Skip to comments.White House Shifts Legal Gears as ObamaCare Heads to Supreme Court
Posted on 03/20/2012 7:58:08 AM PDT by Mikey_1962
The pressure of the continuing countdown to Monday, March 26, when the Supreme Court takes on the challenge to ObamaCare, has forced legal advisors to the White House to change their strategy in hopes of successfully rebuffing it and preserving the Obama administrations key legislative victory signed into law in March, 2010.
Its all about the mandate and whether it can be sustained by claiming justification for it under a generous reading of the Commerce Clause (Article 1, Section 8, Clause 3) in the Constitution. Without that mandate, the administration claims that the rest of the law would necessarily fail due to its excessive costs. The Congressional Budget Office just reported that those costs would be double what the Obama administration touted in its cram-down of the law two years ago. And another CBO study said that, if implemented, millions of citizens between 3 million and 20 million would actually lose their present coverage, while public polls continue to show declining support for the whole idea of the federal governments virtual takeover of the countrys health delivery system.
An ABC News/Washington Post poll taken in January showed that most of those polled think that ObamaCare, if implemented, will cost jobs, hurt the economy, and cost more than projected. Last weeks poll from the same source showed that two-thirds of those polled say the U.S. Supreme Court should throw out either the individual mandate or the law in its entirety. According to the pollsters, "[T]he law has never earned majority support in ABC/Post polls and this update finds a strong sense its critics are dominating the debate. Seventy percent of Americans report hearing mainly negative things about the law "
Another measure of the intensity surrounding the pending Supreme Court hearings (a record six hours are scheduled over three days next week) is the number of amicus" or "friend of the court" briefs that have been submitted by parties who are interested in influencing the outcome of a lawsuit but who are not parties to it. Reuters reported that 136 briefs have been filed with the court (a stack about two feet high), a third more than the previous record number filed back in 2003 over an affirmative action lawsuit involving the University of Michigan.
The change in strategy moves the defense of ObamaCare away from the Commerce Clause and directs it instead to the Necessary and Proper Clause (Article 1, Section 8, Clause 18) of the Constitution, which reads:
The Congress shall have Power To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
The argument goes like this: Because its [allegedly] proper for the government to reform the interstate market in health insurance by requiring insurance companies to cover everyone regardless of health status without charging higher premiums, then it follows that the mandate forcing participation is necessary and proper to keep the additional costs that regulation would cause from bankrupting the country.
The White House recognizes the reality that they have four justices likely to support ObamaCare, and four who are likely to rule against it, leaving one Justice Antonin Scalia in the middle. In a previous case, Gonzales v. Raich, Scalia noted in a separate opinion that the federal government could prevent people from growing their own medical marijuana as a necessary and proper way of carrying out the governments broader power to criminalize drug usage. Such a claim, using Scalias own argument, is giving the White House the opening it needs to keep Scalia in line, remain consistent and force him to side with the administration on the matter.
With so much attention about to be directed to the Supreme Courts hearings next week, it is going to be hard for the court to avoid offending someone. If ObamaCare is upheld, the Supremes suffer in the court of public opinion. If ObamaCare is ruled unconstitutional, the Obama administration will suffer a grievous, perhaps fatal, blow to its reelection efforts.
Of course, analysts have pointed out that the court just may find a way to delay making any decision at all until after the election, thereby offending everyone and confirming for observers that the rule of law no longer matters and that the federal government is free to do whatever it pleases in disregard of the Constitution altogether.
The people know the truth.
I wonder if the people know the following:
HOME SALES TAX
I thought you might find this interesting, — maybe even SICKENING!
The National Association of Realtors is all over this and working to get it repealed, — before it takes effect. But, I am very pleased we aren’t the only ones who know about this ploy to steal billions from unsuspecting homeowners. How many realtors do you think will vote Democratic in 2012?
Did you know that if you sell your house after 2012 you will pay a 3.8% sales tax on it? That’s $3,800 on a $100,000 home, etc. When did this happen? It’s in the health care bill, — and it goes into effect in 2013. Why 2013? Could it be so that it doesnt come to light until after the 2012 elections? So, this is change you can believe in?
Under the new health care bill all real estate transactions will be subject to a 3.8% sales tax.
If you sell a $400,000 home, there will be a $15,200 tax. This bill is set to screw the retiring generation, — who often downsize their homes. Does this make your November, 2012 vote more important?
Oh, you weren’t aware that this was in the ObamaCare bill? Guess what; you aren’t alone! There are more than a few members of Congress that weren’t aware of it either.
You can check this out for yourself at:
I hope you forward this to every single person in your address book.
VOTERS NEED TO KNOW
It sounds more to me like a sign of desperation if they have decided to completely change their strategy a week before oral arguments...
The undocumented pRes_ _ent will lie, destroy further
the Constitution, and SCOTUS will love him for it.
so the people who paid their way,m paid their bills, did what is responsible get shafted again while those living in rentals and have no desire to ever own but stay and play playstation or canvas for the lefts agenda while getting a few bucks reap the rewards.
I just KNEW that it would come down to that! That Opinion was one of the worst ever handed down.
The Supreme Court is supposed to be beyond reproach from public opinion, which is why they are appointed for life.
“If ObamaCare is upheld, the Supremes suffer in the court of public opinion.”
This really will be a test for the Supreme Court. At a time when faith in public institutions is rapidly eroding, a decision to prop up ObamaCare by the Supreme Court pretty much would be a formal announcement that the Constitution which founded the nation is no longer in effect.
—...Scalia noted in a separate opinion that the federal government could prevent people from growing their own medical marijuana as a necessary and proper ...—
I almost laughed out loud at that one. Preventing someone from doing something and FORCING someone to do something are two completely different things. That is the problem with the mandate from the git-go.
I really can’t believe a single judge could side with Obama on this if they have a shred of respect for the spirit of the constitutions of the US.
And each and everyone one of them should be tared, feathered and run out of town on a rail for NOT knowing it and voting for it anyway!
Sounds to me like they have been saving thier "best" arguments till the end, especially given Scalia's predeliction overreaching the commerce clause ...
Necessary laws implement enumerated powers. The entirety of Obamacare fails this test.
Proper laws are consistent with a government dedicated to liberty, our unalienable rights as guaranteed by the Ninth Amendment. Forcing citizens to enter into private contracts is a direct assault on what little remains of the Ninth.
Which is totally unrelated to this case, and isn't in any way similar.
Pot is illegal under Federal law, even medical pot, unless in DR proscribed FDA approved form. Private health Ins, or the total lack thereof, has never been illegal and isn't now.
Absolutely. When I read it, it looked like an absurd comparison.
That happened a very long time ago ...
Keep Scalia in line, hahahaha.
Justice Scalia ruled that the gummint could prevent people from growing an ILLEGAL PRODUCT because there was a law already on the books against it.
This in no way "forces Scalia to side with the administration" and if obama's legal team tries to go heavy handed with him, Scalia will show them why our people had such respect for the real Brotherhood.
Ah, but therein lies the rub! The regulation of interstate commerce is an enumerated power. The court, in Gonzales vs. Raich concluded that a product (in that case medical marijuana) that was privately grown for private consumption was never more than "one step away" from interstate commerce - and therefore the Federal Government could pass laws "necessary and proper" to prohibit sich growth.
Health Care is a "product" and, as such - never more than one step away from interstate commerce ....
Forcing citizens to enter into private contracts is a direct assault on what little remains of the Ninth.
The argument they are using is: "that a person's decision to not buy health insurance affects commerce by materially increasing the costs of others' health insurance."
When Gonzales vs. Raich was handed down, I substituted tomatoes to make a point - it applies here as well (and makes a mockery of this argument as it did the decision then): a person's decision to not buy tomatoes affects commerce by materially increasing the costs of others' tomatoes.
Oh, it is VERY related! The case was NOT argued based on the Illegality of Marijauna, but whether the federal government had the power to regulate it under the commerce clause! This was the case where Scalia established the "one step away from interstate commerce" test.
The argument here is that by NOT engaging in commerce, you are adversely affecting the price others must pay (I know, oxymoron), thus under the powers "necessary and proper" to the commerce clause, the Federal government can oblige you to engage in said commerce.
Really? If you absolutely need tomatoes and the government prevents you from growing them yourself, are you not forced to purchase them? (Assuming of course, you only avail yourself of legal avenues of procurement).
Something that doesn't exist can't be transported.
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