Skip to comments.How Paul Clement Won the Supreme Courtís Oral Arguments on Obamacare
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 Ive ever heard, SCOTUSblog Tom Goldstein raved on Twitter). But Clements finest moment may have come when he was completely silent.
A little more than two minutes into Solicitor General Donald Verillis turn at the bar, Justice Anthony Kennedy interrupted him: Can you create commerce in order to regulate it?
Kennedys query was an almost verbatim recital of Clements 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 Obamas health-care law represents an unprecedented effort by Congress to compel individuals to enter commerce in order to better regulate commerce.
Its 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.
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 don’t get infected. Contagion is not normal; it requires a breakdown of the immune system to make you suceptible. Even Pasteur admitted that on his deathbed.
I’ve been in contact with everything that can be found in the headworks piping of an old sewage treatment plant without any problem. I went in with nothing but a hat, poncho, and booties; everyone else insisted in suiting up. Some of the guys that were suited up did get sick too.
Its all “body geography.”
I have no confidence in SCOTUS but there is a better chance for them to overturn it than a GOP-led Congress.
The law of the case will be what the SC says it is not what you or I or anyone else says it is.
Those judges have life appointments the ruling is going to be 5-4 whatever way it goes. Do you really think its logical to think members of the SC is not going to get paid based on their holding in this case?
” - - - Justice Anthony Kennedy interrupted him: Can you create commerce in order to regulate it?
This has been the primary goal of Dictator Baby-Doc Barack: Regulate -— Control -— DESTROY!
If THE NINE SUPREMES uphold the individual mandate, then the precedent is set in Constitutional Law: THERE IS NOTHING THAT LIMITS THE POWER OF THE FEDERAL GOVERNMENT OVER THE INDIVIDUAL.
The proud history of America will be wiped off the map of the future.
You clearly do not understand the economic picture, but the justices do. It they were to take the entire GDP as taxes, it still wouldn’t pay the cost.
We’re probably passed the point of no return; Porter Stansbury thinks so. We just hit an all time low of the Dollar vs the Yuan; is that supporting your La-la-las?
But in that scenario, how can the government stop offshore insurers from arising and offering plans where premiums are claims are paid online?
“Question: Would a single payer health insurance system be constitutional if passed by congress.”
No, unless they paid fair value for the trillions of dollars they would be seizing.
They can’t afford it.
I'm sorry but that is pure fantasy on your part.
There was a rumor going around way back when I was in law school that said in effect that if lawyers were good in math they would have gone to medical school.
So you think the SC justices understand economics....
“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. “
The house of cards is the forcing of insurance companies to accept preexisting conditions without jacking up rates.
Force insurance companies to do that, and people will ‘game’ the system to take insurance only after they need it. Hence the mandate.
“Why should the state force me to buy liability insurance?”
You are not forced to buy liability insurance. You can walk.
This is very different from healthcare for the simple reason that if you are on the road you can get in an accident that creates damage for other people. you are not required to buy collusion insurance for yourself.
As everyone who’s been through driver’s ed knows, driving is a privilege, not a right.
“When Kagan did not recuse herself (as legally she should have), I assumed the fix was in.”
Obama and his minions disregard the law.
Ignore him. Troll just registered today.
Ignore him. Troll just registered today.
Correct - without the mandate [and the rest of the law remains in effect] , the insurance companies would NEVER gone along with it - otherwise, it is uneconomical and will bankrupt them ...
If the mandate is found unconstitutional - one of two things [or both] are gonna happen ...
1. The insurance companies are going to use their lobbying power to get Congress to repeal the provisions for covering people with pre-existing conditions, covering children up to age 26, etc.
2. The insurance companies are goig to jack rates to cover items in Item #1, above ...
Your lips to God's ears. Hugh Hewitt played his oral arguments throughout his show today, and, beyond impressive.
I have not heard anyone argue that what the government is doing is both specifying in every instance what the service shall be AND what shall be paid for it. Hence this is nothing less than total control, not mere "regulation."
I would suspect that the law in your state says that you do not have to buy the insurance if you can demonstrate the financial capability of paying a specific size of claim.
No, unless they paid fair value for the trillions of dollars they would be seizing.
They cant afford it.
Actually, yes. A government-run healthcare system WOULD be constitutional IF the government paid for it in NEW taxes ...
HOWEVER, the American public [as a majority] WOULD NOT go along with this and the weenies in Congress who voted for such a thing would be tossed out next time they were up for election.
THAT is why they came up with the mandate ...
I know, and Senate Republicans just lay down for any wishy-washy moderate that their Republican president may nominate. Look at how they voted in Harriet Miers.
Couldn't stop it [initially], but could subsequently make it illegal to do so by passing a new bill outlawing it ala Internet Gambling ...
Think you had a typo there! ;)
Correct. Even if there IS a severability clause, SCOTUS can invalidate it - OR, if it IS NOT there, they can rule otherwise.
As Chief Justice Marshal declared in Marbury v. Madison:
"It is emphatically the province and duty of the judicial department to say what the law is ..."
Then how can you describe those cases as ones in which "we lost his vote"?
Yes. If it was a government-run program, paid for by taxes NOT a mandate. See my Post #119 ...
OK, so they make it illegal. So what? How do they physically STOP it? There are a lot more people who'd want to do that than the number who want to gamble online.
Actually, Kagan seemed a bit troubled that the Solicitor General ADMITTED that there were alternative means of funding the program - other than a mandate ...
I've been scratching my head since 2008 when the Obamacare onslaught began.
First of all, "forcing insurance companies to cover pre-existing conditions transforms a centuries old business into something other than insurance. Premiums are based on math; probabilities and mortality tables rule the entire enterprise.
What the government is insisting on doing is melding welfare into insurance and calling the resulting abortion insurance.
The other provision, forcing insurance companies to cover "children" up to age 26 at no additional cost is another of Obama's twilight zone "WTF" moments.
But both glaring imbecile impossibilities are never discussed anywhere!
The opinion comes out in June [prolly], but the decision could actually be made in the next few weeks ...
This reveals what Obama and the Democrats will do if this law is struck down.
They will argue that the only alternative now is.... SINGLE PAYER.
QUITE TRUE. BUT, why do you think they [Congress] came up with the mandate in the first place - to protect their phoney baloney jobs ...
IF they had passed NEW taxes to pay for it - a LARGE majority of them woulda been tossed out of office the next time they were up for election ...
If the mandate is declared unconstitutional [with the rest of the law remaining in place] - DON'T expect Congress to come back and raise taxes to pay for it ...
You chose to be in the marketplace by buying a car and operating it on state roads. Therefore, the state can compel you to buy liability insurance in case of an accident - but it CANNOT compel you to buy comprehensive insurance. ADDITIONALLY, the state CANNOT compel you to buy liability insurance [if you don't own a car] simply because you MAY own a car in the future ...
As far as healthcare ...
As long as you are healthy - you may wish NOT to participate in the healthcare marketplace. If you need occaisional medical care - you can pay for it out of your own pocket.
Today, the Court cited that the AVERAGE person requires $850 of healthcare a year - but the mandate would require an outlay of about $4000 per single individual.
Even if the penalty [approximately $1500] remained in place - IF a person DID NOT have insurance, it could be paid AT THE TIME of the medical visit.
On an annual basis - this would equate to $850 + $1500 = $2350 ...
The government might run into the same type of problem they’re running into now. If the gov can step into the health care industry as a player and use their unique power to destroy private businesses, what’s keeping them (the gov) from doing that to any industry and basically nationalizing all private business?
I’m no lawyer, but it would seem to me that if the mandate is found unconstitutional then the next law suits will be the insurance companies under the taking clause and the 14th, due process, because the government will be requiring them to provide services but not to make a profit.
would a narrow opinion have any affect in limiting the damage?
Kagan is recused...if Kennedy votes with the 3 lefties, its 4-4, assuming the conservatives all vote to strike down.
Everyone seems impressed with Paul Clement and I think we’ll be hearing about him again.
Thank you for the *ping*!
“I wish I shared Mr. Zengelre’s confidence in the integrity of SCOTUS...but I do not.”
You’re not alone.
There’s something rotten in Denmark and the smell is getting worse. (No offense to any Danes out there.)
First Dictator Baby-Doc Barack dictates that we must “Eat your peas!”
And now this: “ - - - You must buy broccoli! “
When, oh when does it stop!
There is so much to do!
As for me, I’m still trying to find my “marchin’ shoes!”
Living under the jack-boot heel of a Marxist Dictatorship managed by the arrogant Obamanator is a very high price to pay for all of the promised glory of the hopee-changee of OBAMANATION !
BTW, did you just hear an Obamadrone flying overhead?
(”Oh, the humanity - - -” )
Remember when Obama dissed Roberts during the State of the Union speech? I don’t think deference will matter any more.
by the “regulated in advance” argument,,,
citizens will eventually die.
dying requires medical care.
medical care costs everyone money.
money must be saved.
young people don’t spend money to die.
old peole spend money and then die.
to save money we must impose a life span age limit.
ps Obama loves you.
IOW a duty to die.
I vant to zee your heasth care paepers pleaze.
vher are your papers?
ve are here to inzpect your kitchen for contraband food.
I reiterate: I have little confidence in Kennedy's vote regardless of how one-sided this appeared and as absurd and incoherent the government's position was.
based on passed history, Sotomayor probably has written her opinion already and it is just a matter of whether it will be a majority or a minority designation. Kagan will probably just “join in”.
ginsberg will write her own opinion.
You vill now eat your broccoli, ya?
If you do not vant to eat your broccoli, ve vill help you, ya?
Vere is your broccoli? You have broccoli in ze house, ya?
If you do not have ze broccoli, ve vill help you get ze broccoli, ya?
Time to eat the broccoli....
that also includes the power to limit/eliminate the courts.
do you think the USSC wants to allow that?
By your logic, the SC doesn’t need the constitution; are you one of those?
The SC is not a legislative body, so yes they do need a severability clause to guide what is severable, unless they set out to legislate. The originalists of the court do not do that.
Most of the ‘conservative’ justices have been heavily involved in pulling the levers of power for a long time. They are not just ‘lawyers’ that got Peter Principled into the SCOTUS. They are privy to vast amounts of information that is not readily available to the average person.
BTW, what has math to do with medicine? Did you mean engineering?