March 28, 2012

Time-shifted live-blogging of this morning's Obamacare oral argument in the U.S. Supreme Court.

I've finally got time to curl up with a nice MP3 and transcript. I'm going to treat this like a live-blog, with frequent updates until I get to the end.

UPDATE 1: Paul Clement will attack the expansion of Medicaid. He's talking about whether it's "coercive," because if it is, it won't fit the Spending Power. Justice Kagan wants to know why a "big gift from the Federal Government" is coercion. "The Federal Government is here saying, we are giving you a boatload of money." Page 3. Just a big old boatload of money is coercive, Clement says confidently. But the actual bill has a "very big condition." Kagan interrupts, trying to make her point that a big boatload of money is not coercive. What if someone offered you a job and would pay you $10 million a year. Of course, you say yes, but you're not coerced are you? Clement lays down one of the cleverest teasers I have ever heard: "Well, I guess I would want to know where the money came from."

"Wow. Wow." says Kagan. Has a Supreme Court ever said "Wow. Wow" before? She can't believe you'd do anything other than snap up that money. "I'm offering you $10 million a year to come work for me, and you are saying that this is anything but a great choice?"

Clement springs his trap: "Sure, if I told you, actually, it came from my own bank account."

Kagan resists. Yes, it's tax money, but the tax money the federal government rakes in is from the taxpayers "acting as" U.S. citizens. It's not the state's money. Their money is the money that's collected from citizens "acting as" citizens of a particular state. Clement re-grounds us "in the real world." People only have so much money, and the more the feds drain out of the people, the less there is for the states to tap into. The point is this "boatload of money" isn't free money. It's money that was taken from the people of the state and then offered back to the state governments, who might have liked to take money directly from their citizens, available to be used for whatever purposes the states have in mind, and not the things the federal government tells them to do.

UPDATE 2: Clement argues that there must be some limit on the Spending Power, on how extreme the "big gifts" — with conditions attached — can be, because "this Court's entire spending power jurisprudence is premised on the notion that spending power is different, and that Congress can do things pursuant to the spending power that it can't do pursuant to its other enumerated powers precisely because the programs are voluntary." Clement has a very difficult argument to make. The states have been taking this money for a long time, and there have been periodic expansions, and the states are told "take it or leave it" (as Ginsburg puts it). He needs to argue that somehow this new expansion is creating something separate and inappropriately connecting it to old money streams from the federal government to the state, which makes it very hard for the state to say no. But it's the fed's money, and they're setting the terms the states have to meet to keep the old income streams flowing.

UPDATE 3: Justice Breyer takes great pains to show that the government might not exercise its option to close up all those old income streams, because it is always under the obligation to act "reasonably." Finally, Justice Scalia breaks in: "Mr. Clement... do you agree -- do you agree that the government has to act reasonably? Do we strike down unreasonable statutes? My God!" With that prompting, I see that it sounds like Justice Breyer was assuring us that we are living in the Lochner Era, when courts assessed the reasonableness of legislation. There's an intense disagreement here, with Breyer talking about the executive branch implementing statutes, which must be reasonable, and Clement and Scalia talking about what is in the statute, which will not be tested for reasonableness.

UPDATE 4: We finally hear from Justice Kennedy, at page 35: "If the inevitable consequence of your position was that the Federal Government could just do this on its own, the Federal Government could have Medicaid, Medicare, and these insurance regulations, assume that's true, then how are the interests of federalism concerned? How are the interests of federalism concerned if, in Florida or Texas or some of the other objecting States, there are huge Federal bureaucracies doing what this bill allows the State bureaucracies to do?"

Clement hits Kennedy with a word Kennedy has used himself in federalism cases. (For example, United States v. Lopez.) The word is "accountability." Clement says: "If the Federal Government decides to spend money through Federal instrumentalities, and the citizen is hacked off about it, they can bring a Federal complaint to a Federal official working in a Federal agency."

(Here's Kennedy in Lopez: "The theory that two governments accord more liberty than one requires for its realization two distinct and discernable lines of political accountability: one between the citizens and the Federal Government; the second between the citizens and the States. If, as Madison expected, the federal and state governments are to control each other, see The Federalist No. 51, and hold each other in check by competing for the affections of the people, see The Federalist No. 46, those citizens must have some means of knowing which of the two governments to hold accountable for the failure to perform a given function. 'Federalism serves to assign political responsibility, not to obscure it.'... Were the Federal Government to take over the regulation of entire areas of traditional state concern, areas having nothing to do with the regulation of commercial activities, the boundaries between the spheres of federal and state authority would blur and political responsibility would become illusory.... The resultant inability to hold either branch of the government answerable to the citizens is more dangerous even than devolving too much authority to the remote central power.")

UPDATE 5: The SG says that Congress, setting up this conditional spending program, jumped through all the doctrinal hoops set up in South Dakota v. Dole, but I note that South Dakota v. Dole did say that at some point federal spending amounts to coercion. (It said: "Our decisions have recognized that in some circumstances the financial inducement offered by Congress might be so coercive as to pass the point at which 'pressure turns into compulsion.' Steward Machine Co. v. Davis...") And Justice Scalia, alluding to that language, asks what it means. What is this "coercion" limitation?

The SG says that "it's possible to envision a situation in which there's coercion." Hmm. Yeah. But tell us what that situation is?! This is like yesterday, when the SG was asked to state the limit on the Commerce Power, and he just couldn't do it. Now, the SG refers to a condition that fundamentally transforms the structure of the state government, but that refers to a kind of condition, not what would entice/coerce the state into accepting the condition. The Chief Justice points that out: You're not talking about the coercion question. What if the federal government had a condition that you could take or leave, but you'd lose all your federal funding? The SG says "that would raise a germaneness issue," which is a reference to one of the doctrinal hoops in Dole (the condition must relate to the spending program), but the coercion idea is separate  — and surely the SG knows that. Getting the doctrinal points of Dole straight is first year law school stuff. It's like he's playing dumb. It's really annoying, and the Chief Justice is annoyed.

UPDATE 6: The SG persists in saying that it's hard to imagine a situation in which the condition would not violate the germaneness requirement by the time it got coercive. Roberts and Scalia scuffle with him and suddenly Alito comes to the rescue with a great hypothetical:
Let's say Congress says this to the States: We have got great news for you. We know that your expenditures on education are a huge financial burden, so we are going to take that completely off your shoulders. We are going to impose a special Federal education tax which will raise exactly the same amount of money all of the states now spend on education, and then we are going to give you a grant that is equal to what you spent on education last year.

Now, this is a great offer and we think you will take it, but, of course, if you take it, it's going to have some conditions because we're going to set rules on teacher tenure, on collective bargaining, on
curriculum, on textbooks, class size, school calendar, and many other things. So, take it or leave it.

If you take it, you have to follow our rules on all of these things. If you leave it, well, then you're going to have... to tax your citizens, they're going to have to pay the Federal education tax; but on top of that, you're going to have to tax them for all of the money that you're now spending on education, plus all of the Federal funds that you were previously given.

Would that be -- would that reach the point -- would that be the point where financial inducement turns into coercion?
The SG says no! The states have a choice, he says, to which Alito responds: "But if that's the case, then there's nothing left of federalism."

That's a dramatic statement, and the SG only natters away about how there are political constraints on Congress. That is, there's nothing left of judicially enforceable federalism, but we've still got the supposed political safeguards of federalism (i.e., the way Congress will, on its own, restrain itself from too much imposition on the states). This is the SG's theme throughout the arguments this week: It is sufficient to let Congress do whatever it wants.

UPDATE 7: There's a long section of debate about whether the Secretary will use her discretion to cut the states off from all their funds (and whether there's a judicially enforceable limit on that discretion). Suddenly, Justice Kennedy breaks in, and he's using his buzzword again: accountability!
I suppose one test could be -- I just don't see that it would be very workable -­ is whether or not [the loss of funding is] so big that accountability is lost, that it is not clear to the citizens that the State or the Federal Government is administering the program, even though it's a State administrator.
See how that is the same idea he was using back in 1995 in Lopez? The SG blabbers in response (as if he's not too well versed in what moves Justice Kennedy, which you would think would be his primary concern). Kennedy comes back:
In your view -- in your view, does federalism require that there be a relatively clear line of accountability for political acts?
That, my friends, is Essence of Kennedy! But the SG doesn't notice. He doesn't see how exquisitely special that question is. Kennedy puzzles on: "Is that subsumed in the coercion test, or is that an independent one?" Come on, SG! If you're good for anything, tell him it's special! Again, the SG natters, but the nattering contains nothing about political accountability. Kennedy pleads again for attention to his dearest concern:
But do you agree that there still is inherent and implicit in the idea of federalism, necessary to the idea of federalism, that there be a clear line of accountability so the citizen knows that it's the Federal or state government who should be held responsible for their program?... And does coercion relate to that, or is that a separate doctrine?
Finally, the SG addresses accountability: It's the other side who are arguing that they take "unpalatable choices" because they are subjected to "a high degree of political accountability," which they're trying to call "coercion." That misses Kennedy's point. Kennedy wants the doctrine to work to make the different governments accountable to the people. He says: "Well, but I think the answer would be that the State wants to preserve its integrity, its identity, its responsibility in the Federal system."

UPDATE 8: Quite a bit later, Justice Sotomayor endeavors to bring the SG back to Justice Kennedy's accountability theme, but not in a particularly coherent way: "Justice Kennedy asked you whether... it's coercion if no one can be politically accountable. I'm not sure how that could be practically politically accountable because almost every gift -- if the terms are attractive, it would be an un -- unattractive political alternative to turn it down." I think she means political accountability must necessarily be a separate question from coercion. The point is these tremendously enticing offers destroy the state's will to say no. They're not coerced, but they lose their independent political identity, and that is destructive to federalism.

UPDATE 9: The SG talks about liberty: "millions of people with chronic conditions like diabetes and heart disease, and as a result of the health care... they will be unshackled from the disabilities that those diseases put on them and have the opportunity to enjoy the blessings of liberty." There's freedom inside all this compulsion and coercion, because when the government supplies your needs, then you can enjoy life. That's the argument!

UPDATE 10: Clement, back in rebuttal, riffs on the SG's liberty remarks: "[I]t's a very funny conception of liberty that forces somebody to purchase an insurance policy whether they want it or not. And it's a very strange conception of federalism that says that we can simply give the States an offer that they can't refuse, and through the spending power which is premised on the notion that Congress can do more because it's voluntary, we can force the States to do whatever we tell them to."

UPDATE 11: There's still another hour! This is the severability part. Clement is up first, arguing that if the individual mandate is stricken down, but the guaranteed-issue and community-rating don't fall along with it, then insurance premiums will "skyrocket."

UPDATE 12: Is the test what Congress would have wanted (whether it would want the whole act to fall if one provision falls)? Scalia suggests that's the wrong approach. The severability question is difficult, as the Court struggles with the sprawling legislation. Clement says there's a "heart" to it, which includes the individual mandate, and the provisions interrelated with it, which will not work the same way without it, and these must fall. Then there's all that peripheral stuff, which could work independently, but Clement calls these things the "hollow shell" of the act, which should fall because they wouldn't have been passed without the rest of the bill. It could also be left standing, he concedes. Everyone seems agitated by the prospect of tearing it all down. 

[THERE'S MORE TO COME, but I can't get to it tonight. It's just too onerous for now. ]

162 comments:

Leo said...

Are you going to pause so you can make longer comments?

bagoh20 said...

Shhhhhh, she's thinking.

edutcher said...

You must love your work, Madame.

But, again, thank you for taking the time and effort so the rest of us will better understand what's happening.

Ann Althouse said...

Definitely pausing, as you can see.

This is difficult stuff, and I'm going to interpret it and help make it comprehensible.

Sorun said...

While you're doing that, I'm going to have a beer and look at funny pictures on the internet.

PatCA said...

Sounds like Clement got the better of Kagan on that one!

Do liberals really not understand where money comes from?

Tim said...

"Clement regrounds us "in the real world." People only have so much money, and the more the feds drain out of the people, the less there is for the states to tap into. The point is this "boatload of money" isn't free money. It's money that was taken from the people of the state and then offered back to the state governments, who might have liked to take money directly from their citizens, available to be used for whatever purposes the states have in mind, and not the things the federal government tells them to do."

This is exactly right. Clement reminds us, as does Kagan unwittingly, of yet another, critical distinction between conservatives and liberals.

The conservative, appropriately, sees the opportunity cost.

The liberal just sees the opportunity.

Costs?

That's for someone else, someone responsible, to worry about.

Tim said...

"Do liberals really not understand where money comes from?"

Yes, they do not.

But, can you really blame them?

They've been getting away with the "grow the government, grow the deficit, grow the debt" game for nearly 80 years now, without consequence.

They think "free money" is their birthright.

Paddy O said...

"But, again, thank you for taking the time and effort so the rest of us will better understand what's happening."

Yes! It's not easy to take a lot of words and make the discussion really succinct. It takes a lot of focus and understanding to do it well, and that you're just doing it for the sake of your readers (and maybe for students) is really great. Thanks!

chickenlittle said...

Is it me or is Kagan coming off as not very bright?

She doesn't even do devil's advocate very well.

When will she have her shining moment here?

Tim said...

"The Federal Government is here saying, we are giving you a boatload of money."

Was it necessary for Obama to appoint a wanna-be valley girl to the Court?

Couldn't the quota have been filled by someone who speaks like a mature, educated person?

Or is that bench too spare?

ark said...

@chickenlittle: Justice Kagan already missed her shining moment when she failed to recuse herself.

garage mahal said...

The conservative, appropriately, sees the opportunity cost.

The liberal just sees the opportunity.


And if the ACA is struck down, conservatives will own our health care system.

And as cons like to say: OWN IT!!11!ONE

Mary Beth said...

In the discussion with Justice Breyer on whether or not the "old" funds to a state could be cut off if the state refused "new" funds, Breyer says, "that any such cut-off decision must be reasonable."

What I'm wondering is, how is "reasonable" decided? I don't think it was reasonable to coerce states to raise the drinking age to 21 or lose some of the federal highway funding.

I think there is an automatic threat of coercion whenever you hand out "boatloads" of money because you can change the terms/take it away once the other party is dependent upon it. TANSTAAFL

garage mahal said...

"Oh. Your rates have unexpectedly risen AGAIN? You go talk to a Republican or Justice Scalia. We tried to do something about it".

edutcher said...

I think chick hit it.

The Professor doesn't think that much of Ms Kagan intellectually and is showing how Clement is getting the better of her.

Next up, is the Wise Latina as wise as the potato chips?

garage mahal said...

The conservative, appropriately, sees the opportunity cost.

The liberal just sees the opportunity.



And if the ACA is struck down, conservatives will own our health care system.

And as cons like to say: OWN IT!!!!!!!!


Sorry, dude, the American people, like in 2/3 of them, want this thrown out.

This does not turn into a negatory for Conservatives if it's tossed. It's acting on the will of the People

PS It's the Lefties that always talk about owning stuff and, pass or fail, they own this mess.

MayBee said...

There we go. Now any amount the insurance rates go up we can pretend would have been saved or created under Obamacare.

If you want it Constitutional, GOP, you can't have the fancy math.

Tim said...

"Oh. Your rates have unexpectedly risen AGAIN? You go talk to a Republican or Justice Scalia. We tried to do something about it".

There are, undoubtedly, people stupid enough to believe the "we tried to do something about it" line actually meant it was going to work.

It isn't going to work, of course, nor is there any economic reason as to why it would work, or even could work.

Nor can any supporter of ObamaCare explain why it would work.

garage mahal said...

Sorry, dude, the American people, like in 2/3 of them, want this thrown out.

I don't think it's 2/3. But, whatever rate increase comes down the pike, and they are coming, you can thank a Republican for it.

Also, too:

"You were denied coverage due to a pre-existing condition? That's too bad. Democrats fought hard and won that battle for you. But Republicans and Conservative activist judges took that away".

madAsHell said...

Kagan broke the first rule of lawyering!

She asked a question to which she didn't already know the answer.

Alex said...

"You were denied coverage due to a pre-existing condition? That's too bad. Democrats fought hard and won that battle for you. But Republicans and Conservative activist judges took that away".

Go ahead.

pm317 said...

Wow (there we go!), did Kagan really do that? Not very smart.

Bender said...

KAGAN: When a taxpayer pays taxes to the Federal Government, the person is acting as a citizen of the United States. When a taxpayer pays taxes to New York, a person is acting as a citizen of New York. And New York could no more tell the Federal Government what to do with the Federal Government's money than . . .

"the Federal Government's money"

The mindset of an autocrat.

Meade said...

chickenlittle said...
Is it me or is Kagan coming off as not very bright?

She doesn't even do devil's advocate very well.

When will she have her shining moment here?


Hey, hey, hey. Show some respect for the former solicitor general who slam-dunked Citizens' United. She felt the beat of her heart, the wind in her face
It was more than a contest, it was more than a race...
And when it was done, win or lose, she always did her best cuz inside she knew...

Pogo said...

Kagan's taken too many softballs to the head.

MayBee said...

Shouldn't Kagan, of all people, realize the government's boatload of money is coercive?

*cough*letmilitaryrecruitersoncampus*cough*

edutcher said...

garage mahal said...

Sorry, dude, the American people, like in 2/3 of them, want this thrown out.

I don't think it's 2/3. But, whatever rate increase comes down the pike, and they are coming, you can thank a Republican for it.


And ZeroCare ended up costing at least twice what they said.

So the rate increase was already in the mail.

And, if insurance rates go up because only the mandate is struck down, whose fault is it for creating the mess in the first place?

You were denied coverage due to a pre-existing condition? That's too bad. Democrats fought hard and won that battle for you. But Republicans and Conservative activist judges took that away

First (and I have one, BTW), that's about coverage, not insurance which, we're told this was about.

Second, "Democrats fought hard and won that battle for you" is a crock. They lied and connived their way into office to pull off the biggest power grab in the history of the country.

The only way it could be passed is with uber-majorities in both Houses over the objections of the people.

Q said...

"I'm offering you $10 million a year to come work for me, and you are saying that this is anything but a great choice?"


Depends on the conditions of employment. Or to get back to the matter at hand, what does the federal government want from the states in return for so generously giving them this boatload of money?

"We've already established what you are, now all that's left is to haggle over the price".

garage mahal said...

There are, undoubtedly, people stupid enough to believe the "we tried to do something about it" line actually meant it was going to work.

It doesn't matter if it's true or not. If the law is upheld, Democrats will get blamed for rising premiums. As Republicans will if it's struck down.

"Democrats tried to make all the freeloaders pay their fair share, instead of leeching off the system therefore raising your rates. Republicans ended that".

Meade said...

She wants to get you on a slow boatload of money from China.

Wait. That money is all used up.

PackerBronco said...

garage mahal said...
"Oh. Your rates have unexpectedly risen AGAIN? You go talk to a Republican or Justice Scalia. We tried to do something about it".

--------

Oh, you're drowning? We tried to do something about it by throwing you this anchor! Don't blame us.

Typical liberal. Doesn't matter that his solution was stupid and would make the problem worse. He just CARES so much!!

MayBee said...

Garage- is there something stopping the Democrats from trying to fix it in a Constitutional manner?

Q said...

"You were denied coverage due to a pre-existing condition? That's too bad. Democrats fought hard and won that battle for you. But Republicans and Conservative activist judges took that away".



Please don't throw us into that briar patch, Brer garage!

Meade said...

I know! Garage has a boat. Maybe there's a boatload of money in garage's bass boat.

Alex said...

garage has a very low estimation of voter intelligence!

Alex said...

So the 2012 Dem campaign slogan is - "We care for you".

Q said...

It doesn't matter if it's true or not.


The mind of a lefty in all its rancid glory.

bagoh20 said...

"And if the ACA is struck down, conservatives will own our health care system. "


And you thought you were gonna steal it. You may well yet get away with it, and you will own that, but you never really accepted responsibility for the other bankrupting programs, so conservative will own it no matter what.

Being a leftist means never having to say your sorry.

garage mahal said...

I'm just prepping ya'll. Not that I would necessarily use those arguments.


"As a senior on fixed income, I know how much $600 per year savings on prescription drugs from the ACA means to you. I'm so sorry Republicans felt they needed to take that away from you".

bagoh20 said...

"Democrats tried to make all the freeloaders pay their fair share"

I thought they couldn't even afford an ID, and now they gotta buy insurance. You guys are mean.

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

Shorter garage: "Who gives a rats ass if something is true or not - all that matters is how big a lie the pathetic morons who vote for us will swallow!"

David said...

The liberals on the Court, intelligent people all, nevertheless are completely result oriented.

As to Kagan, she is has been very bright in political and academic environments where others do not challenge the prevailing viewpoint with any rigor. She is accustomed to soft and halfhearted arguments in opposition to her positions. When you are not briskly challenged on a regular basis, it's easy to get soft and lazy in your thinking. Kagan is in the Big Leagues now.

David said...

Garage: "conservatives will own our health care system."

Good. That way it might get fixed.

Bender said...

JUSTICE SOTOMAYOR: The uninsured are a problem for States only because they, too, politically, just like the Federal Government, can't let the poor die.

Nice disingenuous statement there -- ALL of the uninsured are poor. They are all poor, and if we don't have this system this way, the poor will die. 40 million people are going to die without the Medicaid expansion.

Fen said...

Althouse: Definitely pausing, as you can see.

This is difficult stuff, and I'm going to interpret it and help make it comprehensible.


Thank you for doing this. Interesting and educational analysis. Love what Clement did there.


Justice Kagan: "Wow! Wow!"
Justice Breyer: "My God!"

Looks like two of the liberal judges will include Emotion in their decision. Are they even fit to serve on a Grand Jury for the Trayvon Martin shooting?

bgates said...

I know how much $600 per year savings on prescription drugs from the ACA means to you.

"$600 - what can you do with that? Not to be ungrateful or anything....It may even feel good that first month when you get that check, and then you go out and you buy a pair of earrings."
-Michelle Obama

garage mahal said...

Shorter garage: "Who gives a rats ass if something is true or not - all that matters is how big a lie the pathetic morons who vote for us will swallow!"

Right. As if Republicans haven't been lying about this from day one.

My point is: Right or wrong, with a big change in health care laws, people are going to blame rising premiums on that law. If the ACA is upheld people are going to blame the ACA and Democrats. If struck down, I think many will blame SCOTUS, and Republicans. Liberals will of course help that meme, because we'll just never know how much good it would have done!.

Revenant said...

Update One really underlines what an intellectual lightweight Kagan is.

Fen said...

Garage: "You were denied coverage due to a pre-existing condition? That's too bad. Democrats fought hard and won that battle for you. But Republicans and Conservative activist judges took that away".

Fail. Anyone stupid enough to believe that won't get it unless you can condense down into a soundbyte for them to parrot.

The downside to having such a simple-minded constituency. Good luck.

Bender said...

MR. CLEMENT: If I may reserve the balance of my time.
CHIEF JUSTICE ROBERTS: Well, I'm -- I'm not sure my colleagues have exhausted their questions, so --


At which point they keep questioning him (and using up his time) for another 10-11 pages.

Fen said...

Garage: My point is: Right or wrong, with a big change in health care laws, people are going to blame rising premiums on that law.

I blame Obama.

Oh what fun! We get to use that for at least 8 years.

"He cares and the economy is getting better. He has done the job as well as he could when you know the mess he inherited from Obama"

Its all Obama's fault. He tried to sneak an unconstitional law through and managed to screw up the entire health care system in the process.

bagoh20 said...

"Clement springs his trap: "Sure, if I told you, actually, it came from my own bank account."

As I was reading, I was thinking that my response would be: If you're gonna a give me $10 million, yea, I got some questions, like is it your money or did you take from someone else against their will? That matters to our side.

MayBee said...

Vote Romney- The guy who knows how to reform health care legally!

pm317 said...

wow, love Update 4. To think that the founding fathers realized all this so long ago and put it all together so nicely, very impressive.

Bender said...

That poor Verrilli. It is one thing to try to avoid and slip past a question once or twice, but this is the third day in a row, man! Come on. You can't weasel your way out anymore. Don't you know that?

Here the justices are, asking him some questions on some point, not really satisfying them, until he tries to simply move on --

GENERAL VERRILLI: Well, but I think -- I think they are related. I think that the germaneness inquiry in Dole really gets at coercion in some circumstances, and that's why I think they are related; but, we don't have that here.
And if I could, I would like to address --
CHIEF JUSTICE ROBERTS: No, I know we don't have that here. How does germaneness get -- get to coercion?


And they blah, blah, blah for a couple more paragraphs and, once again, Verrilli tries to weasel out of it --

GENERAL VERRILLI: Well, I think that -- as I said, I think they are really trying to get at the same thing. And I -- but I do think it's quite different here, and I would like to, if I could, take up each of the --
CHIEF JUSTICE ROBERTS: No, no. I know it's -- I know it's different here. I'm just trying to understand if you accept the fact or regard it as true that there is a coercion limit . . .

bagoh20 said...

"Looks like two of the liberal judges will include Emotion in their decision"

Do they ever use emoticons in the written opinions? How about "LOL"?
p-)

damikesc said...

Is it me or is Kagan coming off as not very bright?

She used to leave her car running while doing things because she forgot to turn it off.

Her being not terribly bright was, apparently, a selling point for her supporters.

And if the ACA is struck down, conservatives will own our health care system.

So, because Democrats pass a blatantly unconstitutional bill to "fix" a health insurance system that the vast majority of users happen to like --- it's the Republicans fault?

"Oh. Your rates have unexpectedly risen AGAIN? You go talk to a Republican or Justice Scalia. We tried to do something about it".

Are you employed Garage? Because pretty much everybody has announced increases in their premiums. Obamacare has done a lot of harm.

"You were denied coverage due to a pre-existing condition? That's too bad. Democrats fought hard and won that battle for you.".

"Sure, we had to violate the Constitution to do so, but still..."

Garage- is there something stopping the Democrats from trying to fix it in a Constitutional manner?

You mean outside of the brutal unpopularity of it, right?

I can answer for Garage: OMG KOCH BROTHERS! SCOTT WALKER IS A CRIMINAL! AARRRGGHHH!

There, saved you four posts right there, GM.

"As a senior on fixed income, I know how much having half a trillion taken from Medicare will hurt. I'm so sorry Democrats felt they needed to do that to you".

Fixed it for you.

Right. As if Republicans haven't been lying about this from day one.

Ironically, conservatives have been really, really accurate on all of the Obamacare problems.

Democrats, on the other hand, have been consistently wrong.

Bender said...

By the way, all you Romney fans, all you fans of Romney who says it is perfectly OK for states to impose individual mandates, this Spending Clause issue in the Medicaid expansion goes directly to that.

If we accept Romney's assertion that the states can impose mandates to buy insurance, can't the federal government simply condition a state's participation in Medicaid in that state imposing an individual mandate itself??

Where is Romney on that? It would seem that he would be perfectly fine with that end-around scheme.

Rick said...

I deeply appreciate the posts regarding the oral argument.
Thanks.

bagoh20 said...

""Oh. Your rates have unexpectedly risen AGAIN? You go talk to a Republican or Justice Scalia. We tried to do something about it"."

Nothing the government manages has ever done anything but skyrocket in cost. This crapfest has doubled before it even started. You have to be halfway through your second peyote smoothie to be expecting otherwise.

garage mahal said...

Nothing the government manages has ever done anything but skyrocket in cost

Ask 100 Americans if they would rather enroll in private insurance, or Medicare, and see how many hands go up for private insurance.

Bender said...

Wherein Obama Administration Solicitor General Kagan makes an appearance to start arguing the case because Verrilli is sputtering and sputtering on questions about the extent of the HHS Secretary's authority and what she might do or what limits there might be on what she might do and Verrilli refuses to commit to anything, so SG Kagan steps up to the podium --

GENERAL KAGAN: General Verrilli, before you do that, I'm sorry, but in response to the Chief Justice's question, I mean, the money or your life, has consequence because we are worried that that person is actually going to shoot. So I think that this question about are we -- what do we think the Secretary is going to do is an important one.
And as I understand it, I mean, when the Secretary withdraws funds, what the Secretary is doing is withdrawing funds from poor people's health care, and that the Secretary is reluctant and loathed to take money away from poor people's health care. And that that's why these things are always worked out. It's that the Secretary really doesn't want to use this power, and so the Secretary sits down with the State and figures out a way for the Secretary not to use the power.

p.58

This is just stunning in how egregious this is, to suddenly start advocating about what the Administration does, describing the inner workings of the agency process.

Freeman Hunt said...

The SG says no!

!!! Absurd answer.

Bender said...

GENERAL KAGAN: in response to the Chief Justice's question . . .

Q said...

If we accept Romney's assertion that the states can impose mandates to buy insurance, can't the federal government simply condition a state's participation in Medicaid in that state imposing an individual mandate itself??



What the federal government can do under the constitution and what it should do are not always the same thing.

You seem to want a right wing version of the left on the Supreme Court, which discovers that the Constitution prohibits everything you dislike and mandates everything you like.

Balfegor said...

Re: Bender:

If we accept Romney's assertion that the states can impose mandates to buy insurance, can't the federal government simply condition a state's participation in Medicaid in that state imposing an individual mandate itself??

(A) I don't think it's disputed that the states have broader police power than the federal government, and that this can include such things as mandatory vaccination (Jacobson v. Massachussetts). Mandatory purchase of insurance is not much of a stretch.

(B) Yes, I think it may be the case that the federal government could condition federal funds on adoption of a mandate. But in any event, even without reliance on the spending power, I think something functionally equivalent to the mandate would have been constitutionally permissible, had it been enacted under the taxation power.

The irony in this case is that Democrats passed up all kinds of perfectly legal approaches to achieving the result they sought in favour of this specious reliance on the Commerce Clause. And I lay a large share of the blame for that at the President's feet, because some Democrats seemed perfectly willing to call a tax a tax (I think the Senate version called it a tax at the time; don't recall for the House draft) until the President got up on TV and started making idiotic claims about the mandate not being a tax.

Pogo said...
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Pogo said...
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Bender said...

Poor, poor Verrilli. Just getting battered all around the ring all day long and then this --

CHIEF JUSTICE ROBERTS: You have another 15 minutes.
GENERAL VERRILLI: Lucky me. Lucky me. (Laughter.)

Revenant said...

Ask 100 Americans if they would rather enroll in private insurance, or Medicare, and see how many hands go up for private insurance.

70% of Medicare beneficiaries choose to purchase private insurance too. Another 22% rely on other government programs to supplement Medicare.

Only 8.5% rely exclusively on Medicare.

Source: AARP

Pogo said...

Garage, I suppose you might ask all those Medicare patients who are now unable to find a primary care doctor or specialist who will take another Medicare patient.

Most practices are limiting their Medicare exposure to less than 25%, a number far lower than the demand, because Medicare fees are so low.

Massachusetts has the same problem. They promised plenty of free stuff, but just can't find many doctors who want to work for free.

Massachusetts doctor shortage: A glimpse of the future?

bgates said...

And that that's why these things are always worked out. It's that the Secretary really doesn't want to use this power,

notwithstanding which it's very important that the Secretary be granted this power, because it would be upsetting if a child died because a hospital refused to provide a vaccination for free.

MayBee said...


Ask 100 Americans if they would rather enroll in private insurance, or Medicare, and see how many hands go up for private insurance.


Are these 100 GM UAW retirees?

Joe Schmoe said...

Ahhh. I have to say today's oral arguments have restored my faith in the court a little.

The first 2 days sounded like a talk radio show. Seriously, I've read more compelling discussions here on Althouse threads.

Today, finally getting a chance to catch up after a long day, I see that today's arguments ratcheted it up a little. People seem to be discussing legitimate and complex aspects of law rather than making specious talk-radio chit-chat about the poor kid who dies in ER because he didn't happen to be a one-percenter.

I was underwhelmed by some of the simplistic repartee from the first 2 days; today it seems like actual professionals were operating at a high level.

ricpic said...

Chief Justice Roberts: No, no. I know it's -- I know it's different here. I'm just trying to understand if you [General Verrilli] accept the fact or regard it as true that there is a coercion limit...

Liberals do not accept a coercion limit!...proudly.

drozz said...

obama's already making excuses. says legislation was bipartisan. and that the mandate was all the republicans idea.

what does that tell you?

MayBee said...

Isn't this pretty much what just happened with Texas, Medicaid, and Planned Parenthood?

Texas decided not to fund PP, so the Feds decided to withhold funding. Is that right?

Bender said...

Poor, poor Verrilli. And then the knock-out punch. Poor Verrilli tries a jab that he thinks is pretty clever and it merely opens him up to a devastating counter-punch to the jaw, putting him on the canvas --

GENERAL VERRILLI: In a very fundamental way, this Medicaid expansion, as well as the provisions we discussed yesterday, secure of the blessings of liberty. And I think that that is important as the Court is considering these issues that that be kept in mind. . . .

MR. CLEMENT: Let me just finish by saying I certainly appreciate what the Solicitor General says, that when you support a policy, you think that the policy spreads the blessings of liberty. But I would respectfully suggest that it's a very funny conception of liberty that forces somebody to purchase an insurance policy whether they want it or not.
And it's a very strange conception of federalism that says that we can simply give the States an offer that they can't refuse, and through the spending power which is premised on the notion that Congress can do more because it's voluntary, we can force the States to do whatever we tell them to. That is a direct threat to our federalism.


Down goes Frazier! Down goes Frazier!

David said...

Again, the liberals simply do not see a limit to federal power, other than in the Bill of Rights. The notion that the entire structure of the federal union, enacted before the Bill of Rights was adopted, is also a mechanism to limit federal power does not register. The entire question of enumerated powers seems irrelevant to them, because they imagine the government as a bringer of good things to the people. Truly, they just don't get it.

Tim said...

"Ask 100 Americans if they would rather enroll in private insurance, or Medicare, and see how many hands go up for private insurance."

This assumes: 1) ceteris paribus and; 2) Medicare enrollees do not, in fact, have private health insurance.

However, anyone who understands the the financial relationship between Medicare and private insurance knows that in a world in 100% of Americans were enrolled in Medicare, the *advantages* of Medicare over private insurance dissipate.

Also, it just shows plain ignorance when you *assume* (since you *really* do not know) that many people with Medicare coverage actually do have private insurance.

Up your game, Garage. Your ignorance is showing.

MadisonMan said...

Awww....

Earl Scruggs has passed on.

RIP.

Tim said...

"Texas decided not to fund PP, so the Feds decided to withhold funding. Is that right?"

Yes, that is exactly right.

David said...

Well, Bender, Vermelli does not think that Clement laid glove on him. To Vermilli that glove is a whisp, a phantom. He will be very surprised when he wakes up on the floor. He will feel better when the White House issues another press release saying that he actually was not knocked out, he just slipped, and the biased referees called it a knockout.

David said...

"the Secretary really doesn't want to use this power,"

Yeah, that's a relief. So when the Secretary uses it anyway, we'll feel a lot better because he really does not want to.

The argument is, "the Secretary does not want to use this power unless it becomes necessary to achieve the ends the government desires." Then, you weak little states with limited taxing power, no right to coin money and no ARMY (hint, hint) will have to do what we want.

PatCA said...

Yes, Bender, Clement was en fuego! I'm starting to get a little crush on him.

bagoh20 said...

The point where Scalia says: "You really want us to go through these 2700 pages? (Laughter.) And do you really expect the Court to do that?"

It just perfectly points out the stupidity of this thing which Althouse hit on earlier. Nobody read it. The smartest lawyers in the country don't know what it says, the Congress that passed it, the Supreme Court that has to judge it's constitutionality, the people who have to administer it, nobody knows what it says, let alone what it means, and we are already doing it?

What if on page 2699 it says all Mormons must shoot themselves in the head on November 5, 2012?

garage mahal said...

@Pogo
I thought Congress came up with a doc fix? I'm asking, I don't know.

Rick said...

I paid the maximum social security and the medicare payments from 1969 through 2010, when I retired.
I have to enroll in medicare, else I lose my social security payments.
This is another example of federal coercion. I would be willing to forgo my completely and maximum paid in medicare benefits if allowed to go out on my own for medical care, but to do that I must also give up my fully paid in and maximum paid social security.
Finally, it seems likely that if Obamacare goes forward the feds will be able to put coercive pressure on doctors not to accept older patients who want to pay themselves, outside the medicare system.
My freedom has been taken away, by that boat-load of money, social security and medicare, into which I paid at the maximum rates for about 42 years.

Kirby Olson said...

If the president is going to nominate leftists to the bench, nominating ones as dumb as Kagan would be about as good as nominating conservatives since she's so dumb it's weird. Free money! You have to think about the whole economy just as you think about the whole of ecology. I would think that everyone knew this. Follow the money. Keep it green.

Tim said...

"Democrats tried to make all the freeloaders pay their fair share, instead of leeching off the system therefore raising your rates. Republicans ended that".

Uh, this won't work like you think it will, for the simple reason everyone knows Democrats are in the business of creating freeloaders who leech off the system therefore raising our tax rates.

And, the facile notion that trying "to make all the freeloaders pay their fair share, instead of leeching off the system therefore raising your rates" would actually reduce insurance rates, let alone reduce insurance rates more than tax rates are increased to subsidize affordable insurance through the exchange is risible.

Yet I *completely* understand why you think it would work out *exactly* that way.

Kirby Olson said...

It's as if Nosferatu were to say to a vampire -- it's blood, drink it! (Without then saying, well, this blood is yours, when of course it is!)

Tim said...

"If the president is going to nominate leftists to the bench, nominating ones as dumb as Kagan would be about as good as..."

The moral hazard of affirmative action is that renders its practitioners completely impervious and ignorant of any reasonable notion of *merit*, or standards approximating merit.

Obama should be embarrassed by his appointees, but no more so than Obama's voters should be embarrassed by their votes for him.

Kirby Olson said...

I meant to say, it's as if Nosferatu were to say to an untainted human, "it's blood! just drink it! what's the problem?" when of course the problem is that it is not just human blood, but it is her children and her grandchildren's blood!

bgates said...

What if on page 2699 it says all Mormons must shoot themselves in the head on November 5, 2012?

Wouldn't change a thing - the right would still think it was unconstitutional, and the left would consider coerced mass suicide as the only way to secure the blessings of liberty while putting an end to the scourge of the deaths of uninsured children from whooping cough and the measles.

Tim said...

"@Pogo
I thought Congress came up with a doc fix? I'm asking, I don't know."


No. They kicked the SGR can down the road, like they always do.

Like Kagan, you need to up your game, Garage!

pbAndjFellowRepublican said...

"The SG blabbers in response (as if he's not too well versed in what moves Justice Kennedy, which you would think would be his primary concern)."



Did some interloper write this sentence? Any well versed Althousian would know that the SG's blabbering had nothing to do w/ satisfying Kennedy. His primary concern is sinking ACA.




Try to keep it consistent Althouse.

PackerBronco said...

Tim said...
"Democrats tried to make all the freeloaders pay their fair share, instead of leeching off the system therefore raising your rates. Republicans ended that".


That must be on Tuesday, Thursdays, and Saturdays. On Mondays, Wednesdays, and Fridays, they're demanding free contraceptives for all.

On Sundays, they're honest with the American People --- but only in months that end in "s".

Lem said...

Like I said yesterday.. you people building your hopes up only to be left at the altar by I rather be liked than right Anthony Kennedy.

Just Lurking said...

It doesn't matter if it's true or not.

Yes, we get it- The Dems know their base are dopes that will believe whatever lies they are told. We know that.

What the Dems don't seem to realize is that not everyone is as dopey as their base. Otherwise more people would be supporting this bill.

Chip S. said...

It's easy to see why the U.Chicago law school declined to rehire Kagan after her first stint in Washington. Having made a tenure mistake, it wasn't going to repeat its mistake.

I wonder what Judge Posner thinks as he listens to this fool who sits on the SC while he enters his 4th decade on the 7th circuit. It's gotta involve a few choice expletives.

Christopher said...

I know you're doing this because you love it, Althouse, but thanks. This is amazing.

Tim said...

"The smartest lawyers in the country don't know what it says, the Congress that passed it, the Supreme Court that has to judge it's constitutionality, the people who have to administer it, nobody knows what it says, let alone what it means, and we are already doing it?"

Oh, your point stands, but a number of people have already read it. Nobody knows what it means yet for the 3005 instance of the "The Secretary" shall...may...determines...in consultation with...under...through guidance...in conjunction with...etc., etc., etc..

Worse than Congress (or president) not reading the bill before passing and enacting it, is all the delegated authority to the Secretary of HHS.

Remind me - who voted for her again?

pm317 said...

The point is these tremendously enticing offers destroy the state's will to say no. They're not coerced, but they lose their independent political identity, and that is destructive to federalism.

Even I get that. Thank you. But why would the executive branch which would want more power not do such a thing? Or is it that they should self-police themselves because of the respect towards states rights. {sorry, I am not a lawyer but trying to make sense of this.}

Real American said...

"big gift from the federal government?" Justice Kagan just perfectly stated how lefties view government spending - it's a big gift and we're all supposed to be grateful for their generosity. They think the govt is Santa Claus. these people have no place in govt.

NotquiteunBuckley said...

"Well, I guess I would want to know where the money came from."

There is a story, or maybe I literally dreamed this, of a politician, from perhaps the 1920's through 1950's and from the East Coast (New York State Senator??) but I don't really recall, who was known for saying something to the effect of:

"But gentlemen, how do we intend to pay for it?"

The story, as I am just making up at this point but it's too good to stop now (to me), is the politician would listen to all debate in silence about any and all topics presented to him, then, before the vote was cast, no matter the legislation of the day, say how great an idea was behind the bill (unction), but, darn it:

Gentlemen, how shall we pay for this?

MayBee said...

Yes, that is exactly right.

Tim, thank you. I'm surprised a Supreme Court Justice did not know that.

garage mahal said...

No. They kicked the SGR can down the road, like they always do.

Like Kagan, you need to up your game, Garage!


By that, you mean they delayed the rate cut. Okay.

One thing we could do is allow more overseas doctors into the country, thus fostering greater competition and lowering doctors excessive salaries. We're all feeling the pinch, right? The public sector has taken haircuts and layoffs. Why not doctors?

*ducks*

rcommal said...

"Politically accountable" versus "systemically accountable":

What a functional notion to contemplate, to ruminate and deliberate, over!

drozz said...

clement and carvin get free beer if the mandate is struck down.

they did their jobs very well.

AJ Lynch said...

I am happy for and a bit jealous of the lawyers here. This must be even more exciting for them than it is for us non-lawyers. Speaking only for myself, I can see the heightened energy and excitement in the comments of Althouse and the other readers who are lawyers. Since I can't grasp all the twists and turns, I am a bit jealous.

Lastly, the uninspiring performance of Kagan may be attributable to her coming from the echo chambers of academia perhaps? She reminds me of uninformed college students who are shocked when they learn not everyone thinks like they do.

Bender said...

I thought it a mistake for Clement in the morning to not make this argument, but then Kneedler goes and makes it for him -- that if they don't strike down the whole thing, there will be an avalanche of other cases brought litigating any number of provisions in the Act. Apparently, Kneedler thinks that is preferable.

MR. KNEEDLER: As an initial matter, we believe the Court should not even consider that question. The vast majority of the provisions of this Act do not even apply to the Petitioners, but instead apply to millions of citizens and businesses who are not before the Court --
CHIEF JUSTICE ROBERTS: How does your proposal actually work? Your idea is that, well, they can take care of it themselves later. I mean, do you contemplate them bringing litigation . . . And that's a whole other line of litigation? . . .


Moreover, he then goes on to argue that if there is no one who can sue, then too bad, the law stands even if otherwise invalid.

JUSTICE SCALIA: Mr. Kneedler, there are some provisions which nobody would have standing to challenge. . . . But nonetheless, that has to continue because there's nobody in the world that can challenge it. Can that possibly be the law?
MR. KNEEDLER: I think that proves our point, Justice Scalia. . . .
JUSTICE BREYER: What he's thinking of is this: I think Justice Scalia is thinking, I suspect . . . Does the government just sit there
collecting half the money forever because nobody can ever challenge it? You see, there -- if it were inextricably connected, is it enough to say, well, we won't consider that because maybe somebody else could bring that case and then there is no one else?
I mean, is that --
MR. KNEEDLER: Yes, we think that is the proper way to proceed.


I have to say that I think this strategy by the Obama folks of NEVER GIVE AN INCH, of reserving the right of absolute power by the government, is a huge mistake on their part.

Michael Hess said...

I saw someone at TPM say this:

"The only problem that Chief Justice Roberts and Justice Kennedy expressed with the mandate is the lack of limiting principle on Congress’s ability to mandate the purchase of privately-made/issued products. If that’s really the concern of each Justice, and it sure seemed that it was, neither man is lacking in the self-regard and intellect necessary to craft such a limiting principle. And that’s where my money remains. The Government didn’t make their jobs easier, but it’s one thing to fault the Government for failing to articulate a limiting principle and quite another to overturn momentous legislation on that basis. Because to do the latter is to say that the Justices can’t craft such a principle either. Here’s betting both can, and Roberts will."

I'm ashamed that that an ACA supporter would have the gall to say, "I'm sorry your Honor, I don't know why I should prevail, but I believe you will."

I also thought ACA supporters, i.e. Lithwick, Greenhouse and Pelosi, were telling us that the mandate is obviously constitutional, and if its so obvious, why can't supporters themselves succinctly state the limiting principle.

Ralph L said...

the feds will be able to put coercive pressure on doctors not to accept older patients who want to pay themselves, outside the medicare system.
This was also a feature of Hillarycare for everyone. These people don't really care about helping the poor that much (look at all the damage they've done), they're levellers, first and foremost.

Meade said...

pbAndjFellowRepublican said...
"Any well versed Althousian would know that the SG's blabbering had nothing to do w/ satisfying Kennedy. His primary concern is sinking ACA."

Every well-versed Althousian gets her absurd humor in putting those two observations together.

Catch up, Mr. Fellow Republican.

Tim said...

"One thing we could do is allow more overseas doctors into the country,..."

Already happening. 30% of California's new doctors each year come from out-of-state and foreign nations. The UK, Canada and Australia import similar numbers too.

And, when you next read of a typhus/cholera/TB, etc. outbreak in some third-world shithole, and wonder why the that nation didn't have enough doctors to stop the epidemic, just look around you.

Anga2010 said...

CURSES, Althouse! You made me listen to the whole thing!

Bender said...

I can see the justices -- practically all of them -- getting fairly exasperated at the Obama lawyers, who are not really engaging in any real discussion, seeking to address real concerns that are raised in the questions, but are simply repeating certain rehearsed lines or simply taking the arbitrary position that a given prior case stands for this proposition, period.

JUSTICE SOTOMAYOR: Mr. Kneedler, move away from the issue of whether it's a standing question or not.
MR. KNEEDLER: Right.
JUSTICE SOTOMAYOR: Make the assumption that's an -- that this is an issue of the Court's exercise of discretion, because the last two questions had to do with what's wise for the Court to do, not whether it has power to do it or not.
MR. KNEEDLER: Right. That --
JUSTICE SOTOMAYOR: So, let's move beyond the power issue, which your answers have centered on, and give me a sort of policy. And I know that's a -- that's a bugaboo word sometimes, but what should guide the Court's discretion?
MR. KNEEDLER: Well, we think that matters of justiciability do blend into --
JUSTICE SOTOMAYOR: Would you please --
MR. KNEEDLER: No, I understand.
JUSTICE SOTOMAYOR: I've asked you three times to move around that. . . .

p.37

"I've asked you three times to move around that."

Yeah, they are getting annoyed.

Rick67 said...

More significant than how this case is decided is what it has revealed about (1) some of our Supreme Court justices and (2) the political left in general and the Obama administration in particular.

They don't really believe in federalism. Which suggests they don't really believe in the Constitution. There are no limiting principles. Making states an offer they can't refuse isn't coercion.

That the SG could say, in response to Alito's hypothetical, "no that isn't coercion" is simply astonishing. I shouldn't be so shocked but I am.

Real American said...

"...because when the government supplies your needs, then you can enjoy life. That's the argument!"

Again, leftism summed up. there's no personal responsibility. no risk. the govt is your helicopter parent and we're forever children who can't make decisions on our own.

Bender said...

I saw someone at TPM say this

Then someone at TPM has their head up their ass or they haven't bothered to read any of the transcripts or they are purposely spewing BS.

pbAndjFellowRepublican said...

I think Meadehouse sprung its trap on me.

Patrick said...

There is an old saw among attorneys appearing in court. There is the argument you make on your way to court, the argument you make in court, and the argument you make on the way back to the office. Essentially, you prepare an argument, but the one you give changes for whatever reason, and then you think of something brilliant afterwords.

I would like to see Mr. Clement and General Verrilli give us versions of the argument they gave "on the way back to the office." Less so from Mr. Clement, because it seems to me that he did pretty much as well as anyone could. Surely the Solicitor General would like to add a few things, or subtract.

Sue D'Nhym said...

"There's freedom inside all this compulsion and coercion, because when the government supplies your needs, then you can enjoy life. That's the argument!"

Let me paraphrase a Justice or two's question from before. What would an example be of something limited from making the same legal justification?

Yet four of our SCOTUS Justices seem to be a-o-k with that line of thinking. And moderates actually think there is virtue in not choosing sides between these current parties.

David said...

It is certainly possible that someone like Kagan could have risen as high as she has in still be clever and glib but dumb. I still consider it more likely that she is out of practice in responding to tough points from a skilled but skeptical proponent of a view antithetical to hers. Life in the bubble can make you flabby.

Bender said...

I would like to see Mr. Clement and General Verrilli give us versions of the argument they gave "on the way back to the office."

I think you have already seen/heard it, Patrick.

Verrilli didn't give just one argument -- he presented three arguments over three days. He had a chance to correct what he said before, to phrase things better, and he did nothing but continue to parrot what he said the day before. He learned nothing from his prior crash-and-burns. Nothing.

I really get the sense that the justices were getting really annoyed that neither Verrilli nor Kneedler were engaging with them, were having a real conversation or dialogue with them, but were instead simply sticking to their talking points like robots.

Lem said...

Life in the bubble can make you flabby.

Kagan believes what she reads..

in the NYT.

gadfly said...

Garage points out:

"You were denied coverage due to a pre-existing condition? That's too bad. Democrats fought hard and won that battle for you. But Republicans and Conservative activist judges took that away".

The administration of insurance requires that premiums be collected to pay for the services required. But that is simply insurance coverage under the plan to which you subscribe. If you are sickly, you may need to subscribe to more expensive coverage or pay for readily available healthcare outside of insurance.

Life is full of choices. As is true with common things such as ageing, you likely have to play the cards you are dealt. But if you are skilled at the game, you can often win the hand.

Under current law, it is unnecessary to have insurance at all - just show up at the emergency room and spend the evening with the illegals.

Tim said...

"I really get the sense that the justices were getting really annoyed that neither Verrilli nor Kneedler were engaging with them, were having a real conversation or dialogue with them, but were instead simply sticking to their talking points like robots."

Now, who does that sound like?

It's like they've all read from the some five-page, flag-football playbook.

bagoh20 said...

"And moderates actually think there is virtue in not choosing sides between these current parties."

The big question of the election, and I can't even believe it's close. Of course they can fall of the fence either way depending on the wind direction; you know election day momentum and all that deep analysis.

madAsHell said...

Hey, Professor!

I really appreciate your efforts to break this down into layman language. There is so much spin, and you patiently pull the language apart.

I am convinced that you know what the "meaning of is is"!!

Thanks again!

Bender said...

Here's one vote for nonseverability -- striking down the entire law if the individual mandate is struck --

JUSTICE SCALIA: No, I -- that wouldn't be my approach. My approach would say if you take the heart out of the statute, the statute's gone. That enables Congress to -- to do what it wants in -- in the usual fashion. And it doesn't inject us into the process of saying: This is good, this is bad, this is good, this is bad.
p.73

That is plain enough even for the MSM and people at TPM.

Meade said...

She appreciates the appreciation. It's obviously a big bite to chew up all at once. Time for me to put the professor to bed. I'm sure she'll finish up tomorrow.

Some really good comments. Thanks.

traditionalguy said...

I just read your work. It is excellent analysis and also an intellectually satisfying read. But you knew that.

We play with so many angles in current events which you post for us that we sometimes forget that you are a Law Professor's Law Professor.

I wish you had been one of my Professors.

Ralph L said...

I thought the Washington Dems had all the bestest lawyers in the country at their disposal. The SG doesn't seem well prepared.

Steve Koch said...

Really impressive work by Althouse.

It seems obvious to me that the ObamaCare bill is waay too complicated for the SC to fix plus it is not the job of the SC to fix legislation. Best to send it back to congress with specific instructions on what is not constitutional. Congress can then work out compromise legislation (or not) to fix the problems.

Knowing that Kennedy is aware of the Federalist Papers is encouraging.

Alex said...

Can I do a bouncy for Kennedy?

Danno said...

At its simplest- This legislation was an abomination from the Obamanation.

Lem said...

I cant believe the professor lefts us mired in an Obamacare post.. no cafe for us.. again.

There is more going on Profe.

Bruce Hayden said...

I don't think that Justice Kagan is dumb. Justice Sotomayor may not be the brightest bulb, but, remember, she is the token Wise Latina on the Court.

The problem, as has been hinted at above, is that she was asked to recuse herself because of her work on the Constitutionality of the legislation when she was SG. And, given the politics involved, did not (because you would then have a big mess if Justice Kennedy went with the liberals, and there was a 4-4 tie, with a circuit split - who would win then?)

In a couple more years, I suspect that Justice Kagan will be firing on more cylinders as a Supreme Court Justice. But, right now, I think that she is still wearing, to some extent, her hat as Solicitor General arguing for the Constitutionality of the legislation among a group of like minded liberals.

MayBee said...

Thank you very much indeed, Althouse.

I have woken up the past three mornings and run here, to see what you would say about the court.

willem said...

"The federal government's money."

In this economy? What Kagan is contemplating involves trillions yet to be levied upon and paid by our respective grandchildren.

Kagan's offer is a metaphor for her willingness to leverage my grandchildren into financial slavery; to offer someone "federal government millions" that the federal government neither has nor owns.

The monies borrowed are monies held in trust. The federal government is a trustee.

How telling Kagan is this cavalier; so promiscuous. Has she been sleeping with John Corzine?

I'm appalled how her callow moral simplicity seems oblivious to the issue of trustee duty and a very real betrayal of innocent children, born and yet to be, who will face a penalizing lifetime of usury because maldeveloped ingenues of both genders had no children of their own to temper their hubris, and those who did had no equivalent regard for the children of others to be stuck with the bill.

ddh said...

Prof. Althouse,

I want to add my appreciation to those of your other readers. It is truly a service for us laymen to have a lawyer explain and evaluate the arguments in clear language. Thank you.

Bender said...

Re: Kagan (or Sotomayor)

All this talk (a few days ago, before the arguments) about Roberts possibly switching sides, but if there is a majority to strike down the individual mandate, I could envision Kagan switching and joining the majority.

Unless she feels really strongly personally (as opposed to some residual loyalty toward Obama) that it is constitutional, strong enough to write a dissenting opinion, I can see her switching so as to quiet all those who called for her to recuse herself and prove her independence. After all, what difference is there if it is 5-4 or 6-3?

And if the individual mandate falls, given that the government has said that it is so tied up with the guaranteed-issue and community-rating provisions, in addition to striking those three provisions ("the heart"), I can envision 7-2 to strike the entire thing.

If the Court leaves some of it standing, even if it can figure out which parts to keep (keeping in mind that many of these "provisions" are not neatly written as a compact whole in the same section(s), but are often spread over many different parts of the Act, with the others interrelated to them), do the members of the Court really want to face the prospect of additional litigation on the remaining parts? Do they really want to have to litigate later whether part X or Y is so interconnected to the "heart" that they cannot stand either?

This latter point is what I think Clement was getting to with the Buckley reference. Does the Court really want to keep having to deal with the remaining aspects of the Act again and again and again, or just be over and done with it? Rather than face the prospect of such a mess, I can easily see 7 justices wanting to just end it now.

Carnifex said...

I would like to add my thanks to the Professor for making my peek at a Supreme Court Hearing understandable. If you can do it for this ol' reprobate, you must be a hella' a teacher. Kudos, and thank yous.

Now, I got to go flush my eyeballs out after reading all that defining "what is, is"

I do have a theory about the ineffectiveness of SG Verilli. Maybe he sounded scripted, and overladen with talking points because the monstrosity can only be explained, and at that only partially, by those devices. It is 2700 pages long, and no one could possibly comprehend all the convolutions of it.

Kagan, and Sotomayor come off as goofs. I don't agree with "Darth Vader" Ginsberg, but I can respect her depth.

PS.

Spike Lee is casting the movie based on the Professors analysis. Who do YOU cast?

Sotomayor...Elie Kazan
Kagan.......Rosie O'Donnel
Roberts.....Alec Baldwin
Scalia......James Gandolfini
Clement.....Harrison Ford
SG Verilli..Al Pacino
Obama.......Alfred E. Newman
Thomas......Morgan Freeman
Stevens.....Johnny Depp

Bender said...

I final thought pops into my head before I'm off to bed -- that "blessings of liberty" argument by Verrilli, which is a reference to the Preamble of the Constitution.

What do we mean, what does the Constitution mean, with this phrase "blessings of liberty" or, more to the point, why the use of that curious word "blessings."

"Blessing" -- this is not a secular word, it is not a secular concept. The concept of blessing is distinctly religious, signifying a divine gift or favor or, in its highest sense, sanctification.

Hmm.

Rusty said...

PatCA said...
Sounds like Clement got the better of Kagan on that one!

Do liberals really not understand where money comes from?




No they don't.
It is their sincerest belief that all wealth originates from government.

Rusty said...

One thing we could do is allow more overseas doctors into the country, thus fostering greater competition and lowering doctors excessive salaries. We're all feeling the pinch, right? The public sector has taken haircuts and layoffs. Why not doctors?


We do, but in most cases in order to be certified they have to pass their boards in the state they'll be practicing in.We-the United States- have a very high threshold. For some of the foreign doctors that means medical school allover again. In very few cases are they allowed to just come in and start practicing. Medical school is hard for a reason. We demand a high level of competency in our doctors.

Kelly from Georgia said...

Thank you. I look forward to the rest.
Kelly

Rusty said...

Nothing the government manages has ever done anything but skyrocket in cost

The first assertion is undoubtedly true.

Ask 100 Americans if they would rather enroll in private insurance, or Medicare, and see how many hands go up for private insurance


Quite a lot. Especially if they are already on medicare. Virtually everyone I know on medicare has private supplemental insurance.

AprilApple said...

"There's freedom inside all this compulsion and coercion, because when the government supplies your needs, then you can enjoy life. That's the argument!"

Kagan agrees.

AprilApple said...

Kagan
"It's free! It's free! wow ! wow! Free health care for all. The money just appears out of thin air and the government is giving it to you for free. wow wow!"

Calypso Facto said...

In which garage shows his belief that the Supreme Court should decide cases on the basis of political advantage, rather than Constitutionality...

And "Ask 100 Americans if they would rather enroll in private insurance, or Medicare, and see how many hands go up for private insurance."

Do I get a refund of all my past and future Medicare taxes? My hand's up.

Patrick said...

To be fair, I don't think that was Garage's point. He stated simply that whatever side loses at SCOTUS can and will use the loss as a sword during the campaign, and paste the problems with health care on the other side, as in "It's their problem now."

I think the argument for Republicans would be stronger if Obamacare survives the challenge, but that's no certainty. All I know is that I'm on a list-serve with hundreds of lawyers, and the consensus when the states started filing these cases that the only real question was how much they would be charged for filing such a frivolous case. My comment that I'd like to consider whether we truly want to think about it for a moment, do we really want to take the position that the Government can justify invoking the commerce clause for merely existing was ridiculed. "This is important," they said. Even lawyers don't always understand that "important" is not the same thing as "constitutional" especially when the goal is limited government.

That's not always the goal, I guess.

Tim said...

Sotomayor...Herself
Kagan.......Jon Lovitz
Roberts.....Colin Firth
Scalia......Eugene Levy
Clement.....Kevin Spacey
SG Verilli..Ted Danson
Obama.......Don Cheadle
Thomas......James Earl Jones
Kennedy.....Chevy Chase
Ginsburg....Linda Hunt
Breyer......Bill Murray
Alito.......Dan Aykroyd

Andy Krause said...

News alert for garbage mahal. The premiums have already risen. If you actaully paid for your insurance you would know this. The average full cost is $12,000 per year. For a small business group plan my cost is $17,000 per year. Two years ago the cost for the group plan was $11,000.

joated said...

from Update 1: Wow, wow! Can Kagan be this dense? Not to understand that it's not the government's money, but the taxpayers'?

Russ Wood said...

Thank you for your summary of the arguments. It's not easy to take something complex and rambling and summarize it concisely and clearly. I also appreciate the color commentary.

walter said...

Why "Wow"?

OMG only works in text/twitter


The full version would go something like:

OMG! U no free stuff? :(

walter said...

WTF!

Browndog said...

Just thought I'd chime in to say "Nice work"....by Althouse.

Appreciated.

(AprilApple "gets" Kagan)

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