Thursday, June 9, 2011

Obamacare Off-Broadway Preview in Atlanta

On Wednesday, the federal 11th Circuit Court of Appeals heard arguments over whether or not to reverse a Florida federal court decision declaring major portions of Obamacare to be unconstitutional. The Florida court decision was important in that it not only made specific findings, but the plaintiffs came from states all over the nation. A Court of Appeals decision in a controversial case is usually just the opening act for the big show in DC at the Supreme Court.

Florida federal court Judge Roger Vinson had found that the Obamacare mandated purchase of health insurance was a bridge too far in the liberal assault on individual rights. Vinson declared the mandate an impermissible perversion of the federal power to regulate interstate commerce in that it required citizens to purchase something rather than merely regulating the interstate sales of a product. And he didn't stop there. He also struck down the provisions granting "discriminatory" Medicare discounts for certain seniors as well as the requirement that parents be allowed to retain their "children" on their family health insurance up to age twenty-six.

So far, three federal judges have found Obamacare constitutional and two have found it unconstitutional. A similar set of pleadings is en route to a Virginia court (two sets, actually, but they are likely to be consolidated into one). Virginia is in a different Circuit, so it might be ruled on by that appeals court separately. But in any event, the Atlanta decision is likely the one which will ultimately drive the whole mess to the Supreme Court. And it doesn't matter which side wins. The loser will appeal. The Supreme Court has seemed to indicate that it wants to hear from a mix of Circuit Courts before hearing the matter, but hear it they will eventually.

The administration will try to stall by asking for a review by the full Circuit while the plaintiffs will try to get the case to the Supreme Court as quickly as possible. Interestingly, all through the debates and passage of Obamacare, and in all the court cases to date, the Obama administration had claimed that the mandate was a "penalty" for non-compliance. For the first time, the administration lawyers argued that it is a tax. As a tax rather than a penalty, there is at least a tenuous connection to the Commerce Clause. But the judges all asked for citations of cases in which such a "tax/mandate" had ever previously been allowed. The government's lawyers were unable to produce a single one.

Lawyers know better than to try to predict how a particular case will go. But often the questioning by the judges is a tip as to which way the case might go. There are two Clinton appointees and one Bush I appointment on the panel hearing the case (the Chief Judge). First, that's not political since the judges are chosen by random lottery. Second, the Clinton appointees are not Obama-type doctrinaire "living constitutionalists." All three judges asked at least one question about where in the Constitution, case law and/or precedent the Obama administration appellants found the authority for the federal government to impose a mandate to make a purchase of any kind.

The names of the lawyers representing the opposing parties is usually unimportant. But in this case, a whole separate problem will be created when the case goes to the Supreme Court. The anti-Obamacare people were represented by former US Solicitor-General Paul Clement. That's interesting, but not particularly relevant. But the federal government was represented by current Acting US Solicitor-General Neal Katyal. That becomes very significant because it directly affects the ethical issue of "recusal" for one of the Supreme Court Justices who will hear the case.

During her term as Solicitor General, current Supreme Court Justice Elena Kagan directly and personally assigned Katyal to fend off, then litigate early challenges to Obamacare. While still acting under Kagan's authority, Katyal litigated two cases in which he defended the constitutionality of Obamacare. Even after Kagan resigned as she became the Obama appointee to the Supreme Court, she continued to give "input" to Katyal on the issue.

There is no hard proof that Kagan personally wrote or influenced Katyal's arguments in the anti-Obamacare cases. But who else does the Assistant Solicitor-General report to if not the Solicitor-General who personally assigned him to the cases? This was not a routine rotational assignment. Kagan went out of her way to appoint and supervise the attorney she felt most capable of defending Obamacare.

Ethical rules which would suggest that Kagan should recuse herself are arcane and complicated. And if she decides to go forward and hear the case, what court can be appealed to? (Answer: there isn't one) Clearly, she is not required to recuse herself. But there's more than enough fact and reasonable inference to expect her to do so. By her own standards, she should do so. She recused herself in a Supreme Court case where her connections to the case were far less palpable. In that case, Kagan had merely been the dean of the Harvard Law School, but felt she needed to recuse herself because one of the litigants who filed an amicus curiae brief was Walter Dellinger, who was head of the Harvard Supreme Court and Appellate Clinic when Kagan was the dean.

All things considered, Kagan should recuse herself in the Obamacare case when it arrives at the high court bench. Her connections to the purveyors and litigators are simply too apparent to be dismissed as inconsequential. The rule is that the justice must avoid the appearance of impropriety or personal prejudice where the appearance is a reasonable conclusion. It doesn't have to be right, or proven beyond a reasonable doubt--merely a reasonable inference. She should listen to her own advice and follow her own precedent.


Tennessee Jed said...

Hawk - as a betting man, I would say she will not recuse herself. I hate to use Weinergate or Clinton's impeachment as examples, but when it comes to "the cause" liberals seem to have little, if any, shame. In other words, it matters little if there were less valid reasons for a prior case where she did recuse herself. This is the enchilada and I simply cannot believe she would sit on the sidelines, particularly when this appears to be headed down to the Kennedy wire so to speak.

Question: Any chance if this court ruled against Obamacare they might agree to the temporary injunctive relief that Vinson did not grant?

Joel Farnham said...


I am with Jed. Kagan won't recuse herself. Too much is at stake. Her master won't allow it. She will find it within her spirit (I don't want to say soul. Deference to atheists, you know and she is a liberal.) to jump in this mess with both feet.

The sooner the Supreme Court rules against this Obamanation the better.

T-Rav said...

LawHawk, I noticed this story last night and rumor was that the 11th Circuit was more likely to rule against Obamacare than for it. They might have been moved by one of the plaintiff's lawyer's argument: if there really is a Constitutional power to do things like require the purchase of health care, wouldn't the Founders have specified limits on that power as well? I think that's what they were saying; it was something like that.

Like Jed and Joel, I don't see Kagan staying out of this. She'll probably decide that this is too important to the country, and she alone has the experience necessary to arrive at the right decision, or something.

Also, I probably already know the answer to this, but is that picture by the headline real?

StanH said...

This as you stated took place here in Atlanta, and the Tea Party had a respectable protest in front of the court building downtown, our side is learning. As far as Kagan, sadly I’m with Jed, this is the whole enchilada for our leftist, she will not recuse herself…the ends justify the means. That being said, the fury of the American people will sweep it away in 2012.

Unknown said...

Tennessee: I've lost much of my faith in the ability of these people to demonstrate the least amount of decency and fair play. I'm afraid you're probably right.

One of the reasons I think that, is the left and their friends in the MSM have been setting this up for a few months now. Their thing is that Clarence Thomas should also recuse himself because his wife has been a leader in both anti-abortion and anti-Obamacare organizations. That's the tu quoque argument, and it's utter nonsense. The two things are entirely different. But the average guys might look at it and say, "that makes sense--they should both recuse themselves, or neither should." It's a nonsensical comparison that holds no ethical water at all. But they will use it anyway.

Unknown said...

Joel: Odds are you're right on Kagan. Which means we're back to worrying about the swing vote, Justice Kennedy. I think Obamacare will lose. If Kagan were to do the right thing and recuse herself, I would be sure of it.

Unknown said...

T-Rav: The arguments for the plaintiffs were very good, and the judges seemed to be asking question which would lean toward those arguments. But as I said, sometimes it seems that they're favoring one side, and it turns out they asked the questions to clarify the issue that they're ultimately going to reject.

I found the picture on the internet a long time ago, and have just been waiting to use it. I'm pretty sure it's a spoof, but who knows?

Unknown said...

Stan: Don't give up hope yet. Even if Kagan stays on (which I'm pretty sure she will), it's 4-4 with a swing vote. If I were a betting man like Tennessee, I'd place a small wager that Obamacare will be gutted at the Supreme Court.

StanH said...

A wonderful anecdote not related to your great article on the Barrycare appeals. We’ve passed what is being described as a anti-illegal immigrant law here in GA, enforcement slated to begin 7/1/11. Many invaders are fleeing the state…yeah. In South Georgia there is a farmer who lost all of his immigrant labor to pick, I believe Vidalia Onions, and was on the news complaining how he couldn’t bring in his crop. So the farmer in what he thought was a last ditch effort went into the small town to find help, and was attacked by willing Americans to do the job. He came back on the local news, blown away by the willingness of Americans to do a job “Americans won’t do.” This was related to a discussion from the other day, an interesting anecdote, don’t you think?

No worries in your obvious disdain for the City of Atlanta…only kidding!

And T-Rav, I whole heartedly agree with your love of “Fringe” it started slow, but has become a quality show, Walter is cool.

Unknown said...

Stan: That is a great story. And it's one that I suspect could be repeated in California, Texas, Arizona, Nevada and New Mexico. I wouldn't want to be picking onions in Georgia or lettuce in California, but if that's all that's available, of course I would if it meant feeding my family and keeping a roof over our heads. Besides, I could use the exercise. LOL

Here in California, our problem is no longer not having enough people to pick the crops. Our problem is not having enough crops for the people to pick because of government intrusion (the Delta smelt). Either way, this administration is destructive and grossly negligent at the same time. Its priorities are simply all wrong. Obamacare is just the most obvious government boondoggle.

AndrewPrice said...

I actually think she will recuse herself because she has recused herself from other cases she worked on for Obama. In the end though, it probably won't matter because it will be either 5-4 or 5-3. It will only matter if Obama gets to appoint another judge before the decision.

Unknown said...

Andrew: I mentioned one of those cases in the article, but I don't think we can take that as a firm guide. This case is going to be about the very survival of Obamacare, and she's going to be under a great deal of pressure. Still, your guess is as good as mine. Maybe I just don't trust anyone from Harvard Law. LOL

I also wonder what will happen if she picks up the theme of Justice Thomas recusing himself, as I mentioned to Tennessee Jed. If they did that, it's 3-3 with a swing vote. And I never know what Justice Kennedy is going to do, though I suspect on this one he will be with Roberts, Alito and Scalia.

Tennessee Jed said...

By the way, Hawk, fairness dictates that I point out that my little mind, out racing my fingers, somehow left out the "if I w" from the beginning of my response. I actually am not a betting man, even if outsiders might think that, as a former underwiter, that would be exactly what I am.

Again though, I would ask: "if the Atlanta panel does rule in favor of the states" is there any potential to once again request injunctive relief pending appeal? As you recall, Vinson did not require the feds. to cease and desist implementation.

I realize the real bottom line rests with S.O.T.U.S., but believe rolling it back to cease and desist would 1) be a political psychological boost and 2) MIGHT just spur SCOTUS to here prior to 2012 election.

I for one would welcome Obama having to campaign while his "signature" and only accomplishment (I don't count ruining the economy as an accomplishment) is snatched away. It would greatly remind me of Lord Yabu taking a leak on Captain Blackthorne's back in the novel "Shogun." It is a thought I would find greatly pleasing.

Unknown said...

Tennessee: I know your comments well enough not to have thought you're a compulsive gambler. Sorry if it looked that way. I am one of those freaks who won't even buy a lottery ticket.

I can't tell you why I think this, but my best guess is that the panel will rule on Vinson's decision straight up, and leave injunctive relief to the Supreme Court. If the panel does order injunctive relief, I believe that you're right about it moving more quickly to the Supreme Court.

As for injunctive relief from the high court, it's possible the Supreme Court will do it, but they are generally reluctant to do so while they wait to see how their decision works out. After Brown v Board of Education, they waited almost ten years before ruling "desegrate, now!"

And isn't it a wonderful dream to see Obama trying to explain why his only major legislative accomplishment just went down the constitutional drain? Court-packing scheme anyone? Still, Obama made the Congress critters do his dirty work for him, so he can always blame it on them for misunderstanding how he wanted to do it.

T-Rav said...

LawHawk, I just got done scanning the Gingrich thing on other sites. Officially, Fox News is saying it's because the aides are all mad at Gingrich for taking that Caribbean cruise, but he actually got back and on the campaign trail yesterday. Speculation among bloggers is that they're jumping ship in favor of Rick Perry, because two of the people resigning are the governor's former reelection campaign manager and former chief political adviser. And apparently when discussing a potential run, Perry had said he didn't want to do it without the latter of the two. Hmmmm....

Unknown said...

T-Rav: Who's Justin Bieber?

BevfromNYC said...

A. Kagan may have to recuse herself because there are emails obtained trough a FOIA request indicating that she was directly and very much involved in crafting the legal defense for Obamacare.

B. Gingrich was out weeks ago. He just didn't admit it. I guess his staff had to press it.

Unknown said...

Bev: Those e-mails are very much a part of why Kagan should recuse herself. I alluded to them in "the input" to Katyal. Nobody can in good faith believe that she was not deeply involved in the planning of the defense of Obamacare in litigation. The fact that her signature is not on any of it means nothing. Her fingerprints are all over it.

Gingrich is like the annoying relative who comes to dinner but won't leave. His candidacy will come to nothing, but Newt will probably keep going long after his campaign has taken its last breath.

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