Obamacare and the Supreme Court

[Color Me Badd Fan]

I'm bordering on exUte status here with three straight posts, but here's what Jeffrey Toobin, CNN legal analyst, had to say:

"This was a train wreck for the Obama administration. This law looks like it's going to be struck down. I'm telling you, all of the predictions, including mine, that the justices would not have a problem with this law, were wrong. Justice Kennedy, the swing vote, was enormously skeptical. Justice Alito, Justice Scalia were constantly skeptical. Justice Thomas didn't say anything, but we know his position on the issue. The only conservative justice who looked like he might uphold the law was Chief Justice Roberts, who asked hard questions of both sides."

[Jacob]

I'm bordering on exUte status here with three straight posts, but here's what Jeffrey Toobin, CNN legal analyst, had to say:

This is probably a good time to note that predicting how a justice will vote based on questioning during oral argument, is not necessarily accurate.

[Goatnapper'96]

One argument that I've heard, and it was echoed by ABC News' Terry Moran (yes, that's really his name DDD), is that the court shouldn't even be deciding this issue and the political process should dictate what happens. If the people don't want it, they can simply elect different people to the executive and legislative branches (he didn't mention what happened in 2010).

I am sure he felt similarly concerning the will of the people wrt the California Prop 8 vote in 2008. Our system is not now and never will be a pure democracy. There are specific limitations to governmental, and even the will of the majority, power to protect liberty and hopefully prevent tyranny, in its various forms. Such protections are protecting the rights of gays in California even though the will of the people spoke on the issue. Sometimes our courts conclude the will of the people is illegal. Not a bad system to have, IMO.

One potential problem with this argument is the fact that the Congress and President told us repeatedly that this law and the mandate particularly was not a tax. Now the Solicitor General is going in and arguing that not only is it valid under the Commerce Clause, but the law was also passed pursuant to the Congress's taxing power. So we've got the libs arguing that the political process should control this issue but at the same time the officials elected from that political process lied to us about the underpinning of the law.

If it is struck down, and I am not yet quite so confident as you, it will make me chuckle. That Obama clip with George Stephanopopopopopolous where the President said something to the effect that "I know you are but what am I?" when he said "you can't just call it a tax if you want. It is not a tax!" To think our beloved and foremost Constitutional Scholar might lose his most significant domestic achievement because he didn't want to call it a tax because he was more interested in being re-elected than furthering what he believed would bring the most help to the most people. Trully, he is business as usual.

I'm beginning to think this thing may just be overturned. My recollection is that Kennedy has been much more reliably conservative on government size and scope issues (Kelo being an exception) than on social issues.

I do not share your confidence. It might be but it appears to me there is a great deal of compelling evidence that ever since our society decided anyone who needed health care got health care, health care became a public issue. I think we eventually end up with some form of socialized catastrophic insurance, at a minimum, and likely some base level of socialized medicine similar to the Australia system. However, the strong emotions of the current Democratic charlie-foxtrot are going to have to subside. The Liberals did not follow the instructions of the poem to "Confirm thy soul in self-control, thy liberty in law." They sought to exploit an opportunity to extend a middle class entitlement that might not have been neccesary if the actual cost of the health care provided could come under control. Instead of trying to decrease the cost of health care they focussed upon their endstate of goal of universal coverage, certainly a noble pursuit, and missed the mark, IMO. But it isn't a tax just because you say it is!

I'm trying to decide on the political ramifications of this decision. Would a stamp of approval by the Supreme Court bolster Obama heading into November or would it just incite the opposition to get him out? Would ruling the law unconstitutional make Obama look weak or would it lessen the urgency to remove Obama from office?

I think it is only a loss for Obama if it is found unconstitutional. I don't think it will fire up the liberal base, but rather demorialize them. I don't think the conservatives will get any more fired up. I think the independents would be swung negatively towards Obama if this is found by the courts to be an unconstitutional power grab - a consistent criticism of this administration which would be then supported by a Supreme Court ruling. If it is found Constitutional, I don't think it will help him any. This ruling could only hurt Obama or do nothing, IMO.

[Jacob]

I'm trying to decide on the political ramifications of this decision. Would a stamp of approval by the Supreme Court bolster Obama heading into November or would it just incite the opposition to get him out? Would ruling the law unconstitutional make Obama look weak or would it lessen the urgency to remove Obama from office?

I'm not certain what the effect of this might be either way. FDR initially had some of his laws struck down, then he threatened to pack the court and the court started saying his laws were a-okay. And he was reelected again and again despite the economic disaster that he was unable to curtail.

But today, polling suggests that Obamacare is quite unpopular. So, it may be a lose-lose for him. If he wins in court, the conservative base will be more fired up to turn out to throw him out. If he loses in court, he will look like an extraordinarily weak president with no major accomplishment.

But it could go the other way entirely. Political predictions aren't worth much.

[byu71]

I'm not certain what the effect of this might be either way. FDR initially had some of his laws struck down, then he threatened to pack the court and the court started saying his laws were a-okay. And he was reelected again and again despite the economic disaster that he was unable to curtail.

But today, polling suggests that Obamacare is quite unpopular. So, it may be a lose-lose for him. If he wins in court, the conservative base will be more fired up to turn out to throw him out. If he loses in court, he will look like an extraordinarily weak president with no major accomplishment.

But it could go the other way entirely. Political predictions aren't worth much.

My grandparents lived during the depression and LOVED FDR. They were convinced he saved them and the country from financial ruin. They and my parents were died in the wool democrats.

My saintly and very religious Grandma was a big time Clinton supporter and when I asked her about Clinton's morals, it was, they all do it.

Obama doesn't have a large group of folks thinking he saved them from financial ruin.

[Color Me Badd Fan]

I am sure he felt similarly concerning the will of the people wrt the California Prop 8 vote in 2008. Our system is not now and never will be a pure democracy. There are specific limitations to governmental, and even the will of the majority, power to protect liberty and hopefully prevent tyranny, in its various forms. Such protections are protecting the rights of gays in California even though the will of the people spoke on the issue. Sometimes our courts conclude the will of the people is illegal. Not a bad system to have, IMO.



If it is struck down, and I am not yet quite so confident as you, it will make me chuckle. That Obama clip with George Stephanopopopopopolous where the President said something to the effect that "I know you are but what am I?" when he said "you can't just call it a tax if you want. It is not a tax!" To think our beloved and foremost Constitutional Scholar might lose his most significant domestic achievement because he didn't want to call it a tax because he was more interested in being re-elected than furthering what he believed would bring the most help to the most people. Trully, he is business as usual.



I do not share your confidence. It might be but it appears to me there is a great deal of compelling evidence that ever since our society decided anyone who needed health care got health care, health care became a public issue. I think we eventually end up with some form of socialized catastrophic insurance, at a minimum, and likely some base level of socialized medicine similar to the Australia system. However, the strong emotions of the current Democratic charlie-foxtrot are going to have to subside. The Liberals did not follow the instructions of the poem to "Confirm thy soul in self-control, thy liberty in law." They sought to exploit an opportunity to extend a middle class entitlement that might not have been neccesary if the actual cost of the health care provided could come under control. Instead of trying to decrease the cost of health care they focussed upon their endstate of goal of universal coverage, certainly a noble pursuit, and missed the mark, IMO. But it isn't a tax just because you say it is!



I think it is only a loss for Obama if it is found unconstitutional. I don't think it will fire up the liberal base, but rather demorialize them. I don't think the conservatives will get any more fired up. I think the independents would be swung negatively towards Obama if this is found by the courts to be an unconstitutional power grab - a consistent criticism of this administration which would be then supported by a Supreme Court ruling. If it is found Constitutional, I don't think it will help him any. This ruling could only hurt Obama or do nothing, IMO.

I'm not expressing supreme confidence that this law is going to be overturned. The four liberal justices are set in stone on this and the libs have never found nor do they care to find any limitation on Congress's commerce powers.

The libs thinking that Scalia was going to go along with this is hilarious. Scalia is not going to uphold something that represents a huge step beyond normal commerce powers.

From what I've read, the theory on this is that Kennedy and perhaps Roberts may concur with the 4 libs. The 4 libs won't sign onto Kennedy and Roberts' concurring opinion because the concurring opinion will espouse some limiting guideline on Congress's commerce power. If Kennedy and Roberts cannot find this limiting principle with the legislation, then they won't concur and the law will be overturned. One thing focused on today was whether there was something unique about health care that allowed this law to pass muster under the commerce clause. The reason behind this questioning is to ferret out some kind of limiting principle. If health care is unique, then upholding its constitutionality can be limited to health care alone. I think this is an odd argument personally, but Kennedy may find another limiting principle. If he can find one, then he may get Roberts on board. On one hand this is a liberal piece of legislation but on the other hand it's a political hot potato and Roberts is the type that would like to punt on something like this (the judicially conservative thing to do) if there is any way to do it without giving Congress carte blanche under the commerce clause.

[Color Me Badd Fan]

I'm not certain what the effect of this might be either way. FDR initially had some of his laws struck down, then he threatened to pack the court and the court started saying his laws were a-okay. And he was reelected again and again despite the economic disaster that he was unable to curtail.

But today, polling suggests that Obamacare is quite unpopular. So, it may be a lose-lose for him. If he wins in court, the conservative base will be more fired up to turn out to throw him out. If he loses in court, he will look like an extraordinarily weak president with no major accomplishment.

But it could go the other way entirely. Political predictions aren't worth much.

I actually agree with sheepnapper on this one, I think overturning the law would devastate Obama and the liberal base. On the other hand, I don't think upholding the law would fire up conservatives but I also don't think it will devastate them.

[Jacob]

My grandparents lived during the depression and LOVED FDR. They were convinced he saved them and the country from financial ruin. They and my parents were died in the wool democrats.

My saintly and very religious Grandma was a big time Clinton supporter and when I asked her about Clinton's morals, it was, they all do it.

Obama doesn't have a large group of folks thinking he saved them from financial ruin.

I'm not as sure as you on the bolded point. Obama certainly didn't save a large group of folks from financial ruin, IMO, but that's not to say that a large group doesn't think otherwise.
After all, there is no evidence that FDR saved any large group from financial ruin. Unemployment was 20%+ during his re-elections. Voters are not rational.

[byu71]

I'm not as sure as you on the bolded point. Obama certainly didn't save a large group of folks from financial ruin, IMO, but that's not to say that a large group doesn't think otherwise.
After all, there is no evidence that FDR saved any large group from financial ruin. Unemployment was 20%+ during his re-elections. Voters are not rational.

I guess it is all in what the definition of large group. I guess my point is, I don't think Obama has the kind of clout apparently FDR had if he was indeed able to intimidate the court.

[Tex]

If he can find one, then he may get Roberts on board. On one hand this is a liberal piece of legislation but on the other hand it's a political hot potato and Roberts is the type that would like to punt on something like this (the judicially conservative thing to do) if there is any way to do it without giving Congress carte blanche under the commerce clause.

I listened to the entirety of both yesterday and today's oral arguments. With the usual caveat that they are not dispositive, it's nonetheless true that Roberts line of questioning would make it very jarring for him to later vote to kick the can down the road, or to uphold the law. He was quite piercing.

[Color Me Badd Fan]

I listened to the entirety of both yesterday and today's oral arguments. With the usual caveat that they are not dispositive, it's nonetheless true that Roberts line of questioning would make it very jarring for him to later vote to kick the can down the road, or to uphold the law. He was quite piercing.

Roberts wouldn't be the vote turning this into a 5-4 majority in favor of upholding the legislation. However, he could veer off with Kennedy for a 6-3 concurring opinion upholding the result where he could outline some limitations on Congressional power. If it's going to happen anyway, then the theory is Roberts would like to go off with Kennedy in order to have more influence on the concurring opinion that would place some limitations on Congress.

But the thing I wonder about with regard to Kennedy is that he probably sees that this thing is unpopular and the cost projections are spiraling upward. The question in my mind then is what is now the rationale behind this legislation? Is it going to decrease health care costs? No, clearly not. Is it going to be some positive reform of health care and the health care industry? Not really. My point is that if this were a piece of legislation that was indisputably popular and effective at doing what it was supposed to do, then I imagine these practical considerations would have to enter into one's mind to find any way to make it constitutional. But Obamacare is total shit, so why should Kennedy bend over backwards to find some hidden rationale for the legislation under the commerce clause (especially when the Solicitor General did a bad job today) when on the face it doesn't really exist?

[Tex]

Roberts wouldn't be the vote turning this into a 5-4 majority in favor of upholding the legislation. However, he could veer off with Kennedy for a 6-3 concurring opinion upholding the result where he could outline some limitations on Congressional power. If it's going to happen anyway, then the theory is Roberts would like to go off with Kennedy in order to have more influence on the concurring opinion that would place some limitations on Congress.

But the thing I wonder about with regard to Kennedy is that he probably sees that this thing is unpopular and the cost projections are spiraling upward. The question in my mind then is what is now the rationale behind this legislation? Is it going to decrease health care costs? No, clearly not. Is it going to be some positive reform of health care and the health care industry? Not really. My point is that if this were a piece of legislation that was indisputably popular and effective at doing what it was supposed to do, then I imagine these practical considerations would have to enter into one's mind to find any way to make it constitutional. But Obamacare is total shit, so why should Kennedy bend over backwards to find some hidden rationale for the legislation under the commerce clause (especially when the Solicitor General did a bad job today) when on the face it doesn't really exist?

I agree he seems disinclined. But Kennedy is the biggest finger-in-the-wind justice on the court, so who knows which side of the bed he'll wake up on in June.

I think the most terrifying part of today's arguments was listening to Breyer insist that Congress can use the Commerce Clause to create commerce out of nothing, or otherwise force people to engage in commerce, simply because it thinks it's a good idea. It's as though the man has no idea what an enumerated power is. Clement was quite brilliant in dismantling that argument, and was also effective against Kagan and Sotomayor's follow-ups. It was amusing to listen to him explain to Kagan what the purpose of health insurance is.

[Jacob]

Actual quote from the Solicitor General today in court:

This is not a purchase mandate.

Wow.

[venkman]

My grandparents lived during the depression and LOVED FDR. They were convinced he saved them and the country from financial ruin. They and my parents were died in the wool democrats.

My saintly and very religious Grandma was a big time Clinton supporter and when I asked her about Clinton's morals, it was, they all do it.

Obama doesn't have a large group of folks thinking he saved them from financial ruin.

My paternal grandparents were the same way, granddad was a Geneva steelworker. The big diff between FDR and todays Obama Dem party is the environment. Dems back then were for a safety net, sure, but they were actually interested in getting people to work. Jobs that would actually help working class folks, for instance, oil and gas jobs. Today's Dems are like "sorry". I LOL at that Rachel Maddow commercial showing her standing at Hoover Dam extolling how the Democrats are for big government projects. Uh huh, like there's any way in hell the environuts would let something like that happen again.

[venkman]

I think I heard a clip of some justice asking what limits there are to federal power. If Obama care is declared "constitutional" I'd say there isn't much. Clearly this isn't what the founders had in mind when thinking of a strong, limited, central government. Well, maybe Hamilton, but he might be it.

Anyway, it won't be overturned. This is more than about paying for healthcare; under the rubrick of healthcare, the Feds will be able to have a much bigger say in more of our everyday choices. We're doomed.