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Don’t blame the Obamacare mandate messenger, he had no message

Don’t blame the Obamacare mandate messenger, he had no message

Solicitor General Donald Verrilli, Jr., is under intense fire from the left for botching the mandate argument yesterday.

Adam Serwer at Mother Jones is being quoted far and wide:

Solicitor General Donald B. Verrilli Jr. should be grateful to the Supreme Court for refusing to allow cameras in the courtroom, because his defense of Obamacare on Tuesday may go down as one of the most spectacular flameouts in the history of the court….

“What is left?” Justice Antonin Scalia demanded of Verrilli, “if the government can do this, what can it not do?” ….

Justice Samuel Alito asked the same question later. “Could you just—before you  move on, could you express your limiting principle as  succinctly as you possibly can?” …. Where the lawyers challenging the mandate invoked the Federalist Papers and the framers of the Constitution, Verrilli offered jargon and political talking points. If the law is upheld, it will be in spite of Verrilli’s performance, not because of it.

Don’t blame the Solicitor General. He worked with what he had.  The day after his argument, there still is no good answer to the questions asked by Scalia and Alito.

There is a brutal ad released by the RNC.  It is brutal not because Verrilli stammered.

In the audio clip, Verrilli acknowledges the political truth that this entire takeover of the health care system was in the face of an insurance system that worked well for the overwhelming majority of Americans.

Rather than finding a way to help the 15%, the Democrats decided on a mountain of legislative language and regulations, with the mandate sitting high on top of the mountain, the Democratic Party equivalent of planting the flag.

The Obamacare oral argument messenger had no message, that was the problem yesterday.

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Comments

Henry Hawkins | March 28, 2012 at 2:56 pm

He whose name we North Carolinians cannot say, but is the #1 conservative radio talk show host stated on today’s show that Verrilli hadn’t much to work with.

    persecutor in reply to Henry Hawkins. | March 28, 2012 at 4:21 pm

    The Solicitor General proved a legal theory we subscribed to in the prosecutor’s office I worked in for 10 years–“You can’t polish a turd.”

    You can’t. Period.

      Ragspierre in reply to persecutor. | March 28, 2012 at 4:29 pm

      But John Edwards is a multimillionaire…so…

      Joan Of Argghh in reply to persecutor. | March 29, 2012 at 1:01 pm

      I am perfectly comfortable with vilifying Verilli. I find fault with his reasoning skills– such as they are– that would lead him to be a leftist, that would tell him he was working with awesome people, that helped him believe he was a special snowflake and elitist mind and a peer to the SCOTUS.

      Someone offered him the job and he didn’t give a second thought to what it might require, he just succumbed the directive of the “fame generation.” LOL! I not only blame him, I laugh heartily at him. I mock him. And I hope, for his sake, he slinks off the stage to become a better lawyer for having had his eyes opened, albeit painfully.

    Cubz_Fan in reply to Henry Hawkins. | March 28, 2012 at 9:27 pm

    I missed this today: Rebranding the Mandate > “Individual Responsibility Clause”

    Thus far: It’s not a tax, it’s regulation under the Commerce Clause. Ok, its a tax. Well, not really, its actually the Individual Responsibility Clause.

    Lather, Repeat, Lather

    http://freebeacon.com/white-house-tries-to-rebrand-mandate/

I listened today. There was less stammering, but I don’t think the gov’t was any more successful. They have a very tough position to argue.

As Iowahawk said, they appear to be mad at Verrilli for his lack of ability to polish a turd.

    Ragspierre in reply to WMCB. | March 28, 2012 at 4:27 pm

    If you think about Obama and his crew, they would consider that a gateway talent. No wonder they’re acting pissed…

I think the Government did more damage to it’s case today than yesterday-

And yesterday was pretty bad.

Verrilli offered jargon and political talking points.

Because that’s all he HAD.

Someone wondered why the White House/Democrats sent in their “second string”; I would venture to submit that Mr. Verrilli is their FIRST string; the second string has been on the field for a while now…..

    Precisely. Exchange this topic with any other and you have the same thing. Liberals have no moral or logical basis for their positions. They have emotion–“That’s not fair!!!”–nothing else, and that changes on a case by case basis, thanks to relativism. Vapid approaches his performance.

    Ragspierre in reply to teresainfortworth. | March 28, 2012 at 3:55 pm

    “When you don’t have the facts, argue the law; when you don’t have the law, argue the facts; when you don’t have the facts or the law…”

      Browndog in reply to Ragspierre. | March 28, 2012 at 4:56 pm

      …you wonder why the hell you’re even in court?

      malclave in reply to Ragspierre. | March 28, 2012 at 6:49 pm

      The joke I remember from when I was a kid…

      If you have the facts on your side, pound them into the jury.
      If you have the law on your side, pound it into the judge.
      If you have neither the facts nor the law on your side, pound on the table.

      Obamacare supporters have always appeared to be pounding on the table to me.

      G Joubert in reply to Ragspierre. | March 28, 2012 at 7:02 pm

      “When you don’t have the facts, argue the law; when you don’t have the law, argue the facts; when you don’t have the facts or the law…”

      You argue public policy. That’s the way I learned it. And that’s essentially one of the things Verrilli tried to do.

Don’t blame the Solicitor General. He worked with what he had. The day after his argument, there still is no good answer to the questions asked by Scalia and Alito.

1. Our host is an excellent lawyer, but if the mandate is struck down—especially if the vote is 5-4—I’d like to hear what other excellent lawyers have to say.

2. How ’bout this?—We weren’t able to make the law Constitutional because Scott Brown got elected, so the Court should let it slide. 😉

3. The operative phrase remains if the mandate is struck down.

Whereupon the DNC’s response:

But Trayvon was murdered by a white hispanic, Rush listening , gun crazed, Bible toting conservative. So you must allow this mandate to continue

I had this same debate with some of my more Liberal legal colleagues.

The gist of my position was, when inactivity (not buying a product)becomes “commerce” or “anticipated commerce” that can be regulated under the Commerce Clause, then the government’s powers become unlimited.

That analysis also rapes the State’s 10th Amendment right “expressly outlined in the Constitution”.

Wickard v. Filburn was referred to alot by my liberal friends. They were hung up on the growth and sale of wheat. Not to over simplify the case, Filburn was actually doing something, i.e. (Growing Wheat that was regulated)

In the case of Obamacare, 10’s of millions of people, not doing something (not purchasing healthcare) are being made to do something (Buy healthcare); and others doing something (Currently buying healthcare, who could prospectively decide to not do so in the future) are being made to continue to buy healthcare.

Churches are being being pulled into that web as well, in direct violation of their doctrine. I knew it was a bad deal.

Had Obama left the churches alone, and raised taxes (From the outset to fund this law, instead of trying to be cute, while using Enron accounting practices) the law would stand for the most part.

The mandate provides the funding. When that falls, you have an infrastructure that people will not use, because the government has proven itself untrustworthy on the matter.

    Ragspierre in reply to Cubz_Fan. | March 28, 2012 at 5:18 pm

    Wickard was an FDR abomination on any level you look at it.

    It TOTALLY worked an unconstitutional revolution of the Constitution, standing about 150 years of Commerce Clause jurisprudence on its head in one fell swoop.

    If you go back to the reason for the Commerce Clause, referring to the Art. Of Confederation and the problems that led to the Constitutional Convention, you get a very clear understanding of its proper application.

    Under the Art., INTERSTATE commerce was very problematic. The states were the sole arbiters of INTRASTATE commerce, but they could and did treat commerce from other states very prejudicially.

    Under the Constitution, the states were STILL very jealous of their power to regulate INTRASTATE commerce, and were not about to give that to the central government. But everybody recognized that fair, equitable treatment of the commerce of one state by all others would benefit all the states and the people.

    Wickard blew that distinction (which had suffered somewhat) all to hell.

      Cubz_Fan in reply to Ragspierre. | March 28, 2012 at 6:53 pm

      I always thought Wickard was a “compromise” by the SCOTUS in response to FDR’s court-packing threats….

        Ragspierre in reply to Cubz_Fan. | March 28, 2012 at 7:04 pm

        Oh, AGREED. If by “compromise” you mean “total capitulation”.

        Now, it is an open question as to whether the Justices acted to preserve the integrity of the court and avoid a Constitutional crisis, or not. I think they made the wrong choice, but am happy to extend them honorable…and not unfounded…motives.

    BannedbytheGuardian in reply to Cubz_Fan. | March 28, 2012 at 6:21 pm

    “That analyses also rapes the states 10th Amendment right” ????????

    You are using a definable & grave offense as a political metaphor. When your Cubz beat some team do you say they ‘raped ‘them ?

    You say you are an attorney but most well trained legal people are very careful what they write .

    Also your economics are out. If Obama could have raised taxes for this bill as you assert (no easy thing) these funds would need to be specifically targeted & directed not just general revenue. Almost all nations with such a scheme have a medicare levy -which is of course a mandate!

      Laaard, what a pusillanimous prig…!!!

        BannedbytheGuardian in reply to Ragspierre. | March 28, 2012 at 7:43 pm

        I still think that words have meaning. If that is punct…whatever then so be it.

        Punctillious – 1634 …strictly observant of nice points or details of actions or behaviour.( Shorter Oxford Dictionary )

        Yep that is I .

      Almost all nations with such a scheme have a medicare levy -which is of course a mandate!

      Nah. A “medicare levy” would probably be a tax, and therefore probably Constitutional.

        BannedbytheGuardian in reply to G Joubert. | March 28, 2012 at 7:52 pm

        I think that is amongst other stuff what they are arguing.

        But Cubzfan’s point was that it would be ok if Obama had just raised taxes.

        My point is that it is generally a specific tax/levy/ on top of general taxes eg a gasoline levy to pay for road maintenance.

        In this way it can be tracked & justified . Also it is usually targeted to public facilities . USA health I I understand to be heavily private .

    bobby b in reply to Cubz_Fan. | March 29, 2012 at 6:04 am

    The wheat case is somewhat analogous to the much-vaunted “vehicle insurance” argument.

    If you choose not to drive or own an auto, there is then no requirement that you buy auto insurance. To get out of the ObamaCare medical insurance mandate, you’d have to . . . well . . . die. (But then you could opt out safely.)

    Had the farmer simply decided, as soon as he knew about the crop limits, to raise pigs instead of wheat, he would have had no problem with the wheat limit. He was farming and raising wheat – an activity of choice – and he knew of the crop limitation rules. Thus, he was more like the driver who can choose to take the bus forever than like everyone in the country today who would have to die to get out of the mandate.

So now we will have two individual mandate supporting liberal Democrats, Obama and Rombama, to choose from in November.

I can just hear Obama now: “I always thought the individual mandate was a mistake. I never should have listened to Rombama. Those Republicans cost America a chance to fix the healthcare system.”

    Ragspierre in reply to Pasadena Phil. | March 28, 2012 at 6:36 pm

    “Those Republicans cost America a chance to fix the healthcare system.”

    And America will laugh, and laugh….!!!

    What are you skerred of, Fillie? Do you figure Collectives lies are too powerful to counter?

After listening today, I got the impression that the Lib justices already realize the mandate is going down because they spent a lot of time trying to justify and discuss ways of keeping at least part of the law intact. IMO You would only do that if you thought it was the best you could hope for.

Democrats decided on a mountain of legislative language and regulations, with the mandate sitting high on top of the mountain…

Obamountain? .. more like a manure spreader in a windstorm

The Obamacare oral argument messenger had no message.
Verrilli’s argument -a mile wide and an inch deep.

Scalia: Reading entire health care law would be cruel and unusual punishment
http://www.politico.com/politico44/2012/03/scalia-reading-entire-health-care-bill-would-be-cruel-118964.html

“Democrats decided on a mountain of legislative language and regulations”

The Federalist No. 62
“….if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow.

-It poisons the blessing of liberty itself.

Exactly. What limitations on power could the SG point to that wouldn’t have infuriated the administration?

Our Constitution provides for three CO-EQUAL branches of government. It is insane to accept the fiction that the Supreme Court is over the People, the States, the House, the Senate and the Executive.

As Americans from Thomas Jefferson to Robert Bork to NEwt Gingrich have said, for us to be ruled over by 9 lawyers makes a travesty of Constitutional government.

As Lincoln said about Dred Scott: The court has decided the law of the case; but it is not the law of the land.

The Supreme Court of the United States is not the final word. The claim that they are “supreme” over al of us, that their word is the final word, makes our country an oligarchy.

We the People are the final word, and if we act through the Executive and Legislative branches, and through the States, WE are the last word on how we intend to be governed.

To restore our Constitutional Republic, we must re-balance the balance among the three co-equal branches of our federal government. And the balance of power between the federal government, the states and the People.

    Ragspierre in reply to Hope Change. | March 28, 2012 at 7:49 pm

    Each of the three branches was designed by the Founders to be “supreme” in its own realm, while being “co-equal” in terms of their power to act within their respective realm.

    See if this makes sense.

    The legislative branch passes law. It is supreme in that realm of action.

    The executive branch EXECUTES law. It is supreme in that realm.

    The judicial branch DECIDES on issues of law (which predictably would arise, and would remain vexed as between the executive and legislative branches, or as against the meaning of the Constitution). The judiciary is supreme in this realm.

    Each is constrained by the others, and by the Constitution, by design. (There is a bit of elasticity, obviously, and in our history the branches have exceeded what they should be doing in some degree.)

      Is that what they taught you at the South El Paso School of Law and Dance? Is there any subject where you are not the ultimate expert at Mr. Wizard? Do you every bother to read the threads you pollute?

      Professor, when did you hire an imbedded thread moderator? Tedious. He does this everywhere. Unemployed windbag.

        BTW, Michelle Malkin booted him of her blog for pulling the same obnoxious act more that a year ago.

          Ragspierre in reply to Pasadena Phil. | March 28, 2012 at 8:21 pm

          Now, see, that is a lie, and Fillie is a liar.

          What he LIED about is this…he and some of his “good buddies” conducted an email campaign behind the scenes (i.e., behind my back, like cowards) addressed at Michelle.

          See, Fillie HATES…I mean LIKE FIRE…anybody disagreeing with or criticizing him.

          Just like Media Mutters, if you think about it…

          Right, Fillie.

          I’m right here. C’mon, honey…

        Ragspierre in reply to Pasadena Phil. | March 28, 2012 at 8:18 pm

        Gee, Fillie…

        Got any SUBSTANTIVE disagreement with what I wrote.

        C’mon. Step on up…

        Don’t just call names and slobber insults and run for the tall grass.

        I’m right here…ready.

    malclave in reply to Hope Change. | March 28, 2012 at 8:11 pm

    “We the People are the final word, and if we act through the Executive and Legislative branches, and through the States, WE are the last word on how we intend to be governed.”

    I take it you’re against California’s Prop 8 being struck down?

    bobby b in reply to Hope Change. | March 29, 2012 at 6:08 am

    You are an idiot.

    But you’ve probably been told that before . . .

      bobby b in reply to bobby b. | March 29, 2012 at 6:10 am

      Sorry – to be clear, that was addressed to HopeChange. Didn’t realize there would be twenty or so intervening comments.

Rather than finding a way to help the 15%, the Democrats decided on a mountain of legislative language and regulations, with the mandate sitting high on top of the mountain, the Democratic Party equivalent of planting the flag.

Universal and (eventually) single-payer health care has been a holy grail to the Democrats going back at least as far as Truman. They really really really want their precious federal government to have that much power, and more.

    Cubz_Fan in reply to G Joubert. | March 28, 2012 at 7:49 pm

    I’ve heard talk of the Brits moving towards privatizing healthcare, running private programs parallel to the NHS.

    If the Brits are ahead of us on the innovation curve…

      BannedbytheGuardian in reply to Cubz_Fan. | March 28, 2012 at 8:09 pm

      There has always been the option of buying private insurance in the Uk = provided you pay your NHS share also.

      Ditto other systems.

      BUPA is a British Private Health Insurance company that operates successfully in Britain & is expanding globally.

    BannedbytheGuardian in reply to G Joubert. | March 28, 2012 at 11:57 pm

    I was waiting for someone else to mention that Obama campaigned against Hillary’s single payer as a candidate.

    I remember the ads paralleling the anti Hillarycare ads of the 90s. He himself said he understood that FOLKS could not always afford insurance esp young people.

    And he began winning the nomination soon after.

Determined not to follow all the yammer and gassing about the case because it was going to be just that, I gave in and read the Prof’s post and responses this afternoon: it worries me. Lots of hopeful(!) talk about how poorly the case was argued, how little the Solicitor General had to work with, how bad the law is, etc., etc. These sorts of things seem to make less and less difference every day. There seems today an inverse relationship between the level of a court and the logic of its decisions–the higher the court, the weaker and less logical its arguments and more likely an applicable law is to be ignored, or some vague new screed is to be upheld. As though each level awards itself a larger license for poetry and fantasy. Is anything Kagan or Sotomayor hear likely to change their minds? Bader? Pardon my skepticism. Are moderates likely to compromise a way into tweaking this monstrosity, just to be fair? At the conservative end, who knows? The plaintiffs appear to have good cases, but they are all over the lot, aren’t they?

There seems little quality in our courts and virtually none in our politicians today. The Constitution has been nibbled, gnawed at, and torn apart for generations. And now, this administration has launched a full frontal attack on what’s left of it–or they simply ignore it. It is strained to the point of breaking. I’d love to think the SCOTUS will help it, and us, here, I really would. But . . .

“Health Care Is Not Broccoli” -Al Sharpton

Please remember these immortal words:

Pelosi: “We have to pass the bill so that you can find out what is in it”.

Guess we are, huh Nancy..

Off topic, but…

Limbaugh’s advertising losses may have been less than media accounts suggested. While more than 100 advertisers told Premiere that they didn’t want to be associated with “controversial” radio programs of any kind in the wake of the flap, some of these companies weren’t regular Limbaugh sponsors in the first place.

Carusone said most of the advertiser exodus over the past month appeared to be among companies whose ads aired only in regional or local markets, he said. “Fewer than five” nationwide sponsors of the program actually pulled out, he said…

Limbaugh’s recovering fortunes may be best exemplified by what hasn’t happened. At the peak of the controversy in early March, two small stations — in western Massachusetts and Hilo, Hawaii — said that they would drop his program. Since then, no other station has said it will take him off the air, dashing the hopes of MoveOn.org, a liberal group whose ongoing petition drive seeks Limbaugh’s removal from 180 stations.
–WaPo

http://hotair.com/archives/2012/03/28/wapo-this-rush-limbaugh-boycott-has-pretty-much-fizzled-huh/

One thing I keep wondering about, which I haven’t seen mentioned anywhere, is what happens if this law is struck down. Does that mean the student loans, which the government grabbed with the passage of this Obamacare, turn back as well?

They said the reason for taking over student loans was also a means to help pay for this.

Reality: Verrilli will have a tough time when he moves to private practice. His expected pathway – partnership in a prestigious liberal Washington law firm – has maybe been scorched by the guilt of his client who now blames his lawyer for his conviction. Fact is, just like in all similar situations, he’d be hired for his name – his brand – but now his brand has been trashed in the eyes of that market.

Irony: He will face no such rejection from conservative-leaning Washington law firms, because they will all recognize that he walked into that courtroom on Day One knowing a fact that the rest of the liberal world refused to accept – that the beloved mandate was dreck. He also knew that most (if not all) justices knew this already, and he knew that his mission was to advocate, to those justices, on behalf of that dreck. I’d hire him just for his bravery alone.

[…] Legal Insurrection. HT: CL) Share […]

Ginning up the sacrificial scape goat?

Solicitor General Donald B. Verrilli Jr. should be grateful to the Supreme Court for refusing to allow cameras in the courtroom, because his defense of Obamacare on Tuesday may go down as one of the most spectacular flameouts in the history of the court….

The probability is that liberals knew all along that ObamaCare was UnConstitutional and they did their utmost best to avoid having the case go to the SCOTUS in the first place. Now having failed to prevent a judicial review and their bluff called they need someone to take the fall for the rejection of their agenda item. Remember, the agenda never fails or is faulty, only those who present the message are to blame for not convincing others of the rightness of the agenda. And when numerous people continue to reject the message, those who won’t accept it are stupid or terrorists thus reinforcing their belief that they must act for the good of all and cram their beliefs down our throats.

The point of failure accepted by liberals can only be the messenger and that is why their messengers frequently lie and misrepresent the facts because the failure to persuade is a personal one not the message. The axiom of liberalism: If playing by the rules means you are assuredly going to lose, then there is no benefit in following the rules.

Movement Conservatism will kill more innocent Americans than Al-Qaida ever will. That is the greatest argument in favor of a more partisan and confrontational Democratic Party. It’s a matter of life and death to a lot of innocent people that somebody stop the Right’s madness and roll it back.

Does that shock you? It shouldn’t. It’s the truth. It’s just that we live in a time where it is a bigger outrage to call a bold-faed liar a bold-faced liar than to actually be one.

That’s how serious the threat we face from the Right is. They are a national security threat. No other force on Earth can cause America to collapse into chaos more successfully over time.

I have often argued with Barack Obama’s most caustic critics that we don’t have an “Obama” problem, we have a “Democratic Party problem”. Time to be Democrats again. If the Movement Conservative Rightwing successfully gets its way on ObamaCare, then it should mean Medicare for All and blaming the entire status of our fucked-up healthcare system on them. It will be theirs, because they proudly stripped millions of people of the hope of affordable healthcare to earn it.

Folks like by LeftHandedMan at Daily Kos and James Caville are trying to paint a possible striking down the whole law as the Republicans “owning” the resulting dysfuncional healthcare regime, but it is nothing of the sort. This was plainly the Democrats fumbling the ball on the 1 yard line. It was the Democrat Senate that removed a severability clause put in by the House. The Democrats had 60 Senators and a huge majority in the House that, even if it was for a short period, was able to pass any plan allowed by the Constitution. It was the Democrats who passed a constitutionally flawed bill.

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