March 27, 2012

Jeffrey Toobin on the SG's argument today: "This was a train wreck for the Obama administration."

"I don't know why he had a bad day," said Toobin. "He is a good lawyer, he was a perfectly fine lawyer in the really sort of tangential argument yesterday. He was not ready for the answers for the conservative justices."

Aha! I might know why the Solicitor General Donald Verrilli was so bad. I told you last October 2d I had a theory:
I have a conspiracy theory, but I won't tell you what it is...

... because I hope the conspiracy — if it exists — succeeds. Some time next year, I'll tell you what the theory was, as this is a conspiracy that will play out within a limited time frame. Don't try to drag it out of me. I am not in this conspiracy, but I don't want to blow the lid off of it. It's has to do with certain political actors seeming to be pursuing one goal, when actually they seek the opposite.
What say you? Did the SG throw the game?

173 comments:

Original Mike said...

""I don't know why he had a bad day," said Toobin. "He is a good lawyer,"

Maybe it's the case.

Surfed said...

"What a deep file you are" said Stephen Maturin.

garage mahal said...

Conspiracy: Losing would open the door for single payer. Since it seems single payer would be constitutional according to SCOTUS?

Aggle said...

I've said the same thing. I think the ideal outcome for the Obama Administration is the striking down of the individual mandate; and a severance of that portion from the rest of the law.

If that happens, we are left with the pre-existing and no denial provisions of the law, and insurance costs will absolutely skyrocket.

Then the people of this country will likely be screaming for single-payer.

Tom said...

What? Maybe that Obama is a Karl Rove plant and that all of his first-term "accomplishments" (better "dis-accomplisments"?) will result in a huge GOP win in 2012? Why not?

AJ Lynch said...

Please Althouse- stop giving pols with very average IQ's credit for being brilliant schemers.

Scott M said...

Some time next year, I'll tell you what the theory was, as this is a conspiracy that will play out within a limited time frame. Don't try to drag it out of me.

Okay...Mick.

:)

Amartel said...

Right. The government's fucking it up on purpose 'cause it's all part of some brilliant meta plan.
No, really, we're not stupid and incompetent, we MEANT to do that.
Facepalm.

Triangle Man said...

A fascinating theory. Obama ran against the individual mandate in the Dem. Primary race, using it to distinguish himself from H. Clinton. Hm.

Ralph L said...

No way Obama would risk His Historic Legacy just to get reelected. Aggle is correct that a strikedown of the mandate alone will ruin private insurance even faster than the whole bill does, but I think more people will scream for O's and Congress' heads than for single payer.

edutcher said...

This Administration seems to be suffering from a series of unforced errors recently. Maybe the Best and the Brightest are nowhere as good or as bright as they think they are.

Aggle said...

I've said the same thing. I think the ideal outcome for the Obama Administration is the striking down of the individual mandate; and a severance of that portion from the rest of the law.

If that happens, we are left with the pre-existing and no denial provisions of the law, and insurance costs will absolutely skyrocket.

Then the people of this country will likely be screaming for single-payer.


Because The People have been clamoring for single-payer.

Just like they really love ZeroCare.

If the mandate is struck down, the rest will be repealed.

chickenlittle said...

So, a corrolary of the hypothesis is that BHO gets to rewind back to 2008 and run again on getting free stuff for people again?

Scott M said...

Aggle is correct that a strikedown of the mandate alone will ruin private insurance even faster than the whole bill does

Why?

Seven Machos said...

Come on, Althouse. You have to lay your conspiracy theories on the line before the outcome occurs in order to look prescient.

Out with it. Otherwise, the Mick reference is pretty apt.

garage mahal said...

I'm watching you like a HAWK, Althouse. I better get at least a co-tag with Aggle.

ALH said...

Ha ! ! !

I have been wondering and was about to ask you if I missed your announcement of the conspiracy theory.

Would like to hear more on what made you smell a fish...just that Obama was going to need something to rally the left against the Evil Right Wing in an election year?

chickenlittle said...

garage mahal said...
I'm watching you like a HAWK, Althouse. I better get at least a co-tag with Aggle.

Meade, get your .22 out. You know that hawk that's been perching up in the tree behind Meadhouse? It's a garage drone.

Alex said...

Garage - single payer would indeed by Constitutional if you can get it passed. Why do you want to perform an end-run around the COTUS?

ricpic said...

The conspiracy theory relies on the court striking down the mandate but also striking down non-severability for it to succeed. Not a good bet.

Seven Machos said...

It is my understanding that the bill stands or falls as a whole since it has no severability clause. I was schooled on this previously in this very forum, as I foolishly assumed that no Congress would be so harebrained as to not include a severability clause.

Meanwhile, here's my theory: the Court will say that what Congress is doing is actually a tax, and that Congress has stupidly burdened itself with semantics for political reasons. The law cannot stand as is, because Congress is claiming Commerce Clause power that does not exist. But all Congress needs to do to make the law work is rewrite the bill such that it is claiming taxing power.

Alternatively, the Court will find that Congress has the power to levy a tax even if it doesn't call it a tax. A tax is a tax.

My cards are on the table, Althouse. Get busy.

Amartel said...

Verrilli's definitely not stupid but anyone can stumble and have a bad day. The stakes are high and the pressure must be enormous and sometimes when you start to go into a spiral it's hard to pull out. It's just ... interesting how when it's the government that stumbles it gets turned around into being a good, purposeful, intelligent, brilliant thing, all part of the magnificent plan to further dupe the duped.

cassandra lite said...

He can be said to have thrown the game if someone defending the plan provides convincing answers to the questions. Otherwise, here comes Occam: There's no legal foundation for such a transformational allocation of federal powers.

rcommal said...

I'm sorta with Scott M. and 7M here, in this case.

gerry said...

You have to lay your conspiracy theories on the line before the outcome occurs in order to look prescient.

Professor, where do you want the key for the safety deposit box in that southern city we discussed that contains the sealed envelope with the notarized conspiracy details mailed?

I'm getting nervous.

traditionalguy said...

Yes. It was like watching a PGA pro hit one sand trap and hit that over into the opposite sand trap.

A crisis in health care premiums caused by the Supreme Court would blow smoke over a lot of Obama's current attacks on America, such as his ban on cheap coal generated electrical energy , his surrender to Putin's Russia, and his abandonment of ally Israel unless they agree to a surrender of their capital Jerusalem over to the UN.

Hmmm?

X said...

Losing would open the door for single payer.

And trying to socialize medicine has cost the Dems their permanent House majority twice now.

Rialby said...

It's highly unlikely that his performance is due to any reason other than that of incompetence. I'm sure he's a brilliant lawyer but he's being asked to tie himself into logical knots in support of this monstrosity.

Rialby said...

Exactly, Occam.

Hoosier Daddy said...

"... Meade, get your .22 out. You know that hawk that's been perching up in the tree behind Meadhouse? It's a garage drone..."

I say use the 12 gauge. It's the only way to be sure.

Rialby said...

It might help the Democrats if Obamacare was overturned because it gives them something to run against other than George Zimmerman and his band of KKK thugs. Even so, there's no way that anyone is taking a dive in front of the SCOTUS. Even a little dive.

Quayle said...

Aggle is correct that a strikedown of the mandate alone will ruin private insurance even faster than the whole bill does

Why?

Because insurance companies must be able to control two things if they are to remain solvent.

1. They have to know what risks are in the pool to be sure they are accounting for them, and they can't have unexpected high risks enter at will unless the premium is adjusted.

(The risks, of course, are the expected payouts from the pool and are calculated roughly as: event probability of something happening to a pool member * cost if it happens * number of pool members).

Their premium is set to account for the payouts. If there are hidden or sudden new risks, the premiums won’t be large enough to cover the payouts.

2. (And this is related to the first) insurance pools must have a way to prevent people from staying out (not paying a premium) when the person knows they won’t need a payout or are less likely to need a payout, but then jumping in when they know they will need or are likely to need a payout.

The point is that Obamacare disallows both these things, and will therefore unquestionably lead to complete failure of all private insurance pools.

But to remedy that fact – that the law is foundationally flawed to enable insurance pools to be solvent – they then try to duc tape over that problem with a mandate.

Original Mike said...

Hard to see, the future is.

Seven Machos said...

By the way, Sotomayor and Souter, if you read this blog, I want a footnote. You know you couldn't think up my brilliant analysis yourselves.

It's Seven Machos, both words capitalized. Please work the word bodega into the opinion as well.

MadisonMan said...

Meade, get your .22 out. You know that hawk that's been perching up in the tree behind Meadhouse? It's a garage drone.

It's illegal to discharge a firearm in Madison.

I think a video made back in October of althouse talking about this theory would work. Certainly the trees in the background would look different.

Hoosier Daddy said...

"... Conspiracy: Losing would open the door for single payer..."

Yeah cause that will be a real selling point to the 90% of the electorate who have health care coverage.

Boy I hope the Dems run that up the flagpole.

Scott M said...

Hard to see, the future is.

Disturbing, your lack of faith is.

Seven Machos said...

It's illegal to discharge a firearm in Madison.

Bearing arms means shooting them. The law is facially unconstitutional. Lots of that going around these days.

rehajm said...

Nobody plays the long con THAT long. Especially elected officials.

Bender said...

What say you? Did the SG throw the game?

When your arguments are complete BS, because the law you are defending is complete BS and grounded in no constitutional provision but on BS instead, then you are going to sound bad in making those arguments.

Original Mike said...

"Even so, there's no way that anyone is taking a dive in front of the SCOTUS."

David Axelrod abducted his kid.

Mark O said...

This is the sort of thing that can only come from the brain of someone who thinks Obama's mistakes are really brilliant.

Gag.

Seven Machos said...

grounded in no constitutional provision

It's pretty clearly grounded in the power to tax. Please explain how it isn't.

I don't support the law. It's a bad law. It should be abandoned. But Congress passes all kinds of bad laws.

garage mahal said...

t's illegal to discharge a firearm in Madison.

And to shoot and kill hawks or owls. Federally protected.

Mattman26 said...

Throwing it to pursue single payer? Highly doubtful.

Throwing it because it's hugely polarizing, and because having the Act declared unconstitutional will rally the base (illegitimate Supreme Court, etc.) and maybe neutralize a few votes in November of people who want it repealed? Maybe.

The contraception mandate --- pissing off (or on) the Catholic Church --- was certainly well timed if they were looking to cause consternation for Kennedy.

drozz said...

it appeared verrilli really got hammered (or scalia'd), and at times needed sotomeyer to answer his quesitons. i found his answers to be wandering sometimes. i beleive alito had to answer for carvin once, and carvin like verrilli strayed, although not as often. however, carvin did have a great exchange with breyer around page 88. clement really stood out to me.

it just appeared that the government's position didn't quite stand up as well as florida's. admittedly, i am against the mandate and the ACA as a whole so i am biased.

but it all comes down to kennedy. i don't think he was convinced as to precedent or rational for the mandate. i think if he were to vote for the mandate, he would be relying on something other than what was presented.

did verilli throw the case? i don't think so. sometimes it's just hard to defend a difficult point of view in front of so many judges. and yes, it has to be unnerving going before the supreme court.

still, as in sports, the great ones rise to the challenge under pressure.

also, it is to be noted that obama has put his total faith in people who have no clue in what they are doing and are unqualified for their position. obama himself, axlerod, and holder are good examples

Alex said...

Why the hell should I care about the private insurance industry? Sink or swim.

Bender said...

You haven't bothered at all to read the oral argument transcripts or the briefs, have you Seven?

The last thing that any of the justices think (aside from Breyer, maybe) is that this is a tax.

Seven Machos said...

Bender -- Your assumption that the oral argument has any bearing on the reasoning the Court will use is touching in its innocence.

Scott M said...

@Original Mike

David Axelrod abducted his kid.

That didn't make any sense to me the first couple of passes. Then the phone rang and while my wife was regaling me with her day, I glanced at the screen and instantly got it and laughed out loud at an inappropriate stanza in her description. Which pretty much ended the phone call.

I believe my subconscious went into a previously unknown overclock mode out of panic.

Seven Machos said...

Further, Bender, please tell us your prediction. The reasoning is important -- the analysis. Don't just tell us yes or no.

I'll wait.

ElPresidenteCastro said...

He did a lot of coughing and water drinking at the beginning. I suspect the CIA has attempted to poison him.

Verrilli should only accept cigars from known sources.

Dan in Philly said...

Obama's team have shown time and time again they are not capable to anticipating their opponents' arguments. The very indications we are seeing how shocked they were at the very idea that the bill might be seriously challenged in court is one example of many.

You can draw your own conclusions as to why this may be, but if the campaign of 2012 is run as ineptly as the last 3 years in office, Romney will win 48 states.

Scott M said...

He did a lot of coughing and water drinking at the beginning.

Nerves, pure and simple. My first night on-air I went through at least four or five gallons of water.

I Callahan said...

How about this:

Liberals are so sure that they are right about ObamaCare that it didn't occur to them that it may actually be unconstitutional. And even if it was, since liberals are so sure they're right about ObamaCare that the USSC surely wouldn't overrule it.

Like a prior comment said, never attribute to malice that which is adequately explained by stupidity.

shiloh said...

"They" say Roberts is concerned about his legacy and wants to avoid another 5/4 cause célèbre decision. Regardless, the SC justices have "probably" already decided this case and lawyers arguing pro and con are irrelevant. That's why they are Supreme! :)

ElPresidenteCastro said...

Scott M,

He sounded fine yesterday.

QED, the CIA is trying to kill him.

edutcher said...

What Rialby said.

The idea that what he's trying to sell is so illogical he couldn't even sell it to himself is perfectly reasonable

Amexpat said...

Did the SG throw the game?

Can the SG really "throw" a case through a bad performance? This is not a moot court presentation where the best argued case wins. The SCOTUS should rule on what they believe to be the correct interpretation of the Constitution here and they should have the knowledge to make up their own minds and not be swayed be a brilliant or a bad performance.

chickenlittle said...

And to shoot and kill hawks or owls. Federally protected.

Yes but are drones protected species--even if tarted up like a passenger pigeon?

Seven Machos said...

This is not a moot court presentation where the best argued case wins.

No, no. Listen to Bender. He's looked over the oral arguments in a cursory fashion. It's all about the oral arguments. Just like on television.

Bender also likes to complain about Romney supporters but, like in this case, offers no credible alternative. The arena Teddy Roosevelt spoke of is obviously not for him. Better to carp from the nose-bleed seats.

John Stodder said...
This comment has been removed by the author.
John Stodder said...

I say unlikely, unless someone can tell me that the documents most determinative of the outcome -- the briefs -- are also "blown" on purpose.

Because it's a truism that the oral argument rarely shifts votes.

Also, can you imagine what the SG would have to be bribed with to throw a match like this before the SCOTUS on purpose? I coulda been a contender. I coulda been somebody instead of a bum which is what I am, because I screwed the pooch on Obamacare.

garage mahal said...

Yes but are drones protected species--even if tarted up like a passenger pigeon?

Good quest! I think you can trap hawks however with a special permit. My father-in-law has friend that comes down to Madison area to trap them, for falconry. His wife divorced him because he insisted on keeping the hawks inside the house. She probably gave him a choice: the hawks, or me. He did choose!

Gene said...

Rialby: It's highly unlikely that his performance is due to any reason other than that of incompetence. I'm sure he's a brilliant lawyer but he's being asked to tie himself into logical knots in support of this monstrosity.

You nailed it. No one can be brilliant when trying to avoid telling the truth.

Rabel said...

"What say you? Did the SG throw the game?"

Did Alito and Roberts get bounty money for their cart-off hits?

Did Scalia adulterate Verrilli's precious bodliy fluids?

Are the contrails especially heavy over DC today? Over Madison?

No. No conspiracy. They're not that smart.

MikeR said...

I don't believe in the conspiracy theory. I think this is simpler than that: Both liberals and conservatives are dancing around the problem, which is that the way the Commerce Clause has been interpreted for a long time doesn't work. Everyone knows that there have to be limits to the Enumerated Powers, it's fairly obvious that the Commerce Clause was supposed to handling things like - interstate commerce, you know, between different states? But now that it has been understood much more broadly, they have nowhere to turn: Gotta be a line somewhere, right? Let's make one and see if we can make sure Obamacare is on the side we prefer.

Tim said...

"Did the SG throw the game?"

Notwithstanding Occam's razor, this kind of thinking provides some insight as to how some (one?) voter was able to punch the ballot for the least qualified person ever nominated for president by any major political party.

"Conspiracy: Losing would open the door for single payer. Since it seems single payer would be constitutional according to SCOTUS?"

This is exactly right. There is an undeniable clamoring amongst the electorate for "Medicaid for All."

The Drill SGT said...

The wife is a DC lawyer (Fed). She was saying that the DC legal community ran out of SCOTUS Surrogates in the last 2 weeks. all three sides and some of the other groups ran mock Orals. It's not good enough to get some Tax partner to ask Scalia questions, what you really want is an ex-Scalia Law clerk (who ghosted Scalia decisions) to ask Scalia questions and the ad-hoc follow-ups in real time.

I added that the hottest prize in town were Kennedy ex-clerks :)

I Callahan said...

That being said, maybe it's because Verrilli can't make a cogent argument against what's so obviously unconstitutional. In other words, maybe it ain't the lawyer, it's the case itself.

I would assume that the best defense lawyers lose more cases than they win.

Saint Croix said...

Losing would open the door for single payer. Since it seems single payer would be constitutional according to SCOTUS?

Yes. Congressional power to tax and spend is pretty much unlimited.

Bender said...

Can the SG really "throw" a case through a bad performance?

No, not really, not through a bad performance.

Of the 3-4 Supreme Court oral arguments that I've sat through (before the bar, so that I could sit for the whole thing), the worst was some arrogant lawyer for the IRS who openly exhibited contempt for the Court. The IRS later won 9-0.

You cannot lose at this level through a bad performance. But you can lose through a bad argument, you can lose by making concessions or by not meeting the concerns that a justice might raise in questioning.

Chris Gordon said...

Conspiracy:

1. ObamaCare struck down.

2. Economy booms all summer.

3. Obama coasts to the finish line.

4. Obama enjoys the flexibility of his second term.

Transmit it to Vladimir.

Original Mike said...

@Scott M: Tell her it was my fault. Send flowers.

Bart DePalma said...

"I don't know why he had a bad day," said Toobin. "He is a good lawyer, he was a perfectly fine lawyer in the really sort of tangential argument yesterday. He was not ready for the answers for the conservative justices."

Perhaps, because there are no good answers.

What Kennedy appears to be looking for is a bright line rule demarking what Congress may and may not do under the Commerce Clause and evidence that the individual mandate falls on the permissible side of that line.

The problem is that the text of the Commerce Clause only permits regulation limiting existing commerce and in no coherent way can that language be twisted to say Congress has the power to compel Americans to engage in commerce.

If the Supremes were to permit the individual mandate, they will have essentially erased the Commerce Clause from the Constitution and replaced it with a general police power of the court's own creation.

The SG cannot say this and is left dancing under a barrage of pointed questions.

Scott M said...

Send flowers.

Can't. It's already been established (she admitted) that when she sees flowers, her first thought is "how much did he waste on these?"

damikesc said...

Ill give my guess:

SCOTUS overturns IM 5-4. A second case kills it all dead due to lack of severability. I see Thomas referencing that in this opinion...but not others. They will fall back on Congress creating commerce in order to regulate it as being unconstitutional. The government being unable to state where a limit to their power exists will hurt.

Saint Croix said...

Bender -- Your assumption that the oral argument has any bearing on the reasoning the Court will use is touching in its innocence.

"No, I did not read the oral argument transcripts or the briefs." Fixed.

Kansas City said...

I think Ann may be correct. Why would Obama agree to an expedited Supreme Court hearing unless he wanted to lose before the election and get to attack republicans and conservatives, while avoiding being attacked on the detials of Obamacare. Brillian re-election strategy. But the little I heard of the SG, he just seemed nervous and bad.

n.n said...

Probably for the same reason he chose to intervene in Florida, in a case involving Black and Hispanic men, where the physical evidence supported the Hispanic's recollection of events. Obama is an opportunist and a Republican plant.

If it's the alternative, then he, and his supporters, are thoroughly deluded. I wonder how many Americans will stand by as they suffer further reductions of liberty and progressive involuntary exploitation. To be fair, it already happens covertly through inflation, redistribution, and cost-shifting schemes. Still, there is some kind of bliss in ignorance.

rcommal said...

Nerves, pure and simple. My first night on-air I went through at least four or five gallons of water.

This can be dangerous. I once did something like that while doing an overnight show, ran out to the bathroom (which was outside the radio station portion of the building) during a particularly long track I deliberately chose for that purpose, and then realized I had left the keys inside the station and was locked out. (I was alone, the other person who was supposed to be there having not shown up.)

Dead air (or, more accurateky, that repetitive bmp-bmp of a needle at the end of an album--this was a loooong time ago) is an unlovely thing, even at a college radio station.

Never, ever took a bathroom break during a show again.

Michael said...

Ginsburg was making herself into a pretzel trying to make his arguments for him. It is possible, I suppose, that is he as dense as he appeared.

Michael McNeil said...

Passenger pigeons would be even more protected than hawks and owls — if any of them existed. But they're all extinct.

Not a good choice to disguise a drone (even one named Garage) as.i

CptParlay said...

Just wait, the health insurance industry will be too big too fail.

Seven Machos said...

Croix -- I have read large swaths of the transcripts. Bender has been posting them left and right in these very forums, and the very things he posts are crawling with references to taxes.

Still waiting for anyone, such as you, to hazard a guess at the outcome. I do love the criticism, though, of my prediction. Keep up the outstanding douchebaggery. I am impressed at the persistent vapidity of your work. That can't be easy.

Scott M said...

6-3

All four of the liberal judges will be visited by three ghosts the night before the vote, but the Ghost Of Bankruptcy Future will only be able to scare the bajeezus out of one of them.

Kansas City said...

I think any conspiracy would be election driven, not driven by a desire to achieve single payer. And, it is not a matter of taking a dive. It is more a matter of lets get it over with becaue either result is better than no result: (1) if approved, it at least marginally helps Obama defend against attacks; (2) if declared unconstitutional, it revs up Obama's base, cools down opposition and avoids an election centered on Obamacare. Either is better than Obama just being a pinyatta for attack without a Supreme Court decision.

garage mahal said...

5-4

"We fought hard and long for 30 million Americans to receive affordable health insurance, and those discriminated against because of pre existing conditions. Republicans took that ALL away!"

Tridad said...

I think "single payer" is one step ahead of the game. The President knows we'll get that once businesses start choosing to pay the penalty rather than offer care. When millions start losing their coverage, the admin will push single payer.

The shorter game is the election. Politically, with 2/3rds of the country against Obamacare, his best bet is for the law to get thrown out by the conservative justices. He gets to take credit for tackling health care, can blame the SC and "right-wing extremists in bed with business" and, most importantly, does NOT give 2/3rds of the population a reason to elect Republicans who know can't run on repealing Obamacare. He can also then beg the dems to come out so they can do it again, but this time properly and urge THEM to take back the House and keep the Senate.

If he "wins" in the SC, the only way to get rid of Obamacare is to deliver the House, Senate and Presidency to the Republicans. I don't think he wants to win in the court for political reasons.

Titus said...

I have no interest in this case. Sorry, but I bet Kagen and Sony were playing footsie during the proceedings.

And Thomas was definitely thinking of white pussy and pubic hair.

Jon said...

"Some time next year, I'll tell you what the theory was, as this is a conspiracy that will play out within a limited time frame."

Why not in November of this year, after the election?

Scott M said...

does NOT give 2/3rds of the population a reason to elect Republicans who now can't run on repealing Obamacare.

My understanding was that, with the IM ruled unconstitutional, the rest of it could be either changed or repealed by Congress.

crosspatch said...

If it is, indeed, such a conspiracy, I would watch Justice Sotomayor carefully. See what she does as she was SG when the law was passed and was cheering for it at the time.

If she comes out against the mandate, that would be a pretty good indication that Prof. Althouse might be onto something.

bagoh20 said...

5-4

One squishy judge is all there was to protect the constitution and the country from a secretive, arrogant, irresponsible Congress and President. Obama will eliminate that one-half of a judge protection if not defeated in November.

That's the message and it cuts both ways, because some people like their government secretive, arrogant and irresponsible - at least when it's handing out free lunches.

Titus said...

We already have universal health care in Mass, thanks to Romney and we gay can get married, thanks to Romney.

I don't give a shit about the rest of the country.

It's all a piece of shit to me, except coastal states, natch.

You poor people who don't have an ocean in your backyard. How depressing.

tits.

Balfegor said...

Re: Kansas City:

I think any conspiracy would be election driven, not driven by a desire to achieve single payer. And, it is not a matter of taking a dive. It is more a matter of lets get it over with becaue either result is better than no result: (1) if approved, it at least marginally helps Obama defend against attacks; (2) if declared unconstitutional, it revs up Obama's base, cools down opposition and avoids an election centered on Obamacare. Either is better than Obama just being a pinyatta for attack without a Supreme Court decision.

"Neither pride nor hope rekindling at the end descried, so much as gladness that some end might be?"

Anyhow, on the substance, I'm more or less with Seven Machos, on the mandate = tax point. And unfortunately, that means it falls squarely within the broad taxation power of the federal government.

There would be a kind of poetic justice if the President's mulish insistence that the tax is not a tax ended up bringing the whole awful edifice of Obamacare down around his ears, perhaps. But on the broader question of whether the federal government can set up this kind of incentive system, I think the conclusion is clear. It may be improper. It may be un-American. But it's something the American government can do, through the tax code, and does with all kinds of other things already.

If the mandate is struck down, though, this ought to be the point Republicans use to hammer home why you mustn't give control of all branches of government to the Democrats again -- they'll just try and pull this kind of crap again, under a different power (one Congress actually has this time). It's not going to be nearly as powerful, though, because there's currently clear majorities in favour of repealing Obamacare, and I expect a lot of that opposition will dissipate no matter what after the law is struck down. I don't think Obamacare is an instance where people feel that the Democrats fundamentally broke trust with them -- I think voters just think it's a stupid policy, and will be satisfied once it's gone.

damikesc said...

"We fought hard and long for 30 million Americans to receive affordable health insurance, and those discriminated against because of pre existing conditions. Republicans took that ALL away!"

Yes, running on how unfair it is that a law that is widely loathed was found unconstitutional is likely to be a BIG winner for Obama.

Q said...

the Court will find that Congress has the power to levy a tax even if it doesn't call it a tax. A tax is a tax.



Indeed, a tax is a tax, But this is not a tax. It is a penalty. You cannot avoid a tax, you can avoid a penalty. And you can avoid this penalty by doing what the government wants you to do.

Using your definition of terms, the fine you pay for a speeding ticket is a tax. And it just isn't.

Fr Martin Fox said...

No need for a conspiracy.

The President can live with either outcome so why tank the case?

If he wins, he has more political trouble this fall; however, he wins. He gets the fundamental transformation of the country he wanted. Odds of repealing Obamacare are not long, even if the Republicans win the Presidency.

If he loses the case, he has lots of his base outraged at the "Right wing" court. And, who knows, it may be that being labeled as partisan may induce Kennedy to throw a vote the other way, just to keep being courted. Hmm, what might be that other vote? How about a California case coming their way?

That said, when I read the transcript of today's oral arguments (I didn't read the briefs), I didn't think the SG did that awful. I thought he made about as good an argument as he could make. Whether he was able to get Kennedy or Roberts on board I cannot say.

Why are the predictions of these talking heads noteworthy? Is there any penalty for them being wrong? I can't see it. They spout so many stupid theories and seldom, if ever, get called on their goofy predictions.

MikeR said...

I continue to maintain that if Obamacare is found unconstitutional, it will be a terrible blow to activism on the left. They gave up everything for Obamacare, spent every penny of political coin they had. If that goes, what will be left of them? What did they get for their total control of Congress in 2008?

themightypuck said...

I love the conceit that you can win or lose during oral argument.

Fr Martin Fox said...

Damilkesc:

Here's how losing this case helps Obama:

It makes some segment of the expected electorate this fall lose a reason to be up in arms. Everyone who will vote this fall won't all vote for the same reasons. Some number will--if Obamacare is upheld--will vote full of anger about the takeover of health care. And if it's struck down, they will no longer have that reason to charge to the polls. Of course, some number of them will have other reasons; but some number will, at that point, not be nearly so motivated.

Meanwhile, the opposite occurs on the other side: some number of Obama's folks will relax if the ACA is upheld; and some number of them will be motivated to vote this fall all the more out of fury over a ruling against the ACA.

Obama doesn't need a majority of the public; he needs majorities of those who show up in certain states. And he simply has to be preferable to the other guy.

mccullough said...

The most interesting thing about the oral argument is not the legal back-and-forth. Verrilli and Breyer emphasized that 40 million Americans are uninsured and Clement, Alito, and Roberts emphasized that the legislation wasn't to require everyone to buy a a catastrophic policy but to buy policies that require preventative care, dollar-one coverage for certain things, etc. At one point, Breyer finally says they're not there to argue the merits of the legislation. But that was the most interesting part.

Seven Machos said...

Q -- Start with the proposition that everyone must pay the tax. However, you can get out of paying the tax if you purchase certain insurance, or get a waiver.

The issues here are really semantic. Obama and Congress did not want to call what they were doing a tax, so they claimed power under the Commerce Clause. In my opinion, the outcome really depends wholly on the vocabulary the Court accepts. The interesting question, if I am right, is whether Congress can use power that it says it isn't using. Must Congress be honest?

I do agree that winning here is losing for Obama. Losing is still probably losing, too, though. The poor guy was just too convinced of his own popularity that he signed a very unpopular law. Stupid and vain, not conspiratorial.

Of course, I'm sure Bender and Croix have terribly trenchant analysis. Or maybe it'll be more squawking about my analysis.

garage mahal said...

Yes, running on how unfair it is that a law that is widely loathed was found unconstitutional is likely to be a BIG winner for Obama.

A vast majority agree with the pre existing provision. Over 80%+ in a poll I seen today. Gone! All because of Republicans!

Dust Bunny Queen said...

"We fought hard and long for 30 million Americans to receive affordable health insurance, and those discriminated against because of pre existing conditions. Republicans took that ALL away!"

I don't believe the American people are that stupid or easily duped. Pretty stupid it must be said, after all they elected Obama, but hopefully they will have seen the writing on the wall and will think something else..

Like: "If the government can make me buy insurance, make me buy those crappy lightbulbs.....what else can they force me to do? Thank goodness it was defeated."

However, never underestimate the ability of people to vote for their own enslavement out of greed.

bagoh20 said...

"You cannot avoid a tax, you can avoid a penalty."

Then a tax is a penalty on success. Since you can avoid it, as half the country does.

Dust Bunny Queen said...

Oh. and as to the Hawk or Owl disguised as drone.

Since you can't shoot a gun in your area.....Wrist Rocket.

Although a 220 with a scope would be best.

BarryD said...

In all of this, I think that we're all forgetting something.

How much do oral arguments really impact the case?

Can the SG, with a few really clever words, either throw a case that was truly in his favor, OR win a case that was truly not?

Or do these arguments generally shed light on the existing weaknesses or strengths of a case?

I'm guessing that we see the latter FAR more often than the former.

Saint Croix said...

Still waiting for anyone, such as you, to hazard a guess at the outcome.

5-4, Justice Squish writing the opinion, rivaling Casey for verbiage.

The Court will hold that Congress has no authority to mandate the purchase of anything as part of a plan to regulate commerce among the states.

I actually don't see it as a hard case. Big case, sure. But not a hard one.

bagoh20 said...

"How much do oral arguments really impact the case?"

As a layman, that's an interesting question to me. What if the lawyers on one side just completely blow it and everyone knows it, but the justices decide in his favor anyway. Has that happened before? How is it handled in the formal opinion?

David said...

First of all, this is Jeff Toobin's opinion. Consider the source.

A "conspiracy" means that the SG has agreed to throw the case with others, presumably Obama and highly placed members of his Administration. No such conspiracy is likely to exist without the knowledge (deniable of course) of President Obama himself and the agreement of the Attorney General.

If this is true, it is as corrupt as anything we have seen in our history. Unlike you, Professor Althouse, I do not wish it to be true. Do you really wish it? You are not generally attracted to flip ideas that conceal something more sinister.

garage mahal said...

The Court will hold that Congress has no authority to mandate the purchase of anything as part of a plan to regulate commerce among the states.

Medicare is legal. Hmmmm.

Bender said...

How much do oral arguments really impact the case?

The Court spends about 100 hours in oral argument each term. The justices also spend some time preparing for each oral argument.

The advocates arguing before the Court spend hours upon hours preparing for the 30 minutes of argument they are allotted. And usually this is with the assistance of several others spending hours in preparation, offering arguments, participating in moot court sessions.

Those hours upon hours spent on oral argument cost clients a LOT of money.

So, answer the question this way -- do you think that the Court and attorneys would spend this much time and effort and money on something that did not matter a whole hell of a lot??

Harsh Pencil said...

http://www.youtube.com/watch?v=vJXU7EVXs2A&feature=youtu.be

dbp said...

"A vast majority agree with the pre existing provision. Over 80%+ in a poll I seen today. Gone! All because of Republicans!"

Which I suppose would be relevant if that part of the bill was being debated in the Supreme Court.

bagoh20 said...

"The advocates arguing before the Court spend hours upon hours preparing for the 30 minutes of argument they are allotted."

Then how could an attorney blow it? I mean, you would have covered every question in practice. Of course, if you have a terribly bad case, then practice won't help much. Is that it here?

Q said...

Medicare is legal. Hmmmm


Medicare is funded by taxes, while Obamacare is not. Hmmmm.

The Democrats could have simply raised taxes to pay for their fancy new program, but that would have been political suicide. So we got the bizarre monstrosity which is Obamacare.

Bender said...

This characterization of oral argument by Justice Scalia (on that oh-so-authoritative website Wikipedia) is pretty representative of judges at all levels --

by the time the Justices hear oral arguments, having read the submissions by the parties and amici, it is "very rare, though not unheard of", for the discussion during the oral arguments to change his view of a case in which he has already made up his mind based on the submissions and his research about the case. However, he also made the point that it is "quite common" for him to go into Oral Arguments with his mind not made up yet, as the cases are usually very hard and difficult, and that in those situations a persuasive attorney can make the difference for him.

a psychiatrist who learned from veterans said...

Ideally the decision of the justices is, in the words of the Chief Justice, about calling 'balls and strikes' which are embedded in the law here. Now a bad lawyer, like a maladroit catcher, might make the pitch look worse but really isn't the law the primary determinant of the outcome here especially in that it is something that has been talked about for years; it's not like the judges need to be woken from the funny pages to consider it.

caplight45 said...

If the individual mandate is struck down and the ACA is repealed in large measure will that mean that the rise of the oceans won't slow and the planet won't begin to heal?

Fr Martin Fox said...

Bender:

One way to answer your question is to say that the oral arguments matter quite a lot--but not necessarily to the outcome of the case, but to the fortunes of the individual lawyer and his firm. Losing a case is one thing; being seen as not taking it seriously is something else.

Q said...

Start with the proposition that everyone must pay the tax. However, you can get out of paying the tax if you purchase certain insurance, or get a waiver


If you "get get" out of paying the "tax" by doing what the government wants you to do, then it is not a tax. It's a penalty, a punishment, a fine.

In my town there are laws against barbecuing on your porch or veranda. (I assume somebody set their house on fire at some point) The way the law works is that if you get caught doing it, they will fine you. And if you don't pay the find, they will prosecute you further.

Using your logic, that fine is not a fine at all, but a tax!

You do not have a single logical leg to stand on in this argument, short of going all leftist and insisting that words mean whatever the government wants them to mean. Just admit you were wrong and move on already.

garage mahal said...

The Democrats could have simply raised taxes to pay for their fancy new program, but that would have been political suicide. So we got the bizarre monstrosity which is Obamacare.

People love Medicare. Even most Republicans. You are required to "buy" it, in the form of payroll deduction. If the mandate is struck down that's what I would try for if I was advising Obama. It's constitutional, and people would be behind it. But nobody listens to me.

Q said...

People love Medicare. Even most Republicans. You are required to "buy" it, in the form of payroll deduction. If the mandate is struck down that's what I would try for if I was advising Obama. It's constitutional, and people would be behind it. But nobody listens to me.



That's a really roundabout way of saying "Yeah, you're right".

People love Medicare, in general, because people in general end up using Medicare.

People do not love Obamacare - however paid for - because it is a massive wealth transfer from most of the people in the country to the poor. That's the intractable problem Democrats face. Most people are pretty happy with their healthcare as is.

JAL said...

If he wins, remember the open mic moment. Obamacare was designed to really kick in in 2014 so people would not know how many rights they have sacrificed on the alter of free condoms.

But if Obama wins the election and Ombamacare is in place, -- he will have more "flexibility" (read unbridled power) and health care will be totally screwed to the lowest common deniminator.

For those skeptics .. google "post code lottery." I was tipped off by an NHS nurse friend of mine.

As a mental health provider I am involved in a rather ugly transition in one area of my state which is a foreshadowing of the way care will be doled out everywhere under Obamacare.

Sarah Palin gets smarter every day.

Seven Machos said...

Q -- The waiver or insurance purchase is a tax break, like when you have a kid or buy a Chevy Volt.

The logic I stand on is the logic I think the Court will use. It is not my argument. I predict great sadness for you.

Nathan Alexander said...

You can draw your own conclusions as to why this may be, but if the campaign of 2012 is run as ineptly as the last 3 years in office, Romney will win 48 states.
Obama is probably okay with that, thinking the other 9 states have enough electoral votes to re-elect him anyway.

Q said...

The waiver or insurance purchase is a tax break, like when you have a kid or buy a Chevy Volt


Saying things does not make them so.

Ralph L said...

People love Medicare
They won't when we boomers are through with it.

Seven Machos said...

The Rule of Five says you are wrong, Q. You are yellIng at the wrong guy. Go read Wickard for some perspective.

Just Lurking said...

People love Medicare. Even most Republicans. You are required to "buy" it, in the form of payroll deduction. If the mandate is struck down that's what I would try for if I was advising Obama. It's constitutional, and people would be behind it. But nobody listens to me.

That would require honesty from this administration. I doubt they have it in them.

They'd rather play the "it's a tax except when it's not a tax" game.

Steve Koch said...

Tim said...
"Did the SG throw the game?"

"Notwithstanding Occam's razor, this kind of thinking provides some insight as to how some (one?) voter was able to punch the ballot for the least qualified person ever nominated for president by any major political party."

Great stuff by Tim.

The Althouse theory is triply absurd. First, keeping ObamaCare is waaay more important than getting Obama relected. Second, this kind of conspiracy is extraordinarily unlikely. Third, the unverifiable way that Althouse presented this ridiculous theory was unusually silly, even for her.

____________________________________

It has been claimed (repeatedly) that if the Supreme Court decides that any part of ObamaCare is unconstitutional, the whole ObamaCare law will be struck down because it does not contain a severability clause. Is this claim true or false?

Roughly when will the supreme court announce its decision on this case?

BarryD said...

"So, answer the question this way -- do you think that the Court and attorneys would spend this much time and effort and money on something that did not matter a whole hell of a lot??"

Sure. They most certainly could, and would.

I passed Econ 101 way back when. Did you?

Diminishing marginal rates of return on investment. It's a simple, universal principle.

First, the work done for orals is closely connected with briefs anyway. Second, orals are the last chance for making your case. That can mean massive diminishing marginal returns. Last chances generally do.

Let me ask you this: would someone pay $350K for a Bentley when he can get a Honda Fit for 15 grand?

Steve Koch said...

From:
http://articles.latimes.com/2011/jun/06/local/la-me-adv-wind-eagles-20110606

"Each year, about 2,000 raptors are killed in the Altamont Pass by wind turbines, according to on-site surveys conducted by field biologists. The toll, however, could be higher because bird carcasses are quickly removed by scavengers."

Joe Schmoe said...

If the ACA gets tossed by SCOTUS, is Spike Lee going to tweet Verrilli's home address?

Rabel said...

"The Obama-appointed Justice Sonia Sotomayor succinctly summed up the need to require everyone to be insured: Everyone will need care at some point. “Virtually everyone, absent some intervention from above — meaning that someone’s life will be cut short in a fatal way — virtually everyone will use health care,” she said."

As Sotomayor spoke Justice Ginsburg dipped her graying head and slowly slipped further back into the comforting recesses of her chair.

Bob Ellison said...

"virtually everyone" != "each individual"

Leftists do not understand the distinction.

Matt said...

If they overturn the health care mandate then perhaps some states will pick it up. Right now, thanks to Romney, MA has the most insured citizens of any state in the union. I'm all for that.

Either way, it behooves people to have insurance. Let the more progressive states work it out. Conservatives can gladly opt out by moving to Texas or wherever the uninsured reside.

Ben G. said...

For clandestine urban vermin removal, use a .22CB round in a closed bolt. Preferably a bolt action rifle, as it's not powerful enough to reliably force the action of a semi. Forget pistols, it's loud out of a revolver, and you'll never hit anything with an typical .22 auto. It is essentially a silenced round, good out to 25 yards or so.

Balfegor said...

Re: Q:

If you "get get" out of paying the "tax" by doing what the government wants you to do, then it is not a tax. It's a penalty, a punishment, a fine.

Uh, do you pay taxes? Our tax code is littered with stuff like this.

PackerBronco said...

"The Obama-appointed Justice Sonia Sotomayor succinctly summed up the need to require everyone to be insured: Everyone will need care at some point. “Virtually everyone, absent some intervention from above — meaning that someone’s life will be cut short in a fatal way — virtually everyone will use health care,” she said."

But not everyone will need every aspect of medical care. Why should I buy an insurance policy to cover maternity if I'm a 55-year old unmarried male? Why shouldn't I be allowed to purchase catastrophic care only and pay off routine medical visits and checkups out of my own pocket. Why can't people be expected to pay for contraceptives themselves.

If the law had been written to be narrowly defined as to the extent of the mandate, that argument would have more weight, but it's not. The law is an open-ended invitation for the government to mandate expansive health insurance policies for everyone regardless of their actual needs. All according to what the HHS Secretary "shall determine".

Blue@9 said...

This law would be hilarious if it weren't so tragically stupid.

Who the hell is going to buy insurance ahead of time if when the yearly "penalty" is considerably less than premiums and they can't deny you for preexisting conditions?

Lem said...

You people are making too much of what may seem like a favorable outcome.

Kennedy is going to break our harts.. again.

Michael K said...

Hugh Hewitt s convinced that the SG and the Obama administration has decided to take a dive on the case so they don't have to run with it on their backs next November

damikesc said...

A vast majority agree with the pre existing provision. Over 80%+ in a poll I seen today. Gone! All because of Republicans!

Republicans wrote a terribly-written bill that violated the Constitution? I'm also unaware that it is part of the issue at hand.

Now, if the SCOTUS tosses the entire bill --- guess whose fault was that?

The issues here are really semantic. Obama and Congress did not want to call what they were doing a tax, so they claimed power under the Commerce Clause. In my opinion, the outcome really depends wholly on the vocabulary the Court accepts. The interesting question, if I am right, is whether Congress can use power that it says it isn't using. Must Congress be honest?

At a certain point, though Seven, won't the court be mad that they are being asked to do the work Congress will not? They want the tax hike but don't want to run on that issue, so they want the Court to do that work for them.

I'd have to imagine some judges would be more than irked.

If they overturn the health care mandate then perhaps some states will pick it up. Right now, thanks to Romney, MA has the most insured citizens of any state in the union. I'm all for that.

They're also bleeding money. Which, wow, is what will ALSO happen under Obamacare.

Thanks to you and your little Fascist buddies.

Either way, it behooves people to have insurance

...but photo ID? That, my friend, is a step too far. Who would EVER need a photo ID?

wef said...

Something very different. When we read, Solicitor General Donald Verrilli, and then the transcripts refer to him as General...WTF?

I have been living in a hole, obviously, but the solicitor general is in fact a general solicitor, yes?? In contrast to solicitors with specific duties, yes? Like the Surgeon General - or a court martial. Right?

So what is this with General Verrilli?

Is it me, or is this whole pompous government thing a joke? Dressing up a protection racket in religious garb to fool the rubes. But the mafia thugs slip up and reveal themselves with their malapropisms.

Joan said...

I've been judging at debate tournaments all year and I have seen freshmen give better opening arguments than the SG. I've also heard novices articulately handle the questions that they knew were coming. They were prepared.

BTW, these are high school freshmen I'm talking about. I don't believe the SG was making his best effort today.

Lawyer Mom said...

No. He did not throw the game. He's unable to give the court any assurance, much less an example, of any limitation on Congress's power if Obamacare is affirmed because there is none. Period.

But stop with the teasing already! If you hope you're right about the conspiracy theory, that makes me hope that you're right about your theory, though I'd feel much better hoping, and cheering on your hope, for a theory I know . . . Oh, never mind. It's hopeless.

holdfast said...

So is it just me or are Toobin and the other liberal "legal scholars" laying the groundwork for their new, backup meme "it was bad lawyering, not a bad law"? Push hte poor ol' Solicitor General under the bus with Rev Wright and Obama's Grandma?

And why is he called a "solicitor" anyway? Where I'm from solicitors are the kind of lawyers who don't go to court. Why not the "Barrister General"? Sounds cooler anyway.

MayBee said...

The "tax" thing is a little precious because, at the end of the day, there is still the mandate.
Sure, the court can pretend it isn't there but it is.
If you have mortgage interest you get a deduction, but you don't have to add an amount for not owning a house.

I say they turn this away. It is just too much of a big change.

Wally Kalbacken said...

They have done the focus group analysis and learned that their base is activated by a perceived rejection of Obama-care, and recognizing this they told their SG to stammer, drool and cough his way to defeat.

Perhaps.

Peano said...

I have a conspiracy theory, but I won't tell you what it is..

But here's a hint: It's vast, and it's leftwing!

Tim said...

"People love Medicare. Even most Republicans. You are required to "buy" it, in the form of payroll deduction. If the mandate is struck down that's what I would try for if I was advising Obama. It's constitutional, and people would be behind it. But nobody listens to me."

Good thing, too.

Everyone knows Medicare is insolvent.

Medicare is our to nation's long-term fiscal health what Crystal Meth is to anyone's long-term physical health.

It feels great in the short-run, but in the long-run, before you know it, you're hollowed out, and dead.

Meade said...

caplight45 said...
If the individual mandate is struck down and the ACA is repealed in large measure will that mean that the rise of the oceans won't slow and the planet won't begin to heal?

I don't know, cap, but after reading titus's comment, I kind of want the oceans to rise. Heck, let 'em rise 800 feet. Madison and Kansas City will be the new cool coastal kids!

Big Mike said...

Has anyone besides me noticed how both the mainstream press and the left-wing lunatic fringe blogs keep referring to ObamaCare as "Obama's signature legislative accomplishment" or words to that effect?

No discussion about whether the legislation is good for the country or bad for the country, no discussion about its real costs, nothing along those lines.

It's almost as though the argument is that the Supreme Court ought not to rule that the individual mandate is unconstitutional lest Barack Obama have his "signature legislative accomplishment" taken away from him.

Poor fellow.

dreams said...

Althouse's conspiracy theory is that in reality the Obama administration wants to lose the case so that Obamacare will not be as important in the election and so won't keep Obama from getting reelected. I can't figure out why she likes our un-American anti-American racist socialist/communist third world like dictator President.

Saint Croix said...

Seven, I think it's like 9-0 against the tax argument. I don't see anybody in love with that argument. The statute isn't written like a tax. It's not enforced like a tax. It's not collected like a tax. And worse of all, if it's a tax it can't be litigated. The whole lawsuit is tossed out.

Do they want to toss it out? They do not! The love it and they want to opine on it so bad.

Nobody's going to call it a tax.

I think it's a commerce clause case, not a tax case. That's the honest thing to say, and I think that's what they will fight over.

The liberals will say it's "necessary and proper" to require people to buy health insurance under a plan to regulate the health industry.

That's not a ridiculous argument.

But the conservatives will feel like this is an expansion of the commerce clause. And I believe they are looking for ways to contract the commerce clause. They'd like to identify limits to it. What they will never do is open the door to unlimited government authority under the commerce clause. And they see this case doing that.

So, 5-4, they overturn Obamacare. And I changed my mind on the author, I think the Chief will keep this one.

Methadras said...

Even if this bill gets struck down in part or in whole, it will undergo Urkelcare 2.0 with more ironclad legislation. At least we won't have to hear Nancy Stretch-Face Eyes-Wide Open Harpy Queen queef that we have to pass the law to know whats in it.

JamesB.BKK said...

Or, he had a bad day because his client's position lacks merit.

Seven Machos said...

Croix -- I hope you are right.

cubanbob said...

If single payer is the true intent then they are even dumber than I thought possible. Single payer can only work if no alternative means of paying is possible. Suppose for the sake of argument that could pass constitutionaly then the end result becomes single provider and no one has ever proposed a plausible theory that commerce clause or any clause wouldcallow the federal government to nationalize an existing industry. I believe the court slapped President Truman when he tried to nationalize the steel industry.

There is no conspiracy unless its a conspiracy of arrogant dunces.

Comanche Voter said...

But there was a story in New Yorker or the New YOrk Times just this weekend that said the Solicitor General walked on water?

How could he muff it today? I don't believe it! (Well let me pull my tongue out of my cheek.) The old definition of a true litigator being someone who can make a judge and jury believe that horse manure tastes like vanilla ice cream may not apply in this case.

SukieTawdry said...

You mean he was all hemming and hawing around because he cudda been a contenda but right before the big bout they sent someone from the JD to tell him it just wasn't his time. Wasn't my time, he cried, wasn't my time? I cudda taken Scalia apart.

Could that be how it happened?

I sorta thought he'd make a lousy case because a lousy case is all he's got. Didn't expect him to be this spectacularly lousy though. The Justices were all but begging him to give them something to hang their hats on. It was pitiful.

Retired Prosecutor said...

No conspiracy here . . . the progs simply went in unarmed and clueless about Constitutional reality. Today at work I asked several of them if there was any "limiting principle" that existed to save citizens from otherwise unrestrained Federal exercise of power under the Commerce Clause. I got only blank looks questioning why such a limiting principle would even need to be stated. I then pointed out that without such a limiting principle, the Constitutional purpose of protecting individual citizens from the central government was at risk. This time when I got the blank looks I had the big picture . . .

fernstalbert said...

To use another food analogy - the "government" feed us gruel instead of meat and potatoes. lol

Bruce Hayden said...

Something very different. When we read, Solicitor General Donald Verrilli, and then the transcripts refer to him as General...WTF?

That is the formal way of addressing a "General", whether they be the Attorney General, Solicitor General, or a General Officer in the Army, Air Force, or Marines. The Attorney General is the head attorney in the country, while the Solicitor General is the head solicitor in the country. He is the DoJ's head litigator, esp. in the Supreme Court (so, why isn't he called the "Barrister General"?)

The most famous Solicitor General in recent times was Robert Bork, who was the one who ultimately fired Archibald Cox in the infamous Saturday Night Massacre, as #3 in the DoJ, after the AG and Deputy AG resigned. This may have cost him his bid for the Supreme Court.

The Supreme Court is all about decorum. The Justices expect to be called "Justice", and use "General", etc. as the proper salutation for those they address. And, this sort of stilted addressing, formalities, and decorum also tend to be present in the state Supreme Courts. I think that part of it is to emphasize the majesty of the law.

This historical formality can go overboard. The committee I chair on occasion files Amici briefs with the Supreme Court, which have to be specially printed and bound, for a cost of maybe $1,000. You would think that in 2012, you could file electronically. You can't, and I don't see this changing in the immediate future.

SGT Ted said...

I think I will style myself "Esquire" now.

Since Lawyers want to have phony military titles I'll have a phony lawyer title.

wef said...

Bruce Hayden said, The Supreme Court is all about decorum. The Justices expect to be called "Justice", and use "General", etc. as the proper salutation for those they address. And, this sort of stilted addressing, formalities, and decorum also tend to be present in the state Supreme Courts. I think that part of it is to emphasize the majesty of the law.

But isn't the "majesty of the law" undermined by calling the Solicitor a General, as it were an institutional, hierarchical rank? What? - does his staff salute him, hand to brow, clicking heels? It is a frking adjective to describe Solicitor. I realize that this might be often used these days - and I have not paid much attention, that's true, - but this puffery of word use would seem to betray a certain sophomoric ignorance. Why cannot one take from this at least a little evidence that dressing up what is really a coercive regime in pompous uniforms and formalities is not limited to tin-horn banana republics.

X said...

virtually everyone will use health care,” she said.

I would think that an obese Latina woman with a lack of self control would more often than not use more health resources than a white male who hasn’t lived that life

chickenlittle said...
This comment has been removed by the author.
chickenlittle said...

Althouse predicted:
I have a conspiracy theory, but I won't tell you what it is...

... because I hope the conspiracy — if it exists — succeeds.


Why do you hope it succeeds? Do you want single-payer?

ken in sc said...

A private is called a private because he is only in charge of his private self. A general is called a general because he is in charge of many people in general. The Solicitor General, Attorney General, Surgeon General are all in charge of many people in general. Their title of address is General. Why is this a problem?

wef said...

Their title of address is General. Why is this a problem?

No, no, no, no. You are confounding military ranks with adjectives positioned in a formal way, after the noun.

How about the private who faced a court martial. Says the private to the court, "Martial, I am innocent." Right or wrong?

When C. Everett Koop and Regina Benjamin are snuggling, do you say, “The Surgeon Generals seem happy” – or do you say, “The Surgeons General appear frisky.”

Anyway, one should not address the Solicitor General as General, but as Mr. Solicitor General. To call these guys Generals is mistaken, fawning puffery.

Ah, well I give up.