Thursday, March 29, 2012

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?

95 comments:

Tennessee Jed said...

great analysis. Thanks, Andrew. While we have been fooled before, it certainly seems the mandate is gone. My favorite comment was Scalia's about how tough it is to take the heart from a bill and leave the rest. I wonder why bother to have lawyers argue a case. I guess so they can ask questions. Who knows, somebody might be impresses by a point brought up in oral argument. I've never seen television go crazy like this before.

Tennessee Jed said...

Oh, and loved your comment about the ideologues. Only conservatives are ideologues. Liberals are just great minds.

Tennessee Jed said...

I keep thinking of stuff. Wouldn't it be great if the decision to strike down the whole effen law came on the 100th anniversary of Titanic? Don't know if that is too soon or not, but it would be ironic.

Joel Farnham said...

Thank you for the wrap up. Even with the play by play by the punditry, I really didn't understand what was going on except when liberals started to lament.

I am starting to believe that ObamaCare is going away. If Roberts is the key, then it will go away.

Carville is just trying to keep the faith and induce others to keep the faith. He isn't stupid. He knows they are in deep doo-doo.

T-Rav said...

I personally find it hilarious that some liberals were expecting Scalia, of all people, would wind up voting to uphold the mandate and everything else. Really? Scalia? The justice many on the Left have denigrated as "Clarence Thomas' puppet'?? Talk about your wishcasting.

Tennessee Jed said...

one more thought . . . this one about Carville. Republicans must be ready to hit back hard when the left claims that the striking down of Obamacare is what is causing health care costs to rise. Obviously, the C.B.O. re-look at the cost of that package is a good place to start, but we know the left claims (and gets away with) lots of ridiculous claims. Ryan, whether as a congressman or V.P. candidate is really good at doing that.

Joel Farnham said...

When are the accusations of racism going to start?

Farnham's Law = When liberals have no other arguments for or against a subject, accusations of racism come out.

Tennessee Jed said...

Farnham's Law is absolutely correct with one corollary: depending on how panicky liberals are, they may even trot out the racism card before all other arguments have been exhausted. Since I have been so elated this week and have no other place to post, and since this is such a strong topic anyway, I am going to indulge myself in one small divergence from the topic. It was so nice to see the future of the party, Senator Marco Rubio, ask Rocket Rick and Sir Newt to GTFO. Yes!!

T-Rav said...

Jed, unfortunately, I think the case is going to be decided in June, not mid-April. So the Titanic symbolism won't be quite as strong. Though it is a pretty good analogy nonetheless for ObamaCare (and the entire current administration).

Tehachapi Tom said...

Andrew
I enjoyed the read, well written.
Easy to understand explanation of a complex issue.
Good Lord willing the whole thing will be sent to the shredder.
2700 pages is an outrage and insult to the country.
Pelosi should be exiled for her part in this debacle.

T-Rav said...

WaPo has a story which reports the vast majority of Democratic strategists as privately knowing they are in deep trouble if the whole thing gets struck down, despite what they say in public. To have SCOTUS publicly repudiate the centerpiece of Obama's "accomplishments" would be a morale and PR blow from which they would never recover.

This has been a great week! I love reading posts like this.

Tennessee Jed said...

the lame streams are trying to blame Obama's lawyer Verilli. While it is true that SCOTUS doesn't let the lawyer win or lose the case, blaming cousel allows them to indulge their fantasy. In the corporate world, we refer to these as "but for" speeches where the manager spins the lousy result. In this case, they want to believe "but for" a shitty lawyer and ideolgue conservative extremist justices, this wonderful law which provides "equal healthcare protection" under the law would sail on and pave the way for the eventual holy grail of 100% socialized medicine.

Tam said...

I heart Scalia. It would be like Christmas in June (or April, or May) if the whole monstrosity were struck down. It's like my birthday every day watching liberal heads explode over this!

OT...Rubio telling Rick and Newt to get out is awesome, but I saw on Breitbart that VP is not going to happen. Boo!

Tennessee Jed said...

Scalia is great, Tam. Maybe Rubio will go on to governor then be Mitt's successor in 8 yers :)

DCAlleyKat said...

Standing ovation Andrew!!!! By far one of your best and THE best coverage on the net. You've outdown yourself old boy....

AndrewPrice said...

Jed, You're welcome! And thanks! :)

It can be very hard to figure out where the Supreme Court will go, but in this case, I think most of their decision is clear. To me, the only thing we don't know with a high degree of certainty is whether or not they'll strike the whole thing or just send it back for more evidence. That's just too hard to tell at this point, but I think they are leaning toward striking it all.

AndrewPrice said...

Jed, The ideologue stuff is so typical of liberals. They love to point fingers at conservatives for their own flaws (projection) and this is the perfect example of this. That they can literally make the claim that someone whose opinion they cannot guess is an ideologue while ignoring their own people openly toeing the party line is just shocking and tells us of the level of their hypocrisy.

LawHawkRFD said...

As I mentioned before, I think that Congress going out of its way to remove the severability clause that was contained in the original bill was a serious flaw in their reasoning. Combined with the vagueness and overbroadness of the rest of the legislation, the court could hang its hat on that. I've been praying that they would, and yesterday's questioning gave me a little more hope.

Scalia was excellent yesterday. And to make that point about severability, he joked about what would happen if they struck the mandate but left everything else in place to be adjudicated later. He cited the Eighth Amendment, indicating that it would be cruel and unusual punishment for the court to have to then sort out the rest of the nearly 3,000 pages of confusing and self-contradictory legislation, page by page.

Verrilli couldn't logically argue an incomprehensible law, so that trope won't get much traction. But he did provide many moments of unintentional comedy.

AndrewPrice said...

Joel, You're welcome! :) I suspect that many of the MSM's legal "minds" went to law school but never really practiced, so they don't really understand how things work. And most of them simply aren't capable of explaining the process to any great degree. That's why you hear a lot of confused soundbites and half-opinions, which just confuses people.

On the law, I agree. I can't say for sure that Roberts will vote to kill it rather than send it back for more evidence, but he's not someone who generally worries me. If Kennedy had said it, then I would have been worried. As it is, I suspect Roberts will kill it. But that is the type of decision which is ultimately impossible to predict. Outcomes are easy -- how far they go is not.

I get Carville's point, but I think it's ridiculous. He's basically saying that Obama take responsibility for all of the medical system and by killing ObamaCare, the Republicans will now have responsibility for. But that won't matter in this election, plus he's forgetting the fact that doctors will now stop telling all their patients that they're going out of business because of Obama.

AndrewPrice said...

T-Rav, Here's the thing about Scalia. Scalia has integrity and the left knows that. They were counting on Scalia's integrity "resulting in an honest opinion" (a weakness they do not suffer from). In other words, they knew they were going to act politically, but they figured he would be forced by his integrity to consider the case fairly.

And in that regard, they thought his allowing the federal government to go after pot growers was the same sort of thing under the Commerce Clause as Obamacare. But here's the thing -- the two cases are not comparable by any stretch. The pot case involved someone working in parallel to commerce and trying to get around criminal laws on a technicality. ObamaCare tries to force people to engage in commerce. There's a huge difference. So Scalia's honest will not get liberals what they wanted.

StanH said...

Great overview Andrew. I was looking for you guys thoughts as attorneys. It certainly appears that the court is going to slay Barrycare, yeah, >““BUT!”” < …the courts do not like to interfere with the legislative process, and somewhere in my conspiratorial mind they may still save Barry. The first black/white president and all, and what this will mean for race relations, and by doing so, will sink the false messiah. I think they toss it back to the lower courts, and wait and find out who wins in 2012, and let the politicians fix their own mess. I hope I’m wrong, we’ll see.

AndrewPrice said...

Jed, I agree entirely. Republicans need to be ready to really pound away that the interference of ObamaCare caused all kinds of problems which we now need to fix. And they need to come up with a new version (call it RyanCare) which fundamentally solves many of the problems in healthcare -- lack of competition being one of them. I am a little concerned in that regard that the Republicans aren't thinking right, however. I fear that they are wedded to the idea of "must get people more insurance," even though insurance is the problem because it eliminates the connection between consumers and producers by introducing a middle man.

We'll see, but the key will be to start pulling the government out of healthcare and let the free market enter. I hope they are up for that, and I hope they are ready to start blaming ObamaCare for all problems for as long as possible.

P.S. I love the Titanic idea! :)

T-Rav said...

I think we should concede one thing to the liberals--Verrilli has been a complete idiot in his attempts to defend this turd. It's pretty much indefensible anyway, but a clever lawyer might have been able to at least blunt a few lines of attack. Roberts, Kennedy, Alito, and Scalia all made him look like a complete amateur. Doesn't make it his fault that the law is going down in flames, but it does make the raving and scapegoating of liberals a bit sweeter. Sucks when you have to thrash about for someone to blame, huh?

AndrewPrice said...

Joel, Give it time, the race lobby can only focus on one bit of racism at a time and with the "white-Hispanic" scourge on the loose in Florida, they can't focus on ObamaCare.

BUT... (just to play devil's advocate), keep in mind: There are no blacks on the Supreme Court, so it will be an all white Court (possibly led Uncle Thomas) who will strike down a law written by a poor black immigrant who only wanted to save colorblind Americans from the menace of evil insurance companies (run and owned by whites) and doctors who are all white men and wear white coats to honor their KKK ancestors.

Obviously, I'm joking, but I sadly wouldn't be surprised to start hearing this stuff. They've already tried to say opposition to Romneycare is racist because blacks benefited the most under it.

BevfromNYC said...

Thanks Andrew - As always you make sense out of the noise.

Whatever the outcome, conservatives need to have a viable and rational alternative to counter (Commentarama-care) that can fly. It is what we (as in conservatives) have been shouting for two years with our "Repeal and Replace" slogans and we need to make good on our slogans.

AndrewPrice said...

Jed, I was thrilled to see Rubio finally endorse Romney and asking the others to get out was just the icing on the cake. At this point, the race is over and you are starting to see the flood of endorsements. And with Romney now ignoring Ricky and Newt and instead firing on Obama, the race is indeed on.

I still think Rubio will be the VP and his endorsement yesterday strengthens that conviction because it's early enough to make him seem like an early endorser, but it's also late enough to keep out charges that he cut a deal for his endorsement.

AndrewPrice said...

T-Rav, Perhaps a disaster metaphor isn't a good one in any event? Maybe they should wait to issue the decision on July 4th! Now that would be fricken cool!!

BevfromNYC said...

Okay, so I didn't read the comments before I made my comment. We are in agreement that we need a put forth a plan like Commentarama-care or Ryan-care...phew.

AndrewPrice said...

Thanks Tom! I'm glad you liked it. This thing does need to go. Within that 2,700 pages are some incredibly obnoxious and damaging things like banning doctors from owning hospitals, coverage requirements, handouts, taxes, etc. The individual mandate is only one small part of what is bad. So let's hope it all goes down in flames.

I will love the fact that Pelosi led her people to doom over this law and it may end up being entirely wiped out. So much for "the most powerful speaker in history." Her and Obama's "legacy" is about to become nothing but ash.

tryanmax said...

Andrew, I guess I should have waited 'til morning! ;) That clears up a lot of what has been spun into confusion by brave-faced liberals and gloating conservatives, alike.

On another note: I heard Justice Ginsberg engaged in a little word play over severability. Her statement was that "It's a question between a wrecking operation and a salvage job, and it seems to me the more conservative approach would be salvage rather than throwing out everything."

One should probably assume that she meant conservative in the dictionary sense. However, if it occurred to dummy-me upon hearing that she chose a word with strong political implications, I can't help but believe it occurred to a Justice of the Supreme Court upon speaking it.

...and, yes, I totally used a reverse ad hominem to bolster my argument.

T-Rav said...

Incidentally, the House voted on Obama's proposed budget yesterday, and defeated it--414 to 0. Republican intransigence, I guess.

Writer X said...

Maybe the Obama campaign can sell a hoodie that says "ObamaCan't"?

The spin on how its failure will help the Doomed Dems has been priceless. I thought Carville was going to spit out all of his teeth.

T-Rav said...

Andrew, if the decision is made on July 4th, I will be blasting Martina McBride's "Independence Day" at full volume in my car. I will probably go deaf, but it will be so worth it.

tryanmax said...

Joel, Andrew, wrong, wrong, wrong. ObamaCare isn't about race and never has been. It's about gender, and the evidence to that is monumental. The court decision will necessarily be split along gender lines, which is all the evidence needed to prove that the ruling is misogynistic.

AndrewPrice said...

T-Rav, And I love writing posts like this -- a true feel good moment for the country. :)

I would assume the Democrats know they are in deep trouble on this. This was the thing they wiped out their moderates to get. This was supposed to be the thing which forever transformed America into Europe and endeared Americans to them. And now it's going to be ripped own and the public is fully behind that. So this will completely demoralize their base.

I also think this won't help them with the public in any way because this will confirm to the public that the public was right when they got upset at this.

The only thing that could help them is if Republicans don't keep fighting back on the PR front and don't pass their own version to start controlling costs and solving some of the problems.

tryanmax said...

Wait! What? There's other stuff in ObamaCare? *gasp* I thought it was just like RomneyCare. Who knew?

AndrewPrice said...

Jed, That's exactly what it is. Make no mistake, this guy was HORRIBLE... but the idea that his performance will be what cost an "otherwise valid law" to go down in flames is simply wrong. The court will consider the hundreds of amicus briefs, the oral arguments, their own research, their own debates, and they will decide this case on the law.

I've seen it over and over and over where appeals courts ignore bad oral arguments and look at the law fairly because they are not concerned with punishing the parties, they are concerned with the message sent to the public. And in a case of this importance in particular, the oral arguments were just an attempt to offer some new, last minute moment of brilliance. It was never the make or break moment of the case.

I think by making this argument, however, the left can maintain the delusion that this wasn't their failure, it was the failure of one man, and they should try again. It's the old, "communism would work if someone really tried it."

AndrewPrice said...

Tam, I love watching liberal heads explode too. It does my heart good!

Scalia was always my favorite Justice until Thomas came along. He has a fantastic legal mind and has been slowly, steadily bringing the country back to what it had been before the leftist courts of the 1960s/1970s did their thing. This could well end up being his biggest legacy moment.

I hadn't heard that Rubio won't be VP? Do you have a link? Last I heard, he was just evasive on the topic?

AndrewPrice said...

Thanks DCAlleyKat! I knew my legal training would come in useful at some point! :)

rlaWTX said...

from T-Rav's fingertips to God's ears:
"To have SCOTUS publicly repudiate the centerpiece of Obama's "accomplishments" would be a morale and PR blow from which they would never recover."

Also "Republican intransigence" - yeah, 414-0 is all those darned GOPer's fault!! ;)

AndrewPrice said...

Lawhawk, I thought his joke about cruel and unusual punishment was pretty funny, but it is legal humor. :)

He's right though, it doesn't make a lot of sense for the court to spend weeks going line item by line item trying to sort out what is and what is not constitutional in this mess. But we'll see, that's a good way to put that particular issue off if they want to -- send it back to the lower court.

I hope the Verrilli incompetence doesn't get much traction but I fear liberals will use it as a defense mechanism... "it wasn't us, it was that stupid lawyer."

AndrewPrice said...

Stan, Thanks! And you're welcome! I'm all but certain they will strike the mandate. Whether they strike the rest, that I cannot say. They may well send it back to the lower court. In that event, it will be up to the Republicans to take care of business. I guess we'll see. But I'm hopeful. :)

rlaWTX said...

I heard a piece of the 8th Amendment comment on the radio yesterday. I spent a while trying to remember what the 8th was and why it had any part of the conversation. It goes to show the level of of brain function I had because until the comment above, I didn't get the joke. [< sigh >]

Tam said...

Andrew, here's the link. You have to fix it. I know it's easy once you figure it out, but I'm kind of lazy.

http://www.breitbart.com/Breitbart-TV/2012/03/28/Rubio-Veep-Not-Gonna-Happen

AndrewPrice said...

T-Rav, That is true. Verrilli was utterly, utterly incompetent. Frankly, I'm shocked at how poorly he did. How in the world can you not be prepared for questions that you KNOW were coming????? It's like he went in cold. Bizarre.

I've only rarely seen lawyers do as poorly before the court. BUT I actually have seen people do as badly and still win. In fact, I saw one guy verbally reprimanded during argument and he still won because courts are interested in the law, not the personalities.

So while I agree with them that their lawyer stank, it is important not to let them think that they would have won if not for that.

AndrewPrice said...

Tam, Thanks! Here's the link: Rubio Denial.

The cynic in my says this was an evasion. He never said he would, he twice specifically said "it won't happen," which translates to "I'm not going to be picked."

And is Andrea Mitchell stupid or what? The VP has more power than a US Senator? The VP is a glorified mascot!

T-Rav said...

rla, I do what I can. :-)

And don't worry about not getting the joke. Frankly, grad school should also be considered "cruel and unusual punishment."

Tennessee Jed said...

Andrew - Rubio was on Hannity's show last night and I happened to catch him on the late night re-play. He says "it's not going to happen." I guess nothing is really definitive until a v.p. actually gets picked, but he seems sincere about not wanting to be V.P. which is why I could see him becoming governor to pick-up the executive experience.

AndrewPrice said...

Thanks Bev! It's all those years of legal training finally becoming useful! :)

I agree 100%. The Republicans NEED to seize this opportunity and replace ObamaCare with something which sets our healthcare system on the right track -- and not just a bill to get more people insurance. They really need to fundamentally open the system to competition, they need to get people responsible for paying their own way, and they need to find a way to handle long term care. I hope they are up to the task.

Tennessee Jed said...

oops - missed your link while I was typing.

AndrewPrice said...

Bev, Absolutely, this expected SC decision and the ObamaCare debacle is a huge victory for Republicans right now, but they can't squander it by doing nothing. They need to seize the moment and provide a genuine fix for the healthcare system.

AndrewPrice said...

tryanmax, It's always best to wait until morning... especially when hunting vampires! ;)

I think her use of the word "conservative" was intentional. On the one hand, she is correct that the "judicially conservative" approach is to do the least amount possible. In other words, don't strike an entire law when you can strike just a part of it, don't decide issues you don't need to decide, and don't hear cases you don't need to hear yet. That is the judicial mindset and it makes a lot of sense because you don't want courts making decisions that don't need to be made because it's in the overreaches that bad laws are made because they are too theoretical.

On the other hand, she is telling Scalia and the boys: "you claim to despise judicial activism, but that is what you are doing here."

And to a degree she is right. BUT... her argument ultimately is only an evasion. She is not giving a reason to leave the law in place under the test they are applying, she is just asserting that it's generally better to leave the law in place. That's not a real argument, she's just repeating the general principle which gets you to the debate itself.

It would be like debating whether an NFL receiver was in bounds when he caught the ball by saying, "if we can't prove he caught the ball, then we should declare it not a catch, so let's declare it not a catch." Yes, that's the rule, but it's also not informative of the situation being considered and the conclusion does not follow from the statement of the rule.

AndrewPrice said...

T-Rav, "Republican intransigence, I guess." -- LOL! I had no idea there were that many Republicans in the House? Not a single Democratic vote, huh? Were they all on a hunger strike?

AndrewPrice said...

tryanmax, That would fit with the war on women theory. And they could point to things like abortion coverage as part of that claim.

But why think so narrowly? Striking down Obamacare is an attack on blacks and women... with particular attention paid to black women. Don't forget, there's plenty of room in Republican hearts to hate all of nonGod's creatures!

Tam said...

Rush was talking about judicial activism regarding Obamacare this morning in the 5 minutes I was in the car...he said that it could be more "activist" to let it stand, because then the court would have the control/power to go through the whole 2700 pages and decide what stays and what goes, and I think one of the justices said they don't want to take that power away from the legislators. Better to strike it all. Interesting thought.

AndrewPrice said...

Writer X, That is the perfect image of Carville... assuming he still has teeth! I laughed so hard when he said, "and this isn't spin." Yeah, ok, sure.

They can tell each other all about how this will help them, but the truth won't change just because they repeat their wishful thinking enough.


"ObamaCan't" -- I love it! We should start selling those ourselves!

Patti said...

andrew: i have been mia as i recover from the flu, but reading thru this gave me a moment of hope where the fever rendered me hopeless.

tryanmax said...

James Carville is always good for a laugh. I hope he lives forever. If he's actually alive, that is.

T-Rav said...

Tam, I think the WSJ had an editorial column to that effect up this morning.

AndrewPrice said...

T-Rav, Could you imagine if they released it on July 4th? Conservatives would go insane partying. That would be truly inspired! :)

AndrewPrice said...

tryanmax, I know you are being faceitous but the real problems with ObamaCare are not the mandate. The real problems are all the other things it does to destroy freedom and twist the medical system. I'm glad the mandate caught the public's attention, but the rest is much more dangerous and needs to go.

AndrewPrice said...

rlaWTX, I think this will be hugely demoralizing for the left. They were SURE that the public would just accept this once it was passed, that it would become the law, that the court would rubberstamp it, and that within a generation, America would become a center-left country. That's why they were willing to risk electoral disaster to get this into place. Now their "sacrifice" will be for nothing.

AndrewPrice said...

rlaWTX, I doubt most people would know what the eighth is until someone says "cruel and unusual." What I think is funny is the MSM trying to smear Scalia now for mocking the Cornhusker Kickback. Talk about snotty: "Scalia doesn't know it's not in the bill!" Of course Scalia knows, he was joking you idiots!

AndrewPrice said...

T-Rav, I can't speak to grad school, but law school was cruel and unusual punishment, that's for sure. And it's the kind of punishment that keeps on giving once you graduate!

Kids.... just say no to law school.

AndrewPrice said...

Jed, Yep, I followed Tam's link and watched the video. I hear what he said, but the cynic in me says that this was him just trying to make sure no one thinks he traded his endorsement for the VP spot or that he's too eager.

In particular, I notice that he keeps saying "that's not going to happen." He does not say, "I won't accept." I think he is speaking intentionally by trying to send a message of "I doubt I will be asked," and I suspect we will hear him later say, "now that I've been asked, I can't say no."

I could, of course be wrong, but that's my take on it.

tryanmax said...

Andrew, in a way, I hope the Supremes strike the mandate but send the rest back. I'm fairly confident that it will be repealed or dismantled in that instance. Then we can have a clear public conversation about the real problems with ObamaCare. Plus, it will help Romney's already good chances; it will debunk the myth that RomneyCare = ObamaCare.

Federal Student Loans said...

What? Law school's not that bad.

Tennessee Jed said...

I happened to catch a few minutes of Rush's show during the first hour. He talked about his own misinterpretation of the severability clause and then related a discussion with a buddy of his who is a judge. It was very interesting in light of your own comments in this post. I don't think the judge was particularly disagreeing with you, and it may have been lost in Rush's translation. I THINK he was saying according to the "letter of the law" the lack of a clause when coupled with evidence that Congress specifically removed the clause from the act would mean that their intent was that it would not have been passed without the mandate. If you have time and access to a clip of that discussion, it would be neat to get your reaction to what they were saying.

AndrewPrice said...

Tam, I think the phrase "judicial activism" is a bit of an odd phrase because it's ambiguous.

Politically, conservatives started using it against the liberal courts of the 1960s/1970s because they were using the courts to force the legislature to act. They wanted more "progress" than the legislatures were willing to give them, and they took it upon themselves to act. So they would basically find new rights and would demand that the legislature address those rights.

This got blurred with a quasi-political, quasi-judicial meaning of the word, where "an activist court" is one which would ignore precedent. Again, conservatives were complaining that liberal activist judges were "ignoring precedent to make law."

Liberals are now calling the conservative court "an activist court" because they are striking down the precendents established by the activist courts. Does that make this court activist? Sort of in the strict sense because they are undoing precedent. But the precendent they are undoing was created out of whole cloth by the activists, and what this court is doing is restoring the original order.

So whether or not they are activist depends on how you look at it.

At the same time, there is a non-political version of the phrase, which means "courts that do more than they should." For example, a non-activist court makes the most narrow decision necessary and does nothing else. By comparison, an activist court will go beyond the narrow decision and will try to resolve questions that don't need to be resolved.

Under the judicial version, a non-activist court would just strike the mandate and would leave the rest because they defer to the legislature to handle the clean up. Basically, they see their job as being very narrow. A more activist court would delve into the law and try to decide how the law should look once the mandate is struck.

So what we have here is people talking about two different things. Ginsberg is talking about the second definition, but Rush is talking about the first definition.

Confusing, isn't it?

AndrewPrice said...

Patti, Sorry to hear that you're sick. I hope you get better soon! The flu stinks.

I am very hopeful about this case.

Tam said...

Yep, confusing. That's just one reason I'm not a lawyer.

AndrewPrice said...

tryanmax, "I hope he lives forever!" LOL! I can see that. He is always fun to listen to because of his sinister cackle.

AndrewPrice said...

tryanmax, I'd like to see it swept cleanly away so we don't have to worry about them missing a part and so that states and employers can rest easy again that they aren't about to have something like this forced on them.

I think (hope) there is enough momentum that the Republicans will do something in either event.

AndrewPrice said...

plus... what if Obama does win the election? Let's start from scratch.

AndrewPrice said...

Don't listen to the student loans... law school is not for you!

AndrewPrice said...

Jed, There are some key words there. The evidence of them removing the clause SUGGESTS that Congress wanted the entire law struck down if it did not pass, but it doesn't necessarily mean that. In other words, the active removal is just one more piece of evidence, but that alone is not dispositive of the issue.

The other problem is trying to understand Congressional intent. The Congressional record is packed with contradictory and bizarre opinions. Sometimes these make it into the law as a recital, but usually the don't. So divining the intent of a diverse body is difficult and the courts really don't put much credence into what Congress says unless they include it in the statute.

If I were asked to argue against the idea that the deletion of the clause was meant to get the court to strike the whole thing, I would say: (1) there is nothing in the record to suggest this was anything more than a clerical error, i.e. there is no debate on this point, and (2) knowing the law, if the Congress truly wanted this entire law struck, they would have said so in the recitals: "Should any portion of this law be declared void, then it is the express wish of the Congress that the entire law (or the law minuses these clauses...) should be struck as well."

That would be my arguments against this issue having any meaning.

AndrewPrice said...

Tam, You should be thankful you're not a lawyer. I think it damages your brain.

Typical Liberal said...

Sorry you are sick, Patti, if we had Obamacare you wouldn't GET the flu!

tryanmax said...

Andrew, I know you've downplayed the importance of oral arguments in whether the ObamaCare mandate stands or falls. How much might they matter to the specific matter of severability? What else might the Justices look to in making that decision?

T-Rav said...

tryanmax, I'm just spitballin' here, but if the oral arguments about the mandate don't count for anything, I suspect they wouldn't count for much regarding the severability clause either. I don't know what the Court would go by, but it would probably have to do with the feasibility of the law without the mandate (which isn't much).

tryanmax said...

To be more specific, is the solicitor able speak to the intent of Congress in any special way?

AndrewPrice said...

tryanmax, Oral arguments... think of oral arguments like the bonus round.

Oral arguments are the last chance to explain what has already been submitted in writing. The oral arguments are a chance to speak directly to judges to address any questions they may still have or to answer for any gaps you've left in your case. But they are just one small piece of the puzzle. In fact, most cases get decided without oral argument.

In this case, you've got 2-3 briefs from both parties, the record from the courts below, the prior decisions, the prior briefs, and hundreds of briefs submitted by outsiders. Then you've got the court's own clerks doing research and the judges doing research themselves. They will look at all of that, plus the Congressional record, plus prior cases, plus legal treatises. They will also thrash it about with each other and possibly even negotiate how they will decide the case.


In my experience, oral argument is actually where the judges argue controversial cases with each other and they use the attorneys as props. You can help your case to the extent that you can show them something they haven't considered or that you can really show them a flaw in their thinking. Hurting your case is much harder because they are really talking to each other.

In fact, even if you fail to show up, the courts will still look at all the stuff I mention above and issue a decision based on the law rather than what they thought of you not showing up.

And the courts are very, very good at not holding your behavior against you in cases that have any significance beyond the parties. In other words, if you were appealing something like a job dismissal from the federal government and there were no legal principles at stake and your attorney failed to make an argument, the court may say, "you didn't argue this so we ignore it." BUT in a case with real significance, the courts will do your work for you if you flub it.

All of that means that I don't think what was said at oral argument will do anything more than confirm opinions that were already held, even on the severability argument.

AndrewPrice said...

T-Rav, That is correct. It doesn't really matter which part of the case you are talking about, the oral argument is only a chance to explain what has already been submitted. So while you can help yourself with a brilliant new way to look at things or by pointing out something the court has missed in the briefs, it's really hard to hurt your case at oral argument because it's not viewed as "the case," it's viewed as merely supporting the case that is already briefed.

AndrewPrice said...

tryanmax, The Solicitor General does not really speak for Congress, he speaks for "the government" more generally. So in that regard, he does speak for Congress... BUT...

Congress speaks for itself in the bill and in the Congressional record. The Congressional Record is a huge thing which records the debate surrounding the bill. It is contradictory and insane and you can find all kinds of things going both way within it. So general, when the court talks about understanding Congress's intent, that's a fiction meant to encompass a vague idea of what Congress wanted the bill to do based on the bill itself. However, courts will pull things from the Congressional record sometimes to support their conclusion. And in that process, they have certain tricks they use, such as finding that something was included, but was then taken out -- that is interpreted as a conscious desire to NOT address whatever was removed. Similarly, if Congress debates something but then doesn't include it, that is more evidence that the bill was not meant to cover that.

But in the end, this is all just considered persuasive anyway, not binding. So as an attorney, you would never argue that something is supported by the Congressional record unless you've got no prior law to point to because that's just not going to win you the case.

rlaWTX said...

RE SCOUS: the guessing game is starting to get uninteresting. I'm going to stop worrying about it until they release the opinions.

RE 8th: Grad school in general hasn't been cruel. However, one of my texts this semester is going to drive me bonkers. So far, praises of Cesar Chavez and Saul Alinsky and a quote from Cornell West. And I'm a racist for thinking race shouldn't matter.
It's a multi-cultural book. The prof's point so far has been that she likes it because of the generalizations it gives of various cultures in the US from which we can realize our limited knowledge and have an idea of what to expect. Which kinda goes against the authors' intent and is about the only thing keeping me from chucking it in a bar-ditch.

rlaWTX said...

* SCOTUS - not SCOUS

AndrewPrice said...

rlaWTX, At this point, that's the best thing to do -- just sit back and wait because there's nothing more than can be done.

I've had to deal with more than my fair share of annoying leftist books as well. It gets very annoying. At least it sounds like your professor isn't pushing the ideas in the book?

T-Rav said...

rla, don't you just love it when you can be called a racist for not being a racist?

Even other left-wing race activists have called out Cornel West for being a total idiot.

AndrewPrice said...

Ohhh, that Cornel West. (I looked him up.) Yep, he's a racist turd.

rlaWTX said...

Andrew, yeah - him. I nearly had apoplexy in the library when I got to that part.

T-Rav, there is a whole chapter on being a racist for not being a racist. Finally I skipped the rest of it and moved on to the next chapter. And the prof didn't cover those chapters...

Overall, I haven't had much of this in grad school - so I guess it's just my turn...

Doc Whoa said...

Excellent breakdown Andrew! Thanks for clarify that. This really has been confusing.

AndrewPrice said...

Thanks Doc. This can be very confusing stuff.

AndrewPrice said...

rlaWTX, I can imagine. Let's hope the library staff has EMTs on call! ;)

ellenB said...

I agree with everyone above, excellent article. I now understand what is going on. Thank you.

AndrewPrice said...

Thanks ellenB! I'm glad you found it helpful.

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