Politics, Hubris, And The Questionable Constitutionality Of ObamaCare

This week's hearings in the Supreme Court caught many proponents of the Affordable Care Act off guard.

In the days since Tuesday’s oral arguments in the Supreme Court on the Constitutionality of the Patient Protection And Affordable Care Act’s individual mandate, many members of the media, along with legal analysts and (mostly liberal) pundits and columnists looked around and realized that the legal arguments in favor of  the individual mandate were not nearly as strong as they had thought. Not only were they faced with the rather weak performance by Solicitor General Donald Verrilli, but the questions posted by Anthony Kennedy on both Tuesday and Wednesday seemed to indicate that he was at least strongly leaning in the direction of finding the mandate unconstitutional.

The Wall Street Journal took note of the reaction of many:

After the third and final day of Supreme Court scrutiny of the Affordable Care Act, the bravado of the legal establishment has turned to uncertainty and in some cases outright panic. Everyone who said the decision was an easy fait accompli has been proven wrong by a Court that has treated the constitutional questions that ObamaCare poses with the seriousness they deserve.

This reckoning has also been a marvelous public education. The oral arguments have detailed the multiple ways in which the individual mandate upsets the careful equilibrium of the American political system. The Obama Administration’s arguments in favor of the mandate to buy health insurance or pay a penalty stand exposed as a demand for unlimited federal power.

(…)

So far the larger liberal reckoning hasn’t been as nuanced as the High Court’s, as evidenced by the media mugging of Solicitor General Donald Verrilli. Liberals castigated his performance during oral arguments Tuesday and all but blamed him for any ObamaCare defeat.

Mr. Verrilli may not be Daniel Webster, but he was more than competent. The problem isn’t that he’s a bad lawyer, it’s that he is defending a bad law with the bad arguments that are the best the Administration could muster. Liberal Justices such as Sonia Sotomayor all but begged him to define a limiting principle on the individual mandate and therefore on federal power. He couldn’t—not because he didn’t know someone would ask but because such a principle does not exist.

Of course, rather than acknowledging the fact that the arguments against the mandate were stronger than they had been given credit for, many seem to have adopted the strategy of E.J. Dionne and started attacking the motives of the Justices:

Three days of Supreme Court arguments over the health-care law demonstrated for all to see that conservative justices are prepared to act as an alternative legislature, diving deeply into policy details as if they were members of the Senate Health, Education, Labor and Pensions Committee.

Senator, excuse me, Justice Samuel Alito quoted Congressional Budget Office figures on Tuesday to talk about the insurance costs of the young. On Wednesday, Chief Justice John Roberts sounded like the House whip in discussing whether parts of the law could stand if other parts fell. He noted that without various provisions, Congress “wouldn’t have been able to put together, cobble together, the votes to get it through.” Tell me again, was this a courtroom or a lobbyist’s office?

The Editors of Dionne’s paper, The Washington Post, see the matter somewhat differently and argue against the idea of viewing the Justices through a primarily political lens:

Sadly, even before the sessions on health-care reform had ended, some liberals were preemptively trying to delegitimize a potential defeat at the court. If the justices strike down the individual mandate to purchase health insurance, they said, they will prove themselves partisan, activist and, essentially, intellectually corrupt.

We share in the disappointment that the justices on both sides of their ideological divide are, for the most part, so predictable. That’s not, in the ideal world, how judging is supposed to work. But we also think there’s a kind of cynicism, or at least intellectual laziness, in asserting that this is an easy or obvious call — that no justice could possibly strike down the mandate out of honest, reasoned conviction. Solicitor General Donald B. Verrilli Jr. had his hands full defending the mandate, not because he’s a bad lawyer, but because it’s not an easy question.

That is the point that Dionne and those who agree with him missed completely. Whether because of hubris or simply the refusal to acknowledge that their opponents arguments could possibly have merit, most of the proponents of the PPACA didn’t even consider the possibility that the mandate might not pass Constitutional must. Indeed, while the law was being debated in Congress, and when the first Op-Ed appeared that raised the issue,  Democratic Members of Congress dismissed the idea entirely. Nancy Pelosi famously asked a reporter “Are you serious?” when he asked her if she believed the bill was Constitutional. Other members of Congress similarly dismissed the possibility when asked about it, despite the fact that the suggestion that the law was unconstitutional had given rise to a political movement that would soon help sweep Republicans to control of the House.

No doubt, the journey of the various cases through the Federal Court System also helped to reinforce the self-assurance that proponents of the law had been feeling from the beginning. For the most part, Federal Courts below the Supreme Court that dealt with the issue upheld the law. Given that these Courts are bound by Supreme Court precedent, this isn’t entirely surprising. To be sure, there were notable exceptions to this trend, such as Judge Henry Hudson in Virginia who was the first judge to issue an opinion declaring the law unconstitutional. In Florida, both a District Court Judge and a three judge panel of the 11th Circuit Court of Appeals noted that the mandate went far beyond any previous attempt by Congress to exercise power under the Commerce Clause. In September 2011, these judges were joined by Judge Christopher Connor of the Middle District of Pennsylvania, who also struck down the law.

One would have thought that this alone would have been enough of a signal to the law’s proponents that this was not nearly as easy a question as they were pretending it was, and that the outcome in this Supreme Court was by no means certain. Indeed, as I’ve noted, the issues at stake in these cases are the same issues the nation has been debating for over 200 years. Yes, if you look at the Supreme Court precedent on Commerce Clause cases one could make fairly well educated guess well in advance that the law would be upheld, in fact I did so here at OTB myself. At the same time, the supreme confidence that many on the left seemed to be exhibiting about this case up until Tuesday was an example of a kind of myopia where they only seemed to be listening to those opinions about the issue that said what they wanted to hear. Had they listened to other sources, such as Randy Barnett over at The Volokh Conspiracy,  they would have seen that the arguments against the law were probably a lot stronger than they were giving credit for. Additionally, cases like United States v. Lopez and  United States v. Morrison, decided by a court that still included David Souter and John Paul Stevens, were sending a signal that a half century of deference on Commerce Clause issues was coming to an end. A subsequent case, Gonzaelz v. Raich, seemed to suggest this trend was over to some, but there have been some suggestions that the outcome in that case would have been different had it dealt with a substance other than illegal drugs.

Greg Sargent seems to be one of the only pundits on the left who understands this:

But there’s another explanation for the botched prediction: Simply put, legal observers of all stripes, and Obamacare’s proponents, including those in the administration, badly misjudged, and were too overconfident about, the tone, attitude and approach that the court’s conservative bloc, particularly Justice Scalia, would take towards the administration’s arguments.

The Scalia gambit was based largely on his opinion in Raich, but from the oral arguments it seems clear that none of the judges consider that case controlling. Instead, the concerns that Justice Kennedy expressed seemed based on the concern that the mandate went far beyond anything the Court has dealt with before. Indeed, if the mandate is struck down, it will be interesting to see how the Court handles its previous precedents. My anticipation is that they will distinguish each and every one of them while limiting the scope of the Commerce Clause power, rather than explicitly overruling any of them.

The reason that the proponents the PPACA are so shocked right now, then, is because they simply didn’t appreciate the precarious position they were in, not just legally but politically. In a post over at his own place, Dave Schuler makes an excellent point about the PPACA that its proponents don’t seem to comprehend:

Social Security was enacted into law in 1935 with bipartisan support. Medicare and Medicaid came into being 30 years later, also with bipartisan support. The PPACA in contrast was passed on a purely partisan vote. However, its undemocratic nature doesn’t end their. The representative who voted for the PPACA were elected from gerrymandered districts and even in those they were elected by, at best, simple majorities of the minority of registered voters who actually voted. Construing that as democracy is a stretch.

We do not have a democracy or even a narrow majoritarianism but a constitutional order in which, at least in theory, the Congress is constrained by the constitution to act within its enumerated powers. The Court is now deciding if the Congress has done that in the case of the PPACA.

That was the Congress’s choice. It could have elected to avoid the present situation in any number of ways. If you don’t like policies being decided by the Supreme Court, blame the Congress.

Indeed, throughout the entire run up to the President’s “Big F***ing Deal” Moment, the entire question of whether or not this law was Constitutional was dismissed out of hand. As public opposition to the law grew, the Administration and Congress seemed to become more and more tone deaf, as if it didn’t matter at all that what was supposed to be cornerstone legislation of the President Obama’s first term had inspired a loud, active, and dedicated opposition to act. To some extent, they learned their lesson in that regard in the 2010 Midterms, but this week demonstrated that the hubris had not completely gone away. Now that the blinders are off, the harsh light of reality is difficult for some to bear.  Perhaps the Supreme Court will uphold the law in the end. However, if they strike it down the proponents will have nobody to blame for this but themselves.

FILED UNDER: Health Care, Law and the Courts, 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. Tsar Nicholas II says:

    Well, this is about as surprising as Pauline Kael being utterly insouciant as to how Nixon barely managed to eke out his reelection bid, with 49 out of 50 states and 60% of the popular vote. Being a leftist by definition means having a forcefield surrounding one’s self, blocking out all traces of reality.

  2. MBunge says:

    “many members of the media, along with legal analysts and (mostly liberal) pundits and columnists looked around and realized that the legal arguments in favor of the individual mandate were not nearly as strong as they had thought.”

    It isn’t that the arguments aren’t as strong as they thought. It’s that the overwhelming majority of legal scholars and commentators didn’t think the conservative Supreme Court justices were really as radical as they are. The Supreme Court is still regarded with a lot of intellectual and social deference by both the legal and political profession, though why that’s the case after Bush v. Gore is another issue. That Scalia and the others are as big of cranks as Doug Mataconis is both shocking and disturbing to them.

    Mike

  3. @MBunge:

    And thus you demonstrate the other mistake that the law’s proponents made. Rather than considering the arguments of their opponents on an intellectual level, they dismiss them as “cranks” and “radicals” thus deepening their own confirmation bias.

  4. Scott says:

    Assume that certain elements of the law get struck down. If the Medicaid aspect gets struck down, is the SC going to be involved in everything that Congress passes that is coercive in nature? Congress used highway bills to force a 21 drinking age. They forced the medical system (ERs) to accept patients regardless of whether they could pay. And forced hospital systems and paying patients to bear the costs through essentially a hidden and privatized tax. There are probably dozens of examples. Is the Supreme Court setting itself up to be the arbiter of these issues for years to come? I think a decision striking down this law is the equivalent of knocking out the foundations of a lot of stuff without a path forward. And we, as a country, will be adversely affected for years to come. Personally, I am exhausted by the Sturm and Drang of today’s political society and feel the great tug to tune out and become apathetic.

  5. WR says:

    So Democrats should have realized that several members of the court are so radical that they’re willing to contemplate rendering Medicaid unconstitutional based on the novel legal theory that it’s coercion to give states money? Granted, the whores who decided that the constitution demands that in a close election no votes may be counted so that the Republican must be seated and that the only speech that matters belongs to billionaires have seemed completely disconnected from the mainstream of American life for years, but it’s hardly hubris to expect them to act occasionally as if they had respect for any other branch of government.

  6. Dean says:

    The White House had to know going in to the Supreme Court that it had weak Constitutional arguments. It was unable to provide an answer to the basic question of the limits of the Commerce Clause, for example. In addition, the solicitor general used tax and penalty interchangeably when the Justices needed to understand if not buying healthcare would cause the individual to be taxed or penalized.

    Had it not known, it would have been well-prepared to address the limits of the Commerce Clause, the tax/penalty question and the other issues that it faced during question by the Supreme Court this week.

  7. MBunge says:

    @Doug Mataconis: “Rather than considering the arguments of their opponents on an intellectual level, they dismiss them as “cranks” and “radicals” thus deepening their own confirmation bias.”

    But most of these arguments have already been considered and found wanting. That’s what this little thing called “precedent” is all about.

    Mike

  8. Stan25 says:

    The blame for the fiasco that is know as ObamaCare, lies squarely on the shoulders of Nancy Pelosi, Dingy Harry Reid and Barack Hussein Obama and their staffs. They are the ones that froze out the Republicans from any of the meetings that were held on this bill. Of course, the compliant media can take a share of the blame. Now when there is more than a possibility that ObamaCare will be struck down, they are feverishly cover their own behinds so they can say that they had no part in it.

  9. MBunge says:

    @Dean: “It was unable to provide an answer to the basic question of the limits of the Commerce Clause”

    That’s likely because the limits of the Commerce Clause are so self-evident that it’s hard to explain them without treating the questioner like a complete fool.

    “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”

    Now, I’m no law-talkin guy, but the expressed limits there seem obvious. Is it commerce? Is it conducted with foreign nations, among states or with Indian tribes? In what way does the health insurance industry not fall within those limits?

    Mike

  10. @MBunge:

    Precedent is not Holy Writ.

    The Supreme Court can modify, distinguish, reject the applicability of, or straight-out overrule, precedent regardless of how old it is.

  11. Robert Levine says:

    The PPACA in contrast was passed on a purely partisan vote. However, its undemocratic nature doesn’t end their. The representative who voted for the PPACA were elected from gerrymandered districts and even in those they were elected by, at best, simple majorities of the minority of registered voters who actually voted. Construing that as democracy is a stretch…

    That was the Congress’s choice. It could have elected to avoid the present situation in any number of ways. If you don’t like policies being decided by the Supreme Court, blame the Congress.

    The reasoning in the first paragraph would apply to any legislation passed by any contemporary Congress. If that’s not “democracy,” then we haven’t been a democratic nation for a very long time and won’t be for the foreseeable future. The fact remains that the American people elected a Democratic Congress and a Democratic President who ran on health care reform as a basic platform plank.

    The second paragraph defies the historical record. The Republicans in Congress were determined to deny the Democrats and Obama a victory on this or any other issue, even when the Democrats incorporated long-held Republican positions into the legislation (such as the individual mandate, so well explained by Romney on many occasions as a conservative approach to health care reform). There was no path to universal health care that the Republicans would have gone along with. The famous “Waterloo” remark made that crystal clear.

    No issue that reaches the Supreme Court is a no-brainer. But the fact that no liberal-leaing appellate judge concluded ACA was unconstitutional while several highly-respected conservative judges (Sutton and Silberman in particular) ruled it was constitutional demonstrates why so many people (including a large majority of experienced court-watchers) didn’t think this was a hard case. Charles Fried certainly thinks it’s as close to a no-brainer as could be, and he’s neither inexperienced nor liberal.

    My personal belief is that it will 6-3 in favor of the government. But I’m probably wrong. There do appear to be ways the Court could punt some of it back to the Congress (I think the government suggested that severability could be decided only after the provisions depending on the mandate actually went into effect), and perhaps that might happen as well. Suggestions in a majority opinion ruling only the mandate unconstitutional that severing the rest isn’t a slam-dunk would cause great pressure on Congress from the insurance companies to put into place a different funding mechanism.

  12. Fog says:

    There were no loud public discussions of the constitutionality of the individual mandate until the Democrats agreed to it. The Republicans can’t allow the Democrats to have any solution to the universal coverage problem whatsoever because it would create a grateful constituency. The Kristol memo is still very relevant to today’s situation.

  13. @Fog:

    I’m shocked to learn there’s politics going on in this establishment.

  14. Dazedandconfused says:

    I found the “broccoli” and “cornhusker” arguments from Scalia most compelling. I had thought them compelling when people like Rush used them, but from a Supreme Court Justice….

    Seriously, I think people talked themselves into believing that Scalia’s past opinions in other cases were things he couldn’t run from. Looks like they were wrong. It appears to rest on Roberts, and how he feels this might affect the public and historical view of the “Roberts Court”. If Kennedy or Scalia, or none of the others will save his court for him, then he must do it himself.

    The law? Christ, if they were actually seeking a “limiting principle” in the mandate, they would write one themselves.

  15. @Dazedandconfused:

    if they were actually seeking a “limiting principle” in the mandate, they would write one themselves.

    That’s Congress’s job, not the Courts

  16. Dean says:

    @MBunge: Now, I’m no law-talkin guy, but the expressed limits there seem obvious. Is it commerce? Is it conducted with foreign nations, among states or with Indian tribes? In what way does the health insurance industry not fall within those limits?

    And that’s the point. Using your questions, one could argue that Congress could mandate the American public purchase anything. I highly doubt that was the intent of the framers of the Constitution.

  17. David M says:

    The problem with claiming that the GOP justices aren’t cranks and radicals, is that only cranks and radicals take the broccoli mandate seriously and bring up the cornhusker kickback. It’s also interesting that liberals who looked at the challenge from a legal perspective thought it would be upheld, but liberals without a legal background who looked at the challenge from a partisan perspective thought it was in danger.

    The idea that Obamacare is constitutionally suspect because of the partisan vote or gerrymandering actually proves my point, this isn’t about anything other than the GOP getting a do-over on the health care vote and the consequences of the 2006 and 2008 elections.

    There is plenty of handwringing over the severability issue as well as how the tax is worded, but is there any doubt most of the GOP justices would still find a way to strike down the whole law or declare it unconstitutional even if those issues didn’t exist?

  18. Ron Beasley says:

    @Dazedandconfused: Scalia’s performance was simply an embarrassment – little more than Frank Luntz talking points. And about that “cornhusker” argument – it’s not even in the final bill.

  19. Dazedandconfused says:

    @Doug Mataconis:

    Are you suggesting they couldn’t incorporate a limiting principle in their opinion?

  20. mantis says:

    @Doug Mataconis:

    @Dazedandconfused:

    if they were actually seeking a “limiting principle” in the mandate, they would write one themselves.

    That’s Congress’s job, not the Courts

    Really? Are limiting principles typically written into legislation? I would understand the argument that the government’s lawyers should have made a better limiting principle argument in court, but I haven’t heard anyone claim that was Congress’s job.

    And you surely know that the court can and does identify limiting principles when deciding cases.

    FWIW, Jack Balkin offers three limiting principles that reveal Scalia’s tea party-cribbed questions as rather stupid (beyond the fact that they reference things that aren’t even in the bill). Scalia should stop getting his information about this legislation from protest signs and actually read the law. But what do I know? I’m just a caveman.

  21. @Dazedandconfused:

    Considering that the Administration couldn’t come up with one I’m not sure the Court would feel compelled to do so.

  22. MBunge says:

    @Dean: “Using your questions, one could argue that Congress could mandate the American public purchase anything. I highly doubt that was the intent of the framers of the Constitution.”

    If it involves commerce between and among the states, Congress may very well have the Constitutional authority to mandate such purchases. That doesn’t mean such a mandate is a good and just thing, merely that it is permissable under the Constitution.

    The Constitution is meant to be the last word on some issues. It is not meant to be the only word on every issue.

    Mike

  23. MBunge says:

    @Doug Mataconis: “Precedent is not Holy Writ.”

    Thanks for acknowledging the truth of my point. Established and broadly agreed upon precedent indicated that the Supreme Court would have no problem ruling that health care reform is Constitutional. That the conservative Supreme Court Justices are so radical as to overturn that precedent is something the legal community did not understand or anticipate. Their shock has nothing to do with the merits of the arguments. It has to do with the Justices buying arguments the legal community at-large considers weak and extreme.

    Mike

  24. Mike P says:

    @Doug Mataconis:
    Doug – of course they can, and nobody is saying otherwise.

    What some are arguing, and I include myself in this to some extent, is that some of the conservative judges who have themselves expressed views in which they tend to see precedent as something akin to holy writ now have little problem striking it down if it so suits them.

    Now, let’s stipulate that that the law could have been drafted in a way that could have avoided this outcome or at least attempted to minimize it. That said, the general consensus among legal scholars was that the law, as constructed, would pass muster given the general views of the court in its current state.

    Let me say I get it: poorly written laws should be able to be revisited and thrown out if need be. If that’s the case here, it will suck (as a supporter of the law), but it’s a valuable lesson learned. I don’t think we should stick to precedent for the sake of it. But given the particular set of circumstances around the health care market and perhaps the semantic distinction of “tax” vs “penalty,” a duly elected legislature wrote and passed a law. Isn’t it on the court to show why Obamacare isn’t within the constraints of the law (“the limiting principle”)?

  25. Steve V says:

    @Dean: It wasn’t the intent of the framers to allow Congress to order restaurants to serve people they don’t want to serve to (e.g., black people) either, but the Supremes let Congress require people to do that in the 1960s.

  26. WR says:

    @MBunge: ” It has to do with the Justices buying arguments the legal community at-large considers weak and extreme.”

    But you see, no matter how weak the arguments may be, they lead to the conclusion that Doug prefers, and therefore the outcome must be seen as the product of impartial wisdom. It’s only judicial activism if it helps the poor, the middle class, or the Democrats in government.

  27. Mike P says:

    @Doug Mataconis: You say the administration couldn’t come up with a limiting principle. Perhaps because they didn’t think one was needed? The so-called “broccoli” argument is what’s more or less being presented as the end state – if the government can make you buy insurance, it can then make you buy anything (vegetables, health club memberships, etc). But does that logically follow from a government’s attempt to regulate a very particular marketplace that does have national implications? I’m not sure it does.

  28. Dazedandconfused says:

    @Doug Mataconis:

    They most certainly are not compelled to do so, but it seems to me they did on many issues in history. Marijuana…the guy who was growing wheat for his own consumption…

    From the other side of this, expecting Congress to come up with a limiting principle that is acceptable to the courts? Seems to me that the lower courts were split, and so is the Supreme one, and about evenly. How on earth could Congress be expected to know what is and is not an acceptable “limiting principle” to the courts?

  29. @Mike P:

    Give me examples of conservatives striking down precedent. And don’t say Citizens United because that case didn’t explicitly overrule a single case.

    Also,

    You say the administration couldn’t come up with a limiting principle. Perhaps because they didn’t think one was needed?

    Failure to anticipate the arguments of your opponents and the issues that might concern the Court you are addressing is not an example of good lawyering.

  30. Steve V says:

    I would say it’s more accurate to say that the SG needed to articulate a limiting principle rather than Congress. Congress needed only to make findings that the law regulated interstate commerce.

  31. David M says:

    If the majority of liberal and non-partisan legal observers thought the mandate would be upheld, why would the Democrats passing the bill think any differently? The only reason to have passed a different bill is if the Democrats expected a partisan Supreme Court. It makes sense for Congress to pass laws based on existing precedent, not on which precedents will be overturned.

  32. mantis says:

    @MBunge:

    Indeed. Doug apparently thinks anyone who figured this court would respect precedent is a damned fool. Sure, we’ve got history on our side, but we should have assumed this gang wants to roll us back to the 1920s. Actually, he may have a point…

  33. WR says:

    @Doug Mataconis: “Give me examples of conservatives striking down precedent.”

    How about deciding that the Second Amendment gives every individual the right to carry for the first time in the court’s history? That was overturning decades of precedent.

    Oh, and Citizens United, because it did so much more than “explicitly overrule a single case.” Or do you have your own definition of precedent under which fundamentally altering the settled law of the land doesn’t count unless certain magic words are invoked?

  34. Steve V says:

    BTW, I haven’t read the briefs, but surely somewhere along in this litigation the government *must* have articulated any number of “limiting principles”? Surely the oral argument wasn’t the only time the question was asked? I mean, it’s the main question that’s been asked from the beginning. In fact, it’s the question that is *always* asked about the commerce clause. I bet you could read the transcripts of the Lopez oral argument and see the justices ripping the SG about what the limiting principle of the gun free school zones law was. And so on back through history.

    I also specifically remember it being discussed more directly in the context of the necessary and proper clause and whether “proper” can have any limit. I also vaguely recall that a lot of argument in the lower courts concerned the “activity/inactivity” distinction, which was really just an earlier iteration of the same question. I have a feeling that there are plenty of “principles” set forth in the briefs that the justices could rely on if they want to uphold the law. That one day of oral argument was just the tip of the iceberg of what the justices have been chewing on.

  35. @WR:

    How about deciding that the Second Amendment gives every individual the right to carry for the first time in the court’s history? That was overturning decades of preceden

    Actually the Supreme Court had never issued an opinion on nature of the 2nd Amendment right outside of the Miller case, which dealt with military-style weapons.

  36. MBunge says:

    @mantis: “we should have assumed this gang wants to roll us back to the 1920s.”

    Which is really the point. The Court, if it kills down health care reform, is not acting to refine or revise Commerce Clause law, as it did by striking down some federal gun laws that were justified on that principle, for example.

    Mike

  37. Hey Norm says:

    It amused me to see Scalia repeating Tea Party talking points that had absolutely no connection to the issue at hand. I guess he aspires to a gig as a host on Fox News.
    Certainly a Supreme Court that can appoint a President…”limited to the present circumstances”…or rule in favor of Citzens United does not care one whit about precedence…so I’m not suprised at all by the events of this week. Ideologically driven decisions are going to make it very difficulet legislate in the future though.

  38. al-Ameda says:

    Before the Justices reach the predictable 5-4 result in favor of ACA opponents, it would be nice if the Supreme Court (and Antonin Scalia in particular) would take the time (or at least fake it) to go through the ACA’s 2,700 pages in order to assay the damage they will do by invalidating the entire ACA.

    I’m guessing that the public will see this as an entirely political decision.

  39. DRE says:

    @Doug Mataconis: The basis of the disbelief is different. It’s not that liberals haven’t considered these arguments; it’s that they are contrary to the entire conservative approach to the provision of essential government services. Every time in recent history that liberals have proposed a government program, the conservative response has been to offer a private market alternative with tax incentives or mandates to make them work. Exhibit A is Ryan’s Medicare proposals. Exhibit B is the constant push to privatize Social Security. At the heart of all these proposals is an obligation for individuals to purchase a commercial product. And now we are supposed to believe that they have know all along that these were unconstitutional. If limiting principles are so crucial, please explain to me the limiting principle that would allow for Ryan’s Medicare proposal or a privatized social security enforced by tax penalties, but not for the Obamacare mandate. And the Medicaid expansion is coercion argument is so far beyond allowing any of these to work that it is really difficult to understand how it could be taken seriously

  40. Doug, I don’t share your same frame of reference. I can see how you come at it that way, because it does strengthen your rhetorical hand, but I hang more with Will Wilkinson, and his tweet today:

    My inner Willard (Quine not Mitt) is exasperated by the weight given empty legal distinctions. You say tomato I say undetached rabbit parts.

    He expands on that with A taxing distinction at The Economist. Not a bad venue.

    Basically he made the argument I touched on yesterday, that this is (too much) about what things are called (for us on the autistic scale).

  41. Hey Norm says:

    Democrats need to look at this and finally recognize that they need to take off the gloves and fight. Enough of this mamby-pamby stuff. They wanted single-payer but tried to reach a bi-partisan deal by passing Republican legislation. Now it looks like that will blow up in their faces. The Koch Brothers Court is going to make it clear come June or July…the only way to be Constitutional is to grab power…tax rather than mandate…spend instead of regulating insurers spend. Odd that the Republican Partisan Justices see that as the path to Liberty. But if that’s how you must play to make any forward progress…so be it.

  42. Dazedandconfused says:

    Just to clarify my point, there is no way to know if it will work in the courts until you try. It’s a difficult thing to sort out our healthcare mess, and if anybody thinks that some form of mandate isn’t necessary, they need to find some example where a coherent, efficient, working system exists where there isn’t one. Hint: Don’t waste your time asking the insurance companies for one.

    Hubris? No one but themselves to blame? So what? Like Ike said :”If you can’t solve a problem, enlarge it.”

  43. DRE says:

    @Doug Mataconis: “That’s Congress’s job, not the Courts”

    This is emphatically not the case and it surprises me that anyone with legal training could make such a statement. A limiting principle is a statement of what is constitutional and what is not. The justices are right to ask about a limiting principle if they feel one is necessary to their ruling, but they are the one who get to say what it is.

  44. Tlaloc says:

    Of course, rather than acknowledging the fact that the arguments against the mandate were stronger than they had been given credit for,

    If this is genuinely the case why is it that the vast majority of lower courts essentially backhanded these arguments so often? Last I checked i think 2 in 3 lower courts essentially laughed in the faces of the conservative arguments.

    That leaves two possible conclusions:
    1) the lower courts are inappropriately politicized, OR
    2) the SCOTUS is.

    Given the swaggering bravado with which Scalia will make any argument that supports an extremely right wing position, and the quiet ineptitude of Thomas in doing the same I find the latter conclusion to be rather more reasonable.

  45. SKI says:

    Limiting principles are easy: substantially related to regulating interstate commerce.

    The entire issue is easy if one starts from the basic reality that Congress was writing legislation addressing health care primarily. Claiming, as opponents do, that they can ignore that and focus on health insurance as separate and apart from health care services is a shell game switching constitutional law out for political preference.

    That Doug can make the even more absurd claim that Congress is the entity that writes in limiting principals to its own power simply demonstrates that he is letting his political ideology overtake his reasoning abilities.

  46. Jed says:

    It does seem strange that the solid liberal members of the Court can not even entertain the notion that the mandate is not worth upholding. Go to the transcripts and marvel at Kagan’s outright coaching of the SG. Everyone who complains about those dastardly politically motivated Justices like Scalia and Thomas might want to wonder why they felt that they had four votes for the expansion of government powers. The very question of if there is a limiting power on government appears not to matter at all. The Justices who strive to constrain government power are labelled reactionaries while those who seek to expand it are viewed as reasonable.

    I’ve got a little faith in Ginsburg, here. Assuming she stood awake for the arguments, her well-known propensity for individual liberty will rise to the fore.

    There will always be tools who argue that more control equals more liberty, but I would like to think that our highest judicial body could see through that. It is always nice to remember that there are four votes on a nine person panel that are so predetermined to step into your business.

  47. grumpy realist says:

    If they strike down the entire shebang you can bet certain parts of the pharmaceutical industry will be extremely pissed. Part of what is in that oinker of a Health Care Act is this little thing called the Biologics Price Competition and Innovation Act which does for biologics what the Hatch-Waxman Act does for pharmaceuticals. Talk about setting up litigation catfights….

    (Not that biologics and personalized medicine probably have that much of an IP standing at present after the Prometheus decision…..Anyone who thinks that the present-day Supreme Court has any understanding of patent law should read the Prometheus decision. First two-thirds of the decision, ok, ok, ok. Last third: causes me to pull my hair out. )

  48. george says:

    The basic problem is that the individual mandate is a very poor way to try to implement universal care, and it shows. Living in Canada now I like their system (it has flaws of course, and a dual private-public system would be best) … but I wouldn’t want the one being offered right now in the US. Better to discard it, and work on getting a decent public system in place.

  49. Tsar Nicholas says:

    @george: Did your brain go into a deep freeze upon your arrival in the Great White North? Canada has a total population of under 35 million. California alone has a population in excess of 37 million. The U.S.’s population in toto is over 300 million. Citing Canada as a reason for the U.S. to have a single-payer system is like citing your local coffee shop’s menu as a template for McDonald’s, Burger King and Wendy’s.

    Also, FYI, the U.S. debt/GDP ratio already is at 100%. The only way in which to have a single-payer healthcare system in America is to destroy the entire economy and in so doing to take down the world economy to boot.

    Instead of the flaming train wreck of a disaster known as Obamacare there are easy and sentient ways in which radically to improve the U.S. healthcare system:

    1. Cut the costs of care and thereby reduce premium costs by cutting down on junk tort lawsuits. Adopt California’s MICRA statute as a national medical malpractice reform law. Eliminate strict liability and class action exposure for Rx drug, vaccine and medical device manufacturers.

    2. Deal with the putative “free rider” problem by having the Feds backstop bad debt insurance for ER hospitals that provide emergency services for which payments are not forthcoming and for which there are not any alternative avenues of recovery.

    3. Help further reduce premium costs by giving tax breaks to health insurance companies that offer low-deductible, low-premium plans to people under the age of 30.

    4. Take steps to boost net job creation — energy policies, further tort and lawsuit reforms, regulatory reforms — so that more people are working and thus either provided with health insurance as a fringe benefit or able to afford to purchase their own individual policies.

  50. WR says:

    @Jed: “There will always be tools who argue that more control equals more liberty”

    While the really smart people know that liberty actually means dying in the street so that insurance company executives can pocket bigger bonuses. Freedom!

  51. WR says:

    @Tsar Nicholas: “Eliminate strict liability and class action exposure for Rx drug, vaccine and medical device manufacturers. ”

    That’s a good idea, Tsar. Nothing’s going to make our health system work better than allowing drug and medical device manufacturers ship products that kill hundreds or thousands of people with no risk of liability. But why stop there? Wny shouldn’t we be just like China, and encourage our food producers to send out tainted milk? Think how much cheaper we can all eat once we’re no longer oppressing our distrbutors by making them pay damages for adding anti-freeze to milk. It will be paradise!

  52. DRE says:

    @SKI: Actually it appears that the whole discussion of limiting principle has been flipped. In order the find the mandate is unconstitutionalthe court needs to identify a limiting principle that it goes beyond. That’s what it means to be unconstitutional. They can’t say something is unconstitutional because they can’t think of a limiting principle that it doesn’t go beyond. For example in regards to political gerrymandering, the courts have alway ruled that there is a limit, but because they can’t define a limit that has been crossed in any particular case, they have always upheld the challenged plans.
    In the case of the inividual mandate the articulated limiting principle that might have been crossed is that it requires the purchase of a commercial product, but this line does not separate it from all the vast array of tax incentives and penalties that exist or have been proposed (Mandatory retirement accounts, mandatory health savings accounts…). A principle based on legitimacy of purpose, relevance to that purpose, and the burden of the mandate relative to the value of the purpose easily separates these mandates and the Obamacare mandate from the feared Broccoli mandate. The fact that the conservative justices appeared to ignore the governments discussion of those issues when they asked for a limiting principle is what leads one to doubt the sincerity of the inquiry.

  53. David M says:

    @Jed: The freedom you describe allows freeloaders to pass their medical costs onto others, so you’ll have to excuse me if I’m not celebrating it. Also, you’ll have to explain exactly how I’m more free not being able to purchase health insurance at all, as worrying about how to pay for medical care doesn’t directly translate to freedom for me.

  54. DRE says:

    @DRE: To be clear I mean the court needs to identify a principle that limits the commerce power, as well as the tax (and spend) power and the necessary and proper clause, which this law exceeds.

  55. Iguana Mom says:

    @Tsar Nicholas II: It’s too bad you can’t tell the difference between a leftist and and liberal, which you have confused.

  56. An Interested Party says:

    The blame for the fiasco that is know as ObamaCare, lies squarely on the shoulders of Nancy Pelosi, Dingy Harry Reid and Barack Hussein Obama and their staffs. They are the ones that froze out the Republicans from any of the meetings that were held on this bill.

    There really is no need to lie to make your point, is there?

    Beginning June 17, 2009, and extending through September 14, 2009, three Democratic and three Republican Senate Finance Committee Members met for a series of 31 meetings to discuss the development of a health care reform bill. Over the course of the next three months, this group, Senators Max Baucus (D-Montana), Chuck Grassley (R-Iowa), Kent Conrad (D-North Dakota), Olympia Snowe (R-Maine), Jeff Bingaman (D-New Mexico), and Mike Enzi (R-Wyoming), met for more than 60 hours, and the principles that they discussed became the foundation of the Senate’s health care reform bill. The meetings were held in public and broadcast by C-Span and can be seen on the C-Span web site or at the Committee’s own web site.

    Meanwhile…

    I’m shocked to learn there’s politics going on in this establishment.

    No…you actually appear to be shocked, or simply can’t believe, that there’s politics going on in this establishment

    If the majority of liberal and non-partisan legal observers thought the mandate would be upheld, why would the Democrats passing the bill think any differently?

    Exactly right…Doug himself wrote numerous posts in which he expressed his opinion that he thought the mandate would be upheld…

    There will always be tools who argue that more control equals more liberty, but I would like to think that our highest judicial body could see through that.

    Just as there will always be tools who will always argue that less government equals more liberty, no matter whether that is actually true or not…I guess all those millions of people who lack health insurance because they can’t afford it just have so much liberty…

    The basic problem is that the individual mandate is a very poor way to try to implement universal care, and it shows.

    Indeed….but those who want universal care have few options as there are so many opponents of universal care in Congress…

  57. Ron Beasley says:

    I really hope they kill the entire thing because that will just make the inevitable single payer happen sooner. Just ask this Republican. Of course that’s the very reason the court will not reject any of it.

  58. Iguana Mom says:

    @Ron Beasley: I hope they kill it too, but your cynicism is bias. (no matter, sometimes it’s still not enough to keep up.)

    If the conservatives are going to rule based on partisanship, they’ll take it away from Obama.
    Either way, Romney loses an issue to disingenuously run against.

    Does this set the future babies up to be born indentured to some private entity?

    Its not universal medical care either, nor does it cover all health problems that might arise, nor does it slow the growth of health care costs across the board, and even with insurance you can still go in to bankruptcy during an illness. This law doesn’t solve the problem it pretends to solve.

    As for calling people that don’t have insurance freeloaders like @David M did, I haven’t had insurance for 10 years,and have paid all my expenses out of pocket, so I think you’re out of line.

  59. Anderson says:

    I’m with Orin Kerr and Charles Fried. The law is obviously constitutional.

    What we see is another constitutional coup like Bush v Gore. A chance to humiliate a Democratic president a few months before the election.

    Obama reelected means the Court likely tips Dem. Romney elected keeps it Republican for another generation.

    It’s just quaint libs thought the case would be decided on the law.

  60. Jenos Idanian says:

    Let’s see… According to MBunge, the opponents of ObamaCare are “radicals.” WR, faithful Bearer Of Teh Stupid, repeats that “radical” nonsense and adds in a healthy dose of… well, “incoherent stupid” seems to be the description. MBunge says that since the arguments have “been considered and found wanting” inside his echo chamber, those who disagree should just bow to the Great God “Precedent.” (Ignoring how sometimes “precedent” gets it wrong, like Plessy v. Ferguson or Dred Scott.) Then he says that the “limits of the Commerce Clause are so self-evident that it’s hard to explain without treating the questioner like a complete fool” — which is odd, as that seems to be his normal form of discourse. Robert Levine reduces it to simple partisanship: the liberals all support it, and the conservatives all oppose it — which does nothing to address the fundamental questions about Constitutionality. mantis discounts the idea that “limiting principles” is the core purpose of the Constitution, and laws must defer to that — not that laws must be self-limiting. Norm, as is usual, sees this as a clarion call for even more hyperpartisanship and to take absolute, total control over the government.

    Virtually no attempts to recognize that the opposition just might be acting on what they consider principle, virtually no attempts to even consider addressing the issues raised. Instead, just dismiss it all as “partisanship” and “hate,” as if simply casting enough aspersions on the people who make the arguments will somehow make the actual arguments go away.

    I’d like to note Dean was a most worthy exception.

    Let me lay it out how I see it, with no references to individuals or sides or parties or leanings.

    The entire Constitution is about one thing: defining limits on the federal government. The enumerated powers say specifically what the federal government can do; the Bill of Rights goes into detail what it can not do. It’s quite simple, quite brief, and the questions always boil down to applying those limiting principles to specific cases.

    In the case of Interstate Commerce, the wording is clear: Congress can “regulate.” “Regulate” is not a synonym for “totally control” or “create” or “compel.” The original intent was to keep individual states from screwing around with each other with things like interstate tariffs and taxes and whatnot. It was their way of telling the states “hands off; you can regulate things within your state, but you can’t screw with things that cross borders, that’s our job.”

    The question of limits comes up because the Constition does not say “Congress can pass laws doing anything it likes.” If that was the case, then the whole idea of defining limits is moot — and, as I said, the Constitution is all about defining limits. The point of questions like the broccoli one are absurd but valid ways of asking “how is this congruent with the principle that Congress’ power is limited? How is this simply not a way for Congress to do whatever the hell it wants, to take control of anything and everything?”

    Another example came to me recently in the argument about mandating employers provide coverage for birth control: if the government can mandate this, can it then decide that since condoms are both statistically reliable as contraception and also help prevent the spread of disease, they are the only preferred method, and patients must pay premiums for other forms of contraception? It’s an absurd argument, but that’s not relevant — simply saying “that’s ridiculous, it’ll never happen” is totally unacceptable when asking about government limits. No, the limits have to be defined and acknowledged beforehand.

    People keep dismissing so many things as “right-wing talking points,” but simply calling them that doesn’t actually address them. Some things become “talking points” because they ring true to a lot of people. Witness how many liberals bring up their pet talking points at every occasion — such as the 40-year-old “Southern Strategy.” That’s a talking point of exceptional age.

    And what’s even sadder, the supporters of ObamaCare had literally months — if not years — of being exposed to these “talking points” and their champion couldn’t muster coherent answers to them when it most mattered. All that time to prep, and Verrilli simply choked.

    Either he panicked, he’s totally incompetent, or those “talking points” had the power of truth behind them. But even with the (if I can borrow a few choice phrases) “hyper-partisan, radical” liberal justices outright coaching him, he still blew it. Maybe he’s allergic to broccoli or something.

  61. David M says:

    @Jenos Idanian:

    opposition just might be acting on what they consider principle, virtually no attempts to even consider addressing the issues raised

    The principle at hand is the Republican’s political dislike of Obamacare. They don’t have serious policy or constitutional issues, they want to stop the opposing team. If they had policy differences with Obamacare they would have chosen to negotiate and be part of the process. If they thought it was unconstitutional they wouldn’t have supported similar mandates in the past.

    The objection is political and the only principle this violates is their belief that anything the Democratic Party supports must be opposed.

  62. KariQ says:

    You’re right, Doug. It was completely naive of Democrats to believe that this law (which independent legal analysts including conservatives and libertarians like Doug himself, overwhelming said was completely constitutional) was in fact constitutional. In fact, the only reason they could have arrived at such a conclusion is through complete epistemic closure which prevented them from paying attention to independent, conservative, and libertarian analysts like Doug. Why, if they’d only done that, they would have heard those experts telling them clearly that the law was going to be upheld by the Supreme Court. Too bad they didn’t listen to anyone outside of their bubble.

  63. Iguana Mom says:

    @David M: Democrats surely don’t come anywhere close to having a monopoly on principles, and the left dislikes it too, so I’m willing to give them the benefit of the doubt.

    Republican AG Buddy Caldwell on private insurance companies, it’s the worst way to try to cover people. http://youtu.be/n9BTQow2t-I He’s actually more progressive than Obama and would rather have single payer, and says it was the arrogance that caused the republicans to shun it.
    Imagine that? I also saw videos of T-GOP politicians during the healthcare debate that would have preferred single payer. If Obama is going to do a mussolini style syndicalist program, profits need to be removed for the good of the public.

    There are a few lawyers in this thread, the diary sucks but in answering, the comments are better than the post.
    psalongo:

    The statute refers to the mandate explicitly as a penalty, not a tax. And while the taxing argument may be a little stronger given the constitutional powers that the House has, it still falls short in terms of meeting certain aspects of their taxing authority.
    As a penalty, the mandate’s function is to force people to engage in commerce. This goes beyond the scope of [the Commerce Clause]. It will have gone from regulating commerce to creating commerce between private individuals and corporations.

    beowolf:

    Social Security and Medicare are safe (from the Supreme Court at least, the politicians are a different story). During Tuesday’s arguments, Scalia, Ginsburg, Kennedy and Sotomayor all made the point that the federal govt unquestionably had the power to provide healthcare directly with a public plan funded by taxes. Its insurance mandate that’s the proverbial bone in the throat.

    And beowolf again about the creation of SS

    Notice that all four justices are talking about the Tax power. That’s the rock on which the Social Security Act is built (the legal name for Medicare, incidentally, is Title 18 of the Social Security Act). And there’s a story behind that…
    In her memoirs, FDR’s Labor Secretary Frances Perkins wrote about the passage of the original Social Security Act:
    It is difficult now to understand fully the doubts and confusions in which we were planning this great new enterprise in 1934. The problems of constitutional law seemed almost insuperable. I drew courage from a bit of advice I got accidentally from Supreme Court Justice Stone. I had said to him, in the course of a social occasion a few months earlier, that I had great hope of developing a social insurance system for the country, but that I was deeply uncertain of the method since, as I said laughingly, “Your Court tells us what the Constitution permits.” Stone had whispered, “The taxing power of the Federal Government, my dear; the taxing power is sufficient for everything you want and need.”

  64. Jenos Idanian says:

    @David M: I see you don’t (or possibly can’t) discuss the principles, or even the politics of the matter, but want to play The Partisan Game. In that game, you argue how “your side has bigger dummies than my side.” And the winner is the last one to keep arguing.

    No thanks, that’s boring. Find someone else to play your stupid game with.

  65. Jenos Idanian says:

    @KariQ: So, “we win because our experts say we’re right?” Funny, I saw a lot of experts say you’re wrong. How do you decide which side is right? Who has more experts? Who has more degrees? Who write the most about how right they are?

    I cited some of the objections that I’ve heard, and agree with. Stretch yourself a little and actually answer them, instead of outsourcing your own thinking to people you find who pat you on the head and tell you that you’re right.

  66. Brummagem Joe says:

    To some extent, they learned their lesson in that regard in the 2010 Midterms, but this week demonstrated that the hubris had not completely gone away. Now that the blinders are off, the harsh light of reality is difficult for some to bear. Perhaps the Supreme Court will uphold the law in the end. However, if they strike it down the proponents will have nobody to blame for this but themselves.

    Oh boy, Doug’s ODS is showing again. In fact we’ve no more idea whether the ACA is going to be overturned than two weeks agao. Scalia spent a lot of time making fatuous comments about Broccoli and this is supposed to mean that the law is unconstitutional even though several appeal courts and leading conservative leaning justices like Laurence Silberman have found it meets the standard. If the law is overturned it’s going to be a startling case of judicial activism that will throw open to question over 70 years of settled law relating to the commerce clause. It’s certainly not impossible given this courts record but the consequence will be far reaching and will tarnish the court’s reputation as one where politics trumps the law. There are also going other consequences because the problems with our healthcare system and it’s increasing cost are not going away and the rejection of this incremental approach is likely to create a push for more radical solutions that will be much less to the liking of conservatives who have absolutely nothing practical to offer.

  67. @Brummagem Joe:

    we’ve no more idea whether the ACA is going to be overturned than two weeks agao.

    I didn’t say otherwise. We have no idea how this case will turn out and anyone who says they do is blowing smoke out of a part of their body not usually intended for emissions of smoke.

    My post was directed to the phenomenon of those on the left who suddenly discovered this week that their predictions that the PPACA would be easily upheld were so much hot air

  68. KariQ says:

    @Jenos Idanian:

    Stretch yourself a little and actually answer them, instead of outsourcing your own thinking to people you find who pat you on the head and tell you that you’re right.

    Cute, coming from you. Not funny, but cute.

    You are, with all due respect, exactly the kind of conservative who I find it pointless to talk to, so I rarely even read your posts. They are simply restatements of GOP propaganda or so completely off base as to be “not even wrong.”

    To take one example: The entire Constitution is about one thing: defining limits on the federal government.

    No, it isn’t. The entire Constitution is about setting up a federal government and giving it sufficient strength to actually govern. It is all about empowering the government to govern, not limiting its power. If it was trying to limit the power of the government, wouldn’t it say so some place in the document? If they were trying to limit the government, would they have the “necessary and proper” clause, which could easily be interpreted pretty broadly? Remember, the framers of the Constitution were acting in the wake of the Articles of Confederation, which were too weak to establish a functioning government. They wanted more government when they wrote the Constitution, not less.

  69. Jenos Idanian says:

    @KariQ: No, they were trying to strike a balance between the nigh-absolute power of the British government and the overreaction of the woefully weak Articles of Confederation.

    The Constitution is filled with limits on the federal government. The enumerated powers say what it can do; if they wanted an all-powerful federal government, they would just say so and not spell out what it can — and can not — do.

    The “Necessary and Proper” clause is best seen as an enabling power; it means absolutely nothing on its own. It gives strength to other powers, and is only useful in conjunction with another, valid power. Think of it as a battery; it’s useless on its own. Plug it into a device, and the device then has use. Or a bullet; it’s worthless unless you have a gun to load it into.

    Disagree? Feel free to show examples where “Necessary and Proper” means a damned thing on its own. Here’s the full phrasing, which proves it is an adjunct to other powers:

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

    The “Necessary and Proper” argument is a total red herring. It begs the underlying question — is it within the power of the federal government to compel commerce from each and every individual citizen, purely as a prerequisite for living in the United States? If it is, then the “Necessary and Proper” clause applies. If it doesn’t, then the clause is moot here.

    The “auto insurance” allegory is bogus. For one, car insurance doesn’t cover gas and oil changes. For another, if you don’t want to buy auto insurance, then don’t own a car. Finally, the mandate is set by the states, not the federal government.

    On the other hand, health insurance is supposed to cover nearly all expenses, including “routine maintenance.” If you don’t want to buy health insurance, feel free to leave the country or die.

    I don’t know whether or not ObamaCare will be trashed or not. I do know that it should. Further, considering that Congress actually had a severability clause in the bill at one point but took it out, the argument that the bill is severable is ludicrous — Congress’ intent was clear when it removed it. So it’s all in, or all out.

    Here’s for all out.

  70. grumpy realist says:

    I sometimes think that the so-called “conservatives” would love to rip up the Constitution and go back to the Articles of Confederation.

    The fact that the U.S.A. would probably not hold together is, of course, a detail to be ignored….

  71. KariQ says:

    @Jenos Idanian:

    Your argument is with Alexander Hamilton:

    Constitutions of civil government are not to be framed upon a calculation of existing exigencies, but upon a combination of these with the probable exigencies of ages, according to the natural and tried course of human affairs. Nothing, therefore, can be more fallacious than to infer the extent of any power, proper to be lodged in the national government, from an estimate of its immediate necessities. There ought to be a CAPACITY to provide for future contingencies as they may happen; and as these are illimitable in their nature, it is impossible safely to limit that capacity.

    I suggest you take the issue up with him.

  72. KariQ says:

    @Jenos Idanian:

    By the way, are you aware that you are consistently reading things into my comments that I don’t even hint at?

  73. Jenos Idanian says:

    @KariQ: Tell you what: you argue how that particular statement applies to ObamaCare, and how it qualifies as an “exigency” that desperately needs to be addressed with such an expansion of power, and THEN I’ll consider it.

  74. Brummagem Joe says:

    @Doug Mataconis:

    My post was directed to the phenomenon of those on the left who suddenly discovered this week that their predictions that the PPACA would be easily upheld were so much hot air

    Who were the informed people on the left who predicted it would easily be upheld? I’ve seen quite a few people on the left and on the right claim it was constitutional including as I noted some distinguished conservative jurists who have already upheld it’s constitutionality. I think people like Silberman know their law and therefore if it is overturned it will rather obviously be a political rather than legal determination. You equally obviously regard this as a cause for celebration given the rather hysterical outburst against the ACA on whose grave you are already dancing….Viz

    To some extent, they learned their lesson in that regard in the 2010 Midterms, but this week demonstrated that the hubris had not completely gone away. Now that the blinders are off, the harsh light of reality is difficult for some to bear. Perhaps the Supreme Court will uphold the law in the end. However, if they strike it down the proponents will have nobody to blame for this but themselves.

  75. An Interested Party says:

    Republican AG Buddy Caldwell on private insurance companies, it’s the worst way to try to cover people. http://youtu.be/n9BTQow2t-I He’s actually more progressive than Obama and would rather have single payer, and says it was the arrogance that caused the republicans to shun it.

    Please…if Caldwell were elected president, he too wouldn’t be able to get a single-payer system through Congress…it isn’t so much about what any president wants, it’s about what any Congress will pass…

    My post was directed to the phenomenon of those on the left who suddenly discovered this week that their predictions that the PPACA would be easily upheld were so much hot air

    Considering that you made similar predictions, I guess you also have some heated gas coming out of you…

  76. Brummagem Joe says:

    @KariQ:

    You are, with all due respect, exactly the kind of conservative who I find it pointless to talk to, so I rarely even read your posts.

    So why bother? As I point out here from time to time this is a guy with visible psychological problems. So why feed his appetite for endless futile disputation?

  77. Socrates says:

    So Mr. Intellectual Integrity Antonin Scalia asked if the government could force citizens to eat their broccoli.

    And I suppose it’s just some sort of amazing coincidence that Scalia regurgitates exactly one of the favorite Tea Party Republican talking points.

    But please, let’s not view the Justices through primarily a political lens.

    No politics here. Move along. As Scalia said when asked about Bush v. Gore: “Get over it.” He’s just so thoughtful. And fair minded.

    The editors of the Washington Post, like Justice Scalia, have been carrying water for the Republicans for a long time.

  78. KariQ says:

    @Jenos Idanian:

    Still not getting it. I’m not talking about the constitutionality of the law, pro or con. Never have. That wasn’t my point at all, not in anything that I wrote. Not interested in discussing it.

    @Brummagem Joe:

    Because I’m operating on about 3 hours worth of sleep over the past 24? That’s all I got, so that’s what I’m going to stick with. Thank you for asking. I will stop now.

  79. JKB says:

    I think we can say the opinions are going to be interesting reasoning. If handicapping is correct the dissent will be a plea for the Blue model and the transformation of citizens to subjects and governing to ruling. But is could still be the majority opinion.

    But just as the SG openly spelled out the need to force the young to not only buy health insurance but also to pay more than actuarially required to cover older/sicker people as well as free birth control, sterilization and abortions for young women, the opinions and commentary will say more about “what’s in the law” than ever before.

  80. Racehorse says:

    Local governments are already telling people what they can eat and drink by taking on the role of being food police and big brother. In some California cities, Happy Meals have been banned. In New York City, you can get in trouble if you use unapproved frying oil. In one school, a Federal inspector seized a child’s lunch from home (a turkey sandwich) and made the student eat the school lunch (chicken nuggets and french fries). Here are headlines from the immediate future: “Girl Scouts Busted For Selling Cookies”, “Local Man Jailed For Possession of Doughnuts”, “Birthday Cupcakes Gets Mom 3 Years”, “Store Shut Down For Selling Doritos”.
    The Supreme Court Justices probably don’t have the time to get out and see what is going on at some of the other levels of government. They would be shocked to see how far down the road to totalitarian, Orwellian society we have gone, mainly because few people speak out. It is hard to believe that government officials and politicians think that the Constitution gives them this kind of power over the people.

  81. Jenos Idanian says:

    @KariQ: Still not getting it. I’m not talking about the constitutionality of the law, pro or con. Never have. That wasn’t my point at all, not in anything that I wrote. Not interested in discussing it.

    Well, that’s what I’m mainly interested in discussing, so I think we agree — no sense in trying to continue the discussion.

    @Racehorse: You forgot about the armed raids shutting down people freely buying and selling unpasteurized milk…

  82. Robert Levine says:

    My post was directed to the phenomenon of those on the left who suddenly discovered this week that their predictions that the PPACA would be easily upheld were so much hot air

    To quote the noted leftie Charles Fried:

    What [Verrilli] encountered instead [from the Court] was a barrage of hyperbolic, hostile rhetoric redolent of Tea Party–inspired slogans (we even had the broccoli canard) masquerading as questions, which are supposed to clarify the presentation and probe for weaknesses. I know some were disappointed by Verrilli’s performance. What did they expect? He did his job and he did it very well.

    What Verrilli did not do is “rise” to the level of angry declamation coming at him from the other side of the bench. Nor would it have helped his case if he had. You know the old adage: Never argue with a cop—he’s got the gun and the power of arrest. It might have produced some more drama for the audio feed, but that would not have had an effect on the final outcome. He was not trying not to get voted off the island in this episode.

    I thought Verrilli would prevail, but that is because he has the law and precedents on his side. After yesterdays argument (or was it a shootout?), I am no longer so confident.

    It’s worth noting that Fried testified to the Judiciary Committee in favor of confirming both Roberts and Scalia.

    The fact remains that there was no reason to believe, prior to the faux-outrage at the tyrannical “mandate” once it was actually passed into law by Democrats, that it was even close to the edges of the envelope constitutionally. It’s entirely possible to believe that the envelope should be a different shape than it is; that’s why people are willing to give Thomas a pass on his opposition. He’s been pretty consistent in his desire to do away with decades of precedent. But any judge who truly believes in stare decisis is not going to find this a very close call.

  83. Robert Levine says:

    Oops; meant “Fried testified to the Judiciary Committee in favor of confirming both Roberts and Scalia Alito.” Sorry.

  84. Racehorse says:

    @Mike P: The government at local levels is already in the ‘food police” business. See my position above. I think that finally some of the Supreme Court is seeing just how far the Federal government has gotten entangled in peoples’ lives. Hopefully, they will try to back this train up before there is a huge wreck. My only question is where have they been for the past 50 or so years? Or did they misplace their copy of the US Constitution ?

  85. Iguana Mom says:

    @An Interested Party: No one said anything about Caldwell being president, so you’re arguing against a straw man.

    Perhaps if Baucus and the Democrats had included a public option or this bill was single payer, they would have had the votes, or if like Caldwell said, there was not so much hubris coming from the blue side of the isle there wouldn’t have been so much resistance. Also the administration was highly involved with the crafting of this bill, selling it’s potential good pieces off of for fifty pieces of silver, twisting arms for votes. Obama and Emmanuel didn’t just sit in the white house and wait for this legislation to be delivered to sign.

    When you have someone calling themselves the only “adult in the room” and talking to multiple term legislators like they are children it grates on the nerves.
    Democrats do have this problem, even with the left flank. It’s why they’ve earned the nickname limousine liberals and are considered snobs. Remember the terms “f*ing retards” and the “professional left?”

  86. KariQ says:

    @Racehorse:

    I really suggest you look more closely at the “examples” you provided.

    In some California cities, Happy Meals have been banned

    No. The ban is on including free toys with a meal unless it meets certain nutritional standards. Happy meals are still available, and you can still get toys with them, they just charge 10 cents for the toy.

    In one school, a Federal inspector seized a child’s lunch from home (a turkey sandwich) and made the student eat the school lunch (chicken nuggets and french fries).

    This one was discussed here. Turns out, it didn’t happen. The student was in a voluntary program for at risk youth, and the program provided free supplemental nutrition to all participants. No one took the girl’s home packed lunch, and she wasn’t required to eat chicken nuggets and fries. She was given milk.

    The “unapproved cooking oil” is cooking with trans fats – which are strongly tied to heart disease. I can’t work up too many tears over the ban, myself, since I try to avoid them and I’d like to know that I can order food without trans fats.

    You can still complain about government oppression of forcing you to pay an extra dime for the toy in your kids’ happy meals; the orwellian terror of providing free milk; and being deprived of the right to increase your risk of heart attack, stroke, and hardening of the arteries if you like, but please do investigate the truth behind the stories you are complaining about.

  87. george says:

    Tsar, the economies of scale actually should make it more efficient to run public health care for a nation of 300 million than one of 30 million. More people benefiting is matched by more people paying taxes into it, and the larger number means smaller percentage wise statistical fluctuation.

    What does make a difference is the relative wealth of the countries, but I think the US is richer per capita than Canada, so that too is in America’s favor.

    What could make it more expensive is things like exercise or eating habits, but in my regular travels between Canada and America I can’t say I’ve noticed much difference there – same percentage of joggers on the streets, or obese people in both.

    I don’t think Canada’s system is even close to perfect, allowing both private and public would be a real improvement. But its as effective as that of the US, and apparently only costs half as much.

    I just think forcing people to buy private health insurance is a really stupid way to go about it, and I think the supreme court is right to question it – the gov’t has a mandate to provide such things, to to force people to buy it elsewhere.

    On the other hand, I can’t conservatives who talk about it being a sign of big gov’t seriously – folks who want to limit what people can consume, smoke, or put into their veins aren’t worried about big gov’t reaching into people’s day to day lives.

  88. george says:

    Er, that should “the gov’t has mandate to provide such things, not to force people to buy it elsewhere”

  89. An Interested Party says:

    My only question is where have they been for the past 50 or so years?

    Oh yes, let’s hear the arguments as to why Social Security, Medicare, and Medicaid are all unconstitutional programs…

    No one said anything about Caldwell being president, so you’re arguing against a straw man.

    Umm, not really, as the point isn’t about Caldwell being president…the point is that single-payer was a nonstarter in Congress…oh, and if you remember, the public option was discussed, but that too proved to be a nonstarter…

    Democrats do have this problem…

    Please…both parties have that problem…

    I just think forcing people to buy private health insurance is a really stupid way to go about it, and I think the supreme court is right to question it – the gov’t has a mandate to provide such things, to to force people to buy it elsewhere.

    And on this, you would probably get broad agreement, but, once again, no president can simply wave a magic wand and declare that everyone can get health insurance…single-payer is simply not an option with Congress…