September 30, 2011

Should Obama hope he loses the Obamacare case in the Supreme Court?

Mickey Kaus says:
If the law is as unpopular as it seems to be, and if the individual mandate is “the most hated piece of the law,” then the Court, by removing the threat of the law, or at least the mandate, on constitutional grounds, would remove a big reason to oppose Obama, no? 
Not only that, but if the Supreme Court upholds the law, Obama's opponents will have a rich opportunity to rail against those terrible liberal justices who don't respect the Constitution and its basic structure of limited, enumerated powers: They've said it's "regulating commerce" to tell a private citizen he has to buy a product that he's chosen not to buy. Alarm! Alarm! Don't let Obama appoint any more Justices!

But if the Court strikes down the individual mandate, Obama will suddenly be able to say: Those terrible activist conservatives on the Court! They've illegitimately grabbed the power to veto a law conservatives don't want! They talk about judicial restraint, but look how they set themselves up as a super-legislature when they don't like what Congress has done.

By the way, I think the decision in the case is likely to track the will of the people, as perceived by the Court. So, it's important to advocates to create the appearance of public acceptance or public outrage over the law. This demonstration of public opinion should happen anyway as the presidential campaigns move forward. It will be fascinating to see what happens when the Supreme Court decision plops into that discourse.

If the Supreme Court upholds the individual mandate, Republicans will say: Now it's crucial to win the presidency and strong majorities in both houses of Congress so we can repeal this thing. If the individual mandate is unconstitutional, is there nothing Democrats can do? Well, the existing form of legislation is out, but there are other ways to extend health care that would not meet the same constitutional problem. But would Democrats want to argue that they need to win the presidency and strong majorities in both houses of Congress so they can push through some new health care reform? I doubt it. What a nightmare it was the first time, devastating the path of the Obama presidency and giving rise to the Tea Party!

Thinking through all these permutations, I'm guessing the Supreme Court will strike down the individual mandate. The existing doctrine doesn't require that outcome, but I'm reading the political forces at play and assessing the Court's vulnerability to those forces, and that's my interpretation.

IN THE COMMENTS: Garage Mahal asks: "Will Thomas recuse himself?" Here's a better question: Considering my analysis above, if Thomas recuses himself, should we see him as extracting himself from politics or — slyly and deviously — playing politics?

80 comments:

TosaGuy said...

"If the law is as unpopular as it seems to be, and if the individual mandate is “the most hated piece of the law,” then the Court, by removing the threat of the law, or at least the mandate, on constitutional grounds, would remove a big reason to oppose Obama, no?"

Um....No. It means that Obama signed an unconstitutional law and it would be in people's interest that he not be in place to do that again.

Fred4Pres said...

Obamacare is so bad, so potentially devestating to the country (because entitlement programs are very hard to get rid of once they get in place) that I really do not care about the political and judicial ramifications of a decision, I want it gone.

Lucius said...

Mickey is trying out an interesting argument, but it doesn't sound like his usual slam dunk.

Politically, the problem is: Obamacare *is* Obama. Remove Obamacare, and he's got nothing to show for his entire administration.

If he were Clinton, he'd learn to be cool about doing smallbore stuff & just, er, enjoy the ride. But we know he doesn't enjoy it. He desperately wants to be historic, though.

Politically, Obama should pray to have the cloud of his unpopular plan lifted off him. But with his eye on "history", I'm sure he'll dig in to try and keep it.

Never mind that: I don't think he viscerally cares about American health, except it's a way for him to stride over Carter & Clinton, maybe even LBJ, JFK in his aspiration to Mt. Rushmore.

Seeing Red said...

If the individual mandate is unconstitutional, is there nothing Democrats can do? Well, the existing form of legislation is out, but there are other ways to extend health care that would not meet the same constitutional problem.

We didn't need to upend the entire thing for 10-15% at the most of the population.

prairie wind said...

You really want a reason to vote for him again, don't you?

Lincolntf said...

What Tosa said. Intelligent people will be grateful, the usual suspects will scream "Racist!", and it will be a long time before the Left tries again.

Browndog said...

A Government without limits

To me, that is the central question.

Ipso Fatso said...

My guess is that it will be upheld. I hope I am wrong.

Hoosier Daddy said...

"... Politically, the problem is: Obamacare *is* Obama. Remove Obamacare, and he's got nothing to show for his entire administration..."

Beat me to it. Well he's got Osama but his base never cared about him anyway.

About the only thing he's got going is he is taking out Jihadis at a breathtaking rate. Maybe the next GOP president in 2012 can appoint him SecDef.

Browndog said...

If the Supreme's rule ObamaCare Constitutional, how long before it becomes a set in stone Constitutional right?

Beyond repeal....

FloridaSteve said...

I thought the court was supposed to be immune to public opinion?

AJ Lynch said...

A universal subsidy, based on one's age, would have been a much better approach. Then you could take your subsidy check and use it to buy insurance.

But no, libruls must control you so they write a 2,000 page law and appoint a dumb former lobbyist [Sebelius] to implement it. And libruls still don't realize how dumb they appear and how hated they have become [Exhibit A is Garbage Mahal].

edutcher said...

If GodZero was hoping he'd lose, he could forestall the whole thing and do what Perry did with Gardasil and what everybody says Milton should do with RomneyCare:

Say, "It was a mistake", and then send a bill to Congress to repeal it.

But, since he's the vainest human being on the face of the planet and, like Woody Wilson, never wrong, the thought would never enter his head.

Seeing Red said...

If the individual mandate is unconstitutional, is there nothing Democrats can do? Well, the existing form of legislation is out, but there are other ways to extend health care that would not meet the same constitutional problem.

We didn't need to upend the entire thing for 10-15% at the most of the population.


What part of, "People don't like it and they don't want it", eludes these people?

FloridaSteve said...

What happens when we have massive civil disobedience and people simply refuse to obey the mandate?

AJ Lynch said...

Kaus thinks he is way smarter than he is.

garage mahal said...

Will Thomas recuse himself?

Holmes said...

If all the SCOTUS does is interpret popular opinion, perhaps it should be eliminated, reduced to merely a top federal appeals court, or there should be direct election of judges.

Holmes said...

George- will the wise Latina recuse herself?

Hoosier Daddy said...

"... If the individual mandate is unconstitutional, is there nothing Democrats can do?.."

Suspend the elections. Disband Congress.

Obama could stand on the edge of the Potomac with the 82nd Airborne and utter: Alea iacta est before taking full power.

Presentation is everything.

Maguro said...

Will Thomas recuse himself?

Why? Kagan is the one with a clear conflict of interest here, is she not?

traditionalguy said...

Yes, he needs some sympathy, And medical care costs are going up to the harm of temporarily uninsured middle class with a few assets left to their name.

Bender said...

But if the Court strikes down the individual mandate, Obama will suddenly be able to say . . .
______________

Suddenly? Divide, demagogue, attack, and demonize has been an Obama policy since before his inauguration.

That he will continue to divide, demagogue, attack, and demonize is an absolute certainty.

ricpic said...

The worst that tyrant Obama could have done to us has been undone. Long live tyrant Obama!

But people don't think like that, Mickey.

Hoosier Daddy said...

"... We didn't need to upend the entire thing for 10-15% at the most of the population..."

A simple federal cat care program for the uninsurable would have been an acceptable first start but that wasn't good enough.

All this dolt did was create a giant shit sandwich. It deserves to be overturned and he should be turned out on his heels next year.

Dust Bunny Queen said...

Will Thomas recuse himself?

Will Sotamayor?

Ned said...

"What a nightmare it was the first time, devastating the path of the Obama presidency and giving rise to the Tea Party!"

Nightmare to some...Godsend to most Americans in that it exposed obama/liberals for the corrosive/deceiful/plague they represent. I hope America has awoken and realize the punching any ballot D is idiotic!!!

Ann Althouse said...

"You really want a reason to vote for him again, don't you?"

Look, I'd take a vow not to vote in the election at all if it would help readers believe that I am an idiosyncratic observer into writing well in public and calling it as I see it.

bagoh20 said...

That's just stupid. You give him back the keys after we drag the car out of the ditch AND finishing the Slurpee?

Ann Althouse said...

"Will Thomas recuse himself?"

If he does, he could be accused of playing politics, trying to block Obama's reelection.

Mark O said...

We've really come a long was to hear the idea that existing legal doctrine should not require the Court to invalidate a Federal mandate to purchase something in the private market.

John said...

One of the things that has always amazed me about Obamacare was that they did NOT model it on Social Security.

In the 30's, SS was originally conceived as an insurance/pension scheme. At a tea party, Justice Stone told Frences Perkins, then Sec Labor and lead person, that if they passed it, the Supremes would strike it down as unconstitutional.

He suggested that the law have two components:

1) A tax on income that is specifically permitted by the 16th Amendment

2) A separate provision to pay out benefits. Benefits are like food stamps, section 8 housing, WIC and other welfare programs. These are constitutional under the "promote the general welfare" clause.

Had Obama simply put a tax that would have been used for insurance there would have been no constitutional question. Especially if it had been a tax on income.

Medical care could then have been provided as a welfare benefit to all.

It was making it an "insurance" with "premiums" tied to benefits that causes the problem.

So be thankful for Obama's stupidity.

I first read the story of Stone and Perkins in Amity Schlaes' great book "The Forgotten Man". However, the Social Security Admin has the story on their website

http://www.socialsecurity.gov/history/tea.htm

John Henry

Mark O said...

"Look, I'd take a vow not to vote in the election at all if it would help readers believe that I am an idiosyncratic observer into writing well in public and calling it as I see it."

A vow is just a promise, without consideration and unenforceable. I'll just go on making my judgments about your arguments based on the merit of them, including a judgment on your reasons for voting to Obama.

As if you cared. That's not the point of this blog, now is it? I hope not.

murgatroyd666 said...

But if the Court strikes down the individual mandate ...

But if the Court strikes down Plessy v. Ferguson, the Dixiecrats will suddenly be able to say: Those terrible activists on the Court! They've illegitimately grabbed the power to veto a law them damnyankees don't want!"

John said...

BTW: the above is what makes me wonder WTF? whenever I hear Perry or others saying that SS is "unconstitutional"

You can't get more Constitutional than having an amendment that specifically provides for something.

"The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration."

John Henry

prairie wind said...

Now is the time for the right to get behind Paul Ryan's plan to give the tax advantage (of buying insurance) to the individual. Give people (in O's parlance, "the workers") the power to control their own insurance and see how that will affect the cost of medical care. This is the best idea I have heard yet. And the idea that we should replace O-care with another way for the government to pay for healthcare...fah!

The hard part of Ryan's plan will be getting insurance companies to go along with it. Insurance companies would rather we buy our insurance through our employers because the employer controls the payment to the insurance company. Much better for insurance companies to have a sure thing than to have to deal with people who cancel their insurance when money gets tight.

As for your vote, Ann, do what you like. I will, too.

Hoosier Daddy said...

Gratz for the tag garage. See if you had been a whiney lefty hack back in the day rather than the reasonable liberal you used to be you'd have been piling up those coveted Althouse tags.

;-)

gregq said...

Personally, I think President Obama is toast next year, regardless of what happens w/ ObamaCare. However, Democrats like Joe Manchin (D WV) will be greatly helped if the Individual Mandate is found unconstitutional, and helped even more if the whole thing is tossed. Since they're running on "I wouldn't have voted for it, but I won't vote to repeal it) in States where it's not popular, having the whole thing tossed gets a big weight on their re-elections removed.

Strelnikov said...

Who cares? Bottom line is we're all better off with the stake through this nightmare.

Triangle Man said...

Obama was clearly against the individual mandate during the primaries. It was a key distinction between his policy perspective and Clinton's. He may personally prefer a system without an individual mandate, or an essentially identical system in which the mandate is achieved through a tax instead. I suspect that there is enough room for political cover for Obama if the court overturns the mandate and the law. However, I do not see how democrats could make a credible run for a re-do on the health care law.

J said...

They talk about judicial restraint, but look how set themselves up as a super-legislature when they don't like what Congress has done.

They should say that. Even granting the individual mandate's not great (actually...conservative policy)--tossing it to the blackrobes is a mistake as well. Then some might argue the entire concept of judicial review is a mistake, at least as quasi-political function--(As Jefferson said ..repeatedly contra John Marshall. On that ,rational libertarians and democrats might agree (not that they will).

gregq said...

"One of the things that has always amazed me about Obamacare was that they did NOT model it on Social Security."

They couldn't. He desperately wanted to pass "Single Payer", but he didn't have the votes. So they went with the IM, and enough bad regulations to eventually destroy the health insurance market, so that they could then go to Single Payer.

They thing they couldn't wrap their minds around was that the Constitution should actually apply to them

chickenlittle said...

How come garage gets in all the good one liners?

Ignorance is Bliss said...

...I'm guessing the Supreme Court will strike down the individual mandate. The existing doctrine doesn't require that outcome...

If, by existing doctrine you mean Supreme Court precedent, you are probably correct.

If, on the other hand, you mean the Consti-fucking-tution, then yes, yes it does.

Lucius said...

@John: You, and some others, present interesting alternatives Obama could have taken.

I'm not a great believer in technocracy, but Obama is a lesson in the decline of the Democrats' technocratic shop.

He *wants* to do central planning, oh yes! But not only he, but his entire coterie in the White House, his Cabinet *and* the Dem congressional caucuses-- have lost it.

The savviest & most cynical (and maybe O., partly, is in league here) just tore up raw chunks of meat to feed the Cerberus of the liberal coalition. The rest is Hawfard idealistic wonkery, a motor that won't start & looks out of place in the front yard of what's not supposed to be a trailer-park country (yet).

garage mahal said...

How come garage gets in all the good one liners?

Not sure!

Trooper York said...

"How come garage gets in all the good one liners?"

Because he is Forrest Gump.

J said...

Now is the time for the right to get behind Paul Ryan's plan to give the tax advantage (of buying insurance) to the individual

Wow , Byro the Sockpuppet aka prairie wind and sweatshop boss defending Ryan, and the Aynrand for Dummies code.

Bookmarked

J said...

Troopie, taking some time away from footsie with yr palsie Titus to tell some stupid jokes?
Hey fatso--first like get yr GED.

sorepaw said...
This comment has been removed by the author.
TreeJoe said...

Ann,

If I was a supreme court justice on this issue, I would advocate that once a majority opinion was formed and confirmed - once full reflection had taken place and the votes had settled - that the court provide a unaminous ruling with either no dissent or one dissenter.

There are certain topics where the justices best serve the nation by determining what the ruling will do, determing what grounds the justices can uniformly agree upon, and then presenting a united front while perhaps allowing for what would have made them rule differently in their opinions.

This is one of those cases. The people and the republic need a clear ruling from the court, not one that can be politically construed. They need a strong court saying, "Yes, this is permissible." or "No, the legislature cannot allow this in this manner."

I'm against the mandate because of it's intrusion on personal liberty. Taking aside the healthcare issue, the mandate goes too far and is not a power I would want congress to have.

Now, that being said, if 8 or 9 justices came together and said, "The Congress is allowed to require an individual mandate" I would be powerfully moved to say, "Ok, the constitution allows it. So we need a constituional convention to address the undue power the Congress has."

And I wouldn't be saying, "Damn that politicized court."

One of those ways moves our country forward, the other does not. In the end, the court's ruling would be the same...but the way they present it makes all the difference.

J said...

Trying to write again , Byro the sockpuppet, on issues you don't know anything about, in your cheesy stoner gibberish ? Maybe get that AA in Nursing first, trash

Hagar said...

These are interesting times.
A case can be made for re-electing Obama and the Reid Senate, let the health care act stand, and let them go ahead and try to implement it.
That should make the 2016 election a truly revolutionary "wave election."

n.n said...

If the individual mandate to socialize risk other than common risk is permitted to stand, then we can reject the constitution as a whole. There is no longer a recognition of individual dignity in this nation and there is no reason to continue with the charade. We should simply submit to individuals who claim a superior or exceptional dignity, as most people in this world are forced to do under threat of authority. The concept of voluntary exploitation has become progressively passe.

Hoosier Daddy said...

J, when the doctor dropped you after birth was the floor linoleum or marble tile?

I'm conducting a study on blunt force trauma on transgendered, progressive dwarfs so your input would be invaluable.

Thank you.

Carol_Herman said...

BINGO!

Pelosi is in the DOG HOUSE!

This goes back awhile, too. When she was seated at some dias ... And, Obama just brushed past her as if she didn't exist.

You call this the Obama Care Plan. But it never was that! This was Pelosi's baby. And, the democrapic putz's in the senate signed on. Without seeing DANGER and CRAP written all over this thing!

The sooner it dies ... via the Supreme's ... would give Obama the best outcome possible!

It will also take this dog off the runway ... where it's been splattering the re-election chances of democrapic senators ... coming up in 2012. (And, there are 24 such possible "vacancies!") While the pubbies only have to defend 12.

Obama's "harms" is that he can't go down and help any of these turd-y politicians campaign!

Well, two years in for Bill Clinton ... and a similar reality hit him in his head.

Obama? He's been changing staff like crazy! You haven't noticed all of them who are now missing?

What makes you think Anita Dunn's tongue fell out of her mouth for Ron Suskind ... if it wasn't the bad blood of getting rejected?

Browndog said...

I don't know how many times the leftist policy makers have to tell you that the "individual mandate" is simply the means to obtain "single Payer" before anyone believes them.

And yes, there are more than one "means" to destroy private healthcare, creating a mandate for the government to take over.

give the people what they want

traditionalguy said...

We need a plan.

Don't tell Garage, but what we have to do is have Thomas recuse so Obamacare survives to insure angry voters for the GOP.

Next we elect Perry or Palin who will fill the next up SCOTUS vacancy with David Prosser.

Then Prosser choke holds to death the other suspected liberals using his black robbed black belt skill, resigns in disgrace, but lets our GOP President appoint 4 more Conservatives.

Then we elect Ron Paul... oh never mind, we went too far.

gregq said...

William Jacobson offered this opinion on the subject. I think he's probably correct:

http://legalinsurrection.com/2011/09/politically-republicans-cannot-lose-a-2012-supreme-court-ruling-on-obamacare/

If the Supreme Court finds the mandate to be unconstitutional, it will deflate Obama’s presidency. In one fell swoop, the entirety of Obama’s agenda will come crashing down. It will be a political and personal humiliation.

If the Supreme Court upholds the mandate, Obama will be able to crow a little, but such a decision will leave the majority of people who hate the law with but one alternative: Throw Obama and Senate Democrats out in November 2012.

A pro-Obamacare ruling prior to the election will motivate the Republican base like nothing else, and will bring the independents along....

Legally, Republicans can lose in the Supreme Court on the Obamacare mandate. Policitally, Republicans cannot lose, so long as a decision is issued prior to the November 2012 election.

Sigivald said...

It'd be trivial to introduce an Amendment giving Congress the right to compel the purchase of health "insurance", if it gets thrown out of court.

It won't happen, of course, because there's no way it'd pass the States - because it's deeply unpopular.

When your desired outcome is unpopular, you have to be sneaky about it (if you're a legislator, at least), if you're not willing to give it up.

Luke Sneeringer said...

Will Kagan recuse herself?

Lincolntf said...

Any Supreme Court Justice who does or does not have health insurance should recuse him or her self. Spirit of the law and all that.

sorepaw said...
This comment has been removed by the author.
sorepaw said...
This comment has been removed by the author.
Bender said...

If this Supreme Court rules 8-0 or 9-0 that the individual mandate is constitutional
_______________

If 5 Jesters of the Supreme Court pull another Roe out of their butts, they will lose whatever vestiges of legitimacy that they have left, especially if they accompany it with a Casey-type of elite arrogance calling the nation to bow down to their edict.

Bender said...

"Liberty finds no refuge in a jurisprudence of doubt."

Nineteen years later, that line opening Casey, which was itself written 19 years after Roe, is still deserving of contempt and disgust.

But, curiously enough, were the Court to uphold the gross governmental intrusion into the doctor-patient relationship that is ObamaCare, it would provide ample precedent for finally overruling Roe.

caseym54 said...

All justices who have government-paid health care should recuse themselves.

caseym54 said...

And if they overturn Wickard, neither Kagan nor Thomas grow wheat, so they're fine.

cubanbob said...

Hoosier Daddy said...
J, when the doctor dropped you after birth was the floor linoleum or marble tile?

I'm conducting a study on blunt force trauma on transgendered, progressive dwarfs so your input would be invaluable.

Thank you.

9/30/11 12:13 PM

Hoosier J is C4's demented, moronic, institutionalized and unloved and recognized bastard jelly baby.

cubanbob said...

Ann if the court rules that mandate is unconstitutional and leaves the rest intact would that not also result in a serious federalism issue (state regulation of insurance companies and the new mandates on the states for medicaid) and commerce clause issues (again regulating insurance companies) and a takings clause issue (can congress de facto outlaw an industry via the preexisting conditions issue and the resulting loss to the insurance companies shareholders)?

J said...

Hoosier hick telling lies, misrep, defamation--the BushCo MO. Or mormonic for that matter.

J said...

sorepaw the LDS suckpuppet yr the mistake ,or rather your white trash parents conceiving you was. heh.

Avoid the constitutional issues and political writing, joto--a year of nursey school don't make it.

J said...

C- bob, trash--you're lying as per usual. for one Im not in GOPtards or TP. And opposing AIPAC and even ...zionist rackets does not imply approving of Hitler (as C4 has apparently) .But thats a bit subtle for a perp such as yrself--but you find GlennBeck and Fox a bit too challenging don't you, puerco.

Joe said...

They should all recuse themselves, after all, every justice of the supreme court engages in interstate commerce. They also require health care and would benefit one way or another by a ruling in either direction.

Ritmo Re-Animated said...

"Will Thomas recuse himself?" Here's a better question...

For people who care about integrity that's actually a worse question.

Cedarford said...

What kills most people about Obamacare is not the mandate or the Tea Party loon's death panel talk - it is the guy was supposed to try and halt the remorseless escalation of costs that puts our health insurance 40% more expensive than competing 1st world nations.

Instead, Obama made healthcare dramatically more expensive under Obamacare with all the new bells and whistles and subsidies. No cost cutting...

Simon said...

garage mahal said...
"Will Thomas recuse himself?"

No one should recuse themselves. Not Thomas becase (I assume) his wife has an opinion about the law, and not Kagan, because she might have one of her own. It seems to me that recusal demands are almost invariably games played by partisan groups hoping to stack the deck on the court, and they're unattractive whether played (as they sometimes are) by conservatives or (as they typically are) by liberals. Recusal doesn't belong on the table unless a judge is personally biased against one of the persons litigating the claim or personally stands to directly benefit from one outcome or the other. The court recognized that in Minn. GOP v. White: "'[I]mpartiality' in the judicial context–and of course its root meaning–is the lack of bias for or against either party to the proceeding. Impartiality in this sense assures equal application of the law. That is, it guarantees a party that the judge who hears his case will apply the law to him in the same way he applies it to any other party." I don't think Justices Thomas or Kagan have any animus towards litigants in the healthcare cases; they may have formed legal opinions on the case, but as White recognized (quoting then-Justice Rehnquist), "even if it were possible to select judges who did not have preconceived views on legal issues, it would hardly be desirable to do so. 'Proof that a Justice’s mind at the time he joined the Court was a complete tabula rasa in the area of constitutional adjudication would be evidence of lack of qualification, not lack of bias.'"

Carnifex said...

In the lead-in, Althouse sez that garage asks if Thomas will recuse himself? Implying Judge Thomas has no real opinions that don't reflect his wife I suppose. Without reading further *cause its early in the am* I will ask if Sotomeyor will recuse herself? Seems to me the pertinent question.

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Alien Tech said...

If he were Clinton, he'd learn to be cool about doing smallbore stuff & just, er, enjoy the ride. But we know he doesn't enjoy it. He desperately wants to be historic, though.
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