handled them with aplomb...
Posted on 03/27/2012 4:36:28 PM PDT by Clintonfatigued
Paul Clement has been receiving rave reviews for his performance during the second day of oral arguments over health-care reform before the Supreme Court. (“[T]he best argument I’ve ever heard,” SCOTUSblog Tom Goldstein raved on Twitter). But Clement’s finest moment may have come when he was completely silent.
A little more than two minutes into Solicitor General Donald Verilli’s turn at the bar, Justice Anthony Kennedy interrupted him: “Can you create commerce in order to regulate it?”
Kennedy’s query was an almost verbatim recital of Clement’s own talking point, part of the fundamental argument he has made against the individual mandate. In his brief to the Court, and later during his oral argument, he said Obama’s health-care law “represents an unprecedented effort by Congress to compel individuals to enter commerce in order to better regulate commerce.”
It’s a recasting of the original argument used by opponents of the mandate: that Congress has overstepped its constitutional authority by regulating inactivity rather than activity.
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Seen through that lens, Clement has to be feeling pretty good about his experience at the Court earlier today. While he faced tough, bordering-on-hostile questions from the four liberal justices — most notably from Justice Steven Breyer, who seemed to be lecturing more than asking — the two justices who seem most open to persuasion by either side, Kennedy and Chief Justice John Roberts, were far tougher on Verilli. And when they did have questions for Clement, he handled them with aplomb.
(Excerpt) Read more at nymag.com ...
I wish I shared Mr. Zengelre’s confidence in the integrity of SCOTUS...but I do not.
(you'll prolly get tired of this before it's over ;-)
Amen
Even supporters of Obamacare are privately admitting that Paul Clement is doing an effective job. Remember that name. If Obama is defeated for reelection, Clement may be headed for the Supreme Court again, this time as a member.
Me neither!
“Clement may be headed for the Supreme Court again, this time as a member.”
unfortunately Romney has no record of nominating or supporting conservatives for any court anywhere so I wouldn’t hold your breath..
As others have suggested the Individual Mandate was always a throwaway to get the heavy taxes inside the bill enacted. The goal here is to keep the rest of the Bill alive even though there is no sever ability clause in it.
I forgot to ping you to Posting #5.
The lawyer that argued against the government yesterday was similarly excellent...Greg Katsos. I enjoyed listening to him make his argument.
The lawyer that argued against the government yesterday was similarly excellent...Greg Katsos. I enjoyed listening to him make his argument.
And that’s one of my many concerns with Romney getting the nomination.
handled them with aplomb...
In my 60-plus years the government has been ever-expanding. I’ll be very surprised if this expansion is not allowed.
cboldt says:
I think it is pretty clear that the "activity" "inactivity" distinction is a diversion from the text of the constitution.Does Congress have the power to compel commerce?
He didn’t win; whoever wrote the law lost. Perry Mason couldn’t defend the mandate. Lionel Hutz couldn’t fail to argue it down.
That’s an interesting way of looking at it.
New Gummint Business Model:
1. Do nothing until it becomes a crisis
2. Create gummint solution
3. Pass and/or deem it passed by partisan hack legislature
4. Stack the bench to be sure it’s upheld in court
5. Lose money by failing to implement cost controls
6. Make it up in volume (add 25 million to the free HC dole)
There is no temporal limitation in the Commerce Clause. Everyone subject to this regulation is in or will be in the health care market. They are just being regulated in advance.
Kennedy’s comment about compelling people to enter into commerce in order to regulate commerce was funny.
Ok...so the decision is 4-4. NOW what?
“As others have suggested the Individual Mandate was always a throwaway to get the heavy taxes inside the bill enacted”
That is absolutely wrong. The mandate was necessary for preexisting condition coverage, which was Obamacare’s biggest selling point. Well, that and pipe dream of cutting costs, but who believed that whopper, really? I mean, aside from those of u expecting it to come through rationing, á la death panels.
I’m not saying they won’t take the remainder of the bill if they can get it. However, the mandate is the card table upon which the Obamacare house of cards rests. It was the crucial next step on the road to socialization. Without it, we will be going ‘round and ‘round the same rutt we’ve been in since ‘94.
rutt = rut
That may be the worst of the outcomes. Because the Fedgov will then step in and set up socialized medicine to fix the crisis.
5 to 4 striking down Obamacare.
I listened to the audio and read the transcript. Clement was absolutely superb. I am really glad he is on our side. Clement was head and shoulders above the other two.
Neither do I, the SCOTUS always has been a political body, otherwise murdering the unborn would still be illegal. I think they will side in favor of the fascist in chief, I will be very surprised if they don’t.
“Do nothing until it becomes a crisis”
Only saps wait until a problem arises on its own. In the case of healthcare, the gubmint’s beenn guided by the all-powerful Do Something forever. There hasn’t been afree market in that industry since the wage and price controls of WWII tied coverage to employment, if not before.
Step 1 by right ought to be “Muck things up by sticking your nose in where it doesn’t belong.”
I was thinking about this today. They're claiming that EVERYONE is in the market. I disagree. I've known people that have never, ever been to a doctor. Born healthy, deal with it if they're sick, and have had zero time in the "market". This mandate, if upheld is decidedly an infringement upon their freedom FROM the medical market or the medical insurance market.
Think Amish.
Indeed...
That's insane. Without the individual mandate, Obamacare collapses like a house of cards. It becomes financially unsustainable. It is the linchpin of the entire bill.
I agree. Sad when you think about people laughing at the defense’s arguments and still are ready to vote in favor of it.
“There is no temporal limitation in the Commerce Clause. Everyone subject to this regulation is in or will be in the health care market. They are just being regulated in advance.”
What’s most objectionable about this train of thought is not only what you embolden. It’s also the failure to distinguish between the specific market the mandate covers: insurance, and everything else that falls within “the health care market.” I’ll grant that everyone will need healthcare at some point. I’m not very willing to admit everyone will paticipate in what we normally consider to be the healthcare market. If you live in the Ozarks—not to stereotype—perhaps you have cousin Tammy set your broken leg. Tammy’s actions will be economic, in a sense, though won’t in any way count as such to whoever’s measuring the healthcare industry nationwide.
Okay, fine, let’s say everyone will enter the healthcare market as commonly understood. Does it follow that everyone will at some point purchase health insurance? Hell no. They can always pay out of pocket, as ruthlessly gouged as they may be. This lawyer fails to notice that buying healthcare and buying iunsurance are not the same thing. Just because both can be categorized under the heading “healthcare” does not mean you can regulate one as if it’s the other.
And, yes, there is a temporal limitation to the commerce clause. You cannot regulate that which does not yet exist. It would lead to a rip in the space-time continuum, or something.
Basically if you don’t buy something, you are not engaged in commerce, therefore there is nothing you’ve done to come under government regulation via the commerce clause. No commerce has commenced.
Another way to look at it, is in NOT buying something can be regulated under the commerce clause, then there is absolutely nothing that doesn’t fall under the commerce clause for govt regulation. If you buy something or if you don’t, it’s all the same, and all your decisions can be regulated and mandated by govt.
If the court deems it constitutional it’s time to part ways with King George again.
Can some help me on my open thoughts on something? Does my train of logic make sense?
Get as many people on state run co-ops (medicare essentially), where the reimbursement rates are poor. Doctors/hospitals will have to make up the difference by charging more on private plans.
Obamacare uses taxes and regulations on private insurance which will up their rates forcing citizens/companies to drop their private coverage.
Tempt/coerce citizens and employees (with fines lower than their current insurance rates) to dump private plans and go to state “lower costing” co-ops which will make private health plans raise their rates and go out of business.
Gov’t becomes the only player in town.
It’s not about healthcare, it’s about control of the money stream and the people.
Game over.
One of the petitioning lawyers made the statement that failure to buy health insurance does not adversely affect commerce-but defaulting on health care bills is the problem.
Not sure what impact that made, but it really puts this law in proper perspective. The government is trying to solve a problem in one market by requiring participation in another, related market.
The problem is they assume every single person needs health care in order to pay for medical bills. Simply not true. There are also groups of people that do not go to hospitals when ill.
Well come on, the SG knows he has a dog of a case to argue. They know it is unconstitutional, how do you argue something you know is not constitutional, is, convincingly? They have no compelling arguments and they know their position is ridiculous.
The law will stand.
How do you get 4-4?
I’m very careful whenever experts claim than a certain judge will vote one way or another based upon perceived speculations.
Unless you’re in “John Malcovich’s Head”. ;)
I meant health insurance, not health care.
>>Would love this to be a 7-2 against Obamacare the way it was for Bush against Gore.
I stated this in a previous thread. I think either Sotomayor or Kagan will vote against it because Dems are BEGGING Obama to get this swept under the rug, or that Souter and Ginsberg will rule against.
I think the DNC realizes that if this baby is oked by SCOTUS, it will be 2010 all over again and they will lose the White House, federal, and state legislatures en masse.
Which of the justices claimed that "inactivity is an activity"? She had a point. Doing nothing is a choice not to do something.
yitbos
“It’s not about healthcare, it’s about control of the money stream and the people.”
Well, it’s about both. They—or the true believers, anyway (i.e. not the pathological liars)—honestly think “control of the money stream and the people” will give us better healthcare. Needless to say, they’re really, really wrong.
“She had a point. Doing nothing is a choice not to do something”
Whatever nothing is, it is not commerce.
I dunno, haven't been following the case. I just recalled being involved in the semantic argument that relies on "inactivity" as the distinguishing word, and recognized that sophistry can easily turn inactivity into activity, on anything, and probably do the reverse too.
So, I got to looking at the enumerated power stated in the constitution, which is "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." And I figured working inside that framework would be rhetorically simpler. So, if Congress has the power to regulate, does it have the power to compel? Is that a power the constitution grants? Make THAT the question the SCOTUS is answering.
Digging around some, I see I wasn't the first to come up with that formulation (didn't think I would be).
No kidding. I live in a supposedly conservative state that requires me to buy liability insurance for my car. I've never ever had a wreck. Why should the state force me to buy liability insurance?
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