Thursday, May 13, 2010

Commentarama Right, Legal Experts Wrong. . . Again

You may recall that a number of states Attorneys General brought suits to stop ObamaCare. The number is now up to 20. And you may recall that all the “legal experts” laughed at these suits, claiming they were frivolous. And you may recall Commentarama pointing out how ridiculous it was to call these suits frivolous and pointing out how parts of these suits had significant legal merit. Guess what? It looks like the legal world is coming around to the Commentarama view.

In an article published in The New York Times two days ago, the mouthpiece of the left came up with this:

“Some legal scholars, including some who normally lean to the left, believe the states have identified the law’s weak spot and devised a credible theory for eviscerating it.”
Really? And here I thought all the “experts” had concluded not only that these suits could not win, but that they were “frivolous,” i.e. so obviously wrong that the courts should sanction anyone who brings such suits. How can this be? Are these experts fools? Or were they lying to support political positions?

In any event, the thinking now is that ObamaCare overstepped its bounds when it tried to regulate “inactivity”:
“The power of their argument lies in questioning whether Congress can regulate inactivity — in this case by levying a tax penalty on those who do not obtain health insurance. If so, they ask, what would theoretically prevent the government from mandating all manner of acts in the national interest, say regular exercise or buying an American car?”
Sound familiar? It should. We pointed this out to you weeks ago. The article then goes through the same cases and same analysis that we pointed out to you here: (click me).

First, it points out how the Supreme Court has allowed the Congress to use the Commerce Clause to stop locally grown marijuana, but that the Court then struck down two attempts to use that same logic to defend other expansions of the Commerce Clause. Finally, it points out that while the pro-ObamaCare people will argue that the effects of people not buying insurance will have an economic effect on the nation (the “cumulative effect” argument which we told the Court has already rejected), there is reason to believe the Court won’t buy that:
“Every decision you can make as a human being has an economic footprint — whether to procreate, whether to marry. To say that is enough for your behavior to be regulated transforms the Commerce Clause into an infinitely capacious font of power, whose exercise is only restricted by the Bill of Rights.”
Gee, who could have guessed that?! ;-)

You may now shower us with praise! Just kidding. But seriously, this is very good news for our country that even "legal experts" are starting to admit the flaws in ObamaCare. When even leftist legal scholars are seeing these defects, it’s a fairly sure bet that the same Supreme Court that has been drifting further and further into a re-recognition of federalism will use ObamaCare as a defining moment for the Court to plant the flag of federalism and revitalize our constitutional structure. And that will be a great day for America.


LawHawkSF said...

Andrew: And then we'll use the interstate commerce clause as it was intended, to regulate interstate commerce exclusively, to defeat California's economic war on Arizona. LOL

Tennessee Jed said...

Andrew - if this law gets challenged and eviscerated, I will kiss your feet!!! (figuratively and online of course.) Then I would crack open a Chateau Beaucastel and an Illusione Epernay to celebrate. Oh the humanty.

AndrewPrice said...

Lawhawk, I suspect Arizona will defeat California without our help because Arizona has a thriving economy, whereas California's economy seems to be based on transporting people and businesses out of California.

AndrewPrice said...

Jed, We'll see. Any decent lawyer will tell you that it's impossible to predict what a court will do, but you can come up with some pretty good guesses. And everything I know about this court and its prior cases tells me that they will strike down the requirement that people buy insurance. But until it happens, that's just a guess. . . but it's a guess that even the left is beginning to accept.

LawHawkSF said...

Andrew: I hope they're not leaving town on Muni. They'll never make it a full block without a collision or a fare hike.

Writer X said...

Bravo, Commentarama!

Just like reporting on those who SUPPORT the Arizona immigration bill, the MSM has been negligent (que surprise!) on reporting that 20 states have sued to stop ObamaCare. And may very well prevail.

Perhaps Obama should go back to making lame jokes off teleprompter. That seems to be what he does best.

AndrewPrice said...

Thanks Writer X!

You're right about the MSM. Somehow they seem to be able to report every single person opposed to Arizona, but not a single mention of all the polls that show close to 70% support nationwide for Arizona. They did a ton of stories on how frivolous these suits were but never mentioned that more and more states are joining them, and this was the only story I found that actually told the truth about the merits of the suits.

It's the same old story everytime. You have to really look for news that opposes the MSM's liberal-world view, but you can just sit back and be flooded with unsupported stories that support liberalism.

Individualist said...

Seems to me any time 20 of 50 states ban together to stop a government law that alone makes it "serious".

So how does Sotomayor and Kagan changes in the court help or hurt this?

AndrewPrice said...

Individualist, You're right. Any time a lot of states take the same action, that usually means they're on to something. States don't just file suit to see what happens.

Neither Sotomayor or Kagan can affect the outcome because they are replacing minority (liberal) votes. Thus, at worst, we are still looking at a 5-4 conservative majority. . . assuming everyone continues to vote the same as they have been.

That said, from what I've seen, Kagan actually seems to respect the Constitution (Drudge's headlines notwithstanding). IF that's the case, then we could be looking at a 6-3 decision instead of a 5-4, which would be even more significant. But, as I said the other day, nothing is sure with Kagan yet -- though the evidence seems to be that she respects the constitutional framework. We'll have to wait and see.

StanH said...

That sounds great! But as you say we’ll have to wait and see.

Not being a lawyer, but an observer. I know that the Supreme Court often refuses to hear cases as meritless, or no legal precedent. Another unwritten rule, Barrycare being created by two of the three branches of government, legislative and executive, they hesitate over stepping their bounds. Thus leaving the creation of laws to the voter. But, as we know, Barry and his leftist minions, forced this law through against the will of the American people. Will this make a difference…what are your thoughts? …I know you’re not a swami, but…

AndrewPrice said...

Stan, The Supreme Court tends not to hear cases that it thinks won't matter and it avoids cases that it thinks should be left to the political process (generally, but not always). But with this case being brought by the states against the Federal government, it is much more likely that the court will hear it because that's the kind of dispute that can't be solved politically.

AndrewPrice said...

P.S. Stan, I would be surprised if they didn't hear this one eventually.

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