Free Markets, Free People
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.
Obama’s attack on the Supreme Court concerning his signature legislation, ObamaCare, and the possibility of it being over turned can’t help but make one wonder how such an attack would be received by the public at large.
Well, if this Rasmussen poll is to be believed, not very well:
While President Obama cautioned the U.S. Supreme Court this past week about overturning his national health care law, just 15% of Likely U.S. Voters think the high court puts too many limitations on what the federal government can do.
In fact, a new Rasmussen Reports national telephone survey finds that twice as many–30%– believe the Supreme Court does not limit the government enough. Forty percent (40%) say the balance is about right, while 15% more are undecided.
So in the great scheme of things, given this poll is accurate, more Americans than not (in fact about twice as many) are concerned the Supreme Court doesn’t limit the government enough. Hmmm …. no leverage there for the administration.
In fact, 70% of Americans find that SCOTUS is about right or needs to limit government even more.
It points to an argument the administration can start, but is unlikely to win. In fact, it would appear that most Americans, according to this survey, see the SCOTUS as a vital governor on the engine of run-away government. And they surely don’t agree that the court has acted out of the main for the most part.
That, of course, doesn’t bode well for a campaign to smear the court, does it?
Let’s see if this administration realizes that and backs off or, as it has many times in the past, blindly and arrogantly charges on.
There are times when even I’m a bit surprised at what manages to work its way out of our President’s mouth. After all, included in what little we do know about the guy is the claim that he was a “Constitutional lawyer”. He even taught that in Chicago to law students, or so we’re told.
Yet yesterday, in a press conference with the leaders of Mexico and Canada he was asked about the pending Supreme Court decision on ObamaCare and said:
“I am confident the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically-elected congress.”
I can’t imagine a more supremely arrogant and yet profoundly ignorant statement than that. Of course, at least in my day, most school children would have understood the ignorance of that statement.
I’ll illustrate it for you if necessary by adding a bit to his words:
“I am confident the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically-elected congress that allows whites to lynch blacks.”
Obviously he’d be clamoring for the SCOTUS to overturn a law like that. And he wouldn’t hesitate to condemn the “strong majority of democratically-elected” officials that passed such a law n the first place (and lets pretend this was signed before he assumed office – you know, Bush did it). Strong majorities (in the case of ObamaCare it was 219 to 212) passing anything are irrelevant if what they pass is in conflict with the Constitution – period.
In the hypothetical most of us would immediately identify the fact that a) murder and lynching are not within the power of any majority to sanctify and certainly not a power granted in the Constitution and b) it is the job of the Supreme Court to strike down laws that are unconstitutional regardless of how strong the majority voting for it.
I can’t imagine a supposed, or at least self-described, Constitutional scholar making such an ignorant statement to begin with … but there it is. He then followed it up with this:
“I just remind conservative commentators that for years we have heard the biggest problem on the bench was judicial activism or a lack of judicial restraint. That an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example and I am pretty confident that this Court will recognize that and not take that step.”
Smartest guy in the room? I’m sorry, but that just doubles down on ignorance.
As we’ve discussed (most recently on the podcast) it isn’t the job of the Supreme Court to do the job of Congress. Instead, its job is to determine whether or not what Congress has done is compliant with the limits the Constitution places on it. That’s it. There is nothing which requires the Supreme Court to “fix” laws that Congress has passed.
Justice Kennedy alluded to this when he said that the removal of the individual mandate would completely change the law in a way that was clearly not what Congress intended. Thus the “conservative” thing for the court to do would be to strike down the entire law and tell Congress to go back to work. Of course the Democrats and Obama know that if the entire law is struck down, the likelihood of it being “fixed”, given the Republican House, are remote. Thus we hear the usual nonsense about “judicial activism” and the other garbage Obama tossed out above making the rounds on the left.
Then there’s the remark about “an unelected group of people”. My goodness Constitutional scholar, they’re “unelected” and appointed for life for a reason. And that reason is to remove politics, as much as possible, from their deliberations and allow them to focus entirely on the law and Constitution. Obviously, it seems, politics haven’t been kept out of the Supreme Court, but for the President to take a juvenile shot like that at the Court while it is in deliberations is fairly outrageous.
Bottom line: If those Obama quotes now illustrate “Constitutional scholarship” in this day and age, this Republic is in very deep trouble.
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?
A lot has been said and written about the oral arguments before the Supreme Court concerning ObamaCare. Many have claimed you can’t base much on such arguments.
Perhaps. But it seems to me that you can get an indication of the mood of the court if you consider them carefully and keep them in context.
What I’ve surmised over the past few days is the law is in deep trouble. I think, if nothing else, the oral arguments pointed out how dismally weak and poor the arguments “for” this law are.
Of course, depending on how they would like to see the court rule, each side has found ways to spin these arguments to support their hoped for result. No huge surprise there.
But I think the one thing that is clear is the court is pretty well split down the middle and along ideological lines. And, as we’ve said for some time, in reality the result will hinge on the vote of Justice Kennedy.
However, I think you have to keep in mind that it won’t be a single ruling but one which entails several votes. One on the individual mandate, one on severability and possibly, depending on how the severability vote goes, if portions or the whole bill ought to be struck down. If the whole law is struck down, of course the expanded Medicare portion discussed yesterday will go with it.
That leaves you wondering where Kennedy is in his deliberation of the case. Again, if looking at indications to be gleaned from the oral arguments, one could assume he finds it true that the individual mandate would “fundamentally change” the citizen’s relationship with government – and not to the citizen’s favor. I think it is also true that he is not satisfied that the government has successfully articulated a “limiting principle” – a critical and key point in the discussion.
Finally, I get the impression, from yesterday’s arguments, that Kennedy is leaning toward “paving over” the whole law. In other words, giving Congress a “do over” since taking the mandate out would create a law and a consequence that it is hard to argue was Congress’s original intent. What is also interesting is the developing opinion that striking down the entire law would actually be an exercise in judicial restraint, not judicial activism.
Justice Ruth Bader Ginsburg said Mr. Clement is asking the Court to conduct "a wrecking operation," before stating that "the more conservative approach would be salvage rather than throwing out everything." The Obama Administration didn’t say exactly that, but it did argue that the mandate is indispensable to its supposedly well-oiled regulatory scheme and if it is thrown out the insurance rules should be too.
But Justice Anthony Kennedy doubted Justice Ginsburg’s logic, since by taking out only the individual mandate the Court would in effect be creating a new law that Congress "did not provide for, did not consider." To wit, costs would soar without any mechanism to offset them.
"When you say judicial restraint," Justice Kennedy said, "you are echoing the earlier premise that it increases the judicial power if the judiciary strikes down other provisions of the act. I suggest to you it might be quite the opposite." Overturning the mandate alone, he continued, "can be argued at least to be a more extreme exercise of judicial power than to strike the whole."
This is a critical point.
I think it is clear the 4 justices traditionally identified with the liberal side of the court are fore-square for the law and will find some way to justify it’s egregious and unconstitutional over-reach. And yes, no secret, I’ve always considered the law to be that and nothing I’ve heard in oral arguments has changed that. I think Justices Thomas, Alito and Scalia are for finding the mandate unconstitutional and for killing the entire law. I think Chief Justice Roberts is against the mandate although I’m not sure it’s a foregone conclusion that he wants to kill the entire law at this point. However I think he’ll be persuaded eventually.
That would make Kennedy the guy … again. No surprise for most who’ve watched the court for the past few sessions. He often ends up as the swing guy. You may disagree with my assessment of where he is in his decision making process, but his questions and comments, at least to me, seemed to indicate he was forming a particular opinion and that opinion favored both striking down the mandate and then striking down the whole law.
Should that be the case, and given the Democrats are unlikely to have an unassailable majority in Congress anytime soon as they did when they passed this monstrosity, this is indeed “the most important case in 50 years”. That’s a “good thing” because the likelihood that a “replacement” will be passed in Congress becomes much less likely. Kennedy’s vote could save America as we know it and protect us from a law that would “fundamentally” change our relationship with government and place us in a position of involuntary servitude to a government given license to run our lives in pretty much any way it see’s fit to pursue.