In Advance Of ObamaCare Ruling, The Attacks On The Supreme Court Begin

We don't know what the Supreme Court will have to say about the Affordable Care Act, but their decision is already being attacked.

Sometime between now and next Friday, the Supreme Court will finish handing out the remainder of its outstanding decisions including, most notably, its decision in the four cases that make up the various challenges to the Patient Protection And Affordable Care Act of 2010, or as pretty much everyone has come to refer to it now, ObamaCare. Predicting what the Court will do is always a perilous task, none the more so here where the outcome of the case likely depends on how a single Justice, Anthony Kennedy, ended up viewing the case after March’s Oral Arguments. It’s not unfair to say, though, that the law’s opponents received a significant boost from those arguments, and that many of the law’s supporters were dejected, after the second day of argument seemed to indicate that Kennedy and at least four other Justices had serious problems with the Constitutionality of the individual mandate and that the severability arguments on Day Three seemed to suggest that they might toss the whole law out if they struck down the mandate. That led to much commentary on the left arguing that the Court would be risking its legitimacy if it struck the PPACA down, which struck me as an odd argument to make largely because polls, then and now, showed that a substantial majority want the Court to strike down the law. Now that we’re approaching Decision Day for the PPACA, those arguments are being made again.

First up, there’s Juan Williams, who argued yesterday in The Hill that the Court is risking its legitimacy because, if he loses in Court, Obama will attack the Court during the election:

The Democrats have a nuclear option in this political game if the high court throws out the healthcare law as unconstitutional.

That blowup-the-system button, not pushed since FDR’s attempt to stack the court with Democrats during the New Deal, is for Obama to use the bully pulpit of the White House, and the national stage of a presidential campaign, to launch a bitter attack on the current court as a corrupt tool of the Republican right wing.

It is a move that could energize Democrats and independents even as Republicans celebrate a major legal victory.

(…)

The relevant point is that the court may do irreparable harm to its reputation with another highly political split between justices appointed by Democrats and justices appointed by Republicans. A 5-4 defeat of the healthcare law will erode trust in the justice system.

It will be another example of how polarization has poisoned our politics during the past decade.

So let me get this straight. The Supreme Court comes down with a ruling that the President disagrees with, the President responds by spending the next four months attacking the legitimacy of a co-equal branch of government, and it’s the Supreme Court’s fault that things have become polarized? Where is President Obama’s responsibility for pushing a health care “reform” bill that never had public support to begin with, either because it was truly unpopular or because he and his staff utterly failed to communicate the reasons it was supposedly a good thing to the public? Where is Congress’s responsibility for not even holding a single hearing about the Constitutional arguments that were being made regarding the mandate and other aspects of the law as early as September 2009? Why doesn’t anyone ask Nancy Pelosi why she laughed off the suggestion that the law might be unconstitutional?  The idea that the Supreme Court is the one responsible for the fact that Congress passed a law that, at best, skirts the boundaries of Constitutionality, is simply absurd and a conclusion that one can only reach if you refuse to accept the possibility that your view of the Constitution as it applies to the PPACA might just be wrong.

In a similar vein, Kevin Drum argues that a decision that strikes down the mandate can only be seen as politically motivated:

If the court does overturn the mandate, it’s going to be hard to know how to react. It’s been more than 75 years since the Supreme Court overturned a piece of legislation as big as ACA, and I can’t think of any example of the court overturning landmark legislation this big based on a principle as flimsy and manufactured as activity vs. inactivity. When the court overturned the NRA in 1935, it was a shock—but it was also a unanimous decision and, despite FDR’s pique, not really a surprising ruling given existing precedent. Overturning ACA would be a whole different kind of game changer. It would mean that the Supreme Court had officially entered an era where they were frankly willing to overturn liberal legislation just because they don’t like it. Pile that on top of Bush v. Gore and Citizens United and you have a Supreme Court that’s pretty explicitly chosen up sides in American electoral politics. This would be, in no uncertain terms, no longer business as usual.

It’s interesting to see what Brown (and Williams) are doing here. The Court’s decision hasn’t even come out yet, and they’re already laying the groundwork for the argument that any decision other than complete vindication for the PPACA will be entirely political in nature. The fact that they are doing so for the purpose of advancing their own political agendas is slightly ironic, of course, but it’s worth noting that what’s going on here isn’t really an honest discussion about legal issues as it is laying the ground work for the very war against the Court that Williams suggests Obama engage in if the PPACA is overturned. All this before they even know what the result is, or what the legal reasoning in the opinion will be. Again, all of this while they’re making an argument accusing the Court of being the one that would be acting politically.

The real question, though, is whether it would really be a good idea for the Democrats to follow the advice that Williams explicitly, and Drum implicity, offers and engage in a full-throated attack on the legitimacy of the Supreme Court in the wake of a ruling striking down the PPACA. In some sense, it might not be necessary for the campaign to do that, of course, because the pundits on the left, and pretty much everyone on MSNBC, are likely to spend most of the summer (at least up until the Olympics) doing it for them.

Nonetheless, Jeff Shesol argues that it would be a mistake for the left to engage in an attack on the Judiciary in the event of an adverse ruling. Shesol starts out by pointing out that running against the Court isn’t new to American politics. Thomas Jefferson and Abraham Lincoln both did it. William Jennings Bryan in 1896, Teddy Roosevelt in 1912, and Robert LaFollette in 1924 all did it too. Franklin Roosevelt famously tried to take on the Court with his Court-packing plan, and failed. And in 1968, Richard Nixon successfully made the Warren Court’s rulings on criminal justice matters an issue in the election, and Roe v. Wade has served as a rallying point for the right for decades now. However, Shesol notes, there is a danger in these attacks:

Running against the court, then, is a winning strategy—except when it isn’t. History, like legal precedent, sometimes points in two directions at once. So what lessons can President Obama draw from these conflicting examples? The first, clearly, is that criticism of the Supreme Court is hardly unheard of—even vigorous criticism, even in an election year. Second, candidates for (and occupants of) the White House have an obligation to say what kind of judges they plan to appoint. Reagan talked a lot about that question in 1980, recalls Ed Meese, who helped run the campaign and later served as attorney general, because Reagan felt that appointing judges “was one of the most important things that a president did,” Meese says. It is almost always the case—it certainly is this year—that the winner of the election might have a chance to tip the balance on the court for a generation.

There’s a difference, though, between describing your ideal justice and attacking the less-than-ideal ones we’ve already got. Criticizing the court “might well be appropriate,” observes Walter Dellinger, solicitor general during the Clinton administration, but “it might also be bad politics.” This year, for President Obama, it is almost certainly both: appropriate and unwise.

It is true, as some on the left point out, that the court’s “numbers are fairly soft”: the New York Times/CBS News poll is not the only one to register a sharp drop in public faith in the institution. Others show that trust in the Supreme Court has tied record lows set back in the 1970s, and that by a substantial margin, voters expect the justices to base their health-care ruling more on politics than on the Constitution. This does not, however, put them in the president’s camp. More than two thirds of Americans—including more than 70 percent of independent voters—hope the court will overturn some or all of the ACA. In other words, if the justices oblige, a majority of Americans might question the grounds of the decision but approve of it regardless. Advantage, Mitt Romney.

So, the “attack the Court” strategy is something of a risk for Obama. Of course, it would also be a risk for Romney if the decision goes the other way, which I will admit is entirely possible. For both candidates, the decision itself is going to need to be responded to no matter what it says and, if nothing else, it’s likely to make the issue of who gets to pick the Justices who will replace the people who may be retiring between now and 2017, which could include as many as four justices depending on health issue and retirement preferences, at least somewhat important, although that’s typically something that only motivates base voters rather than independents. It strikes me, though, that the President and his campaign would be mistaken if they took the news of an adverse ruling at the Supreme Court as an opportunity to bash the decision as politically motivated. Not only would it undermine the the Rule of Law, it would play into Republican arguments that President Obama doesn’t give sufficient consideration to the Constitutional limitations of his power. More importantly, such an attack by Obama would play into the arguments made by his critics that his primary goal is to expand the power of the Federal Government in an era when the public is continuing to lose trust in the very institutions he would give more power to. That strikes me as a risky strategy to say the least.

FILED UNDER: Barack Obama, Campaign 2012, Health Care, Law and the Courts, Politicians, US Politics
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. steve says:

    Attacking the Judiciary has been a standard part of the right’s agenda for years. Why is it different if the left criticizes the Court? I also fail to see why the Supreme Court should be above criticism. Maybe because you are a lawyer, you still see them as impartially interpreting the law, but for most of us, we see judges who are overly involved in politics and swayed by their ideology.

    Steve

  2. Stan says:

    Bush vs Gore, Citizens United, and ObamaCare. it’s a trifecta for conservate activism. But there’s more to come. Before long Massachusetts will have to drop its individual mandate and Hawaii will have to end its requirement that businesses provide health insurance. It’s back to the gilded age, and the Doug Mataconis’s of this world will cheer.

  3. Tsar Nicholas says:

    Zoloft and Paxil prescriptions might be primed to skyrocket.

    Speaking of which, what will these airheads do if Obamacare is upheld? Write a column the next day pledging their lifetime allegiance to the SCOTUS? Geez, leftism is a mental disorder.

    In any event, with a little luck Obamcare will be consigned to the dustbin of history, Romney will get elected, he’ll replace Ginsburg and Breyer with real jurists, and over the ensuing decade or so the Court will erase from the law books pretty much every trace of leftism. Hamdan. Kelo. Miranda. Brady. Roe/Casey. The country would be better off without them.

  4. PD Shaw says:

    Kevin Drum has a blind spot:

    Pile that on top of Bush v. Gore and Citizens United and you have a Supreme Court that’s pretty explicitly chosen up sides in American electoral politics.

    The Court’s Guantanimo Bay decisions, culminating in Boumedine v. Bush, constituted the first time the SCOTUS failed to defer to the political branches during war in a matter concerning the conduct of war. Citizens United was not that unique. Bush v. Gore certainly was.

  5. al-Ameda says:

    The appearance is that this an “activist’ conservative Supreme Court. It is to be expected as our national elections have consequences – since 1968 Republicans have won 7 presidential elections and Democrats 4. The result is a more conservative Judiciary.

    So why isn’t it fair for the left to criticize the Court as such, much as as the right has done for decades going back to the Warren Court.

  6. PD Shaw says:

    @steve:” Attacking the Judiciary has been a standard part of the right’s agenda for years. Why is it different if the left criticizes the Court?”

    Because the Left (at least the Progressive Left) wants an activist court, just tilted to the left. Delegitimizing the court is at least partly counterproductive. Jefferson, Jackson, Lincoln, Nixon . . . really had no use for the SCOTUS, so delegitimizing the Court worked as ends and means.

  7. al-Ameda says:

    @PD Shaw:

    Because the Left (at least the Progressive Left) wants an activist court, …

    … and you do NOT think that the Right (the Republican base) wants an “activist” court?

  8. wr says:

    The reactionary majority on the court has given up any pretense of judicial modesty. They throw out law that’s been settled for a century and replace it with their whim — a whim that inevtiably favors the rich over the poor, the strong over the weak, and the corporation over the individual.

    But according to Doug, we’re not supposed to notice that our democracy is being stolen out from under us. Because, apparently, that would be impolite. But while we’re supposed to be quiet, the right is cheerleading the same way Tsar is — for rolling back decades of freedoms and instituting a corporate police state in which, among other things, abortion will be criminalized and the accused will no longer have to be given their rights once arrested. Oh, and there’s no more habeas rights — that’s why Tsar wants to overrule Boumedienne, right? Because we all know that if the state accuses you, you’re guilty.

    I guess Tsar thinks he’ll be on the winning side in a corporatist police state. I’m pretty sure Doug sees it as nothing but good news. Sorry I can’t agree.

    So yes, I have no problem with the Democrats actively attacking the radical reactionaries on the court who are trying to remake America in their image.

  9. Jay_Dubbs says:

    Attacking the Court is hardly unusual. Jefferson attacked judicial review; Jackson did it for striking down the national bank; Lincoln did it for Dred Scot; FDR did it for the various decisions striking down New Deal legislation. None of them ran on an explicit platform against the Court, and neither will Obama, because, well, how could you?

    But just as the right attacked abortion and prayer in school decisions that went against them, the left is now attacking campaign spending and (preemptively) health care decisions.

    Is it good policy? Ehh. If the Court sees it is fully out of step with the American public, maybe it will tack from its current rightward course. On the other hand, abortion is still legal and you can’t force prayer in school.

    Is it good politics? Yep. The modern GOP is based upon its social conservative wing. Its full-throated proclamations that the Court was wrong on those decisions is what served as the catalyst. Likewise, Obama’s denunciations of Citizens United serve as the proverbial dog whistle to the left that he understands them.

    The Court has always been political and as such will be attacked. The danger that Court has is that it delegitimizes itself if it gets too far out of stream. See Dred Scot. That is what almost happened in 1936 before the “switch in time.” But, of course, back then you had Justice with much more political experience who recognize the danger. This Court appears to be much more ideological that practical bent, but only time will tell.

  10. John D'Geek says:

    Having read both of the offending opinions (Bush v. Gore; Citizens United), I can honestly say none of the posters (so far) have a clue. Bush v. Gore was 9-0 on the most important matters, differing only in a procedural matter; Citizens United had some strong issues with the inherent bias of the law.

    I rarely have serious issues with a supreme court decisions (though I may disagree). The only one I can recall was the overturning of a Pennsylvania abortion law on the basis that “Marriage is different now than it used to be”. (Which, ironically enough, turns out to be correct — and should scare the hell out of everyone. But I digress).

    SCOTUS doesn’t typically play politics. They can’t afford it.

    They throw out law that’s been settled for a century and replace it with their whim …

    The power of Precedent was eliminated in Brown v. Board of Education. From now on you will see plenty of vacillating, both Left and Right.

  11. Jay_Dubbs says:

    @John D’Geek: “SCOTUS doesn’t typically play politics. They can’t afford it.”

    That’s funny!

  12. Ron Beasley says:

    Interpreting the constitution is a matter of ideology – a filter of sorts. Ideology and politics are one in the same. Due to the nature of the SCOTUS there is a lag between the ideology of the POTUS and the Congress and the court. To say the court is not political is absurd – the justices are appointed and approved by politicians. It’s an activist court when they make decisions you don’t agree with – ideology and politics again.

  13. danimal says:

    Standard caveat: We don’t know what the court will do…yadda yadda. But if the trial balloons that have been floated by Justices Ginsberg (the court has some very divisive splits in our upcoming opinions) and Scalia (about the precedents I have written that happen to support the individual mandate, well, I’ve changed my mind) in recent days are an indication, the SCOTUS is about to overturn all or part of the ACA, with a fairly partisan split.

    Conservatives have never understood the polling on health care reform; there is a sizeable percentage (around 15-20%) who oppose the bill because it doesn’t go far enough (the single payer/public option/Medicare for All crowd). This group can be added to those opposing health care reform to make a majority, but they can also be added to the group that desires reform, making reformers a majority. Killing reform in a split, partisan ruling would not play well with this crowd. A politicized Supreme Court ruling would be a touchstone for liberals in the same way Roe v. Wade galvanized conservatives two generations ago. Maybe overturning this law by these means will be worth it to conservatives, but they will have a heck of a time dealing with the aftermath. Interesting days ahead.

  14. ernieyeball says:

    You do not have the right to remain silent.
    If you do not say anything we will assume you are guilty of whatever we can think to charge you with.
    We will get you an attorney as soon as you confess. Of course if you are broke and you have already confessed you do not need a lawyer.
    We don’t care if you grok this or not because we have your sorry ass and you are not going anywhere!
    Miranda Warnings revised by Tsar Nicholas. June 19, 2012

  15. PD Shaw says:

    @al-Ameda: My point is not about right / left. Its about populist Presidents (like FDR) who wanted a weak SCOTUS and appoint judicial conservatives, and non-populists like Obama who wants a SCOTUS with the power and legitimacy to use the Constitution to strike down popular laws, like Defense of Marriage. The right has its own populisist vs. elite divisions.

  16. MBunge says:

    Why does a libertarian believe an unelected body which involves itself in national policy-making should be immune from criticism?

    Mike

  17. steve says:

    @PD- Seems to me that both the right and left just want judges who rule in their favor. Both believe in activism, just with different ends. Both seem to willing to criticize and go after the court when it does not like its rulings.

    Steve

  18. jan says:

    @Tsar Nicholas:

    “Speaking of which, what will these airheads do if Obamacare is upheld? Write a column the next day pledging their lifetime allegiance to the SCOTUS? Geez, leftism is a mental disorder.”

    The social progressives are all primed for the ACA to be either partially overturned, or completely discarded (as it should be). Therefore, it is time to rag on the judges! This way they can be ahead of the game, and have their calls for ‘injustice’ in the judicial system already out front and center. It’s ironic, though, because the conservatives are just sitting tight, and continue to say, like a broken record, that healthcare should start over and be reworked in a better way.

    It will be truly hilarious if the SCOTUS keeps the ACA intact, and then listen to all the turnabouts, and derision registered at the conservatives for trying to rebuke this act in the first place.

    I think the ACA should be determined as unconstitutional. However, if the jurists fail to do this, then it’s time to go back to first base and attempt to rectify it through the election of Romney. I’m not going to cry in my beer, though, stomp my feet, and call the SCOTUS a bunch of ‘activists’ because they don’t rule in the way I think they should. I’ll leave that for the adolescent social progressives to work through.

    Tsar, leftism is basically a disorder related to immaturity.

  19. James H says:

    Please. Recall the rules:

    If you disagree with the court’s ruling, then it is a dangerous, out-of-control cabal of activist judges who disregard botht the Constitution and democracy.

    If you agree with the ruling, then the court is a group of wise men and women who understand the judiciary’s role and apply the Constitution wisely.

  20. Dakota says:

    This Supreme Court is the most activist in modern history. They are purely political. Scalia is going to rule against himself to strike down the ACA. I’m ashamed of this Court. They will continue to destroy our democratic republic.

  21. KansasMom says:

    @jan:”I think the ACA should be determined as unconstitutional. However, if the jurists fail to do this, then it’s time to go back to first base and attempt to rectify it through the election of Romney. ”

    What kind of game are you playing? The at bat starts at home plate, not first base.

    “This way they can be ahead of the game, and have their calls for ‘injustice’ in the judicial system already out front and center. It’s ironic, though, because the conservatives are just sitting tight, and continue to say, like a broken record, that healthcare should start over and be reworked in a better way”

    You need to get a grip on your metaphors, you’re making me dizzy.

  22. Jeremy R says:

    http://www.newyorker.com/reporting/2012/06/25/120625fa_fact_klein

    On March 23, 2010, the day that President Obama signed the Affordable Care Act into law, fourteen state attorneys general filed suit against the law’s requirement that most Americans purchase health insurance, on the ground that it was unconstitutional. It was hard to find a law professor in the country who took them seriously. “The argument about constitutionality is, if not frivolous, close to it,” Sanford Levinson, a University of Texas law-school professor, told the McClatchy newspapers. Erwin Chemerinsky, the dean of the law school at the University of California at Irvine, told the Times, “There is no case law, post 1937, that would support an individual’s right not to buy health care if the government wants to mandate it.” Orin Kerr, a George Washington University professor who had clerked for Justice Anthony Kennedy, said, “There is a less than one-per-cent chance that the courts will invalidate the individual mandate.” Today, as the Supreme Court prepares to hand down its decision on the law, Kerr puts the chance that it will overturn the mandate—almost certainly on a party-line vote—at closer to “fifty-fifty.”

    Orin Kerr says that, in the two years since he gave the individual mandate only a one-per-cent chance of being overturned, three key things have happened. First, congressional Republicans made the argument against the mandate a Republican position. Then it became a standard conservative-media position. “That legitimized the argument in a way we haven’t really seen before,” Kerr said. “We haven’t seen the media pick up a legal argument and make the argument mainstream by virtue of media coverage.” Finally, he says, “there were two conservative district judges who agreed with the argument, largely echoing the Republican position and the media coverage. And, once you had all that, it really became a ballgame.”

    Jack Balkin, a Yale law professor, agrees. “Once Republican politicians say this is unconstitutional, it gets repeated endlessly in the partisan media that’s friendly to the Republican Party”—Fox News, conservative talk radio, and the like—“and, because this is now the Republican Party’s position, the mainstream media needs to repeatedly explain the claims to their readers. That further moves the arguments from off the wall to on the wall, because, if you’re reading articles in the Times describing the case against the mandate, you assume this is a live controversy.”

  23. al-Ameda says:

    @jan:

    Tsar, leftism is basically a disorder related to immaturity.

    I’ve heard that conservatism is a wider and more complex disorder for which there is no known cure.

  24. wr says:

    @jan: “Tsar, leftism is basically a disorder related to immaturity. ”

    Says the woman who states proudly that her opinions are more valid than objective facts.

    Let’s face it, Jan. With that one post you completely obliterated any hope you might ever have had of being taken seriously here or anywhere. At the very least you should do what Jenos does whenever he makes a complete fool of himself — slink away for a few months, and then come back with a new screen name, pretending to be a different person.

    So don’t bother trying to insult people who don’t agree with your “give me everything and the hell with everyone else” philosophy. You are revealed. You are a joke. Go hide your head in shame.

  25. rodney dill says:

    @wr:

    Says the woman who states proudly that her opinions are more valid than objective facts.

    So where did she say that wr?

  26. slimslowslider says:
  27. grumpy realist says:

    If the SCOTUS overturns this, we’re going to be in for an interesting several years. I can see in the end either an added tax for a universal care system, or we’re going to continue with the absolutely broken system we had.

    Hope none of you have any prior health conditions and need to get some new health insurance. Had cancer? Denied. Have diabetes? Denied. Took some acne pills you didn’t talk about on your application form? Denied. You won’t be incented to donate a kidney, either. (Donation of a kidney results in a pre-existing condition.) And no insurance for any Down’s syndrome sufferers: Denied. (You’d think Sarah Palin would have something to say about this.)

    The only hope I can see is that enough adult americans are overweight and diabetic that if we go back to the old system a sizable percentage of Americans will have no health insurance at all. Which will mean a lot of squawking to the politicians.

  28. grumpy realist says:

    Oh, and throwing out Obamacare will also mean getting rid of the biologics equivalent of the Hatch-Waxman Act. Hope you like paying monopoly prices on the new medical treatments….

  29. mattb says:

    @rodney dill: WR turns what Jan wrote up to 11. More accurately, she expressed the idea that her subjective experiences held equal weight to objective facts.
    https://www.outsidethebeltway.com/obama-losing-support-among-new-york-jews-or-more-statistical-noise/

    Beyond that, I know that Jan often complains that she doesn’t want to engage in a conversation with people whose minds are set in concrete. I realize the comment she made in this thread *might* have been made with tounge-in-cheek, but I have a hard time seeing anyone who would even joke about how “leftism is basically a disorder related to immaturity*” has any room to think given the amount that her own mindset has become set in stone.

    *- BTW @rodney dill, given Jan’s personal history of going from being a (uncritical) progressive to an (uncritical) conservative as she’s aged, that snark is a great example of her using her subjective experience as objective fact.

  30. Barry says:

    @John D’Geek: “Bush v. Gore was 9-0 on the most important matters,…”

    I count the stopping of the recount as an important matter, so you’re a liar here.

  31. Barry says:

    @John D’Geek: “The power of Precedent was eliminated in Brown v. Board of Education. ”

    Please put sh*t like this first, so that we know what sort of maggot we’re dealing with.

  32. Barry says:

    @jan: “It’s ironic, though, because the conservatives are just sitting tight, and continue to say, like a broken record, that healthcare should start over and be reworked in a better way. ”

    Because it’s a lie which works. The right had no interest back in ’94 and they’ll have no interest now, if it’s overturned.

    Why change a successful lie?

  33. To me, the train left the station the first time anyone said “the next President will be able to appoint conservative-or-liberal judges.” That was probably ancient history. Since then it’s been hypocritical to pretend that the court is apolitical.

    Perhaps the only fallback now is to oppose extremist judges, and just accept that the normal “a little bit conservative” or “a little bit liberal” stuff is normal.

    I mean “too liberal” and “too conservative” comes up in every confirmation discussion, right?

  34. rodney dill says:

    @mattb:

    WR turns what Jan wrote up to 11

    (took me a while to get the Spinal Tap reference). Unfortunately it’s the same MO he’s used a few times to the extent it falsely represents what the person actually said. After you take the time to make a thoughtful response to someone like Jan in the post you reference, someone coming along and making essentially an ad hominem attack doesn’t aid the discussion.

    … and yes Jan’s immaturity remark doesn’t help the discussion either.

  35. Robert Levine says:

    A couple of things distinguish the ACA case from other major decisions, and those go to the heart of the legitimacy of criticism.

    First of all, John Roberts testified at his confirmation hearing that it was desirable for both the Court and its decisions that the Court avoid split decisions on major cases, or so at least I recall. This would seem to apply doubly to cases in which the Court might overrule major legislation strongly identified with one party and/or the current administration. Brown v. Board of Education was controversial, but it wasn’t regarded as partisan, and the 9-0 ruling made it hard to argue that it was temporary or someone not morally binding.

    Secondly, if the mandate (or the entire ACA) is thrown out, the oral arguments made it pretty clear that it would be on one or more techncalities. There was no argument, for example, that mandating health insurance at the time of admission to a health care facility would be constitutional, or that if the mandate were simply a tax in lieu of purchase of insurance it would be unproblematic. A case like this should not be decided on the basis of whether or not the drafters of the legislation used the wrong word.

  36. wr says:

    @rodney dill: Could you explain to me how I’m wrong about what Jan said? She boasted quite proudly that her opinion was more valid than any facts, since facts can be twisted. This after months of finding proof of her claims in “articles” that always turned out to be opinion pieces written by the hardest of the hard right.

    Jan isn’t interested in facts, because there is no factual basis to any of her claims. But instead of being embarassed by this, she trumpets it proudly.

    Which is why I no longer try to make a thoughtful response to her. She’s not interested. And whenever someone tries, she digs up some Red State post that “proves” she was right. I’ve seen too many ships washed up on those rocks to send out one more.

  37. jan says:

    @mattb:

    *- BTW @rodney dill, given Jan’s personal history of going from being a (uncritical) progressive to an (uncritical) conservative as she’s aged, that snark is a great example of her using her subjective experience as objective fact.

    I’ve been a registered democrat (never saying I was a social progressive) for most of my adult life — fiscally conservative and socially moderate. Basically my stances are a hybrid of both parties. However, as liberalism has veered in a more leftward direction, I tend to tack more right in my comfort zones. For instance, my ideas of healthcare reform continue to see a reconfiguration surrounding the private sector and tort reform, rather than embracing universial healthcare or the government single payer system. The best kind of partnership between employees and employers, IMO, are in-company unions, which don’t have all the power ploys of big union bosses and outside influences. The Whole Foods CEO supports these kinds of workplace partnerships. Immigration is another issue where I support a more reasoned kind of reform, rather than either-or open borders versus strick deportation kinds of options. Regarding the myriad of social issues, such as abortion, gay marriage etc., I am more libertarian, having my own personal beliefs guiding me, which I don’t have the need to impose on others.

    Reading and posting here for the last year has actually clarified some of my POVs, for which I am grateful. Yes, I do look at anecdotal information as a source of reality, rather than constantly consulting the oftentimes biased oracles of the MSM and politically sanctioned statistics. For instance, people will cite the low inflation figure, glossing over the fact that fuel and food are not included in this stat. which seems to invalidate, in the eyes of many, another’s observations of rising grocery store/restaurant prices, leading to more small business closures, for-lease signs etc.

    Yes, I do make tongue-in-cheek, critical comments, just like many liberal/leftist here do. Often, what follows, is a rush of defensive, or personal put-downs, especially if there is a scarcity of other more conservative red meat posts in which to gnaw on. However, it also seems to me that there are fewer non social progressive remarks being posted here, all the time, which is creating more of a blog of nodding heads than energetic diverse dialogues. Kind of gets boring after a while…..

  38. rodney dill says:

    @wr:

    She boasted quite proudly that her opinion was more valid than any facts, since facts can be twisted

    Because she never actually said that, if you think she did please show me where. She may well value her opinion over yours ( or over others) and she may question how ‘facts’ are quotes or used, but she never boasted, to my knowledge, that her opinions were more valid than facts. Nor did she say here or anywhere else I’ve found the following, “Jan says facts are subjective and only her opinion is worth following.” Which is a direct quote of your words. To me there’s a big difference between just thinking and stating that someone weighs their own opinion too highly; and fabricating statements that person supposedly made to support that thought.

  39. wr says:

    @rodney dill: “Because she never actually said that, if you think she did please show me where.”

    I’m not sure why I’m bothering to respond to someone who, like Jan, puts the word facts between scare quotes, as if to suggest that the existence of such a thing is subject to debate. But here is Jan in her own words:

    “What are ‘facts’ to you Matt? Are they stats cited via government sites, other publications, that have to pass the mustard of social progressives to even be noteworthy or read? Are they anecdotal stories, taken from one’s own experience or on the street observations? To me the coronation of saying something is factual is actually subject to individual interpretation and the eye of the beholder distributing said fact. Most of what I say is derived from a mixture of published sources, including my own opinion, discussions and direct observations around me.”

    Granted, I could be misreading her. Once she gets into the word salad that is “the coronation of saying something,” she is leaving the English language far back in the weeds. But she does say quite clearly she disregards facts and derives most of what she says from “a mixture of published sources, including my own opinion.” Which is a pretty sweet way to think: I type up my own thoughts and put them on a blog, and then use the fact of that publication to confirm what I was thinking…

  40. mattb says:

    @rodney dill:

    (took me a while to get the Spinal Tap reference).

    Glad you got it. I used that phrase because I think what Jan wrote can be stretched to what WR is saying. That said, I think its a cynical reading and not one I agree with.

  41. rodney dill says:

    @wr: again you’re adding things she didn’t say. She did say that.
    “Most of what I say is derived from a mixture of published sources, including my own opinion, discussions and direct observations around me.”
    but she doesn’t say she disregards facts. She does bring into question whether everything discussed is correct or is a correct interpretation of facts, and she questions the sources stating some ‘facts,’ but she doesn’t say she disregard facts, or places her opinion above all facts.
    There are even facts she chose not to refute.
    “As far as this thread, about losing support among NY Jews being relevant or just mere statistical noise in assessing the 2012 election, it is conjecture on both sides as to what will happen. You can cite all the past history of how such ‘noise’ revealed itself in actual elections, and I am not refuting those ‘facts.’ “
    I have not doubt you will continue make stuff up that wasn’t said, but there will still be some around that will point it out as fabrication. Someone else who doesn’t rely much on facts once said, “I don’t have a link, by the way. To me, all this stuff is ephemeral and should stay that way. I’m always astonished at those who can dig through archives of someone else’s blog and dig up a set of posts from the distant past. I’m more of a hit and run kind of guy…”. Oh way, that was you.

  42. grumpy realist says:

    @jan: Jan, that waffle about “my ideas of healthcare reform continue to see a reconfiguration surrounding the private sector and tort reform, rather than embracing universial healthcare or the government single payer system” is, bluntly, gaseous vaporing of the highest order. You don’t want universal healthcare. Fine. You don’t want a government single payer system. Fine. So what do you suggest for those of us with prior conditions who, if flung on the mercy of that oh-so-fantastic “freedom of the market” find NO health care insurance at all? What are we supposed to do? Just hope that we don’t get sick? Curl up and die?

    Look: the private market had its chance to provide a sensible and economically cheap system to all Americans. It failed miserably, so now we’re going to have to ask the government to take on the responsibility. Just as the free market failed miserably when it came to providing untainted food and drugs before the FDA.

  43. mattb says:

    @wr:

    Granted, I could be misreading her.

    I would say that your biases are effecting the way your subjective interpretation of her words.

    But this actually gets to my larger point — all of this discussion is happening around an objective piece of evidence — what Jan wrote. Yes, each of us have our own subjective interpretation of those words, but in the end we can go back to those words as a group and argue about (a) what Jan thought she was saying and (b) how we read what she was saying.

    That’s why facts and evidence are so important and why objective information/facts/evidence need to be the basis of these discussions.

  44. mattb says:

    @jan:

    I’ve been a registered democrat (never saying I was a social progressive) for most of my adult life — fiscally conservative and socially moderate. Basically my stances are a hybrid of both parties. However, as liberalism has veered in a more leftward direction, I tend to tack more right in my comfort zone

    I’ll take this at your word. In past posts you had talked about how you began as a liberal and have increasingly moved to the conservative side. Aas I have mentioned many times before, I have yet to see an expression of that liberalism in any substantive way that doesn’t escape party lines.

    I admit that I may have missed it, but as recently demonstrated in the discussion of Obama’s shift in immigration policy, you might begin from the position that this is a complex issues, but you continually end at the position that the actions taken by this administration = bad. Further, I have a hard time looking at your sources (i.e. turning to John Yoo for unbiased legal analysis) as in anyway representing a commitment to anything other than partisan politics.

    And don’t get me started on how “liberalism” has moved to the left. As has been stated many times, the idea that Obama or the current Democrats are in any way “far left” is fundamentally disconnected from actual reality. And if you don’t believe me, as any self-identified liberal/progressive what they think of the Obama administration. Or tune into any of the more extreme liberal talking heads.

  45. rodney dill says:

    @mattb:

    I used that phrase because I think what Jan wrote can be stretched to what WR is saying.

    …and said that way I wouldn’t necessarily disagree, or at least comment on it. But it’s going a notch over when you say this person said, “xxxxxxxx”, and that is not what they said.(in quotes or otherwise.)

  46. mattb says:

    @rodney dill: This gets us into a discussion about language that is way off topic. I don’t agree with WR’s reading (or his suggesting that this is “definitely” what she meant). But we interpret communication through past interactions with the individual + the context of the conversation + our own biases (and those occur on lots of levels).

    I don’t think Jan directly said that in her quote (in that it wasn’t explicitly stated in the words she used). I do think it’s a defendable interpretation of what WR thought she said “otherwise”.

    But to my larger point, WR’s interpretation is entirely SUBJECTIVE and probably tells us more about WR than it does about Jan (in the same way that Jan’s posts tell us more about her than they necessarily tell us about any facts in the world).

    The same, btw, is true of most of our posts.

  47. rodney dill says:

    @mattb:

    But to my larger point, WR’s interpretation is entirely SUBJECTIVE and probably tells us more about WR than it does about Jan (in the same way that Jan’s posts tell us more about her than they necessarily tell us about any facts in the world).

    The same, btw, is true of most of our posts.

    Agreed.

  48. mattb says:

    @rodney dill: Cool. Glad that’s temporarily settled. Now, back to name calling and partisanship (you poopie-head)!

  49. rodney dill says:

    @mattb: Neener neener

  50. wr says:

    @rodney dill: So the only way to interpret what someone says is to parrot back the same words used originally? No wonder the righties here are whining that MSNBC did something wrong in presenting an unedited clip of Romney speaking — they didn’t include every word he’d ever said.

    Not buying it in either case.

  51. wr says:

    @mattb: “I would say that your biases are effecting the way your subjective interpretation of her words.”

    And I would argue that having read dozens of disingenuous posts from Jan gives me the proper context in which to interpret her words.

    You may draw from that whatever opinion of me you choose.

  52. rodney dill says:

    @wr: paraphrasing what someone said is acceptable within a certain tolerance, saying you think they meant something else and portraying that is acceptable, even saying they are entirely wrong is acceptable. But, just making shit up and saying someone said that, is just lying. It’s no wonder you can’t seem to discern who the MSNBC clip changed the context of Romney’s statement. Matt was right when he said “WR’s interpretation is entirely SUBJECTIVE” the problem is where you represent your interpretation as something Jan objectively said.

    Not buying it in either case.

    I’m not looking for your buy in, nor do I need it. I’m only pursuing this to point out your fabrications to others not to convince you of any thing.

  53. mattb says:

    @rodney dill:

    Matt was right when he said “WR’s interpretation is entirely SUBJECTIVE” the problem is where you represent your interpretation as something Jan objectively said.

    And, quite frankly that’s the issue with partisans on either side. They have exclusive rights over the truth, typically are over critical of the posts of others, and not critical enough of their own posts.

    @wr: I do. Generally speaking, you, Jan, and Jenos play the same game of escalation against each other. And you each typically respond with the same techniques — namely writing “point out where I twisted things”, and when we do, you respond “well I think what I stated was correct.”

    Trust us, we never doubted that you, Jan, or Jenos think you’re taking the right position and have the higher moral ground. It’s that you all tend to have a blind spot for, shall we say, the exaggerations and weaknesses in your own positions.

  54. rodney dill says:

    @mattb: I don’t know why you’re getting back in this, I thought we were settled., 😉

    I’m not talking about exclusives right to the truth. (though maybe you’re speaking generally there) I’m not defending Jan’s position on anything nor do I have a problem with wr thinking jan is wrong or even saying she’s wrong.

    But, If you say something specific like, “Jan says facts are subjective and only her opinion is worth following.” and she didn’t say that, you’re lying.

  55. mattb says:

    @rodney dill: Actually Rodney, I thought I was agreeing with you. My point was directed at WR and the tendency of people firmly committed to specific forms of partisanship (or sometimes ideological alignments) to exaggerate while, at the same time, missing the fact that they are exaggerating (or playing fast and loose with things).

    Like you I don’t have problems with them doing it. I have issues with the denials that often follow when they get called on doing it. And I have even more issues when, upon being called, they simply disappear and never respond (only to later claim that they’re being victimized for repeating the same behavior).

  56. wr says:

    @mattb: I can’t speak for the righties around here, but I’ve never claimed victimization. It’s anonymous blog commenting, for heaven’s sake. If my feelings were hurt so bad I felt like a victim, I’d simply stop reading OTB. Rodney can call me a liar all he wants, and while I hate to lose the high opinion of someone who represents himself with a pair of adorable Chuck Jones eyeballs, we’ll never actually be more than pseudonyms on the internet to each other, so it’s not like there are enormous consequences.

  57. bywhatright2 says:

    “The Constitutionality of the Affordable Care Act”
    The individual mandate and the 85% medical loss ratio imposed by the Affordable Care Act are unconstitutional because the former finds no basis in the power to regulate commerce or the power to tax and the latter finds no basis in the Constitution which, while permitting the taxation of income, does not permitthe limitation of income.
    It is not accurate to say if health insurance is commerce, then the health care mandate is a regulation of commerce authorized by Article I, section 8 of the Constitution. Using this logic, one could substitute most anything into this “if-then” syllogism. For example, if true, one could then say “And if selling hybrid cars is commerce, then the mandate to buy a hybrid is a regulation of commerce, authorized by Article I, section 8 of the Constitution.” After all, this mandate would to make hybrids affordable for everyone. We could add to the list flat screen TVs, computers, and whatever else our keepers in Washington wanted to add to the national collective.[1]The people and the states did not surrender such authority to the central government.

    Arguments are also based on the lament that the scheme imposed on the private insurance industry would not be “workable” without the individual mandate. For example, it is argued that to make this regulation of the national insurance market workable, Congress found it necessary to include a financial incentive for individuals to maintain minimum insurance coverage i.e., the individual mandate. Let us apply this logic to the Federal Communications Commission (FCC) which regulates the long distance telephone industry under the commerce clause via a policy of competition over which the FCC issues approved tariffs. Using the above logic, if the FCC were to get the idea it wanted to require all long distance companies to provide long distance service to everyone in the country, the FCC could simply issue a rule mandating everyone in the entire country to buy long distance service whether they wanted it or not. After all, without such a mandate it wouldn’t be “workable” as the long distance companies could not afford the cost of bringing service to everyone regardless of remote their locations. I suppose the logic would go something like this: “To make this obviously valid regulation of the national long distance market workable, the FCC found it necessary to include as well a financial incentive for individuals to maintain minimum long distance. That is the so-called individual long distance mandate.”
    This type of deductive reasoning allows no room whatsoever for the constitutional principle of liberty. To the contrary, the mandate to buy something does not proscribe a rule by which commerce is governed; rather it proscribes a rule by which commerce must be created. The self-fulfilling logic that the mandatory purchase of health insurance becomes a legitimate exercise of ancillary legislative powers necessary and proper to the exercise of specific powers because the “scheme” will not work absent the mandate iscircular black magic.
    While it is correct to note specific constitutional grants of federal legislative authority are accompanied by broad powers to enact laws conducive to the exercise of specific legislative authority, these ancillary legislative powers may not exceed the scope of the specific constitutional grants of legislative authority they purportedly promote. The lesser may not devour the greater. Hence, Gibbons v. Ogden adds nothing to the discussion.
    It is a mistake to advance the case of Gonzalesv. Raich in support of the Affordable Care Act without also recognizing the means chosen to attain an otherwise legitimate end under the commerce power cannot be allowed to eviscerate one’s liberty by reaching into a sphere of power the states and people did not surrender to the central government and that such an overreaching means is not “reasonably adapted” for the effective exercise of a specific and limited constitutional power the states and people conferred upon the central government.
    An illogical comparison is one that asserts the minimum coverage requirement is no more intrusive than Social Security or Medicare, since the Social Security Act requires individuals to make payments to provide for old age retirement. It is quite apparent that people, who choose not to work, are not required to make payments to provide for old age merely because they exist or are sitting on their couch.
    It makes little sense to cite Jacobson v Massachusetts in support of proposition that liberty is not infringed by the individual mandate. Such an argument omits consideration of a fundamental distinction between the nearly plenary police powers reserved unto the states under the 10th amendment vice the limited enumerated powers of the central government. Perhaps a lesson in Federalism is in order. The power of a state government to administer vaccines does not relate to the power of Congress under the Commerce Clause. It’s not at all analogous; rather it’s a case of comparing apples to oranges. Not to belabor the point, but all one needs to do is read Jacobson v Massachusetts itself which clearly makes this distinction. Justice Harlan was a federalist and asserted the primacy of state over federal authority in public health. A power not surrendered by the states is a power not conferred to the central government.

    In this regard, you will note that in the below quote from Jacobson v. Massachusetts the Court squarely relies upon the 10th Amendment [3] in ruling the authority for the Massachusetts statute requiring a small pox vaccination is based on “a power which the State did not surrender when becoming a member of the Union under the Constitution.”
    “The authority of the State to enact this statute is to be referred to what is commonly called the police power — a power which the State did not surrender when becoming a member of the Union under the Constitution. Although this court has refrained from any attempt to define the limits of that power, yet it has distinctly recognized the authority of a State to enact quarantine laws and “health laws of every description;” indeed, all laws that relate to matters completely within its territory and which do not by their necessary operation affect the people of other States. According to settled principles the police power of a State must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety.” Jacobsonv. Massachusetts, 197 U.S. 1, 25, February 20, 1905.[Emphasis and underscoring supplied]
    The health care mandate (i.e., mandate to purchase health insurance) does nothing to regulate the commercial activity of issuing and/or providing health insurance polices. The mandate does not regulate health insurers in the commercial activity of offering or selling insurance contracts, it does not regulate health insurers rates charged under insurance contracts, it does not regulate health insurers advertising heath insurance contracts, it does not regulate the font size in insurance contracts health insurers use when entering the stream of commerce by the sale of health insurance and it does not regulate the conduct of consumers who have entered the stream of commerce by purchasing health insurance.[4]In this regard, Mr. Carvin correctly notes that:
    “Under the controlling formulation used by the Supreme Court, the Commerce Clause authorizes the federal government to ― regulate the channels of interstate commerce, as well as to ―regulate and protect the instrumentalities of interstate commerce. United States v. Lopez, 514 U.S.549, 558 (1995). But the individual mandate clearly does not regulate either the ― channels or ―instrumentalities of interstate commerce.”
    One other thing: emergency rooms are not used by free riders. While it is true that in America doctors and hospitals are not permitted by law to turn away the uninsured, under the Emergency Medical Treatment and Active Labor Act (EMTALA) hospitals with emergency rooms are merely and only required not to turn away patients suffering from an “emergency medical condition.” 42 U.S.C. 1395. Nothing in the law precludes the owners of the emergency rooms from charging or billing users of these services. This is in fact done. Hence these people are not free riders as they are legally liable for the costs of their emergency room care. Also, the individual mandate is not a tax or tax penalty, as the Affordable care Act does not make it a tax.[5]

    Finally, the so-called “medical loss ratio” imposed by the Affordable Care Act which mandates the use of 85 cents out of every dollar collected in premiums be devoted exclusively to the provision of health care is unconstitutional. These premiums are the property of the firms that collected them. Obamacare forces potential profits that may violate this requirement be returned to the masses or, if you will, the collective. Health insurance is not a utility. While Congress has the authority to tax income, it does nothave the authority to limit income.

    Endnotes:

    [1] Mr. Carvin correctly notes the following: “Moreover, authorizing this dramatic expansion of Congress‘s power would do far more to ―create a completely centralized government and ―effectually obliterate the distinction between what is national and what is local than would regulation of noneconomic activity. Lopez, 514 U.S.at 557. Virtually every decision not to engage in economic activity, in the aggregate, will have a substantial effect on interstate commerce.”

    [2] Mr.Carvin correctly states the following: “Even if the individual mandate could somehow be deemed ―necessary, it certainly is not―proper. As the Supreme Court made clear in Printz v. United States, 521 U.S. 898(1997), Congress may not engage in regulation, no matter how ―necessary, if the regulation is inconsistent with the Tenth Amendment and the basic premises underlying our federal system.”

    [3] The 10th Amendment – Powers of the States and People “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

    [4] Therefore, the individual mandate requirement does not “regulate the provision of health insurance.”
    [5]See Mr. Kroger’s states:
    “Specifically, every covered individual ―shall for each month beginning after 2013 ensure that the individual . . . is covered under minimum essential coverage for such month,‖ and ―[i]f an applicable individual fails to meet th[is] requirement . . . there is hereby imposed a penalty.‖ See Pub.L. No. 111-148, § 1501(b) (emphasis added). Perhaps that is why the President has previously argued that the mandate is ―absolutely not a tax‖ and that ―[n]obody considers [it] a tax increase. [See, e.g., Obama: Requiring Health Insurance is Not a Tax Increase, CNN, Sept. 29, 2009, available at:http://www.cnn.com/2009/POLITICS/09/20/obama.health.care/index.html.%5D

  58. mattb says:

    @wr:

    but I’ve never claimed victimization.

    Didn’t intend to suggest that you did. I was profiling a cluster of behaviors I’ve seen around here. Typically individuals will demonstrate some, but rarely all of those behaviors.