Patterico's Pontifications

9/28/2011

Obama Administration Appeals ObamaCare Issue to Supreme Court

Filed under: General — Patterico @ 7:57 pm

Allahpundit:

It’s a comfort to know that we’re now just nine months away from our super-president, Anthony Kennedy, telling us whether this thing is illegal or not.

My bold prediction: Kennedy votes in favor of ObamaCare. New York Times editorial board praises him. There is much rejoicing.

85 Responses to “Obama Administration Appeals ObamaCare Issue to Supreme Court”

  1. that’s depressing

    happyfeet (3c92a1)

  2. Well, if we go in expecting the worse then come what may we won’t be disappointed.

    JVW (4d72aa)

  3. well it could be that Mr. Thomas’ dissenting opinion will be epic and stirring and historic and will serve as a clarion what calls America back to itself and with fresh clarity Obamacare will be seen as the vicious expansion of a vile and fascist state at the expense of individual liberty it is

    happyfeet (3c92a1)

  4. “It’s a comfort to know that we’re now just nine months away from our super-president, Anthony Kennedy, telling us whether this thing is illegal or not.”

    Pardon me while I vomit.

    Sorry, I get that way every time the SCOTUS is mentioned.

    Dave Surls (28f866)

  5. your take is depressing. I so hope you’re off on this prediction. all the more reason to support more clear thinking candidates now and in the future.

    Repeal and flush.

    Chris (eafa5f)

  6. And a good reason to remind ourselves why sitting out elections, or voting third party, can be dangerous. Sorry.

    Imagine BHO appointing two more SCOTUS justices.

    To be sure, Republicans can appoint odd people. But when have the Democratic POTUSs ever appointed someone even close to Republican ideals.

    So even a lukewarm Republican President will be better than four more years.

    Or so I think.

    Simon Jester (216b02)

  7. I don’t really think that Kennedy will vote for it, since he is a fan of “liberty interests.” The same reasoning that led him to to support abortion in Planned Parenthood v Casey might lead him to oppose government intervention in medical choices here. He probably won’t go so far as to overturn Wickard, though; precedent matters to him.

    I AM worried about Scalia though. Scalia is pretty pro-federal-government and a statist, albeit on the right. He was strongly in favor of Raich for example. Counting him as a sure vote against Obama here is an error.

    Kevin M (563f77)

  8. Yet another reason why the ultimate target is 67 senators, not 60.

    With 67, we could clean up the rotting corpse that is the nation’s judiciary in a week.

    Steve (f19392)

  9. The sweetest thing would be to have Obamacare go down on a 5-4 vote, with Justice Thomas writing for the majority. Liberal heads would explode.

    either orr (6713b4)

  10. The really depressing thing is that all 9 of them have probably already made up their minds in advance, before the case is even argued.

    Thus are the wages of ideology.

    d. in c. (b759db)

  11. Kevin M, man are you ever OFF in your reading of Scalia!

    No way does he decide that the individual mandate is constitutional. No chance.

    Icy Texan (56ab1f)

  12. D in C, I get where you’re coming from. All that effort to write out the arguments and present oral arguments, may largely be ceremonial.

    But on the other hand, I would hope these folks do realize whether or not the commerce clause voids out the constitution.

    Surprisingly, some people do think the government should tell people to buy health insurance whether you want it or not. Some think the state should do it, some the feds. It’s so alien to me. Had I been asked about this several years ago, I would say it was 8-1 or 9-0.

    Regardless, my take on Kennedy is that he’s a self absorbed libertarian who greatly values the stature of the Court. I disagree with Patterico’s prediction about Kennedy. Roberts and Alito and obviously Thomas will be against. Hopefully Kagan recuses.

    Then again, I’m obviously way out of touch on this issue. I do not understand how anyone can read this constitution and come away with the idea the government can force people to buy into a health care scheme.

    Dustin (b2fb78)

  13. The world is doomed.

    DohBiden (d54602)

  14. How can we destroy the earth if we’re not alive?

    DohBiden (d54602)

  15. If it’s upheld, the decision could have the same effect that the Dred Scott decision had in the 1850s.

    Dos Equis Guy (12689c)

  16. If the big worry is Kennedy’s vote, then the information blizzard that needs to happen between now and the ruling is this: whatever its legal merits or demerits, as a matter of expressing the will of the people Obamacare is profoundly undemocratic insofar as it did not enjoy overwhelming, or even marginally persuasive, bipartisan support.

    A measure that so deeply and pervasively (and permanently!) affects the very nature of life for all Americans needs to enjoy a broad consensus across all America, in order to be legitimate. Obamacare was vigorously and persistently opposed by a large percentage of Americans; its passage in the legislature was marked by epic dishonesty, bribery, political skullduggery, and votes in the dead of night. A worse example of political bad faith is hard to find.

    One might excuse these criteria for some small-scale and transient measure, such as TARP which will have its effects and then be over with. But Obamacare if it stands is for keeps. Its passage represented a perversion and a hijacking of the democratic process. It is too large and too immobile to be permitted to stand without a clear national consensus, which it does not enjoy. For this reason alone, it is illegitimate.

    This needs to be drummed into Kennedy’s ear, along with the relevant legal arguments.

    d. in c. (b759db)

  17. RE: Kennedy, I guess I’m thinking Heller, Boy Scouts and that Gitmo Habeas case rather than the decidedly nonlibertarian ruling of Kelo.

    Dustin (b2fb78)

  18. Tyranny of the majority: Exhibit A.

    d. in c. (b759db)

  19. Obama has not stopped bushs wars even when he said he would why do the anti-war lefturds still supprt him.

    DohBiden (d54602)

  20. DohBiden is lost again

    Icy Texan (e810e6)

  21. Apparently this is becoming the thread of wishful (or “reverse wishful”) thinking. Kagan will NOT recuse herself. Also, I predict that Kennedy will vote the individual mandate unconstitutional.

    Icy Texan (e810e6)

  22. Chris is just waiting for somebody to say something racially tinged.

    Icy Texan (e810e6)

  23. Just sayin’, Dustin. You can hope and hope and hope and hope . . .

    But nothing will change

    Icy Texan (e810e6)

  24. Well, no one will stop her if she doesn’t.

    I can’t pretend to be an expert on this.

    In my view, there are a number of ways this can go wrong. It could overturn the mandate, but sever it from the rest of the law, which would mean health insurance if no longer profitable and … ? Or who knows what else?

    Nothing short of specifically setting an understandable limit on commerce clause powers will be the correct result.

    Dustin (b2fb78)

  25. d. in c. suggesting that we turn our republic into a democracy?

    Is that exactly what I thought I read?*

    *[yet another obscure lyric reference by a guy that doesn’t even know he ain’t in Texas anymore]

    Icy Texan (e810e6)

  26. Why do we need the EPA when we have the DOJ who can sue those who pollute america?

    DohBiden (d54602)

  27. One thing to think about:
    The Administration is appealing a loss at the 11th Circuit, are they not?
    What happens if Kagan actually does recuse herself, and Kennedy votes with Ginsberg, Sotomayor, and Breyer…a tie upholds the ruling of the Circuit, does it not? But, is not precedental?

    Personally, I don’t think Kennedy can step off into that Commerce Clause abyss that awaits him, and be known as the Justice that turned America from a Republic, into a Fascist State.
    ObamaCare goes down 5-4!

    Another Drew - Restore the Republic / Obama Sucks! (3c5177)

  28. “I do not understand how anyone can read this constitution and come away with the idea the government can force people to buy into a health care scheme.”

    They’ve never had any qualms about forcing people into Ponzi Scheme retirement programs or military service.

    What makes this any different?

    Dave Surls (28f866)

  29. Military Service…Congress is charged “…To raise and support Armies…” (Art-I, Sec-8).

    Another Drew - Restore the Republic / Obama Sucks! (3c5177)

  30. Kagan won’t recuse even though its obvious she must.

    I doubt if Kennedy is even conflicted here knowing what a divisive Iago we have in POTUS.

    Don’t know about the other facets of the bill, like due process, but the big question for Kennedy is whether the mandate is seperable.

    Obamacare goes down with Thomas and Kennedy writing opinions for the majority.

    gary gulrud (790d43)

  31. Raising an army is one thing, forcing people to serve in it against their will is a whole different ball of wax.

    Congress has no enumerated power to force people to serve in the military against their will…but they’ve done it anyway.

    They also have no enumerated power to force people into health insurance programs…but, I think they’re going to do it anyway.

    Dave Surls (28f866)

  32. Not only does Congress have no enumerated power to force people to serve in the military against their will, but forcing people into involuntary servitude of any sort, except as punishment for a crime is flatly prohibited by the 13th Amendment.

    And, still they’ve done it anyway.

    Dave Surls (28f866)

  33. They instituted a draft for the Civil War, for WW-1*, and then instituted Selective Service in 1940; I’m quite positive that at each step challenges were made, and found to be lacking at the level of the Supreme Court.
    *though I may be incorrect on “The Great War”.

    Another Drew - Restore the Republic / Obama Sucks! (3c5177)

  34. On top of all that, all enlistments, both for officers and non-officers, during WW-2 were for “the duration”, without a hard end-date;
    a very open-ended contract.

    Another Drew - Restore the Republic / Obama Sucks! (3c5177)

  35. “I’m quite positive that at each step challenges were made, and found to be lacking at the level of the Supreme Court.”

    Sure there were. When a bunch of leftards pointed out, during WWI, that forcing people into involuntary servitude (via the Draft) was not only a great moral evil, but flatly unconstitutional, hundreds of them were packed off to prison by the kindly old liberal Democrats in the Wilson administration. When the issue came up before the SCOTUS the nine loons in black spewed a lot of lying hogwash about fires in theaters…and the feds continued doing exactly what they wanted to do, whether it was constitutional or not.

    IOW…it was businaess as usual.

    Pretty neat trick on the part of the SCOTUS, gutting both the 1A and 13A all in one swell foop. But, subverting the Constitution is what they do best.

    It was a big bummer for the leftards, of course. First time in their worthless lives they were ever right about something, and they get tossed into dungeons as their reward.

    Dave Surls (28f866)

  36. I’m not terribly confident, after Kelo, Campaign Finance, and the detainee cases, they will do the right thing.

    ian cormac (ed5f69)

  37. This is how the Republic ends; one step at a time.

    navyvet (db5856)

  38. When might a SCOTUS decision come? I’m curious, because I am cynical enough to wonder if, because it appears that many dems now see how bad Obamacare is –that it has turned out to be a colossal mistake and miscalculation– and how it’s hurting them nationwide –they might also be happy to see it go before the election. A suspicious number of left leaning beltway pundits have also been “seeing the light” lately, too, if you recall.

    Might influential Dems at this point be just as happy to see it ruled unconstitutional so at least they’d have that albatross off their necks for Nov.2012? It would give them the advantage of saying to the remaining clueless of their base, “well, we tried”. But at the same time Barry could blame Pelosi for the monstrosity. I think they might actually prefer a ruling from a “neutral” court than to be lambasted about Obamacare throughout the election only to have it repealed by an incoming team R congress which has a landslide mandate.

    The Dem’s are hosed in great part because they can’t run on the “accomplishment” of Obamacare and in fact, many Dems will try to distance themselves from it. The Supreme Court’s ruling against Obamacare might end up being a gift to Dems. It might give them a chance to regroup and change a lot of the election rhetoric.

    elissa (b9d8a9)

  39. Comment by ian cormac — 9/29/2011 @ 5:21 am

    What recent (meaning since O’Conner left the court) campaign finance case came out for the government? I can think of at least four cases during that period and they were all decided correctly, IMO.

    Wisconsin Right to Life, v FEC, Davis v. FEC, Citizens United and Arizona Free Enterprise.

    Any I’m forgetting that the statists won? I admit that it’s worrisome that it’s such an evenly divided question but (which can be said for a lot of things, both where the court is currently right and where it is wrong). The court right now is not particularly friendly to such regulation. I just don’t see these cases as any sort of indication that Kennedy would vote to uphold ACA.

    Soronel Haetir (f21d6f)

  40. Elissa, if the SCOTUS takes the case this year, I would expect a decision in June or July.

    aphrael (5d993c)

  41. Kagan will not recuse – she has no connection with the Koch brothers or heritage foundation. She took no part in any discussions with the administration on the legality of ACA. She will rule in favor of ACA because Congress shall have the power to censor speech – oops wrong amendment.

    Joe (bbbdbb)

  42. Kennedy will follow the reasoning of Kelo and Grutter – he will be presuaded that that congress shall have power to compel, the same as government shall have the right to take property for private use, etc

    Joe (bbbdbb)

  43. Elissa – you point on Dems hoping for a loss at Scotus seems to be very good. The Obamacare ruling will come on june 28, 2012, the last decision release date of the 2011/2012 term. That give the Dems 4 months before the election to regroup. A defeat for obamacare takes a lot of wind out of the Reb’s eagerness at the polls and keeps the dem base active

    Joe (bbbdbb)

  44. Obamas wars are good Bushs wars are not so good even though Obama is continuing them.

    Wow so since bush was rich he could do what he pleased explain why he didn’t end elections and becomes president for life then?

    DohBiden (d54602)

  45. Re: #43
    Don’t think so, Joe. Even Kennedy knows the difference between an apple and an orange.

    Icy Texan (eafd99)

  46. I want to ingest some of DohBiden’s meds so I can see the pretty colors, too!

    Icy Texan (eafd99)

  47. 39., 44. Good thinkin.

    My instinct is Kennedy’s legacy is federalism and it totally falls apart if states have ceded sovereignty.

    That is why I believe his opinion will uncharacteristically weigh in majority.

    gary gulrud (790d43)

  48. Obamacare needs to be repealed.

    DohBiden (d54602)

  49. Good job! ^^^

    Icy Texan (eafd99)

  50. ________________________________________________

    There is much rejoicing.

    There will be within the bureaucracy of the Internal Revenue Service, because thousands of new agents will have to be hired to force the public to comply with ObamaCare.

    If so, I think everyone should begin to wear as a badge of honor any and every attempt they make to undermine and hoodwink the IRS. After all, if it’s good enough for the Greeks or Mexicans — who are notorious for cheating on their taxes, yet who routinely embrace Socialists — it’s good enough for us.

    Mark (411533)

  51. How many votes does it take to grant cert? Because I wonder how willing the Court is to become a political football during an election year.

    DRJ (a83b8b)

  52. Four?

    Another Drew - Restore the Republic / Obama Sucks! (8e16f7)

  53. That’s what I think but I’ve never handled a Supreme Court case.

    DRJ (a83b8b)

  54. The USSC accepts appeals with four votes (granting cert). The exception is a motion to reconsider a denied appeal, which takes five votes.

    Dustin (b2fb78)

  55. So is there any way the Court might deny cert? As I recall, earlier Courts avoided abortion cases for years because it was such a political hot potato.

    DRJ (a83b8b)

  56. http://prospect.org/cs/articles?article=decision_season

    Interesting analysis (at least for someone like me not in the legal profession)

    vor2 (6c8528)

  57. I bet Obama’s a lot nicer to them in the next SOTU. If they are foolish enough to attend, that is.

    If the court denies Cert we have a major split on a major legal interpretation. I have no idea about whether they tend to allow that kind of thing.

    Dustin (b2fb78)

  58. DRJ,

    It’s always possible that the court simply won’y take the case, but given that there’s already a circuit split it seems highly unlikely that they would do so here. Just as important as the grant is what question(s) they formally choose to answer. A lot of games can be played in the framing of the question to answer, especially since the court is free to substitute its own questions for those the parties suggest.

    If the court does choose not to hear the appeal I would think a lot of it would be that neither side of the court felt confident that they would manage to pull together a majority rather than out of a desire to avoid hot political topics. But given the existing split and how significant a piece of legislation is involved I will be amazed if the court refuses the case.

    Soronel Haetir (f21d6f)

  59. Comment by Dustin — 9/29/2011 @ 10:50 am

    SCOTUS looks unfavorably upon splits between Circuits, as that results in the law being applied differently in the various Circuits, which would be antithetical to a Republic.

    Another Drew - Restore the Republic / Obama Sucks! (8e16f7)

  60. I have a hard time believing the libtards would be dumb enough to ask the SCOTUS to take a look at this unless they knew ahead of time they were going to win.

    They’re risking not only their great dream of forcing everyone onto federally controlled healthcare, but also all the other totally unconstitutional crap they’ve put into place over the decades as well.

    If it isn’t constitutional to force people into government controlled healthcare, hard to imagine how it is constitutional to force people into Social Security. Ditto for most libtard federal programs, just about all of which are blatantly unconstitutional.

    OTOH, Obama and co. are pretty dense.

    Dave Surls (28f866)

  61. Dave, I do think it’s a little different to force people to give their income to the government, and then for the government to have a social welfare program. That’s not forcing me to buy a private product.

    I also think it’s constitutional to force me to pay taxes and then the government offers ‘free’ health care.

    Which is their true goal. Remember, the left doesn’t want Obamacare to become status quo. They want single payer. Obamacare, stripped of the mandate, but with the forced coverage of preexisting conditions, is a recipe for a quick change to single payer.

    Dustin (b2fb78)

  62. I don’t see anything in the Constitution that allows the federal government to take my money and use it to pay other people’s medical bills, nor do I see anything in there that allows them to force me to buy health insurance.

    I do see this, though…

    “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

    Every part of Obamacare is flatly unconstitutional.

    All of it.

    Dave Surls (28f866)

  63. “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

    Well, ya got me there. No doubt, the government has lost its way long ago, and started doing things that are reserved to the states under a truly honest reading of the constitution.

    Dustin (b2fb78)

  64. #63

    If the court does choose not to hear the appeal I would think a lot of it would be that neither side of the court felt confident that they would manage to pull together a majority rather than out of a desire to avoid hot political topics. But given the existing split and how significant a piece of legislation is involved I will be amazed if the court refuses the case.

    This could be an interesting point – 5-6 separate opinions and one plurality opinion by kennedy Whereby kennedy holds that obamacare is…..”?” (to be continued in the next episode)

    Joe (bbbdbb)

  65. You leftards who like to stereotype all southern republicans as bigots please kill yourself.

    DohBiden (d54602)

  66. Oh oh. The wily media is starting to catch on to the Obamacare scam. But no worries say the democrats–everything will be hunky dory in 2019

    The Kaiser Family Foundation shows family premiums topped $15,000 a year for the first time in 2011, increasing a whopping 9% this year, three times more than the increase the year before. The study says that up to 2% of that ncrease is because of the health care law’s provisions, such as allowing families to add grown children up to 26 years old to their policies.

    So what about that $2,500 in savings the president pledged? White House deputy chief of staff Nancy-Ann DeParle insists families will see that savings — by 2019.

    “Many of the changes in the Affordable Care Act are starting this year, and in succeeding years,” DeParle told ABC News, “and by 2019 we estimate that the average family will save around $2,000.”

    The Kaiser study also indicates employers are switching plans and shifting costs onto employees. Half of workers in smaller firms now face “deductibles of at least $1,000, including 28 percent facing deductibles of $2,000 or more,” according to the study.

    Doesn’t that fly in the face of the president’s promise that “if you like your health care plan you can keep your health care plan”? ABC News asked DeParle.

    She said no — the president wasn’t saying the legislation would guarantee that everyone can keep his or her preferred plan, just that the legislation wouldn’t force anyone to change.

    http://abcnews.go.com/blogs/politics/2011/09/new-study-underlines-unfulfilled-promises-of-health-care-bill/

    elissa (c0ee38)

  67. Comment by Joe — 9/29/2011 @ 1:07 pm

    I doubt this will produce a highly fractured ruling (say like McConnel v. FEC (which upheld the BCRA against a facial challenge)), there just isn’t enough history in this area to require the papering over that produces a bunch of different opinions.

    As to Dave Surls ‘s complaints about SS, I may not like the program (even though I am a beneficiary and have been my entire adult life), but the Congress has the power to “… lay and collect Taxes, Duties, Imposts and Excises”, there are some limitations on what taxes can be collected, but very little limitation on what Congress can do with the money once it has it.

    I agree fully with the argument that it would be quite easy to write a law that gets single payer, it just wouldn’t have passed and that’s why ACA was passed instead.

    Soronel Haetir (f21d6f)

  68. agreed- SCOTUS blows. That’s one reason all fed judges should be term-limited to 7 years.

    It will fall to a future President with a sympathetic Congress to repeal zerobamacare.

    That is to say, pigs will fly first.

    I remember when this country used to be free- you young people are screwed. You have 5 or 6 more decades of this shite before you die.

    [note: released from moderation. –Stashiu]

    Jones (a67e66)

  69. Obama 2012: I Won’t Lie As Much Next Term, pinky swear

    daleyrocks (bf33e9)

  70. I can’t shake the feeling that the Obama Administration might have inside information about comments justices have made in casual conversation or impressions regarding how the justices might be inclined to rule. I’m not saying any justice has already decided how he or she might rule. I simply wonder whether some may have given indications that cause the Obama Administration to be more confident in a specific result — one way or the other — before the fact. I hope not, but profiting from inside information seems to be the Chicago Way.

    DRJ (a83b8b)

  71. Silly daleyrocks #74 …

    Everyone *knows* that our First Occupant doesn’t pikny swear … Teh Won middle-finger-swears !

    Alasdair (b4db9f)

  72. What about Kagan; is she going to recuse herself?

    Also, I have been reading, and I’m not a lawyer, but perhaps these judges are aware of the special place in history this case represents, vis-a-vis FDR’s infamous “court packing” threats prior to their decision on the constitutionality of Social Security.

    FDR came out looking like a tyrant and the SCOTUS like cowards. I would think that this Court will think twice about bowing to another New Dealer who this time scolded them in public.

    Patricia (1832e5)

  73. I like bold predictions, so here’s mine:

    Mr. Justice Thomas will write the opinion for a 5/4 majority, holding the individual mandate unconstitutional and overturning the entire statute (rather than trying to carve out and rescue potentially severable parts, a job that’s impossible for anyone to do, especially the judicial branch).

    Beldar (4fa931)

  74. ‘As to Dave Surls ‘s complaints about SS, I may not like the program (even though I am a beneficiary and have been my entire adult life), but the Congress has the power to “… lay and collect Taxes, Duties, Imposts and Excises”’

    Sure they do, as long as they’re collecting it to be spent on exercising an enumerated power granted the federal government. That’s the whole point of the tenth amendment.

    They can’t just collect taxes and spend it on any old thing that they feel like doing. Like an unconstituional retirement insurance program that no one with a functioning brain would sign up for, unless they were made to do so at the point of a gun (aka Social Security) for example.

    Dave Surls (28f866)

  75. Comment by Beldar — 9/29/2011 @ 9:08 pm

    I like your thinking, Sir!

    Another Drew - Restore the Republic / Obama Sucks! (8e16f7)

  76. Kagan will NOT recuse herself. This I guarantee!

    Icy Texan (eafd99)

  77. I can’t shake the feeling that the Obama Administration might have inside information

    I’m sure he knows whatever Kagan knows, and I would imagine the Justices do talk to eachother about the issues of the day. Maybe that was part of the reason he sent her despite her lack of persuasive power (I think Roberts style nominations are far superior strategically).

    That’s an imaginative, yet probably solid insight, DRJ.

    Dustin (b2fb78)

  78. My bold prediction: Kennedy votes in favor of ObamaCare. New York Times editorial board praises him. There is much rejoicing.

    Does anybody know how he has voted on commerce clause cases? That should provide some clues.

    Based on a few high profile cases I’m aware of he seems to be a fan of expanded govt. power. The social issue cases seem to be the exception rather than the rule.

    Gerald A (9d78e8)

  79. And a good reason to remind ourselves why sitting out elections, or voting third party, can be dangerous. Sorry.

    Imagine BHO appointing two more SCOTUS justices.

    To be sure, Republicans can appoint odd people. But when have the Democratic POTUSs ever appointed someone even close to Republican ideals.

    So even a lukewarm Republican President will be better than four more years.

    That’s why people who are thinking of sitting out the election or going third party if Romney is nominated are dolts. Even the Ron Paul fans should be able to see the difference between Democrat appointed judges and most of the ones appointed by Pubbies.

    Gerald A (9d78e8)

  80. Based on a few high profile cases I’m aware of he seems to be a fan of expanded govt. power. The social issue cases seem to be the exception rather than
    the rule.

    Kennedy was in the majority in both Lopez and Morrison, though he was also in the majority for Raiche and concurred in Comstock. A mixed bag to be sure but not so reflexively pro government power as to make me think he is a sure vote for the law.

    Soronel Haetir (f21d6f)


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