The challenge to the Obamacare mandate, long dismissed by the legal establishment and media as frivolous and almost unworthy of serious consideration, is on the cusp of victory at the Supreme Court.
Credit a few lone legal voices, including at Volokh Conspiracy, with keeping the intellectual pressure on. (added, see Crediting/Blaming the VC for the Possible Defeat of the Individual Mandate)
Cusp does not mean sure thing, but no one who paid attention to three days of oral argument can say that the arguments are frivolous and not worthy of serious consideration. Even the liberal Justices, while throwing lifelines to the Solicitor General, clearly considered the challenges as serious and substantial.
The lifeboats are in the water for Obama and the Democrats as the ship goes down, with Democrats planning to blame the Supreme Court, Dems Warn Of ‘Grave Damage’ To SCOTUS If ‘Obamacare’ Is Struck Down:
“This court would not only have to stretch, it would have to abandon and completely overrule a lot of modern precedent, which would do grave damage to this court, in its credibility and power,” said Sen. Richard Blumenthal (D), a former attorney general of Connecticut. “The court commands no armies, it has no money; it depends for its power on its credibility. The only reason people obey it is because it has that credibility. And the court risks grave damage if it strikes down a statute of this magnitude and importance, and stretches so dramatically and drastically to do it.”
Sen. John Kerry (D-MA) said the law has been thoroughly vetted.
“As a senior member of the Finance Committee,” he said, “I can tell you that we had one of the most rigorous and transparent legislative processes that I have witnessed in almost 3 decades here in the Congress. We worked with some of the brightest, most thoughtful and experienced constitutional lawyers in order to make sure that the law was constitutional.”
More of the pre-emptive blame game:
- A.J. Dionne, Judicial activists in the Supreme Court
- Jonathan Chait, Conservative Judicial Activists Run Amok
- Dahlia Lithwick, The Supreme Court’s Dark Vision of Freedom
- NY Times Editorial, The Supreme Court’s Momentous Test
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Comments
I’m hoping that all of these Dems who are threatening “horrible” consequences if the law is struck down will all collectively hold their breath until they pass out.
Maybe Guam will tip over…..
As that would go a long way to balancing CO2, liberals could contribute to the “solution” for a change!
When does Chairman Maobama chime in with Court Packing threats?
Did you know that the HMS Obamacare will only serve force fed broccoli?
“This court would not only have to stretch, it would have to abandon and completely overrule a lot of modern precedent, which would do grave damage to this court, in its credibility and power,” said Sen. Richard Blumenthal (D), a former attorney general of Connecticut.
————————————
See Scot, Dred; see also Education, Brown v. Board Of…
What an idiot. Seriously.
I am so sorry and apologize to the nation on behalf of my state’s replacing the lying fraud, Chris Dodd, with the lying Vietnam criminal, Dick Blumenthal.
I don’t know if we can ever live down the shame. 🙁
What that demonstrates is that things can always get worse.
All that wrist-slitting, spitting, and threatening fills me with hope.
For change! For a change!
Dems Warn Of ‘Grave Damage’ To SCOTUS If ‘Obamacare’ Is Struck Down
For some reason, I hear the instrumentals from this song playing in the background when I read the quotes:
Country Joe & The Fish- Feel Like I’m Fixing To Die Rag
Maybe it’s the circus calliope sound. I don’t think we are all going to die if Obamacare gets flushed.
I think the music in the background is titled “And the band played on”
5-4 decision to throw it out = divisive partisan hackery
5-4 decision to uphold = wise, non-partisan adjudication
This. You are very wise, and your username is awesome. Great job!
“As a senior member of the Finance Committee,” he said, “I can tell you that we had one of the most rigorous and transparent legislative processes that I have witnessed in almost 3 decades here in the Congress.”
So, then why did we have “to pass it to find out what’s in it”? These people are idiots. If that was transparent, we should be very worried about every other legislative process.
Yah, that is one of the biggest, fattest lies since…well, when they passed that steaming mass of poo.
NO-FLUCKING-BODY read that bill, which was drafted largely…if not mostly…by lobbyists and activists. That CANNOT be transparent. It CANNOT have been vetted.
Exactly! Nobody read that massive bill! We had to “pass it so we can find out what’s in it,” just as Nancy Pelosi advised.
And, boy, we found out!
And don’t forget, Pelosi and her merry band of miscreants, were fully prepared to “deem” it passed without a vote.
The greatest truth spoken in the last 3 years is “YOU LIE”!
Which is why I call them Deemocrats. They have NO respect for democracy. See “Fleebaggers”. Typical Collectivists.
Congress has never adequately explained why they exempted themselves from Obamacare.
I’m glad I didn’t hear Kerry. Just the mental picture of Foghorn Windbag looking down his bent patrician nose at the rest of America while bragging about “vetting” makes me want to bolt toward the nearest regurgitation receptacle.
It saddens me deeply for my husband and all who served and serve honorably that this man is a United States Senator. I would like to say to him, “Senator, the people vetted you and found that your words don’t pass the smell test any better than a two-week old fish left on hot concrete in the blistering sun.”
Do me a favor and tell your husband that the media wasn’t successful in protecting Kerry from the full story the Swift Boat Vets told in 2004. Sure, they managed to hide it from most people, but some of us got it.
Not only does John Kerry have no right to be a United States Senator, he should be in a federal prison serving life for treason. What he did on April 22, 1971 will never be forgotten.
“Congress has never adequately explained why they exempted themselves from Obamacare.”
Since it’s implemented by the Executive it could be used to coerce members of the Congress by threatening to without medical treatment.
Of course, this principle has no relevance beyond the Congress….
If it is implemented by the executive branch, and could be used to “coerce” members of congress (as if that is possible), couldn’t it be said that it could be used to coerce individual members of the public also? Or could it be used to coerce entire classes of people to do what the executor bids, perhaps even to vote for the proper people come election time?
Have any of those stinkers read the bill to this day?
Are there enough lifeboats on board the SS Obamic?
Women and children first!
That is the only ship in which I HOPE there aren’t enough lifeboats! 🙂
“Women and children first.” are words spoken by brave men of integrity and honor. You’re not going to find such men amongst the Democratic-socialist-progressive-marxist which foisted this bag of shit on us. Their plan is to live lives of luxury managing the lives, toil and sweat of others.
Women and children first? Paging Barney Frank!!!!
You’re thinking about the Costa Concordia… aren’t you? 😉
As I predicted:
7-2
Dissent:
Ginsberg: Hostile to the U.S. Constitution
Kagan: Doesn’t really care; makes up her own intellectually lazy legal basis to produce desired outcome on a case-by-case basis
I should probably throw Breyer in there too, especially if he’s going to butcher precedent this badly:
Breyer’s unhinged Commerce Clause ramblings
http://campaign2012.washingtonexaminer.com/blogs/beltway-confidential/breyers-unhinged-commerce-clause-ramblings/453011
Back to Kagan–
My fear of her being the most unqualified justice…maybe ever–appears to have justification.
Finally, someone is taking her to task (Althouse)
http://althouse.blogspot.com/2012/03/time-shifted-live-blogging-of-this.html#more
“My fear of her being the most unqualified justice…maybe ever–appears to have justification.”
I think Breyer is going to get there before Kagan does.
For the last three days, he’s started out the sessions as a bored, patronizing, supercilious old man, and he’s ended each of those days as a PO’d, bitter, resentful crank mumbling insults under his breathe.
Seriously, I think he’s in his last stage as a Justice. He’s struck me as showing significant mental deterioration over the last six months or so. He can start his days with his long-running impersonation of James Wolcott – snide and sarcastic with sometimes a touch of hostile, bitter whimsey – but more and more, it devolves into something darker and more withdrawn.
“The court commands no armies, it has no money; it depends for its power on its credibility.”
Hey Dick! You’re wrong. The court depends on Article 3 of the Constitution of the United States for its power: “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress (power derived from the consent of the governed) may from time to time ordain and establish.”
Dick.
In practice though, he’s right. Specifically, Article II Section 2 allows the Congress to make “Exceptions” to the jurisdiction of the Federal courts, although it wouldn’t cover this case since a State is a party to the lawsuit.
Then there’s the Andrew Jackson precedent, apocryphally quoted as “John Marshall has made his decision, now let him enforce it!”
So they really do depend on their reputation and credibility … but I believe Blumenthal’s argument is at least as credible if you take the reverse position on the consequences of their finding it Constitutional.
Article II deals with the power of the executive. It says absolutely nothing about Congress having the power to change the jurisdiction of the Supreme Court or any court. I do not find the “exception” to which you refer.
Article II, Section 2, Paragraph 2 states:
“He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”
Article II Section 2 also says that the President is Commander in Chief and may fill vacancies during Senate recesses. Those are two other areas where the current occupant of the Executive branch sports an epic fail.
““The court commands no armies, it has no money; it depends for its power on its credibility. The only reason people obey it is because it has that credibility. ” – reminds me of Stalin’s comment about “How many divisions does the Pope have?”. 80 years later, the socialist ideal that was the USSR is long gone, and the Catholic Church keeps on going.
“The lifeboats are in the water at the Good Ship Obamacare Mandate.”
Whaddya mean these lifeboats are wind-powered? What are we gonna do without any freaking oars?
Are you suggesting there is a shortage of windbags in the democrat party?
I am absolutely ashamed that the world gets to witness elected representatives of this country saying things such as this … it used to be an “occasional” thing but has become the norm, and … I’m just ashamed.
So am I, especially when I hear immigrants from other countries railing about how we’re blowing it. I really take it to heart when somebody from the former Communist bloc says we’re going down the wrong road. Nothing says “Nyet” like a voice from Poland or East Germany.
“The court commands no armies, it has no money; it depends for its power on its credibility.”
No Justice justice, No peace!
If the whole Act goes down, it will be up to the GOP to propose a replacement. They haven’t been able to come up with one that the whole GOP can agree on yet. And the House GOP promised to hold Committee hearings last year on a replacement–that hasn’t happened.
This is going to be an issue that won’t go away.
And people like me are going to correctly say that the Roberts court again demonstrated judicial activism if it throws out the whole Act. And we will also remind people that the GOP and the Supreme Court ended up throwing people (and children) with pre-existing conditions under the bus for political reasons.
Pfffftttt…!!!
What a(nother) steaming pile of excrement!
IT IS THE MATH, stupid…!!!
How ’bout this for a “replacement”; let people chose how to address their health via the market.
Ummmm, what’s a pre-extisting condition, except a decision to refuse to buy insurance followed by a demand that somebody else pay the bills?
Just askin’
It’s also the inability to buy insurance in the private market once you’ve left an employer and you’ve exhausted your COBRA coverage.
Yes, that is a problem, but Obamacare is not the fix. MSAs, which have been proposed numerous times are the fix.
the “pre-existing conditions” clause is one that is critical to medical insurance. Without it, there cannot be medical insurance.
That depends on the state. For example, it’s not true at all in California.
The GOP does not seem to have a fix for it, though. (They need to fund state pools for people with pre-existing conditions with adequate amounts, as one suggestion, or to require insurance companies to accept ex-employees and dependents who lose insurance because of a change in employment, for another).
MSAs (or HSAs) are also not the fix. They require a high deductible but they also require insurance to be issued with the deductible. People can’t get the insurance because of pre-existing conditions.
I don’t think you’re right, Valerie. California formed a pre-existing pool under Obamacare for people who couldn’t get insurance for six months. If California was a “must issue” state, they wouldn’t need that pool.
But if it’s unconstitutional, isn’t that important too? Congress passes a law saying “counties with high gun ownership have lower crime, so therefore everyone must by a gun.” We can all agree that this is unconstitutional, right? If the Court throws it out, are they being “activists?” It would then behoove Congress to solve high crime rates through another means, right? This bill, Obamacare, is a terd that can’t be polished. It tries to accomplish something (control of healthcare) that is of questionable constitutionality itself, by a BLATANTLY unconstitutional means. The ends CAN’T justify the means in this case, simply because at that point there is NO LIMIT on federal power, other than the government saying, “Trust us. We have the power to do this, it effects interstate commerce.”
Further, what would you leave for the states? Is there any point to them anymore? If everything is a federal mandate (education, energy, criminal, civil, transportation, and now healthcare), why do we have state houses?
Without a severability clause, anything but striking down the entire bill should be considered Judicial activism.
I think we need to coin a new term: “Legislative activism” Yes, legislators are supposed to “act”, and they create all manner of “Act”s, and they more often than not “act” like asses, but there’s a difference between what they are supposed to do and what they actually do. What they are supposed to do is legislate to the extent needed by the people, and no more. Disregarding that is what sent us down this commerce clause slippery slope in the first place. Any legislator who acts extra-constitutionally should be labeled a “Legislative activist” as a derogatory term for somebody overstepping the limit of their power, much as we think of police brutality when we hear the phrase “…under color of authority.”
Ah, but in Article I, section 8, the Congress actually does have enumerated powers in that area:
Based on a law passed by the first Congress that’s still in effect after various amendments, if you’re e.g. under 45 you are at minimum a member of the “unorganized” militia.
Because Title 10 USC section 311 defines the unorganized militia as being all able-bodied males between the ages of 17 and 45, there would be no issue should Congress could pass a law requiring the purchase of a firearm by said segment of the population?
The words “necessary and proper” have resulted in more faulty logic…
Actually I think that is a bad example… Perhaps for the purposes of crime prevention the people couldn’t be compelled to buy a weapon.
But If I recall the former militia act required ownership of a weapon, though you could buy, borrow or perhaps steal a weapon when called upon to demonstrate your ownership.
It could do this to the male population as they are ( and still are) members of the Nation’s and the State’s militia reserve until age 65.
That is just sick.
Besides, if a GOP-controlled congress, especially the House, forms a bill and gets it to the floor and it’s going to pass, the ‘rat House members will simply run and hide or try to physically lock the GOP out of chambers. ‘Rats are a bunch of pugnacious heathens practicing the Alinsky method of governance at full throttle. They will not compete in a civilized manner.
Props. Remember…FLEEBAGGERS…
Typical. Your party couldn’t get the job done, again, and the responsibility falls to someone else. How’s your party run senate doing at a budget? That’s right they passed on doing their jobs again.
Excuse me but SCOTUS didn’t write this piece of crap…and the dimwits wrote out VC!!! Without a VC, congress was “betting the farm” by playing chicken with the court (all or nothing).
Even with a VC, if the IM got tossed, the bill becomes a headless, heartless animal begging for a mercy kill.
It was shoved down our throats with NO transparency. I doubt if ANYONE in the house/senate, who voted for it, fully read it.
An insight into the liberal view of government:
http://proteinwisdom.com/?p=38734
Kagan thinks federal money is a fantastic boon granted by the benevolent fed to the ingrateful states, instead of being money taking from its citizens for redistribution, and eventual repayment.
What Kid Blumenthal said reads as downright pugnacious.
The tantrums are starting.
they had months to bring together a cogent defense. maybe next time senator keery or blumenthal should get in front of the supremes to make a case.
armchair qbs, the lot of ’em.
personally, i think that the defense was unprepared for such rigorous questioning from both sides. i know that in preperation they did mock trials, but one has to wonder who they had simulating the opposition, if at all?
if this regime’s track record is any indicator, they just didn’t anticipate how to respond to criticism of their position in a neutral venue.
or, simply, their well backed arguments fell to pieces within the first 2 minutes of verilli’s speech because they weren’t so hot to begin with.
Maybe they’re just delusional or as tone-deaf about this as they are everything else. It could be that simple.
So does this mean that the Sandra Fluke “adventure” was all for nothing ?
1. Dahlia Lithwick, The Supreme Court’s Dark Vision of Freedom
Brava, Ms. Lithwick, you speaker of truth to power! The Supremes better not mess with my freedom to be forced to buy health insurance.
2. Sen. John Kerry (D-MA) said the law has been thoroughly vetted.
While I’m always ready to be corrected by use of hyperlinked facts, my understanding is that the bill was
passedrammed through in half-baked form because Scott Brown’s election deprived the Democrats of a filibuster-proof Senate majority.I recently commented:
Congratulations to Bill that John Kerry reads this blog, but, Senator, fyi my comment was a joke. It was a joke, just like…nevermind.
Hey Professor, here’s an idea for some online fun on that other big story. Encourage bloggers to send the New York Times other examples of “white Hispanics” and ask why they have never referred to them with that description. To get the ball rolling, I sent these to the public editor of the New York Times with that question.
http://en.wikipedia.org/wiki/Bill_Richardson
http://en.wikipedia.org/wiki/Bob_Menendez
““The court commands no armies, it has no money; it depends for its power on its credibility. The only reason people obey it is because it has that credibility. ”
Whereas POTUS has no credibility, so he uses the EPA and Holder and executive order.
Striking down a law that 70% want overturned, and that was written by lobbyists, and passed without being read (with some 300 pages added at 3AM before the vote) …does NOT seem like judicial activism.
They knew no one wanted a huge tax increase to fund this beast, so they lied to us with a “mandate” … now they try to call it a tax. Who else is going to limit the power of an out of control government besides SCOTUS?
“Striking down a law that 70% want overturned, and that was written by lobbyists, and passed without being read…”
SUCH a racist…!!!
(do I really need a “sarc” tag…???)
Dunno’ ’bout that Ragspierre, #44 and his sidekick Holder, just may attempt a “racist” slant with this thing.
They haven’t tried that shtick yet.
Umm, to borrow your wise words: “(do I really need a “sarc” tag…???)”. 😉
An excellent riposte to Blumenthal’s petulant remarks.
If the court relies on its credibility for power, what does this executive rely on for power in its lack of credibility? Thuggery.
It’s actually more like 55%-45% (approx.) but large majorities support the “no pre-existing exclusions”, “allowing kids to stay on policies until 26” and a few other provisions. Heck, I’ve seen some polls that say a small majority is in favor of birth control being provided without a co-pay.
It would be judicial activism to throw out the whole law, because it’s more than the court needs to do.
I heard 70% today .. not sure what question was asked exactly. Ask the right people if they want more “free” things and they often say yes. Ask if they want their health insurance rates to triple and they say no.
The severability was intentionally removed by Democrats. So if the mandate is not constitutional, it seems like proper judicial restraint to find that. Then ruling the other parts are not severable seems very straight forward.
You’re full of crap on severance, jimbo.
A canon of legislative interpretation is that a court MUST give effect to the plain meaning of the words present…and ABSENT…on the printed page.
Rags, go read the case law, please.
Are you denying what I said…??? Yes or no.
Yes–go see below re: the Brock case at the Supreme Court.
I’m not so sure the court will throw out any part of it.
I watched a show on CSPAN Sunday night about the Supreme Court and it was very interesting but also extremely maddening. The integrity of the court itself seems to be the most important thing to everybody connected to it. The history and “majesty” (for lack of a better word). I found it inspiring but at the same time it made me cry.
Civility was paramount. Much emphasis was placed on how collegial and respectful the justices were with each other. They interviewed all of them and the stress they all placed on being “respectful” in arguments was depressing.
Towards the end of the program they showed Roberts in one of the conference rooms that have portraits of former justices. One room has historic portraits and the other has more modern day portraits. Roberts singled out the justice who wrote the Dred Scott decision and as they showed his portrait on camera Roberts described how one well meaning man could make such a terrible mistake and how they all, meaning all the justices of today, always keep in mind the magnitude of the decisions they make.
The problem is that that man didn’t make that decision by himself. He managed to persuade a majority to agree with him. After watching this show for almost an hour and listening to them all describe how much pride they take in never being disrespectful in their arguments with each other, it was just too much for. Did Roberts really not get it? I want somebody to argue with passion. I want them to pound the table in defense of unalienable rights and individual freedom. I don’t give a rats ass if they manage to sit down for lunch everyday and talk about the opera.
It was very depressing. I don’t think they’ll over turn it. It would make lunch too awkward.
not true. part of the mutual respect is respecting the way someone votes.
and when you get emotional you get problems(see the disfunctional wisconsin supreme court). sure, it makes fine drama on the screen. reality is far different.
Sorry, I don’t buy that. You assume all votes deserve to be respected.
They don’t.
As far as Wisconsin is concerned? There’s a big difference between passion and assault. It’s only liberals who equate the two. And they deserve no respect.
I agree with Jaynie, there seems to be an obsession in washington with protocol and decorum and it can really hamper good faith efforts to make necessary changes. Routinely, politicians will go there with the best of intentions, but they are quickly subsumed in the washington aura, and are soon talking about how we–the voters–couldn’t possibly understand why the politician couldn’t be as partisan as he intended to be. We aren’t equipped to understand the washington way, see.
It is most certainly true that some opinions are not worth others. I can tell you that I have no interest in reading a Kagan, or Ginsberg, or a Sotomayer opinion.
There are 4 members of the court who are more or less mainstream. There are 4 more that are batshit crazy activists and don’t belong in a county courthouse as an attorney, let alone jurors in the highest court of the land. And there is one more member that who-the-hell knows how he’ll vote on any given day.
you imply all votes you disagree with don’t deserve to be respected?
and yes, liberals do deserve to be respected. the real ones, not the BS ones of the past two decades who pass off tyranny for liberalism.
of course by ‘liberal’ I mean the batshit crazy ones of today. The type that champions a perverse inhuman collectivist tyranny. Just because some loony invents some idiotic theory does *not* mean I have to grant it any respect whatsoever. I can argue cutting the federal budget here versus there, but I cannot waste time considering the ideas who say a $15.5 trillion deficit is reasonable. That’s just silly. I cannot waste time treating with someone pushing a mandate that ironically if held ‘constitutional’ would mean that we have no constitutional protections whatsoever.
save me your sanctimonious bullshit.
Lets not play word games, I consider myself a classical rational liberal. That ain’t what I’m talking about, friend.
From what I gather, they don’t do much “arguing” at all.
Indeed, individual justices may never discuss a case with all…or any…of their colleagues.
I have read that Thomas does circulate a good bit among the other justices, and that he is known for his bonhomie and his legal insights.
What they DO is write, and circulate drafts among their peers and clerks.
“I don’t think they’ll over turn it. It would make lunch too awkward.”
Hmm… Let’s think about that.
Bush v. Gore
Citizens United…
You can fill in some others. Those were about as hotly contested as anything you will ever, ever see.
Tad early to be dancing on the grave when the backhoe and its operator still have not left the shed, yet. Take your cue from the residents of Transylvania who do not leave their doors unlocked at night until after the wooden cross shaped stake has been driven through the heart of the suspected vampire laying in its coffin. Barack Obama is still too treacherous, too cunning, too resourceful a beast to be treated this casually. Gaze instead upon the Left’s frolicking, thinking they have found their very own Reichstag Fire Moment in Trayvonn Martin vs George Zimmerman and take warning.
Agreed. These treacherous bastards always have one more card to play, one more shady trick or move, one more destructive weapon in their arsenal to wield against America.
Wait a minute. Are you implying that Baraky is a vampire?
I had never considered this possibility. Things are becoming clearer now.
Remember, all these pundits who are now wringing their hands that Obamacare or at least the mandate may be declared unconstitutional have spent the past two years trying to persuade everyone this was not a serious legal challenge. Now they are almost all lined up on the other side of the boat warning that the law, or at least the mandate, is in trouble.
Given their track record, I don’t want to put too much weight on what they think. Those of us who want it struck down may end up being disappointed. I wish everyone would just stop offering opinions about how SCOTUS will rule and wait for the actual ruling.
I guess they just can’t stop lobbying for their desired outcome.
“The court commands no armies….”
Didn’t Stalin say something similar about the Pope?
We can see how that worked out.
Guess again, Senator Blumenthal.
I just heard Rush say, “Obama needs enemies…”
At least, I HOPE he was saying “enemies”…
Although…Mel Brooks…
[…] The lifeboats are in the water at the Good Ship Obamacare Mandate (Le·gal In·sur·rec·tion) Share this:ShareDiggTwitterLinkedInRedditStumbleUponFacebookPrintEmailTumblrPinterestLike this:LikeBe the first to like this post. Posted in healthcare, Obamacare, politics, scams, silly laws and tagged constitution, constiutional law, Health insurance, healthcare debate, individual mandate, Obamacare, Obamacare constitution, Patient Protection and Affordable Care Act, Politics, Pre-existing condition, severability constitution, severability law, severability Obamacare, supreme court individual mandate […]
The bullshit that spews from these Democrats is exasperating. That is my most technical explanation. Bullshit.
Casting blame and spinning from the left is a good sign. One thing for sure, no matter what the decision, Paul Clement earned every dollar of the $250,000 the states are paying him .. and then some IMO. That man is one great lawyer:)
A million likes. Paul Clement. What is the matter with this country that this man is not already on the Supreme Court.
People like him are the leftists’ worst nightmare and they will do anything to stop them. Remember Robert Bork? He also is a brilliant jurist that should be on the Supreme Court. Instead, we have Breyer.
Remember when another Democrat lambasted the court for a decision he disagreed with? Charles Lane does:
Justice Kennedy, of course, is the author of the court’s opinion in Citizens United, the 2010 decision that struck down restrictions on political expenditures by corporations and unions. Citizens United brought about huge denunciations of the court, mostly from Democrats — and including this memorable public tongue-lashing from President Obama in his 2010 State of the Union Address, in which the president accused the court of “opening the floodgates” to foreign influence over US elections.
You can relive that moment in this video. Please note that, sitting in the front row, silently absorbing the president’s national televised scolding, and the uproar from Democratic senators that followed, is none other than Justice Anthony M. Kennedy.
But I am sure that will have nothing to do with the way he looks at the health care case.
As a bonus, consider that Lane was part of the editorial board that endorsed Obama concluding:
But Mr. Obama’s temperament is unlike anything we’ve seen on the national stage in many years. He is deliberate but not indecisive; eloquent but a master of substance and detail; preternaturally confident but eager to hear opposing points of view. He has inspired millions of voters of diverse ages and races, no small thing in our often divided and cynical country. We think he is the right man for a perilous moment.
The undeserved praise for the candidate’s temperament is ironic given that it Obama’s narrow mindedness that led him to berate the justices two years ago. If that poor temperament rubs off on the rest of his party (as it seems to) it might turn off a whole lot more independents as the veneer of reasonableness is stripped away from the Democrats.
As liberal opinion writers go, I used to think Lane was reasonable and mostly fair. But this inference that Justice Kennedy may over-rule the mandate or the entire Act based on anything other than constitutional grounds, insinuating Justice Kennedy is a petty man whose out to settle an old score with the president, is not something I’d expect from Lane. I used to think Lane was better than this.
However, I’m also relatively certain he is the primary author of the March 2 WaPo editorial titled, “The GOP Can No Longer Avoid It’s Rush Limbaugh Problem”. The way I saw it at the time, that editorial served two primary purposes: 1) To closely associate Rush’s problems with the GOP with the hope the Democrats could parlay it into a political advantage; and 2) To try to persuade more advertisers to drop Rush so that Rush might lose his radio gig.
The reason why I think it was Lane who wrote it is because he appeared on Special Report with Brett Baier the day the editorial ran. When the panel discussed what had been happening with Rush, Lane could not disguies his outright contempt for Rush. I’d bet my last cheeseburger that he authored the editorial.
So the next time you see him on Special Report and he strikes you as reasonable and fair, remember this snear job he put out on Justice Kennedy and WaPo’s editorial hit job on Rush.
I believe Lane was rebuking the President for his intemperate attack on the Supreme Court for Citizen’s United. I don’t believe he was demeaning Kennedy at all. I read his column as saying, don’t expect Kennedy to give ObamaCare any benefit of the doubt.
Lane is more sensible that most liberal opinion writers. He defended Santorum when liberals were going after him for taking his dead son home for his children to see the brother they would soon bury. (Lane suffered a similar loss.) He blasted Chas Freeman’s hysterical smear of Israel’s supporters and he’s pointed out that the green economy is an illusion.
I’m not going to say that he’s perfect, but I do think that in many cases he’s entirely reasonable. And I read this column differently from the way you do.
Panic at the White House…
I believe Kagan expressed the misconception best when she questioned the origin of wealth in our world. Apparently, she does not understand that it is a product of human labor directed to recover and develop resources in order to elevate and sustain the human condition.
That said, there are reasonable compromises between individuals of dignity coexisting in a society. The government’s role in a society is to act as an overseer and not a master. It is supposed to address progressive corruption instead of manufacturing it.
When are we going to tax health insurance benefits as income, and move to separate health insurance from employment? That would mean losing a job doesn’t necessarily mean losing insurance.
When are we going to get more medical schools? Or allow people with less than medical degrees more liberty to deliver medical care? For example, more nurse practitioners? Alaska has a program where dental people can do work up to and including filling routine cavities. While doctoring does require some expertise, much could be taken care of by others. We allow men with some training to serve as medics in combat. Medics in WWII could remove an appendix on a submarine. While I would prefer a surgeon to remove mine, one did, a great deal of routine work could be done by lesser mortals.
We need to move away from physicians and their practices billing insurance companies directly. The consumer frequently has no idea of costs, until weeks after an event when they finally get a bill demanding coverage of the deductible. A person gets all sorts of disclosure forms for a loan, why not for medical procedures. Sure, when I needed my appendix out, I didn’t shop for the best deal, but that wasn’t an option. I went to the doctor’s office at 8 am, the appendix wasn’t removed until 7:30 pm. I had time to find a good deal on an appendectomy.
Now, you’ve gotten to the root of the problem-
The root of the solution.
Healthcare insurance is not healthcare, nor insurance.
Good points. Moreover, most medical diagnoses seem quite susceptible to computerization. The model would have to be quite complicated and might take years to fully develop, but this is one case where the workings of the human mind might be duplicated, even surpassed, by a computer.
I pray you are prescient, Professor.
Yes, the lack of common sense is stunning.
P.S. My comment was meant to be posted in reply to that of LukeHand Cool who wrote:
“The lifeboats are in the water at the Good Ship Obamacare Mandate.”
Whaddya mean these lifeboats are wind-powered? What are we gonna do without any freaking oars?
https://legalinsurrection.com/2012/03/the-lifeboats-are-in-the-water-at-the-good-ship-obamacare-mandate/comment-page-1/#comment-326330
[…] Barnett! It’s His Fault! Posted on March 29, 2012 6:22 pm by Bill Quick » The lifeboats are in the water at the Good Ship Obamacare Mandate – Le·gal In·sur·rec·t… Credit a few lone legal voices, including at Volokh Conspiracy, with keeping the intellectual […]
“Sen. John Kerry (D-MA) said the law has been thoroughly vetted.”
Just the fact that Kerry said anything tosses out the liberals and what they say. “Vetted” is probably the worst description of the health care reform law that could have been chosen. In fact “vetted” would have included the separation feature with regard to the public mandate.
Not only should the ship of Obamacare sink, the lifeboats face angry seas as well…
This would be a poor time to party and crow and and nyah-nyah-nyah at the clueless Democrats.
Pretty much everything I’ve been reading – blogs, papers, mags, news – talks about widespread disillusionment with BHO from . . . everywhere and everyone.
Our typical Republican tactical move when we get handed this kind of free gift (you know, like when the other side kicks some seniors and drops a baby and gets caught on a live mic giving aid and comfort to Russia, all in one week) – our usual next move is to have what I’d call a Newt Moment.
And if we all post and comment giddily at thrice our usual rate about how those idjits did enough own goals to make Peewee Hermann look chaste, lots and lots of MSMers who’d rather not be covering BHO and/or his Care this week are very quickly going to turn in perfect formation and grasp this new opportunity and add quite a few well-organized lies and we’re going to be every bit as well-loved by the voters as BHO.
That’s a “Newt Moment.”
But I do have to add:
Sen. John Kerry . . . said the law has been thoroughly vetted. . . . “As a senior member of the Finance Committee,” he said, “I can tell you that we had one of the most rigorous and transparent legislative processes that I have witnessed in almost 3 decades here in the Congress.”
The process was transparent?
The process that produced a bill the contents of which the Dems wouldn’t allow anyone to see until it was passed?
Maybe he meant it was transparently dishonest.
From Alaskan Airlines v. Brock:
“[A] court should refrain from invalidating more of the statute than is necessary. . . .”
“[W]henever an act of Congress contains unobjectionable provisions separable from those found to be unconstitutional, it is the duty of this court to so declare, and to maintain the act in so far as it is valid.”
Regan v. Time, Inc., 468 U. S. 641, 468 U. S. 652 (1984) (plurality opinion), quoting El Paso & Northeastern R. Co. v. Gutierrez, 215 U. S. 87, 215 U. S. 96 (1909). The standard for determining the severability of an unconstitutional provision is well established:
“‘Unless it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law.'”
Buckley v. Valeo, 424 U.S. 1, 424 U. S. 108 (1976) (per curiam), quoting Champlin Refining Co. v. Corporation Comm’n of Oklahoma, 286 U. S. 210, 286 U. S. 234 (1932). Accord, Regan v. Time, Inc., 468 U.S. at 468 U. S. 653; INS v. Chadha, 462 U.S. at 462 U. S. 931-932; United States v. Jackson, 390 U. S. 570, 390 U. S. 585 (1968).
Congress could not have intended a constitutionally flawed provision to be severed from the remainder of the statute if the balance of the legislation is incapable of functioning independently. See, e.g., Hill v. Wallace, 259 U. S. 44, 259 U. S. 70-72 (1922) (Future Trading Act held nonseverable because valid and invalid provisions so intertwined that the Court would have to rewrite the law to allow it to stand). This is not a concern, however, when the invalid provision is a legislative veto, which, by its very nature, is separate from the operation of the substantive provisions of a statute. Indeed, when Congress enacted legislative veto provisions, it contemplated that activity under the legislation would take place so long as Congress refrained from exercising that power. [Footnote 6] The independent operation of a statute in the absence of a legislative veto provision thus could be said to indicate little about the intent of Congress regarding severability of the veto.
The more relevant inquiry in evaluating severability is whether the statute will function in a manner consistent with the intent of Congress. In considering this question in the context of a legislative veto, it is necessary to recognize that the absence of the veto necessarily alters the balance of powers between the Legislative and Executive Branches of the Federal Government. ……The final test, for legislative vetos, as well as for other provisions, is the traditional one: the unconstitutional provision must be severed unless the statute created in its absence is legislation that Congress would not have enacted. [Footnote 7]
The inquiry is eased when Congress has explicitly provided for severance by including a severability clause in the statute. This Court has held that the inclusion of such a clause creates a presumption that Congress did not intend the validity of the statute in question to depend on the validity of the constitutionally offensive provision. See INS v. Chadha, 462 U.S. at 462 U. S. 932; Champlin Refining Co. v. Corporation Comm’n of Oklahoma, 286 U.S. at 286 U. S. 235. In such a case, unless there is strong evidence that Congress intended otherwise, the objectionable provision can be excised from the remainder of the statute. In the absence of a severability clause, however, Congress’ silence is just that — silence — and does not raise a presumption against severability. See Tilton v. Richardson, 403 U. S. 672, 403 U. S. 684 (1971) (plurality opinion); United States v. Jackson, 390 U.S. at 390 U. S. 585, n. 27.
http://supreme.justia.com/cases/federal/us/480/678/case.html#684