Skip to comments.Supreme Court Skeptical On Obama’s Defense Of ObamaCare
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 Obamas 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, todays 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 its successful, there wont be any revenue raised, said Justice Ruth Bader Ginsburg of the mandate.
Another liberal on the court, Justice Stephen Breyer, said of Congresss 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.
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.
‘todays 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
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.
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 wont 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 majoritys reasoning in Raich, If Congress can regulate this under the Commerce Clause, then it can regulate virtually anythingand 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.
kagen and stomayor and bryer were in unison
It just smacks of election-year politics; striking down any part of this law opens the door for all kinds of attacks against conservatives as being hateful, mean spirited, and (of course) racist.
so if jurisdiction exists and the law is struck down, they will have two years to “get it right”.
(if they can revive it)
so if jurisdiction exists and the law is struck down, they will have two years to “get it right”.
(if they can revive it)
That is wishful thinking my friend. Once you join the left, you become a member of a tribe of like-thinking party people. Reason and critical thinking don't matter, only what the powers that be want to do. Conservatives adhere to the rule of law because that is their philosophy. Liberals believe the rule of law is a crock, just something to use when it is on your side, and to ignore when it is not. Ginsberg has shown no inclination lately or at any time in her long and shameful career to have any independence of thought.
The last Democrat Supreme Court pick who was honest and adhered to the rule of law was Whizzer White. He's been gone a long time.
I know you are right, I have no illusions but still cling to hope no matter how shallow and ephemeral it may be.
Ginsberg has never once disappointed those who expect her to lurch to the left given an opportunity.
The left uses the law while others may respect it.
I wouldn't want to rely on that argument, though. I just think that the mandate is not allowed, and further, eventually, we need to revisit Wickard v. Fillburn and the line of cases that basically allowed the federal government to do whatever it wants, eviscerating the notion of limited powers.
-—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.——
How can a Leftist be brilliant?
Maybe she possesses raw intelligence. I don’t know. But if she is a Leftist, she must be unable to apply her thinking skills to the world around her, in which case, her “intelligence” is worthless.
If what you say is true, she most likely lacks wisdom —intelligence without virtue. If she’s pro-abortion, this conclusion is a certainty.
The Demonrats don’t have the House anymore.
Dictator Baby-Doc Barack has ALWAYS ignored The US Constitution, ESPECIALLY with Obamacare.
The cancer of Obamacare now has invaded World Finances as Obama last week choose a Public health expert for the World Bank Presidency.
Romney has promised to Repeal and REPLACE Obamacare.
Senator (R Tn) Son-of-a-Mitch McConnell has promised to Repeal and REPLACE Obamacare.
The major problem with THE NINE SUPREMES is that they are chosen for political reasons by the POTUS, and then they vote as an un-accountable democracy, for a Nation that is NOT a Democracy, but a REPUBLIC.
As a result, THE NINE SUPREMES commonly vote 5 to 4 on most issues. Constitutionality is seldom a consideration, and their up-coming ruling on Obamacare will prove my point.
Now is the time to stand and deliver to address our grievances to the dictates of the Left.
Oppose the dictates of Dictator Baby-Doc Barack!
Our ONLY chance to ABOLISH Obamacare rests with THE NINE SUPREMES, because Romney will be defeated by Obama.
IMHO, if Romney is anointed as the RNC Nominee, THE main issue in the National Election, Obamacare, will be taken off the campaign table. Hence, Romney will not only lose, but suffer another crushing, and sadly typical, RINO defeat.
To those who want poster ideas, here are a few ideas for demonstration posters:
Obamacare was robo-signed by Congress, and is therefore illegal.
Obamacare was 2700 pages long, and is still being written, but not by Congress: witness the forced contraception coverage recently added by HHS Regulators.
Obamacare has caused The Catholic Spring.
Obamacare reduces competition, and therefore is illegal by the 1890 Sherman Anti-Trust Law.
Obamacare is designed to be a US Federal Government monopoly, with no competition.
Obamacare also is illegal according to the US Constitution, because it violates our freedom of choice.
Will THE NINE SUPREMES notice any of these three violations? I seriously doubt it.
Impeached Bill Clinton proved that the US President is above US Federal Law, so anything that the President wants he gets, regardless of the Federal Laws that he has violated.
In other words, our brains or our signatures on the contract. Hello, Luca Brazzi.
Tribe. - interesting selection of words.
Tribal loyalties are always the strongest.
But there is also the issue of the General Welfare clause, similarly warped by statists into a grant of Federal license to justify the exercise of non-delegated powers to the legislature. In either case, I think that Anthony Kennedy and perhaps one or two other non-conservatives may find it within themselves to ignore the tug of political pressure systems and recognize the explicit limits our founders placed upon Congress with respect to regulating purely voluntary human activities in commerce or in private life.
Agree with you. How true.
All we have to do is look to the East.
I don’t think overturning Wickard is in the cards, but it has to be invalidated at some point in the near future if we are to restore limited government. I’d like to win this election, and get a couple more good conservatives on the court first.
>>...Well, were stuck with this destructive law if it isnt repealed...which is an infinitely worse downside...<<
Friend, if Obamacare is not repealed and is ruled constitutional, Obamacare will be the least of our worries.
The fed congress will read that ruling as a signal that anything they can possibly imagine is allowable and the atrocities they can think up after that will make Obamacare laughable in comparison.
The SCOTUS decision on Obamacare needs to be absolutely decisive to send the message that congress was WAAAAAAY out of bounds on this one. But I doubt it. Sotomayor and Kagan can be expected to take magnificent leaps in logic to torture the constitution until Obamacare fits. Not too confident about Souter and Ginsberg either. I remain hopeful that it comes down to the usual 5 to 4 split, with Obamacare losing.
It is worrisome, to say the least.
This pattern repeats itself in EVERY pivotal case before an appelate or supreme court. ALWAYS the first few days the suckers think the leftist judges are seeing the light. But it never pans out. Maybe this time Charlie Brown will kick the football, but history is not his friend.
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