Posted on 03/27/2012 1:13:49 PM PDT by Kaslin
BEGIN TRANSCRIPT
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!
ROSE: (guffawing)
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.
BREAK TRANSCRIPT
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 Kennedy’s. 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 government’s 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 Tuesday’s argument wound up -- with Kennedy, after first displaying a very deep skepticism, leaving the impression that he might yet be the mandate’s 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.
Right there.
BREAK TRANSCRIPT
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.
END TRANSCRIPT
I just hope the next conservative super majority mandates that everyone needs to purchase a gun, a bible, and must eat meat. Oh, and they must listen to both Rush and Mark Levin. We should also have the EPA ban Birkenstocks and nose piercings. The Department of Energy could actually promote energy production and ...
When’s the ruling due?
It's a kind of perversion of "enlightened self interest". They can't make it in the marketplace (of ideas or goods), so they look to enrich themselves via the gift of gab, i.e., talking people into TAKING YOUR MONEY.
Toobin was a disgusting Clinton defender who had liplock on his posterior during impeachment.
The Chief Justice really cannot “control” the other members of the court. It is mostly a procedure and somewhat symbolic title.
LLS
Kind of like what a Speaker of the House is SUPPOSED to do?
“?”
LLS,
PFL=Ping For Later. I did not have time to read this thread earlier today. I guess you were the last post at that point.
Sorry for the confusion.
Correct me if I’m wrong, but I thought I read at one point that there was a severability clause in the Act, but that Congress removed it before the vote.
My understanding is that Part A of Medicare is mandatory. No one who reaches the age of 65 can refuse it. By law you are required to sign up for it and have to give proof that you don’t need Part B. Please correct me if I am wrong, because if I am, I was lied to by a federal employee.
If Congress can regulate commerce by doing this, then they can literally do anything at all.
That throws the idea of a federal government of limited, enumerated powers out the window.
One can only hope the justices want the SCOTUS to keep its portion of the governing power. Surely they realize that if they rule in favor of forcible contracts they will not be exempt from any future "laws" enacted by a Pelosi-style congress. A Supreme Court is hardly necessary for a dictatorship. It's essentially like they'd be choosing their own instrument of death.
TITLE IX—REVENUE PROVISIONS
Subtitle A—Revenue Offset Provisions
Sec. 9001. Excise tax on high cost employer-sponsored health coverage.
Sec. 9002. Inclusion of cost of employer-sponsored health coverage on W–2.
Sec. 9003. Distributions for medicine qualified only if for prescribed drug or insulin.
Sec. 9004. Increase in additional tax on distributions from HSAs and Archer MSAs
not used for qualified medical expenses.
Sec. 9005. Limitation on health flexible spending arrangements under cafeteria
plans.
Sec. 9006. Expansion of information reporting requirements.
Sec. 9007. Additional requirements for charitable hospitals.
Sec. 9008. Imposition of annual fee on branded prescription pharmaceutical manufacturers and importers.
Sec. 9009. Imposition of annual fee on medical device manufacturers and importers.
Sec. 9010. Imposition of annual fee on health insurance providers.
Sec. 9011. Study and report of effect on veterans health care.
Sec. 9012. Elimination of deduction for expenses allocable to Medicare Part D subsidy.
Sec. 9013. Modification of itemized deduction for medical expenses.
Sec. 9014. Limitation on excessive remuneration paid by certain health insurance
providers.
Sec. 9015. Additional hospital insurance tax on high-income taxpayers.
Sec. 9016. Modification of section 833 treatment of certain health organizations.
Sec. 9017. Excise tax on elective cosmetic medical procedures.
Subtitle B—Other Provisions
Sec. 9021. Exclusion of health benefits provided by Indian tribal governments.
Sec. 9022. Establishment of simple cafeteria plans for small businesses.
Sec. 9023. Qualifying therapeutic discovery project credit
These are the real taxes in Obamacare that no one talks about and that will be left standing as long as severability is deemed as implied.
To me it does not compute that the democrat lawyer could be such a bungler. I think it’s an act.
I think it’s possible Obama’s lawyers could care less that the individual mandate to be flushed. They don’t have to worry about the political consequences of getting ten millions of people to part with a part of their paycheck for mandated health coverage, and they can blame it on Republicans if health coverage is hard to come by.
But they get the power to tax just about anything they want. Look at Sec. 9017, that is a quintessential example of what was written by what can only be described as a class warfare hack.
Title IX would never have passed on its own, instead it was buried under a whole slew of red herrings. Obama lawyers and the media have framed the debate around those red herrings. Could they be that smart? that cunning? Um....yep.
And the issue of ‘severability’? Joe Sixpack will be snoring away after 30 seconds of discussing severability yet severability is the issue that supports Title IX.
God I wish the Stupid Party would get smart and nasty. We’re dealing with some poker sharks here and all the Stupid Party can do is chase the red herring of commerce clause overreach. They should instead be attacking the democrats for threatening to remove the tax exemption of employer sponsored health plans. Hear anything like that? Nope.
The politics of murder.
I’ve gone beyond shock to total rage.
The more I read of the withering questions of Kennedy, the more I feel the fix is in.
_________________________________
I agree and I think the reason is if they get rid of the mandate, leave the rest, they know we will end up with single payer socialized medicine. The entire bill needs to be shredded.
June ...
I think the severability clause was not made explicit because of a couple of reasons.
First, including a severability clause might beg the question of what was so important outside the individual mandate that they would want to keep? In other words severability could invite closer scrutiny on other provisions.
Second, recent case law or understandings may be sufficient to deem severability is implied if it is not made explicit, or if non-severable is made explicit. Perhaps you can comment on this.
I have the example I work in with international purchase contracts and the issue of ‘irrevocable’ with respect to contract provisions. The International Chamber of Commerce wrote in their latest rules that ‘irrevocable’ is implied if it is not written explicitly unless ‘revocable’ was specified.
So Scalia, Alito, and Roberts are going to support the individual mandate based on their questions that skewered the government? I understand the conventional lawyer fallback that you can’t gauge an opinion based on questioning, but I believe it gives you a pretty good idea. Look at the big cases out there. You don’t see the conservatives hammering the conservative side and the libs hammering the liberal side. At least not with any consistency.
Medicare is an expression of the federal government’s powers to tax and spend — powers which may have Constitutional limits, but none have been found by any court. No one is forced to do anything under Medicare besides pay those taxes.
With 51 votes in the Senate and 318 in the House, Obama could expand Medicare to everyone in the country with nothing the Supreme Court could have said about it. Obama didn’t have the votes, and Obamacare was the dodge.
Thank you for your insight. There are so many innuendos and theories and stories about this that it’s nice to hear some common sense with actual experience to back it up.
“If Congress can regulate commerce by doing this, then they can literally do anything at all.
That is the bottom line. Forget all of the posturing, the speculation, the questioning (even by the Justices). If this law passes muster, then our republic is finished - we will live in a dictatorship at the whim of those in Congress and the White House.
Keep in mind that they don’t have to do something like this too many times, and they will have succeeded in tying up most or all of a person’s discretionary income. Health insurance and health care is a big budget item, and if this law stands it’ll now be controlled by the government. Add in “environmental concerns” and you’ll have government CHOOSING YOUR CAR FOR YOU - oh, sure, it’ll be challenged, but it’ll lose based on this case. Ditto for housing and college - the do-gooder fascists will come up with some excuse related to “the common good” for any mandate, and then will use this case as precedent.
This case IS the line in the sand. Either the law is struck down and we still retain some of our liberties with a chance to restore more in the future, or it is not and we retain none and say goodbye to the America that we have loved for generations. It is that simple.
BTW, for those who won’t support a Republican candidate who is not of your choosing, think about Obama appointing another 1, 2 or 3 justices (and, especially, replacing Thomas, Alito or Scalia). Think about the hundreds of District and Appeals Court judges he will appoint in the next 4 years. If Obama gets to do that, regardless of how this case turns out, our republic is dead. This election is THAT important - and sometimes the lesser of 2 evils is the best choice, because if it isn’t chosen then the greater evil wins. Obama is an extremely radical opponent of limited government and of American exceptionalism. He will accelerate the tearing down of this country in a 2nd term - so that term must not come about. I am NOT a Romney supporter by any stretch of the imagination, and I am PLENTY pissed off at what the Republican establishment has done over the past few decades, but I’ll vote for the Republican candidate in November regardless - because the alternative is our nation’s destruction.”
Agree 100% with everything you said. In fact, I could have written it myself. Unfortunately, there are many on this web site who will willfully indirectly contribute to this country’s demise by refusing to vote AGAINST Obama. The idea that Obama and Romney are essentially equivalent is moronic and ignorant.
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