NYC Letter: Right Meets Left -- Obamacare

Day 1,159 of CHOPE

Special Everyone's Agreed Edition

Weak minds and great minds. The left and the right. Lawmakers and justices. Obamacare brings us all together.

The Left.

I love these members, they get up and say, "Read the bill". What good is reading the bill if it’s a thousand pages and you don’t have two days and two lawyers to find out what it means after you read the bill?

John Conyers (D-MI, 14th),
House Judiciary Committee chair and know-nothing lexist,
wondering aloud why legislators should feel obliged to read
dense tortuous legislation before voting on it
NATIONAL PRESS CLUB LUNCHEON
WASHINGTON July 27, 2009 (CNSNews.com)

Mr. Conyers is dead serious.

The Right.

SCALIA LIKENS READING OBAMACARE
TO CRUEL AND UNUSUAL PUNISHMENT

WASHINGTON March 28, 2012 (WFB) - Supreme Court justice Antonin Scalia humorously invoked the Eighth Amendment to the Constitution, which forbids cruel and unusual punishments, when discussing the Obamacare legislation during oral argument today at the Supreme Court.

JUSTICE SCALIA: Mr. Kneedler, what happened to the Eighth Amendment? You really want us to go through these 2,700 pages? (Laughter.) And do you really expect the Court to do that? Or do you expect us to — to give this function to our law clerks? Is this not totally unrealistic? That we are going to go through this enormous bill item by item and decide each one?

EDWIN KNEEDLER, ASSOCIATE SOLICITOR GENERAL: Well -

Yesterday Solicitor General Donald B. Verrilli Jr. made Team Barry's case for the individual mandate. It was a risible disaster and the mandate looks to be on its way out.

OBAMACARE'S SUPREME COURT DISASTER

WASHINGTON March 27, 2012 (Mother Jones) - Solicitor General Donald B. Verrilli Jr. should be grateful to the Supreme Court for refusing to allow cameras in the courtroom, because his defense of Obamacare on Tuesday may go down as one of the most spectacular flameouts in the history of the court.

Stepping up to the podium, Verrilli stammered as he began his argument. He coughed, he cleared his throat, he took a drink of water. And that was before he even finished the first part of his argument.

... "What is left?" Justice Antonin Scalia demanded of Verrilli, "if the government can do this, what can it not do?" Verrilli's response to this basic and most predictable of questions was to rattle off a few legal precedents.

Justice Samuel Alito asked the same question later. "Could you just—before you move on, could you express your limiting principle as succinctly as you possibly can?" Verrilli turned to precedent again. "It's very much like Wickard in that respect, it's very much like Raich in that respect," Verrilli said, pointing to two previous Supreme Court opinions liberals have held up to defend the individual mandate. Where the lawyers challenging the mandate invoked the Federalist Papers and the framers of the Constitution, Verrilli offered jargon and political talking points. If the law is upheld, it will be in spite of Verrilli's performance, not because of it.

The months leading up to the arguments made it clear that the government would face this obvious question. The law's defenders knew that they had to find a simple way of answering it so that its argument didn't leave the federal government with unlimited power. That is, Obamacare defenders would have to explain to the justices why allowing the government to compel individuals to buy insurance did not mean that the government could make individuals buy anything—(say, broccoli or health club memberships, both of which Scalia mentioned). Verrilli was unable to do so concisely, leaving the Democratic appointees on the court to throw him lifelines, all of which a flailing Verrilli failed to grasp.

The White House, which is incapable of entertaining a hint of a taint of ineptitude in anything it does, says, "Great job, Mr. Solicitor General!"

WHITE HOUSE DEFENDS
EMBATTLED SOLICITOR GENERAL

March 28, 2012 (Politico) - The White House is coming to the defense of Solicitor General Donald Verrilli, whose efforts to defend the president’s health care law Tuesday are under attack as a "train wreck" and "The Worst Supreme Court Argument of All Time." White House Counsel Kathryn Ruemmler:

Mr. Verrilli is an extraordinarily talented advocate who possesses a sharp mind, keen judgment, and unquestionable integrity. He ably and skillfully represented the United States before the Supreme Court yesterday, and we have every confidence that he will continue to do so.

As risible as all this is, we are left disappointed. [The sky clouds.] That's it? That's the best they have? A huddle of the best liberal legal minds in the country, after months of preparation, shove Mr. Verrilli to the podium unprepared to answer an anticipated crucial question on Constitutional limits. The legal theory here is as thin, as flimsy as has been argued all along. Where is the deep think on this? They're not even trying, because they don't think you deserve an argument.

Where is the smartest guy in the room to infuse some urgency into this failing effort?

President Barack Obama hasn't spent much time tracking the oral arguments before the Supreme Court on his health care law while here [Ed: Seoul] for a nuclear summit, the White House said Tuesday.

"He has been focused on his responsibilities here," press secretary Jay Carney said during an afternoon briefing just hours before Air Force One takes off to return to the United States. "So he has not had a great deal of opportunity to review the reports of what's happening in Washington at the Supreme Court."

Even so, the president is "aware of the progress that's being made and he'll be following it with interest."

Busy guy. Politico tries to fluff up Mr. Obama's phlegmatic interest in the fortunes of his signature accomplishment with this headline:

OBAMA IS FOLLOWING HEALTH CARE CASE
'WITH INTEREST'

No. This is not how Mr. Carney characterized Mr. Obama's following. The headline writer is at variance with Politico's own lede, generously casting Mr. Obama's interest in the present, while Mr. Carney puts it in the future. Nice to have little media helpers.

"Our position's clear, his position's clear: We feel very confident that the individual responsibility provision within the Affordable Care Act is constitutional," Carney said. "We've remarked before that its provenance is in the conservative political arena -- the Heritage Foundation, supported by a number of Republicans before it became a bipartisan idea."

Bipartisan, the last lie of the desperate. Flare to Mr. Carney, not one Republican voted for the final bill (House "Ayes: D 220, R 0; Senate "Ayes": D 60, R 0).

Today the whole statute, with its severability clause removed -- making plain Democrat lawmakers' all-or-nothing intent -- and no plan B without the mandate, also looks doomed.

JUSTICE KENNEDY: When you say judicial restraint, you are echoing the earlier premise that it increases the judicial power if the judiciary strikes down other provisions of the Act. I suggest to you it might be quite the opposite. We would be exercising the judicial power if ... one provision was stricken and the others remained to impose a risk on insurance companies that Congress had never intended. By reason of this Court, we would have a new regime that Congress did not provide for, did not consider. That, it seems to me, can be argued at least to be a more extreme exercise of judicial power than to strike — than striking the whole.

KNEEDLER: I — I — I think not -

KENNEDY: I just don’t accept the premise.

KNEEDLER: I think not, Justice Kennedy, and then I — I will move on.

We, perhaps like you, are not having half the fun the Democrats had gloating over passage of their junk bill, because, no matter how much punishment Team Barry is taking in orals, the court has not ruled on anything yet. Although developments so far are heartening, it is not a done deal.

Another wet blanket, liberals are already bemoaning Obamacare's demise. Liberals have had an almost perfect record mispredicting the adventures of Obamacare (and this and this and this and this and this). Ace at Ace Of Spades makes the cautionary point:

One thing is that I don't trust liberals as far as prognostication. They haughtily dismissed these arguments previously, deciding to not even bother reading or considering the arguments. It would be 8-1 or 7-2 to uphold. ... But now that that cockiness has been rubbished, they're overreacting the other way, assuming the whole law is gone. Their worlds are spinning, so their bearings are a little off.

CHOPE.

Stammer. Shrug. Disaster.

Posted by Damian at March 28, 2012 11:45 PM