So, is the Obama Administration admitting ObamaCare/ObamaTax is unconstitutional?

July 5, 2012

Via the Washington Examiner’s Byron York:

In an interview on CNN Thursday morning, Obama campaign spokesman Ben LaBolt said that President Obama disagrees with the Supreme Court’s ruling that the individual mandate in Obamacare is a tax.

Anchor Soledad O’Brien asked LaBolt: “His spokesman…said it’s a penalty. The Supreme Court has said it’s a tax. What does he believe?”

“That it’s a penalty,” LaBolt answered.  “You saw our arguments before the Supreme Court…”

“So then he disagrees with the Supreme Court decision that says it’s now a tax?” O’Brien asked.

“That’s right,” said LaBolt.  “He said that it’s a penalty.  You saw our arguments before the Court.”

So, since the dissent ruled that what walked like a duck was a duck and that a penalty that penalized was really a penalty and never a tax, and therefore the bill was unconstitutional, does this mean that the president’s team and, by extension, the president, himself, all agree with Justices Scalia, Alito, Kennedy, and Thomas?

In once sense, it doesn’t matter, because the Court has spoken (“The duck that walks like a duck can be considered a goose for constitutional purposes.”)  and we now must settle the matter politically. Okay, fine.

On the other hand, it’s going to be a lot of fun from now until November poking Obamabots with the the sharp stick labeled “It’s a TAX!!” and watching them squirm as they try to avoid it.

Hey, it’s going to be a long, hard campaign; we need some comic relief, after all.

(Crossposted at Sister Toldjah)


(video) #ObamaCare and the Roberts ruling: a needed pep-talk

July 2, 2012

Discouraging, wasn’t it? Last week, when the Supreme Court’s exercise in pretzel logic ruling in Sebelius came out and shocked everyone (pro or anti-ObamaCare), my blog-buddy ST took to calling me an optimist, because I was telling anyone who would listen that the fight wasn’t over, that we could still win, that the fight had only just started.

And yet it’s hard not to be discouraged in the face of a Congress that rams a horrible bill down our throats via anti-constitutional means, and then has it saved by a Justice –supposedly one of ours– who rewrites the statute in order to save it, effectively telling the rest of us that our opinions on what is constitutional — what is plainly right– don’t matter.

So, late at night, empty martini glass in hand, even I felt the pangs of despair.

Enter Coach Whittle, who isn’t having any of it:

Let’s turn 2012 into such a landslide, the Democrats look back on the Great Shellacking of 2010 as a golden age.

Game on.

(Crossposted at Sister Toldjah)


#ObamaCare — Sources: the Chief Justice changed his mind

July 1, 2012

There had been speculation in the wake of last week’s surprising Supreme Court ruling in Sebelius (the ObamaCare case) that the joint, scathing dissent had originally been the majority opinion, but that Chief Justice Roberts then changed his mind and upheld the statute by effectively rewriting it as a tax.

Now, apparently, we have some confirmation. At CBS News, Jan Crawford learns from two anonymous sources how the debates in chambers went down. Here’s a key section:

On this point – Congress’ commerce power – Roberts agreed. In the Court’s private conference immediately after the arguments, he was aligned with the four conservatives to strike down the mandate.

Roberts was less clear on whether that also meant the rest of the law must fall, the source said. The other four conservatives believed that the mandate could not be lopped off from the rest of the law and that, since one key part was unconstitutional, the entire law must be struck down.

Because Roberts was the most senior justice in the majority to strike down the mandate, he got to choose which justice would write the Court’s historic decision. He kept it for himself.

Over the next six weeks, as Roberts began to craft the decision striking down the mandate, the external pressure began to grow. Roberts almost certainly was aware of it. 

Some of the conservatives, such as Justice Clarence Thomas, deliberately avoid news articles on the Court when issues are pending (and avoid some publications altogether, such as The New York Times). They’ve explained that they don’t want to be influenced by outside opinion or feel pressure from outlets that are perceived as liberal.

But Roberts pays attention to media coverage. As Chief Justice, he is keenly aware of his leadership role on the Court, and he also is sensitive to how the Court is perceived by the public.

There were countless news articles in May warning of damage to the Court – and to Roberts’ reputation – if the Court were to strike down the mandate. Leading politicians, including the President himself, had expressed confidence the mandate would be upheld.

Some even suggested that if Roberts struck down the mandate, it would prove he had been deceitful during his confirmation hearings, when he explained a philosophy of judicial restraint.

It was around this time that it also became clear to the conservative justices that Roberts was, as one put it, “wobbly,” the sources said.

Then began a long process in which the conservative justices –especially Kennedy, who saw this as a liberty and federalism issue– tried to bring Roberts back to their side. It didn’t work, so, when the Chief Justice filed his opinion on June 1st, the four dissenters wrote their opinion jointly and, in an unusual move, didn’t join Roberts in concurring with those parst of his decision, relating to the Commerce and Necessary and Proper clauses, with which they agreed. Instead, their dissent was wholly separate and did not mention Roberts’ opinion at all, indicating they wanted no part of it and, perhaps, contempt for what he had done.

Read the whole thing; it’s fascinating. Also have a look at this related piece by Avik Roy.

If it’s true that Roberts responded to pressure from the liberal media, then that indicates a sad lack of spine on his part, but not something unheard of among conservative justices in DC. When a conservative moves toward the liberal end of the scale, it’s called “growing in office” and they’re praised for it. (Never when a justice goes the other way, though.) And it’s happened a few times. Perhaps they’re afraid of being cut off from the best cocktail parties.

In fairness, though, Crawford cites other sources who deny social or political pressure influenced Roberts’ thinking:

It is not known why Roberts changed his view on the mandate and decided to uphold the law. At least one conservative justice tried to get him to explain it, but was unsatisfied with the response, according to a source with knowledge of the conversation.

Some informed observers outside the Court flatly reject the idea that Roberts buckled to liberal pressure, or was stared down by the President. They instead believe that Roberts realized the historical consequences of a ruling striking down the landmark health care law. There was no doctrinal background for the Court to fall back on – nothing in prior Supreme Court cases – to say the individual mandate crossed a constitutional line.

If Roberts was afraid to strike down the mandate because of a lack of precedent, then he’s dead wrong. I refer the reader to United States v. Butler and Schechter Poultry, both of which struck down crucial pillars of the New Deal. In the latter case, Schechter undid the National Industrial Recovery Act, which was at least as sweeping a power grab as ObamaCare. While neither dealt with a mandate, they still provide precedents for striking down major legislation.

And on general constitutional grounds, our national charter specifically envisions a government of defined, limited, and divided powers, with those not assigned to the federal government being reserved to the states and the people. On that alone, the mandate was such a violation of original intent and such an intrusion into those areas left to the states and the people that there was no reason not to overturn it.

What should have happened? Roberts should have stuck with his original opinion, joined the majority in overturning the whole law, and then sent it back to Congress with a note saying “If you want to do this, it has to be as a tax.”

It was the only way to properly handle this case.

If the thrust of this and other articles is true, that Roberts was concerned about the Court overreaching and thereby damaging its reputation, then he achieved the opposite. This display of weakness that lead him to abuse the “fairly possible” doctrine of jurisprudence and to then legislate from the bench to rewrite the mandate as a tax damages the Court’s reputation, as well as that of the Chief Justice, himself.

EDIT: Rewrote the final paragraph a bit to be more clear.

UPDATE: Both Moe Lane and Jazz Shaw caution against putting too much stock into anonymous sources, particularly when the story seems to be aimed at demoralizing conservatives. It’s a good thing to keep in mind.

(Crossposted at Sister Toldjah)


#ObamaCare : The fight has only just started

June 28, 2012

Leviathan upheld

Okay, fine. The Supreme Court has ruled (1) ObamaCare to be constitutional, even if it had to do so in a bizarre manner by declaring the mandate a tax and thus within Congress’ taxation powers, even though the government never made that argument and President Obama swore up and down it wasn’t a tax. So be it.

But this fight isn’t over; it’s only just started.

The fight over ObamaCare has never been just about what’s allowed under the Constitution or some spurious notion of a “right” to health care. At the core is a conflict of visions over the nature of government and the relation of citizens to that government: Is it a federal government of limited, specific powers and a freeborn citizenry with inherent rights that cannot be revoked, or is it a paternalistic State of unlimited power, with citizens reduced to wards?

In the end, ObamaCare is a political question of the purest, most basic kind: What is the nature of our polity?

And that is why the fight has only just begun. The Court has thrown this back into the political arena, and there is an election coming. It is now imperative that we not only hold the House, but win the Senate with a good majority and win the presidency. It is up to us to make sure the Republicans win, that conservatives form as large a bloc as possible, and that we then hold their and President Romney’s feet to the fire.

Nothing but full repeal will suffice. Nothing.

If there are demonstrations against ObamaCare — be there. Make the demonstrations of 2010 look tiny by comparison. Let your congresscritters know in no uncertain terms you demand repeal. The vast majority of the public hates ObamaCare; make sure the public’s agents in Washington know that. This is a political battle, but we cannot win if we are not engaged.

And I am convinced we can win. I refuse to believe otherwise.

I’ll close with a statement from Senator Rand Paul, who sums up what I believe quite nicely:

“Just because a couple people on the Supreme Court declare something to be ‘constitutional’ does not make it so. The whole thing remains unconstitutional. While the court may have erroneously come to the conclusion that the law is allowable, it certainly does nothing to make this mandate or government takeover of our health care right,” Sen. Paul said.

“Obamacare is wrong for Americans. It will destroy our health care system. This now means we fight every hour, every day until November to elect a new President and a new Senate to repeal Obamacare,” he continued. 

Paul is right. The court makes errors all the time. (2) It is now up to us to fix this one.

I’m giving all you reading this just this one day to wail, rage, and gnash your teeth. Go ahead, get it out of your system. Curse the Court, curse the government, and cry out to the heavens, themselves.

Then, tomorrow, buck up, square up, and put on a steely gaze.

Because tomorrow the fight begins anew.

PS: Romney 2012

PPS: May I suggest it’s time for the Bill of Federalism?

RELATED: J. Christian Adams on The Good, the Bad, and the Ugly in today’s decision. Erick Erickson on why he’s not down on John Roberts. Jay Cost — “What did the SCOTUS just do?

Footnotes:
(1) Something I never expected — Roberts siding with the majority, and the “Great Squish” Kennedy becoming my hero for declaring the whole act unconstitutional. What a strange world.
(2) Dred Scott. Plessy v Ferguson. The Slaughterhouse Cases. Buck v Bell. Korematsu. Wickard v Filburn. Roe v Wade. Kelo. And those are just off the top of my head. The Supreme Court regularly makes bad decisions; there is nothing sacred or infallible about their rulings. They are not set in stone for all time.

(Crossposted at Sister Toldjah)


How to undo ObamaCare? A problem of philosophy

April 2, 2012

There’s an interesting article at The Weekly Standard, by Jeffrey Anderson, looking at the difficulties the Supreme Court faces as it decides what to do about ObamaCare. As Anderson describes it, there are five choices:

  1. Upholding the law in its entirety;
  2. Minimally overturning it by striking down just the individual mandate;
  3. Go a little further by overturning the mandate, plus the closely related “community rating” and “guaranteed issue” clauses;
  4. Go through the law page by page deciding which part survives and which is overturned;
  5. Voiding the whole law.

Obviously the first is unacceptable to anyone who cares a whit about the Constitution and the principles on which it was founded. It’s also, thankfully, the least likely result if the questions asked by the Justices during the three days of the hearings are any indication.

But options 2-5 pose problems for conservative justice inclined to overturn the mandate: When dealing with a law this huge in both size and scope, which approach best hews to the principles of judicial restraint/judicial modesty, while still adhering to the Constitution? Options 2-4 pose a couple of problems. The first is that, by picking and choosing among the various parts of the bill, the Court may well leave behind a clanking wreck that does even more harm. The other is that, in doing so, especially in the absence of a severability clause (1), the COurt would wind up acting like an unelected super-legislature and usurping the roll of the elected Congress, something that should give any constitutionalist serious pause. As Anderson points out, none of these choices (except the first) are clear-cut and without question.

My own preference to to void the whole bill; it cannot work without the individual mandate, which itself is clearly unconstitutional. And policy decisions about health-care reform, which is what choices 2-4 amount to, are the duty of the elected legislature, not the Court.

But even these arguments raise a deeper issue; the Court would not find itself confronting these issues if not for the progressive penchant for comprehensive legislation, one bill “to bind them all.” Anderson sums it up neatly:

But we shouldn’t miss the larger point here. The predicament in which the Court finds itself is plainly a product of President Obama and his party’s preference for massive, unwieldy, impossibly complicated legislation—the kind that you have to pass first to “find out what is in it.” Such legislation, as the oral arguments revealed, does not fit within our system of limited government. That’s because, as Charles Kesler has observed, Obamacare violates the basic notion of law in a free society. Kesler writes, “Sometimes the most obvious derangements of our politics are staring us in the face but we don’t see them”—like “calling this voluminous monstrosity a bill. Can you have a bill, a single law, that is almost 3,000 pages long? In the old days, that would have constituted a whole code of laws.”

In other words, it’s not just Obamacare that must go, but rather the whole liberal and progressive notion of “comprehensive” legislation for a nation of 300 million people. Obamacare is the epitome of that confidence in central planning by experts. Whether the Court strikes down Obamacare, or President Obama is defeated and Obamacare is repealed, or the Court strikes down part of Obamacare and a new president and Congress repeal the rest, last week’s historic hearings have made one thing clearer than ever: Attempts at “comprehensive” legislation compromise the very notion of limited government, in which the people’s representatives try to accomplish attainable goals in a free society. Comprehensive legislation is what happens when you have unlimited government. It is that effort, and the attitude underlying it, that need to be repudiated—by the Court and, more important, by the voters this November.

(Emphasis added.)

And that points a way forward for conservatives in the coming months: not only concentrating on sending Obama off into retirement , but electing as many limited-government conservatives as possible to Congress who understand a principle related to judicial modesty, but rarely mentioned — legislative modesty. (2) That is, recognizing what the federal government’s proper role is and doing only enough to fulfill that role, not trying to solve every problem (3) that comes down the pike when they’re better left to the states or the people.

Right now, we’re seeing what havoc  legislative arrogance can wreak. It’s time to put a stop to it before the harm is incurable. As Marco Rubio said, “If we don’t win this election in November — and we get four more years of Barack Obama — I don’t know what that means … But I know it ain’t good.”

He was speaking of Obama, of course, but it applies as much to the progressive influence on Congress.

Footnotes:
(1) Severability is a clause Congress usually inserts to allow the courts to strike down provisions of a law without having to kill the whole thing. There was such a clause in an early draft of the bill, but it was removed, indicating the Democrats were betting the Court wouldn’t strike down the whole law because there was no severability. I’m beginning to think they’ll regret that.
(2) Hence Operation Counterwight.
(3) Or any not-problem, something that isn’t their business, but lets them pander to the voters. Such as the BCS.

(Crossposted at Sister Toldjah)


Quote of the evening, Hope and Change Edition

March 31, 2012

From Abe Greenwald:

There are all sorts of ways to have a bad political week, and most don’t involve secretly colluding with the Kremlin and watching your signature policy initiative deliquesce at the Supreme Court.

“Deliquesce.” Abe’s obviously a H.P. Lovecraft fan. We approve.


Far be it from me to question Justice Breyer’s competence

March 29, 2012

But I get the impression he doesn’t do his research:

I was listening to the tape-delayed Obamacare oral arguments in the car Tuesday when I first heard Justice Breyer’s Commerce Clause diatribe, and I meant to post something when I got home. But after making dinner and putting the kids to bed, I forgot.

Until today, that is, when I read Jeffrey Anderson’s account of “Breyer’s Missteps.” I think Jeffrey is far too generous to Breyer. Here is a fuller transcript of Breyer’s outburst…

(…)

Breyer alludes to four Supreme Court cases. And he manages to botch the key facts of the case in every single one of them. Let’s start at the top:

“That’s the national bank, which was created out of nothing to create other commerce out of nothing.”

This is a reference to McCulloch v. Maryland, in which the Court upheld Congress’ ability to create the Second Bank of the United States. But, as Paul Clement pointed out in oral argument, Chief Justice John Marshall found that Congress’ power to create the bank came from the Necessary and Proper Clause, not the Commerce Clause as Breyer suggests. Furthermore, Congress did not compel individuals to deposit money in the bank, only that Congress could create it in order to better manage its financial affairs.

Be sure to read the rest. If that’s the quality of argument coming from the progressive side of the bench, the ObamaCare law is not long for this world.


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