Even some of the liberal judges appear skeptical about Obama’s defense of ObamaCare:
On the first day of oral arguments in the case challenging President Obama’s national health care law, justices seemed skeptical that the individual mandate should be considered a tax — one of the main consitutional defenses being offered for the law.
To be clear, today’s 90 minutes of oral arguments did not concern the underlying merits of the case, but whether an 1876 law called the Anti-Injunction Act bars the Court from ruling on the suit at this time. Under the Anti-Injunction Act, people cannot challenge a tax in court until after they have paid it, something that would effectively punt the issue until at least 2015. However, there is some overlap between this question and the idea of whether the mandate is a tax, and justices on both sides of the ideological fence expressed skepticism that the mandate should be treated as a tax.
“This cannot be a revenue raising measure, because if it’s successful, there won’t be any revenue raised,” said Justice Ruth Bader Ginsburg of the mandate.
Another liberal on the court, Justice Stephen Breyer, said of Congress’s description of the fine for non-compliance with the mandate, “They called it a penalty and not a tax for a reason.”
Alito came in for the swoop:
Justice Sam Alito asked Verrilli whether he could point to another case in which courts identified something as not a tax for the purposes of the Anti-Injunction Act while still ruling it was a constitutional exercise of taxing power. Verrilli could not name any.
Bam!
First Obama said the mandate wasn’t a tax, and then they said it is.
And now even the liberal judges of the Supreme Court are looking a bit wary on their argument.
That doesn’t bode well for ObamaCare advocates. If the mandate gets struck as a constitutional overreach, then regardless of whether the Supreme Court finds severability or not, the entire structure of ObamaCare collapses. It will hasten momentum for its repeal, and insurers will switch sides to demand its complete rejection.
And even Howard Dean believes the mandate will be struck down:
Dean, a former presidential candidate who also chaired the Democratic National Committee from 2005 to 2009, said on “CBS This Morning” that it’s “likely the individual mandate will be declared unconstitutional” but he expects the justices will sever that finding from the rest of the bill, meaning other elements, like the ban on denying people insurance based on pre-existing conditions, could remain in effect.
Howard Dean believes ObamaCare will survive if the mandate is struck down. Richard Epstein:
…if the individual mandate is struck down, does the rest of the law go down with it? As Abbe Gluck and Michael Graetz recently noted in the New York Times, both the Obama administration and the states opposing the program insist that the entire ACA will go down the tubes if the mandate is struck down. Their motivations of course diverge. The Obama administration thinks that the all-or-nothing position improves the odds that the mandate will be upheld, given the vast dislocations that will follow if it is struck down. The states think that the mandate is a loser on its own terms, and want to bring the rest of the statute down with it.
Both sides are wrong. As I have urged in a brief coauthored with Mario Loyola of the Texas Public Policy Foundation and Ilya Shapiro of the Cato Institute, Title I at the very least has to fall if the mandate is struck down because it is the only backstop that Congress put in to control adverse selection under the ACA. Writers like Gluck and Graetz are wrong to say that allowing severability rightly puts the issue back into the lap of the next Congress. A future Congress could easily be paralyzed on the issue, which leaves us with an incoherent structure. But we do know that the 111th Congress that passed this bill a year ago on March 23, 2010 did regard the two as indissoluble.
Just because the rest of Title I is not severable from the individual mandate does not mean that the mandate itself is saved from constitutional attack by propping up the Commerce Clause with the Necessary and Proper Clause. The key issue is this: Severability asks whether one part of the legislation can function as Congress intended if another part is stripped out. In contrast, the Necessary and Proper Clause only saves that legislation which is needed to make the statute cohere. As noted earlier, the individual mandate was only introduced as a second-best response to the ACA’s problem of adverse selection risk.
The mandate is not necessary for that purpose because there are other devices that do a far better job in coping with that omnipresent danger. And it is surely not proper to use an extraordinary remedy that expands the scope of Congressional power to achieve an end that could be controlled by more traditional means. Thus, restrictions on the power to pull out of an insurance plan can deal with adverse selection and general taxes can deal with the need to subsidize high-risk individuals —if that is thought to be a legitimate government function.
In the end, Obamacare’s rickety economic structure is intimately connected to its constitutional infirmities. The simple fixes that control the worst excesses of the ACA obviate the need for the government’s constitutional adventurism.
If SCOTUS strikes the mandate down I believe it will provide momentum to repeal it. At least I hope it does.
[youtube]http://www.youtube.com/watch?v=bOaLLdpVzAs[/youtube]
UPDATE
[youtube]http://www.youtube.com/watch?v=LmKm05MKIFM[/youtube]
See author page
Hopefully this easily clears step one of three arguments they are hearing this week. While SCOTUS again turned down C-Span cameras in the High Court, they will be doing something new for this… releasing the audio, and transcripts at the end of the day.
This is a PDF of today’s proceedings.
This is all bovine fecal matter. All the House has to do is de-fund Obamacare.
Notice how ABSOLUTELY NOTHING CONSERVATIVES WANT GETS ATTACHED TO ANY BILL. OBAMA NEVER HAS TO VETO ANY MAJOR LEGISLATION AS IT’S ALL IN ACCORDANCE WITH HIS PHILOSOPHY OF BIG GOVERNMENT.
Brought to you by the Republican sell-outs in congress.
Ooohrah Curt. I hope this thing falls like a house of cards. Semper Fi devil dog!
Me thinks that Justice Ruth Bader Ginsberg, who likes to favor foreign statutes, should be reminded of the series of precedent legal restraints imposed by the Nazi regime as societel mandates that were resisted by the Jews and then when that ethnic group was signified in opposition to those new laws were subsequently examined, separated and incarcerated into concentration camps and then exterminated as a group. Laws that mandated segregation of the Jews from the rest of population are essentially no different then laws that force mandate citizens to act differently then they would freely choose.
THE SOOTHSAYER
HI,
I don’t know much of what the judges are doing, but I believe you know as much as them,
bye
@Ivan:
Wrong. If “Obamacare” were only “defunded” it still would remain law and could be refunded the instant the Democrats have control again. The Republicans didn’t “sell out,” they were completely locked-out of the entire creation process of the “Obamacare” bill. There were no negotiations, input or compromise whatsoever from the GOP side. Pelosi and Reid made sure that it would be a purely partisan (DNC credentials only) bill. The Democrats own “Obamacare” lock stock and barrel. The Democrats insured that no Republican input would be allowed, and that no one would be able to read or debate the bill until after it was voted on and passed. As you ignore all these facts completely and yet still try to blame Republicans for it’s passage, you have shown for all to see the complete fraud you are. If any of us had any remaining doubts, you have (with your above post,) clearly dispelled any possible lingering consideration that you might be a disgruntled GOP’er, and have instead just proven to everyone that you are unquestionably a duplicitous Democrat.
You are out of the political closet Ivan. Your elephant mask has slipped so far, it’s fallen off to completely revealed the jackass underneath. You are a complete fraud, and should be treated as such.
@Ditto:
WRONG. So you argue they shouldn’t defund it because it would/could only be refunded later?
Another loser argument. Using your ill-logic, why de-fund ANYTHING since funding may be restored in the future??
DUH!!!
Yes, I just busted another Republican hack/apologist.
@Ivan:
All you have done is continue to show your ignorance.
Defunding some government programs can of course end them, (military weapons systems for example, or the funding of croney capitalism projects.) but that is not always the case with the costs enacted by legislation. Congress can not really “defund” unfunded mandates, the mandate itself must be repealed. Some laws may have no funding requirements within the bill at all, yet they can be very costly in the regulations they make.
As for Obamacare, defunding may halt progress on some portions of it, but it does little to stop many of the various things that are included in the legislation. 6 pages of it equal 429 pages of regulations. Many of these regulations (such as the “birth control” portion that violates the separation between church and state and forces religious affiliated organizations to violate their religious laws,) will not be paid by federal tax dollars, but out of the premiums that healthcare providers charge their customers in premiums. Nothing is every really free, someone always pays the cost somehow. In the case of business, all costs roll downhill to those paying the premiums. Those new regulations subsequently created by Federal agencies, under the “authority” of this Democratic steamrolled legislation, can not be stopped by simple “defunding” the portions of the bill that are Federally funded. The regulations themselves have to be repealed via future legislation, the authorization ended bu the courts system, or by Executive Order. Unfunded mandates to the states within Obamacare wont be paid by Federal dollars. Parts of the legislation expanding Medicare/Medicaid coverage may not grant additional Federal funding, instead requiring the States to pay for the extra coverage out current funding portion they receive from the Feds. This will require States to find ways to stretch those dollars, which will very likely lower the quality and amount of healthcare. No law ever goes away unless it is repealed/ended by future legislation or is thrown out via the courts system.
For the health of our Republic, the individual mandate, at the very least, must be struck down. If not, the door to further governmental control over private citizens’ lives is thrown completely open.
Energy is a vital issue in our country. The growth of demand for such is far outstripping the growth of supply. If the individual mandate is allowed to stand, then congress has the means, set by precedent, of forcing consumers to purchase only government approved autos, appliances, electronics, building materials, clothing, heating and air conditioning products. They have the means to enact legislation forcing cities, towns, and states into providing federally approved devices to address transportation and energy problems.
Think it won’t happen? Then tell me just one power the federal government has grabbed, or expanded, and had the self-restraint to not go further.
Judges must be reminded that decisions are actions and the consequences that incur from those actions. Justice Sotomayer, you are new looking for your own judicial identity, imagine that you be at a Walmart escorted by government agents who, by the nature of their goverment powers, order you what you can have and not have in your shopping cart and when the check out occurs what prices Walmart can charge and what you will pay.
To my knowledge, protocol within the SCUSA precures clubbing, cliques, and caucus meeting while deferring court decisions so cracks within the group think are possible.
THE SOOTHSAYER
that is a good point, they might have forget of WHY THE PEOPLE WANT AND
WHAT THE PEOPLE ARE MADE OF, BECAUSE the judge have been projected to a place detach from the real happening in AMERICA, DO THEY KNOW FROM WHAT THE JUDGE GINSBERD SAID BEFORE ABOUT THE CONSTITUTION IT SEEM TO BE DOUBTFUL.; AND if they lost touch with the mainstream,
how can they be for the people in their decisions,
bye
The individual mandate was originally a republican idea. The idea that individuals should be compelled by legal mandate to buy certain elements of personal healthcare coverage originated with republicans, was put forward in legislation introduced by republicans, and was widely supported by republicans. This “unconstitutional” principle was even promoted by the Heritage Foundation.
@Greg:
Greg, who cares whose “idea” it was? It would have been just as wrong for a Republican congress, and a Republican president, to pass a law like this. And I would hope that I would be just as adamant about it’s unconstitutionality.
Wrong is wrong, Greg, no matter who does it.
@Greg: Now there you go again trying to find someone to blame other than the Democrats and 0-bama. Wrong my friend. 0-bama rammed this bill down our throats and the majority of Americans are against it. The last election cycle supported the anti obamacare sentiment, remember?? Hopefully the Supreme Court will shut down obamacare and America can get on with reforming health care in a manner by which all Americans can support.
@Comm0n Sense, #14:
There will be no future health care reform that all Americans will support, because reform that would be beneficial to the majority of all Americans will never be seen as being beneficial by the wealthiest and by powerful special interests. Reform beneficial to the majority would cost them money, and that they cannot abide.
Obamacare is the one best chance for meaningful health care reform. After decades of empty talk and political posturing, somebody has finally acted. Obama might as well have kicked a hornet nest. They don’t want to destroy him because he’s ineffective. They want to destroy him because he arrived with a clearly stated agenda, and has actually had the audacity to pursue it.
Republicans are already facing an uphill battle in 2012. It’s interesting that they think undoing health care reform will somehow work to their collective advantage in November. More likely it will just be one more thing added to the long list of things they’ve done their best to screw up.
GREG
many people who pay tax don’t like this imposition force on them, let them find their own vis a vis their own STATES WHO DON’T LIKE THIS ONE,
HOW CAN YOU SAY ANYTHING ABOUT IT, YOU DID NOT READ THE MULTIPLE PAGES, DID YOU.
@Greg: Greg, as usual I totally disagree with your position that 0-bamacare was the one best chance. To say that the only chance for health care reform is an unconstitutional, extremely poorly crafted, deceptive, and more expensive abomination was the best America can do tells me you have little faith in America. Then again the way you position your messiah and his socialist ways explains your position.
I believe America can reform healthcare in a bipartisan fashion. Republicans where totally shut out of the process when 0-bama took office with majorities in all branches of government. 0-bamacare was passed by the Democrats with NO support due to the exact reasons of cost, law, and deception we still see today in our Supreme Court. If you go back and review your history you will see that the last election cycle was NOT a mandate on 0-bamacare but rather a mandate to repeal it. How did the elections go for the Democrats who voted in favor? Oh yea, they all got ejected because of it. Thanks for the “Historic” win for America and the Republicans.
America CAN do better!!
@Comm0n Sense, #17:
For the most part republicans refused to participate in the process. Instead of offering anything that might have improved the final bill, they disingenuously proposed a series of unhelpful amendments designed to win favor with those opposed to the entire undertaking, or designed to sabotage the entire effort.
The bill is imperfect. There’s agreement about that even among those who supported it. That’s not what was important. What was important is that the log jam that held up health care reform for decades was effectively blown to bits, and a comprehensive reform bill was passed that will force politicians to deal with serious problems and inequities that no one had previously been able to touch.
The job now should be a bipartisan effort to deal with each of the imperfections in the bill. Instead, republicans have been frantically looking for some means to totally undo the first comprehensive reform bill ever passed, which would essentially put the log jam back into place. Then and only then, they assert, they will effectively deal with millions of uninsured Americans, with issues like preexisting conditions, with out of control costs, etc.
Anyone who doesn’t recognize that as total b.s. hasn’t been paying much attention to politics, to the cynical power of special interests, and to the apparent indifference to the plight of millions of Americans who have lacked access to affordable health care. Consider the sort of “reform” republicans accomplished in the recent past: They gave us Medicare Part D, with no effective mechanism for funding it, and with a specific restriction that forbade the Secretary of HHS from bargaining for lower prescription drug prices. That stroke of genius created a new unfunded entitlement almost guaranteed to rapidly run through Medicare funds and bankrupt the entire program, transferring untold billions from taxpayers to private special interests before it finally does so. It’s entirely typical of the sort of crack brained schemes they’re constantly coming up with.
These are the people we should trust to reform health care?
Maybe we should call in the Three Stooges to work on our plumbing.
@Greg: Greg are you really that dense or just drunk on 0-bamacare Kool Aid. Now you blame the Republicans for the mandate?? Tell me dear Greg which Republican voted for 0-bamacare?? This law was passed by Democrats. It’s noted as 0-bama’s greatest accomplishment. So the Democrats greatest accomplishment is an unconstitutional law!! Brilliant. To now blame Republicans for any part of this disaster is ridiculous and clearly demonstrates your lack of any unbiased opinion. I think it’s really a joke to watch try to sell that one.
@Greg: Greg, once again slowly. NO Republicans supported 0-bamacare so you can’t point hour puny finger at them. secondly, there is no 0-bamacare if the mandate is declared unconstitutional by the Supreme Court. So, as Republicans have been saying, 0-bamacare is unconstitutional, we do NOT support it, America does NOT support, and therefore health care reform is still an issue that has NOT been properly addressed by 0-bama. I would hope this helps but I doubt it. For you to somehow blame Republicans for an unconstitutional law that NONE of them voted in favor of is REDICULOUS BEYOND YOUR NORMAL MISGUIDED STANDARDS!!
If you read enough Supreme Court arguments you realize that each judge plays ”Devil’s Advocate,” with either side for various reasons.
I once read a case where the Justice was trying to remind an advocate of an important argument the lawyer had forgotten to include.
The Justice seemed to be against the man but his line of questionings served the purpose of reminding him and once he started rolling with the winning argument the Justice sat back and let him.
So, we shouldn’t conclude that – just because some of these Justices seemed to take an opposing view of ObamaCare during arguments – that they will also do the same in their written opinions.