Skip to comments.Left Shocked by Court Developments
Posted on 03/27/2012 1:13:49 PM PDT by Kaslin
RUSH: Grab sound bite two before we get to sound bites 23 and 24. This is last night. We'll do a little timeline here involving Jeff Toobin. Last night on Charlie Rose, CNN legal analyst Jeffrey Toobin -- who, by the way, for those of you old enough to remember, is the son of former NBC News reporter Marlene Sanders. He wrote a big book after the O.J. trial, and he's been at CNN for quite a while. And Charlie Rose said, Jeffrey Toobin, "How big a deal is this Obamacare case at the Supreme Court?"
TOOBIN: Epic! Awesome! Enormous! Huge!
TOOBIN: This is the biggest case involving the power of the federal government since the New Deal. And if this law is struck down, the federal government is gonna look very different the next day. And lots of plans and lots existing programs are in jeopardy. So, I mean, as big as you think this case is, it's actually bigger.
RUSH: Last night, Jeffrey Toobin accurately describes the size and scope of Obamacare. Today, it's Politico "breaking news," but we've got sound bites from CNN. Toobin, quote: "This law looks like it's going to be struck down. I'm telling you, all of the predictions including mine that the justices would not have a problem with this law were wrong... [I]f I had to bet today, Wolf, I would bet that this court is going to strike down the individual mandate." Tom Goldstein, attorney and cofounder, center-left SCOTUS blog: "The individual mandate is in trouble, significant trouble." Los Angeles Times' Noam Levey: "Tuesday's arguments may signal trouble for the mandate, widely seen as a cornerstone of the law's program for achieving universal health care coverage for the first time in the nation's history."
Politico breaking news: "The conservative justices and potential swing vote Anthony Kennedy raised concerns Tuesday that forcing Americans to buy health insurance would open the door to other intrusive requirements from the federal government..." What was so hard to predict about this? This goes right to my point. What's so hard to predict that this thing is unconstitutional? It is unconstitutional. And a Civics 101 student in junior high, after having the Constitution explained to them, would know this. And here come these legal experts: "There's no way that justices are gonna strike this down! There ain't no way," and then after one day of oral arguments, these same experts (probably just as qualified as the economic experts at the Associated Press) say: My God, these justices, they don't like the individual mandate! We're in big trouble.
Here's Jeff Toobin. He's on CNN this afternoon. The coanchor, Ashleigh Banfield, said, "Tell me everything, Jeff. What happened today?"
TOOBIN: This was a train wreck for the Obama administration. This law looks like it's gonna be struck down. Justice Kennedy, the swing vote, was enormously skeptical. Every comment Kennedy made -- uh, at least that I heard -- was skeptical of the law. The wild card in this argument was, uh, Chief Justice Roberts. Chief Justice Roberts actually asked a lot of hard questions. Roberts seemed like a much more likely vote to uphold the law than Kennedy was.
RUSH: See, he had to find something positive after saying today "was a train wreck for the Obama administration." And again he said, "I'm telling you, all of the predictions including mine that the justices would not have a problem with this law were wrong... this court is going to strike down the individual mandate." Wolf Blitzer then weighed in...
BLITZER: This is really huge! Uh, uh, uh, what you're saying -- and you're an authority on the US Supreme Court. You've written the major book on the current Supreme Court -- uh, The Nine. So you fully understand. But just because a justice is asking tough questions, let's say of the government lawyer -- Mr. Verrilli in this case -- that doesn't necessarily mean that that justice is gonna come down on the other side. Isn't that right?
TOOBIN: It's true, but it's not very true, Wolf. Yes, it is true that sometimes we're surprised by the justices' votes after hearing their comments at oral argument. Most of the time -- and it's not all the time, but most of the time -- the questions that the justices ask at oral argument are very good predictors of how they're gonna vote.
RUSH: So the left is in panic! Wolf Blitzer is in panic, looking for a life preserver from Jeff Toobin, who didn't give him one. And they're shocked! This is what's funny. They are shocked. We aren't. Well, we might be because we're surprised that the Constitution is actually being adhered to here, or appears to be.
RUSH: Ladies and gentlemen, I want you to temper your expectations on this. This is just oral argument, and we're nowhere near the vote on this thing and we really don't know how this is gonna go. All we have right now is palpable fear on the left. ... This fascinates me, all of this shock and surprise on the left. The media, court watchers, leftist legal beagles. They are in a state of shock, a legitimate state of shock, folks. They really believed this was gonna sail through. And we have to always keep in mind how relatively young most of these people are, and thus how they've been educated. They didn't get Constitution 101 like I did. They have been taught that the Constitution's a flawed document that needs to be changed whenever it can be.
And this represents the greatest opportunity to do that that they have all ever had. The very fact that Obamacare became law against the objection of a majority of the American people -- and the way it became law, basically under cover of darkness with every legislative trick under the sun being tried -- didn't matter. It didn't matter that it might be illegal. It didn't matter that it might be unconstitutional, because that's precisely what this was about: Making it constitutional by virtue of changing the Constitution and using this law to do it. Then all of a sudden the oral arguments come up today, and the four conservative justices and the so-called swing vote, Anthony Kennedy, all have problems with the mandate.
And they're literally shocked, A, that everybody doesn't have the same worldview of this that they do; and, B, that there is any objection to it at all. Remember for these people the government is the end. It's the be-all, end-all. Government is the final authority. Government is where everything important happens and every important decision happens for everybody. But it didn't go that way today in the case of oral arguments and so now they're scratching their heads and they're genuinely surprised. Jeffrey Toobin is genuinely surprised. The CNN legal guy predicted this would sail through, and they probably were looking at this court's actions on campaign finance law, McCain-Feingold. "Well, if that sailed through, this will."
So where we are with this is the left now blogging incessantly their fears and their hopes at the same time. There is a left-wing blog called SCOTUSblog, Supreme Court of the United States. And this is a very relevant post on that blog: "Towards the end of the argument the most important question was Justice Kennedys. After pressing the government with great questions, Kennedy raised the possibility that the plaintiffs [i.e., the government] were right that the mandate was a unique effort to force people into commerce to subsidize health insurance, but the insurance market may be unique enough to justify that unusual treatment."
So they take all of Kennedy's questioning here, which indicated to Toobin: This thing's dead, this thing is a "train wreck." One question by Kennedy at the end is now given them hope that he might see this as so unique that he would vote for the mandate. A reporter at the Huffing and Puffington Post is saying that it's, quote, "almost entirely unequivocal that a majority of the court thinks Obamacare is unconstitutional." They are scared to death. Lyle Denniston used to be the court reporter for the Baltimore Sun. He posts this:
"If Justice Anthony M. Kennedy can locate a limiting principle in the federal governments defense of the new individual health insurance mandate, or can think of one on his own, the mandate may well survive. If he does, he may take Chief Justice John G. Roberts, Jr., and a majority along with him," and therefore give us a huge winning majority. "But if [Kennedy] does not, the mandate is gone. That is where Tuesdays argument wound up -- with Kennedy, after first displaying a very deep skepticism, leaving the impression that he might yet be the mandates savior." A lot of these blogs are being critical of the solicitor general, the government's lawyer, Mr. "Virility."
One blog is saying: "I can't believe how poorly prepared this guy was on the mandate! I can't believe they sent him up there and he had no idea how to answer these very obvious questions on the mandate." So apparently the government's lawyer didn't do a good job. The left can't believe he wasn't prepared any better. Well, how do you defend the indefensible? What is this guy gonna say? When that burial analogy comes up, he's dead. When the broccoli analogy comes up, he's dead. If you're up arguing before the Supreme Court that the government has the right to require us to buy health insurance, then why not burial insurance? Why not broccoli?
This guy had no answer for that other than a bunch of gobbledygook. And all of his supporters watching this know what a poor job he did, and so now they're worried, and they've just go on a little carrot. Anthony Kennedy gave 'em a little carrot dangling there at the far end of the mine. It's right down there next to the canary. He might find a way. This situation is so unique and we're talking about health care, so maybe this could be okay. That's what they're desperately hoping. But their instincts tell them that it was a "train wreck" today. And I must tell you, I still find it... I don't know, I guess I shouldn't, 'cause I know how they were educated (which was poorly). I'm still struck by the fact that they're surprised, that they're shocked.
What world do they live in?
This could not have been the first day in their lives that they've heard these objections to the mandate. But what if it is? What if they live in such a close-knit circle and they hang around only with each other? What if it actually was the first time they've heard these objections? That can't be! These objections, these arguments, against the mandate have been made throughout the media everywhere. So I guess they just locked in on the idea that it doesn't have a prayer of losing. But like so much of liberalism, and like so many liberals, they live in their cloistered world of the faculty lounge. They sit around and they talk theory all day. They don't understand dynamism. Everything is static to them.
And then they get confronted with reality one day and it's like a cold shower or a slap upside the head and they are bewildered. And it still amazes me that people who are reputed to be so intelligent and so smart can be so surprised when they hear arguments -- logical arguments -- that make it obvious this is unconstitutional. But, again, I fall back on something we must never forget, and that is: This is not about health care and it's not about the mandate per se. It's about changing the Constitution. Not piecemeal with this one. This is huge. If you have it codified as the law of the land that the government can make you buy something? Then, my friends, the Constitution has finally been defeated -- and that's what they can taste. In fact, it's in their grasp, but it's a little slippery and they can't hold onto it.
But it's right there.
RUSH: Wolf Blitzer was in hysterics moment ago on CNN. He had the congressional correspondent Kate Bolduan on. They had this exchange. We already heard Toobin. Blitzer is beside himself with what happened today on oral arguments.
BLITZER: Kate, you were inside the courtroom! The solicitor general, uh, Donald Verrilli, uh, was he sort of stumbling? Did he not have the right answers? Uh, did he seem unprepared and overly nervous in responding to the conservative justices' tough questioning?
BOLDUAN: It's hard to get into his mind. But I can say, if you compare it to yesterday, he did appear to stumble more; almost seem apologetic for some of the answers that he was giving.
RUSH: Yeah. Yeah. So now it's time to dump on "Virility" here, the government lawyer. Blitzer: "[W]as he sort of stumbling? Did he not have the right answers? Did he seen unprepared...?" Wolf, you go defend this law up there and see how you do. There isn't anybody who can! Obama's not even trying to defend it. Pelosi's only defense is, "What do you mean 'unconstitutional'? Don't be silly!" Nobody can defend this. Nobody. It isn't constitutional.
I pray that I am wrong... but I swear that I can see the end of our Republic in our time... and that pains me worse than death. Maybe I shouldn't care as much as I do or love my Republic as much as I do or base my life on our Freedoms and Liberty as much as I do... but I am a GOD fearing Patriot and I know no other way.
It's possible that Obama shot himself in the foot if Sotomayer is too radical. Radical leftists don't handle disagreeing opinions well.
She might just as easily wind up pissing off Kennedy enough that he votes against anything she promotes.
THIS IS NOT TOO FAR FETCHED. IF THE GOV'T ARGUMENT IS, "We can make young people buy health insurance so that they are not an economic strain when they get older and in poor health", it is not far fetched to imagine the Gov't forcing people to buy broccoli and other "health foods" so that they will not be an economic drain when they are older and in poor health.
And if the lib argues "That's ridiculous!", tell him about Kennesaw, Georgia, where they did indeed mandate firearms ownership.
Kelso and Lawrence v. Texas both make me shiver. I enjoyed reading this, but I am not totally optimistic. It could very easily go against us.
However, the one thing, the major thing that I keep coming back to, is that Obama has seriously offended the Justices of the Supreme Court on more than one occasion — and judges have long memories.
And remember, the Supremes — like congress — is a co-equal branch of the government. Even the Liberal justices are probably a bit irritated about the disregard Obama has showne for the rule of law.
I just hope I am not clinging to straws.
Beware commies squealing in harmony.
That would certainly explain all the fake noise coming out of the Archdiocese of NY about it: It's all been theater.
I like the way you see the macro view, zooming out to show us the real consequences. As you say, next they will insist on universal housing, college, vehicles and nutrition dictated by Big Brother.
This got me thinking... if the fedguv is overseeing all health care expenditures, won’t it have to use actuaries just like private insurers do? They would need to approve/refuse treatments and coverage just as Big Insurance does now.
Consider this: do I have to pay identical premiums of an alcoholic, an openly gay young man, or an extreme motocross high jumper, or a street gangster, or a chain smoker, a 500 pound man, a martial arts cage fighter? All of these are demonstrably more dangerous and promise large medical bills.
I’m a boring white collar man who stays in shape and drinks a few beers now and then. Do I pay exactly the same as they do? When the government is the only insurer left in the game (that IS their stated goal) will they offer custom-packaged coverage tiers?
Will the lone insurer (gov) penalize or fee individuals based on their behavior? If not, why not? Boring folks like me will be getting ripped off big time. This pandoras box will bring forth a monster, with even uglier monsters in its’ wake.
How much protection do the justices have?
I would suggest that Kennedy and maybe the rest of them should have a little Secret Service protection for the next couple months.
The suspect is awful.I sure hope that they can see the subversion of our constitution that this bill contains and reject the whole thing.
yeah, I remember that, it was Bush41. Personally I love Broccoli any which way
You make an excellent point. While I don’t know that that is necessarily true, I don’t think it is that far fetched.
We attorneys know all too well that in complicated issues you ALWAYS give the Court something it can throw away because you want to win on the issue that means the most to you. Any attorney can tell you that they do that all the time.
As I type this, I wonder if you might not be on to something.
It is too and no one has ever challenged it.Welfare and all of the other social programs IMHO are too.The constitution does not allow the federal government the power it has taken over the years.That power is supposed to be left to the states and the people.
At times it seems the wheels of justice grind slowly, and your advise is the best advise, to sit and wait.... and don’t get the judge mad at you.
Fascinating. Really appreciate the link. While I have followed the issue (Obamacare), I gladly concede that this aspect has never occurred to me. However, since you (and some other) may have pointed it out, I find it not only plausible but “could very well be”. Like I said in another post, we attorneys ALWAYS (in complex issues) give the Judge/Court something to throw away. We always have an issue (maybe two) we don’t mind losing just so we can keep our core issue.
For you that have considered this as a possibility. Good call. I think the real smoking gun here is the Obama Admin backing off the “this is a tax” issue to let the Court pitch it.
In short .... hmmmmmm.
“...but I’ll vote for the Republican candidate in November regardless - because the alternative is our nation’s destruction.”
I hope that everyone reads your paragraph very carefully. This is a high-stakes game. Yesterday’s “open mike” slip-up is just a tiny, tiny peek behind the curtain.
Yes, I remember that was the talk of the town back then. The bigger problem was that the officer who gave the ticket did not allow a full explanation of the situation at the scene.
I hope its right that its not going well for ObamaCare.
We will know more in June when they release their decision.
It isn’t going well when the Court breaks out in laughter
at the Government’s (Obama’s lawyer’s) argument.
If, though, the questions they ask cannot be answered or are answered very poorly, surely that means something.
“Why not broccoli?”
It's good for you. It's business. Go buy enough for B a day. What's different about that?
Well, yer honor, broccoli is green and an insurance policy is in the red....what...do I look like a grocer?
Judge Judy on TV right now-just called the Plaintiff she had terrible taste in men, she needed to get a life and then yelled at her and called her a nutjob.
Then Judge Judy ruled in her favor...
ya never know...
Mrs CT Hillbilly (in bed with a cold and forced to watch TV alone with my germs...sigh...)
Anyone who thought she would recuse herself is fooling themselves. She is a leftists and they are above conflicts of interest. Even if she went to dinner with Sebellius last night and recieved her orders, she still wouldn’t see that as a conflict of interest.
forcing people to engage in commerce is not regulating it
Anyone else find it amusing that the anti-capitalist will be upset if they can’t force all Americans (exclding their voting block) to buy healthcare.
Control freak commie progs!
I’m not depending upon Romney to appoint conservatives - but at least we might get a moderate or 2 instead of outright radicals like Kagan and Sotomayor. Anyhow, there are other issues besides the courts, like foreign policy. On that score I’m certain that Romney will be a lot better than this appeasing, bowing, America-hater. Still, Romney’s not my first choice (2nd to last, only ahead of the irrelevant Ron Paul). Actually, he’ll also be my 2nd to last choice in the General Election.
Obama delenda est.
This is a GREAT exchange ...
MR. CARVIN: No, no, no. I was — they create this strawman that says: Look, the only alternative to doing it the way we’ve done it, if we condition access to health care on buying health insurance, the only way you can enforce that is making sick people not get care. I’m saying no, no.
There’s a perfectly legitimate way they could enforce their alternative, i.e., requiring you to buy health insurance when you access health care, which is the same penalty structure that’s in the Act.
There is no moral dilemma between having people have insurance and denying them emergency service. Congress has made a perfectly legitimate value judgment that they want to make sure that people get emergency care. Since the founding, whenever Congress has imposed that public responsibility on private actors, it has subsidized it from the Federal Treasury. It has not conscripted a subset of the citizenry and made them subsidize the actors who are being hurt, which is what they’re doing here.
They’re making young, healthy people subsidize insurance premiums for the cost that the nondiscrimination provisions have put on insurance premiums and insurance companies.
JUSTICE SOTOMAYOR: So the -
MR. CARVIN: And that is the fundamental problem here.
JUSTICE SOTOMAYOR: So the — I — I want to understand the choices you’re saying Congress has. Congress can tax everybody and set up a public health care system.
MR. CARVIN: Yes.
JUSTICE SOTOMAYOR: That would be okay?
MR. CARVIN: Yes. Tax power is -
JUSTICE SOTOMAYOR: Okay.
MR. CARVIN: I would accept that.
JUSTICE SOTOMAYOR: Congress can — are you taking the same position as your colleague, Congress can’t say we’re going to set up a public health system, but you can get a tax credit if you have private health insurance because you won’t access the public system. Are you taking the same position as your colleague?
MR. CARVIN: There may have been some confusion in your prior colloquy. I fully agree with my brother Clement that a direct tax would be unconstitutional. I don’t think he means to suggest, nor do I, that a tax credit that incentivizes you to buy insurance creates a problem. Congress incentivizes all kinds of activities. If they gave us a tax credit for buying insurance, then it would be our choice whether or not that makes economic sense, even though -
JUSTICE SOTOMAYOR: So how is this different than this Act, which says if a taxpayer fails to meet the requirement of having minimum coverage, then they are responsible for paying the shared responsibility payment?
MR. CARVIN: The difference is that the taxpayer is not given a choice ...
Yes; if you generally fit the catagory of the FSA (Free $hit Army), then you'll be rewarded. If not, too bad for you.
Boring folks like me will be getting ripped off big time. This pandoras box will bring forth a monster, with even uglier monsters in its wake.
Boring folks like you (and me, and most conservatives) have been, are, and will continue to be ripped off - big time...and it'll get worse with time, until enough of us go Galt. The monster you speak of is a collapsing system, brought about by penalizing hard work, honesty and thrift. It happened to Rome, it'll happen to us. It'll just happen faster if this abomination is allowed to stand and/or if Obama gets a 2nd term.
Obama delenda est.
Thanks for your insight and participation at Free Republic.
Thanks!! I have dome to really enjoy it here. =) Really like the people.
A very telling fact that bodes ill here is Kagen did not recuse. That makes one think it’s dog and pony show from the beginning.
We have had decades of the Supremes ignoring major parts of the Constitution and forcing the term “the People” into the Commerce clause. When did we pass an Amendment authorizing a 2nd Prohibition?
Ask a liberal: If the government can force you to buy health insurance, can the government force you to buy a firearm?
And he'll reply, "No, of course not, that would be silly and unproductive -- like you, because you're right-wing scum, whereas I am an enlightened and bien-pensant human being."
But your point is well-taken, that the mandate is a reinvention of the French Grand Gabelle, the Salt Tax, the most hated tax in human history excepting perhaps the Turkish "Toll of Boys" (their levy of Christian children for service as janissaries, and for constant pressure to convert to Islam).
French taxpayers were forced to buy salt from the King at various onerous rates around the country, under a royal monopoly. Exact same idea as Obamacare.
And I have been fascinated by the suggestion that the “individual mandate” is a throw away. As I’ve said, it just didn’t occur to me. What I can’t quite get around is why did they not include a severability clause? Of course, the Court may still not throw the whole thing out but only the mandate, but not having that clause does make that a bit more problematic.
Nice insight all who saw this as a possible throw away.
Mitt Romney. Another Romneybot argument.
That is the real blackmail the Left counted on to bring the Supreme Court along when they passed Obamacare. Too many applecarts would be upset, and that is the argument that will swing "rusty gate" Kennedy, Kennedy of Lawrence vs. Texas, swinging their way again.
As long as we have a Supreme Court, we have a government of men, not a government of laws -- that is the damage John Marshall did.
Left-wing law isn't lawyering, it's conspiracy.
Remember the public bitch-slapping Obozo gave the Court during the SOTU address two years ago?
“Ask a liberal: If the government can force you to buy health insurance, can the government force you to buy a firearm?”
Oddly enough, liberals have brought this up as a justification for the ObamaCare mandate. President George Washington signed the Militia Act of 1792, which required able-bodied male citizens to buy a musket or firelock, etc.
The problem with this argument (for them) is that Article 1 Section 8 of the U.S. Constitution says that Congress shall have the power to:
“To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;”
So this is an express power given to Congress that does not rely on stretching out the interstate commerce clause to infinity.
RIghtwardHo, Thank you for your input. I have two serious, yet humorous, questions. Based on the assertion that Obamacare is constitutional, can a legislated and signed law compel ALL federal justices to wear orange jumpsuits, or better, striped tunics, like prisonors wear?
Second, why not legislate a law that all able bodied and minded adults HAVE to purchase a handgun?
If Congress exempts federal workers, which it has, if members of SCOTUS shall have their own healthcare, which it will, then o’bamacare is DOA.
IIRC, there is not a “severability (?)” clause written into the bill that would protect individual parts of the bill if the mandate is found unconstitutional.
If any part is found unconstitutional, I believe its dead.
“I believe that if the opinion doesnt go her way that she will try to fiddle with the final text in order to achieve her end.”
And Kagan has a history of “fiddling with texts” going back to the partial birth abortion ban case.
Not according to Rush, but I hope it's so.
If the individual mandate stands America is over.
I’ll move at least my money elsewhere.
Reason - this court has in it's hands the biggest hot-potato in US history, and they don't want to be burned by destroying it entirely.
I think we'll see only the individual mandate given the ax - letting the whole of the rest of it stand, 'for further clarification.'
Me too, but there is a good chance. Here's some links via Bing:
I’ve had a judge try to teach the opposing side what arguments they should use. They ignored him and continued to misargue the case. They blew it over and over and over again. The judge in his ruling pointed this out to them and then ruled against me.
Im a boring white collar man who stays in shape and drinks a few beers now and then. Do I pay exactly the same as they do?
See: Maine individual market rates.
The health insurance market destroyed by Guaranteed Issue and Community Rating is now just coming back.
Do you think the Founders planned that just one man, Kennedy and his “swing” vote, should decide the fate of 300 million?
According to this article, they forgot to include it. I think those 3,000 pages were put together with an eye towards quantity, not quality.