ObamaCare goes to the Death Panel - "Got massacred today in the Supreme Court"

[Soul Crusher]

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.

[howardroark]

All you need to know about the commerce clause:

[Soul Crusher]

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

Please follow Politics on Twitter and Facebook.

Follow Michael Brendan Dougherty on Twitter.
Ask Michael A Question >

Read more: http://www.businessinsider.com/legal-analyst-obamacare-goes-from-train-wreck-to-plane-wreck-2012-3#ixzz1qQmmef4n

[Soul Crusher]

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 ...

[Soul Crusher]

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 ...

[Soul Crusher]

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 ...

[Shockwave]

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.

[Soul Crusher]

 . Ginsburg sounded pathetic today. 

[Skip8282]

. 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

[Soul Crusher]

Liberal Supreme Court Reporters Are Flipping Out After Yesterday's Obamacare Disaster
Michael Brendan Dougherty    | Mar. 28, 2012, 10:10 AM | 3,522 | 42

inShare
6 
 
 
A A A
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. 

[Soul Crusher]

Liberals in panic - good.   Fuck every last leftist communist progressive piece of shit who supported Obama.   you rats brought us to this point! 

[Soul Crusher]

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.

[Soul Crusher]

Free Republic
Browse · Search   Pings · Mail   News/Activism
Topics · Post Article
Skip to comments.

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 ...

[Emmortal]

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.

[MM2K]

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?

[MM2K]

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.

[MM2K]

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.

[Soul Crusher]

[Soul Crusher]

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.

[Soul Crusher]

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.

[Soul Crusher]

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?

[Soul Crusher]

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






________________________ ______



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.   

[240 is Back]

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"

[Soul Crusher]

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

[Soul Crusher]

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