effectively illegal, by denying payment.

    • @jpm100 I think the SCOTUS might have found a “single payer” plan more agreeable, at least Constitutionally. But there are other risks with “single payer.” For instance, with the government fully involved in your medical decisions, Roe v Wade would be moot, any subsequent administration could make abortion (or any other medical procedure) effectively illegal, by denying payment.

      • @Neo_” make abortion (or any other medical procedure) effectively illegal, by denying payment”—————————–You are making the same error the advocates of Obamacare make; there is no health care without insurance.

  • I think the opponents of Obamacare had better not start cheering until the actual decision is handed down. I would not be surprised to see Kennedy say something like, “There may be Constitutional issues with the law but striking down the law at this time is not the proper course of action.” It would be a pyrrhic victory in the opponents would be right but would lose anyway. At which point they’d be painted as mindless extremists because most of the non-political junkies would take the MSMs word for it and that word would be a glorious victory for the people over special interests. Nevermind that the law itself caters to special interests.

    I’ll still wager that this will turn out badly. Keep in mind, there are 4 left wing justices who simply won’t question unlimited government power on the federal level. The argument was never really about how wrong they are.

    • Oh bullshit. Knocking it down would be an incredible total victory for common sense, the right, libertarians, the population, the economy and everyone except the democrat party.@tkc882

  • “its at least an enjoyable bit of schadenfreude going on right now, isn’t it?”

    I find nothing about this enjoyable short of total repeal of Obamacare. When that happens, and not before, I’ll experience joy.

  • “The bill has to be removed from the books because we don’t have the money,” he said.

    The hidden shortfall between new Obamacare spending and new Obamacare taxes was revealed just after Supreme Court judges grilled the law’s supporters about its compliance with the constitution’s limits on government activity. If the judges don’t strike down the law, Obamacare will force taxpayers find another $17 trillion to pay for Obamacare’s spending. —-The Daily Caller
    ——————————————————————————————————————
    One way or another, this has to be killed. Simple as that.

    • @Ragspierre So our “race to be Greeks” will slow if ObamaCare is overturned ?

      • @Neo_ A necessary, if insufficient, condition. Yes.

        • @Ragspierre zerohedge is reporting that ObamaCare has a true long-term funding gap of a mind-boggling $17 trillion, So in other words, after racking up just shy of $16 trillion in debt, the Democrats in Congress signed the nation up to more than double it.

  • And suddenly judicial activism is bad in the left’s eyes. Sorta like they treat the filibuster. HILARIOUS. And Bush v Gore is an odd choice to wave the bloody shirt around, since the NY Times own recount showed BUSH WOULD HAVE WON ANYWAY.

    I pray this law gets struck down, their tears will be delicious.

    • @The Shark Perhaps mixed in a dry martini…???

    • @The Shark It is worse than that. IIRC the court found that Florida was in the wrong and the vote on that was 7-2. The vote over what to do about it was 5-4. So basically, two justices though things were amiss and wouldn’t do anything about it.

    • @The Shark I don’t see the most likely outcome as activism. If the completely overturn the bill, it would be in complete character with the court. The Congress makes the mess, the Congress cleans up the mess. Trying to hold over pieces would be activism.

      • @Neo_ It would still be labeled activism. There are many on the left that blame Republicans for impeding Obama via filibuster even in the first two years when it was impossible for them to so.

      • @Neo_ @Neo_ It would still be labeled activism. There are many on the left that blame Republicans for impeding Obama via filibuster even in the first two years when it was impossible for them to so.

  • I think this case only goes to show the ignorance of the Justices. For example, Scalia talked as though the ‘Cornhusker Kick-back’ was still relevant.

    • @tadcf Actually, the ‘Cornhusker Kick-back’ was never under consideration so why would this current relevance matter ? … I’m sure it showed up in the briefs though.

    • @tadcf “The ignorance of the justices” and the “Kick-back’ really? that’s all you have Mr. Constitution?

  • I have a different theory … They just couldn’t come up with a defense. There were attempts to make the mandate a penalty then a tax then a penalty then a .. you get the idea .. while the legislation was being considered. It’s like they knew it would fail Constitutional muster. Why else strike the severability clause, that the House had included, in the Senate version ? Meanwhile, the masses of Democrat minions just figured that they must have figured it out. Why else would “the Obama administration expended almost no energy defending it” ? They knew it was “fete de complete.”

    • @Neo_ I’ll still wager that they didn’t spend time defending it because they thought the court would be populist and not concerned with the Constitution. There are ample examples for why they would believe this. To beat a dead horse, there are 4 justices who won’t even question the idea of unlimited government via the commerce clause. They’re almost half way there without lifting a finger.

      • @tkc882 I think the point was to make it fail at some point, then, given the 40 years of Democratic rule that was being put forward at the time, they figured that the masses would demand “single payer.”

      • @tkc882 No wonder the media elites thought the Tea Party was an aberration.

  • By the way….I predict the SCOTUS will uphold Barackycare.

  • I think we should feel some sympathy for the obvious sense of amazement the Collective is feeling. Really, out of compassion, we should mount some effort to salve their gob-smackedness.

    We can call it “Shock And Awwwwww”. For the children.

  • I think we should feel some sympathy for the obvious sense of amazement the Collective is feeling. Really, out of compassion, we should mount some effort to salve their gob-smackedness.

    We can call it “Shock And Awwwwww”. For the children.

  • In the immortal words of Hans Solo: “Great, kid. Don’t get cocky.”

  • “We also have always understood that we wouldn’t win the race for new jobs and businesses, and middle class security if we were just applying some ‘you’re on your own economics,’” Obama said.

    “It’s been tried in our history and it hasn’t worked,” Obama said. “It didn’t work when we tried it in the decade before the Great Depression. It didn’t work when we tried it in the last decade. We just tried this. What they’re peddling has been tried — it did not work!”
    ————————————————————————————————————

    OK, that’s off topic, but…damn. The ROARING TWENTIES…the period which arguably saw the FASTEST rise in American standards of living… Asinine.

  • “Solicitor General Donald Verrilli turned in a stammering, barely coherent performance” … I noticed today that some Progressives thought it prudent to attack the RNC ad which uses portions of that performance to claim that it was “heavily edited.” Is that all they have ?

  • Look at Obama’s Record:

    Cap & Trade
    Card Check
    Auto Bailouts
    Insurance Bailouts
    Fannie & Freddie
    Unemployment Rate
    Gasoline Prices
    Electricity Prices
    Fairness Doctrine
    National Debt
    Deficit Spending
    Illegal Immigration
    Gun Control
    Smart Diplomacy
    Iran Nukes
    War on Terror
    Control of Net
    Control of the House
    Filibuster Proof Senate
    Tax the Rich
    Global Warming
    Abortion on Demand
    Gutting the Military
    Stealing $560B form Medicare
    ObamaCare

    Why are the democrats even running this clown?

    • @Arco, And the wallstreet balilout.

      Shouldn’t be a surprise considering wallstreet pundits control which bailouts to get outraged about.

    • @Arco, And the wallstreet balilout.

      Shouldn’t be a surprise considering wallstreet pundits control which bailouts to get outraged about.

  • Well, it shows that your narrative isn’t persuasive, so you must be deceptive to overcome that.

    Besides, justices are supposed to be unbiased objective arbitratorians, or whatever the word is, and Verrili had to contend with they extremist hyperpartisan Scalia. He was attacked at every turn, when no doubt he expected the justices to be moderate and pragmatic, like Sotomoyer, who gently inquired about the small parts of the arguments that Verrili left out because he was being treated so awful by Scalia. She was using her wise Latina womanly empathy to soothe his distress, so that the proceedings could get back to running smoothly and fairly.

    But of course, Scalia just didn’t let up, and even Kennedy showed his true colors by also joining in on the abuse of Verilli.

    As a political scientist, I understand constitutional issues even  better than I understand the spiritual, non-mathy parts of quantum physics. And I can tell you that the case for Obamacare being constitutional is open-and-shut. Everyone in the faculty lounge agrees on this, as do all the best legal minds in Washington and at the New York Times.

    So watch and learn, because either the law will be upheld in spite of such boorish Neanderthal behavior by extremist conservative justices, or the propaganda machine of the right will eke out a narrow victory that will cause widespread backlash. Yep, if Obamacare is overturned, expect Obama to be easily re-elected as pragmatic moderate leftists unify to let him come back and get some better Supreme Court justices in place to replace those spiteful people put there by the odious Bush presidencies. It will probably also cause a lot of those extremist tea party types who somehow defied all logic and common sense to win in 2010 to lose this time, as we all see just what electing such extremely extreme extremists does to the country.

    And don’t even start about how my predictions are unreliable because I got 2010 so wrong. I didn’t. Yes, yes, I know I predicted that the Democrats would hold the House only a couple of weeks before the election, but just before the election I told the neighbor’s dog that I thought they would be lucky to do so, so that completely takes away any need to refer to the earlier predictions. And the fact that I stayed away for two months out of shame and apologized for getting it wrong when I came back is irrelevant. I was just being nice. So that you guys would maybe treat me as an equal and engage in real argument instead of insulting me all the time.

    Yes, I really want you sterile, in-bred, Goebbels-like righties to treat me with respect, and it’s really indicative of your own mean tendencies when you insult me instead of going back and forth a thousand times, with me hand-waving away all your arguments and providing no links or anything. Yes, that’s what we should be doing, not because I need it desperately to bolster my self-worth after realizing I’m a mediocre teacher at a mediocre college who wrote a mediocre book that no one reads. Nope, I’m smart and darn it, people like me. You should too. {giggle}

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