Posted on 03/26/2012 10:19:24 AM PDT by Starman417
Even some of the liberal judges appear skeptical about Obama's defense of ObamaCare:
On the first day of oral arguments in the case challenging President Obama’s national health care law, justices seemed skeptical that the individual mandate should be considered a tax — one of the main consitutional defenses being offered for the law.To be clear, today’s 90 minutes of oral arguments did not concern the underlying merits of the case, but whether an 1876 law called the Anti-Injunction Act bars the Court from ruling on the suit at this time. Under the Anti-Injunction Act, people cannot challenge a tax in court until after they have paid it, something that would effectively punt the issue until at least 2015. However, there is some overlap between this question and the idea of whether the mandate is a tax, and justices on both sides of the ideological fence expressed skepticism that the mandate should be treated as a tax.
“This cannot be a revenue raising measure, because if it’s successful, there won’t be any revenue raised,” said Justice Ruth Bader Ginsburg of the mandate.
Another liberal on the court, Justice Stephen Breyer, said of Congress’s description of the fine for non-compliance with the mandate, “They called it a penalty and not a tax for a reason.”
Alito came in for the swoop:
Justice Sam Alito asked Verrilli whether he could point to another case in which courts identified something as not a tax for the purposes of the Anti-Injunction Act while still ruling it was a constitutional exercise of taxing power. Verrilli could not name any.
Bam!
First Obama said the mandate wasn't a tax, and then they said it is.
And now even the liberal judges of the Supreme Court are looking a bit wary on their argument.
(Excerpt) Read more at floppingaces.net...
I ain’t holding my breath.
‘today’s 90 minutes’-—
took 30 minutes.
To save liberal face, this part could be 9-0. They would want to choose their battles, and this would be a poor one. Going on record to say this is a tax would be kinda stupid if you were one of the supremes.
We have one chance...and one chance only to correct a bad, bad mistake this country made in the name of political correctness, white guilt, black-and-liberal bias/hate, and other nefarious influences not yet identified.
We had better not blow it come November because this is really the last chance for this country.
I completely disagree with her politics, her goals, and her interpretation of the law. But there is a reason why no one said that Ginsburg was just put on the court becuase she makes up some quota: the woman is brilliant.
That line alone is likely going to cause liberals everywhere to start popping antacids like crazy. I think it goes down in flames, hard. Maybe 7-2 or 8-1.
Well, the thing is, it has to be a tax or it won't survive the constitutionality challenge, either. FDR's Social Security survived because they said it was a tax, even though they sold it to the voters as a trust. The 16th Amendment gives the feds the power to tax, so taking SS money from people and putting it in the national treasury was legal. They then pretended to keep everyone's account in a lockbox, but the fact was, it just went into the general fund like any other tax.
The marxists tried to follow that playbook for Obamacare, but they screwed it up. They could have created a new tax that supposedly went to pay for socialized health care, but instead they wanted to get to socialized health care by stealth, so they wanted to kill private insurance companies stealthily, over time. They didn't want to take them and put those huge businesses out of business overnight. So, instead, they created a system where you have to buy from the insurance company or the government. Eventually, the insurers won't be able to compete with the government, and will go out of business, but that will take 10 years or so, as Obama said when he was running for President.
Now they want to argue that the penalties that you pay if you don't buy insurance from a private company are a tax. That argument is not going to fly this time, so unless they can come up with another reason why it is constitutional to force people to buy something by virtue of their existence, then the mandate will fall, and if the mandate falls, it is very likely the entire thing will fall, as the mandate permeates the entire scheme.
So, if they don't buy that it's a tax, it's a big deal.
The big problem with a win in the Supreme Court is that the our fellow citizens on the left will look at it just like we look at Roe v. Wade: Rule by Judicial Fiat. It will forever remain a bitter battle.
We have to start having the Legislative body fairly legislate and do so with respect for the governed and the Constitution while insuring they put in place legislation that looks legitamate and not “railroaded” like Obama Care did.
This is also the downside to repeal. The left will convince themselves that everytime they have a majority they should seek to reinstate the scheme.
Anytime you are trying to remove a brick or two from the wall of socialism, the outcry is the same: why are you tearing up our political will as expressed by Democracy?
It isn’t just ObamaCare, we need to dismantle the entire wall of socialistic paternity.
I agree. Ginsburg is wrong on so much ideologically, but she is well deserved a seat on this court. She is one of the smartest in the judicial branch. There is a reason she and Scalia are good friends away from the court. Two people of the highest intelligence levels. Imagine the private discussions between these two. It would be a great book someday.
“This is also the downside to repeal. The left will convince themselves that everytime they have a majority they should seek to reinstate the scheme.”
Well, we’re stuck with this destructive law if it isn’t repealed...which is an infinitely worse
downside.
Perfectly said and dead-on-target, G.
—They then pretended to keep everyone’s account in a lockbox, but the fact was, it just went into the general fund like any other tax.—
But it really was a tax. It stretches the limits of the English languace to call the mandate a tax. Actually, “stretches” is not a strong enough word. If I am forced to buy something from a private party, it is not a tax. Pure and simple. Ginsberg had it right.
—So, if they don’t buy that it’s a tax, it’s a big deal. —
And that is the problem. No rational human being with any understanding of the English language would call it a tax. Any judge that does so would expose them self has hopelessly activist.
“Skeptical”!?
4. The Individual Mandate Threatens the Foundations of Contract Law
American contract law rests on the principle of mutual assent. If I hold a gun to your head and force you to sign a contract, no court of law will honor that document since I coerced you into signing it. Mutual assent must be present in order for a contract to be valid and binding.
3.The individual mandate cannot be justified under existing Supreme Court precedent.
The Supreme Court has never before granted Congress the unprecedented power to regulate inactivity under the Commerce Clause. If the Court sticks to its own precedents, it won’t do so now.
2. The Individual Mandate Rests on an Unbounded and Unprincipled Assertion of Federal Power
“there is no way to uphold the individual mandate without doing irreparable damage to our basic constitutional system of governance.”
1: The Individual Mandate Violates the Original Meaning of the Constitution
Yet in its decisions in both Wickard v. Filburn and Gonzales v. Raich, the Supreme Court held otherwise, allowing Congress to regulate the wholly intrastate cultivation of wheat and marijuana, respectively. Those decisions cannot be squared with the original meaning of the Commerce Clause. As Justice Clarence Thomas remarked about the majority’s reasoning in Raich, “If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything—and the Federal Government is no longer one of limited and enumerated powers.”
According to the discussion on C-SPAN this morning, the question of whether or not the individual mandate is a tax is important, not because this is one of the main defenses for Obamacare, but because if the justices decide that is is a tax, there is a law that will prevent them from deciding if Obamacare is constitutional until after the tax has actually been charged.
But it is the notion that the Federal government can compel citizens to purchase anything from a private entity under pain of penalty that cannot, and must not survive if America is to survive itself.
I think you are right.
Interesting notes about how Ginsberg et al may rule on the merits of the law for a change. I don’t really hold much hope though since I believe that the lefties are just maneuvering to allow a hearing and confrontation in support of oblabla.
I’ve been reading another book about Afghanistan. In it are a few chapters about the British attempts to manage the country as a buffer to Russian invasion of the crown jewel, India and shoehorning in on the great deal the Brits had in India. The author made the interesting observation that the Brits were successful in maintaining control over the huge mass of millions with only 100,00 troops and administrators in India.. How? By general adherence to the rule of law in a way that was seen as generally fair and even handed. Without the rule-of-law we are nothing but a rabble of heathens living by the the fang and claw.
Maybe the supremes realize that somehow and some can actually respect that for a time?
In the meantime, my insurance has gone up by at least 30% to be oblabla care compliant and I expect more. The whole process has been turned on its head for no good reason. Better could have been done such as allowing purchase across state lines etc.
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