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Risk of selecting a nominee before US Sup Ct rules on Obamacare mandate

Risk of selecting a nominee before US Sup Ct rules on Obamacare mandate

The U.S. Supreme Court hears argument starting March 26 on various aspects Obamacare, front and center the mandate.  A ruling is expected by the end of June.

Purity in opposing mandates is the reason to be of Rick Santorum’s campaign argument:  Mitt is tainted due to Romneycare, and Newt is tainted because he was willing to consider a mandate in the past.

Mitt invokes the 10th Amendment as his defense, Newt says Rick is overstating Newt’s past support for some type mandate.

Santorum’s anti-Romney in argument in particular hinges on whether the mandate is enforceable:

Virginia Attorney General Kenneth T. Cuccinelli II, who has led the state’s fight against President Obama’s health care law, warned Thursday that Republicans would be “effectively giving up the issue” if they tap Mitt Romney as their presidential nominee.

The claim echoes the message of Rick Santorum, Mr. Romney’s chief opponent for the party’s nod, who has said the health care law the former Massachusetts governor signed is too close to Democrats’ national law to leave Mr. Romney any room to criticize it.

“One thing that people voting as between Romney and Santorum is, they’re deciding whether to give up that issue,” Mr. Cuccinelli said on C-SPAN’s “Newsmakers” program.

So what happens if the Supreme Court rules one way or the other.  Since I consider the issue mostly neutral for Newt, here are some possibilities as between Rick and Mitt:

(1) Supreme Court upholds constitutionality of mandate.  Bad for Mitt, because then there is nothing keeping Romneycare from going national, if there is a desire to do so.  Good for Rick.

(2) Supreme Court strikes mandate (with or without striking entire law due to non-severability).  Good for Mitt, who can say, see I told you so, not need to worry about me.  Bad for Rick, because his main argument against a Romney candidacy — the ability to confront Obama  on the issue — evaporates.  That leaves an economic argument between the two, which is a toss up.

By mid-June we may have a nominee.  But if we don’t, a couple of weeks after that a Supreme Court ruling could change everything.

Sounds like the honey badger may know what he’s doing.


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I subscribe to the thinking that no matter how the Court rules, it will make Obama look like a dictator.

The only difference is that 22% of the population, the progressives, will either applaud the new dictatorship, or will be enraged that it has been temporarily stifled.

Interesting. Though, shouldn’t we have a pretty good idea of the outcome by the end of March? Don’t the Justices show their hand somewhat through the questions they ask and points they make? So, unless Kennedy or some of the conservatives appear to go wobbly, shouldn’t we have a pretty good idea if the Supreme Court will invalidate the Constitutional limits of governmental power or keep them?

I’m sort of coming to wonder if this decision will not even be close.

There is…seems to me…good reason for the Collectivist justices to kill this stinker off. Reasonssss, actually…

Not the least of which is that it does not go where they wish it had gone, and could be killed off by new legislation.

Moreover, it gives a future administration power to do things they surely do NOT want to see happen.

    Browndog in reply to Ragspierre. | March 16, 2012 at 4:49 pm

    I tend to agree.

    persecutor in reply to Ragspierre. | March 16, 2012 at 5:29 pm

    It also gives Zero someone to blame other than Bush, (or the Japanese earthquake, or Egypt, or Syria, or _____________________________________(fill in the blank); “I tried, but those flat earthists in the SCOTUS”!

theduchessofkitty | March 16, 2012 at 2:30 pm

It probably will not surprise you that I’m still “on the fence” as to who I am going to support as a Republican nominee.

Whichever decision the SCOTUS reaches on Obamacare, it may well look very bad on Romney anyways. After all, the WH admitted they based their scheme on “Romneycare.” Ask any MA resident to see how they’re doing.

(Just a little anecdote here: the other day, I was trying to see if a discount card that was given to me by my doctor would really save me some money on a specific prescription I was buying. One of the conditions for the use of the card was as clear as day: “You must NOT be a resident of Massachusetts.” ‘Nuff said.)

SCT rules against Obamacare – bad for Mitt.

Obama will say: hey, that was based on Romney’s plan and it didn’t work, plus when we look at the new CBO numbers and what is happening in MA we see lots of problems there too. We still need to fix healthcare, but Romney’s ideas obviously aren’t the way to go, so reelect us and we’ll do it.

listingstarboard | March 16, 2012 at 2:41 pm

Love me some Ken Cuccinelli.

This guy Kuccinelli is first class.

Uncle Samuel | March 16, 2012 at 3:24 pm

Unlike FL AG Pam Bondi – Ken Cuccinelli has not gone over to the dark side endorsing Romney and his healthcare plan. In fact, he has not endorsed anyone and there is a webpage advocating his run for the Presidency. Whether it’s his idea or just some fans making noise, I don’t know. His questions of the GOP candidates in the Huckabee forum were good, but so were Bondi’s.

“…warned Thursday that Republicans would be “effectively giving up the issue” if they tap Mitt Romney as their presidential nominee.”

Fold on Obamacare, Globull Warming farce, Religious Liberty, Fiscal Responsibility, Individualism and the War on Terror…

#GlobalThermonuclearDebtBomb & #IndefiniteDetention

The Republican elites however will be just fine.

It was announced today that the oral arguments would be provided to the public by the SCOTUS, the same day those arguments are presented.

What will be interesting is how the government argues the case since the Democrats deliberately left out any severability clause, and if the Consitutionality of the individual mandate is shot down, the whole bill is then unworkable. If the Democrats delibertely left out a severability clause (because the individual mandate is required to pay for the entire bill) how will the government argue that the individual manadate is severable.

Which poses another question due to the “full faith and credit” clause: will the Massachusetts individual mandate then be unconstitutionaln (as it also forces private citizens to partipate in commerce even if they don’t want to)?

The Justice to watch will be Kennedy. It’s a no-brainer that Sotomayer, Kagen and Ginsburg will side with the government. Kennedy will be the swing vote.

Love me some Ken Cuccinelli. Now, if we can just get the ruling we want.

The GOP should know better than to have Romney as their candidate.

Maybe Newt was right that we would be having a different conversation come June. I sure hope so.

‘Necessary and Proper’: Obama Admin to Shift Health Care Defense
-The Blaze
section 8, clause 18:

The Congress shall have Power – To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Liberals want to replace this “summary clause” with their new Constitution.

Which reads-

section 8, clause 18:

The Congress shall have Power – To make all Laws which shall be necessary and proper for execution of the powers of the Government of the United States, or in any Department or Officer thereof.

That, my friends, will be your new Constitution if the Supremes uphold ObamaCare.

The only question about the decision is what will Roberts and Alito do? Both have tended to defer to federal power, but this is obviously the biggest power grab to come before this Court. I can’t see Kennedy ruling with Obama.

But I don’t see how upholding the law really would help Santorum very much. Romney’s declared he would issue immediate waivers to all states, effectively making it an opt-in. It will take Congress to repeal it: we have to hold the House and win the Senate by enough to either thwart or intimidate a filibuster (or just use Reid’s trick and repeal it the same way it was passed, as a budget reconciliation).

IF a Republican Congress repeals ObamaCare, does anyone seriously think Romney or any other Republican President would veto the bill?

Santorum’s entire premise that Romney can’t fight Obama on health care is flawed. All Romney has to say in the debate is, “Yes, I did support a similar plan and thought it the best option. BUT you know what? In America, the people tell the government what it should do, the government doesn’t tell the people. The people clearly oppose this law, and I accept their judgement with humility.”

    Kenshu Ani in reply to Estragon. | March 17, 2012 at 9:21 am

    “IF a Republican Congress repeals ObamaCare, does anyone seriously think Romney or any other Republican President would veto the bill?”

    Of course not. However, in order to repeal Obamacare there has to be enough votes to pass the repeal in the Senate. It is possible for Republicans to pick up enough senate seats to do that, but I think it is unlikely to happen. That is when the Presidency comes in handy.

    You need a president willing to twist the arms of the opposition, or through some sort of compromise in order to get the votes needed. To do this the president needs to be charismatic enough, and popular enough, to sway people to change who they will vote for in upcoming Senate elections; and to use that as leverage against the Senator.

    “Vote for repeal, Mr. Democrat, or I will be spending lots of time in your state supporing your Republican opponent in 2014.”

    He has to do that in places where the opposition has a hold, but is weak enough to possibly switch parties.

    Frankly speaking, I don’t think any of the three Republicans running are likeable enough to do this. Especially not Mitt, when he would be fighting against his own record while trying to sway Democrats.

I tend to look at it differently.

(1) Supreme Court upholds constitutionality of mandate. Bad for liberty loving Americans. Supreme Court justices that voted to uphold the constitutionality of the mandate should be tarred and feathered; then deported to Europe.

(2) Supreme Court strikes mandate (without striking entire law). Good for liberty loving Americans, neutral for Mitt. Even without the mandate, the law is filled with bureaucratic regulations that will do more harm – regarding health care – than it will do good. The only way to remove it then would be to repeal it, and I don’t think Mitt has it in him to do that. However, I would be willing to concede that I’m in a minority opinion on needing to repeal Obamacare even without the mandate; otherwise I’d say it would be bad for Mitt.

(3) Supreme Court strikes mandate (while striking entire law due to non-severability). Great for liberty loving Americans, bad for Obama and great for Mitt. This one action would deal a huge blow to Obama and his signature piece of legislation. It would also create the only incentive I have to vote for Romney, since I would no longer have to worry about Obamacare.

Subotai Bahadur | March 17, 2012 at 11:05 am

With all due respect to the Professor and any other legal professionals here; as a lay person who is active in politics I have to say that the courts are as political as the House, the Senate, or the Executive Branch. And in their own way, as corrupt. Having dealt with prosecutors, defense attorneys, and judges for decades and having been pre-Law in college [ended up wearing a badge as a career instead of hanging a JD on my wall]; like blatant politicians those in the legal field are influenced as much by personal relationships, mutually beneficial relationships, and personal “perks” and benefits as they are by either law or the Constitution of 1787.

Enforcement of the law, legal precedent, or of the Constitution, is based on the whim of the moment by prosecutors and judges; and the checks and balances of our system seems to work far more effectively when viewed through the lens of political benefits and amour propre than any devotion to the “rule of law”. Indeed, for those not members of the political-legal system the “rule of law” is very much a one way street with the rules flowing downhill.

Taking any issue to court is possible; but it is essentially a crap-shoot, with worse odds. Getting an issue before a court functionally requires having funding far beyond the means of ordinary citizens; especially when dealing with any level of government whose funds dedicated to the preservation of their own power are unlimited.

Getting “standing” to be allowed to file a court action against the government is the first line of defense of the Political Class. It is common to find that an individual affected by a law, does not have standing to file, nor does a group of individuals. We have seen that in cases of government violations involving vote fraud; neither individuals, nor political parties have “standing” to take the case to court because of who the fraud benefits.

Anyone who watches the Supreme Court knows that Sotomayer, Kagen, and Ginsburg can be depended to rule in favor of increased power of the State over the individual; except when sex is involved. Kennedy is a “swing” vote, but he mostly swings to the Left in any critical matter. Breyer will “swing”, but mostly to the Right. The rest will usually, but not always, give preference to the rights of the individual.

While the decisions will be wrapped up in a template coming from the Constitution of 1787 and prior rulings; they have the power to make things up as they go along, to find shadows and penumbras, to emphasize one section of the Constitution over another in any given case, and decide whether stare decisis applies or not. Consistency is not required.

The case will be argued in terms of the Constitution and law. It will be decided based on the political readings of the Justices. Do not depend on Justice from the courts. Expect Law, which is tied to the power of the State.

Personally, I expect that there is a slightly better than 50% chance that the Individual Mandate will be struck down. But I also expect that despite the absence of a severability clause, which would doom any other law in its entirety, the rest of the taxes and regulations will be upheld. Including the majority of the law which regulates matters far beyond healthcare. The issue of whether the revenue raising clauses arose in the House will not be involved, because the House gave up its power of the purse over the last 3 years.

Count this as “cynical Saturday”.

Subotai Bahadur

Let us not overlook the 18,000 lb. elephant in the room.

ObamaCare will have to be repealed, as it is designed to fail.

It’s a simple question of how many lose their healthcare (not coverage, but the actual care), how many hospitals close, and how many middle class families fall into poverty trying to maintain the current status quo–before the population revolts.

Henry Hawkins | March 17, 2012 at 8:52 pm

It is important not to overlook the fact that, while Obamacare is too young for it, Romneycare does have a performance track record and it is miserable. Even if Obamacare is essentially struck down (sans mandate it won’t work at all), it will remain on the drawing table of liberals in slightly amended form until they again attain the WH and congressional majorities. Romneycare needs to remain enshrined as a glowing example of precisely what does not work.

If Romney had denounced Romneycare, he’d have had the 2012 GOP nomination in hand a month ago.

If Romney had stayed with his own Democrat Party, he’d have won the White House in 2008.

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