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Feeling good about the Supreme Court so far.

By: barleycorn (Diary)  |  March 27th, 2012 at 01:33 PM  | 

RESIZE: AAA

I have been arguing over in this thread that I believe there is both a strong basis and considerable reason to hope for an overturning of Obamacare.  In coverage of today’s session the Washington Post provides quotes from four center-right justices that point in that direction. Clarence Thomas  rarely speaks during public sessions but he is viewed as the most likely justice to vote to overturn.

Justice Anthony M. Kennedy suggested that the 2010 Patient Protection and Affordable Care Act invoked a power “beyond what our cases” have indicated the Congress possesses to regulate interstate commerce. “Can you create commerce in order to regulate it?” he asked.

“So if I’m in any market at all, my failure to purchase subjects me to regulation?” Justice Antonin Scalia wanted to know. When Justice Ruth Bader Ginsburg observed that “the people who don’t participate in this market are making it much more expensive for those that do,” Scalia [responded],“You could say that about buying a car. If people don’t buy a car, the price [that car buyers] will pay will be more.”

Chief Justice John G. Roberts Jr. wondered if the government could require everyone to buy cellphones, since that would facilitate the government’s system for providing fire and ambulance services in emergencies.

Justice Samuel A. Alito Jr. brought up burial services. Aren’t people who don’t have burial insurance making a decision about how they are going to pay for their inevitable funeral, he asked.

Those are telling quotes. They don’t strike me as either misdirection or pro forma comments.  Scalia and Kennedy in particular seem to be very unimpressed by the government’s arguments.

COMMENTS

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  • Viet71

    The only question is, will it be 5-4 or 6-3?

    • acat

      I will be waiting until the decision is read.

      Further, what effect does this have on the 2012 elections?

      Does this energize the pro-Obama voters?

      Does this get seen as enough of a victory to let ‘conservatives’ relax? (Obama’s hot-mic comments in South Korea should illustrate why that’s a Bad Idea …)

      Mew

      • barleycorn

        This decision coming down just prior to the general election campaign has always been a wild card. The law of unintended consequences can be cruel.

        • JSobieski

          Nt

          • gracie

            and then he can try again…or future Dims can try again. Am I naive to think it would be settled law?

            Also IF we win on Obamacare, and we MUST, won’t it make it so much easier for Obama to win re-election? As acat implies…foreign policy. I fear most folks will let their guard down and we will be stuck with O’s economy killing taxes, energy, debt policies, EPA, not to mention his little habit of ignoring laws he does not like.

            I know I am preaching to the choir on number two but what about number one? Feel free to call me stupid just make me wrong!

          • gracie

            n/t

          • JSobieski

            So there won’t be Obamacare 2.0

          • gracie

            but still…gotta agree with you. Obamacare IS the most impt..

            Viet77 had no idea the Left did not like the mandate.

            GC…I have read even the “other side” is saying Obamacare will collapse without the mandate. I cannot give you a link but read it several places. Of course…getting rid of Obama fills my most wicked fantasies.

          • Viet71

            n/t

          • http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

            Even a strike down of the individual mandate would leave in tact enough of ObamaCare to destroy the private health insurance market within a few years. And while I think the odds of SCOTUS ruling the mandate unconstitutional, I see severance as likely from a conservative court that would seek to allow Congress to have as much of its will affirmed as possible.

            But yes, given that it is doubtful that Dems will again have a temporary super-majority with which to ram thru more socialism writ large, it could be argued that getting rid of ObamaCare NOW is more important that removing Obama

            EXCEPT that there is much more that needs to be repealed that ObamaDems passed the last 3 years and that needs to be repealed and fixed from the last 70+ years that has us over the tipping point on debt and Liberty and the economy, which we can’t repeal or change absent both houses and the White House….hence….it is VITAL to defeat Obama…and we will.

          • garfieldjl

            There is a pretty good chance that if the Supreme Court rules the individual mandate is unconstitutional, then there is a good chance they will say all of Obamacare is unconstitutional.

          • JSobieski

            Not a lot of legal analysis or citations in that argument.

            Not a lot of precedent either way in terms of can or can’t.

          • http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

            requiring that ins cos do things that do not require the money, there is no real necessary tie with the mandate money and besides, Congress creates all kinds of programs all the time that are paid for out of general revenues.

            The conservative judicial philosophy, in the absence of a severability or non-severability clause is to sever and thus maintain as much of congress’s will as possible.

          • aesthete

            “The conservative judicial philosophy, in the absence of a severability or non-severability clause is to sever and thus maintain as much of congress

          • http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

            http://online.wsj.com/article/SB10001424052702303816504577309641721233690.html?mod=djemBestOfTheWeb_h

          • garfieldjl

            The severability clause is typically put in bills so if one part is ruled unconstitutional that part can be stripped out of that law by the courts while the rest of it remains intact.

            The lack of such clause in Obamacare, gives the court grounds to toss all 2000+ pages because the unconstitutional part cannot be severed from the rest of the law in question.

          • snowshooze

            But i thought it also applied to the entire bill as it was set in stone.
            What I am taking about is the 1099 issue which was dropped because everyone hated it, and it would cost more to implement issueing 1099′s to every single vendor down to $600.00 volume per year than the effort was worth. . So they dropped it.
            That should have thrown the entire PPACA bill out lacking a severability clause in there because it changed it.
            So, I consider the bill already severed, and at this point, severed and uncontested. That is not good.

          • garfieldjl

            The 1099 issue was dealt with in congress with another piece of legislation.

            The courts aren’t supposed to be able to create legislation.

            If there there is no severability clause, it’s arguably an all or nothing situation. It is either 100% Constitutional or 100% unconstitutional.

            The Supreme Court can go that route because there is no severability clause.

          • snowshooze

            hy

          • garfieldjl

            The job of Congress is to create and pass laws it is not the job of the courts to do so.

            Congress can negate parts of Obamacare or any other legislation whenever because it is their job to do so.

            The Supreme Court’s job is upon receiving a case concerning a law, to review said law and whether or not said law is Constitutional or not.

            It is not the Supreme Court’s job to rewrite a law from scratch in order to make it Constitutional.

            A severability clause is usually in legislation to make it rather simple for the courts to scrap part of a piece of legislation without affecting the rest.

            Since Obamacare doesn’t have this, the Supreme Court has no guidelines available to scrap part of Obamacare, they would have to go through the entire 2700+ pages and decide how to make it constitutional, what is constitutional and what isn’t. They aren’t paid to write or rewrite legislation.

            So that’s why there is a good chance that if the individual mandate gets scrapped, they’ll pitch all of Obamacare.

          • snowshooze

            I guess we shall just have to wait and see at this point.
            It would be a big laugh if the SC came down with a scrap order next week rather than wait until June.

          • Scope

            in so many areas that Obamacare is just one of them.

            As to striking down just the mandate, it could create some real havoc. Insurance companies have already been mandated to cover those with pre-existing conditions. The only way they can survive is with the healthy participating, in order to keep the prices from going through the roof. If you don’t have to buy insurance until you are sick, there will be many people not participating until they have cancer or a heart attack. The insurance companies would be forced to go out of business, and what then? Single payer as the only option?

            The Republicans better dang well be writing a replacement bill as we speak that includes high deductibles, and HSA’s. The pre-existing condition mandate will have to be repealed very quickly. George Will had a column over the weekend where he said that the feds mandated the pre-existing clause, just so they could turn around and regulate it. That was much the same as what Scalia asked today in his questioning.

          • http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

            insurance industry even with the mandate, given how low are the penalties/tax/fine/whatever. That is the scheme, ie to eventually force us all to beg the government for a bandaid and everything else in health care.

          • JSobieski

            Obamacare formula:

            Force insurance to cover a lot of things
            Force insurance companies to cover pre-existing conditions
            Limit the ability of insurance companies to charge premiums

            Watch the private sector fail.

          • http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

            more later

      • Common_Cents

        and interpret based on constitution with removing personal bias is such a laugher. We go through the nomination process pretending that is even possible. I hope we learn a lesson to unabashedly pursue solid conservative justices at every opportunity in the future.

        The ends justify the means, many times w/ scotus as well. Look at affirmative action as we are told by scotus that it might only be needed for 20 more years. Huh? Isn’t something constitutional or not? Biased justices can find enough reasoning to back any decision, or just make up the reasoning. they are humans and susceptible to bias just like everyone else.

        It’s going to be tough to get this court to totally strike down obamacare and leave all those “poor victims” on their own. I’d be shocked if its struck down especially if it boils down to one justice breaking a log jam.

      • Viet71

        It will show them he’s a dummy, or worse.

        As for energizing the Leftist base, a lot of THOSE FOLKS hate the mandate. Check out Firedoglake (especially) or even (nowadays) Dkos.

        • acat

          At the time, the left Loved them some mandate .. because it meant they’d get to single-payer.

          Any thoughts on what changed, and on what their next putsch is?

          Mew

          • Viet71

            1. They see it as a giveaway to the insurance industry, which they hate.

            2. They feel sold out by Obama on single payer.

  • Lynn Otting

    what will the implications of the statement below do to Romney as the republican candidate?

    Congress understood that. It chose the means that will work, the means that it saw worked in the States and in the State of Massachusetts, and that — and that it had every reason to think would work on a national basis..(General Verrilli)

  • Scope

    Eric Bolling on Fox just brought up that excellent point. The only way you can be penalized is if you don’t have insurance, and you have a tax refund coming. They can withhold the amount you would owe, according to your income, from your refund. If you don’t get a refund, and if you don’t pay any bill they would send you, there is absolutely no recourse for non-payment. You can’t go to jail, they can’t put a lien on your property, and you can’t be penalized for non-payment of the penalty in any way. Ha, just like the liberals to pass a million thousand page bill that everyone can ignore. Much of the justices questioning yesterday was on what happens if the penalty isn’t paid. I think one of the justices asked the solicitor general yesterday if you would have a record as a law breaker for non-payment, and he answered no.

    This baby is going down, if for no other reason than because it is all but unenforceable.