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Getbig Main Boards => Politics and Political Issues Board => Topic started by: Soul Crusher on March 27, 2012, 09:27:54 AM
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http://www.businessinsider.com/people-are-saying-that-obamas-healthcare-law-got-massacred-in-the-supreme-court-today-2012-3
Awesome - will post the tape later.
FFFFUUUCCCCKKKKK OOOBOBBBBAAAAMMMAAAA ! ! ! ! !
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I just recently decided to myself that this law is unconstitutional.
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I just recently decided to myself that this law is unconstitutional.
WTF took you so long?
No one disputes the right of the govt to regulate commerce, but compelling commerce is something well beyond any historical precedent.
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Excellent, now recovery can start...
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Excellent, now recovery can start...
Not over till the fat lady sings.....
This could still end badly..... Depends on how much money has changed hands, lol.
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Administration Admits to Court: Under Obamacare, Select Group Can Get Health Care, Not Pay for It...
CNSNews ^ | March 26, 2012 | Terence P. Jeffrey
(CNSNews.com) - President Barack Obama has justified the mandate in his health-care law that requires individuals to buy health insurance by arguing that it will eliminate free riders—that is, people who get health care (often from emergency rooms) but, lacking insurance, never pay anything back into the health-care system.
"So that's why the individual mandate's important," Obama explained in a speech on Aug. 15, 2011.
"Because the basic theory is, look, everybody here at some point or another is going to need medical care, and you can't be a free-rider on everybody else," said Obama. "You can't not have health insurance, then go to the emergency room, and each of us, who've don the responsible thing and have health insurance, suddenly we now have to pay the premiums for you. That's not fair. So, if you can afford it, you should get health insurance just like you get car insurance."
However, in the Supreme Court on Monday, Justice Samuel Alito forced President Barack Obama’s solicitor general, Donald Verrilli, to admit that under Obamacare these free riders will not be eliminated despite the individual mandate.
For an elite group—including people eligible for Medicaid who don’t sign up for it and people whose health care expenses exceed 8 percent of their income—the Obamacare mandate is no mandate and the penalty is neither a penalty nor a tax because they are not required to pay it, period.
Under Obamacare, Verrilli conceded, these people can continue to receive free health care care, not sign up for health insurance, not sign up for Medicaid, and not pay a penalty.
Here is an exchange that took place during today’s oral arguments in the Supreme Court in which Verrilli explained this part of the Obamacare law:
Justice Sam Alito: Sub-section A says directly, "an applicable individual shall ensure that the individual has the minimum essential coverage." And you are saying it doesn't really mean that, that if you're not subject to the penalty, you're not under the obligation to maintain the minimum essential coverage?
Solicitor General Donald Verrilli: That's correct. And we think that is what Congress is saying, both in the provision I just pointed to, Your Honor, and by virtue of the way -- by virtue of the way the exemptions work. I just think that's the -- reading this in context, that is the stronger reading of the statute.
Chief Justice John Roberts: Suppose it makes it easy for the government to drop the other shoe in the future, right? You have been under the law subject to this mandate all along. You have been exempt from the penalty, so all they have to do is take away the penalty.
Verrilli: I don't -- I don't think so, Mr. Chief Justice. I don't think it makes it easy for the government in the future. We think this is the fairest reading of the statute, that the -- that the -you cannot infer from the fact that someone is exempt from the penalty, that they are still under an obligation to have insurance. That's just not the fairest reading of the statute.
Justice Elena Kagan: Could I--
Alito: I'm sorry, go ahead.
Kagan: The nature of the representation you made, that the only consequence is the penalty, suppose a person does not purchase insurance, a person who is obligated to do so under the statute doesn't do it, pays the penalty instead, and that person finds herself in a position where she is asked the question, have you ever violated any federal law, would that person have violated a federal law?
Verrilli: No. Our position is that person should give the answer "no."
Kagan: And that's because—
Verrilli: That if they don't pay the tax, they violated a federal law.
Kagan: But as long as they pay the penalty—
Verrilli: If they pay the tax, then they are in compliance with the law.
Justice Stephen Breyer: Why do you keep saying tax?
Verrilli: If they pay the tax penalty, they're in compliance with the law.
Breyer: Thank you.
Verrilli: Thank you, Justice Breyer.
Breyer: The penalty.
Verrilli: Right. That's right.
Alito: Suppose a person who has been receiving medical care in an emergency room -- has no health insurance but, over the years, goes to the emergency room when the person wants medical care -goes to the emergency room, and the hospital says, well, fine, you are eligible for Medicaid, enroll in Medicaid. And the person says, no, I don't want that. I want to continue to get -- just get care here from the emergency room. Will the hospital be able to point to the mandate and say, well, you're obligated to enroll?
Verrilli: No, I don't think so, Justice Alito, for the same reason I just gave. I think that the -- that the answer in that situation is that that person, assuming that person -- well, if that person is eligible for Medicaid, they may well not be in a situation where they are going to face any tax penalty and therefore—
Alito: No, they are not facing the tax penalty.
Verrilli: Right, right.
Alito: So the hospital will have to continue to give them care and pay for it themselves, and not require them to be enrolled in Medicaid.
Verrilli: Right.
Alito: Will they be able to take this out and say, well, you really should--you have a moral obligation to do it; the Congress of the United States has said, you have to enroll? No, they can't say?
Verrilli: I do think it's--I think it's certainly fair to say that Congress wants people in that position to sign up for Medicaid. I think that's absolutely right. And I think the statute is structured to accomplish that objective; but, the reality still is that the only consequence of noncompliance is the penalty.
Justice Sonya Sotomayor: General, but I thought the people who were eligible for Medicaid weren't subject to the penalty. Am I wrong? I could be just factually wrong.
Verrilli: Well, it all--the penalty is keyed to income.
Sotomayor: Yes.
Verrilli: And it's keyed to a number of things. One is, are--are you making so little money that you aren't obligated to file a tax return. And if you're in that situation, you are not subject to the penalty. It's also if the cost of insurance would be more than 8 percent of your income, you aren't subject to the penalty. So there—there--there isn't necessarily a precise mapping between somebody's income level and their Medicaid eligibility at the present moment. That will depend on where things are and what the eligibility requirements are in the State.
Sotomayor: But those people below—
Verrilli: But as a general matter, for people below the poverty line it's almost inconceivable that they are ever going to be subject to the penalty, and they would, after the Act's Medicaid reforms go into place, be eligible for Medicaid.
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Let's hope so but I don't trust Obama. If it doesn't go, he'll lie, threaten, coerce and go behind the backs of the courts to see this goes through. Obamacare passed because he went behind the backs and behind closed doors without a vote. Even that was unconstitutional but it went through. Like most liberals, he'll lie.
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Read These Questions, And You'll See Why Today Was A Disaster For Obamacare
Joe Weisenthal | 13 minutes ago | 436 | 4
Today was day 2 in the Supreme Court's 3-day hearing over the constitutionality of Barack Obama's healthcare reform.
Specifically, legal opponents of the law claim that the so-called "individual mandate" which requires everyone to buy health insurance is unconstitutional because the government shouldn't be able to mandate people buy a product.
The verdict from the experts is that today was a disastrous day for the Obama administration, and that the justices took a very hostile line of questioning towards the administration.
Well you don't need to be a legal expert to see why today was such a setback.
The transcripts are available, and right off the bat you can see what's the trouble.
Check out this pivotal question from Justice Kennedy, who is often seen as a "swing vote". Obama almost certainly needs his vote.
JUSTICE KENNEDY: Could you help -- help me with this. Assume for the moment -- you may disagree. Assume for the moment that this is unprecedented, this is a step beyond what our cases have allowed, the affirmative duty to act to go into commerce. If that is so, do you not have a heavy burden of justification? I understand that we must presume laws are constitutional, but, even so, when you are changing the relation of the individual to the government in this, what we can stipulate is, I think, a unique way, do you not have a heavy burden of justification to show
When the court's swing voter is telling you that you have such a heavy burden of justification, that's a problem.
Obama's Solicitor General (the title of the attorney that argues on behalf of the administration at The Supreme Court) Donald Verrilli Jr. answers the question by arguing that healthcare is unique because you need to have insurance before the point of sale... before the point where you're technically entering the market.
Verrilli then faces some hard questioning from Scalia about defining entry and exit from the health insurance market, and he brings up the great broccoli example..
JUSTICE SCALIA: Could you define the market -- everybody has to buy food sooner or later, so you define the market as food, therefore, everybody is in the market; therefore, you can make people buy broccoli.
Verilli then stumbles through an argument about why the food and healthcare market was bad, and you know he stumbled through it because one of the Court's most liberal judges felt the need to come in for a rescue, making his argument for him.
JUSTICE GINSBURG: Mr. Verrilli, I thought that your main point is that, unlike food or any other market, when you made the choice not to buy insurance, even though you have every intent in the world to self-insure, to save for it, when disaster strikes, you may not have the money. And the tangible result of it is -- we were told there was one brief that Maryland Hospital Care bills percent more because of these uncompensated costs, that families pay a thousand dollars more than they would if there were no uncompensated costs. I thought what was unique about this is it's not my choice whether I want to buy a product to keep me healthy, but the cost that I am forcing on other people if I don't buy the product sooner rather than later.
So there you go. You have the swing vote making a hard argument against the government, and you have a liberal judge trying to resuscitate him by making his argument for him.
Disaster.
For more on what went down today, see here >
Read more: http://www.businessinsider.com/ginsburg-and-kennedy-questions-on-obamacare-2012-3#ixzz1qLAh9Evi
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not a good day for camp romney. this means he passed and supported for years an UNCONSTITUTIONAL LAW.
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not a good day for camp romney. this means he passed and supported for years an UNCONSTITUTIONAL LAW.
10th Amendment anyone?
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After Day Two: Justices Skeptical of ObamaCare Constitutionality
Townhall.com ^ | 3/27/2012 | Katie Pavlich
Day two of oral arguments at the Supreme Court have just finished. MSNBC has just reported the Justices were very skeptical when it came to the constitutionality of ObamaCare. The report also said that although the question of “If the government can mandate the purchase of health insurance, can’t it do anything?” is “extremely complicated,” the Justices were not convinced of the argument given by representation in the courtroom arguing the individual mandate isn’t an overreach of federal government power.
More from Judge Andrew Napolitano on Fox News:
"It appears that Justice Kennedy asked some of the most profound and stinking questions of the government."
"Exceedingly sharp questioning."
"I do believe the court will invalidate the individual mandate by a 5-4 vote," adding Justice Kennedy will vote to strike the mandate.
Video: "Trainwreck for the Obama Administration"
Townhall’s Kate Hicks, who was in the courtroom for oral arguments today, will have a report shortly. Stay tuned.
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http://www.realclearpolitics.com/video/2012/03/27/toobin_this_was_a_train_wreck_for_the_obama_administration.html
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http://www.supremecourt.gov/oral_arguments/argument_audio_detail.aspx?argument=11-398-Tuesday
Here are the audio
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Breyer and Kagan are two hard leftists.
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not a good day for camp romney. this means he passed and supported for years an UNCONSTITUTIONAL LAW.
This isn't about Romney and this thread has nothing to do with him. This thread is about OBAMACARE and the court case against OBAMACARE.
Fuck off.
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Justice Roberts: Can the government make you buy a cell phone?
politico ^ | Marhc 27 2012 | BYRON TAU
Opponents of the individual mandate provision of President Obama's health care law contend that if the government can force you to buy health insurance, its powers of compulsion are virtually unlimited. Chief Justice John Roberts wonders what else Washington can force citizens to buy in this exchange:
CHIEF JUSTICE ROBERTS: Well, the same, it seems to me, would be true say for the market in emergency services: police, fire, ambulance, roadside assistance, whatever. You don't know when you're going to need it; you're not sure that you will. But the same is true for health care. You don't know if you're going to need a heart transplant or if you ever will. So there is a market there. To -- in some extent, we all participate in it. So can the government require you to buy a cell phone because that would facilitate responding when you need emergency services? You can just dial 911 no matter where you are?
GENERAL VERRILLI: No, Mr. Chief Justice. think that's different. It's -- We -- I don't think we think of that as a market. This is a market. This is market regulation. And in addition, you have a situation in this market not only where people enter involuntarily as to when they enter and won't be able to control what they need when they enter but when they --
(Excerpt) Read more at politico.com ...
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After Day Two: Justices Skeptical of ObamaCare Constitutionality
Townhall.com ^ | 3/27/2012 | Katie Pavlich
Day two of oral arguments at the Supreme Court have just finished. MSNBC has just reported the Justices were very skeptical when it came to the constitutionality of ObamaCare. The report also said that although the question of “If the government can mandate the purchase of health insurance, can’t it do anything?” is “extremely complicated,” the Justices were not convinced of the argument given by representation in the courtroom arguing the individual mandate isn’t an overreach of federal government power.
More from Judge Andrew Napolitano on Fox News:
"It appears that Justice Kennedy asked some of the most profound and stinking questions of the government."
"Exceedingly sharp questioning."
"I do believe the court will invalidate the individual mandate by a 5-4 vote," adding Justice Kennedy will vote to strike the mandate.
Video: "Trainwreck for the Obama Administration"
Townhall’s Kate Hicks, who was in the courtroom for oral arguments today, will have a report shortly. Stay tuned.
I'm picking an upset and say it goes down 6-3.
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not a good day for camp romney. this means he passed and supported for years an UNCONSTITUTIONAL LAW.
I'm not sure I follow how you are connecting state mandates with federal mandates, two very different issues. Mind explaining that further?
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Don't kid yourselves.
This will be a 5-4 decision either way. Still too close to call.
Since when do lib justices care about the constitution?
As usual, Kennedy will decide the day. If his questions from the above article are any indication of the outcome, the scales might have tipped in favor of invalidating the Osamacare disaster. Still though, I am not convinced that this one is over.
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Don't kid yourselves.
This will be a 5-4 decision either way. Still too close to call.
Since when do lib justices care about the constitution?
As usual, Kennedy will decide the day. If his questions from the above article are any indication of the outcome, the scales might have tipped in favor of invalidating the Osamacare disaster. Still though, I am not convinced that this one is over.
I think Roberts is a weaker link than Kennedy after listening to the whole argument today.
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[ Invalid YouTube link ]
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I was listening to someone on the radio yesterday who was a Constitutional expert and thought the law would be voted down but that the justices could be grilling the dog shit out of the Obama side to see what their defense is and make them prove beyond any doubt that its a legal law.....so they can then vote to maintain the law. It looks like today was very bad for Barry....
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http://motherjones.com/mojo/2012/03/obamacare-supreme-court-disaster
Libs in panic. Blaming the messenger vs message!
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Post a poll on how fast the libs will spin this into a good thing that it gets voted down.....some bs about redoing the law or something.
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Post a poll on how fast the libs will spin this into a good thing that it gets voted down.....some bs about redoing the law or something.
We needed reform, but obamacare is the worst of all worlds.
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From ace of spades....
To be honest, Kennedy seems a lot more equivocal than liberal commentators imagined. A lot of his statements (like the one from page 24, above) are very on the fence.
The goal of the government in this sort of case is to get a limited blessing for exactly what you've done, with some kind of suggested rule suggesting what you did here was different from other hypothetical cases. You don't want, or need, some Major Sweeping Opinion blessing all hypothetical exercises of government power. You want to offer the justices a justification for saying "This one thing is okay, other things probably aren't." So in that way you give the justice a fig leaf, a fig leaf to convince himself he's not just blessing any assertion of government power willy-nilly.
My fear here, a little heightened by Kennedy's remarks, is that he's amenable to just such a pitch.
Open Minded? In the last few minutes, Allah's put up a post seizing upon the same quotes, also seeing the Weather Vane Spinning in the wind.
You have to understand justices-- they want to make small waves. They want to rule on the smallest grounds possible, creating the least new law going forward.
They will not go (generally) for something that they perceive as "fundamentally altering the relationship between citizen and government."
Nor do they easily knock down a law passed by Congress, signed by a president.
So if you offer them a middle ground, or something disguised to look like a middle ground, they just might go for it. Pitch them the idea that this is unique and limited to this one single area of activity and hence will not provide precedent or justification for further expansions of power, but will remain limited to just this one little thing.
Pitch them that, and a Weather Vane might spin your way.
We're not asking you to eat the whole of the Forbidden Fruit. Of course you'd be aghast at such a suggestion. We're just saying-- take a little nibble. Just a small little nibble, and then, cross our hearts, we'll put the Forbidden Fruit away and won't touch it ever again.
It's just a little nibble. What could it hurt
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Tommorow is going to do that. They will argue that the law can regulate the companies without the mandate.
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Skip to comments.
CNN: Today was a 'train wreck' for Obamacare
The Examiner /CNN ^ | March 27, 2012 1:03pm | Charlie Spiering
Posted on March 27, 2012 4:02:34 PM EDT by Semper911
CNN Legal Analyst Jeffrey Toobin said that it was a rough day for the Obama administration, as lawyers worked to defend the Obamacare's individual mandate.
"This was a train wreck for the Obama administration," Tobin said. "This law looks like it's going to be struck down. I'm telling you, all of the predictions including mine that the justices would not have a problem with this law were wrong."
Tobin said that U.S. Solicitor General David Verrilli was woefully unprepared in his defense.
"I don't know why he had a bad day, he is a good lawyer, he was a perfectly fine lawyer in the really sort of tangential argument yesterday. He was not ready for the answers for the conservative justices," he said.
"If I had to bet today I would bet that this court is going to strike down the individual mandate." he said.
Tobin was not alone in his analysis. NBC's Justice corespondent Pete Williams was also skeptical.
"It would seem at this point in the process that I think it's very doubtful that the court is going to find the health care law constitutional," he said, "I don't see five votes to find the law constitutional."
(Excerpt) Read more at campaign2012.washingtone xaminer.com ...
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How Paul Clement Won the Supreme Court’s Oral Arguments on Obamacare
New York ^ | March 27, 2012 | Jason Zengerle
Posted on March 27, 2012 7:36:28 PM EDT by Clintonfatigued
Paul Clement has been receiving rave reviews for his performance during the second day of oral arguments over health-care reform before the Supreme Court. (“[T]he best argument I’ve ever heard,” SCOTUSblog Tom Goldstein raved on Twitter). But Clement’s finest moment may have come when he was completely silent.
A little more than two minutes into Solicitor General Donald Verilli’s turn at the bar, Justice Anthony Kennedy interrupted him: “Can you create commerce in order to regulate it?”
Kennedy’s query was an almost verbatim recital of Clement’s own talking point, part of the fundamental argument he has made against the individual mandate. In his brief to the Court, and later during his oral argument, he said Obama’s health-care law “represents an unprecedented effort by Congress to compel individuals to enter commerce in order to better regulate commerce.”
It’s a recasting of the original argument used by opponents of the mandate: that Congress has overstepped its constitutional authority by regulating inactivity rather than activity.
________________________ ________________________ ________________________ ________________________ ____________________
Seen through that lens, Clement has to be feeling pretty good about his experience at the Court earlier today. While he faced tough, bordering-on-hostile questions from the four liberal justices — most notably from Justice Steven Breyer, who seemed to be lecturing more than asking — the two justices who seem most open to persuasion by either side, Kennedy and Chief Justice John Roberts, were far tougher on Verilli. And when they did have questions for Clement, he handled them with aplomb.
(Excerpt) Read more at nymag.com ...
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I listened to the whole thing on the treadmill today and liked them shooting down Barry's argument.
But, they were also pretty tough on the states.
NOBODY, even the Justices, could seem to define where Congress' power would end if they upheld the mandate. Anything and everything could be regulated from birth to death.
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I listened to the whole thing on the treadmill today and liked them shooting down Barry's argument.
But, they were also pretty tough on the states.
NOBODY, even the Justices, could seem to define where Congress' power would end if they upheld the mandate. Anything and everything could be regulated from birth to death.
Ginsburg, kagan, and breyer were horrible. I have to give Sotomayor credit. Over the last two days I am very impressed w her, even if o disagree on some issues.
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Ginsburg, kagan, and breyer were horrible. I have to give Sotomayor credit. Over the last two days I am very impressed w her, even if o disagree on some issues.
I heard the news saying Kennedy will probably be the swing vote which I think you and George had predicted a while back.
I couldn't tell which way he was leaning, but I'm no constitutional scholar.
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I heard the news saying Kennedy will probably be the swing vote which I think you and George had predicted a while back.
I couldn't tell which way he was leaning, but I'm no constitutional scholar.
He specifically said ObamaCare fundamentally changes the relationship between the ciitizen and the govt today. Hard to see how he walks back from that considering he is a center right jurist.
my best guess at this point is that they give Obama a half assed victory. Strike down the mandate, but keep some of the regs in place otherwise. But that still ends ObamaCare since wo the mandate the. Whole mess falls apart.
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He specifically said ObamaCare fundamentally changes the relationship between the ciitizen and the govt today. Hard to see how he walks back from that considering he is a center right jurist.
my best guess at this point is that they give Obama a half assed victory. Strike down the mandate, but keep some of the regs in place otherwise. But that still ends ObamaCare since wo the mandate the. Whole mess falls apart.
From what I've read, he asked some pointed questions to the guys arguing against it as well, though. They weren't on the scope of the questions he grilled Virilli with but I don't think it's a done deal by any stretch. But then again, I'm not a lawyer.
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From what I've read, he asked some pointed questions to the guys arguing against it as well, though. They weren't on the scope of the questions he grilled Virilli with but I don't think it's a done deal by any stretch. But then again, I'm not a lawyer.
I have not read the submissions, but have read the lower court decisions. personally, I find Judge Vinsons's decision as most well reasoned.
I just don't see where The govt carved out even a slight opening for a mandate here. Seemed to me that the justices were looking for something to create a hook for the govt to hang it's hat on, but the govt failed.
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http://dailycaller.com/2012/03/27/justice-scalia-to-obamas-solicitor-general-were-not-stupid
Alito and Scalia - make Italian Americans proud.
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I also don't think the Republicans want to celebrate too much if it is overturned. They need to enact alternatives because there are a lot of problems with the current system.
Politically, they're going to get hit if they just try to use it for boasting without having an alternative to put forth.
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http://www.businessinsider.com/here-is-the-moment-when-justice-alito-shredded-verrilli-at-the-obamacare-hearings-2012-3
this was the perfect argument to make. Alito is fucking awesome.
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Audio: Scalia lectures Verrilli on enumerated powers (“What is left, if the gov't can do this?”)
Hotair ^ | 03/27/2012 | AllahPundit
Posted on March 27, 2012 11:20:10 PM EDT by SeekAndFind
The guy who uploaded this to YouTube calls it a “benchslap.” It's loads of fun, and the point about limited powers will sound familiar. The key part comes early when Scalia jumps in to challenge Verrilli's citation of Court precedent. Those cases dealt with commerce, he says; in this case, the legislation is aimed at people who aren't participating in commerce, i.e. people without insurance. That's a gut-punch to the left since, once you make that move conceptually, the Commerce Clause defense of the statute is hanging by a thread. You can follow his thinking over the rest of the clip from there. If it's not commerce, then Congress has no power to regulate it, and if Congress has no power to regulate it, then the Tenth Amendment says this is a matter for the states. And to think, a few days ago, Democrats thought they might be able to use Scalia's Raich opinion to swing him over to their side.
Roberts was a bit more equivocal in today’s arguments but read Philip Klein’s analysis of the rhetoric he used in his comments from the bench. There were an awful lot of phrases in there suggesting he was arguing from belief against the statute, not merely as a devil’s advocate to probe the lawyers’ arguments. Meanwhile, over at SCOTUSblog, Kevin Russell looks at Roberts’s and Alito’s questioning and wonders, “Is Kennedy the only possible fifth vote for the government?” His conclusion: Yep, pretty much. Exit question: C’mon, a Reagan appointee’s not really going to be the fifth vote for the ObamaCare mandate, is he? Good lord.
CLICK ABOVE LINK FOR THE AUDIO
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http://www.realclearpolitics.com/video/2012/03/27/toobin_this_was_a_train_wreck_for_the_obama_administration.html
Toobin may be right, but to be fair he stopped being a serious attorney well over a decade ago. Quoting him as some kind of legal authority is laughable at best.
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WTF took you so long?
No one disputes the right of the govt to regulate commerce, but compelling commerce is something well beyond any historical precedent.
Its been a while since I took Con Law, and I think everybody agrees that teh Commerce Clause is the most confusing subject of the course. Several Conservative Legal Minds dont know whether it is Constitutional, such as Senator Jon Kyl. The thing that pushed me over is the whole dichotamy between regulating activity and regulating inactivity.
As always, liberals seem to be making the mistake of confusing the implications of the subject matter with what the law actually says. Thier main argument seems to be that the mandate is needed because supposedly hospitals are mandated by law to treat people, and this imposes costs. Which is true, but nobody has ever sued the federal government claiming that free services at hospitals is a constiutional right, and ceratinly no court has upheld that.
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Its been a while since I took Con Law, and I think everybody agrees that teh Commerce Clause is the most confusing subject of the course. Several Conservative Legal Minds dont know whether it is Constitutional, such as Senator Jon Kyl. The thing that pushed me over is the whole dichotamy between regulating activity and regulating inactivity.
As always, liberals seem to be making the mistake of confusing the implications of the subject matter with what the law actually says. Thier main argument seems to be that the mandate is needed because supposedly hospitals are mandated by law to treat people, and this imposes costs. Which is true, but nobody has ever sued the federal government claiming that free services at hospitals is a constiutional right, and ceratinly no court has upheld that.
the other issue s that ObamaCare is not limited to catastrophe care for the ER!
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i'm against obamacare - i favored a series of smaller bills that did the good things but kept the mandate out.
my Question for getbiggers who are against this bill - what do you do about the 18-40 year old person who chooses not to carry insurance, who gets hit by a truck or appendicitis, is carried into the ER unconscious, and racks up $100k in bills in a day or two.
I know, noble getbiggers who are in their 20s brag about not having health insurance - saying "I would refuse emergency care" - and we know once they're bleeding, that goes out the window.
So what do we do? Do we pay for that guy's appendix or gall bladder to get removed, or just let the fcker die? Cuz the moment you say "let's fix him" - it's social welfare you're approving. Immediately. Or, if you say "let him die" - then you have a rash of insane crime as ppl literally rob banks and kill their own grandmothers for $ to pay for healthcare they'll die without.
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i'm against obamacare - i favored a series of smaller bills that did the good things but kept the mandate out.
my Question for getbiggers who are against this bill - what do you do about the 18-40 year old person who chooses not to carry insurance, who gets hit by a truck or appendicitis, is carried into the ER unconscious, and racks up $100k in bills in a day or two.
I know, noble getbiggers who are in their 20s brag about not having health insurance - saying "I would refuse emergency care" - and we know once they're bleeding, that goes out the window.
So what do we do? Do we pay for that guy's appendix or gall bladder to get removed, or just let the fcker die? Cuz the moment you say "let's fix him" - it's social welfare you're approving. Immediately. Or, if you say "let him die" - then you have a rash of insane crime as ppl literally rob banks and kill their own grandmothers for $ to pay for healthcare they'll die without.
Govt created this mess w the EMTALA law and should not be able to violate my rights to remedy a problem created by its own invention.
There are plenty of other ways to deal with this and the ER issue is a scam being used by proponents and shills for obama to obfuscate the issue entirely.
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i'm against obamacare - i favored a series of smaller bills that did the good things but kept the mandate out.
my Question for getbiggers who are against this bill - what do you do about the 18-40 year old person who chooses not to carry insurance, who gets hit by a truck or appendicitis, is carried into the ER unconscious, and racks up $100k in bills in a day or two.
I know, noble getbiggers who are in their 20s brag about not having health insurance - saying "I would refuse emergency care" - and we know once they're bleeding, that goes out the window.
So what do we do? Do we pay for that guy's appendix or gall bladder to get removed, or just let the fcker die? Cuz the moment you say "let's fix him" - it's social welfare you're approving. Immediately. Or, if you say "let him die" - then you have a rash of insane crime as ppl literally rob banks and kill their own grandmothers for $ to pay for healthcare they'll die without.
As Alito said yesterday - why not force everyone to buy burial insurance since everyone will die and if they are broke the govet i e the taxpayers will be forced to pay for burial services?
Best argument I heard yesterday.
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Today’s Arguments Tilt Against the Individual Mandate
National Review ^ | 03/28/2012 | Carrie Severino
Today was the main event at the Supreme Court, debating the constitutionality of the individual mandate. The Court’s audience, including more than a few members of Congress, was full for the marathon two-hour argument. Even near the back of the courtroom, I shared a bench with three senators — the Court’s VIP section was obviously inundated.
Solicitor General Verrilli had a rough start to his argument, speaking haltingly, stumbling, and stopping to take a drink. The solicitor general spent almost all his time trying to convince the justices that health care is, in fact, different from other markets. While Justices Ginsburg and Kagan were trying to throw him soft balls, Verrilli kept striking out with Justices Scalia, Roberts, and Alito, and to some extent, Kennedy.
Justice Kennedy was particularly concerned because, as he put it, the government bears a “heavy burden of justification” when a law “changes the relationship of the individual to government in a unique way.” From my reading, General Verrilli didn’t ultimately convince them, and Justice Kennedy returned to the issue several times. He asked whether the administration’s argument had any limits “at all,” and noted that the mandate “requires the individual to do an affirmative act,” a completely novel type of law.
The Chief Justice and Justice Scalia were most vocal on this issue, the Chief declaring that “all bets are off” if they accept the expansive interpretation advanced by the administration.
Justice Kennedy probed Paul Clement, who was arguing for the 26 state respondents, on whether Americans “are in the market in the sense that they create a risk the market has to account for.” Justices Kagan and Breyer were firmly in this camp, with Breyer content that the risks alone were enough to bring people into a market. He went so far as to suggest that being born was equivalent to entering the health-care market. Justice Kagan was in favor of not “slicing the bologna too thin” by paying attention to the details of whether and when people enter a market.
An analysis by Justice Sutton of the Sixth Circuit got some play as Justice Kagan signaled twice that she might view the challenge differently if it were an as-applied challenge. For example, she suggested a Christian Scientist who objects to heath care might make a better plaintiff.
Justice Ginsburg, unsurprisingly, sent clear signals that she accepted the administration’s position. While she agreed that the mandate is a form of cross-subsidization, she was untroubled by this, given the cost-shifting that happens due to uncompensated health care.
Justice Breyer was perfectly comfortable with Congress creating commerce ex nihilo, a position even the solicitor general went to great (and, I believe, illogical) lengths to distance himself from. The solicitor general insisted on making the demonstrably false statement that the mandate in fact is not “creating commerce,” but is regulating actual market participants.
General Verrilli justified rounding the number of participants in the health-care market up to 100 percent simply because over 80 percent of Americans use health care yearly. But even a small percentage of the American population still represents millions of individuals.
Justice Kennedy expressed concern that the “uniqueness of the health-care market” would not operate as an effective limit on the Commerce Clause, because Congress would just say something else is unique next year. He nonetheless queried whether the line between participants and non-participants was not “uniquely proximately very close.” If Justice Kennedy does decide to uphold the individual mandate, he will try to construct a limiting principle, and hopefully one that is more defined than the obviously unadministrable question of “unique, proximate, very-closeness.” This is why people speculate the Chief Justice may vote with Justice Kennedy if he decides to uphold the law, in order to provide a more workable limiting principle.
Today’s argument indicates that those predicting a lopsided decision in favor of the mandate should start getting used to disappointment, and those who value their constitutional protections have good reason for optimism.
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A Constitutional Awakening
A bad day for unlimited government at the High Court
www.wsj.com
Tuesday's two hours of Supreme Court oral arguments on ObamaCare's individual mandate were rough-going for the government and its assertions of unlimited federal power. Several Justices are clearly taking seriously the Constitution's structural checks and balances that are intended to protect individual liberty.
Solicitor General Donald Verrilli faced aggressive questioning from Justices Anthony Kennedy and Antonin Scalia and Chief Justice John Roberts, the trio pegged as possible swing votes in favor of the mandate to buy insurance or pay a penalty. But they failed to elicit from Mr. Verrilli some limiting principle under the Commerce Clause that distinguishes a health plan mandate from any other purchase mandate that would be unconstitutional. The exchanges recalled the famous moment in Citizens United when the government claimed it could ban books to regulate political speech.
"Can you create commerce in order to regulate it?" inquired Justice Kennedy, in the first question from the bench. To ask another way, does the Administration think it has plenary police powers to coerce individuals into economic transactions they would otherwise avoid?
Mr. Verrilli replied that health care is "unique," so Justice Samuel Alito brought up the "market for burial services" and asked if the government could mandate funeral insurance. After all, in the long run we are all dead and thus could transfer the costs of our deaths to the rest of society. (See nearby.)
Mr. Verrilli's error is that even if health care and health insurance were intrinsically different from all other markets—and they aren't—that fact is constitutionally irrelevant. Any federal exercise of police powers is untenable because the Constitution gives such powers to the states.
Justice Scalia bowed at this reality when he asked if having blue eyes would be a meaningful principle limiting the mandate. "That would indeed distinguish it from other situations," he said, but it would also be irrelevant because it would still be "going beyond what the system of enumerated powers allows the government to do."
Justice Scalia returned to this point when he said that apropos of the Necessary and Proper Clause, "in addition to being necessary, it has to be proper. And we've held in two cases that something that was reasonably adopted was not proper because it violated the sovereignty of the states, which was implicit in the constitutional structure."
Those core features of the American system were also stressed by Justice Kennedy. "The government is saying that the federal government has a duty to tell the individual citizen that it must act," he said, "and that is different from what we have in previous cases, and that changes the relationship of the federal government to the individual in the very fundamental way."
Related Video
Editorial board member Joe Rago takes apart the government's argument that the individual mandate is constitutional under the Commerce Clause. Plus, new polling shows that the law unpopular.
..Justice Kennedy later expressed some sympathy for the government's claim that young people who don't buy insurance are "very close" to affecting interstate commerce, but the key distinction is that proximity is not enough and can't be enforced by the courts. To regulate individuals at any point in their lives merely because they exist would still undermine the accountability and destroy the dual sovereignty that are the touchstones of his jurisprudence.
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As it happens, today the Court hears separate arguments on Medicaid, and the themes in that controversy dovetail with those of the individual mandate. Just as the Court may rule that commerce powers are broad but not unlimited, the same is true for the spending power.
Florida and 25 other states contend that ObamaCare's conversion of this voluntary program originally intended for the poor into all-purpose insurance for tens of millions of people is unconstitutional coercion. By commandeering the states and their taxpayers as de facto arms of the federal government, the Administration has abrogated the system of dual sovereignty as surely as it has by claiming police powers.
Medicaid was created in 1965 as a cooperative federal-state partnership. States could opt in, or not, and there were still holdouts as late as 1982. The program has expanded greatly over the years to the point that it is now the largest component of most state budgets. But Governors and legislatures have always had some measure of flexibility and independent control.
The Affordable Care Act obliterates this status quo and forces states to add everyone up to 138% of the poverty level to the rolls. The feds will pick up most of the new costs through 2020, though the states are still on the hook for between $20 billion and $43.2 billion in new costs, and much more into perpetuity.
The Administration says states can reject these huge new liabilities and leave new Medicaid altogether, even as it threatens them with the loss of all federal funds for doing so. But in practical terms that would be ruinous for the local hospitals, doctors, nursing homes and other providers that have adapted to Medicaid's size and depend on the program for revenue. The federal government is giving states a choice between an immediate economic calamity or a unilateral rewrite of the contracts they entered decades ago and eventual calamity as they absorb the new costs. The technical term is extortion.
The Court has always balanced federal and state power by distinguishing between pressure and coercion. ObamaCare crosses that line. The conditions of new Medicaid conscript the states into involuntary servitude to the federal government's policy goals, in this case national health care. They would no longer be independent and autonomous units within the federalist system but agents of Washington.
Judicial liberals have responded to the Medicaid challenge with the legal equivalent of rolling their eyes, much as they did with the individual mandate and the Commerce Clause. On the evidence of Tuesday's oral arguments, that may turn out to be a mistake as well.
A version of this article appeared Mar. 28, 2012, on page A12 in some U.S. editions of The Wall Street Journal, with the headline: A Constitutional Awakening.
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http://discussions.latimes.com/20/lanews/la-pn-justices-poised-to-strike-down-entire-healthcare-law-20120328/10
wow! Will post audio later.
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Kennedy and Roberts Raise Powerful Objections to the Individual Mandate
Damon W. Root | March 27, 2012
http://reason.com/blog/2012/03/27/kennedy-and-roberts-raise-powerful-objec
Washington, D.C.—I walked into the U.S. Supreme Court early Tuesday morning expecting a knock-down, drag-out constitutional showdown over the Patient Protection and Affordable Care Act’s individual mandate, which requires all Americans to buy or secure health insurance. I did not leave disappointed.
The day’s biggest loser was Solicitor General Donald Verrilli, whose key responsibility was to convince a majority of the justices that while the federal government’s power under the Commerce Clause is vast, it is not unlimited. Unfortunately for the Obama administration, Verrilli struggled and stumbled in his attempt to persuade the two justices whose votes matter the most to the government’s case: Justice Anthony Kennedy and Chief Justice John Roberts, either of who might conceivably cast a fifth and deciding vote in the government's favor.
“I understand that we must presume laws are constitutional,” Kennedy told Verrilli, “but, even so, when you are changing the relation of the individual to the government in this, what we can stipulate is, I think, a unique way, do you now have a heavy burden of justification to show authorization under the Constitution?”
Kennedy later repeated that point with even more force, telling Verrilli, “here the government is saying that the Federal Government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases, and that changes the relationship of the Federal Government to the individual in a very fundamental way.”
This doesn’t mean that Kennedy is a surefire vote against the mandate, of course. He still has plenty of time to ponder the arguments put forward in the government’s legal briefs—as well as to entertain the private arguments made in chambers by his colleagues on the bench. But his comments today do absolutely reveal that Kennedy takes the constitutional challenge to the individual mandate very seriously. That’s bad news for the White House, since Kennedy so often casts the fifth vote in a tight case.
Chief Justice John Roberts also drew blood from Verrilli, suggesting at one point, “once we say that there is a market and Congress can require people to participate in it...all bets are off.” Roberts also raised an argument that might prove quite effective in a future decision striking down the individual mandate. First, here’s how the relevant exchange with the solicitor general went down:
CHIEF JUSTICE ROBERTS: Is your argument limited to insurance or means of paying for health care?
GENERAL VERRILLI: Yes. It's limited to insurance.
CHIEF JUSTICE ROBERTS: Well, now, why is that? Congress could -- once you -- once you establish that you have a market for health care, I would suppose Congress's power under the Commerce Clause meant they had a broad scope in terms of how they regulate that market. And it would be -- it would be going back to Lochner if we were put in the position of saying, no, you can use your commerce power to regulate insurance, but you can't use your commerce power to regulate this market in other ways. I think that would be a very significant intrusion by the Court into Congress's power.
Note Roberts’ reference to Lochner. Lochner v. New York is the much-maligned 1905 case where the Supreme Court struck down New York’s limit on the number of hours that bakeshop employees could work because that regulation violated the liberty of contract protected by the 14th Amendment. Lochner today stands as a sort of bogeyman to virtually all liberal legal thinkers, who see it as a notorious example of conservative judicial activism.
But many conservative legal thinkers also dislike Lochner, including Roberts himself. During his 2005 Senate confirmation hearings, the soon-to-be chief justice said, "You go to a case like the Lochner case, you can read that opinion today and it's quite clear that they're not interpreting the law, they're making the law." Roberts was also worrying about judicial activism, about the dangers that he sees associated with the federal courts wading into the political thicket and selectively picking and choosing what sorts of laws to uphold or nullify.
So when Roberts told the solicitor general today that the government’s theory of the Commerce Clause risks unleashing a new batch of Lochner-style activism by the federal courts (who will have to selectively decide if “you can’t use your commerce power to regulate the market in other ways”), that’s a very powerful objection. If he ultimately ends up using it, it would allow Roberts to strike down the individual mandate while still wearing the mantle of judicial restraint.
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All you need to know about the commerce clause:
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Legal Analyst: Obamacare Goes From 'Train Wreck' To 'Plane Wreck'
Michael Brendan Dougherty | 49 minutes ago | 1,375 | 8
Jeffrey Toobin tweeting from today's Supreme Court hearing on Obama's health care reform:
We're getting the quick reports now.
There is just a 20 minute window for reporters at the court to file their dispatches from this morning's arguments over whether the individual mandate to buy health insurance could be separated (and struck down) separately from the rest of the law.
In other words: if the court finds the mandate is unconstitutional, does just the mandate go away, or does the entire law fall with it?
Over at SCOTUS Blog Tom Goldstein writes:
The Court is really struggling with severability. Generally speaking, the more conservative the member the more likely they were to believe that more would have to be invalidated. Justice Scalia would strike down the entire Act. Most likely would be guarantee issue, community rating and some other pieces essential to keeping insurance prices low. Tea leaves suggested that Justice Kennedy would vote to invalidate the mandate but nothing super-clear. Farr was excellent.
Reports on Twitter that Justice Anthony Kennedy, the key swing vote has been arguing that it may be more extreme of the Court to pick and choose which parts of the law are unconstitutional:
From Phil Klein who is at the Court:
More updates from SCOTUSBlog's Amy Howe:
We are roughly two-thirds of the way through the severability argument. The government’s lawyer was finishing up when I left the building. So far it is hard to see where this one is going. Almost all of the Justices asked Clement questions, and many were skeptical of his argument that if the mandate and the provisions link to it go, all that would be left is a hollow shell.
But Ed Kneedler also faced skeptical questions, especially from the more conservative Justices, who asked him how the Court should figure out what other provisions must go. Are we supposed to go through the whole 2700 pages, they asked? (Justice Scalia suggested that this would violate the Eighth Amendment.)
We have one dissenting opinion on how it went for Health-care reform, via SCOTUSblog's Lyle Denniston:
The Supreme Court spent 91 minutes Wednesday operating on the assumption that it would strike down the key feature of the new health care law, but may have convinced itself in the end not to do that because of just how hard it would be to decide what to do after that. A common reaction, across the bench, was that the Justices themselves did not want the onerous task of going through the remainder of the entire 2,700 pages of the law and deciding what to keep and what to throw out, and most seemed to think that should be left to Congress. They did not come together, however, on just what task they would send across the street for the lawmakers to perform. The net effect may well have shored up support for the individual insurance mandate itself.
Reason magazine's Damon Root sums up the reactions of the different justices to the severability argument:
From Denniston again:
We find out this juicy tidbit about how the Court was wrestling with whether to strike the whole thing down or not:
The dilemma could be captured perfectly in two separate comments by Justice Antonin Scalia — first, that it “just couldn’t be right” that all of the myriad provisions of the law unrelated to the mandate had to fall with it, but, later, that if the Court were to strike out the mandate, “then the statute’s gone.”
Alright, after that, it seems that all the reporters dashed back into the Court for Round 2, which focuses on the law's changes to Medicaid expansion.
See AlsoJustice Kennedy's Big Question From Today's Crucial Obamacare HearingRELAX! Obamacare Is Not Dead Yet Wait, Did CNN Just Lose HALF Of Its Viewers? A Democratic Congressman Was Just Tossed Out Of The House For Wearing A Hoodie
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Read more: http://www.businessinsider.com/legal-analyst-obamacare-goes-from-train-wreck-to-plane-wreck-2012-3#ixzz1qQmmef4n
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Wow: SCOTUS Leaning Toward Throwing Out Obamacare In Its Entirety?
Townhall.com ^ | 3/28/2012 | Guy Benson
My colleague Kate Hicks -- who has attended the High Court's oral arguments this week -- will file a full report on today's proceedings later on. In the meantime, some initial reactions indicate that the Supremes may be poised to not only throw out Obamacare's individual mandate, but the entire thing. Wow. Snippets the Wall Street Journal's excellent live blog:
* Justice Kennedy, again exploring the competency theme, says Mr. Kneedler suggests the court has the expertise to invalidate some parts of the law, but not the expertise to judge whether other parts should remain in place. The justice says he finds that "odd."
* Justice Scalia suggests there has never been another high court case where the justices have struck down the “heart” of a law, but left the rest of it in place.
* Chief Justice Roberts suggests that Mr. Kneedler, the government lawyer, has made effectively made the case that if the insurance mandate falls, the guarantee that insurers accept all customers must go, too. But, the chief says, that doesn’t tell the court what to do with all the many other provisions of the law.
* Justice Alito echoes those concerns, saying other provisions in the law, in addition to the guaranteed-coverage requirement, could lead to higher costs for insurers.
CNN's Jeffrey Toobin says Justice Kennedy led this aggressive questioning, indicating that Kennedy has made up his mind that at least the individual mandate is unconstitutional. Via CNN tweets:
Toobin: "The leader of the questioning was Kennedy; it certainly seemed likely he made up his mind the mandate was unconstitutional."
CNN JUST IN: Jeffrey Toobin: "this entire law is in trouble..." the individual mandate appears "doomed"..."seemed a foregone conclusion."
Toobin reiterated his "train wreck" imagery, adding that today could have also been a "plane wreck" ...
(Excerpt) Read more at townhall.com ...
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Scalia: Reading entire health care law would be cruel and unusual punishment
Politico ^ | 3/28/12 | Byron Tau
Arguing about whether the court could keep some provisions of the health care law intact, Justice Antonin Scalia says that reading all 2,700 pages of the statute would constitute, basically, torture: Justice Scalia: Mr. Kneedler, what happened to the Eighth Amendment? You really want us to go through these 2,700 pages? (Laughter.) Justice Scalia: And do you really expect the Court to do that? Or do you expect us to -- to give this function to our law clerks? Is this not totally unrealistic? That we are going to go through this enormous bill item by item and decide each
(Excerpt) Read more at politico.com ...
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Obama lawyer asks Supreme Court to save healthcare law
Reuters ^ | 3/28/12 | James Vicini and Joan Biskupic
(Reuters) - The Obama administration's top courtroom lawyer made an impassioned plea on Wednesday for the Supreme Court to save President Barack Obama's healthcare law, capping three days of historic arguments that left it unclear how the nine justices would rule.
Having peppered the lawyers defending and challenging the law with questions for more than six hours over the three days, the justices withdrew to their chambers to begin up to three months of deliberation expected to yield a decision by late June.
Obama's healthcare overhaul, signed into law two years ago, is his signature domestic policy achievement. It remains a divisive issue among Americans and is likely to be an key issue ahead of the November 6 election in which he seeks a second term.
The justices took up two final issues on the last day of arguments on Wednesday: whether the rest of the law could stand if the centerpiece requirement that most Americans get insurance or face a penalty is struck down; and the validity of expanding the state-federal Medicaid healthcare program for the poor.
After what critics called a poor performance on Tuesday, U.S. Solicitor General Donald Verrilli, arguing for the administration, closed his case with an emotional request that the justices uphold the law. Verrilli cited millions of people with chronic conditions such as heart disease, diabetes and breast cancer who would get health insurance under the law.
(Excerpt) Read more at reuters.com ...
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Obama lawyer asks Supreme Court to save healthcare law
Reuters ^ | 3/28/12 | James Vicini and Joan Biskupic
(Reuters) - The Obama administration's top courtroom lawyer made an impassioned plea on Wednesday for the Supreme Court to save President Barack Obama's healthcare law, capping three days of historic arguments that left it unclear how the nine justices would rule.
Having peppered the lawyers defending and challenging the law with questions for more than six hours over the three days, the justices withdrew to their chambers to begin up to three months of deliberation expected to yield a decision by late June.
Obama's healthcare overhaul, signed into law two years ago, is his signature domestic policy achievement. It remains a divisive issue among Americans and is likely to be an key issue ahead of the November 6 election in which he seeks a second term.
The justices took up two final issues on the last day of arguments on Wednesday: whether the rest of the law could stand if the centerpiece requirement that most Americans get insurance or face a penalty is struck down; and the validity of expanding the state-federal Medicaid healthcare program for the poor.
After what critics called a poor performance on Tuesday, U.S. Solicitor General Donald Verrilli, arguing for the administration, closed his case with an emotional request that the justices uphold the law. Verrilli cited millions of people with chronic conditions such as heart disease, diabetes and breast cancer who would get health insurance under the law.
(Excerpt) Read more at reuters.com ...
LOL, cant justify it using the law, hell, cant even justify it being legal under the constitution, what do they do?
Resort to an emotional moral justification. "WONT SOMEBODY PLEASE THINK OF THE CHILDREN!!!!!" Lol.
Idealism at its worst, dont care about the legality, dont care about who its hurting, they just believe that everyone HAS to have it because "its the right thing to do"
Its funny to see it fall apart until thats the only real argument they have.
Really kind of shows you how bad it was in the 1st place, that the only real defense they have is on an idealistic emotional ground.
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:). Ginsburg sounded pathetic today.
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:). Ginsburg sounded pathetic today.
To the uniformed (read - me), it sounded like the Justices gave both sides a thorough vetting. Lot's of talk and discussion about federalism - Good stuff.
Anybody want to listen: http://www.supremecourt.gov/oral_arguments/argument_audio_detail.aspx?argument=11-400
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Liberal Supreme Court Reporters Are Flipping Out After Yesterday's Obamacare Disaster
Michael Brendan Dougherty | Mar. 28, 2012, 10:10 AM | 3,522 | 42
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Liberal journalists are in near panic about the fate of Obama's health care reform in the Supreme Court this week.
The first signs of the freakout came from the New Yorker's Jeffrey Toobin, in a tweet.
Both the New York Times and the Los Angeles Times referred to the individual mandate that was being debated in court as "the heart" of Obama's health-care reform in their reports.
Some reporters looked for glimmers of home. In a writeup for Talking Points Memo, Sahil Kapur pointed out that it was the liberal justices on the Court who made the better arguments for the individual mandate than its actual advocate, Solicitor General Donald Verrilli.
But Dahlia Lithwick at Slate was utterly poleaxed after witnessing oral arguments yesterday.
Her writeup about it doesn't once engage the argument at hand: whether under the Constitution, the federal government has the power to compel the purchase of health insurance. Instead it is a despairing assessment that the Supreme Court wants to return America to a definition of freedom that excludes all responsibilities to each other.
"[W]e got a window into the freedom some of the justices long for. And it is a dark, dark place." she wrote.
Her conclusion paints the dystopian future that the conservatives on the Court are preparing for us:
This morning in America’s highest court, freedom seems to be less about the absence of constraint than about the absence of shared responsibility, community, or real concern for those who don’t want anything so much as healthy children, or to be cared for when they are old. Until today, I couldn’t really understand why this case was framed as a discussion of “liberty.” This case isn’t so much about freedom from government-mandated broccoli or gyms. It’s about freedom from our obligations to one another, freedom from the modern world in which we live. It’s about the freedom to ignore the injured, walk away from those in peril, to never pick up the phone or eat food that’s been inspected. It’s about the freedom to be left alone. And now we know the court is worried about freedom: the freedom to live like it’s 1804.
So basically, if the law is overturned children will be sick, and the elderly will die without care. Without government to make it real our obligations to each other don't even exist.
This isn't an argument. It's a defeated whimper: You just don't ... CARE!
We still don't have a real clue how the court will eventually decide this in June. We've seen skepticism from the two "swing votes," Chief Justice Roberts and Anthony Kennedy. But even that has people terrified.
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Liberals in panic - good. Fuck every last leftist communist progressive piece of shit who supported Obama. you rats brought us to this point!
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White House has no contingency plans if health law is tossed (the rookie Hussein is clueless)
The Hill ^ | 3/28/12 | Amie Parnes
Posted on March 28, 2012 8:16:25 PM EDT by Libloather
White House has no contingency plans if health law is tossed
By Amie Parnes - 03/28/12 03:17 PM ET
The White House has no contingency plans in place in the event the Supreme Court rules the healthcare law is unconstitutional.
White House officials said Wednesday they remain “confident” that the healthcare reform law is constitutional and is implementing all the provisions of the law.
If the law is thrown out, there's “no contingency plan in place,” principal deputy press secretary Josh Earnest said at Wednesday’s press briefing with reporters. “We're focused on maximizing the benefits of this law.”
President Obama was in South Korea for the first two days of the High Court’s arguments. Earnest said Obama has followed the case through news reports but he’s unsure if Obama has listened to the audio from the Supreme Court.
Earnest said the healthcare law “was originally a Republican idea” and was backed by “the former governor of Massachusetts.”
Earnest also said the law stemmed from a “bipartisan plan and it's one that we believe is constitutional.”
During the arguments on Tuesday, a majority of the justices appeared to be skeptical that the health law’s insurance mandate met constitutional muster. But on Wednesday, the court seemed more divided on the question of whether the entire law would need to be thrown out if the court ruled the mandate was unconstitutional.
Legal experts have warned that while oral arguments can be a good indication of where the court is headed, it is far from certain how the justices will rule.
In his comments, Earnest cautioned that someone who reads into the tough questioning by the Supreme Court justices and the tenor of the case “is not a very good student of the Supreme Court.”
“I would caution against anyone to try and make predictions,” Earnest said. “That's a risky path to go down if you're placing bets.”
Asked about James Carville's comments that a ruling against the mandate would be a good thing for Democrats, Earnest said “Mr. Carville has the freedom to make those kinds of political assessments” but added that he wasn't in a position to do the same from the White House podium.
Despite the solicitor general’s shaky performance before the court, Earnest called Donald Verrilli Jr., the government’s lawyer in the case, a “very skilled advocate” and “one of the brightest legal minds in Washington, D.C.”
Verrilli “delivered a solid performance before the Supreme Court. That's a fact. We feel good about his performance,” he said.
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Carville: A Supreme Court loss will help Democrats
CNN ^ | March 28, 2012
Posted on March 28, 2012 8:03:01 PM EDT by upchuck
"I think this will be the best thing that has ever happened to the Democratic Party," Carville said Tuesday... He added: "You know, what the Democrats are going to say, and it is completely justified, 'We tried, we did something, go see a 5-4 Supreme Court majority'."
"Then the Republican Party will own the healthcare system for the foreseeable future. And I really believe that. That is not spin," Carville said.
(Excerpt) Read more at politicalticker.blogs.cn n.com ...
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I got $20 that if this gets thrown out Obama will claim the SC has become partisan and political and will call to overturn their decision.
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I got $20 that if this gets thrown out Obama will claim the SC has become partisan and political and will call to overturn their decision.
The media is already saying that and has said it even before these oral arguments started. Its pathetic, isnt it?
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LOL, cant justify it using the law, hell, cant even justify it being legal under the constitution, what do they do?
Resort to an emotional moral justification. "WONT SOMEBODY PLEASE THINK OF THE CHILDREN!!!!!" Lol.
Idealism at its worst, dont care about the legality, dont care about who its hurting, they just believe that everyone HAS to have it because "its the right thing to do"
Its funny to see it fall apart until thats the only real argument they have.
Really kind of shows you how bad it was in the 1st place, that the only real defense they have is on an idealistic emotional ground.
Its totally laughable that thier only argument is the fact that people get treated for free at hospitals. Its the type of argument that leftists always resort to in these cases. Its why you need to read a fucking medical journal to analyze the reasoning behind Roe V Wade - probably the worst court decision in history. Caring more about the impliciations of the situation than what the Constiituion actually says.
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i'm against obamacare - i favored a series of smaller bills that did the good things but kept the mandate out.
my Question for getbiggers who are against this bill - what do you do about the 18-40 year old person who chooses not to carry insurance, who gets hit by a truck or appendicitis, is carried into the ER unconscious, and racks up $100k in bills in a day or two.
I know, noble getbiggers who are in their 20s brag about not having health insurance - saying "I would refuse emergency care" - and we know once they're bleeding, that goes out the window.
So what do we do? Do we pay for that guy's appendix or gall bladder to get removed, or just let the fcker die? Cuz the moment you say "let's fix him" - it's social welfare you're approving. Immediately. Or, if you say "let him die" - then you have a rash of insane crime as ppl literally rob banks and kill their own grandmothers for $ to pay for healthcare they'll die without.
Certainly that creates somewhat of a fiscal strain, but I really question just how much of a culprit that is in rising healthcare costs. The number of people that go into hospitals without insurance certainly cant be anywhere near the majority. Far from it. And it would amaze me if hospitals just allowed these people to get away scott free and just give them a completely free ride. Im sure there has to be some sort of system set up for these un- insured people to give the hospital SOME sort of compensation after being treated, some sort of court induced payment system.
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Court Likely To Overturn ObamaCare After Hearings
Posted 03/28/2012 06:46 PM ET
Justice: After three days of listening to the government make its case for ObamaCare, one thing is clear: The individual mandate has no constitutional basis or justification, and the entire law should be struck down.
We almost felt sorry for Donald Verrilli, the solicitor general who had to defend the constitutionally indefensible. Over three days of intense interrogation by nine Supreme Court justices, Verrilli failed to muster a single coherent, reasonable argument in support of the ObamaCare law's constitutionality.
Instead, his shambling, unfocused talking points left the government case in disarray — underscoring what a poorly conceived, badly designed law this was in the first place, and why it must be overturned.
In Verrilli's defense, we don't think even Clarence Darrow could have defended a law that runs so afoul of the Constitution's clear limits on government power.
From the very start on Monday, things went badly for the defense. Justices actually laughed at Verrilli as he tried to argue that penalties imposed under the Patient Protection and Affordable Care Act weren't taxes — but rather something new called a "tax penalty."
If it's not a tax, it could be subject to the Anti-Injunction Act, which could delay or even invalidate parts of the health care law. If it is a tax, it blows away all pretense of ObamaCare preserving private insurance.
"General Verrilli, today you are arguing that the penalty is not a tax," joked Justice Samuel Alito. "Tomorrow you are going to be back, and you will be arguing that the penalty is a tax." Even liberal justices laughed.
Tuesday went no better. The government asserted the Constitution's Commerce Clause lets it regulate or control virtually anything, including health care — especially if it has a broad economic impact. Thus, a first-ever individual mandate to buy health care is acceptable.
Subscribe to the IBD Editorials Podcast But sharp questioning by justices on both sides of the political spectrum splintered that argument. At one point, Chief Justice John Roberts wondered aloud, if the government can make you buy health care insurance, can't it also make you buy a cellphone?
By Wednesday, the government's case was in tatters. A Los Angeles Times headline said bluntly: "Justices Poised To Strike Down Entire Healthcare Law."
Indeed, the justices spent 91 minutes Wednesday considering what to do if the 2,700-page law was struck down in its entirety. Based on comments, at least five justices now appear to support doing that.
And they should. Contrary to White House assertions, our Constitution strictly limits government power over us. It's the great genius of our system.
But for over a century, American progressives such as President Obama have worked to undermine those constitutional limits — opting instead for a "living," ever-malleable Constitution that lets an omnipotent government define individual rights.
Overturning ObamaCare would be a big step toward reclaiming sovereignty over our own lives and restoring the rule of law in America.
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Obamacare Arguments Lean Against Severability (How the Justices are leaning)
National Review ^ | 03/29/2012 | Carrie Severino
After yesterday’s heartening arguments, today’s arguments carry even more importance, because it seems likely the Court will actually reach the severability question.
If there are political consequences for the Court’s decision on the mandate argued yesterday, there could be even more consequences to today’s arguments. If the law is struck down in its entirety, expect the president to dust off his 2010 State of the Union talking points, which charge the Court with what he calls “judicial activism,” but in reality seem to criticize any court decision that finds a law of his unconstitutional.
The justices on both sides seemed skeptical of Paul Clement’s opening arguments for the plaintiffs, asking them to strike down the entire law along with the mandate. When he was prompted by Justice Alito to start arguing his fallback position, he made a solid case that far more than the administration’s set of central provisions actually are tied inextricably to the mandate. Not just community-rating and guaranteed-issue, but also Medicaid, employer mandates, and tax credits, among many other provisions, will be undetermined if left to stand without the mandate. The justices at first seemed unreceptive to his argument that the “shell of the law” left after removing these provisions should fall, with Justices Kennedy and Scalia particularly concerned about how to articulate such a rule.
Later, in response to Deputy Solicitor General Ed Kneedler’s arguments for the administration, the same justices seemed more inclined to make a judgment striking down the whole law. Justice Scalia answered his own question about how to formulate a rule, suggesting that “if you take the heart out of the statute, the statute is gone.” He framed it as a question of first impression because the Court has never before invalidated the very heart of a law, and dealt with severability in that context.
Justice Kennedy on at least two occasions suggested that going into the law to pick and choose which provisions should survive would actually be a more “awesome” exercise of legislative power than striking down the law as a whole. Justice Scalia illustrated the problem by asking if he (or, more likely, his clerks) should read through all 2700 pages of the law to determine which provisions should stand.
Justice Breyer earlier had illustrated the relative aid of the mandate provision and the rest of the bill by holding up a thin booklet next to a thick one with the remaining provisions of the law. He articulated a “pipe dream” in which the parties all got together to agree on a list of peripheral provision to leave in place. Scalia retorted that they should publish a conference report just like the real legislators in Congress.
Justice Kagan was firmly in the administration’s camp, calling their position the more textually honest, because of oft-cited findings of the law explicitly linking the individual mandate with community-rating and guaranteed-issue.
Justice Sotomayor had the opposite take from Justice Kennedy, calling taking any other part of the law down with the mandate an exercise of legislative power.
All in all, Justice Alito and Chief Justice Roberts at least seemed open to voting to strike the whole law, and it seems likely that most or all of the law is going to share the fate of the individual mandate.
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Obamacare Turns into "Healthwreck"
Townhall.com ^ | March 29, 2012 | Mike Shedlock
Weak arguments presented by "team Obama" lawyers supporting Obama's healthcare legislation took a beating yesterday, and the beating continued even more so today.
Please consider Day 3: ObamaCare at the Supreme Court by the Illinois Policy Institute.
Today was the final marathon session of oral arguments over ObamaCare. It began this morning with the question of what to do with the rest of the law if the individual mandate is struck down, a very real possibility after yesterday's hearing.
On this issue, both sides agree that if the mandate falls, at least some of the other provisions must fall with it. Most of the Justices seemed skeptical that the entire law should be thrown out, but where to draw the line was a question the Court was clearly struggling with.
Some of the justices hinted that the difficulty in drawing that line could mean disaster for the whole law. Others noted that the Court has never struck down the heart of a statute but left an empty shell. At one point, Justice Kennedy expressed his concern that it might be worse to pick and choose which parts to strike down than to just overturn the whole law. Justice Scalia joked that forcing the Court to go through the law's thousands of pages and provisions one by one would be cruel and unusual punishment.
The day ended with the question of whether the President can force states to expand their Medicaid programs to millions of new enrollees. As I explained earlier this week, Medicaid expansions have already failed the most vulnerable populations in Illinois, and ObamaCare is only going to make the problem worse.
The four liberal justices appeared highly critical of the state's argument that conditioning pre-existing Medicaid funding on new expansions is too coercive. The conservative justices also expressed some skepticism that the forced expansion was unconstitutional, though they did press the administration to define the outer limits of that power.Justices Ask if Health Law Is Viable Without Mandate
The New York Times reports Justices Ask if Health Law Is Viable Without Mandate.
On the third and final day of Supreme Court arguments over President Obama’s health care overhaul law, several justices on Wednesday indicated a reluctance to pick and choose among the law's other provisions should the requirement that most Americans have health insurance be struck down.
The questions from the justices indicated that at least some of them were considering either striking down just the requirement, often called the individual mandate, or the entire law.
Paul D. Clement, representing 26 states challenging the law, urged the court to overturn the entire law. Edwin S. Kneedler, a deputy solicitor general, took a middle ground, suggesting that the court remove the mandate and only a couple of other provisions.
The court separated the day’s arguments into two sessions. After the morning session, which focused on the effect of overturning the mandate, the afternoon's hearing dealt with the law’s expansion of Medicaid, part of its attempt to reduce the number of Americans without health insurance.
In the second argument, the court’s more conservative justices expressed concern that the law’s Medicaid expansion was unduly coercive to states.
“My approach would be to say that if you take the heart out of this statute,” Justice Antonin Scalia said, “the statute’s gone.”
Justice Scalia, who suggested that the whole law would have to go, appeared to go further than some of the other justices, but many of them expressed skepticism that the rest of the law could remain intact if the court ruled the mandate to be unconstitutional.
Justice Ruth Bader Ginsburg called the court’s task, should the key provision fall, a choice between “a wrecking operation” and “a salvage job.” Wrecking Operation or Salvage Job?
There is nothing of merit to salvage in Obamacare. Even if there was, the Supreme Court should not have to read through thousands of pages to find it.
The only things to "salvage" if key provisions are struck down, are Obama's inflated ego and his ability to say he passed healthcare legislation.
Memo to Nancy Pelosi
Hello Nancy: It seems the Supreme Court also does not want to read the bill to find out what's in it.
Sorry Team Obama, your bill was more like "Healthwreck" than "Healthcare".
By the way, I have to ask: If the Supreme court strikes Obamacare, does it strike any provisions of Romneycare that passed in Massachusetts?
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A supreme shock for ‘La-La’ libs
By JOHN PODHORETZ
Last Updated: 12:15 AM, March 29, 2012
The panicked reception in the mainstream media of the three-day Supreme Court health-care marathon is a delightful reminder of the nearly impenetrable parochialism of American liberals.
They’re so convinced of their own correctness — and so determined to believe conservatives are either a) corrupt, b) stupid or c) deluded — that they find themselves repeatedly astonished to discover conservatives are in fact capable of a) advancing and defending their own powerful arguments, b) effectively countering weak liberal arguments and c) exposing the soft underbelly of liberal self-satisfaction as they do so.
That’s what happened this week. There appears to be no question in the mind of anyone who read the transcripts or listened to the oral arguments that the conservative lawyers and justices made mincemeat out of the Obama administration’s advocates and the liberal members of the court.
This came as a startling shock to the liberals who write about the court.
Jeffrey Toobin of the New Yorker and CNN confidently asserted on Charlie Rose at the beginning of the week that the court would rule 7-2, maybe even 8-1 in favor of ObamaCare. The previous week, he called the anti-ObamaCare arguments “really weak.”
His view was echoed by an equally confident op-ed assertion by the veteran court reporter Linda Greenhouse, who in The New York Times declared the case against ObamaCare “analytically so weak that it dissolves on close inspection.”
It was quite a change, then, to see Toobin emerge almost hysterical from the Supreme Court chamber after two hours of argument on Tuesday and declare the proceedings “a train wreck for the Obama administration.”
Yesterday, after another two hours of argument, he suggested it might even be a “plane wreck.”
That was the general consensus across the board. It held that the two lawyers arguing against ObamaCare — Paul Clement and Michael Carvin — were dazzlingly effective, while the administration’s solicitor general, Donald Verrilli, put in a mediocre performance.
True enough. But here’s the thing: There was nothing new in what Clement and Carvin said.
Their arguments were featured in briefs already submitted to the court and available for general inspection. And they’d already been given weight by the two judicial opinions against the constitutionality of ObamaCare issued by federal district court judges — one by Henry Hudson in Virginia in December 2010, the other by Roger Vinson in Florida in January 2011.
The briefs exist. The decisions exist. You can Google them. They are strong, fluent, well-reasoned and legitimate. They take ObamaCare seriously, and they argue against it at the highest possible level.
Thus, the strength of the conservative arguments only came as a surprise to Toobin, Greenhouse and others because they evidently spent two years putting their fingers in their ears and singing, “La la la, I’m not listening” whenever the conservative argument was being advanced.
This is not to say that the pro-ObamaCare side had no arguments. It had plenty of arguments, and by far the most important interlocutor on its behalf was Justice Sonia Sotomayor. Her perceptive and crystal-clear questioning of Clement and Carvin should put to rest forever the idea (spread both by liberals and conservatives) that she is intellectually unworthy to serve on the nation’s highest court.
The defense of ObamaCare’s constitutionality relies mainly on the truism that everyone is sure to get sick at some point in their lives, and this makes the health-care market unlike any other market. For the liberals, this fact — bolstered by the Constitution’s Commerce Clause — gives Congress the power to compel every adult in the nation to buy a private health-insurance policy.
The attack on ObamaCare was that Congress does not have the power under the Commerce Clause to force a private citizen into a private contractual relationship. If such a thing is permitted to stand, the anti-ObamaCare forces argue, there will be no limit to Congress’s power in the future.
There’s no telling which of 10 possible ways the high court will finally rule. But one thing is for certain: There will again come a time when liberals and conservatives disagree on a fundamental intellectual matter. Conservatives will take liberals and their arguments seriously and try to find the best way to argue the other side.
And the liberals will put their fingers in their ears and sing, “La la la.”
jpodhoretz@gmail.com
Read more:
http://www.nypost.com/p/news/opinion/opedcolumnists/supreme_shock_for_la_la_libs_LkWBvHWTzeCs4gvA3hdHKJ#ixzz1qWZivF00
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The communist left have shown themselves to be intellectual lightweights, morons, and lying pieces of garbage by trying to advance and foist obamacare on us.
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I got $20 that if this gets thrown out Obama will claim the SC has become partisan and political and will call to overturn their decision.
it'll be a rallying cry for dems in 2012 to re-elect obama... "Do you want a repub SCOTUS stripping away the handouts"
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Dems Warn Of ‘Grave Damage’ To SCOTUS If ‘Obamacare’ Is Struck Down
TPM ^ | 3/28/2012 | sahil kapul
Posted on March 29, 2012 4:50:01 PM EDT by Sybeck1
A handful of Senate Democrats sought to assure doubtful liberals that the Supreme Court justices aren’t ready to strike down their crowning achievement, standing before cameras and mics Wednesday in front of the court. One warned that doing so would ruin the court’s credibility.
“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.”
Kerry said the assumptions that tough questions from the justices will amount to striking down some or all of the Affordable Care Act are a fallacy — he predicted, as the final oral arguments were transpiring inside, that it would be upheld.
“Now I am glad — as I think any of us who’ve practiced law are — to see the intense questions from the justices. They’re engaged, and they are thoughtfully working through these issues,” Kerry said. “But questions are a legitimate way of probing the basis of their own thinking. They are not an indication of a judgment made, or a vote ready to be cast. They’re working through this process as they ought to, mindful of the fact that 30 courts below them have already made a judgment upholding it.”
Blumenthal and Kerry — who were joined by Sen. Jeff Merkley (D-OR) — called the press conference one day after liberals and other court watchers expressed serious doubts that the justices would uphold the Affordable Care Act’s requirement to purchase insurance, a central pillar of the law. The firestorm was ignited by legal analyst Jeffrey Toobin, who called Tuesday’s arguments a “train wreck” for the White House and predicted that “Obamacare” would be struck down.
Pushing back, Blumenthal said that there’s a “heavy burden” on the challengers.
“Everybody learns in the first year of law school that the law that’s challenged is presumed to be constitutional,” Blumenthal said. “That is a heavy burden for anyone challenging the constitutionality of a law to overcome. When in doubt, uphold the law. There is a lot of room for doubt here, and there is a lot of clear precedent that requires this court to uphold this law.”
The Democrats’ level of confidence has diminished since the days when they dismissed a constitutional challenge to the Affordable Care Act as frivolous. Indeed, the tough questioning from swing Justices John Roberts and Anthony Kennedy about the limits of federal power at least rattled liberals enough to require the nerve-soothing press conference. But Democrats are seeking to quell liberal fears that the game is already over.
Experts say it’s too difficult to predict how the court will rule.
Affordable Care Act, HCR/SCOTUS, Supreme Court
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Questions from Justice Kennedy, others point to a 5-4 vote knocking down Affordable Care Act
Mackinac Center for Public Policy ^ | 3/28/2012 | Patrick Wright
Posted on March 29, 2012 3:47:01 PM EDT by MichCapCon
When Obamacare first passed, then-House Speaker Nancy Pelosi incredulously responded to a query about whether the law was constitutional with: "Are you serious?" After Tuesday's oral argument, she might want to revise and extend her remarks; a 5-4 vote seems almost certain based on the tone of the individual justices' questions.
The law's proponents had hoped that Justice Antonin Scalia, author of the Raich opinion upholding a federal marijuana prosecution in the face of a state ballot initiative to the contrary, might provide a 6th vote for them. But Justices Scalia, John G. Roberts Jr., and Samuel Alito were highly dubious of the government's position.
It is assumed that Justice Clarence Thomas, who almost never asks questions during oral argument and has historically voted to limit government power, will vote the individual mandate is improper. The "liberal" justices, Elena Kagan, Sonia Sotomayor, Stephen G. Breyer and Ruth Bader Ginsburg all seemed to be in favor of the law.
Not surprisingly, that leaves Justice Anthony M. Kennedy as the swing vote. He asked some interesting questions. He asked the Solicitor General: "Assume for the moment that this is unprecedented, this is a step beyond what our cases have allowed, the affirmative duty to act to go into commerce. If that is so, do you not have a heavy burden of justification? I understand that we must presume laws are constitutional, but, even so, when you are changing the relation of the individual to the government in this, what we can stipulate is, I think, a unique way, do you not have a heavy burden of justification to show authorization under the Constitution?"
He also recognized that this case is breaking ground in that Congress is trying to do something new — make people enter into a contract: "But the reason, the reason this is concerning, is because it requires the individual to do an affirmative act. In the law of torts our tradition, our law, has been that you don't have the duty to rescue someone if that person is in danger. The blind man is walking in front of a car and you do not have a duty to stop him absent some relation between you. And there is some severe moral criticisms of that rule, but that's generally the rule. And here the government is saying that the Federal Government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases and that changes the relationship of the Federal Government to the individual in the very fundamental way."
On the other hand, he seemed sympathetic when discussing the government's contention that the health care market or perhaps the health insurance market is unique: "But I think it is true that if most questions in life are matters of degree, in the insurance and health care world, both markets — stipulate two markets — the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries. That's my concern in the case."
And when Paul Clement, a former Solicitor General who was appearing for the 26 states challenging the law, attempted to claim that the uninsured were not market participants and therefore not engaged in "commerce," which is a requirement before Congress can legislate, Justice Kennedy asked: "But they [meaning those who choose not to buy insurance] are in the market in the sense that they are creating a risk that the market must account for."
The manner in which Justice Kennedy resolves his questions will likely tell us whether the law is constitutional or not.
Patrick Wright is senior legal analyst at the Mackinac Center for Public Policy, where he directs the Mackinac Center Legal Foundation
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Frankly, I found all three days of arguments to be fascinating. Some of the arguments that everyone thought would be slam-dunks barely registered (particularly the Anti-Injunction Act which was argued in the first day), and some of the arguments that everyone thought wouldn't registered were big big hits. Certainly the questions that the Justices posed mean that the chances that the ACA will be left to stand intact are much lower than they were before oral arguments began. But I still think that this isn't the slam-dunk case people are making it out to be.
The opinion will be out by June, and that's not really enough time to write a really good opinion, for a case that will certainly be scrutinized, dissected, analyzed and will probably count as one of the most important cases heard by the Roberts Court.
Overall opinions? The transcripts were a fascinating read. Clement did a very good job, which wasn't really a surprise; the big surprise for me what SG Verilli's performance. It wasn't bad, but it was a bit underwhelming. I had expected more, given the amount of time he had to prepare and the resources at his disposal.
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The Heavens Will Not Fall If Obamacare Does
CNSNews ^ | May 23, 2012 | Stephen Presser
Posted on May 23, 2012 5:02:31 PM EDT by jazusamo
As we come closer to finding out the Supreme Court’s disposition of the constitutionality of the Patient Protection and Affordable Care Act (the PPACA), and, in particular, its individual mandate (which requires virtually all adult Americans to purchase health insurance or pay a penalty), there is an increasingly anguished lament coming from the left of the punditocracy and the political class.
There is palpable fear that the Court will (as it should, in my opinion), declare the individual mandate unconstitutional, and thereby undo the signature achievement of President Obama’s administration.
Perhaps, most notable is the New Republic’s distinguished court commentator, Jeffrey Rosen, who recently declared that if the Court throws out the individual mandate, it is likely to presage the return of “a series of legal doctrines that have been dormant since the New Deal but which judges could use to dismantle the post–New Deal regulatory state, including economic regulations, health and safety laws, and environmental laws.”
Similar comments to Rosen’s have been voiced by politicians, such as Senator Leahy, and the President himself has hinted that it would be completely improper for the Court to fail to give support to a measure such as the PPACA which was passed with broad Congressional support (whether it actually was or not).
There is a general feeling that if the Court does declare the individual mandate (or maybe even the entire PPACA) to go beyond the Constitutional bounds, the firestorm of criticism will make the reaction to Bush v. Gore look tame by comparison.
In the face of this disappointing attempt to intimidate the Court, and, in particular, its Chief Justice John Roberts and its perpetual swing voter Anthony Kennedy, it will take some courage for the Court to do what is Constitutionally correct, and we can only hope that courage is forthcoming.
The individual mandate of the PPACA is the boldest attempt yet to dramatically expand the reach of Congressional power. And, simply stated, no one has been able to explain how, if the Congress can do this, any limits remain on its power. The Government attorneys defending the PPACA at the recent Supreme Court arguments were not able to limn any such remaining limits, and this is because there are none.
Still, there are few clearer principles in the Court’s recent jurisprudence regarding the commerce clause than that there must remain some limits on Congressional power, and that the primary police power (the basic law-making ability) must remain with the states, and not with the federal government. Our original break with Great Britain was over the issue of untrammeled legislative power, and for the Supreme Court to fail to maintain the limits on Congressional authority would be to return us to an era of all-powerful government. Lodging such power in Congress would inevitably lead to other abuses, and other restrictions on individual freedom.
To strike down the individual mandate or the PPACA would not (as Rosen, Leahy and the President suggest) be improper judicial activism. Instead, it would simply be the implementation of the oath the Justices take to uphold the Constitution.
There is no threat that I can see to “economic regulations, health and safety laws, and environmental laws,” which the Court or the lower federal courts have already quite clearly upheld. The PPACA was the first time that the Congress sought to use its interstate commerce regulatory power to compel Americans to participate in commerce, rather than as a tool to regulate those already in the marketplace. It is an abuse of that power, and should be curtailed.
The heavens will not fall if the Court takes this sensible step, and future generations will quite likely be grateful to the Justices who do so.
Editor’s Note: Stephen B. Presser is the Raoul Berger Professor of Legal History at Northwestern University School of Law, and a Professor of Business Law at Northwestern’s Kellogg School of Management. He was a signatory to two briefs filed in the Supreme Court urging the unconstitutionality of the PPACA.