Scalia on severability: Making us read this entire bill would be cruel and unusual punishment

posted at 5:25 pm on March 28, 2012 by Allahpundit

Via the Washington Free Beacon, the oral argument laugh line du jour and further evidence that Scalia, whom the left once viewed as a potential vote to uphold the mandate, looks set to drop an atomic bomb on the whole scheme. The unspoken punchline is that Congress didn’t want to read the bill either (right, Nancy?), which is how this landmark boondoggle with a dubious constitutional novelty at its core somehow ended up … without a severability clause. That was today’s subject — if the mandate is struck down, does the rest of this thing have to die with it or can other provisions of the law be salvaged? Congress almost always adds a section about that when it drafts a bill. It forgot this time. Oops.

Two clips here, one of Scalia and the other a not very satisfying set of audio highlights from the AP. I think Sotomayor’s point is fair: If the Court creates an insurance “death spiral” by knocking down the mandate but leaving everything else intact, there’s nothing stopping Congress from eliminating that death spiral by simply repealing the rest of the statute and starting over. The argument for having the Court kill the whole thing is more pragmatic than legal, I think — no one wants to see insurers go out of business because Congress ends up gridlocked and paralyzed on yet another issue. But don’t forget (a) the insurance industry has a lot of political muscle and they’ll bring the full force of it to bear on incumbent congressmen to find a solution and (b) given that we’re all going to have to put on our big-boy pants soon to reform Medicare, maybe a crisis now will be a wake-up call in forcing Congress to start thinking big. Surely they wouldn’t sit idly by while America’s health insurance industry disintegrated around them. And before you say, “But that’s the left’s path to single payer!”, read Karl’s Greenroom post. The Republican House will never, ever, ever pass it, and The One really, really, really doesn’t want to preside over Americans losing their coverage as insurers go belly up. Especially in an election year.

Update: Speaking of single payer, Josh Marshall makes one of the left’s most effective arguments for ObamaCare: How can the mandate be unconstitutional when a far more aggressive power grab like single payer, i.e. “Medicare for all,” probably wouldn’t be? The latter would fall under Congress’s tax and spend powers, which dodges the Commerce Clause problem in forcing people to purchase things from third parties. But if liberty’s your bottom line, it’s cold comfort to know that the bigger of the two federal expansions is likely on safe ground constitutionally. For more on that, go read Jacob Sullum’s depressing take at Reason.


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Congress almost always adds a section about that when it drafts a bill. It forgot this time. Oops.

No. Earlier drafts did have a severability clause. One axiom of legislative intent is that if a legislature had a clause in a draft version, but not a final one, that legislature intended to do that.

rbj on March 28, 2012 at 5:28 PM

The One really, really, really doesn’t want to preside over Americans losing their coverage as insurers go belly up. Especially in an election year.

Perhaps, but after his next election he will have more flexibility.

kjl291 on March 28, 2012 at 5:28 PM

answers the question posed on another thread….

Fighton03 on March 28, 2012 at 5:28 PM

Does it really matter what the rest of this crapsandwhich says if the mandate is unconstitutional?

STRIKE THE WHOLE DAMN THING DOWN!

jawkneemusic on March 28, 2012 at 5:29 PM

Kagan has been leading and cheer leading from the bench…

d1carter on March 28, 2012 at 5:29 PM

Perhaps, but after his next election he will have more flexibility.

kjl291 on March 28, 2012 at 5:28 PM

Funemploymnet?

Fighton03 on March 28, 2012 at 5:29 PM

if the mandate is struck down, does the rest of this thing have to die with it or can other provisions of the law be salvaged?

..it’s quite a big turd and might not flush completely.

The War Planner on March 28, 2012 at 5:30 PM

Well, at least they got an opportunity to read it. They sure prevented anyone else reading it before they bamboozled it through.

Blake on March 28, 2012 at 5:30 PM

Forget the Court’s preferences – what is the correct legal thing to do here?

If the lack of a severability clause means the whole thing is null and void if part of it is null and void, the court needs to toss the whole thing.

If a severability clause (or lack thereof) is something congress needs to deal with, then the court needs to find the individual mandate unconstitutional and hand the rest back to congress.

At that point, some congressman needs to point out that without a severability clause the whole thing is now null and void and move to strike it from the books.

JadeNYU on March 28, 2012 at 5:31 PM

Kill it! Kill it! Kill it!!!!!

sage0925 on March 28, 2012 at 5:31 PM

No. Earlier drafts did have a severability clause. One axiom of legislative intent is that if a legislature had a clause in a draft version, but not a final one, that legislature intended to do that.

That may be how the Court interprets it, but according to the Democratic drones who actually wrote the bill, it was an oversight.

Allahpundit on March 28, 2012 at 5:31 PM

It forgot this time. Oops.

I find that would require a suspension of disbelief.

GarandFan on March 28, 2012 at 5:31 PM

It will be a tragic day when we lose Scalia from SCOTUS. He really is a Conservative treasure sometimes.

melle1228 on March 28, 2012 at 5:32 PM

Reading bills is for bureaucrats and the thugs who enforce the provisions in them. Honest American citizens shouldn’t be force to do that.

Lily on March 28, 2012 at 5:32 PM

..it’s quite a big turd and might not flush completely.

The War Planner on March 28, 2012 at 5:30 PM

LOL!!!!

Gunlock Bill on March 28, 2012 at 5:32 PM

“The unspoken punchline is that Congress didn’t want to read the bill either (right, Nancy?), …”

Too bad this isn’t an election year…

… or else the GOP could use this to run against Obowma and the Democrat party in total.

What…?

… Oh.

Seven Percent Solution on March 28, 2012 at 5:32 PM

From what I hear, the Liberal block is resigned to the fact the law is going to die when the final justice votes.

They’re looking for some political escape pod/safety net for Obama so that his “signature initiative” doesn’t completely go down.

ironbill on March 28, 2012 at 5:32 PM

Scalia on severability: Making us read this entire bill would be cruel and unusual punishment

Heh!

Dr Evil on March 28, 2012 at 5:33 PM

Dump the whole thing and let Congress decide what to do. And tell them to read it first this time.

pedestrian on March 28, 2012 at 5:33 PM

Sounds to me like the court hates what congress did except for the libs on the court. As expected.

karenhasfreedom on March 28, 2012 at 5:33 PM

No. Earlier drafts did have a severability clause. One axiom of legislative intent is that if a legislature had a clause in a draft version, but not a final one, that legislature intended to do that.

rbj on March 28, 2012 at 5:28 PM

What are your thoughts on why? No snark in the question.

I’ve thought it was a case of too many people putting in their favorite points without any one person bothering to check on how it worked together.

INC on March 28, 2012 at 5:33 PM

Congress almost always adds a section about that when it drafts a bill. It forgot this time. Oops.

No. Earlier drafts did have a severability clause. One axiom of legislative intent is that if a legislature had a clause in a draft version, but not a final one, that legislature intended to do that.

rbj on March 28, 2012 at 5:28 PM

So they are playing chicken with the Supreme Court, or perhaps have a contingency plan if/when it gets struck down?

sharrukin on March 28, 2012 at 5:33 PM

On Friday, Scalia’s quip will probably be in a news aggregation I receive from the American Bar Association.

The lefties (about 90% of the ABA) will be livid. Their understanding of the limits of Congress’s authority is equaled only by their appreciation for Nino Scalia and his sense of humor. (/sarc)

I am SO looking forward to Friday.

I’ll try to post a link to the ABA’s article on Hot Air. You don’t have to be a member of the ABA to post responses to articles there. Enjoy.

HeatSeeker2011 on March 28, 2012 at 5:33 PM

Congress almost always adds a section about that when it drafts a bill. It forgot this time. Oops.

Where does this talking point come from? They had it in the bill and then took it out. They didn’t simply, oops, forget it.

It was brinkmanship, plain and simple. They didn’t think that SCOTUS had the b*lls to strike the whole thing down.

WisRich on March 28, 2012 at 5:34 PM

Isn’t it a shame that more Regular Citizens have actually read the 2,700 page Obamacare bill than our legal and Congressional “leaders” who are deciding our fate for future access to health care?

And those who have read the Bill don’t seem to like ObamaCare at all.

Clean the House, Senate and White House in November 2012!

wren on March 28, 2012 at 5:34 PM

Seven Percent Solution on March 28, 2012 at 5:32 PM

+7% Heh.

kingsjester on March 28, 2012 at 5:35 PM

Dump the whole thing and let Congress decide what to do. And tell them to read it first this time.

pedestrian on March 28, 2012 at 5:33 PM

This.

sage0925 on March 28, 2012 at 5:35 PM

HeatSeeker2011 on March 28, 2012 at 5:33 PM

You’re a better person than I. I ditched the ABA years ago. Way too left-wing for me. I will appreciate the link, though it might difficult to read it without having an aneurysm.

totherightofthem on March 28, 2012 at 5:36 PM

Perhaps, but after his next election he will have more flexibility.

kjl291 on March 28, 2012 at 5:28 PM

Funemploymnet?

Fighton03 on March 28, 2012 at 5:29 PM

Well that would be the desired outcome, but I meant if BO gets re-elected he won’t care and would do whatever he could get away with to realize the dream of single payer.

kjl291 on March 28, 2012 at 5:36 PM

That may be how the Court interprets it, but according to the Democratic drones who actually wrote the bill, it was an oversight.

Allahpundit on March 28, 2012 at 5:31 PM

They didn’t fix it because they were scared to send the bill back through the Senate once Scott Brown got seated.

They barely managed to push it through before that when Teddy Kennedy’s seat-filler voted for it, but turning that seat Republican meant that it was possible to filibuster any further votes on the bill.

teke184 on March 28, 2012 at 5:37 PM

If reading it is cruel and unusual punishment, imagine the horror inflicted on the poor citizens who have to live under its draconian, invasive, interfering, overbearing, expensive and intrusive provisions? This has gone beyond ridiculous – even if there were any portion of this monstrosity that was ‘good’ – what harm comes chucking it and starting over? None — especially in comparison to the incalculable harm of leaving it in place.

natasha333 on March 28, 2012 at 5:37 PM

If there is any true justice we’ll be reading “Clarence Thomas writing for the majority…”

Fighton03 on March 28, 2012 at 5:39 PM

how this landmark boondoggle with a dubious constitutional novelty at its core somehow ended up … without a severability clause. That was today’s subject — if the mandate is struck down, does the rest of this thing have to die with it or can other provisions of the law be salvaged? Congress almost always adds a section about that when it drafts a bill. It forgot this time. Oops.

for the want of a clause, the bill was lost……

all for the want of a clause./

ted c on March 28, 2012 at 5:39 PM

For more on that, go read Jacob Sullum’s depressing take at Reason.

Depressing is right. Don’t read unless you are sitting down.

Judge Brett Kavanaugh, who dissented from a decision by the U.S. Court of Appeals for the D.C. Circuit that upheld the mandate on Commerce Clause grounds, argued that “just a minor tweak to the current statutory language would definitively establish the law’s constitutionality under the Taxing Power.” All it would take, Kavanaugh said, is a clarification that Congress is merely using the tax code to “incentivize certain kinds of lawful behavior,” as it routinely does, rather than imposing an outright requirement.

In other words, Congress could accomplish exactly the same thing by wording it a little bit differently. The response to that possibility from the states challenging the insurance mandate—that making income tax liability hinge on the purchase of health insurance amounts to “an unconstitutional direct tax”— seems pretty weak, given the myriad ways in which the tax code is used to encourage politically preferred actions such as adopting children, going to college, buying a house, giving to charity, driving an electric car, and even obtaining health insurance (through one’s employer).

We might wish taxes were used simply to pay for the government’s legitimate functions, but that is not how things are. In 1819 Chief Justice John Marshall observed that “the power to tax involves the power to destroy.” As currently interpreted, it also involves the power to manipulate us into submission.

Kataklysmic on March 28, 2012 at 5:39 PM

no one wants to see insurers go out of business because Congress ends up gridlocked and paralyzed on yet another issue

Speak for yourself. Insurers are the reason I can’t find out what a health service costs until I’m billed for it. I not only want them out of business, I’d salt their earth behind them.

VerbumSap on March 28, 2012 at 5:40 PM

Isn’t it about time SOMEONE read the damn thing? It is for sure, that Obama, his entire administration, and the brilliant Congressional representatives that voted for it have yet to turn a page.

phoebe1 on March 28, 2012 at 5:40 PM

The way I feel about Scalia cannot be put into words. It will get me banned from this site.

social-justice on March 28, 2012 at 5:40 PM

That may be how the Court interprets it, but according to the Democratic drones who actually wrote the bill, it was an oversight.

Allahpundit on March 28, 2012 at 5:31 PM

Seriously. Do you think the court can interpret the bill as if it had a severability clause (just because they meant to put it in there but forgot)?

ted c on March 28, 2012 at 5:41 PM

From what I hear, the Liberal block is resigned to the fact the law is going to die when the final justice votes.

They’re looking for some political escape pod/safety net for Obama so that his “signature initiative” doesn’t completely go down.

ironbill on March 28, 2012 at 5:32 PM

The expansion of medicaid to cover more people. The argument for Obamacare when they passed the POS bill was to cover the 30 million Americans that are not presently covered by health insurance. If they keep the medicaid expansion in the Bill it will succeed in covering more people. The actual number without health insurance that want coverage but can’t get access is something like 8 million. Young adults are not interested in buying a product they don’t feel they need whether that’s being realistic or not. The states are arguing that it will cripple state budgets as most of the taxes collected will have to go to the medicaid program and eat up all the revenue for other government state programs.

Supreme Court’s Medicaid Decision Could Reach Far Beyond Health Care.

“Medicaid changes from a program that covers certain categories of low-income individuals to a program available for health coverage for all individuals,” Rowland says.

All individuals, that is, with incomes under 133 percent of the federal poverty line. This year that’s $14,856. According to the Congressional Budget Office, that will add about 17 million new people — mostly adults without children — to Medicaid’s 60 million or so enrollees by the year 2016.

Dr Evil on March 28, 2012 at 5:41 PM

Scalia / Bolton 2012

Good Lt on March 28, 2012 at 5:42 PM

Kill, baby, Kill!

OccamsRazor on March 28, 2012 at 5:42 PM

Making us read this entire bill would be cruel and unusual punishment.

…Well, giving it to Gitmo detainees is now off the table.

Book on March 28, 2012 at 5:43 PM

The Republican House will never, ever, ever pass it

Hahaha! Yeah, how many times have I heard THAT before? I don’t trust the GOP to ever find their nads.

Gregor on March 28, 2012 at 5:43 PM

..it’s quite a big turd and might not flush completely.

The War Planner on March 28, 2012 at 5:30 PM

Especially in the “green” low-flow toilets.

Steve Eggleston on March 28, 2012 at 5:44 PM

ted c on March 28, 2012 at 5:41 PM

Kagan, Ginsburg, Sotamayor, and Breyer can…

d1carter on March 28, 2012 at 5:44 PM

INC on March 28, 2012 at 5:33 PM

Hubris, my friend, pure hubris on the part of Pelosi and Reid.

The clause appears to have been intentionally removed to prevent any member of Congress nitpicking it to death or having some offending portion removed, thus opening up the gates for a long, long drawn out process of having to go through it on the floor paragraph by paragraph to make sure everybody’s favorite squirrel got fed.

Remembering a bit of the debate at the time seems Reid and Pelosi wanted all the participants (sans Republicans, of course) on board with one united voice…and no dissent in the ranks allowed.

In current law, almost any contract includes a severability clause…so that if a portion is redundant or one portion appears to contravene another portion and so forth, the offending parts can be removed with the consent of the parties to that contract without having to draw up a full and complete and newly negotiated contract all over again.

The USSC ignoring the principle of severability in this case certainly threatens the totality of contract law in America….which, by the way has already been assaulted and not challenged in the Courts, after the Administration and Congress started meddling with housing contracts, loan contracts, and other related lender contracts as a result of the foreclosure “crisis.”

coldwarrior on March 28, 2012 at 5:44 PM

The way I feel about Scalia cannot be put into words. It will get me banned from this site.

social-justice on March 28, 2012 at 5:40 PM

if forgot the / tag

social-justice on March 28, 2012 at 5:44 PM

Argh,

Medicare is unconstitutional.

The clause of the Constitution regarding taxation states:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence[note 1] and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

Like all clauses of the Constitution this one has generally been understood to be constrained to the enumerated powers. In other words, Congress has the power to collect taxes to fund the constitutionally legitimate and enumerated functions of government. The same applies to the Necessary and Proper clause that was also brought up today. Congress may only enact legislation that is necessary and proper to execute its enumerated duties. Not what is “good n plenty” or necessary and proper to make Leftists feel good about themselves or what is necessary and proper to advance their socialist agenda.

I am of the opinion that Social Security is in fact unconstitutional as its enactment isn’t in accord with any enumerated power and thus the payroll tax is an unconstitutional application of the taxing clause.

The taxing clause, nor any other clause,isn’t carte blanche for Congress to do whatever the heck it pleases.

Madison advocated for the ratification of the Constitution in The Federalist and at the Virginia ratifying convention upon a narrow construction of the (taxing) clause, asserting that spending must be at least tangentially tied to one of the other specifically enumerated powers, such as regulating interstate or foreign commerce, or providing for the military, as the General Welfare Clause is not a specific grant of power, but a statement of purpose qualifying the power to tax.[16][17]

Charlemagne on March 28, 2012 at 5:45 PM

The One really, really, really doesn’t want to preside over Americans losing their coverage as insurers go belly up. Especially in an election year.

“If you like your current coverage, you can keep your current coverage . . . unless I’ve badly miscalculated and the Supreme Court strikes down the key part of my signature legislation, in which case you’re screwed. Oops.” –Barry/Baraka Obama (don’t worry folks, my family and I will still have our Cadillac, taxpayer-funded plan, no matter what SCOTUS decides).

AZCoyote on March 28, 2012 at 5:45 PM

Surely they wouldn’t sit idly by while America’s health insurance industry disintegrated around them.

Oh, the Democrats most certainly would.

And stop calling me Shirley.

catmman on March 28, 2012 at 5:45 PM

The way I feel about Scalia cannot be put into words. It will get me banned from this site.

social-justice on March 28, 2012 at 5:40 PM

Hmmm. Why don’t you read all 2,700 pages and then get back us on wether what Scalia said had an element of truth or not.

WisRich on March 28, 2012 at 5:46 PM

The way I feel about Scalia cannot be put into words. It will get me banned from this site.

social-justice on March 28, 2012 at 5:40 PM

if forgot the / tag to log out and log back in as lib4life

social-justice on March 28, 2012 at 5:44 PM

fify

Kataklysmic on March 28, 2012 at 5:46 PM

phoebe1 on March 28, 2012 at 5:40 PM

I heard Dr. Sanjay Gupta has read it in its entirety, not once, but twice.

If that is any consolation.

coldwarrior on March 28, 2012 at 5:47 PM

“The latter would fall under Congress’s tax and spend powers, which dodges the Commerce Clause problem in forcing people to purchase things from third parties

Yes, but the current bill forces folks to buy a product and services from a private for-profit business. Big difference.

Opposite Day on March 28, 2012 at 5:47 PM

Clean the House, Senate and White House in November 2012!

wren on March 28, 2012 at 5:34 PM

We made a good start in 2010. We need 2 more election cycles to finish the job.

karenhasfreedom on March 28, 2012 at 5:47 PM

wren on March 28, 2012 at 5:34 PM

My Representative read the bill Rep Micheal Burgess MD.

Dr Evil on March 28, 2012 at 5:48 PM

Overturn the entire thing, ans suggest to Congress that they do it over in a more leisurely manner, perhaps even pausing and reading it before passing it this time.

mojo on March 28, 2012 at 5:49 PM

This is the President’s punishment homework, now Johnnie, Antonin, Anthony, Clarence and Sammy, after citizens united you’re going to stay after school and read these 2700 pages until you learn better than to apply Constitutional due diligence.

Speakup on March 28, 2012 at 5:50 PM

I believe that one of the provisions of this law was the complete government takeover of the of the student loan program. Am I correct in assuming that striking down the entire law would eliminate this power grab as well?

FirelandsO3 on March 28, 2012 at 5:51 PM

Especially in the “green” low-flow toilets.

Steve Eggleston on March 28, 2012 at 5:44 PM

My house has those, and I hate those damn things. How does it save water if people have to flush two or three times? Stupid greenies and their counter-productive ideas.

AZCoyote on March 28, 2012 at 5:51 PM

Yes, but the current bill forces folks to buy a product and services from a private for-profit business. Big difference.

Opposite Day on March 28, 2012 at 5:47 PM

Just as important, the tax code has been used to encourage certain behavior, true, but in the case of mortgage interest deductions, for instance, it incentives the purchase of a home. It doesn’t penalize you by imposing an additional distinct tax on you for failing to buy the home. You just don’t get the full deduction allowed for mortgage interest. This would be a completely different scenario, imposing on the taxpayer a separate distinct tax/penalty for failing to purchase insurance as opposed to, say, giving a direct deduction for insurance premiums. I still think it would fail.

totherightofthem on March 28, 2012 at 5:51 PM

coldwarrior on March 28, 2012 at 5:44 PM

Thank you for the explanation. That makes sense—it’s certainly in keeping with actions of Pelosi & Reid and the WH.

INC on March 28, 2012 at 5:51 PM

But if liberty’s your bottom line, it’s cold comfort to know that the bigger of the two federal expansions is likely on safe ground constitutionally.

It is cold comfort. But I believe that even an ingrained bureaucracy is less dangerous than private firms with the tools and the incentive to bend government to their rent-seeking will.

JohnGalt23 on March 28, 2012 at 5:51 PM

The way I feel about Scalia cannot be put into words. It will get me banned from this site.

social-justice on March 28, 2012 at 5:40 PM

Soooo…it can be put into words.

Bishop on March 28, 2012 at 5:52 PM

Charlemagne on March 28, 2012 at 5:45 PM

Refreshing post there.

Imagine a world where the laws of the land were produced by a Congress focusing strictly on and confined solely to its Constitutionally enumerated powers.

The size of government would be reduced to a small percentage of what it is now, the indebtedness of the federal government would be reduced to a trifle, unless there was a war or major upheaval or disaster, and federal taxation, especially the income tax, would be reduced a thousand fold if not eliminated…and we’d have a legislature that would actually have the time on their hands to read and debate each and every bill that was brought to the floor of either house, and still be able to get home each night for dinner, or work part-time from their home district…and we’d have citizens being able to follow and understand the process.

coldwarrior on March 28, 2012 at 5:53 PM

Update: Speaking of single payer, Josh Marshall makes one of the left’s most effective arguments for ObamaCare: How can the mandate be unconstitutional when a far more aggressive power grab like single payer, i.e. “Medicare for all,” probably wouldn’t be? The latter would fall under Congress’s tax and spend powers, which dodges the Commerce Clause problem in forcing people to purchase things from third parties. But if liberty’s your bottom line, it’s cold comfort to know that the bigger of the two federal expansions is likely on safe ground constitutionally. For more on that, go read Jacob Sullum’s depressing take at Reason.

The next project is challenging the constitutionality of Medicare and Social Security. Are they taxes, or are they “insurance programs?” The idea of basing these on the phrase “provide for the common welfare” is pretty dubious, because if you do that, as with the supposedly unlimited power of the Commerce Clause, Congress can legislate that everyone go watch Hallmark films so they’ll be nicer to each other.

Perhaps this Obamacare decision will at last begin the long process of bringing 80 years of unrestrained Federal power under control.

fiatboomer on March 28, 2012 at 5:53 PM

My house has those, and I hate those damn things. How does it save water if people have to flush two or three times? Stupid greenies and their counter-productive ideas.

AZCoyote on March 28, 2012 at 5:51 PM

Get a two-floor outhouse like I have; liberals and Wisconsinites use the bottom, everyone else uses the top.

Bishop on March 28, 2012 at 5:54 PM

Kagan has been leading and cheer leading from the bench…

d1carter on March 28, 2012 at 5:29 PM

As she did when she was solicitor general. Meh, at least she’s consistent. I’m frankly surprised she didn’t file an amicus brief in support of upholding this corpse of a law.

iurockhead on March 28, 2012 at 5:55 PM

Madison advocated for the ratification of the Constitution in The Federalist and at the Virginia ratifying convention upon a narrow construction of the (taxing) clause, asserting that spending must be at least tangentially tied to one of the other specifically enumerated powers, such as regulating interstate or foreign commerce, or providing for the military, as the General Welfare Clause is not a specific grant of power, but a statement of purpose qualifying the power to tax.[16][17]

Charlemagne on March 28, 2012 at 5:45 PM

This.

fiatboomer on March 28, 2012 at 5:55 PM

If there is any true justice we’ll be reading “Clarence Thomas writing for the majority…”

Fighton03 on March 28, 2012 at 5:39 PM

Not likely to see that, unless Thomas has photos of CJ Roberts in drag, kissing a dead boy.

This is the most important case the SCOTUS has decided in decades, and Roberts will want to write it. And on SCOTUS, he’s the boss.

AZCoyote on March 28, 2012 at 5:55 PM

Imagine a world…

coldwarrior on March 28, 2012 at 5:53 PM

I always thought that John Lennon got it wrong.

Fighton03 on March 28, 2012 at 5:55 PM

Speaking of single payer, Josh Marshall makes one of the left’s most effective arguments for ObamaCare: How can the mandate be unconstitutional when a far more aggressive power grab like single payer, i.e. “Medicare for all,” probably wouldn’t be? The latter would fall under Congress’s tax and spend powers, which dodges the Commerce Clause problem in forcing people to purchase things from third parties. But if liberty’s your bottom line, it’s cold comfort to know that the bigger of the two federal expansions is likely on safe ground constitutionally. For more on that, go read Jacob Sullum’s depressing take at Reason.

It’s a good point. The problem, of course, is what enumerated power would grant them the authority? It could no longer fall under the ever-so-flexible commerce clause unless we’re willing to say that commerce clause is broad enough to encompass every single good or service that people buy or even could be made to buy.

MJBrutus on March 28, 2012 at 5:56 PM

coldwarrior on March 28, 2012 at 5:53 PM

Check out my diary on RedState, DerKrieger. I’ve read you over there.

Charlemagne on March 28, 2012 at 5:56 PM

according to the Democratic drones who actually wrote the bill, it was an oversight.

Allahpundit on March 28, 2012 at 5:31 PM

Hey Allah, I think in the future we are going to have to come up with a replacement insult word for the Dems. Given the success over the past decade of the Predator, the word “drones” these days has an entirely different meaning.

How about “carrion beetles”?

Del Dolemonte on March 28, 2012 at 5:57 PM

AP

If you want to be ahead of the curve, start by adding a post built around Glenn Thrush’s Politico piece and Madcow’s clip.

If any of this gets turned down in a way that makes Barry look bad in the slightest degree, prepare for this narrative to take hold…

<a href="http://www.politico.com/news/stories/0312/74570.html"&gt;

<a href="http://www.mediaite.com/tv/rachel-maddow-supreme-court-vote-may-show-if-its-so-conservatively-politicized-as-to-hurt-the-president/"&gt;

budfox on March 28, 2012 at 5:58 PM

Randy Barnett answered AP’s question in a WaPo interview, yesterday. Just because the government has the power to do x, doesn’t mean it has the power to do y, even though x and y end up yielding the same result.

SWLiP on March 28, 2012 at 6:00 PM

Right.
But, if congress passed a tax increase and then provided criteria for an expansion of medicare/cade, then people would;
1) have taxation WITH represention, which is not the case with the mandate, and
2) would still have the option to purchase extended coverage through private insurers.

Medicare/cade should ONLY be used as a crutch for those temporarily without coverage, the elderlt who paid for it their whole working life (“ENTITLEMENT!!!”) and those unable to work or provide for themselves.

KMC1 on March 28, 2012 at 6:03 PM

Going through all the provisions one by one to assess their economic viability, not just constitutionality, seems way far out of the usual scope of the SCOTUS to be making decisions that were not argued before the court. Not going to happen.

pedestrian on March 28, 2012 at 6:03 PM

Single Payer is Still the Goal.

Bmore on March 28, 2012 at 6:03 PM

AZCoyote on March 28, 2012 at 5:51 PM

Get a two-floor outhouse like I have; liberals and Wisconsinites use the bottom, everyone else uses the top.

Bishop on March 28, 2012 at 5:54 PM

lol, Bishop, you will appreciate this classic from Maine:

https://www.youtube.com/watch?v=k8Mf4xKRhIU

Del Dolemonte on March 28, 2012 at 6:03 PM

I don’t know if anyone covered this yet…but Nancy Pelosi must have read the whole bill by now. Call her in front of the court to answer questions! What a hoot that would be. It would be better than going to a comedy club.

KOOLAID2 on March 28, 2012 at 6:04 PM

this bill is a collection of tissue, nonviable cells, it’ll get in the way of momma’s education and career. It’s a punishment that no one wants to see in the light of day. it is merely getting its ultrasound in SCOTUS these days and no one likes what they see.

there is only 1 course of action…./

ted c on March 28, 2012 at 6:04 PM

How can the mandate be unconstitutional when a far more aggressive power grab like single payer, i.e. “Medicare for all,” probably wouldn’t be? The latter would fall under Congress’s tax and spend powers, which dodges the Commerce Clause problem in forcing people to purchase things from third parties.

This is true. Single-payer (Medicare for all, Canadian health care, or whatever you want to call it) is only unconstitutional because of the now-defunct 10th Amendment, which courts have effectively repealed. That would make it no more unconstitutional than almost everything the federal government does that it’s started doing since FDR.

Fortunately, we are blessed with our enemies. Instead of letting the economy recover and letting Obama take credit for it – and he would have – and then drumming up health care as “the next crisis”, they went whole hog out of the gate with trillion dollar stimuluses, bailouts, rewriting bond terms, Cap N Trade, Card Check, the works, and Obamacare.

Unfortunately, in order to squeeze the bill through the teeth of an angry public, they had to go with a revolutionary mandate that would upend core concepts of limited and constitutional government, instead of just adding another tax-and-benefit entitlement onto the unaffordable pile.

HitNRun on March 28, 2012 at 6:05 PM

Single

Someone Else Payer is Still the Goal.

Bmore on March 28, 2012 at 6:03 PM

pedestrian on March 28, 2012 at 6:05 PM

I’m sitting here listening to a clip of Justice Kagan explaining that the federal government is going to give the states a “boatload” of money without restrictions to cover additions to the medicare costs. WHY don’t these people realize that that boatload of money still comes from the taxpayers? Hey, D.C., we’re on to you and your “generosity”. Good grief.

Cindy Munford on March 28, 2012 at 6:06 PM

Left-wing Talking Point Alert

“Congress forgot to include severability.”

The plain truth -

No, they did not. They intentionally left it out at the request of AHIP because they did not want to contemplate the idea of killing the insurance industry with a guarantee-issue mandate and no “warm-bodies” to pay for the federal lollipops being handed out.

They were also sitting in their echo-chambers with their like-minded fellow-travelers from the ivory towers of legal academia telling them what they wanted to hear -

Question – “Is this constitutional?”
Answer – “Are you kidding? {snicker, snicker, snort}”

powerpickle on March 28, 2012 at 6:06 PM

The most striking moment in the oral argument today came a few minutes after Scalia spoke when I believe it was Justice Kagan(?) who did something I have never heard a Supreme Court justice do before; she made a direct and snarky comment at Scalia about a strict interpretation of the statute and how his (law clerks should be thrilled at the idea of doing that)…it got big laughs from the liberal audience who just watched a Supreme Court Judge publically take a swipe at the jurisprudence of another…If anyone can put up that audio, I would love HotAir to discuss that. It was disrespectful, and while Scalia playfully swatted at it, it made my blood boil because it is certainly that arrogance on the part of the Left that they know best which drives this entire process…

DrRich on March 28, 2012 at 6:06 PM

The way I feel about Scalia cannot be put into words. It will get me banned from this site.

social-justice on March 28, 2012 at 5:40 PM

You sure you forgot the sarc tag? I would love to hear you go on and on and on………..

Bmore on March 28, 2012 at 6:07 PM

Check out my diary on RedState, DerKrieger. I’ve read you over there.

Charlemagne on March 28, 2012 at 5:56 PM

I stop over at RedState and used to follow DerKrieger…but the current “coldwarrior” over there is apparently a doppleganger, not me. I rarely if ever post on any other blogsites other than HotAir.

But, nonetheless your 5:45 PM post was indeed a breath of fresh air.

coldwarrior on March 28, 2012 at 6:07 PM

pedestrian on March 28, 2012 at 6:05 PM

: )

Bmore on March 28, 2012 at 6:08 PM

Cindy Munford on March 28, 2012 at 6:06 PM

Don’t you know? Obama’s just going to take it out of stash!

MJBrutus on March 28, 2012 at 6:08 PM

Get a two-floor outhouse like I have; liberals and Wisconsinites use the bottom, everyone else uses the top.

Bishop on March 28, 2012 at 5:54 PM

Yeah, the turds usually float on top.

chewmeister on March 28, 2012 at 6:08 PM

Perhaps, but after his next election he will have more flexibility.

kjl291 on March 28, 2012 at 5:28 PM

I hope so. I look forward to watching him bend over and kiss his own political ass goodbye….after his next election.

Oldnuke on March 28, 2012 at 6:10 PM

It’s a good point. The problem, of course, is what enumerated power would grant them the authority? It could no longer fall under the ever-so-flexible commerce clause unless we’re willing to say that commerce clause is broad enough to encompass every single good or service that people buy or even could be made to buy.

MJBrutus on March 28, 2012 at 5:56 PM

Health insurance is probably the only ‘commerce’ in the entire economy that is absolutely not ‘interstate’. You are specifically prohibited from purchasing it across state lines.

Dr Evil on March 28, 2012 at 6:10 PM

chewmeister on March 28, 2012 at 6:08 PM

You do understand that an outhouse relies on gravity not water?

coldwarrior on March 28, 2012 at 6:11 PM

The argument for having the Court kill the whole thing is more pragmatic than legal, I think — no one wants to see insurers go out of business because Congress ends up gridlocked and paralyzed on yet another issue.

Actually, the whole point of the lengthy health care bill was to eventually bankrupt health insurers anyway. Obamacare was only meant as a transitional faze prior to bringing about a government single payer. Sometimes I think I’m the only person paying attention.

pitythefool on March 28, 2012 at 6:14 PM

DrRich on March 28, 2012 at 6:06 PM

Here’s the SCOTUS site with links to everything:

http://www.supremecourt.gov/docket/PPAACA.aspx

Go down to 11-400 for the am and pm audio/transcripts.

INC on March 28, 2012 at 6:15 PM

of course there’s also this possibility. Passing this law which in effect is destined to destroy the finest health care system in the world was the wrong thing to even attempt. If the court strikes it down as they should, the now Republican controlled Congress should just not attempt it again, at all. Pass Ryan’s budget which does save medicare by lessening the scope of other ridiculous government spending.

Why is it incumbent on Congress to do again what should never have been done in the first place? Our founders put together a Constitution which demanded that our Legislators met at least one time during a calendar year. The thinking was that these people would have regular jobs and lives to attend to outside of their law making duties. When they started treating it as a full time gig is when we got into trouble. None of these dolts are capable of saying, “maybe I shouldn’t meddle in affairs that do not concern me.”

Flyovercountry on March 28, 2012 at 6:15 PM

Democrats were trying to play political brinksmanship games with the SCOTUS by intentionally leaving out severability. Another new low.

They deserve to lose the whole thing.

forest on March 28, 2012 at 6:16 PM

Fighton03 on March 28, 2012 at 5:29 PM

Well that would be the desired outcome, but I meant if BO gets re-elected he won’t care and would do whatever he could get away with to realize the dream of single payer a communist/socialist United States under his control.

kjl291 on March 28, 2012 at 5:36 PM

FIFY

Old Country Boy on March 28, 2012 at 6:16 PM

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