Patterico's Pontifications

11/14/2011

Breaking: The Thing All Us Lawyers Agreed Would Happen Has Happened

Filed under: General — Aaron Worthing @ 8:06 am



[Guest post by Aaron Worthing. Follow me by Twitter @AaronWorthing.]

That thing being the Supreme Court deciding to review Obamacare. This means the Supreme Court could render its verdict on the law months before the election.

Which raises the question: how would that influence the outcome of the election? For instance, if it is struck down, doesn’t that take away one argument for throwing Obama and the Democrats out of office? Or will the implied condemnation that they have been found to have violated the Constitution drive the debate? Or even simply the fact that they wasted so much time on something they didn’t finally get?

And of course in the opposite scenario—that the law is upheld—doesn’t this add to the need to remove them from office?

And there are also scenarios in between. For instance, what happens if the mandate is the only part that is struck down, leaving in other parts such as the pre-existing condition rule? The Obama administration itself has admitted that if you don’t have a mandate, a rule like the pre-existing condition rule will actually bankrupt the insurance industry. So in that scenario, Congress would have to immediately swing into action and solve this problem, creating the possibility of another legislative showdown. I am hopeful that the Court will decide that the law is non-severable, but there is no guarantee on this point.

So, stay tuned. I haven’t been following every decision in the circuits since we got a split among them, but you can be sure we will be following oral arguments, etc.

[Posted and authored by Aaron Worthing.]

65 Responses to “Breaking: The Thing All Us Lawyers Agreed Would Happen Has Happened”

  1. I was going to title the post “Shocking News Disseminated” but…

    Aaron Worthing (e7d72e)

  2. If any part of it, especially the individual mandate, is struck down it’s just one more failed promise to the liberals. Perhaps they will then vote (in their case, by staying home) President FalseyPromisey out of office for us.

    Icy (c571cf)

  3. If it is overturned then the Republicans will be able to say they were right all along. While the Democrats will have to face an angry base that will demand another version while the WH will probably mumble something about respecting the courts decision even if they think the court is wrong.

    Pat Patterson (adef21)

  4. #2, that’s wishful thinking, Icy. Obama would have to invade Cuba or put out a hit on Bill Clinton to lose support from liberals. Hell, even if Obama divorced his wife, joined the TEA Party, and started going out with Ann Coulter, liberals would still bow down and kiss his ass.

    ropelight (5b0080)

  5. Obama wants it repealed. Gives him something to rage about in the us versus them rhetoric.

    ODB (0f13a8)

  6. Liberals will never admit anything — they willpull a December 2008 and say the Supreme Court gave Bush the election.
    .
    .
    .
    Never ever admitting 1) Bush did win FL or 2) That Judicial Activism which they love sometimes works the other way.

    ODB (0f13a8)

  7. If ObamaCare is struck down, I look for Barry and his hardcore supporters to go absolutely ballistic. They have everything invested in the law and to see it being thwarted, will just make them that much more radical.

    Stan25 (103775)

  8. If this is shot down expect Rosie O’Donnell to call for blood literally.

    DohBiden (ef98f0)

  9. This is why the upcoming election is so important. Imagine if BHO has the chance to appoint two more Justices.

    Yeah, I know that some people think that Romney would appoint people no different than Obama, but that is just bizarre (as it was when I heard it about McCain).

    Important election. We need to get this crew retired and on the speakers’ circuit folks.

    Simon Jester (c8876d)

  10. doh

    i expect rosie o’donnell to connect this to the 9-11 conspiracies she talks about.

    Aaron Worthing (e7d72e)

  11. simon

    i am sure romney’s nominees will be to the right of obama’s. but you know, the last “moderate” new england republican we had for president gave us David Souter. yes, and Clarence Thomas, but still, that alone might have made the difference on some key calls.

    not that i have a clear idea who i want this time around, but oh well…

    Aaron Worthing (e7d72e)

  12. If SCOTUS were to strike down the mandate, it would initially give liberals a rallying point.

    But, what they would demand in order to avoid further SCOTUS problems would be so anathema to the majority that it will drive away independents and the working class.

    The argument of the progressives is going to be that only single-payer achieves the goals and avoids the legal problems of universal health insurance. It would provide 100% coverage, and pay for it with tax revenue.

    shipwreckedcrew (27cb52)

  13. Given the certainty by Sept. 2012, that we’ve entered worldwide depression:

    If the mandate is, as I believe likely, struck down, Urkel will indiscriminately run against congress. Dear Leader will be fragged.

    OTOH, if Anthony Kennedy somehow decides his legacy of juriprudential dispensation re: federalism is somehow enhanced in abolishing State’s Rights, and individual freedom then Urkel will finish his term.

    gary gulrud (d88477)

  14. Sorry, my confidence in SCOTUS is barely breaking above my approval of Congress. Then again, Barry used a SOTU address to slander and embarrass SCOTUS, so perhaps, payback being what it is, we’ll be singing along with Elton John: The Bitch Is Back!

    twolaneflash (40d2b8)

  15. Us lawyers?

    DRJ (a83b8b)

  16. DRJ

    yes, i do not always use the queen’s english.

    Aaron Worthing (e7d72e)

  17. gary

    well, ages ago i made the point that if this law is upheld, this is the end of privacy in america.

    Kennedy loves privacy.

    so my gut says he votes to strike it down.

    Aaron Worthing (e7d72e)

  18. I think it will have NO impact on the election.

    Breaking it down: there are two groups: those who like Obamacare and those who don’t. The former is comprised of liberals who are going to vote for Obama no matter what the Supreme Court does, the latter likely have other reasons for not liking Obama and won’t for him no matter what the Supreme Court rules.

    steve (369bc6)

  19. I think it will impact the election because whatever the result, the losing side’s supporters will be motivated by the loss.

    DRJ (a83b8b)

  20. 17. Thanks for an informed opinion, mine relies solely on an acquaintance with human nature.

    gary gulrud (d88477)

  21. It doesn’t matter what the Court decides;
    if we leave the Progressives in power (or even in the neighborhood of such), we can kiss this Republic Good-Bye!, and concentrate on trade in bananas.

    AD-RtR/OS! (885414)

  22. Comment by shipwreckedcrew — 11/14/2011 @ 9:17 am

    As if there will be any margin left in the economy for increased taxes to pay for an “NHS” after servicing the debt that President Millstone has placed around our necks.

    AD-RtR/OS! (885414)

  23. If the pre-existing condition rule remains, would not drunk driving convicts have an arguable equal protection claim on the basis that the government does not mandate auto insurance companies to cover their pre-existing condition?

    Michael Ejercito (64388b)

  24. The Wall street Journal’s “Best of the Web” column by James Taranto would call this one of the..

    Bottom Stories of the Day.

    The New York Times had a whole front page piece.

    Sammy Finkelman (d3daeb)

  25. The more important thing is that Cain sexually harrassed one of Clinton’s galpals

    /LSM

    DohBiden (ef98f0)

  26. This is the story in n the New York times this morning:

    http://www.nytimes.com/2011/11/14/us/politics/health-law-debate-puts-focus-on-limit-of-federal-power.html?scp=1&sq=U.S.%20power%20stops&st=cse

    Supreme Court Memo

    Health Law Puts Focus on Limits of Federal Power
    By ADAM LIPTAK

    Published (on the Internet): November 13, 2011.

    On the front page of the Monday, November 14, 2011 New York Times.

    In paragraph 2: ….if, as expected, the Supreme Court, as early as Monday, agrees to be the final arbiiter of the challenge to President Obama;s signature health care initiative.

    The article discusses how the five different Federal Appeals courts have ruled. Only one didn’t uphold the law. It quotes from some of bthe decisions, and one dissent. There is anice chart on page A17.

    The individual mandate has been compared to
    a law replacing Social Security with a system of mandatory private retirement accounts, a law mandating that parents purchase private college savings accounts (from a dissent) and a command that restaurants or hotels are obliged to serve all customers regardless of race, a law that says that gravely ill individuals cannot use a substance their doctors described as the only effective palliative for excruciating pain, or that a farmer cannot grow enough wheat to support his own family (from an opinion upholding the law.) Both from the DC Circuit.

    It’s been compared to

    Sammy Finkelman (d3daeb)

  27. I particularly like the comparison of the individual mandate to a law replacing Social Security with a system of mandatory private retirement accounts, because unlike the broccoli analogy, it’s relalistic, and is popular wioth republicans, (it was recently advocated both by Herman Cain and Newt Gingrich in two different debates) and is a financial product.

    Sammy Finkelman (d3daeb)

  28. sammy

    um, when have they said that the private accounts would be mandatory. i have always understood them to be optional. you can either let SS manage it or you can have the option to manage it yourself.

    and i wouldn’t call it a bottom story of the day. its important, just not particularly surprising. like every single presidential election is a front page story, but much of the time we know the outcome long ahead of time so no one is surprised.

    Aaron Worthing (e7d72e)

  29. Congress would have to immediately swing into action and solve this problem

    One of the scariest sentences ever written in the history of mankind.

    M twain (de2279)

  30. Amen to that, Mr Twain.

    JD (84c177)

  31. Obamacare? Rotten legislation exacerbated by astoundingly stupid court decisions. Gee, sounds a lot like the issue of slavery with all those wonderful congressional “compromises”, Dred Scott, etc.

    And we all those led to, don’t we?

    MarkJ (42fe5b)

  32. um, when have they said that the private accounts would be mandatory. i have always understood them to be optional. you can either let SS manage it or you can have the option to manage it yourself.

    But you don’t get not to have an account. You don’t get to say “no thanks, I don’t want any”. That would seem to have the same problem as the health insurance mandate. Currently the SS is funded by a tax, so there’s no constitutional problem. But turning it into mandatory individual accounts would make it hard to distinguish from Obamacare.

    I wouldn’t bet on the Supreme Court striking it down. Judge Silberman is a thoughtful conservative, and if he didn’t buy the arguments against it then perhaps not just Kennedy but also Roberts and Alito will not buy them either. I remember Roberts’s comments about Raich at his confirmation hearings, and I’m disturbed again as I was at the time.

    Milhouse (ea66e3)

  33. Aaron, don’t forget that a southwestern moderate gave us Alito and Roberts. We’re not still pretending W was a conservative are we?

    elissa (f2993a)

  34. and it starts–scalia and thomas accused of having an inappropriate dinner

    http://www.chicagotribune.com/news/la-pn-scalia-thomas-20111114,0,3192724.story

    elissa (f2993a)

  35. I don’t understand how they got past the ripeness issue. The mandate hasn’t kicked in yet has it? Or any other part of the law?

    Or was it something the states had to do know that made it ripe?

    carol (f3a607)

  36. Thanks to the US troops for fighting for America.

    DohBiden (ef98f0)

  37. He actually ignored the arguments, Milhouse, however inartfully they might have been presented.

    James Oliphant strikes again though.

    narciso (ef1619)

  38. Given the certainty by Sept. 2012, that we’ve entered worldwide depression…

    I get depressed every time I read your posts, Gary… and it’s only November 14, 2011.

    ColonelHaiku (09a0f9)

  39. Kagan smokes cigars
    if’n she’s confused, she must recuse!
    and she pitch softballs

    ColonelHaiku (09a0f9)

  40. Judge Silberman was saying something I said some time back here (although I said it much less eloquently than he did)–that Obamacare lies solidly within the train of 20th century precedents on the Commerce Clause, and to find Obamacare unconstitutional would require SCOTUS to overrule, or at least seriously undermine, a long train of decisions that goes back for almost a century. Personally, I don’t think the present members of SCOTUS have the gumption to do that (even Scalia)but that’s just my personal, not very informed, opinion, and I will be glad to be proved wrong. I find it more likely that they will find some technical reason to distinguish and reject Obamacare, the final result of which will be a revised version of Obamacare being passed into law by a Democratic Congress and signed by a re-elected President Obama–because the Progressive side will be energized by such a result far more than the conservative side will be.

    JBS (da341e)

  41. JBS, I agree that the current court does not want to overturn Wickard and its progeny. Only Thomas would vote for it, and maybe Scalia just to make a point for posterity, but Roberts, Alito, and Kennedy would vote against. It will take at least another three appointments to get a Court that will do its duty, and there’s no way Romney will appoint such judges.

    Milhouse (ea66e3)

  42. Bush is slow-witted but Obama is smart.

    Go eff yourself Jay Leno………..I meant it literally.

    DohBiden (ef98f0)

  43. Hey, our little Sammy F. found his way back to the blog!

    Care to find your way back to the Dariano vs Morgan Hill School District thread?

    Eh?

    Icy (c571cf)

  44. If Wickard is overruled, Thomas will write the Majority Opinion;
    and the Republic will be on the road to restoration.

    AD-RtR/OS! (885414)

  45. Instead of using the word capitialist just use the word free markets.

    DohBiden (ef98f0)

  46. Capitalism are responsible for Child Labor

    /Lefty Liberal

    DohBiden (ef98f0)

  47. If Wickard is overruled, Thomas will write the Majority Opinion;

    Only if he’s still on the Court. I’m not that optimistic. I only hope that that opinion is dedicated to his memory, because without him it would have been impossible.

    Milhouse (ea66e3)

  48. I swear these lefty rednecks and uneducated incompetence will doom us.

    DohBiden (ef98f0)

  49. After reading the Heritage summation at PJM and Hayward at Powerline I have no idea what the WH could be hoping for except to hang the election on Dinjy and Batsh*t.

    Congress is having a very, very bad week.

    gary gulrud (d88477)

  50. I love how the pieces of shit on the Vichy Right are accusing us of nativism becaue we oppose illegal aliens………I swear they need to be drummed out of the GOP

    DohBiden (ef98f0)

  51. Honestly I’m pissed.

    DohBiden (ef98f0)

  52. milhouse,

    thomas ain’t stepping down. and they ain’t taking him out.

    Kagan has more call to recuse herself than he does.

    Aaron Worthing (e7d72e)

  53. I’m confused. Does Milhouse think that Clarence Thomas is going to be assassinated?

    Icy (7bb95e)

  54. icy

    i take it to mean this silly attempt to say thomas has engaged in misconduct.

    Aaron Worthing (e7d72e)

  55. i should add that milhouse is not engaged in that silliness, just that i think he is concerned about it.

    Aaron Worthing (e7d72e)

  56. AW> For instance, if it is struck down, doesn’t that take away one argument for throwing Obama and the Democrats out of office?

    It helps Obama. If it was an issue it sort of goes away.

    Except the question then becomes what do you do now? The focus then shifts to that.

    If the Republican candidate is just trying to finesse the issue, it helps Obama a great deal.

    If the Republican candidate has something to say it’ll probably help the Republican candidate and hurts Obama, since Obama is unlikely to say something that makes sense – but he could.

    He might even be so bold as to say that since the Supreme Court said single payer (Medicare for All) would be constitutional, that’s what we sshould do. The first problem is Congress wouldn’t pass it, but that could have the effect of challenging the Republican party to say what they will pass.

    If he says we now need to go to single payer, that will hold him for a while. Single payer leads to a cost spiral, meat ax attempts to cut costs (“death panels”) and eventually doctor strikes. Things work all right at the start and then gradually get worse.

    Or will the implied condemnation that they have been found to have violated the Constitution drive the debate?

    No, that won’t do anything. It’s not like it was crystal clear it violated the Constitution. The objections are the way it was passed, against the wishes of the American people, and that it will make things worse and/or won’t work.

    Or even simply the fact that they wasted so much time on something they didn’t finally get?

    Everything will depend on what people propose to do now.

    And of course in the opposite scenario—that the law is upheld—doesn’t this add to the need to remove them from office?

    No, right now the case is proceeding on the basis that it is scheduled to become the law. State elected officials may say they will challenge or defy the law or whatever, but federal ones think it looks better for them to act as if this is a political issue.

    And there are also scenarios in between. For instance, what happens if the mandate is the only part that is struck down, leaving in other parts such as the pre-existing condition rule? The Obama administration itself has admitted that if you don’t have a mandate, a rule like the pre-existing condition rule will actually bankrupt the insurance industry.

    It will bankrupt even with it, as Rush Limbaugh has claimed. He says, that the intention is that then, after a few years, they would go to single payer. Obama years ago said that’s what he wanted and I think Rush Limbaugh has claimed (maybe not quite that explicitly) that that was the intention in passing the law all along. They’ll have to bail out the insurance companies.

    Limbaugh says that once this law goes into effect – after a little while there won’t be any private insurance companies. It’ll be impossible to go back. (although actually it is possible to go back, or start over anyway. But only very intentionally and with some government help)

    It will bankrupt them because people will in fact not buy insurance. And because not enough money is allowed for non-claims. He’s getting that from people or one person in the business. He had or has a regular female caller who works in insurance.

    So in that scenario, Congress would have to immediately swing into action

    Not immediately, because the law itself doesn’t go into effect for another year or so, but something would have to be done the next year, so this would cast a shadow back into the election year.

    and solve this problem, creating the possibility of another legislative showdown. I am hopeful that the Court will decide that the law is non-severable, but there is no guarantee on this point.

    There is a second important legal question here besides the individual mandate. The bill relies on greatly expanding Medicaid. It wouldn’t expand it enough to make it affordable for everybody, but it would expand it. The legal question is:

    Does the federal government have the right to force a state to expand Medicaid (by threatening to give no money for Medicaid at all unless they did or that. So far all such mandates, like for the speed limit and drunk driving law have either not been challenged or survived challenge. But it could be argued hat this is such strong pressure that it deprives the states of all choice. As it is, actually if this law went into effect, the politics are such that some Republican controlled states would call Obamacare’s bluff and NOT expand Medicaid and dare HHS to cut off the state’s Medicaid – and let’s see what Congress does then. the individual mandate might stay in effect thus requiring the poorest people to spend money they don’t have for a policy, or more affordable, owe a fine which will not be collected except from any tax refunds they may have due.

    Sammy Finkelman (3a0ae4)

  57. I think Millhouse is trying to say, in his inimitable way, that Thomas overturning Wickard will happen when pigs fly, or Hell freezes over.

    AD-RtR/OS! (9f0426)

  58. Comment by Icy — 11/14/2011 @ 8:43 pm

    Care to find your way back to the Dariano vs Morgan Hill School District thread?

    Yes. It takes a little while to write, and I also didn’t see it for a while. I am not sure when I’ll get it done, but this week I would hope. I’m reading a lot about Paterno/Penn State. More and more curious developments and signs of a massive coverup. I’d like to see what I can research.

    Jerry Sandusky gives an interview that makes sense only if you never hear any witnesses. Mike McQuarry says he not only stopped what was going on – he didn’t just walk away – (an e-mail he sent Nov 8 has become available) and talked to college officials, he talked to the police too.

    The grand jury didn’t mention it so I suppose a police report was never actually filed in 2002, or was destroyed later. The grand jury will not report possibilities, and will draw non-criminal inferences if possible. That’s one thing to remember.

    The speculations coming from the local police chief as to what could have happened to the Centre County DA are ridiculous. And this doesn’t belong in this thread.

    Sammy Finkelman (3a0ae4)

  59. Comment by Aaron Worthing — 11/14/2011 @ 1:23 pm

    sammy

    um, when have they said that the private accounts would be mandatory. i have always understood them to be optional. you can either let SS manage it or you can have the option to manage it yourself.

    I think that’s the usual proposal in the United States (not sure) but that would be for poliical reasons not worry about it not being constitutional.

    In other countries, they are entirely private (except for people grandfathered in)

    This is the Chilean system:

    http://en.wikipedia.org/wiki/Pensions_in_Chile

    http://www.foxnews.com/politics/2011/09/22/fox-news-google-gop-2012-presidential-debate/

    HERMAN CAIN…..

    Now, with the rest of my time, may I offer a solution for Social Security, rather than continuing to talk about what to call it? I have proposed the Chilean model. It’s been around 30 years, and it works.

    It’s a personal retirement account. And in the last 30 years, not only has Chile succeeded with that model, but 30 other countries have done so. I don’t think we’re doing a service to the American people to keep bantering about what you call it and what you don’t call it. The solution is: Fix it.

    Read more: http://www.foxnews.com/politics/2011/09/22/fox-news-google-gop-2012-presidential-debate/#ixzz1dpkDcJDg

    Sammy Finkelman (3a0ae4)

  60. Jerry Sandusky gives an interview that makes sense only if you never hear any witnesses.

    — I just listened to part of that interview. The “tells” Sandusky feebly tries to hide are pathetic and disheartening. He’s a pedophile, period.

    Icy (7bb95e)

  61. Jerry Sandusky needs to be buttraped.

    DohBiden (ef98f0)

  62. “This is the Chilean system:”

    The Chilean system has a mandate. When Cain advocates that, he advocates a mandate. Paul Ryan has described his medicare privatization as a mandate as well. It makes sense — a mandate for purchasing private coverage is a more market oriented version of a government program that taxes and then provides the coverage.

    The dissenting opinion in the DC circuit is a big hint to people that may want to reform government services from a ‘tax-and-provide-services’ model to a more market oriented one to be cautious here.

    mays (89096c)

  63. Wow, read post, scroll to bottom read last comments.

    We’ve gone from striking down ObamaCare to butt-raping Jerry Sandusky in 63 comments flat! That’s pretty remarkable.

    – but back to the original topic, politically speaking, either situation is a win for Republicans. Upholding it will embolden Republicans to sweep the elections in huge numbers.

    However, for the sake of the country, it’s best if it’s struck down. The government should NOT be given the power to force people to purchase a product or service by any court, ever.

    Book (1ecc3f)


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