Supreme Court ObamaCare Wrap-up!

Supreme Court ObamaCare Wrap-up!

It seems the individual mandate in ObamaCare is doomed. The question now is whether or not all of ObamaCare will be struck down. I originally doubted that it would be, but now I’m thinking it might be. One thing is for sure though, losing will not help the Democrats as many of them are trying to suggest.

● Thought One: Down she goes! The Supreme Court will strike down the individual mandate. Kennedy was considered the weak link for the conservative side but even he observed that ObamaCare “changes the relationship of the Federal government to the individual in a very fundamental way.” That’s lawyer speak for “unprecedented power grab.” This court will not sanction an unprecedented power grab. The mandate is toast.

● Thought Two: Incompetence. The MSM’s legal analysts should be fired for incompetence. When this lawsuit was first filed, they claimed it was “frivolous.” In legal parlance that means the arguments are so ludicrously wrong that no rational attorney could possibly make those arguments in good faith. Even as late as two days ago, these same “experts” predicted ObamaCare would win on a 7-2 vote. Now they’re despondent that ObamaCare will be beaten. To give you a sense of how wrong this is, it’s like an “expert” in aviation claiming that airplanes are too heavy to fly. . . after having flown to the interview on a Boeing. Everyone who claimed this was frivolous should be fired for incompetence.

● Thought Three: Incompetence (redux). Everyone now wants to blame the solicitor general for blowing this case. That’s wrong, and the “experts” know that. The Supreme Court does not base decisions of national significance on which side brought the better lawyer. All Verrilli’s incompetence means is that the court will do its own research into these issues. And don’t forget, “it’s own” in this case also means hundreds of legal briefs filed by friends of both sides (amicus curiae briefs). This case never hinged on the performance of either attorney. So don’t let liberals get away with pretending that the law should have been found valid if only Donald Verrilli weren’t such a moron. That is false and it’s meant to distract from the fact this law was an abuse of power.

● Thought Four: Severability. The hardest part of guessing Supreme Court decisions is guessing how far they will go. Right now, we have no way to know if the Supreme Court will strike down the entire law or just the individual mandate. They essentially have three choices: (1) strike the whole thing, (2) strike the mandate but leave the rest, or (3) strike the mandate and send the case back to the lower court to gather more evidence on what other parts also should be struck. Logic tells me, they will pick number three, but this court has proven to be bold.

Politically and legally speaking, it makes sense for the Supremes to strike the mandate and send the rest back to the lower court to gather evidence on which parts of the law rely on the mandate. Why? Because the court doesn’t like to decide things it doesn’t need to, and with the Republicans likely to control the House, Senate and Presidency after the election, the Supremes have the luxury of waiting to see how things go, i.e. Congress may do their dirty work. BUT. . . should Romney NOT win, then the 5-4 Court could end up a 4-5 Court. That fear may give this court an incentive to firmly decide as many things as possible right now -- hence, they are unexpectedly taking an affirmative action case next year.

Right now, the comments of the justices indicate they are leaning toward striking the entire thing. Scalia took the lead here and said that when you “take the heart out of the statute, the statute is gone.” His reasoning is simple: it distorts the congressional process for the court to pick and choose what survives. He also said it would be unrealistic to comb through the 2,700-page law to decide which parts were independent of the individual mandate. Liberal Justice Breyer actually echoed this when he asked the government, “What do you suggest we do? I mean, should we appoint a special master [to go through the law]?” He then placed the blame on the government for not specifically pointing out each provision which should stand. That’s usually a sign of a justice washing their hands of the case. I don’t believe Breyer will vote to strike the entire law, but this tells me he thinks the conservatives will and he is at peace with it.

Kennedy, who is viewed as the swing vote, also appears inclined to throw out the entire law. When Ginsburg said that the court should perform a “salvage job” rather than “a wrecking operation,” Kennedy retorted that doing surgery on the law would be “a more extreme exercise of judicial power.” And he said that “by reason of the court, we would have a new regime that Congress did not provide for, did not consider.” In other words, this would be court-created legislation and that is unacceptable.

The justice who concerns me a bit is Roberts. When it was argued that leaving the rest of the law in place would leave “a hollowed-out shell,” Roberts responded by saying, “but Congress would have passed part of that hollowed-out shell.” That could indicate a desire to leave the repeal up to Congress or at least get more information about Congress’s intent (i.e. send it back to the lower court for more evidence). That was the thrust of Ginsburg’s argument, that Congress must decide this, so they should leave the rest in place and let Congress fix it. But the thing about Ginsburg’s argument is that you can flip it on its head and make an equally valid argument. In other words, you can just as validly say that if Congress must make the decision, then the court should strike the law to give Congress a clean slate. That makes her argument worthless and if that’s all she’s got, then her side is out of ammo.

So while I really can’t tell you what will happen, it looks like it’s 4-4 with Roberts at bat, and I suspect he will strike the entire law because I’m not hearing a good reason not to.

As an aside, let me clarify the severability clause issue. People are claiming the absence of the severability clause means the whole law should be automatically struck down. That’s not accurate. That was the law 200 years ago -- if any portion of the law is bad, the whole thing gets struck down. That’s why people invented the severability clause, because it told courts that the legislature’s intent was to leave the rest of the law in place. Over time, the law morphed to the point that courts no longer automatically strike down whole laws. And the severability clause now is interpreted like this: if the clause is present, then the court must automatically uphold the rest of the law. But if the clause is absent, then the court MAY strike the entire law, IF the court finds that the unconstitutional piece is so vital to the intent of the legislation that the rest of the law could not continue without it -- there is no automatic striking. And we know the Supreme Court has accepted this interpretation of this missing severability clause here, because the arguments outlined above are the court working its way through the legal test of how integral this mandate is to the rest.

● Thought Five: Can’t win by losing. The Democrats are trying to put a brave face on this. They claim that losing would wipe the slate clean for the Democrats and would remove the toxic stain of ObamaCare which cost them the 2010 election. Wrong. Their ObamaCare abuse was so bad it spawned a new political party -- the Tea Party, and it led to an historic thrashing at the polls. Having the Supreme Court declare ObamaCare unconstitutional does NOT wipe away that stain anymore than being convicted of murder makes people forgive you for killing your wife. To the contrary, this will confirm to the public that the Democrats massively abused their power.

James Carville also claims a loss will help because once ObamaCare goes down, “health care costs are gonna escalate unbelievably.” Hardly. ObamaCare does nothing to restrain costs, so why would its death cause costs to rise? To the contrary, with the elimination of the taxes, requirements and restrictions imposed by ObamaCare, one would expect costs to go back down -- or more likely stay flat. Moreover, health rates are generally fixed for the year at the end of the year and won’t go up until after the election, so even if Carville is right, it won’t happen before the election. Nice try, idiot.

● Thought Six: Who are the ideologues? Finally, it’s fascinating that the left can simultaneously call the conservative justices “ideologues” as they admit that they don’t know which way three of the five justices will vote. At the same time, they ignore the fact the liberals made up their mind before they arrived and all spouted lockstep opinions. Who are the real ideologues?

It seems the individual mandate in ObamaCare is doomed. The question now is whether or not all of ObamaCare will be struck down. I originally doubted that it would be, but now I’m thinking it might be. One thing is for sure though, losing will not help the Democrats as many of them are trying to suggest.

● Thought One: Down she goes! The Supreme Court will strike down the individual mandate. Kennedy was considered the weak link for the conservative side but even he observed that ObamaCare “changes the relationship of the Federal government to the individual in a very fundamental way.” That’s lawyer speak for “unprecedented power grab.” This court will not sanction an unprecedented power grab. The mandate is toast.

● Thought Two: Incompetence. The MSM’s legal analysts should be fired for incompetence. When this lawsuit was first filed, they claimed it was “frivolous.” In legal parlance that means the arguments are so ludicrously wrong that no rational attorney could possibly make those arguments in good faith. Even as late as two days ago, these same “experts” predicted ObamaCare would win on a 7-2 vote. Now they’re despondent that ObamaCare will be beaten. To give you a sense of how wrong this is, it’s like an “expert” in aviation claiming that airplanes are too heavy to fly. . . after having flown to the interview on a Boeing. Everyone who claimed this was frivolous should be fired for incompetence.

● Thought Three: Incompetence (redux). Everyone now wants to blame the solicitor general for blowing this case. That’s wrong, and the “experts” know that. The Supreme Court does not base decisions of national significance on which side brought the better lawyer. All Verrilli’s incompetence means is that the court will do its own research into these issues. And don’t forget, “it’s own” in this case also means hundreds of legal briefs filed by friends of both sides (amicus curiae briefs). This case never hinged on the performance of either attorney. So don’t let liberals get away with pretending that the law should have been found valid if only Donald Verrilli weren’t such a moron. That is false and it’s meant to distract from the fact this law was an abuse of power.

● Thought Four: Severability. The hardest part of guessing Supreme Court decisions is guessing how far they will go. Right now, we have no way to know if the Supreme Court will strike down the entire law or just the individual mandate. They essentially have three choices: (1) strike the whole thing, (2) strike the mandate but leave the rest, or (3) strike the mandate and send the case back to the lower court to gather more evidence on what other parts also should be struck. Logic tells me, they will pick number three, but this court has proven to be bold.

Politically and legally speaking, it makes sense for the Supremes to strike the mandate and send the rest back to the lower court to gather evidence on which parts of the law rely on the mandate. Why? Because the court doesn’t like to decide things it doesn’t need to, and with the Republicans likely to control the House, Senate and Presidency after the election, the Supremes have the luxury of waiting to see how things go, i.e. Congress may do their dirty work. BUT. . . should Romney NOT win, then the 5-4 Court could end up a 4-5 Court. That fear may give this court an incentive to firmly decide as many things as possible right now -- hence, they are unexpectedly taking an affirmative action case next year.

Right now, the comments of the justices indicate they are leaning toward striking the entire thing. Scalia took the lead here and said that when you “take the heart out of the statute, the statute is gone.” His reasoning is simple: it distorts the congressional process for the court to pick and choose what survives. He also said it would be unrealistic to comb through the 2,700-page law to decide which parts were independent of the individual mandate. Liberal Justice Breyer actually echoed this when he asked the government, “What do you suggest we do? I mean, should we appoint a special master [to go through the law]?” He then placed the blame on the government for not specifically pointing out each provision which should stand. That’s usually a sign of a justice washing their hands of the case. I don’t believe Breyer will vote to strike the entire law, but this tells me he thinks the conservatives will and he is at peace with it.

Kennedy, who is viewed as the swing vote, also appears inclined to throw out the entire law. When Ginsburg said that the court should perform a “salvage job” rather than “a wrecking operation,” Kennedy retorted that doing surgery on the law would be “a more extreme exercise of judicial power.” And he said that “by reason of the court, we would have a new regime that Congress did not provide for, did not consider.” In other words, this would be court-created legislation and that is unacceptable.

The justice who concerns me a bit is Roberts. When it was argued that leaving the rest of the law in place would leave “a hollowed-out shell,” Roberts responded by saying, “but Congress would have passed part of that hollowed-out shell.” That could indicate a desire to leave the repeal up to Congress or at least get more information about Congress’s intent (i.e. send it back to the lower court for more evidence). That was the thrust of Ginsburg’s argument, that Congress must decide this, so they should leave the rest in place and let Congress fix it. But the thing about Ginsburg’s argument is that you can flip it on its head and make an equally valid argument. In other words, you can just as validly say that if Congress must make the decision, then the court should strike the law to give Congress a clean slate. That makes her argument worthless and if that’s all she’s got, then her side is out of ammo.

So while I really can’t tell you what will happen, it looks like it’s 4-4 with Roberts at bat, and I suspect he will strike the entire law because I’m not hearing a good reason not to.

As an aside, let me clarify the severability clause issue. People are claiming the absence of the severability clause means the whole law should be automatically struck down. That’s not accurate. That was the law 200 years ago -- if any portion of the law is bad, the whole thing gets struck down. That’s why people invented the severability clause, because it told courts that the legislature’s intent was to leave the rest of the law in place. Over time, the law morphed to the point that courts no longer automatically strike down whole laws. And the severability clause now is interpreted like this: if the clause is present, then the court must automatically uphold the rest of the law. But if the clause is absent, then the court MAY strike the entire law, IF the court finds that the unconstitutional piece is so vital to the intent of the legislation that the rest of the law could not continue without it -- there is no automatic striking. And we know the Supreme Court has accepted this interpretation of this missing severability clause here, because the arguments outlined above are the court working its way through the legal test of how integral this mandate is to the rest.

● Thought Five: Can’t win by losing. The Democrats are trying to put a brave face on this. They claim that losing would wipe the slate clean for the Democrats and would remove the toxic stain of ObamaCare which cost them the 2010 election. Wrong. Their ObamaCare abuse was so bad it spawned a new political party -- the Tea Party, and it led to an historic thrashing at the polls. Having the Supreme Court declare ObamaCare unconstitutional does NOT wipe away that stain anymore than being convicted of murder makes people forgive you for killing your wife. To the contrary, this will confirm to the public that the Democrats massively abused their power.

James Carville also claims a loss will help because once ObamaCare goes down, “health care costs are gonna escalate unbelievably.” Hardly. ObamaCare does nothing to restrain costs, so why would its death cause costs to rise? To the contrary, with the elimination of the taxes, requirements and restrictions imposed by ObamaCare, one would expect costs to go back down -- or more likely stay flat. Moreover, health rates are generally fixed for the year at the end of the year and won’t go up until after the election, so even if Carville is right, it won’t happen before the election. Nice try, idiot.

● Thought Six: Who are the ideologues? Finally, it’s fascinating that the left can simultaneously call the conservative justices “ideologues” as they admit that they don’t know which way three of the five justices will vote. At the same time, they ignore the fact the liberals made up their mind before they arrived and all spouted lockstep opinions. Who are the real ideologues?

Supreme Court ObamaCare Wrap-up!

View Detail

The “Dangers” Of Obamacare

The “Dangers” Of Obamacare

Obama’s Obamacare debacle continues. Not only did Obamacare rescue conservatism from disgrace, but its backlash gave us a Republican Congress. And its after effects are still coming. Indeed, even reliably liberal sources are finally noting that Obamacare may have problems. Now, in two weeks, the Supreme Court will hear the case, and all the indications are the court will strike down part of it. Let’s discuss!

In the past couple weeks, there have been a series of articles BY LEFTISTS pointing out that Obamacare may not be all it’s cracked up to be. They identify four “dangers”:

● Danger One: Obama made a big deal of promising that “if you like your current plan, you’ll be able to keep it.” Yet, according to a CBO report, under the best-case scenario, 3-5 million people will lose their current plans. Under the CBO’s worst-case scenario, this number could be 20 million people. That would be 12% of people who are currently insured.

Of course, the reality is that this will be much worse. For one thing, historically, government “worst-case scenarios” are almost always understated by a factor of five. That would mean 60% is a more likely number. And there are several reason to believe that’s the case here. The CBO scores these things using a static model, meaning they don’t take into account how people will change their behavior over time. Instead, the CBO just does the math based on how the world is today. Thus, they did not factor in the increasing costs of policies, nor did they factor in that once companies see their competitors gaining an advantage by dumping their healthcare plans, more companies will follow.

The left is trying to downplay this by saying that businesses can’t really dump their coverage without upsetting their employees -- an interesting argument for the left to make, as they regularly claim businesses don’t care about employees. But of course, this isn’t true. Employers do things for financial reasons, not sentimentality, and financially it will be stupid not to dump the healthcare plan onto the government.

● Danger Two: The Democrats promised Obamacare would reduce healthcare costs. Of course, it actually contained nothing to bring costs down, and costs have continued to soar. Recent polls show that 49% of people blame Obamacare for the rising cost of premiums! The left is whining that it’s unfair to blame Obamacare for this because Obamacare “wasn’t intended to bring down costs,” but that’s how they sold it. I guess they shouldn’t have lied?

● Danger Three: They are starting to realize the law will not pay for itself, and the cuts in Medicare which were supposed to finance it aren’t happening. Whoops. Bankruptcy, here we come.

● Danger Four: The Democrats bet heavily on the idea that “the more the public knows, the more they’ll like it.” But that’s not happening. Obamacare’s favorability sits around 41%. And the reason for this is obvious -- it hasn’t helped anyone, but its negative effects are already being seen everywhere: higher premiums, lost insurance, doctors quitting the business, higher taxes, etc. That’s the way the Democrats set it up to hide the true cost so the law could be passed. Now they are paying the price for that deception. Moreover, according to polls, in just one year, the number of people who know what the supposed benefits of Obamacare are (subsidies, can’t be turned down, etc.) has fallen by half. Basically, it’s now seen as all pain and no gain.

This is what the Democrats get for massaging the law and lying about it to get it passed. And now the law goes to the Supreme Court. In two weeks, the Court will hear the oral arguments in the case. They’ve scheduled an incredible SIX hours for oral argument over three days. They have not give a case this much time in 45 years. The implication is they plan to make a major decision, which bodes poorly for the Democrats, who will in all likelihood now lose the very thing they risked so much to pass.

Nevertheless, the left is trying to put on a brave face. Indeed, they are making all kinds of bizarre and contradictory points to explain why the various conservative justices might vote to keep Obamacare.

For example, the Washington Post argues that “Roberts is protective of the court’s reputation and sensitive to the perception that its decisions are politicized.” Thus,
he won’t want five Republican-appointed judges throwing out a law written by Democrats. Hardly. For one thing, if the Court cares about its reputation being apolitical, then it will do what it believes is correct about the law -- not what the Washington Post thinks needs to be done to please Democrats.

Moreover, this court has proven fearless at both making big decisions and making unpopular decisions. The left likes to claim that this is an “activist court” and to a degree they are right. This is not a court which respects the assertions of government that it has cart blanche power. Between this, the prior gun case, Citizens Union striking down campaign finance, and next year’s unexpected affirmative action case, this is clearly a court determined to start taking away the government’s power to control the rights the Constitution leaves to the people.

The left also argues that some of the other conservative justices might join the liberals because they have supported the use of the Commerce Clause to invade personal privacy before. Yeah, but... those were criminal cases, where conservatives have less love for the Constitution. Those also didn’t force anyone to take any affirmative actions, those laws only forbade people from doing things the Federal government wanted to make illegal. That’s a HUGE distinction.

It is interesting to note that the same leftists who are now predicting that anywhere from 1-3 of the conservative justices will jump ship are the same people who claimed that the lawsuit brought by the states was frivolous in the first place. Clearly, they had no idea what they were talking about then, and I expect they have no idea now. It seems clear to me that the Court will strike down the individual mandate, but not the rest, on a 5-4 vote.

Now here comes the part you won’t like. This COULD actually be bad for us. Here’s why. Because of the way conservatives have played the entire Obamacare debate, the public is outraged at the individual mandate, but oblivious to the rest. If the Supremes strike down the individual mandate, then the desire of the public to repeal the rest might fade. Thus, conservatives will need to pound away at the idea that the rest needs to go because it won’t work without the mandate.

On the other hand, this might actually make it easier to repeal and replace Obamacare because the public will already view the law as having been struck down by the Supremes. Thus, it shouldn’t be particularly controversial if Republicans start repealing the law’s parts piece by piece.

It’s hard to tell which way this will play. But no matter what happens, it is clear that Obamacare will continue to hurt the Democrats in November and possibly even the November after that.

Obama’s Obamacare debacle continues. Not only did Obamacare rescue conservatism from disgrace, but its backlash gave us a Republican Congress. And its after effects are still coming. Indeed, even reliably liberal sources are finally noting that Obamacare may have problems. Now, in two weeks, the Supreme Court will hear the case, and all the indications are the court will strike down part of it. Let’s discuss!

In the past couple weeks, there have been a series of articles BY LEFTISTS pointing out that Obamacare may not be all it’s cracked up to be. They identify four “dangers”:

● Danger One: Obama made a big deal of promising that “if you like your current plan, you’ll be able to keep it.” Yet, according to a CBO report, under the best-case scenario, 3-5 million people will lose their current plans. Under the CBO’s worst-case scenario, this number could be 20 million people. That would be 12% of people who are currently insured.

Of course, the reality is that this will be much worse. For one thing, historically, government “worst-case scenarios” are almost always understated by a factor of five. That would mean 60% is a more likely number. And there are several reason to believe that’s the case here. The CBO scores these things using a static model, meaning they don’t take into account how people will change their behavior over time. Instead, the CBO just does the math based on how the world is today. Thus, they did not factor in the increasing costs of policies, nor did they factor in that once companies see their competitors gaining an advantage by dumping their healthcare plans, more companies will follow.

The left is trying to downplay this by saying that businesses can’t really dump their coverage without upsetting their employees -- an interesting argument for the left to make, as they regularly claim businesses don’t care about employees. But of course, this isn’t true. Employers do things for financial reasons, not sentimentality, and financially it will be stupid not to dump the healthcare plan onto the government.

● Danger Two: The Democrats promised Obamacare would reduce healthcare costs. Of course, it actually contained nothing to bring costs down, and costs have continued to soar. Recent polls show that 49% of people blame Obamacare for the rising cost of premiums! The left is whining that it’s unfair to blame Obamacare for this because Obamacare “wasn’t intended to bring down costs,” but that’s how they sold it. I guess they shouldn’t have lied?

● Danger Three: They are starting to realize the law will not pay for itself, and the cuts in Medicare which were supposed to finance it aren’t happening. Whoops. Bankruptcy, here we come.

● Danger Four: The Democrats bet heavily on the idea that “the more the public knows, the more they’ll like it.” But that’s not happening. Obamacare’s favorability sits around 41%. And the reason for this is obvious -- it hasn’t helped anyone, but its negative effects are already being seen everywhere: higher premiums, lost insurance, doctors quitting the business, higher taxes, etc. That’s the way the Democrats set it up to hide the true cost so the law could be passed. Now they are paying the price for that deception. Moreover, according to polls, in just one year, the number of people who know what the supposed benefits of Obamacare are (subsidies, can’t be turned down, etc.) has fallen by half. Basically, it’s now seen as all pain and no gain.

This is what the Democrats get for massaging the law and lying about it to get it passed. And now the law goes to the Supreme Court. In two weeks, the Court will hear the oral arguments in the case. They’ve scheduled an incredible SIX hours for oral argument over three days. They have not give a case this much time in 45 years. The implication is they plan to make a major decision, which bodes poorly for the Democrats, who will in all likelihood now lose the very thing they risked so much to pass.

Nevertheless, the left is trying to put on a brave face. Indeed, they are making all kinds of bizarre and contradictory points to explain why the various conservative justices might vote to keep Obamacare.

For example, the Washington Post argues that “Roberts is protective of the court’s reputation and sensitive to the perception that its decisions are politicized.” Thus,
he won’t want five Republican-appointed judges throwing out a law written by Democrats. Hardly. For one thing, if the Court cares about its reputation being apolitical, then it will do what it believes is correct about the law -- not what the Washington Post thinks needs to be done to please Democrats.

Moreover, this court has proven fearless at both making big decisions and making unpopular decisions. The left likes to claim that this is an “activist court” and to a degree they are right. This is not a court which respects the assertions of government that it has cart blanche power. Between this, the prior gun case, Citizens Union striking down campaign finance, and next year’s unexpected affirmative action case, this is clearly a court determined to start taking away the government’s power to control the rights the Constitution leaves to the people.

The left also argues that some of the other conservative justices might join the liberals because they have supported the use of the Commerce Clause to invade personal privacy before. Yeah, but... those were criminal cases, where conservatives have less love for the Constitution. Those also didn’t force anyone to take any affirmative actions, those laws only forbade people from doing things the Federal government wanted to make illegal. That’s a HUGE distinction.

It is interesting to note that the same leftists who are now predicting that anywhere from 1-3 of the conservative justices will jump ship are the same people who claimed that the lawsuit brought by the states was frivolous in the first place. Clearly, they had no idea what they were talking about then, and I expect they have no idea now. It seems clear to me that the Court will strike down the individual mandate, but not the rest, on a 5-4 vote.

Now here comes the part you won’t like. This COULD actually be bad for us. Here’s why. Because of the way conservatives have played the entire Obamacare debate, the public is outraged at the individual mandate, but oblivious to the rest. If the Supremes strike down the individual mandate, then the desire of the public to repeal the rest might fade. Thus, conservatives will need to pound away at the idea that the rest needs to go because it won’t work without the mandate.

On the other hand, this might actually make it easier to repeal and replace Obamacare because the public will already view the law as having been struck down by the Supremes. Thus, it shouldn’t be particularly controversial if Republicans start repealing the law’s parts piece by piece.

It’s hard to tell which way this will play. But no matter what happens, it is clear that Obamacare will continue to hurt the Democrats in November and possibly even the November after that.

The “Dangers” Of Obamacare

View Detail