June 28, 2012

The Top 10 Things That Just Had to Wait Until the Last 24-Hours Before the Obamacare Decision.

No, no, no. It's not just filler. It's the last amazing thing that was finally realized, on the Eve of Destruction — or Non-Destruction or Semi-Destruction — and needed to be published right now — quick! link! read! — for the edification of the American people.

1. Scalia is a rascal. I insist that he resign! Pronto! He's been annoying Elmer J. Dionne Jr. for years. Oooh, I'm just so mad. How dare he!

2. The NYT still has Linda Greenhouse available to wheel out for special occasions. Today will probably be a "rare day" of "theater." There might be "tears of relief" or "of regret." But "whose"?

3. President Obama will need to respond to the ruling. Will it be with tears? Of relief? Or of regret? He's got 3 speeches ready. Tears of relief... tears of regret... and laughing through tears.

4. "In the end, you have to make a prediction and take responsibility for it. I believe the mandate will not be invalidated tomorrow." As The Beatles sang: And in the end, the predictions you make are equal to the responsibility you take. Aaaah aaaah....

5. "We don't know what will happen this morning. But no matter what, today is an important day to have Barack Obama's back." Email just now from the Obama campaign. Because everything is an occasion for giving money to Obama. Especially this. Transmogrify your tears of regret — or relief! — into cash for Obama.

6. A roundup — like mine right here — of all the predictable bullshit: "Obamacarians' Pregame Rationalizations: Doesn't Matter; Good for O; All Scalia's Fault, and More!"

7. Instapundit provides a roundup of last-minute links including the roundup of links that I just linked to at #6 (which I took, not from Instapundit, but from that one guy in the comments here).

8. Randy Barnett thanks everyone — whatever happens — he's happy to have at least been taken seriously. Especially by Orin Kerr, who really annoyed him.

9. What do I actually think? Should I after all this time reveal whether I think the individual mandate is constitutional? We're about to hear what the Supreme Court thinks, so what does it matter what I think? It's emphatically the province and duty of the Judicial Department to say what the law is. That's what I think. Now, if they go 5-4, liberal-conservative or conservative liberal, The Law will not have the awesome solidity We, The Children want it to have, but I'm not going to cry about it. I'm old. And I've been watching the Supreme Court for a long, long time. It's 9 human beings — could be 19, but it's 9 — trying to do something serious and complicated.

10. Oh! It's so exciting! Let's watch it unroll at the SCOTUSblog live blog, where the venerable  Lyle Denniston is saying "Good morning from a slightly zoo-like, but still surprisingly civil, press room at the Court."

88 comments:

Ron said...

Looks like Scalia ate the post!

Fen said...

E.J. Dionne Jr. whined: Justice Antonin Scalia needs to resign from the Supreme Court.

Mmmmmm. Delicious tears.

Jay said...

When a 5-4 decision in Planned Parenthood v. Casey was delivered the left was all concerned about the "legitimacy" of the Supreme Court, correct?

I mean, EJ Dionne was in full crisis mode, right?

Matthew Sablan said...

Jay: It proved that one guy's life was a fraud.

Here are my Supreme Court predictions.

Roger J. said...

Is it really Elmer? now I understand--its not Dionne at all, its Fudd.

As far as the post--that rascal Scalia: how does he do that.

Barger said...

Supreme Court: no healthcare but we saved bundle on car insurance.

Fen said...

I mean, EJ Dionne was in full crisis mode, right?

Yup. Just like when Obama used the State of the Union speech to lecture a captive SCOTUS. Dionne was all upset about the breach of protocol then too.

Not.

The Drill SGT said...

Instapundit captured it all in one line. Althouse, brevity should be admired. Why did it take you 10 :)

DEMOCRATIC LEADERS TO SUPREME COURT: If You Don’t Vote Our Way, You’re Being Political.

The Drill SGT said...

Fen said...
E.J. Dionne Jr. whined: Justice Antonin Scalia needs to resign from the Supreme Court.


And he needs to do it now before that right wing-nut Mormon can get to town....

AJ Lynch said...

What is your prediction Althouse? You gotta have one- so give it up!

Matthew Sablan said...

I kind of want the Supreme Court to find the mandate constitutional now. I don't think the country could survive the tears and gnashing of teeth that will occur in papers and newsrooms across the nation if it finds otherwise. Indeed, our news people would drag us into national depression as they weep and claim things like democracy has died.

Matthew Sablan said...

Reason has some more beautiful, beautiful media whining.

Ned said...

Strange times we live in and we have fallen a LONG way! A casual read of the Constitution by a not too bright observer would conclude the document was devised to strictly limit the power of the Federal gubmint...if the ACA is not unconstitutional...nothing is yet...

tim in vermont said...

I hope they do uphold it.

Then congress can make a law that mandates able bodied people have to get a job in the private sector. That's not mine, I stole it, but it is good. Obama can mandate that we all buy those electric cars that are worthless in much of the country...

As in Shakespeare's time, congress can mandate that we all have to wear an American made woolen hat on Tuesdays. Think what this could do for the textile workers!

tim in vermont said...

Then again, if it is overturned, it could save MSNBC's ratings for a week as we all tune in to guffaw.

I don't know what is going to happen, but if the govt can do this, they can do anything. We live in a different country now, we just won't find out which one until a little after 10.

DCS said...

I read the first two pieces and stopped since I didn't want to lose my just-eaten breakfast. Apparently, according to Dionne and Greenhouse, it's OK for a sitting President to call out the Supreme Court while its members sit passively listening to the SOTU address, but not OK to offer off the bench opinions about the wisdom of the same President as he essentially refuses to execute his duties under the constitution. Strange world.Moreover, the real purpose of the Supreme Court is not to evaluate the constitutionality of laws, but to rubber stamp those that meet the approval of the editors of the New York Times and Washington Post. Such a novel idea.

The Drill SGT said...

How about a mandate, that in order to have a Federal job, you have to be current with your taxes. Seems so reasonable, yet many Feds are scofflaws, including WH staff...and no, it's not a firing offense.

PS: The Wif used to work for the IRS (IT contracts, not tax law) and THEY have a pre-employment agreement at authorizes them to audit you, AND they run a payroll check against taxes filed in April, and if your name doesn't come up, you get to talk with your boss about duty, honor and country....

Roman said...

It must be just me, but E J Dionne looks like the barber in one of Clint Eastwood's spaghetti westerns. Make about as much sense.

Scott M said...

Anyone have that link to the liveblog of the SCOTUS decisions? Seems like it would be a good idea to get in early and let it run.

Ron said...

Oh, man, it's a pretty nice bill, but it doesn't have a lot to say. Oh, man, it's a pretty nice bill, but it change from day to day. Wanna tell it that I love it a lot, but I gotta get a belly full of wine. Oh, man, it's a pretty nice bill, someday I'm gonna make it mine.

Fr Martin Fox said...

RE: Scalia's comments...

I have read and re-read the allegedly terrible comments of Justice Scalia...

And I'm not seeing it.

I didn't see him comment on the merits of the President's action. His dissent addresses what state officials of Arizona have said, all along, was their concern: lax enforcement of federal immigration laws. Scalia accurately pointed to the President's non-enforcement policy as a very recent example of non-enforcement.

Contrary to Dionne and the Post editors, Scalia did not "question" it. He conceded it may be wise policy; and he certainly didn't say anything about whether it's legal or constitutional.

I'm not seeing what's so terrible?

Bob Ellison said...

Your Beatles quote reminded me of Danny Ainge, the Boston Celtics shooting guard in the Bird era, who said (roughly) "It's not how many you make, but how many you take." That sounds wrong, of course, and it should be wrong in law, but it's not wrong in politics. Whoever loses today should buck up and try again.

Matthew Sablan said...

What's so terrible? Scalia spoke!

Sharc said...

"So, which "R" you filled with?
[N]ow you ain't gonna hafta face your enemy on the battlefield no more, which "R" are you filled with: Relief or Regret?"

"A little bit of both."

"Bullshit. I'm sure you do feel a little bit of both. But I know damn well you feel one more than you feel the other. The question was, which one?"

"Regret."

Scott M said...

If anyone's interested in getting in line early over at SCOTUSblog, here's the link. They've already mentioned heavily increased security.

garage mahal said...

These people call themselves Christians. How would Jesus rule in this case?

Jay said...

garage mahal said...

These people call themselves Christians. How would Jesus rule in this case?


Why do you care, Mr Separation of Church and state?

Idiot.

Palladian said...

I love moments when the arc of history seems in the balance.

I haven't slept, but not because of the Court.

Shall I have a cigarette, and watch the smoke rise and disappear in the sunlight? Shall I have coffee, and enjoy the evanescent thrill of pleasure, that no one else will know or care to know, over how wonderful it tastes?

Quayle said...
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Jay said...
This comment has been removed by the author.
Palladian said...

Noli me tangere, Caesaris sum, says the Court to a desperate garage mahal, to which Christ nods in agreement.

Patrick said...

How would Jesus rule in this case?

Who knows? There's no real reason to think that Jesus would want the US to force people to buy things they don't want in order to allow a bunch of others (many of whom also don't want it) to buy overpriced insurance that covers a lot that many won't - can't - ever need, with the end result being that healthcare takes up an even larger portion of US spending.

phx said...
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Jay said...

Fr Martin Fox said...

RE: Scalia's comments...

I have read and re-read the allegedly terrible comments of Justice Scalia...

And I'm not seeing it.


It is because EJ is either stupid or lying (or both).

He can't seem to grasp that Justice Scalia is referring to the Obama Administration's legal arguments IN the court cases.

But of course old EJ went all ZOMG, HE MENTIONED A POLICY!!!!!!111$@##@#

Scott M said...

I'm going on the record: I think they'll uphold the mandate. Who else?

Surprise, surprise.

phx said...
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tim in vermont said...

Jesus said "render unto Caesar that which is Caesar's" so he would have held out for single-payer. Not made a law that everybody had to deal with the money changers.

cubanbob said...

I wouldn't be surprised if the court finds a way to punt this claiming that since it hasn't gone in to effect there is nothing yet to rule on. A lot less headaches for them and it gives the court the opportunity of having the next congress sort this mess out.

phx said...
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Palladian said...

FAUSTUS: ... What doctrine call you this, Che sera, sera,
What will be, shall be? Divinity, adieu!
These metaphysics of magicians,
And necromantic books are heavenly;
Lines, circles, scenes, letters, and characters;
Ay, these are those that Faustus most desires.
O, what a world of profit and delight,
Of power, of honour, of omnipotence,
Is promis'd to the studious artizan!


from The Tragicall History of the Life and Death of Doctor Faustus by Christopher Marlowe

Hagar said...

Megan McArdle

Patrick said...

Interesting note from SCOTUS blog: "Only about 70 people know the result." This was said in explaining the lack of a leak. I would have thought it would be even fewer. But, I guess with 9 justices, a few clerks for each, assistants and printers, 70 sounds about correct. I like that there are no leaks.

Both times I typed 70, it came out as 708. WTF?

Henry said...

Jesus would have been kind of bummed by all the paper work he had to file every time he healed a leper.

And raising someone from the dead? That's a form xyz you have to file in triplicate with three different agencies.

Matthew Sablan said...

All I know is that the Supreme Court staff, if they managed to keep a leak from happening? They need to be intelligence. Yesterday.

BarryD said...

Zoo-like?

E.J. Dionne?

Who'd have thunk?

In all seriousness, I can't think of anyone whose drivel I respect less than E.J. Dionne, unless it's Paul Krugman. At least Krugman is an obvious sell-out, so you can sort of understand what's going on with him.

The Drill SGT said...

So let's try a thought exercises:

1. the SCOTUS overturns ACA completely

2. the NYSE rallies and has a huge upturn that improves the DOW over the next month or two and the unemployment rate declines as businesses start hiring.

3. How does Obama spin that?

4. who wins the spin battle?

Christopher in MA said...

I think it will be upheld. But that's because I'm a cynical son of a bitch who thinks we lost the Republic years ago.

These people call themselves Christians. How would Jesus rule in this case?

This from a slavering worshiper of the party of Moloch. How would Jesus have ruled in Roe, you gutter-dwelling hack?

Leave the SCOTUS discussion to the adults and go back to your masturbatory fantasies about Walker being indicted any minute now!

Quayle said...
This comment has been removed by the author.
tim in vermont said...

" How would Jesus have ruled in Roe, you gutter-dwelling hack? "

+1

AJ Lynch said...

Cubanbob:
Yeah, I too have a feeling the ruling will be fuzzy, gray and leave us with little clarity and no closure on the power of the federal govt.

Patrick said...

Good point, Henry. I can't imagine all of the redtape that would go along with raising of the dead. And think of the lawsuits if the formerly dead guy's life didn't work out as he'd hoped!

AJ Lynch said...

Good ones Henry! LOL.

Quayle said...

Let's be clear, the Pharisees were the officious, controlling "righteous and caring" lawyers and bureaucrats of Jesus's day.

And Jesus absolutely slammed them for being like tombs - pretty and polished-marble white on the outside, but inside full of deadmen's bones

Jesus condemned them also for forcing other, through their rules and laws, to carry heavy burdens that they, the Pharisees themselves, were not willing to carry. (Which branch of government does this remind you of?)

Jesus never condemned the Romans use of raw power. The Romans didn't make bones about being about raw power. They didn't try to couch it all in 'helping people.'

It was the Pharisees that got the full brunt of the condemnation, because they claimed to be about goodness and doing 'God's work', but they were really just as much about raw power as the less deceitful Romans.

Steve Koch said...

"What do I actually think? Should I after all this time reveal whether I think the individual mandate is constitutional? We're about to hear what the Supreme Court thinks... It's emphatically the province and duty of the Judicial Department to say what the law is...
It's 9 human beings — could be 19, but it's 9 — trying to do something serious and complicated."

In engineering and manufacturing, your goal is to design and build, via a repeatable process, products that perform reliably per product specification. Your repeatable process should not depend on the individuals assigned to the task, that is, you should be able to repeat the process successfully even if you substitute employees. Your design and manufacturing processes should work in Houston or Paris or Moscow or Singapore or...

If a constitutional lawyer (Althouse) can't easily and reliably predict the results that the supreme court's review of the mandate (for example) will produce, if the results of the review produce tremendously variable results depending the staff doing the review, then the constitutional review process is broken.

Our application of our constitution cannot depend on the whims, politics, hormones, and prejudices of whoever happens to be wearing the robes today, it has to be a repeatable process that is independent of personality. Our constitutional lawyers don't seem to have an inkling that the constitutional review process is broken, let alone how to fix it.

Jay said...

know his words mean nothing because he is a serial liar, but I did enjoy these remarks from Obama regarding the confirmation of John Roberts to SCOTUS (Obama voted "nay")


Let me also say that I remain distressed that the White House during this confirmation process, which overall went smoothly, failed to provide critical documents as part of the record that could have provided us with a better basis to make our judgment with respect to the nomination. This White House continues to stymie efforts on the part of the Senate to do its job. I hope with the next nominee who comes up for the Supreme Court that the White House recognizes that in fact it is its duty not just to the Senate but to the American people to make sure we can thoroughly and adequately evaluate the record of every single nominee who comes before us.


Funny how things work out...

deborah said...

"I'm going on the record: I think they'll uphold the mandate. Who else?"

It seems more likely than not, I think. All along I've wondered if the conservative side of the court would lean toward a pro-business decision, with a little social-engineering consideration on the side.

phx said...
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Matthew Sablan said...

"So, do you guys think Hitler would have upheld the mandate?"

-- It doesn't give enough power to the government in Hitler's eyes. Also, not enough occultism.

Dante said...

Ann, it's time to weigh in. What do you think is going to happen, and what do you think is the right answer?

Jeff in Oklahoma said...

Hell, this is almost as good as draft day for your favorite team.

phx said...
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Patrick said...

n engineering and manufacturing, your goal is to design and build, via a repeatable process, products that perform reliably per product specification. Your repeatable process should not depend on the individuals assigned to the task, that is, you should be able to repeat the process successfully even if you substitute employees.

Law is not engineering. It would be impossible to write a Constitution that would produce predictable interpretation by people with differing priorities and interests.

Engineering relies on physics and science. The law, however much we may want it to be, is not science.

Quayle said...

"So, do you guys think Hitler would have upheld the mandate?"

Once the Nazi government secured the right to kill the Untermenschen, the insurance issue became moot.

Our current overlords in Washington DC, however, have attempted the final insurance solution backwards.

They tried to mandate the insurance purchase FIRST.

Dealing with he Untermenschen will come later when the Obama expert panels are set up.

Scott said...

I suspect that the court will kill the mandate, and if so, kill Title I and II with it. This would leave the Medicare expansion, which while not to my liking, seems to be able to pass muster.

There, now I am on the record too...

Patrick said...

I don't know if they'll uphold the mandate or not. My guess, or I suppose my hope is that they will not uphold the mandate.

It is fun to consider EJ Dionne's head exploding in the (unlikely) event Justice Scalia votes to uphold it!

Jay said...

1,231 companies received waivers from the law’s restrictions on annual benefit caps. 50% of the workers exempted belong to unions.

But Obamacare is like so super-duper great and stuff!

BarryD said...

"Let's be clear, the Pharisees were the officious, controlling "righteous and caring" lawyers and bureaucrats of Jesus's day.

And Jesus absolutely slammed them for being like tombs - pretty and polished-marble white on the outside, but inside full of deadmen's bones"

Right on. Too many Christians don't know that history, it seems, or just forget about it.

And that's the NICE stuff he said about them... :)

cubanbob said...

phx said...
ScottM I didn't have an opinion on what the court would do until just this minute. Nor am I that concerned one way or the other.

I like Obama and I heard there were arguments that it would be good for his candidacy if it was not upheld.

6/28/12 8:25 AM

It works just as well for Romney. Indeed if it is overturned it works for both sides by claiming the importance of having your party's president be elected and a majority of the senate be composed of your party.

Jeff in Oklahoma said...

It is fun to consider EJ Dionne's head exploding in the (unlikely) event Justice Scalia votes to uphold it!

I think my head would explode - or more likely, I'm moving my family outside the territorial limits of the Imperial Governments reach.

cubanbob said...

phx said...

Personally I like Obama, I would like him more as my neighbor than as my president.

cubanbob said...

phx said...

Personally I like Obama, I would like him more as my neighbor than as my president.

phx said...
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Scott M said...

Alverez is uncon.

Patrick said...

Stolen Valor Act unconstitutional. I guess you can lie about receiving medals in war.

Christopher in MA said...

Personally I like Obama. I would like him more as my neighbor than as my president.

Of course, in the fall, when the leaves from his trees blew over into your yard, he'd say it wasn't his fault, because that bastard Bush planted the trees before he moved in.

phx said...
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Matthew Sablan said...

"I guess you can lie about receiving medals in war."

-- You can do a lot of legal things that are completely immoral.

Scott M said...

...here it comes...

WV-ssnsfu

very, wierdly close to SNAFU

Jeff in Oklahoma said...

WE ARE DOOMED

Patrick said...

You can also lie about whether you are going to tax people with a mandate.

Matthew Sablan said...

CNN says mandate struck down.

Patrick said...

Allowing it as a tax is better than allowing it under interstate commerce, I suppose.

jrberg3 said...

So according to the libs we have a rational supreme court again?

phx said...
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edutcher said...

Ann, you disappoint me.

You're supposed to explicate all this stuff and you won't even tell us what you think the decision ought to be.

And you, a law professor.

Steve Koch said...

Patrick said...

"Law is not engineering."

Engineering relies on physics and science. The law, however much we may want it to be, is not science."

Lawyers have not take an engineering or scientific approach to the law not because it is impossible but because the vast majority of lawyers are not competent engineers and scientists.

"It would be impossible to write a Constitution that would produce predictable interpretation by people with differing priorities and interests."

You seem to be completely missing the point of what a constitution is all about. It is what it is, the meaning of the constitution is not changed by the priorities and interests of the judges interpreting it. There is a clearly defined process for modifying the constitution, it is not acceptable to change the meaning of the constitution based on the perspective of one judge.

Steve Koch said...

I thought the mandate would be rejected but not in a way that essentially leaves it in place (i.e. renames it to a tax).

I see Roberts' point, the legislation was passed by congress, it is up to congress to work it out. The country will pay a heavy price for the GOP incompetence in many senate elections (which permitted the dems to get 60 votes in the senate). Libby Dole, I blame this on you.

The GOP better figure out a way to restore federalism and the constitution as originally intended/written or we are all in a lot of trouble.

Patrick said...


You seem to be completely missing the point of what a constitution is all about. It is what it is, the meaning of the constitution is not changed by the priorities and interests of the judges interpreting it.


Well that may be how we wish it to be, but it never has been like that. Some clauses are vague, some don't appear relevant and many are subject to reasonable interpretation. Dissenting opinions are not a new phenomenon.