Mar 27 2012

SCOTUS Pounds Foundation Of Obamacare

Published by at 2:09 pm under All General Discussions,Obamacare

Updates Below

News from today’s hearings on Obamacare at the Supreme Court of the United States (SCOTUS) indicate Obamacare took a pounding.  CNN’s Jeffrey Toobin was especially shaken:

According to CNN’s legal analyst Jeffrey Toobin, the arguments were “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,” Toobin just said on CNN.

Toobin added that that the Obama administration’s lawyer, U.S. Solicitor General Donald Verrelli, was unprepared for the attacks against the individual mandate.

“I don’t know why he had a bad day,” he said. “He is a good lawyer, he was a perfectly fine lawyer in the really sort of tangential argument yesterday. He was not ready for the answers for the conservative justices.”

That’s pretty bad news for Obamacare, and damn great news for America. Here’s another damning take:

Based on the questions posed to Paul Clement, the lead attorney for the state challengers to the individual mandate, it appears that the mandate is in trouble.  It is not clear whether it will be struck down, but the questions that the conservative Justices posed to Clement were not nearly as pressing as the ones they asked to Solicitor General Verrilli.  On top of that, Clement delivered a superb presentation in response to the more liberal Justices’ questions.

It looks like Team Obama was not prepared for a couple of things, including Justice Kennedy’s concerns on how Obamacare “changes the relationship between the individual and the government in a very fundamental way” – something Libertarian critics have been saying since day 1. It probably threw Verrelli off his game once he detected the tone of the room.

I have not seen this much hand wringing in quite a while, so it must have been something of a bomb shell.

Let’s hope it holds and Obamacare is thrown out (and ends this liberal, socialist madness for once and for all). Much more commentary over at Hot Air with Ed Morrissey.

Update 2: Oh wow – Verrelli admits not everyone will be required to comply with Obamacare!

However, in the Supreme Court on Monday, Justice Samuel Alito forced President Barack Obama’s solicitor general, Donald Verrilli, to admit that under Obamacare these free riders will not be eliminated despite the individual mandate.

For an elite group—including people eligible for Medicaid who don’t sign up for it and people whose health care expenses exceed 8 percent of their income—the Obamacare mandate is no mandate and the penalty is neither a penalty nor a tax because they are not required to pay it, period.

So Obamacare is not as they argue, something everyone MUST pay into in order to share the pain. Looks like that one admission could kill any reason for expanding government reach. Because once there are exceptions, the lobbyists run to Congress to expand the list of the exempted.

Update: Ouch! Some of the discussions were brutal:

USTICE SAMUEL ALITO: Do you think there is a, a market for burial services?

VERRILLI: For burial services?


VERRILLI: Yes, Justice Alito, I think there is.

JUSTICE ALITO: All right, suppose that you and I walked around downtown Washington at lunch hour and we found a couple of healthy young people and we stopped them and we said, “You know what you’re doing? You are financing your burial services right now because eventually you’re going to die, and somebody is going to have to pay for it, and if you don’t have burial insurance and you haven’t saved money for it, you’re going to shift the cost to somebody else.”

Isn’t that a very artificial way of talking about what somebody is doing?


JUSTICE KENNEDY: Could you help — help me with this. Assume for the moment — you may disagree. Assume for the moment that this is unprecedented, this is a step beyond what our cases have allowed, the affirmative duty to act to go into commerce. If that is so, do you not have a heavy burden of justification?

I understand that we must presume laws are constitutional, but, even so, when you are changing the relation of the individual to the government in this, what we can stipulate is, I think, a unique way, do you not have a heavy burden of justification to show authorization under the Constitution?

Looks like Verrelli got decimated.


38 responses so far

38 Responses to “SCOTUS Pounds Foundation Of Obamacare”

  1. kathie says:

    Governments have killed people who won’t do as they want, they have put them in jail, and they have pretended they don’t exist. In a democracy there are going to be those who will not take of themselves. We in this country have found a way to deal with many of them, we have charities, we have churches, we have kind people, we have a safety net that contributes all of our money to help out. It is a system that is not perfect, but it represents the greatest opportunity for the biggest number of people to take care of themselves that has ever been devised. Oh I pray, that these justices realize what a great system we have and will not change it!

  2. jan says:

    We have ever so slowly been going down the nanny state road. Many people seem unawares of it too, as they adapt to these government intrusions, accepting them one by one as ‘normal’ societal changes.

    This health care grab, though, is almost like a checkmate move by the government. If it is allowed to stand, the precedents established will be overwhelming for personal freedoms to stand as well. And, people, IMO, just don’t grasp the onerous by-products that will be created by the ACA’s tenacles being able to take hold and multiply.

    While I’m pleased to see the debate today appear to seriously challenge the fallacies of the President’s team of men, I only hope that, if the mandate is deemed unconstitutional, that the entire law will then be thrown out as well. In FL, Judge Vinson acted upon the lack of a severability clause to do just that. I hope that the SCOTUS will see it that way too. Because, if only the mandate is removed, it will most likely pave the way for a greater malignancy to grow, called the single payer option, once the insurance companies fail without the mandate to provide enough fiscal stability to survive.

    It’s a vicious cycle to consider…..

  3. Redteam says:

    Kathie, minor point, the USA is not a democracy. but your points are right on. As of today, the US government does not require any citizen to buy any single item. If insurance were to become the first, what would be second? As one justice suggested, burial insurance? what about a house? Which food items would become required and which would be prohibited? Suppose you don’t buy what is required and don’t have the money to pay a fine(penalty) would you be put in jail? I haven’t heard the answer to these questions, I don’t think Obama wants them being asked.

  4. kathie says:

    Redteam, you are correct, I should have said a Democratic Republic.

    There is an answer to if you don’t buy insurance or sign up for medicaid what happens? Nothing, you still will be treated in emergency rooms, just like now. So really the point is to get young bodies into the system to help support medical care for everyone, not to insure everybody. Those who don’t buy insurance now can still get away with not buying it under “Obamacare”.

  5. dhunter says:

    I hope one of the Justices brought up the fact that there are hundreds of waivers issued for this farce. If waivers are necesary and they are handed out like candy to a select group of the Presidents “friends” then this farce is nothing but a payoff to Unions and favored companies and reeks of corruption, bribery, and crony capitaism and such a corrupt system must be stopped before it is implemented.

    I am encouraged but not optomistic as for far too long conservatives have been guided by what is good and true and right and by the constitution and liberals have no use for any of the above, for them the ends justify the burning down of America.

  6. Layman says:

    I’m hoping that 6 Justices will find the mandate unconstitutional, but I’m not hopeful. More than likely it will go 5-4 one way or the other.

    The fact that there are 4 votes on the court that are willing to allow the Federal Government to usurp as much power as they want should scare the hell out of all of us. If for no other reason we should all join together and do our absolute best to defeat Obama, lest he make one more liberal appointment.

  7. dhunter says:

    I agree Layman, but Sotomayer and Kagan probably also Ginsburg should have never been confirmed, especially the first two, The Repunks fight like sissies and do not take their responsibilities seriously. The rats lie cheat and steal their way to power and the Repunks like McCain, Boehner and McConnell fight by Marcus of Queensbury rules. We will always lose as long as our Repunks refuse to see the enemy as an enemy out to destroy our constitution and our country.
    I for one am ready to abandon the Repunk Party and go for a conservative one.

  8. Redteam says:

    “I for one am ready to abandon the Repunk Party and go for a conservative one.”

    dhunter, a lot of us are, but there is none, unfortunately.

    Layman, you must have gotten where you are going and moderated. I agree 100% with what you said above.

  9. oneal lane says:

    If this law is allowed to stand, I think we should have nationwide boycotts and protests. Next year we should, in mass, refuse to pay the annual tax to IRS etc. Another phase of Tea Party expression. As a nation, even if the Supremes say its Constitutional, if we don’t want it, we can eliminate it, but the population must have the will. Power is supposed to originate from the consent of the governed, not the whims of the State.

    Of course we could save ourselves all of that and just vote in a Republican Pres, Senate and keep the house, presuming, and that may be, that they would repeal this disaster.

  10. oneal lane says:

    Obamacare passed and the Tea Party appeared and flexed its muscle during the legislative process. Unfortunately, the Democrats we able to muscle the law through in spite.

    Aside of the 2010 election, the Tea Party has been quiet and on the sidelines, waiting for our Republican house to strangle Obamacare to death financially. Well all those promises to kill it by “defunding” it we empty promises. We have sat by quietly, we waited, while this malignant force has entrenched itself. Now we await the SCOTUS decision, which at best can only strangle part of its funding. If the “individual mandate” fails Obamacare will actually only reconfigure and actually grow stronger as the Federal Government finds alternate was to fund.

    The solution is total abolition of Obamacare, nothing less. I imagine we will await the Election and if Romney will actually kill his own, but I have a hunch we are waiting a little too long and our hopes are misplaced.

    The Tea Party needs to get back on the streets this summer and peacefully flex it’s political muscle. This Fall may be too late.

  11. kathie says:

    Honestly, the Democrats need hormone therapy!

  12. jan says:

    Maybe someone here can answer this question:

    Why is there even debate about whether the entire ACA should go down if the mandate is deemed unconstitutional?

    There is no severability clause in the bill. What I’ve heard is that an earlier version of the bill did contain one. But, that the final one deliberately took it out. So, without this clause, doesn’t the entire bill automatically go down if one part, the most important part, is eliminated by the courts?

  13. Layman says:

    Jan: Your question is a good one. Without a severability clause the entire bill will be null and void – unless the Court specifically rules otherwise. So some of the libs on the Court could (in theory) make a deal, “I’ll go along with your ruling declaring the individual mandate unconstitutional if you’ll agree that this ruling only applies to that clause and not the entire bill.”

  14. Layman says:

    Roberts might even try to broker such a deal so he can get 6-8 votes in favor. His rationale might be that since the entire thing is going to have to go back to the Congress anyway to be fixed, he might as well put together a really strong majority opinion.

  15. WWS says:

    Observation today from Justice Kennedy, the most likely swing vote in the case: Taking out just one part (the mandate) would be more extreme than striking the whole bill, because it is such an essential element. Very strong argument for repeal of the entire thing.

    This has been so much fun, watching Scalia, Roberts, and Kennedy making the legal arguments that I have been making for 2 years now! And I have managed to convince every liberal lawyer that I know that yes, it is indeed unconstitutional. Liberals are so used to thinking they are absolutely right that they never even listen to the arguments from the other side. That’s almost certainly why Obama’s solicitor general got his head handed to him on a platter. When they are forced into the light of day and forced to look at reality, the liberal position falls to pieces.

    And I have loved how for 2 years now tools like Toobin on CNN have been saying that the bill is “unquestionably” constitutional, and that it was a “fringe view” to think it could be overturned.

    OOPS! 3 days of Supreme Court arguments, and it looks like Pelosi and Obama had the “Fringe View” after all! I love it when reality slaps fools up side the head this way.

  16. Redteam says:

    “And I have managed to convince every liberal lawyer that I know that yes, it is indeed unconstitutional. Liberals are so used to thinking they are absolutely right”

    What? you’re not a liberal? who woulda thunk…….

  17. jan says:

    Thanks Layman and WWS for your responses.

    In weighing the arguments these past three days, on various aspects of the ACA, I am encouraged by some of the challenges given by conservative, and even liberal Scotus. I certainly hope, though, that their overt questioning of this lame law means something more than giving good legal theater to the public.

  18. WWS says:

    If you looked at what the justices said, you can tell that even the liberal members were despondent about hanging on to the mandate. But it all comes down to Kennedy, he’s the swing vote between the two sides. But given his questions, I think he’s decided he can’t support the mandate, and that it’s better to throw out the entire law instead of just one part of it.

  19. Redteam says:

    I think so also. Most of the statements seem to indicate that they don’t want to have to go through 2700 pages and decide what to leave in or take out. And since the Libs were not smart enough to include a severability clause( actually they dropped it so they could use an unconventional method of getting it passed) the justices will likely take the easy out and just tell them they’re gonna have to start over. Actually, I think a number like 7-2 is possible because some of the Justices aren’t gonna want to look dumb. (some don’t care).
    This may actually be one great moment when Justices actually put the country ahead of ideology. (at least we can hope)

  20. WWS says:

    I have little hope for any of the 4 liberals – Kagan is a hardcore idealogue who’s never had an original thought in her life. She’s a good Stalinist who takes dictation from the hard left in every ruling she’s ever made. Ginsburg is an intellectual, but she’s also the past head of the ACLU, and as such has always voted reliably hard left. Sotomayer actually surprised me with a few intelligent questions seeping out of her “wise latina” persona – who knows, when someone makes it to that lifetime appointment they start thinking about how they will go down in history personally, and always being on the losing side is no fun. (this has always driven supposedly right leaning justices to the left in the past, but it would a nice turn to see it happen to Sotomayer) But that’s just a possibility, not something I’d put money on yet.

    And Breyer – as Ace said on his blog yesterday, Breyer looked completely butthurt when he was trying to claim that the Federal Govm’t would NEVER threaten to cut off all funds from a State that didn’t obey its dictates, and then he found out that Big Sis Napolitano has already done exactly that. The fact that he had no clue that this had already happened is a good look into Breyer’s state of mind, and how he is so deep into the cloud-cuckoo liberal worldview that he doesn’t even have any idea what’s going on in the country today.

    Yeah, maybe Breyer will use this as an opportunity to change his mind, but I’m betting that he’ll just pull his head even more tightly up into his ass than it is already.

    I’d bet on 5-4, but *maybe* 6-3 if Sotomayer is actually smart enough to realize that this would make her reputation as a serious jurist. (again, I’m not convinced she’s that smart)

    Scalia, Roberts, Thomas, Alito – those are the only Justices that the Constitution can count on for defense. Justice Anthony Kennedy is the Prince Hamlet of SC Jurisprudence today – “To Be… (conservative) or To Be… (liberal) That Is the Question! (which he asks himself when he gets up every morning)

    Monday, Wednesday, Friday, it’s one. Tuesday, Thursday, Saturday, it’s the other. Sunday he sleeps in.

    And that’s why current Constitutional Law is pretty much whatever Justice Anthony Kennedy says it is, and will stay that way as long as the Court has its current makeup. 5 votes are needed for a winning position, and Kennedy is the 5th vote on every issue.