The ObamaCare Argument – The Third and Final Day
Solicitor General Donald Verrilli’s performance before the court has been widely panned as “weak and ineffectual.” Even liberal commentator Jeffrey Toobin called Verrilli’s arguments “a train wreck for the Obama administration.”
But to judge the full measure of just how badly the government did in the last three days, all you have do is read the administration’s statement to the press. In it, White House Counsel Kathryn Ruemmler claims that Verrilli “ably and skillfully represented the United States before the Supreme Court.” The surest sign that your lawyer has not done a good job is when you have to issue a statement defending his performance.
Of course, Verrilli may have done the best he could, given what he had to work with. The government’s constitutional justification for ObamaCare was extremely weak. In fact, it was without precedent. Even under the expansive view of the Commerce Clause taken by the Supreme Court over the last 70 years, the Court never held that Congress could compel individuals to engage in commerce – only that it could regulate them once they were engaging in commerce.
This morning Paul Clement, representing the challengers, argued that the Supreme Court should strike down the entire law. The liberal justices were clearly hostile to the claim that if the individual mandate is unconstitutional, then the law fails in its entirety. Justice Sotomayor interrupted Clement’s opening almost immediately to ask him why the Court should strike down the entire law if only one provision of it is unconstitutional. Shouldn’t the Court presume that the law is not severable if there is no severability clause? Clement cautioned that would be inconsistent with the court’s prior practice and precedent.
Other justices, including Justice Kennedy and Chief Justice Roberts, asked numerous questions about the complexity of the law designed by Congress and whether it would still achieve its objective of “affordability” and “patient protection” without the individual mandate. Clement argued that it would not, and that the mandate was essential to the law – it was the funding mechanism for many other requirements such as the community rating and guaranteed issue policies forced on health insurance companies. Without it, ObamaCare would be a “hollow shell,” Clement maintained, and the economics of the plan fall apart.
The conservative justices were obviously concerned that if they left parts of the law in place, the votes would not be present in Congress to fix it. From the “Louisiana Purchase” to the “Cornhusker Kickback,”so many “venal” deals (as Justice Scalia described at least one of them) were struck to get the votes needed for final passage, “legislative inertia” would prevent remedying any problems with the law.
Justice Ginsburg voiced disagreement, saying that the Court faced “a choice between a wrecking operation…or a salvage job.” She claimed that “the more conservative approach would be salvage rather than throwing out everything.” Of course, Justice Ginsburg has never taken the “conservative” approach in her entire time on the bench. Here she might, since it would be the only way for her to achieve the policy outcome she wants. To Justice Kagan’s claim that this was “a perfect example where half a loaf is better than no loaf,” Clement said that this was a situation “where half a loaf is actually worse.”
The conservative justices were also concerned that striking the mandate but leaving other parts of the law in place would bankrupt the insurance market. Deputy Solicitor General Edwin Kneedler, who was arguing the severability issue instead of Donald Verrilli, disputed that contention. That was too much even for Justice Sotomayor (who is clearly going to vote to uphold the law), since that claim ignored “the congressional findings and all of the evidence Congress had before it that community ratings and guaranteed issuance would be a death spiral…without minimum coverage.”
Justice Scalia scolded the Deputy SG at the idea that the Court should go through every part of the 2,700 page law to decide which particular provisions should be kept. He clearly thought that was impractical. Justice Ginsburg made the half-joking suggestion that the government sit down with the challengers and try to agree on which provisions are peripheral, which Kneedler said could not be done. Scalia quipped that they could issue a conference report just like congressional committees do when they are trying to iron out differences between the Senate and House on a bill.
Kneedler argued that the doctrine of “judicial restraint” calls for not throwing out the entire law. But Justice Kennedy pointed out that if the Court struck down only part of the law, and the result was increased risk for insurance companies “that Congress had never intended… we would have a new regime that Congress did not provide for, did not consider [and it could] be argued at least to be a more extreme exercise of judicial power than…striking the whole [law].”
Clement told the Court that “the choice is to give Congress the task of fixing this statute…after some of it is struck down, or giving them the task of simply fixing the problem on a clean slate.” He did not think it was “a close choice.” The entire law “should fall.”
The afternoon session started at 1:00 and was again argued on behalf of the government by Solicitor General Verrilli. It concerned the new Medicaid spending conditions imposed on the states by ObamaCare. This question is murkier than the individual mandate. But if the Court finds the individual mandate unconstitutional and strikes down the entire law, they can avoid the Medicaid question in its entirety.
Verrilli ended his argument with a startling claim – that the provisions of the ObamaCare law actually “secure the blessings of liberty.” He said with a straight face that “for the Court’s obligation to ensure that the federal government remains a government of enumerated powers, that this is not a case in any of its aspects that calls that into question.”
Paul Clement could not let Verrilli get away with that absurd claim. He ended the day by saying that while he appreciated what the SG had said, he:
would respectfully suggest that it’s a very funny conception of liberty that forces somebody to purchase an insurance policy whether they want it or not. And it’s a very strange conception of federalism that says that we can simply give the States an offer that they can’t refuse, and through the spending power which is premised on the notion that Congress can do more because it’s voluntary, we can force the States to do whatever we tell them to. That is a direct threat to our federalism.
I can’t think of a better ending to three days of arguments in the Supreme Court over fundamental issues of liberty and the power of the government in what is surely the most important case heard by the Court since Brown v. Board of Education.
All I know is that when I had a job interview w/an health insurance company a couple of months ago, & asked if the company made any provisions if Obamacare is struck down by SCOTUS. His reply was “Absolutely not! It will not be struck down or repealed.” The reply was so emphatic that it startled me & made me wonder at the time how much of a cut they would be getting. I now know that it would be a huge slice of the pie. Let’s see how much influence these crony-capitalist, profiteers along w/Obama have over the Court.
Thank you for that piece of the puzzle. It reminds me again that with regard to either this travesty of a bill or the 2012 elections in their entirety, even if battles are won, we have a war ahead of us. That war requires Bureaucratic Trench Warfare.
We will survive as a nation if we find (can we?) people with the skills and strength to dig out the entrenched progressive bureaucrats and regulators. Only by weeding out the shadow government, take back that needs to be allowed to live and kill off that which needs to die. Liberty, consent of the governed, of the people, by the people, for the people, limited government….those phrases and more must have flesh and blood warriors if we are to win the day.
“kill off that which needs to die”
We can dream, cant we?
You are right, but Newt can’t do it unless we elect him, and I’m afraid the opportunity to do that is fast fading. Nobody else who is running can or will do it. So plan for a long, losing war.
You are absolutely right, bigfoot.
Mr. Spakovsky, you’ve represented a government as have I. We both have experienced sitting there when the judge/arbitrator/ALJ said, “For the government,” and we wished we had a designer bag over our head rather than the government issued POS. Hell, if you haven’t lost cases, nobody trusted you with a hard one.
Riveting. I was certain that Kagan and Sotomayor were placed solely for the purpose of pushing through Obamacare.
Perhaps, but sadly they will still be there long after this case has come and gone, reliably pushing the socialist lever.
The French had a good answer to usurping oath-deniers.
Madame Guillotine.
Perhaps that is the only thing that will free us of these vermin. That, or bring back duelling. They all betray their oaths continuously. In 1776, that would mean death. It should today, too.
John, be mindful of the SS (Secret Service)!
John, you might want to cut down on the caffeine.
I don’t think Verrilli is doing a bad job at all. He’s been asked to defend the indefensible and is doing the best he can. He’s not blowing the case; the so-called health care “reform” bill is blowing the case. You could resurrect John Adams and Daniel Webster from the grave to defend this Obamacare mess, and they would flounder exactly as Verrilli is doing right now.
As for the coming judgment, I think we’re in for a surpise. Call me crazy, but I believe one or two of the liberal justices will vote with the Constitution, if for no other reason than to preserve their own legacies as principled judges. Obamacare is such a mess, top to bottom, there is no way a judge could write an opinion calling it constitional without making him- orherself into a ridiculous joke.
I definitely hope that one of the liberal justices will join the probable 5 justice majority to strike down the law. It would make a much clearer statement, and would help silence leftist critics, who will claim the court opinion was based on partisanship, to have a 6-3 decision. I dont think either Kagan or Sotomayor will, I think Obama knew they were in the tank for him when he appointed them. But I think either Breyer or Ginsberg might, since they have no ties to Obama. Breyer is the best shot I think, since he already heaped some redicule on the Obama lawyer when he was constantly calling the mandate penalty a tax, when it obviously was not.
I agree about Breyer being the most likely one, and that Sotomayor and Kagan (who ought to have recused herself, but, of course, observance of the rules is for conservatives only) will always be outcome-based decision-makers when it comes to pushing the leftist agenda.
Even if this monster is held to be unconstitutional, Newt Gingrich is right: It’s insane that we all stand with bated breath, waiting to see if our most basic liberties will be protected by one black-robed Caesar’s thumbs-up or thumbs-down. The courts have long had far too much power over Americans’ everyday lives and affairs — the time has come to fight back.
Well, like it or not there is no other better option. You can’t program a computer to decide Constitutional law.
I’m quite sure either of those men would die before they would lend their efforts to defend this illegal law.
Doesn’t contract law prohibit or nullify and contract made under duress? And isn’t that the case if when I don’t purchase a policy I have to pay a fine? And of course, the fine will be increased at the whim of the HHS.
And doesn’t it cease to be commerce when it is a government program, whose costs rise because the government cannot manage it?
And can the government pass a law requiring China to pay a fine? After all, the commerce clause also lists Foriegn Nations. That is, “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”
The female justices are just shamefully in the tank for Obama, and incapable of fairly deciding the issue.
Reportedly, Kagan’s being influenced by her own personal health situation:
Kagan was born with juvenile diabetes (type I). All her life, she would have had problems purchasing a health insurance policy because of her pre-existing condition. ObamaCare bans insurers from discriminating against people for pre-existing conditions. She loves ObamaCare just for that.
There are plenty of other Americans who had pre-existing conditions from childhood on: Diabetes, leukemia, birth defects. In the 2012 campaign, we need to be careful not to defend the right of insurers to refuse coverage to them (as the Hoover Institution just did). We have to find some other way to deal with the same problems that ObamaCare tried to deal with–not to pretend those problems aren’t real.
We have a solution. It’s called Medicaid.
Ah, yes, that OTHER unconstitutional usurpation of power by the federal government.
That’s Sotomayor with the Type 1.
“In the 2012 campaign, we need to be careful not to defend the right of insurers to refuse coverage to them.”
Translation: In the 2012 campaign we should forget about any principled defense of individual freedom and capitalism, and just focus on getting more wishy-washy, appeasing (and therefore ineffectual) Republicans elected.
No thanks. We tried this before. It gave us Medicare Part D, Sarbanes-Oxley, McCain-Feingold, and similar legacies of the Bush era.
I sympathize with all peoples heath issues, particularly those who are afflicted at a young age with things that are not a result of their own doing (smoking, drinking, over eating, motorcycles, skiing).
AS decent Americans, we’ve built institutions to help our fellow citizens out of kindness and compassion, and we are happy to do so.
But when push comes to shove, back to the wall…if you, as an individual, are NOT ultimately responsible for the way the CELLS IN YOU BODY OWN BODY PERFORM, then WHAT in gods name ARE you responsible for, that you DONT believe I should shoulder the burden of?
I too have had Type I diabetes since I was a teen. And I *certainly* don’t support Obamacare, regardless of the “free stuff” I will be eligible for now that I’m in my 40s. To me, it’s *my* responsibility to make sure I can take care of myself. I don’t want or expect someone else to make sure I’m taken care of. I’ll take care of me, and in the meantime, please don’t ask me for tax money to take care of you.
In Switzerland the insurance companies maintain a pool, and they dip into this pool to pay for the treatment of people with pre-existing conditions.
Concerned expat in Seoul
Whether she loves it or not isn’t a constitutional issue. The question should be, “Did the constitution’s authors really propose to regulate commerce by forcing citizens to purchase health insurance or pay a fine?” It should be 9-0, against the legislation
It ain’t over till Kagan sings.
I was amazed at Verrilli’s poor performance onTuesday. Here is the ONE SHOT at defending the cornerstone of Obama’s legacy. Obama’s supposedly a constitutional lawyer (though nobody’s actually see the transcripts, have they?) You would think that you would send in your A team. Two possibilities:
1. Verilli IS Obama’s A team. The current White House Occupiers seem to universally think they are far smarter than they really are.
2. They know the battle is lost or have calculated that more is to be gained from losing the battle than winning it.
A pretty smart lawyer I know said that in Constitutional law class they don’t actually study the Constitution. Instead, they study all the Supreme Court decisions. It may be that Verilli had a class like that and the conservative Justices schooled him.
I vote for Option 1. These people are full of themselves.
To quote a Patriot : “Pride will do.”
Come on, it’s not like the President is a Constitutional Law Professor….
All the World Can Be Explained in Sports Metaphors, Vol. 287:
When a general manager expresses his confidence in the manager, three things are likely true: (1) the team is rapidly falling from contention, (2) the problem is the roster, not their performance (i.e., its the GM’s fault, not the manager’s), and (3) the manager is about to be fired.
Any justice who votes to uphold this abomination is in direct violation of their oath.
Gee! That’s never happened before!!
Everything Can Be Explained by Sports Metaphors, vol. 44:
When the general manager expresses confidence in the head coach, three things are likely true: (1) the team is rapidly fading from contention, (2) the fault is the roster (the GM’s job), not the coaching, and (3) the coach is about to get fired.
Translation: (1) ObamaCare is going down. (2) Because it’s a poorly conceived, poorly drafted abomination, not because it was poorly defended in court. (3) Mr. Verilli will announce that he is “pursuing opportunities in the private sector” by summer.
The problem with ObamaCare is not just that it was unconstitutional. It was remarkably ill-conceived, neither fish nor fowl. The Democrats had the votes to push through anything they wanted, including federally funded National Health Service if they wanted.
But they didn’t want to be labeled tax-and-spend, so they tried this cute way around it. Even very left-wing friends of mine have said it’s a big giveaway to insurance companies. It’s crony capitalism and venal.
It has some good ideas. I do believe, as conservative as I am, that we need healthcare reform. Costs have nothing to do with anything related to the market.
I recently had two similar procedures, paid for out of my own pocket. One was oral surgery to remove a tumor in my mouth. I called the doctor’s office and asked how much it would be. They said $400. It was $400.
The other procedure was a sebaceous cyst on my chest. I called the doctor’s staff and asked how much it would be. They said $300. I got a bill for $3,300. I looked at the doctor’s fees, etc., and saw that there was essentially $2,400 simply unaccounted for. I asked them if that was just overhead, and they hemmed, hawed, and finally admitted it, yes, it was overhead. We settled at $1,600, and I only paid because I had the money.
I’d believe maybe twice as much for the chest procedure, maybe three or perhaps four times, but eight times as much? In medicine, they’re just making numbers up. That’s the problem. And I believe it’s because of the Medicaid numbers.
I believe medical care can be affordable, if the market is allowed to work, like in dentistry and oral surgery. What was missing in the Obamacare debate was history — it was a typical, Year Zero liberal approach. They were ignoring that they were trying to fix problems they’d already created because taking away another piece of our freedom. And then the Dems ended up with a clusterbuster of a law because of the “venal deals” used to pay off Congress. Just a mess.
I hope ObamaCare gets repealed, and we take another crack at real healthcare reform. The poor need healthcare. How much would it cost to open clinics for the poor? In other words, why all this managing of middlemen — I’d rather see direct charity in the way of clinics, and a much freer market.
My two cents.
Your sentiments are noteworthy, IB, and admirable; but bear in mind that a federal program that gives away “other people’s money” to a charitable cause is not, and never will be, “charity”; it is instead “provision”. The Constitution makes a clear distinction between what government may “provide” and what it may “promote”. The word “charity” cannot be found in the Constitution; it is not an enumerated power of the federal government. The word “provide” occurs only twice; once in the preamble: “…provide for the common defense…”, and again in Art 1 sect 8: “…provide for the common defense and general welfare OF THE UNITED STATES…” (my emphasis). In neither instance is it suggested that public money be spent as “charity” on the impoverished. Instead, the Constitution protects our freedom to, as individuals or associations of individuals, be charitable according to the dictates of our own conscience, or not at all, as WE decide; NOT ACCORDING TO THE DICTATES OF OUR GOVERNMENT. I do not look forwared to “starting over” on creating another government-run healthcare system. Much preferable would be an emergency government LOAN program for medical care, and let those who rack up medical bills be the ones who actually PAY the bills. The best part about that idea is,
…we already have a top-notch collection agency in place…
Emergency loans? That’s an idea.
One thing I can’t understand is why the numbers are so out of whack with reality. It has to be because the market is already manipulated well past reform. If someone can explain why that’s so, I’d appreciate it.
For example, my father passed away a few weeks ago. He had a substantial nest egg when he died. Yet, seriously, there was no way he could afford his treatment in the last six months of his life. And if he couldn’t afford it, neither could 95% of the people in this country. I know of no other non-luxury product or service that everyone needs and virtually no one can afford. I need to know why that’s so — or if I’m wrong — before I can really discuss this.
Condolences to you on the passing of your Dad, IB. You must still be grieving. Not to diminish his situation, my father passed a couple of years ago. He did not require medical care at all, and passed away quietly sitting in a comfortable chair. No illness, just here one minute, gone the next. Not “everyone” needs expensive medical care for forestall the inevitable, but if my dad needed it, we would have found a way to pay for it. That is probably true for most people, and an emergency medical loan would be a great way for the federal government to “promote” the general welfare in terms of healthcare.
Want to understand?
Third Party payment:
First party: If YOU buy something for YOURSELF, you want it cheap, and good. You refuse to over-pay, and wont buy TOTAL crap no matter how cheap the price. Your wants and needs influence the price and quality of whats available.
Second party: If YOU are PAYING for someone ESLES thing, all you care about is cheap. If the only thing in it for you is the BILL, all you care about is price.
Third Party: You pay, with SOMEONE ESLES money, for SOMEONE ELSES thing. You care neither about price (because its not your money) OR quality (because its not for you)
We USED to be a first party nation, paying the local doctor for our needs. Things worked fairly well, but medical science advanced and gadgets and schooling got expensive.
So we BECAME a second party nation with Insurance. They dont care if you die, or have the wrong leg cut off, all they want is cheap. Doctor cant COMPLETELY screw them, because customers will choose a better plan. Prices go up (lots of middle men bean counters to pay now!) so your premiums are generally more than any realistic expenses you’d actually have if you were an average healthy person, and quality goes down…but the “what if” care is there, so we’re happy to have it, especially if our employer contributes a hunk of the premium. We’re getting ripped off, but it “feels” like we have coverage.
We are BECOMING at Third party nation, where everything is “free”…doctors and hospitals bill the government whatever they want, because NO PATIENT OR INSURANCE COMPANY actually PAYS for services from their own accounts. So the price is whatever can is dreamed up, because no one is writing checks but Uncle Sam.
Prices go through the roof as there are lots and LOTS of new GOVERNMENT middle managers, the most expensive in the world. And the “incentive” for quality care (small as it was under Second Party) is now absolutely non-existent….
Gobs and gobs of money in the form of taxes on “everyone” simply goes down a rat-hole to “pay” for ever increasing bribes, corruption, debt service, campaign contributions, junkets, swimming pools, hookers and high living, and only a teeny TINY taste of that goes to the doctors…Who are overwhelmed by everyone lining up for their “free” stuff…
So, they raise their fees, and taxes go up (again), but the Government Monster cant break that “me first” appetite at the money pool, so at the same time “costs go up”, less money flows to the doctors, so taxes go up (again) while care gets rationed (again) and we all spiral down the road to hell.
Its like siphoning fuel from your own gas tank, and selling it at a loss to buy more, after you spilled a bunch on the ground executing this cluster-f*ck of an scheme.
It just cant POSSIBLY work, no matter how hard you try
As one who works on a daily basis with these government “middlemen” and doctors, all I can say is that you are 100% correct. If all persons had to pony up with the cash, costs would mostly be affordable.
I also worked in Turkey and Mexico with various doctors and surgeons, who make about as much, and sometimes more than our US doctors. However, they charge substatially less than our average premiums and fees. If a doctor is good, he charges more for his/her services and not according to a “scheduled fee.” Most of the time, patients pay cash directly to the doctor. They might be recieving less gross income than our US doctors, but their overhead (billers, coders, regulatory stiffs and such) is extreemly low, so they net more than us.
Nevertheless, he is right. Universal Healthcare will come back (unless it passes), but as a tax. Democrats simply were too slick for their own good trying to pass an unconstitutional law off as if were common-sense – thinking perhaps that the charisma of Obama was enough. Now it’s simply a matter of time before which political faction will have the strength to pick reform back up first and initiate it. If we have Social Security and Medicare we can also have the “provision” of Health Insurance.
And, hey, might as well be Mitt Romney, since he has already given this type of thing a go as a governor. In fact, it might be a good idea for him to speculate a bit about such a scenario during the campaign. Very carefully, of course.
Also, I completely agree. There is no such thing as forced charity.
I think you are being optimistic, kb. Social security is already paying out more than it brings in, and medicare, while better than nothing, is proving to be a loser as an insurance plan. The logical thing would be to privatize Social Security as personal retirement savings accounts, promote private health savings accounts to replace Medicare, and use an emergency loan program as a stopgap. There’s no reason healthcare or retirement must be “provided” by government for all, and no reason government cannot “promote” private healthcare solutions.
I believe medical care can be affordable, if the market is allowed to work…
I’m old enough to remember how well it did work, when private insurance was considered by all to be for purposes of catastrophic injury/accident and not for every little hang nail.
Government insertion into “healthcare” has been the problem, not the solution, with every provider along the food chain now finagling as to how to get theirs.
It’s so completely screwed up, I don’t know that it’s fixable. I agree we do need some kind of massive overhaul in all these so called “medical” relationships.
Just not that overarching piece of garbage we call Obamacare.
Looks like the Supreme Court is going to Etch-A-Sketch Obamacare.
The very fact that there can be this much debate about imposing on us sweeping new laws and a powerful bureaucracy on all of us, based on a 2700 page undeciphered and undecipherable bill passed through Congress without even having been fully read…. that is terrifying.
We are already a broken republic for it to even have come this far. Pining our hopes on the Supreme Court is like calling for a lifeboat after the ship went down.
But the good news is that the SCOTUS just might begin rolling back the virtually infinite power they granted Congress in the 20th century via their expansive interpretation of the Commerce Clause.
> But the good news is that the SCOTUS just might begin rolling
> back the virtually infinite power they granted Congress in the
> 20th century via their expansive interpretation of the Commerce
> Clause.
Possibly wishful thinking, but I’ll join you in the wishful thinking. What might be different this time is a growing feeling that the Federal Government is careening out of control right now, in a way that is very different than it was in the 20th century. The Justices may be questioning whether they have been asked to rubber stamp a national Constitutional suicide pact. Obamacare is really the end game for enumerated powers, separation of powers, limited government and the relevance of the Constitution itself. The People are pretty scared right now and perhaps our only hope is that the Supreme Court is getting scared as well and starts to rein in the monster they have created and nurtured over the last hundred or so years.
This is precisely why we have three branches of government, and a separation of powers. The seventh amendment notwithstanding, if Obamacare is indeed overturned, then this republic is working exactly as it was designed to do. The court is protecting the Constitution where the other two branches of government have failed to do so. Just be glad that Kagan, Sotomeyor, and Ginsberg don’t have twin sisters sitting on the bench beside them such that this last protection is no more competant than the Legislature and Executive have proved to be.
(That should say: “The SEVENTEENTH amendment notwithstanding…”.)
“The seventh amendment notwithstanding, if Obamacare is indeed overturned, then this republic is working exactly as it was designed to do.”
So, this time, it falls on to just one Justice Kennedy to uphold the USC? Doesn’t look good for the home team.
The first attempt was Hitlery-care. Proposed by a non-member of our government…not properly introduced as a bill by any member of congress or the senate…but by Hitlery herself. That in itself told me the path we were on as a nation back in 1993. Fortunately, the thing was stillborn.
Obamacare is attempt number two. The stakes were upped by cramming it through in the middle of the night, behind closed doors and not allowing republicans to even look at it before they voted on it.
If it is defeated by the Supreme Court, they (the national socialists) will be back a third time and without all the politelness. (sarc) They will try to find a way to really cram it to us out of pure spite rather than the notion that it’s “affordable” and all that BS. They want POWER. This is how they’ve decided to get it in a huge chunk, quickly.
They are going to be frustrated like a criminal who wants to steal something very precious but every time he tries, he gets caught and has to spend time in prison. But every time he gets out, he goes right back to thinking about that “holy grail” and how to get it.
The national socialists will never stop. They have woven the narrative to their liking, all about healthcare for “the poor” and how it “fixes” the industry (huh? By shutting it down?) and a half-dozen other “arguments” that deflate or run out of gas when anyone of any sense asks a simple question. For example, “If it’s so great, why all the waivers for certain companies?” and “If it’s so great, why are all the congressmen who voted on it exempt?”
And there’s more. Of course. Much more. 2700 pages that no one has read..that has been sitting in a drawer for who knows how long waiting to be secretly foisted on the American people. The whole process stank. The real telling thing is that the national socialists refused to debate it, discuss it in any way, much the way a snotty socialite dismisses accusations of malfeasance.
We have become Rome, sadly. The self-appointed ruling class have shown us their true nature and colors. I have faith that they are truly a minority in this nation, that their numbers are actually much fewer than the media would have you believe. Less than 30% of this nation yet, they have gotten themselves into these positions in order to make the US a socialist nation.
As one last comment, a conservative goes into law because they are enthused by the pursuit of justice. A left-wing liberal goes into law because they want to learn how to cloud things by becoming good at legalese. They inability to shut of emotion and just think logically is not affected in any way. Kagan is an educated idiot. She is most likely filled with hatred of whatever mistreatment she believes she suffered by people all her life. And with lefties, they all think they are unique in their misery. That they are the only ones who ever suffered at the hands or whims of another. Thus their hypersensitivity to “fairness” by tilting the playing field. Sotomayor and Kagan are very angry people. Their anger taints their viewpoints and polishes it to a finely honed point to stab anyone or anything that has the scent of genuine fairness.
We are failing as a nation for many reasons…but all of them are due to the actions of national socialists.
I recall during what little was released that the Democrats purposely did not put in a severability clause. I believe the strategy was to make it so in order to squeak past the Supreme Court, who would have a greater hurdle to strike the bill’s various clauses down if one were included.
My recollection is different. The Dem leadership had to bribe their own members to vote for Obamacare with things like the Cornhusker Kickback and the Louisiana Purchase. To guarantee these political promises wouldn’t be stripped out of the bill at a later date, they purposely left out a severability clause. It was done on purpose because this clause is a routine addition to legislation.
I recall the [quite annoying] beginning of all of this (in my adulthood, anyway): Ronaldus’ SoT, Liddy Dole, strangling the states with seat belt laws they couldn’t refuse. That, in my mind, was the beginning of the end of liberty. They designed the ultimate federal stick.
……your comment, “In other words, why all this managing of middlemen — I’d rather see direct charity in the way of clinics, and a much freer market.” ….is very sensible.
It’s a safe bet that most of the real dollar costs of the complete socialization of Medicine will be due to legions of “administrative assistants” and clerical “staff” being needed in the pushing of patient-filled-in complicated forms from “out” box to someone else’s “in” box on a nearby desk, and then the filing of the contents of those paper forms by legions of data-entry clerks into “entered” files in a massive tera-tera-tera computer.
Our friend George Orwell is smiling down on the absurdity of this “make work” effort at job creation. It’d all result in a self-perpetuating-perpetual-motion machine…creating in turn more expenses.
Maybe call it: “Mice Multiplying in a Single Rotary Treadmill”?
that 4 people would vote for this monstrosity of abhorrent legislation is very disconcerting.
these four have no business being on the supreme court when they despise what they swore oath to uphold.
With the “severability factor”, we can add a ship-sinking and complete the Trifecta structural failure that this TITANIC Obamacare legislation has been.
Call me crazy, but …
I have this niggling fear that though the judges were largely persuaded after day two that the bill is unconstitutional, the thought of losing the entire bill, because of it not being severable, could cause some justices to let the entire bill stand.
sorry. I meant to say “law” instead of “bill”. I got used to calling it a bill during that long protest period.
Do not imagine for a moment Mr. von Spakovsky and the rest of you ungrateful unruly unwashed peasants, that leadership is a pleasure. On the contrary, it is a deep and heavy responsibility. No one believes more firmly than Emperor Barack Hussein Louie Obama, Big Sis, Tiny Tim and all their Royal Czars and Royal Judges and all others of the Clan of the Donkey that America’s unruly unwashed peasants should have freedom and liberty. They would be only too happy to let them have these freedoms and liberties to do what they think best for themselves and their families, but all too often, given their obviously inferior IQ’s, America’s unruly unwashed peasants might be racists, political terrorists, think that Michelle Antoinette takes too many expensive vacations while the unruly unwashed worker bee peasants complain about their bread and cake and baloney sandwiches, or seek medical care when they should just go off someplace and die for the good of the state, and might not contribute to the DNC and might not even vote Democrat, even once, let alone early and often, in the next election, cling to the completely outdated U.S. Constitution, written by a bunch of old racist honkies, might try to sneak an unhealthy Happy Meal on a airplane hidden in their underroos, might listen to the wrong radio stations and read the wrong blogs and then, unruly unwashed peasants, where would we be?
Let’s get something straight here. ObamaCare is not “The Affordable Health Care Act”. It is an assassination attempt on the United States Constitution by a mentally sick man who wants to murder it. What Booth was to Lincoln, Obama wants to be to America’s Constitution.
Bull’s eye.
I’m not a lawyer. But if Obamacare is thrown out I will be interested in what the dissenting justices have to say.
I would hope that they all file separate dissents so I can get a picture of the reasoning that they think supports upholding this act.
They’ve already made their logic clear.
It’s a good and kind and nice thing to do for people, so petty concerns like “Unconstitutional!” should not even be an issue. Do whatever it takes, say whatever it takes, just do it.
They’ve already said the health care is an extra-special magic thing, above and beyond ordinary economic consideration. They haven’t explained “why” other than to insist that it is. That’s the level of dissent we’ll get.
The ONLY reason Kagan is sitting there is because she is in the bag for Obama care.
Sir, great post and very informative. thank you for your insight.
…”so many “venal” deals (as Justice Scalia described at least one of them) were struck to get the votes needed for final passage, “legislative inertia” would prevent remedying any problems with the law.
All the venal deals and a legislative process that this president himself said while a Senator (and a candidate) would be completely inappropriate for “massive social legislation” like healthcare.
2008, Barack Obama:
“A mandate means that in some fashion, everybody will be forced to buy health insurance. … But I believe the problem is not that folks are trying to avoid getting health care. The problem is they can’t afford it. And that’s why my plan emphasizes lowering costs…In February 2008, (Obama) said that you could no more solve the issue of the uninsured with an individual mandate than you could cure homelessness by ordering people to buy a home…”
Venality in all those backroom deals granting favors to some states if they would sign on. More venality after the fact in HHS’ pick and choose approach to granting exemptions.
To Justice Kagan’s claim that this was “a perfect example where half a loaf is better than no loaf,” Clement said that this was a situation “where half a loaf is actually worse.”
I didn’t think the SCOTUS was to concern itself with the merits of the bill, only the constitutionality.
Clement: That is a direct threat to our federalism.
When you strip everything else away, an assault on federalism, the 10th amendment and liberty in general was the point of the AHA, which was why nobody needed to read the particulars or know what was in that 2700 page monster.
i’m still wondering why verilli hasn’t adopted the statist gambit of shouting “RACIST” and “HALLIBURTON” at justices scalia and alito in response to their questioning
It’s beyond refreshing to see the knee jerk goto phrases and fixed body of spin useless in front of the supreme court.
As Scalia reminded the lawyers, the SCOTUS is “not stupid”.
Maybe not stupid but the liberal members are blind to the Constitution, a document they clearly hate. They have never had that introspective moment whereupon they asked themselves the question, while sitting quietly, “If the Constitution is outdated then what should replace it?”
For me, this introspection, and something thought about over much time, caused me to think about the nation’s history, the upheavals, the successes, the failures and I then surmised that it’s a pretty darn good document. The fact that it was written ~225 years ago seems to make liberals think it’s outdated. And yet, it’s not. It is as applicable to today’s world as it was then.
I think it has to do with the notion that liberals seem to possess is that “history began five minutes ago”. They tend to ignore precedent, rules, regulations and anything that might confine that which THEY want while ignoring the fact that what they want interferes with the rights of everyone else. My definition of a liberal, among many, is “A person who’s the first to say, ‘there ought to be a law’ while that same person would be the last person to follow said law”. They are steeped in hypocrisy. What happened yesterday, last week, last year or twenty, seventy, two hundred years ago doesn’t matter because, see, “this lesbian is being treated wrongly and we need a set of laws that protect, not just especially lesbians but ONLY lesbians”. Yet they fail to acknowledge that the Constitution and Bill Of Rights has it all covered already and the law just needs to be enforced.
I suppose if I was a criminal, I’d have to have a lawyer so as to avoid the potential for committing “hate crimes”. As a mob-leader, I’d be fine with “protection money” so long as I wasn’t infringing on the rights of some black/female/non-white citizenry. Sheesh.
And we have on the supreme court such people who think like that. Rather than have a notion that the Constitution, by not mentioning things specifically therefore “leaves out” certain protections is a logically flawed argument. It is a failure of the synapses in the brain to adequately have functioned in their childhood and is irreparable. They are damaged, overly emotional piles of goo who think they are smarter than anyone else.
To be a liberal is to be always-frustrated, never happy and always looking for the bad in things instead of finding any good at all. The world used to just call them pessimists. But their glasses are always “half-empty” and they generally don’t like anyone, least of all themselves.
One of the last provisions of the health care law increased the adoption tax credit to about $13,000 and made it refundable – that means when I claimed it, I got the whole amount I claimed even though it was greated than the amount I paid in taxes. Obviously this would get scrapped if the individual mandate was unconstitutional and unseverable.
Does that mean I would have to pay back the difference or would it only affect people claiming it on their 2012 taxes?
All of you are missing the forest for the trees. Obamacare is unconstitutional because it violates the 13th(!) Amendment. Never heard of it? It reads like this:
Neither slavery nor involuntary servitude, except as punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
The “individual mandate” is involuntary servitude, plain and simple. It is the first step to turning you, me and all of us into government-owned slaves. It is unconstitutional, totalitarian and evil. I will not live “under” such a tyrannical government. I DEMAND freedom!
The Jurists Are Out On Obamacare
Speculation is ripe on how the United States Supreme Court will rule on the constitutionality of the Preservation of Access to Care for Medicare Beneficiaries and Pension Relief Act of 2010, the ultimate title of what most Americans know as Obamacare.
Signed by President Barack Hussein Obama on June 25th, 2010 after extensive late-night machinations, bribes, and add-ons, the bill was originally titled the Patient Protection and Affordable Care Act by the Democrat Senate. It was apparently changed in view of the fact there were few patient protections in the 2700 page monstrosity.
Obamacare is not affordable by either patients or the nation but they had to call it something palatable. It’s not known whether any Dems ever read it before they passed it.
Anyway, nine individuals–six men and three women, (six Roman Catholics, three Jews, no Protestants)–are now empowered to secretly decide the fate of a law which applies to almost everyone in a nation of 313,274,338 souls, comprised of 51% protestants, 25% Catholics, 1.7% Mormons, 1.2% Jews, and 21% of other persuasions including Muslims and atheists.
Without suggesting that either the personal faith or gender of the justices will dictate their decision, the religion of the justices is cited here in light of the legislation’s already-obvious impact on religious beliefs of Catholics and other Christians and the widespread discussion of a presidential candidate’s religion for the first time since 1960.
Gender is relevant because the statistical reality is that far more women seek health care than do men and the new law will directly impact the practice of abortion in the country.
Not all of us are affected by Obamacare, however. It won’t be fully implemented until 2014, by design, long after this year’s election. Millions of “exemptions” have been doled out to favored special interests groups, labor unions etc., which didn’t like the legislation anymore than the rest of us but had the political pull to opt out.
Federal government employees, including the president, his family, and Congress, are also exempted, a fact which says a great deal about Obamacare, none of it good. . . (Read more at http://www.genelalor.com/blog1/?p=20091.)