All in: DOJ appeals ObamaCare ruling to Supreme Court

posted at 10:00 pm on September 28, 2011 by Allahpundit

Here’s the DOJ press release. 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.

The administration seems convinced that proceedings before the court will play out in its favor — with a speedy vindication by the high court and a chance to settle all of the uncertainties so the law can finally move forward…

A quick ruling would give more confidence to businesses, the insurance industry and consumers that they’ll know what to expect with the law, the official said — citing recent findings that at least 1 million young adults ages 19 to 26 have already gained coverage through a provision that lets them stay on their parents’ insurance.

And by going to the Supreme Court now, the Obama administration addresses a painful practical reality: A second Obama term is no longer as safe a bet as it was a few months ago. So if the Supreme Court doesn’t take up the health reform law this coming year, it may get the case with a Republican in the White House — and a Department of Justice that doesn’t lift a finger to defend the law in court

There’s no guarantee that the court will agree to hear the case — or issue a ruling quickly. If the justices want to avoid ruling during an election season, there are ways they can do it; they could deny certiorari, or they could punt, accepting the argument — as one lower court did — that it’s premature to rule on key provisions of the law until they take effect in 2014.

Yes, granted, the Court could delay a decision, but all the hallmarks are there for them to take it up soon. Both sides have filed petitions for cert (ObamaCare opponents filed theirs before the DOJ did this morning) and there’s a circuit split on whether the mandate is constitutional so the Supremes will want to resolve that ASAP. I think the boldfaced part is key too in why Obama wants to deal with this now: A Justice Department run by Rick Perry or Mitt Romney wouldn’t be required to defend ObamaCare before the Court. See this old post about Dickerson v. United States, a case involving Miranda rights where Clinton’s DOJ ended up taking the side of a criminal defendant and refused to defend a law that Congress had passed governing interrogations on grounds that it was unconstitutional. A Republican DOJ could do the same thing knowing that the Court could/would then appoint a third party to defend ObamaCare, which would get the White House off the hook with the conservative base.

According to Reid Wilson at National Journal, Democratic strategists are “flummoxed” that Obama would push for review of the law now. Really? Notwithstanding the point above about wanting the DOJ to defend the law as vigorously as possible? There may also be a deep political game being played here in which the White House is hoping that renewed attention to the mandate will hurt Romney’s chances in the primary. He’s the Republican who polls best against Obama head to head but by forcing a Supreme Court battle now, with oral arguments presumably to held sometime this fall — in the midst of the primary season — the White House can tilt the national debate towards Romney’s biggest primary liability. I don’t know if they’re that Machiavellian, but … yeah, they’re that Machiavellian.

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Sorry but there is a big difference between a state implementing Romneycare and an entire nation having Obamacare forced on it .

CW on September 28, 2011 at 11:15 PM

When you’re facing a loaded gun, what’s the difference?

El_Terrible on September 28, 2011 at 11:22 PM

Is Justice Kagan going to recuse herself?

Cindy Munford on September 28, 2011 at 10:12 PM

I think the Kagan piece is another reason for the administration to want this to be done earlier rather than later. If a new administration were to start questioning her fitness to judge the case, “things” the MSM has ignored would come out. Presidents have the bully pulpit. The MSM would find it much harder to ignore a president than a congressman or radio talk show host.

Now I’m not saying there’s a Republican in the field who would actually say anything (I’m not sure there is), but we KNOW Obama would. He’s already called out the Supreme Court before the entire country. It’s all about the win for the neo-Marxists. The fact that they would do it means they will suspect everyone else of doing it.

Oh, and if we’re starting a betting pool, I’m in for a 5-4 decision striking down the mandate. Split will be the same as on the Citizens United case.

CJ on September 28, 2011 at 11:25 PM

Is Justice Kagan going to recuse herself?

Cindy Munford

No.

xblade on September 28, 2011 at 11:29 PM

You’re reading way too much into this, Allah. Obama wants this horrible law set in stone ASAP. He’s counting on the four lib justices and Kennedy to rule that Obamacare’s constitutional, which makes it much more politically difficult for a GOP-controlled Congress & White House to repeal. The power of DC inertia will do the rest.

That’s it. Nothing complicated.

OhioCoastie on September 28, 2011 at 11:33 PM

CJ on September 28, 2011 at 11:25 PM

I think it will be struck down also. This is going to sound crazy but when Sotamayor was nominated I read this gossipy article that said that one of her main “attributes” was that she is a relentless debater (reads nag) and that they thought she could wear Kennedy down. I don’t think it has worked out as they planned.

Cindy Munford on September 28, 2011 at 11:40 PM

Cindy Munford on September 28, 2011 at 11:40 PM

That’s maddening to read.

They should be looking at the LAW.
Nothing they do should be done with emotion or anything else.

bridgetown on September 28, 2011 at 11:42 PM

I think he’s just trying to get it over with, one way or another, rather than have it either being decided or right in the middle of deliberation at election time 2012. Get it done now and give the MSM time to downplay things if it’s struck down.

TexasDan on September 28, 2011 at 11:43 PM

okay, now I’m totally depressed.

I can no longer count on the supreme court to seriously consider the law??

They, too, are beholden to ideaology and politics?

I’m going to go drive off a cliff now.
(just kidding. relax)

bridgetown on September 28, 2011 at 11:44 PM

bridgetown on September 28, 2011 at 11:42 PM

I agree and I don’t want to put too much emphasis on the article, who knows if it is even partly true. I think the only reason I gave it any credence at all was that soon after she came on board, Justice Kennedy stated that he wouldn’t retire will The Won is in office.

Cindy Munford on September 28, 2011 at 11:49 PM

CJ on September 28, 2011 at 11:25 PM

Calling out the SCOTUS was pure FDR. If you look at all the moves Obama has made they are very close to FDR or they are things his handlers have learned how to do better than FDR.

Unlike FDR Obama won’t win a second term or if for some reason he does they are counting on Romney being their Alf Landon.

The Obama machine learned from FDR & instead of threatening court packing they stacked the court with Sotomayer & Kagan. I wouldn’t be surprised if Kagan was picked to be solicitor general just to pad her resume to get her to the SCOTUS. She has ZERO experience being a judge & a thin resume other than the crap she did at Harvard. She was put there for the Healthcare bill.

Kagan must be made to recuse herself.

batterup on September 29, 2011 at 12:08 AM

Too bad for Barry there is an escape for us all even with the Justices claiming BarryCare Constitutional, repeal.

Limerick on September 29, 2011 at 1:36 AM

If the SC upholds this law, Obama will have accomplished the most important piece of the progressive agenda ever that will have put us on the fast track to a single payer system and democratic socialism.

He will have dwarfed any of Reagan’s accomplishment and influence.

If the SC upholds the law, Obama’s work is finished. Mission accomplished.

rickyricardo on September 29, 2011 at 1:44 AM

When you’re facing a loaded gun, what’s the difference?

El_Terrible on September 28, 2011 at 11:22 PM

Bad analogy.

Here’s why. With ObamaCare, that law covers the ENTIRE United States. So, no matter where you go, you’re under that law.

Whereas, if you are a citizen living in Massachusetts and you don’t like RomneyCare, you can move to another state that you think has a better health care program.

So…we have a BIG difference here.

Conservative Samizdat on September 29, 2011 at 2:05 AM

When you’re facing a loaded gun, what’s the difference?

El_Terrible on September 28, 2011 at 11:22 PM

.38 or 9mm…helluva choice.

SKYFOX on September 29, 2011 at 6:20 AM

I’m expecting Sotomayor to vote against it for the simple necessity that you MUST have a health care plan at birth to be a citizen of the US. Great if you already got your parents as citizens… not so hot if you are born here to illegals. By placing that as a requirement of citizenship the question is: how can anyone born here who CANNOT afford such insurance be considered a citizen? Even better, if this is the pre-requisite then anyone who can’t afford a plan becomes a non-citizen. She will vote against that in a heartbeat as the States cannot be compelled to set up health insurance exchanges and can prohibit the federal government from doing so (which is, itself, enough to stymie the law). Once you make the holding of a good or service the requirement for citizenship, then you have a huge problem not just with illegals but the poor (which this was supposed to help). Facing that abyss, Sotomayor will not just step back, but work hard to defeat it as she is, after all, ‘the wise latina’.

The only question on the ability of State government to force such a purchase on its people: which State constitutions are designed so that the government is the provider of positive rights? My guess is that most, if not all, follow a formulation of the negative rights system of the federal government and that none of them (as in zero) actually allow the State government to force anyone to buy a good or service dictated by their State. I would suggest that citizens in MA and other States trying this sort of fiasco make sure that their State constitutions allow it in the first place. Just because it is in the realm of possibility that a State might have such a power grant, that is not the grant in and of itself as that is controlled by the people.

ajacksonian on September 29, 2011 at 6:36 AM

It will be upheld. Even some conservative judges bow before the all powerful commerce clause. Repeal is the only hope.

Rightyismighty on September 29, 2011 at 7:23 AM

When you’re facing a loaded gun, what’s the difference?

El_Terrible on September 28, 2011 at 11:22 PM

Look up federalism and read your US Constitution. One is constitutional and the other is not.

CW on September 29, 2011 at 7:24 AM

It will be upheld. Even some conservative judges bow before the all powerful commerce clause. Repeal is the only hope.

Rightyismighty on September 29, 2011 at 7:23 AM

Sadly I think you are right.

CW on September 29, 2011 at 7:25 AM

This is like Obama going to Stockholm for the Chicago Olympics – “ObamaCare’s Out?!” Everything this loser touches turns to crap.

PatMac on September 29, 2011 at 7:38 AM

I’m expecting Sotomayor to vote against it for the simple necessity that you MUST have a health care plan at birth to be a citizen of the US.

Chapter and verse, please. Where does PPACA speak to requirements for citizenship? Does it amend the Constitution or the INA?

DrSteve on September 29, 2011 at 7:44 AM

I think it will be struck down also. This is going to sound crazy but when Sotamayor was nominated I read this gossipy article that said that one of her main “attributes” was that she is a relentless debater (reads nag) and that they thought she could wear Kennedy down. I don’t think it has worked out as they planned.
Cindy Munford on September 28, 2011 at 11:40 PM

Heh. I thought it was Kagan who was supposed to be the great leftist hope, able to sway Kennedy away from siding with the diabolical Roberts/Alito/Thomas juggernaut with the sheer power and brilliance of her intellect.

Yeah, let’s stack the intellectual heft of Sotomayor/Kagan vs Roberts/Alito. Affirmative action picks ain’t working out so well in the presidency, and they’ll probably produce the same competency issues on the Supreme Court. Of course, if Obama should get to nominate another justice…

CJ on September 29, 2011 at 8:23 AM

The administration seems convinced that proceedings before the court will play out in its favor

They’ve got some inside info?

JellyToast on September 29, 2011 at 8:23 AM

Once you make the holding of a good or service the requirement for citizenship, then you have a huge problem not just with illegals but the poor (which this was supposed to help).
ajacksonian on September 29, 2011 at 6:36 AM

If the Supreme Court does uphold the law, I think Republicans should pass their own mandates. After all, if the government can make you buy health insurance, why can’t it make you buy other products for your own good? How about a mandate requiring everyone (under penalty of fines or imprisionment) to own a firearm?

Watch liberal heads explode over that one.

CJ on September 29, 2011 at 8:32 AM

You’re reading way too much into this, Allah. Obama wants this horrible law set in stone ASAP. He’s counting on the four lib justices and Kennedy to rule that Obamacare’s constitutional, which makes it much more politically difficult for a GOP-controlled Congress & White House to repeal. The power of DC inertia will do the rest.

That’s it. Nothing complicated.

Nope, it’s even less complicated than that. Our Lecturer-in-Chief is afraid he’s not going to be re-elected in November 2012. Then it would fall on the new administration to defend the law, and I would think they’d defend the law quite a bit less vigourously than the Obama administration would. So the constitutionality of the law needs to be decided while our feckless POTUS is still POTUS.

eyedoc on September 29, 2011 at 9:51 AM

If the Supreme rule in favor of this law, even though most Americans are against it, that will be that much more incentive for a new President, to repeal it.

capejasmine on September 29, 2011 at 10:08 AM

DrSteve on September 29, 2011 at 7:44 AM

It is this thing called a ‘mandate’.

Required of all citizens.

If you don’t get the insurance then are you really a citizen according to how the law is set up? If it is set up so you don’t have to get any insurance then why was the law made the way it was? If you can refuse and have no penalties then there is no Obamacare law at all.

You can have it one way or the other: not both.

ajacksonian on September 29, 2011 at 11:24 AM

This guy argues in favor of Obama as good as HA’s unseen.

It may sound counterintuitive, but here’s betting that President Obama wouldn’t be at all upset if the high court rules that his health plan is unconstitutional.

By urging an expedited review by the U.S. Supreme Court, the president knows that the politics cuts his way. If the court strikes down the plan, then Obama won’t have to defend it in the fall campaign, robbing the Republicans of one of their two lines of attack, the other being the moribund economy. He could rally his base by arguing that he had pushed through a great “progressive” reform only to be foiled by the conservative-leaning Supreme Court. People, like markets, hate uncertainty, and the presumed swing vote by Justice Kennedy could settle the issue.

If Obama wins the judicial appeal, it will still be a win for him along the lines of today’s conventional thinking. He will be able to argue that the Administration always knew Obamacare was constitutional, and the expedited review will muffle the issue in the general-election campaign.

However, may this happen.

The one nightmare scenario for Obama is if the Supremes hear arguments before the election and decide the case after the voting. In that event, the briefs and oral arguments could well inflame the political debate. By asking for a speedy review, the President is evidently hoping to avoid this awkward straddle.

Schadenfreude on September 29, 2011 at 2:16 PM

Schadenfreude on September 29, 2011 at 2:16 PM

That argument you quoted makes a bit of sense, but I think it relies too much on the assunption of Obama as a popular candidate. His track record of failure and brow-beating hasn’t really endeared him to too many new folks, so at that point having a “Told ya’ so” victory would probbaly just rile up the opposing base (as most folks seem to oppose this horrid legislation and would be incentivized to GOTV to elect someone else), and, while, having a “Well, I did what I could” loss might rally his supporters, by that point, his supporters — I think — will already be those who are all-in for the guy anyway. I don’t foresee much gain there.

BlueCollarAstronaut on September 30, 2011 at 12:23 PM

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