Of course, everyone with the IQ of an onion knows it’s coming. Harry Reid and Barack Obama, who last filibustered a SCOTUS nominee, insist that the GOP forget all of that and dance to their tune – i.e. do it and do it now.
But, as Charles Lipson points out, even onion heads know that the following is reality:
No. 1: No nominee for the high court can get through the Senate before the election. No one.
No. 2: President Obama and the Democratic candidates for president know that. So do Republicans. All God’s children know it.
No. 3: Since the nominee will not be approved, Obama will use the opportunity to advance other goals. He will propose someone who burnishes his own progressive credentials and shows why control of the court depends on the November election. Putting Senate Republicans in an awkward position would be a nice bonus. But the target is November.
Exactly. It is all about political theater now and that is going to be what we are going see from now until November. Lipson has a couple of other points, but it is point 7 that sums it up:
No. 7: All the rest is political theater, full of sound and fury, signifying nothing.
This is now all about political gain in November and Bollywood will have nothing on the actors in this little play when it is finally time to cast those votes.
I should put a caveat when speaking of people with the IQ of an onion understanding all of this. That doesn’t apply to the GOP Senate which is already fraying at the edges. Apparently such a lofty IQ is not a prerequisite of duty as a Republican in the Senate and because of that, it wouldn’t at all surprise me if they don’t cave and play the Democrat’s game.
Because, you know, if they do this time, maybe the media will like them.
It would have been nice if the Democrats could have at least let the body get cool before making political demands and unleashing the usual hate, but then that is the state of politics in this country.
Frankly, I mourn Antonin Scalia as one of the few important bastions against the “living Constitution”, defined constantly on the fly as whatever the left wants it to be. Lately it’s been all about granting liberties willy nilly (which, the smart person would realize, would mean they can “ungrant” them as well as those that you thought were inalienable, such as your 2nd Amendment right). That was one of Scalia’s greatest fears and why he stood athwart the path that led to that.
And, of course the hate – the woman who tweeted that she hoped, as he’s always want to do, that Clarence Thomas followed Scalia’s example this time.
And the politics – the conveniently amnesiac Harry Reid and Chuck Schumer demanding that the GOP accept and approve the Obama nominee immediately – whoever that might be. And don’t pay any attention to what they’ve said or done in the past, it is the duty of the GOP to play their game.
Of course, if the GOP has any desire to remain a mainstream party, they better grow a brain, spine and develop some guts and follow Nancy Regan’s advice – “just say no”. Obama’s had 8 years to work his tragic magic on this country, we don’t need to be giving him a lifetime appointment to continue the work.
Finally, the possible silver lining – do Trump supporters really want him naming a SCOTUS justice? Or Hillary, if Trump in the GOP nominee?
Explaining the Trump phenomenon – I think this is pretty close:
“American presidential elections usually amount to a series of overcorrections: Clinton begat Bush, who produced Obama, whose lax border policies fueled the rise of Trump. In the case of Trump, though, the GOP shares the blame, and not just because his fellow Republicans misdirected their ad buys or waited so long to criticize him. Trump is in part a reaction to the intellectual corruption of the Republican Party. That ought to be obvious to his critics, yet somehow it isn’t.”
The GOP more than shares the blame, they are the direct reason a person like Trump has traction. Gutless, spineless and afraid to do what they were elected to do election after election has finally turned on them. They’ve been warned for a while. The rise of the Teaparty should have given them a clue, but it was business as usual for establishment GOP types. This last Congressional election and their ineffectiveness while in the majority appears to have been the last straw. Trump is their creation, and they still don’t understand why.
Speaking of Bernie and why his socialism is attractive to so many, I think this is pretty close as well:
“In the same way that a Ponzi scheme or chain letter initially succeeds but eventually collapses, socialism may show early signs of success. But any accomplishments quickly fade as the fundamental deficiencies of central planning emerge. It is the initial illusion of success that gives government intervention its pernicious, seductive appeal. In the long run, socialism has always proven to be a formula for tyranny and misery.”
We’ve actually seen “the long run” in the late and unlamented Soviet Union. We have examples with us today via North Korea where famine and poverty stalk the population constantly, Cuba, where they live in the ’50s and work for $20 a month and Venezuela, where it failed utterly and the population is now trying to dig out from under the ruin. But Bernie supporters, apparently, think his version will work.
In the “thank the good Lord” department, this:
President Obama is not interested in sitting on the Supreme Court once he leaves office, White House press secretary Josh Earnest said Thursday.
If you think he’s been a disaster as a president, imagine the damage he could do on the Supreme Court.
Interesting. When given a choice:
The number of dues-paying workers within the state’s labor groups has fallen steadily since GOP Gov. Scott Walker signed his signature legislation, 2011’s Act 10, which repealed most collective bargaining for most public workers. But new federal statistics show that trend intensified in 2015 after Walker and GOP lawmakers followed up on Act 10 by approving so-called right-to-work legislation last spring….
In 2015, 8.3% of Wisconsin workers, or 223,000 in all, were members of unions. That was down sharply from the 306,000 people, or 11.7% of the state’s workforce, who belonged to unions in 2014….
Labor unions are another thing the left isn’t “pro-choice” about.
ICYMI, Al Gore’s apocalyptic predictions expired recently. Yup, Manhattan isn’t submerged in water (unless you want to count the latest footage in frozen precipitation) as he had predicted 10 years ago. David French does a riff on the doomsayers:
Gore’s prediction fits right in with the rest of his comrades in the wild-eyed environmentalist movement. There’s a veritable online cottage industry cataloguing hysterical, failed predictions of environmentalist catastrophe. Over at the American Enterprise Institute, Mark Perry keeps his list of “18 spectacularly wrong apocalyptic predictions” made around the original Earth Day in 1970. Robert Tracinski at The Federalist has a nice list of “Seven big failed environmentalist predictions.” The Daily Caller’s “25 years of predicting the global warming ‘tipping point’” makes for amusing reading, including one declaration that we had mere “hours to act” to “avert a slow-motion tsunami.”
Indeed. But the fact of the epic failure of their predictions, they will simply reinvent themselves as they always have. Here’s French’s chaser:
Can we ignore them yet? Apparently not. Being a climate hysteric means never having to say you’re sorry. Simply change the cataclysm — Overpopulation! No, global cooling! No, global warming! No, climate change! — push the apocalypse back just a few more years, and you’re in business, big business.
Dead on. Anyone remember who was one of the first investors in the carbon trading scam?
It appears that deploying other Clintons just isn’t quite working out as Hillary hoped. Bill has been playing to small rooms and Chelsea, well, let’s just say she hasn’t much drawing power, or so it appears:
Chelsea Clinton hosted her highly-hyped Soul Cycle fundraiser for her mother in New York City on Wednesday afternoon.
The $2,700-a-head event, which offered just 60 seats at the popular cycling studio’s Tribeca location and promised guests a photo with Chelsea, was expected to sell out quick while raising some easy money for the Hillary Clinton campaign but was ultimately a flop.
Apparently they fire sold some of the seats at $50 each at the end to fill more and ended up with less than half the bikes filled. This should have been a slam dunk in NYC if Hillary has the pull most think she does in the city. Or else it’s Chelsea. Or both …
The Trumpless debate? Apparently about the same viewership as the previous debate with Trump included. Make what you will of that, but regardless, Trump gave his opponents an open field last night and, at least as I view it, came off as a petty, spoiled brat throwing a tantrum. Like I said, my view.
Have a great weekend!
More outrage smoke from Ezekiel Emanuel on the Supreme Court women’s contraception ruling over at Politico lamenting unintended consequences.
Someone should lament the unintended consequences of the ACA, assuming they are unintended.
Blah blah, no personal choice, your company’s religious belief trumps yours, what a crime that companies have provided the majority of American’s health insurance since World War II when we could have had a super good program like ObamaCare is offering right now. Don’t you just wish those evil Supreme Court justices had gone the way of progressive liberal goodness and niceness and made up law like Justice Roberts did when he magiced a penalty, unlawful, into a tax, lawful, instead of reading this new rule to see if it clashed with laws already on the books?
The ACA was crated to, uh, prevent you from being locked into your job you see. Odd, I personally changed jobs, as a father of a family, which HAD pre-existing conditions, of a serious nature, some 9 times over the course of the last 35 years BEFORE the ACA, and oddly must have missed the handcuffs that kept me locked in my job(s). The ACA is a cure all, it will prevent job lock, it will raise wages AND it will keep health care inflation under control. Yeah, course it will. It would have helped win the War on women, but not now because Sharia law!
Here’s a snip….
‘To minimize disruption and reassure most Americans, the Affordable Care Act kept employer-sponsored health insurance intact. The ACA includes an employer mandate enforced by a $2,000 per worker penalty: Employers with more than 50 full-time workers who do not provide insurance that satisfies a minimum requirement must pay.
The minimum requirement includes preventive services from vaccinations to cancer screening tests to cholesterol screening. It also includes contraception. The Hobby Lobby case basically says employers need not cover contraception in the health insurance it provides” (my emphasis)
So well crafted was this law, that women’s contraceptive health coverage wasn’t even included in it. That would be the rule that the evil religious folks NOW can use to control women’s uterus’s! I mean that would be the rule that means the evil religious folks have to pay for birth control.
The ACA passed into law on March 23, 2010 – there was NO provision in the original law for birth control – here’s a FAQ from the National Women’s Law Center web site that explains it was added on August 1, 2011. Added, not voted on, not sent to the House, Senate, President. Just added.
“The health care law (the Affordable Care Act) requires certain preventive health services and screenings to be covered in all new health insurance plans without cost sharing. This means that, for the preventive health care services included, you will not be charged a co-payment for the services, and the costs of the services will not be applied to your deductible. The list of covered preventive services is extensive and includes services such as mammograms, pap-smears, and smoking cessation supports….(I snipped a link ‘for more info)
On August 1, 2011, the list was expanded to include birth control alongside other women’s preventive services, such as an annual well-woman visit.”
Maybe Nancy Pelosi should have read it first to see if that was in there. Or maybe it was, we just couldn’t see it, yet.
That was, not so soon, taken care of by Kathleen Sebelius and the good folks down at US Department of Health and Human Service, a year later. Really, you’d have thought they’d have done it sooner, but maybe they finally read the ACA.
Free contraception for women. They couldn’t possibly have left that out, that would be like a war on women or something, and not a Bush or Republican in sight to take the blame! It’s important, right? It couldn’t have been overlooked. It’s important enough that the government just tried to use it to tell people with objecting religious convictions (dirrrrrrrrty Christians) ….they were going to have to provide contraception coverage.
And now because of the Jihadi Sharia loving 5 maniacs on the Supreme Court, women can’t have contraception, or contraception of their choice, or health care, or something!!!!!!!!
Well, not quite, in this case, specifically, the government mandated Hobby Lobby had to pay for methods they considered to be tantamount to ”abortion’ coverage. Hobby Lobby actually agreed to cover some other forms of contraception, a pretty fair number, in fact, 16.
Robin Abcarian at the LA Times weighed in on the decision too. According to Robin the Supremes should have looked at what the drugs and devices did and made their decision on that basis. So long as when it was done the 5 male Justices that didn’t know for sure what 1 male and 3 female Justices didn’t know for sure, that is, when life begins, listened only to the 3 females because, uh, they have a uterus and ovaries.
Seems to me they probably did consider what those drugs and devices did as it really figures in their determination it was in fact a religious argument, or an argument of ‘faith’ if you will.
Here’s a summary from The Atlantic of what Hobby Lobby is thinking… and that’s where the argument gets religious for them. Hobby Lobby views life as beginning at the point the egg is fertilized by the sperm. The counter argument, and the Atlantic linked an authority appeal of ‘Most Doctors’ which turns out to be the Federal Government and a reference to the American Congress of OBGYNs, is that it begins at implantation (and we all know from Roe v. Wade that what implants is a puppy, or goldfish, or protoblob, until 9 months later a miracle occurs and a human is born.) The Atlantic summary is okay, but to me they torpedo themselves right around the straights of IUD diagram because they rely on their experts to make a decision of faith for Hobby Lobby, and decide that Hobby Lobby’s faith is politely, crap.
Once again, note if the egg hasn’t implanted (yet), the now hysterical side of the argument has decided it’s not a pregnancy. The IUDs prevent implantation and the pills in question prevent fertilization rather than stopping ovulation. And that’s where faith/belief comes in because we didn’t get the instruction book from the Deity of your choice. If you don’t have a deity, I’m not sure what you’re going to decide, but at some point LIFE begins and the two sides do NOT agree definitively when that is.
The 5 mad male Mullah’s on the Supreme Court decided to err on the side of Hobby Lobby’s beliefs. Owing to the Religious Freedom Restoration act. A law, already, on, the, books. Which the new ‘rule’ seemed to contradict in the 4 instances specified.
More from Zeke:
“The closely held corporation limit is no limit at all. It turns out that more than half of U.S. employees work for closely held corporations. While many are small, many, like Hobby Lobby, are large. And it gives an incentive for more employers to become closely held corporations.”
It doesn’t stop contraceptives from being covered, it’s probably not going to lead to a massive rush by companies to drop contraceptive coverage, it’s not some fundamentalist plot to control women and (re)gain control over their reproductive systems.
It was a loss for the progressives though, because they made such a freaking big deal out of making sure the crazy faith holders at Hobby Lobby did as they were damn well told. Hence the lamentations of their…uh, various genders.
As a final note, I can’t help thinking it is interesting to note that while 4 methods of “contraception” are no longer available to female Hobby Lobby employees, no one of these outraged folks is particularly concerned that the Democrats left such an important item out of the original encyclopedic bill or that an Executive branch agency came along and created an entire entitlement completely out of whole cloth a year after “the law” was passed.
You’d almost think they had some plan to make sure they were going to remain permanently in control of those agencies, otherwise that sort of thing would be dangerous if the crazy faith holders ever got back into power and turned the tables on them.
I’ve read all the pundits and listened to all the talking head elite tell us how incredibly nuanced and subtle the Chief Justice was by approving the law as a tax. In fact one described him as “"a chess master, a statesman, a Burkean minimalist, a battle-loser but war-winner, a Daniel Webster for our times."
I say “BS”. He sold out. He ended up being more worried about the perception of the court and his legacy than upholding the Constitution of the United States. And I’m not the only one who feels that way. The Wall Street Journal also throws a punch or two at Roberts:
His ruling, with its multiple contradictions and inconsistencies, reads if it were written by someone affronted by the government’s core constitutional claims but who wanted to uphold the law anyway to avoid political blowback and thus found a pretext for doing so in the taxing power.
If this understanding is correct, then Chief Justice Roberts behaved like a politician, which is more corrosive to the rule of law and the Court’s legitimacy than any abuse it would have taken from a ruling that President Obama disliked. The irony is that the Chief Justice’s cheering section is praising his political skills, not his reasoning. Judges are not supposed to invent political compromises.
"It is not our job," the Chief Justice writes, "to protect the people from the consequences of their political choices." But the Court’s most important role is to protect liberty when the political branches exceed the Constitution’s bounds, not to bless their excesses in the interests of political or personal expediency or both. On one of the most consequential cases he will ever hear, Chief Justice Roberts failed this most basic responsibility.
Precisely. And Roberts caved. From the lecture the court got from Obama during a State of the Union address till now, he became a cautious old lady more concerned with his reputation in perpetuity than serving the people and the Constitution he swore to uphold.
That, as the WSJ says, is “more corrosive to the rule of law and the Court’s legitimacy” than anything he could have done. He didn’t have the spine to take the heat from a controversial but proper decision so he took the easy way out. He threw away his integrity for popularity and peace. A judicial Chamberlin if you will.
Jacob Sullum at Reason gives you the rest of the bad news:
The Journal notes that the tax power endorsed by Roberts is no less sweeping and dangerous to liberty than the Commerce Clause argument he rejected. "From now on," it says, "Congress can simply regulate interstate commerce by imposing ‘taxes’ whenever someone does or does not do something contrary to its desires." Worse, as I pointed out last week, the tax trick allows Congress to dispense with claims about interstate commerce altogether. As long as a mandate is disguised as a tax (and as long as it does not violate explicit limits on federal power such as those listed in the Bill of Rights), "because we said so" is reason enough.
Mandates “disguised as a tax” give Congress almost limitless power to control your life. That is the power Roberts handed our elected officials.
Oh, but the apologists say, that will never happen. They’d never abuse that power. Yeah, a little lesson in history. When the Constitutional amendment for the income tax was being debated some wanted to put a 2% limit on it. “Don’t do that,” the others said, “it will encourage Congress to immediately go that high.”
And here we are.
The Congress no longer need wrestle with intrusion in your life via the Commerce clause. Justice Roberts just gave them an infinitely easier route that doesn’t require a Constitutional check. He effectively removed the Court from its role in protecting you from increasing government intrusion.
And clever politicians will find a way to use that power he handed them when necessary. Don’t you ever doubt that.
As for Roberts. I have little or no use for a man who sits on the bench of the Supreme Court and puts politics in front of the Constitution he’s sworn to uphold.
George Will has a column out today declaring that conservatism won “a substantial victory” yesterday:
Conservatives distraught about the survival of the individual mandate are missing the considerable consolation prize they won when the Supreme Court rejected a constitutional rationale for the mandate — Congress’s rationale — that was pregnant with rampant statism.
The case challenged the court to fashion a judicially administrable principle that limits Congress’s power to act on the mere pretense of regulating interstate commerce. At least Roberts got the court to embrace emphatic language rejecting the Commerce Clause rationale for penalizing the inactivity of not buying insurance:
“The power to regulate commerce presupposes the existence of commercial activity to be regulated. . . . The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce. Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. . . . Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation, and — under the government’s theory — empower Congress to make those decisions for him.”
If the mandate had been upheld under the Commerce Clause, the Supreme Court would have decisively construed this clause so permissively as to give Congress an essentially unlimited police power — the power to mandate, proscribe and regulate behavior for whatever Congress deems a public benefit. Instead, the court rejected the Obama administration’s Commerce Clause doctrine. The court remains clearly committed to this previous holding: “Under our written Constitution . . . the limitation of congressional authority is not solely a matter of legislative grace.”
The court held that the mandate is constitutional only because Congress could have identified its enforcement penalty as a tax. The court thereby guaranteed that the argument ignited by the mandate will continue as the principal fault line in our polity.
I’m sorry, I’m just not feeling it. What part of the “tax” isn’t “pregnant with rampant statism”? Why did John Roberts feel compelled to save the mandate by helping the administration identify it as a tax?
And more importantly, since when did taxation go from simply being a means for funding the functions of government to a means of incentivizing/controlling behavior? To me that’s what approving the mandate as a tax has sanctioned. We make fun of the nannies who want to control what we do, eat, say, etc. This precedent just sanctioned a method of doing so. It says it is okay to coerce desired behavior through taxation.
Perhaps, as Will opines, it will limit the Commerce clause which is already insanely overstretched in application. Maybe it finally does draw a much brighter line around the clause, at least marginally.
However, the downside is worse than any upside. The ruling essentially sanctioned the state’s requirement to purchase health insurance and gave it the okay to “tax” those who don’t comply. I’m sorry, you may want to play the word game with them and call it a tax, but it is clearly identifiable to me as a penalty.
That’s just wrong.
One of the more interesting ironies is that within the same ruling the Court found that the Federal government was being coercive toward the states by requiring they comply with the new Medicaid mandates or lose their current Medicaid funding.
How is that anymore coercive than the “tax” required to be paid if an individual decides not to purchase health care insurance?
Taxation as a mechanism of control and/or enforcement of desired behavior is as coercive as the part on Medicaid which was struck down by the court. At least in my opinion.
There may indeed be a silver lining in the ruling as Will outlines. But a “substantial victory”? It sounds like David Axlerod trying to spin the Wisconsin results as a huge win for Obama and trouble for Romney, doesn’t it? If this was a “substantial victory”, then so was Pearl Harbor.
Apparently the entire law has been upheld with Chief Justice John Roberts joining the liberal side of the court to declare the individual mandate survives as a tax. The political elite have once again wiped their collective rear ends with the Constitution.
You are now all destined to be required by law to purchase (via “tax”) whatever in the hell Congress decides it wants you to purchase. And this will, of course, translate into doing whatever Congress decides you need to do (again, I’m sure the clever totalitarians among us will find some way to accomplish those things through “taxation”).
Welcome to the new “America”.
Wait … didn’t we once revolt over unfair taxation?
UPDATE: Apparently CNN is reporting the mandate was struck down. SCOTUS blog says:
The court reinforces that individuals can simply refuse to pay the tax and not comply with the mandate.
CNN just corrected their previous release and said the entire ACA had been upheld (and they wonder why they’re losing viewers?).
The Court holds that the mandate violates the Commerce Clause, but that doesn’t matter b/c there are five votes for the mandate to be constitutional under the taxing power.
In Plain English: The Affordable Care Act, including its individual mandate that virtually all Americans buy health insurance, is constitutional. There were not five votes to uphold it on the ground that Congress could use its power to regulate commerce between the states to require everyone to buy health insurance. However, five Justices agreed that the penalty that someone must pay if he refuses to buy insurance is a kind of tax that Congress can impose using its taxing power. That is all that matters. Because the mandate survives, the Court did not need to decide what other parts of the statute were constitutional, except for a provision that required states to comply with new eligibility requirements for Medicaid or risk losing their funding. On that question, the Court held that the provision is constitutional as long as states would only lose new funds if they didn’t comply with the new requirements, rather than all of their funding.
Just marvelous. Thanks Justice Roberts. </sarc>
SCOTUS opinion/decision here.
Me, I’m taking the rest of the day off. As an old libertarian I mourn for the freedom we just lost. It is another reason, in a long, long line of them, to clean that cesspool of Washington DC out. And, frankly, perhaps it is time we contemplated bolder measures.
Sorry … but this ruling all but guarantees the twilight of a great experiment. It lasted over 200 years, but it is definitely in its nadir now. This only accelerates the decline. We’ve just put ourselves in the same place as Europe, and we see who gloriously that’s going, don’t we?
Wow, just wow.
Just some random thoughts as we await the Supreme Court ruling on healthcare.
I can’t help thinking the title is precisely what is on the line today. Given the implications of upholding that odious law, I can’t help but feel this is indeed the most momentous decision in my lifetime. Oh, certainly, there have been many other important ones, to be sure, but never one that had the potential, at least as I see it, to give government carte blanc to expand and intrude into my life.
I’ve said it often, liberty (freedom) equals choice. Today’s decision will either uphold our ability to make individual choices (to include not having health insurance for whatever reason) in our lives or limit them – severely.
You know, when I was a kid I had to read the Constitution. I didn’t find it either difficult to read or understand. Yet since then, we’ve seen veritable oceans of words telling us what we read and the common understanding of what those words in the Constitution mean isn’t what they really mean. And the way the Constitution is treated by our politicians is simply shameful (and that applies to both sides).
It has also been ironic to me to see the “living Constitution” crowd whine and complain that the SCOTUS may be overturning “years of precedent”. That’s a true traditionalist argument. In fact, though, if it does strike down the mandate, then it will be a traditionalist ruling.
I’m not sure how the left will reconcile that without their heads exploding.
I’m also convinced that even if overturned, either partially or completely, this is only the beginning of the fight to have government take over health care. Next step? Single payer.
In fact, there are probably many on the left who actually hope this monstrosity will be overturned so they can proceed to what has always been the extreme left’s dream – single payer, government run health care. And, of course, Medicare provides precedence for that, doesn’t it.
So as we sit here waiting and hoping, it might behoove us to consider that even if the decision goes as we hope it will go, spiking the ball will be premature.
A ruling against the law won’t signal the end of this fight. I’m afraid it will only signal the end of round 1 of a multi-round championship fight.
Whatever the ruling, I worry for our country.
File this under speculation, because that’s essentially what it is (but you have to do a little of it every now and then, and besides, it’s a sport when talking about pending SCOTUS decisions), but still speculation with some possibility of being accurate.
It seems, according to Avik Roy, that June 25th is most likely the day we will learn the fate of ObamaCare from the Supreme Court.
“Setting aside the ACA cases,” he notes, “the Court essentially has twelve other decisions to hand down.” In addition, “in recent Terms, the Court has handed down opinions on Wednesdays or Thursdays of both of the last two weeks of the Term, in addition to the regularly scheduled Mondays. And the Court has already announced that it will issue one or more opinions next Thursday, June 21.” Worth also noting, he writes, “the Court almost never issues more than four or five opinions on the same day.”
Hence, if the court issues four or five opinions each on Monday, June 18 and Thursday, June 21, that would leave between two and four opinions for the last scheduled day for reading opinions: Monday, June 25.
And how will the ruling go? Well, Ruth Bader Ginsberg has said previously that there are some “sharp divides” among the justices.
But, again according too Roy, Ginsberg may have also hinted she’s on the “dissenting” side, meaning that she’s on the minority side of the decision. The basis for that claim?
In her ACS remarks, Ginsburg suggested that she might be on the dissenting side of the case. “I have spoken on more than one occasion about the utility of dissenting opinions, noting in particular that they can reach audiences outside the court and can propel legislative or executive change,” said Ginsburg, in the context of a 2007 pay discrimination case.
Or that may signal nothing at all (she may simply have been speaking academically about “dissenting opinions”). The key, if we accept the premise that she’s on the dissenting side of this particular ruling is what that means.
Roy mentions that the divide may not be associated with killing the mandate – there may be more than 5-4 agreement on that subject (he suggests it is almost a given that Kennedy will join the conservatives on the court to kill the mandate). The divide may be with what to do with the law if the mandate is killed:
The key question is: how much of the rest of the law should be struck down along with it?
Ginsburg wittily put it this way: “If the individual mandate, requiring the purchase of insurance or the payment of a penalty, if that is unconstitutional, must the entire act fall? Or, may the mandate be chopped, like a head of broccoli, from the rest of the act?”
My understanding—again, from third-hand sources—is that this question of severability is the subject of intense debate among the justices, even now. It’s entirely unclear whether the Court will strike down the mandate and two related provisions—what I’ve called the “strike three” scenario; or take down the entirety of Title I, where the law’s restructuring of the private insurance market resides; or overturn the whole law. Indeed, it is probable that the Court has not yet decided how it will rule on this question.
As far as I’m concerned, I’d like to see the entire law struck down. However, I’m now wondering whether or not that will play out.
Roy also mentions Antonin Scalia’s recent book and asserts that it hints that Scalia is on the side of dumping the mandate and the law in its entirety. He wonders if Scalia, given his writing about the scale of the Commerce Clauses expansion and Scalia’s unhappiness with that, has chosen ObamaCare as the case he’s chosen for judicial pushback.
So, again, based on this speculation, one might surmise that the court has found the individual mandate to be unconstitutional, but is struggling with how much or how little of the law to strike down.
Of course, the individual mandate is the heart and soul of the bill. It is the payment mechanism that undergirds the entire
ponzi scheme program. No mandate, no money, no expanded risk pool, not much of anything if it goes.
So perhaps even if the court leaves much of ObamaCare standing, it will end up being a Pyrrhic victory for its supporters as the law will then be unsustainable as it exists (minus the mandate).
I guess we’ll see on or around the 25th.
When the oral arguments were being made for ObamaCare, I made the observation that Solicitor General Donald Verrilli sounded like a man trying to defend arguments he really didn’t believe in. Add to that the fact that they were weak arguments and you have a man facing the Supreme Court who sounded like he was in over his head.
Verrilli had another such day yesterday, as John Hinderaker at Powerline notes. This time the court was hearing arguments about the Arizona immigration law. Hinderaker reviewed the transcript of Verilli’s arguments and concluded, “the problem was not with Verrilli but rather with the quality of the arguments that he was required to make by his client, the Obama administration.”
JUSTICE KENNEDY: So you’re saying the government has a legitimate interest in not enforcing its laws?
GENERAL VERRILLI: No. We have a legitimate interest in enforcing the law, of course, but it needs to be — but these — this Court has said over and over again, has recognized that the — the balance of interest that has to be achieved in enforcing the — the immigration laws is exceedingly delicate and complex, and it involves consideration of foreign relations, it involves humanitarian concerns, and it also involves public order and public –
Hinderaker calls the response “incoherent”. Scalia follows up:
JUSTICE SCALIA: So we have to — we have to enforce our laws in a manner that will please Mexico. Is that what you’re saying?
GENERAL VERRILLI: No, Your Honor, but what — no, Your Honor, I’m not saying that –
JUSTICE SCALIA: Sounded like what you were saying.
That’s pretty pointed. That also indicates that the argument isn’t resonating with the court. Hinderaker summarizes the argument that Verrilli is being forced to defend:
Of course, what is going on here is that the Obama administration doesn’t want to enforce the immigration laws that Congress has enacted. The essence of its position in the Arizona case is that the federal government has the right to decide not to enforce the law, and if it so decides, then no state has the power, under the Constitution, to do anything that would tend to enforce those federal laws. So if the Obama administration decides that it will gain political advantage by ignoring federal laws against illegal immigration, states like Arizona just have to take the consequences without complaining.
That understanding is what is driving questions like those from Scalia and Kennedy. It is indeed an indefensible position, especially in a nation that claims to be a nation of laws, not men.
How indefensible? Even Justice Sotomayor isn’t buying:
JUSTICE SOTOMAYOR: Can I get to a different question? I think even I or someone else cut you off when you said there were three reasons why — 2(B). Putting aside your argument that this — that a systematic cooperation is wrong — you can see it’s not selling very well — why don’t you try to come up with something else? Because I, frankly — as the chief has said to you, it’s not that it’s forcing you to change your enforcement priorities. You don’t have to take the person into custody. So what’s left of your argument?
Of course this sets up the inevitable “shock” on the left. I’m sure they thought that, as in the case of ObamaCare, their arguments were Constitutionally ironclad.
While Verrilli may not be the smoothest SG we’ve ever had, he’s been consistently thrust before the court with abysmal arguments in which he is forced to defend laws or actions which are at best questionably constitutional. At best.
When even a Obama appointed justice isn’t buying the administration’s argument, well, it must be a pretty lousy argument. And, of course, claiming the right not to enforce the law and then claiming Constitutional cover to force states to have to live with the results of the federal government’s decision not to enforce the laws of the land is a pretty lousy argument.
But that’s what he’s stuck with.
Obviously none of this means the court will end up finding for Arizona. But, as Lyle Denniston at SCOTUS blog points out, indications seem to point to some interest in the court in doing so:
In an oral argument that ran 20 minutes beyond the scheduled hour, the Justices focused tightly on the actual operation of the four specific provisions of the law at issue, and most of the Court seemed prepared to accept that Arizona police would act in measured ways as they arrest and detain individuals they think might be in the U.S. illegally. And most of the Justices seemed somewhat skeptical that the federal government would have to change its own immigration priorities just because states were becoming more active.
At the end of the argument in Arizona v. United States (11-182), though, the question remained how a final opinion might be written to enlarge states’ power to deal with some 12 million foreign nationals without basing that authority upon the Scalia view that states have a free hand under the Constitution to craft their own immigration policies. The other Justices who spoke up obviously did not want to turn states entirely loose in this field. So perhaps not all of the four clauses would survive — especially vulnerable may be sections that created new state crimes as a way to enforce federal immigration restrictions.
As should be clear, there seems to be an interest in accommodating portions of the Arizona law that the court feels are “reasonable”. That is contrary to what the left assured us would be the courts position on Arizona’s “draconian” immigration law.
In fact, should the court find for Arizona in some of the key provisions, I’m sure we’ll hear the left’s usual defense – judicial activism.
The irony, of course, is that the Obama economy has been the best means of reversing the tide of illegal immigration. According to reports we now have net illegal emigration taking place.
That seems like the perfect point to settle this. The federal government, under the Constitution, has a legal obligation to enforce the laws passed by Congress. It hasn’t been doing that. And that’s the real point here. It will be interesting to see how the court handles that particular point. Meanwhile, it appears that key portions of the AZ bill may survive.