June 23, 2012

"Wearing Brave Face, Obama Braces for Health Care Ruling."

NYT headline. Article by Jodi Kantor:
Former advisers are emphasizing the many aspects of the bill that are not connected to the mandate, like the subsidies to buy insurance. Some aides even argue privately that losing the mandate could be a political boon, because it would rob Republicans of their core complaint against the law.
Yeah, that's what I've been saying. Plus, Obama would get a new issue: The Supreme Court has too many conservative activists and needs re-balancing; a Democrat should make the next appointment(s). And if the decision goes the other way, Romney will have the corresponding arguments: 1. We need a President who will sign the repeal of Obamacare, and 2. The Supreme Court has too many liberals who don't respect the Constitution and we need a conservative President to re-balance it.

Back to Kantor:

Before he became president, critics said that Mr. Obama’s greatest achievement was his own rise, that he played it safe — sometimes voting “present” in the Illinois State Senate — rather than taking risks for what he really believed....

In the White House, many of his top advisers, including Vice President Joseph R. Biden Jr. and his first chief of staff, Rahm Emanuel, counseled Mr. Obama against a sweeping health care overhaul. By summer 2009, with the country still stunned by economic crisis and Republicans falsely raising the specter of death panels, some aides practically begged the president to scale back, take interim steps and move on to other issues.

Mr. Obama did not relent...

As the brutal fight continued, the president sacrificed more and more in its name: an overhaul of energy and environmental laws, greater focus on economic issues, some of his own popularity and that of House Democrats, who eventually lost their hard-won majority....
Well, if he loses the Supreme Court case, he's got to pick himself up and look like he's ready to keep fighting. Both candidates will say they're the one to redo health care reform, and Obama is going to need to say he's the one we ought to trust. He can't be a sadsack about how hard he worked and now it's all lost. He can't be all: I could have listened to Rahm and Joe... I could have coasted a voted 'present'...
As he awaits the decision, Mr. Obama has no more knowledge of or influence on it than any of the other lawyers handicapping the odds in Washington bars and boardrooms.
The former law professor turned president is scathing about the argument that the mandate violates the Constitution, saying it has no merit whatsoever. 
Yeah, yeah, that is meaningless to me. (And I'm a law professor.) It's not that he unshakably knows the real constitutional law answer because he's a scholar. He's a partisan who's taken a position and he's saying things about the law in the advocate mode. Scathing... no merit whatsoever... That's just banal lawyer talk. It's a difficult question, and it can be answered, with eloquence and internal coherence, either way.

Have you ever noticed that I — a law professor, not a policy partisan — have never opined on the constitutionality of Obamacare. Glenn Loury pushed me to give an answer on Bloggingheads, and here's how I responded:



The commenters over there are so hostile to to me that one actually wishes that I would "go HIV positive or Full Metal Influenza." Challenged, he offers a longer list of diseases. A more normal person writes: "I can't believe what I'm hearing. Glenn asked Ann whether she thinks the Affordable Health Care Act is constitutional and she basically offers no opinion. She hasn't even blogged on the issue! Isn't she suppose to be a constitutional law professor?" The answer is yes, and that's precisely the point. I study the Court. I don't take the lawyer role and perform the theater of acting like there's a true answer and I know it. The Court will say what the law is. I'm about having a discussion of the topic.

ADDED: If I had to be a judge, I could do it. I can say without bullshitting what judicial nominees always say at the confirmation hearings: I can't tell you what I'd decide until I'm in the real situation of having responsibility for deciding a case. They might be bullshitting, but it's honestly the way I feel. I have too much respect for the process to register a vote for one side or the other in a difficult case. That said, some cases are easy. This one is not.

103 comments:

Mark B said...

"...Republicans falsely raising the specter of death panels..." Did they falsely raise the specter, or did they raise the false specter? Anyway, it is a good thing we know we don't have to worry about such things. Jodi told us so.

wyo sis said...

The constitutionality is determined by the court, but the Constitution is what it is and we can all read it. If we don't like what happens we can elect another person to appoint judges. This is really a pretty smart way to insure that people get what they want.

God said...

Well, Professor, I notice that you— a law professor, not a policy partisan — have never opined on the necessity of dealing with health care costs, which seems to me to be an even more pressing issue.

That's assuming, though, that you actually care about the fortune of your country. Perhaps you don't? Perhaps you can see no further than the clouded interpretation of the Commerce Clause that you and your judo-aristocratic accomplices have put into place.

In that regard, you've never-- as far as I can tell-- opined on the constitutionality of medical marijuana prohibition. So, basically, you just pass on the contentious Commerce Clause issues...

Maybe that's the right course, considering that no one really knows which way the SCOTUS's gavel is going to fall. But it doesn't prevent you from stating a preference, much less a preference backed by solid reasoning...

Then again, perhaps your vagueness is what puts you over the top of Volokh in those esteemed rankings??? They give specifics over at VC. Reasons. Evidence! Perhaps your preference of conducting a horse-shit-flinging forum over utilizing your legal expertise results in more visitors?

Perhaps you, Professor, are more artist-cum-entertainer than law prof, at least when it comes to your blog?

God said...

Here's some good opining on health care costs, btw...

AprilApple said...

It's funny how the left always whine about "death panels" and ignore all of our other arguments against the idea of tax payer funded government run health care.

edutcher said...

The flip side to Ann's opinion about the Court striking it down is that it would be the latest in a very demoralizing series of defeats for the Left and Barry in particular since, along with Stimulus, it's his signature piece of legislation and would truly force them to abandon all hope for this year.

Of course, striking down the whole thing, as opposed to just the mandate, might take some of the wind out of the Republicans' sails, although I'd say the argument to put more (perhaps a lot more) people of a given party's orientation on the Court might play better to Republicans even though it's been a stock appeal to the Lefties.

PS People wishing bad things on Ann for offering no opinion shows the Lefties have only gotten more insane since they got a government totally in line with their beliefs.

Before, they only hated people with opinions - like Darth and Rummy.

PPS God, with all his Lefty drivel, forgets the Second Commandment at his peril.

dreams said...

I think a ruling against ObamaCare will be ultimately perceived by the voters as yet another Obama failure. Regardless, I sure hope they rule against it.

God said...

@edutcher -

The Second Commandment?

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Dude, I am a total NRA-card-toting gun owner. I abide, man! God abides!

ambisinistral said...

The author of that piece is dreaming -- having all or part of Obamacare declared unconstitutional won't help him.

First off, nearly 70% of the public want it declared unconstitutional, so it is unlikely they would object to just that happening because it is too partisan.

An attempt by Obama to run on the promise of appointing more liberal judges so Obamacare would have gotten a ruling few wants hardly strikes me as being a winner.

Secondly, Obama doesn't even dare mention Obamacare on the stump because it is so unpopular -- how does that rising to the forefront of the campaign after a ruling help him? It doesn't.

Worse for Obama, the Supreme Court, via declaring all or part of Obama care unconstitutional, supports the public perception that the law was improper and illegal. That is going to tint how they view his invoking executive privilege in Fast and Furious. For him that's not a good direction for public opinion to continue turn.

Bender said...

the theater of acting like there's a true answer and I know it

Ever the relativist. The Constitution, per se, really doesn't mean anything. It is entirely malleable, so there is no truth regarding the Constitution.

Which, of course, IS taking a position. It IS opining on the constitutionality of the law. If the Court says its constitutional, then it is constitutional. If the Court says that the Constitution says that blacks are chattel property, then blacks are chattel property.

The hyper-partisan is more respectable than the relativist.

Michael K said...

"the clouded interpretation of the Commerce Clause that you and your judo-aristocratic accomplices have put into place."

So the Commerce Clause wasn't part of the Constitution for the last 200 years ? I'm not a lawyer but I seem to remember previous cases concerning that clause. By the way, Obama was never a professor.

There are good, rational ways to reform how healthcare is provided. And paid for. Obamacare is not one of them. All the mandates run the wrong way.

If the mandate alone is reversed, the law is unworkable but that may have been the intent. It's mildly amusing that the Obama supporters are so wedded to a concept that he RAN AGAINST. The mandate.

traditionalguy said...

Good point. Legal process determines what the law is as it is applied in the new case before the court...and there is always another creative set of never before considered facts coming down the road. ( or the SCOTUS will get impatient and throw in some fake facts in the case to make their Stare decisis apply better.)

Politically, ObamaCare was designed to install Death Panels and a full grown Nationalized Health/Death Care Bureaucracy ready to take over the day the rigged, sure fire destruction of all of the private health insurace industry by its Government mandated benefits and government controlled premiums had worked its Obama Magic. Presto -Chango!

Everybody knows that. Since Obama-Pelosi got started it's been like watching "unexpected" demolition derbies in each important aspect of American life.

Ignorance is Bliss said...

It's a difficult question, and it can be answered, with eloquence and internal coherence, either way.

But with honesty and coherence with the Constitution and the dictionary, only one way.

Saint Croix said...

Now somebody tell me why I love Squishy Althouse and Squishy Kennedy drives me up the fucking wall.

The hyper-partisan is more respectable than the relativist.

Yeah, but Althouse draws in the hyper-partisan like a moth to the flame.

I see Althosue as intensely feminine. She keeps her opinions to herself (like a nice girl!) to stimulate discussion. Or sometimes she says something naughty (like a bad girl!) to stimulate discussion. Althouse is a flirt and a tease.

She is, in my opinion, an awesome hostess.

You think so, too, Bender, or you wouldn't be at the party.

The Crack Emcee said...

Bender,

If the Court says that the Constitution says that blacks are chattel property, then blacks are chattel property.

And I'm coming to stay at your house,....

gk1 said...

No matter which way the SCOTUS decides I hope everyone can agree this is not how you create a durable, public policy. Ramming this through without one republican vote guaranteed it would unravel at one point. My liberal friends go mum when I ask them for any big policy this country has embarked on that did not have bi-partisan support. Obama's over reaching did him in. You can't do something this big with only one party. I hope the lesson has sunk in on the other side.

edutcher said...

Thou shalt have no other gods before me.

Apparently, God doesn't know the difference between an Amendment and a Commandment.

PS Croix, whatever Althouse is, squishy ain't it.

God said...

@edutcher -

Thou shalt have no other gods before me.

Yeah, and there wasn't an asterix(*) on it!

As in:

(*) Except for Ronald Reagan, J. Edgar Hoover, and whomever else edutcher shall bestow divinity upon, the good obedient Republican stalwart that he is....

But, then again, you know better than God, or at least you think you do... isn't that correct?

dreams said...

"She is, in my opinion, an awesome hostess."

I agree with her most of the time but not always or I wouldn't bother to read her blog.

Rob said...

Hold on. Isn't it Elizabeth Warren who wears a brave face?

dreams said...

"Hold on. Isn't it Elizabeth Warren who wears a brave face?"

A woman brave with high cheekbones, no. High cheekbones maybe but not brave enough to meet with real Native Americans.

kcom said...

You're a lot more polite than I would have been, Ed. I would've said God is a maroon. Commandments and Amendments - the difference should be pretty clear for someone with non-limited, that is total, omniscience.

Ann Althouse said...

"That's assuming, though, that you actually care about the fortune of your country. Perhaps you don't?"

This is one of the biggest bullshit approaches to argument: Asserting that the other person doesn't care.

I've been hearing that for 8+ years on this blog. If I don't write about something, I must not care. Maybe I'm not a caring person. That's typical bullshit used against women (and liberals).

I once had a student try that tack in derailing a discussion. He wanted to consume time on a side issue that entailed human suffering and when I insisted on continuing with the legal question as framed, he cried out: You don't care!

My caring (or not) is not relevant.

edutcher said...
This comment has been removed by the author.
kcom said...

"I don't take the lawyer role and perform the theater of acting like there's a true answer and I know it. The Court will say what the law is."

I guess I agree with Ann on this because of my reaction to something I read on Volokh the other day. They were discussing the reasoning of a certain case that was going to a higher court, maybe the Supreme Court (I can't find the exact post now). In reference to the argument, they said "I suspect that that's right," like there was an absolute answer to the question that someone else would reveal to them. Namely the higher court. It just struck me as oddly naive, in a way. It'll be "right" if the court rules that way, I guess, but if the court rules the other way the argument wouldn't be any less plausible. It just wouldn't have carried the day with a majority of the judges. So I guess I see things the way she does.

edutcher said...

God said...

@edutcher -

Thou shalt have no other gods before me.

Yeah, and there wasn't an asterix(*) on it!

As in:

(*) Except for Ronald Reagan, J. Edgar Hoover, and whomever else edutcher shall bestow divinity upon, the good obedient Republican stalwart that he is....


I never put an asterisk on the Word of God and nobody here has ever heard me deliver the mantle of godhood on any man.

There are some I admire, but I see the flaws in them - Reagan, especially, as I have noted on several occasions.

It would seem God has delusions of adequacy.

PS On the Morn of the great Annunciation, will the Professor be so kind as to give us her take on what the Court should (as opposed to what she thinks it will) rule?

How can we learn if we are not given examples?

Larry J said...

Of course, striking down the whole thing, as opposed to just the mandate, might take some of the wind out of the Republicans' sails, although I'd say the argument to put more (perhaps a lot more) people of a given party's orientation on the Court might play better to Republicans even though it's been a stock appeal to the Lefties.

A SC defeat of ObamaCare can also fire up the Republicans. Seeing as how the court is currently balanced, all it would take is one more liberal justice to tip the scales for years to come. Presidents come and go but SC justices (for better or worse) stay around for decades.

Several of the justices are old and/or in poor health. The very idea of Obama getting to nominate even one more justice to the Supreme Court is reason enough for me to wholeheartedly support Romney. While Romney wasn't my first (or second) choice for the Republican nomination, he has earned it. I'll cheerfully belly crawl over broken glass to get to the polls and vote for Romney, if that's what it takes.

dreams said...

"I'll cheerfully belly crawl over broken glass to get to the polls and vote for Romney, if that's what it takes."

Hell Yeah!

Saint Croix said...

But with honesty and coherence with the Constitution and the dictionary, only one way.

Not to find my inner squish or anything, but I'm with Althouse on this one.

Congress has an unlimited power to tax. Congress has an unlimited power to spend. Obviously, then, single-payer is constitutional. That's not even a close call.

What Obama and the libs attempted to do was something less than straight up socialism. One can argue, with perfect coherency, that if Congress has authority to impose socialist healthcare, they have authority to impose Obamacare.

The Republican complaint is not actually substantive. It's procedural. You're requiring Americans to purchase health insurance. Liberals are saying it's "like a tax." But it's a regulation, not a tax.

Why not do a tax? You have an authority to tax. What is this horseshit about forcing people to give their money to private enterprises? It's actually a bizarre argument the more you think about it.

What's equally odd, to me anyway, is the liberal gnashing of teeth over this. It's almost like they're worried that socialism is deeply unpopular with the American people or something. Like Obamacare is it, the only opportunity, and if it's repealed on procedural grounds the stars will never be aligned again.

Saying something is unconstitutional on procedural grounds has never been the end of the world. For instance, the Supreme Court said the death penalty was unconstitutional on procedural grounds. States that liked the death penalty went back and fixed their laws. No fuss, no muss.

I feel it's really dishonest for liberals to complain about procedural objections. Particularly when they're the ones who are so fond of "substantive" due process, and unelected courts dictating ideology to our people.

Roe v. Wade could have been decided on procedural grounds. For instance, the Supreme Court could have said that if the state interest in abortion is homicide, then the states need to go back and bring their abortion, death, and homicide statutes into alignment. That's a procedural complaint and it can be fixed.

For conservatives to do an outrage that even approaches Roe v. Wade, we would have to strike down Obamacare, and then write a new healthcare plan for the whole country. And, oh yeah, kill some innocent people while we do it.

john said...

"Wearing a brave face, Obama ....."

This came to mind right away.

john said...

I lied. I was thinking of this first.

God said...

If I don't write about something, I must not care. Maybe I'm not a caring person. That's typical bullshit used against women (and liberals).

I must throw down the divine white glove here. You mischaracterize what I said. I never claimed that because you don't write about something, you don't care. Instead, I claim that from a high-level view of your writing and from your general attitude, one can reasonably ascertain that you don't care about the issue of health-care costs. I am not so pedantic-- indeed, I am insulted at the accusation!-- to think that you must write about something, lest you be justifiably accused of not caring about that something. And your resorting to the oft-repeated women and liberals argument is pathetic, a phantom line of rhetorical argument! Are you a womanly liberal whiner? No, I think not... In fact, I know not!!!

All I suggest, dear Professor, is that you consider the fact that while Obamacare might have been-- or might not have been!-- politically advantageous, it is nonetheless an attempt at a solution to the health care costs problem. Constitutional? You obviously think not! Maybe it would be less so if you would take a stand against an all-encompassing interpretation of the Commerce Clause? Or do you honestly believe that your #1 lawprofblog ranking carries no weight?!

Neigh, it does. Your blog has weight and therefore your opinion does too. As a #1 blogger, you cannot claim indifferent mindless neutrality. You can claim cruel neutrality, but if you do then readers like me will insist that you live up to the bar you have set for yourself, and that you bring all your talents and education and professionalism to the most severe problem at hand.

A little more Thomas Jefferson, a little less Barnum & Bailey... is that too much to ask, dear Professor?

Old Dad said...

God made a Sarah Jessica Parker joke:

"Neigh, it does."

God said...

@eductcher -

It would seem God has delusions of adequacy.

Indeed! Would you want to live in a universe where God did not???!!!

Darrell said...

Another fucking Lefty thinking he is God.

And proving that he isn't.

Jane said...

What drives me batty about this is that a voucher system funded by an income tax bump would have been clearly constitutional, but the Dems wanted to pretend that healthcare was "free" by funding the whole thing with a hundred hidden taxes and minimizing costs by assuming that employers would compliantly continue to offer health insurance to their employers.

I'm also getting really tired of pundits declaring that any S.C. ruling they don't like is hyper-partisan. But, come to think of it, I've really only read this in Ann's links.

Seeing Red said...

Via Drudge:

WATCHDOGS: Solons worry Medicare billions going to Castro, Cuba

Seeing Red said...

-- assuming that employers would compliantly continue to offer health insurance to their employers. ---



It was specifically designed so they'd dump their employees and our benevolent rulers would be the last resort.

Coketown said...

My caring (or not) is not relevant.

Like the tortoise-mountain in "The Never-ending Story," Ann doesn't even caaaare whether or noooot she caaaaares.

Regarding the article: fluff, stupid, awful. It's the counsel of a teenage girl explaining to her dopey BFF that the date may have ended up a bruising, mortifying disaster, but think of all the neat things that happened! And isn't Mitt such a blockhead? Raising specters of lame! lol. Oh, and you know the part where, like, Obama said his entire healthcare law would collapse without the individual mandate? That's so totally the part of the date that BFF Jodi neglects to ever mention. Ever. You know, like the part of the date where you went to use Dreamboat Johnny's parent's bathroom for what you thought was just a quick number 2 but turned into a turbulent torrent of porcelain-spattering diarrhea and, oh yeah, the toilet backed up and the plunger is downstairs.

Yeah. "The healthcare law will unravel without the individual mandate" is that part--that lingering, simmering, stinking mess ignored behind the closed door of history, waiting for a plunger called A Second Term to deal with it. Unfortunately for Obama, he's got a lot more toilets backed up with shit that he has plungers.

Seeing Red said...

....Instead, I claim that from a high-level view of your writing and from your general attitude, one can reasonably ascertain that you don't care about the issue of health-care costs...



"High-level view?"

Paco Wové said...

"God", you are apparently pretty new around here, so you probably aren't familiar with some of the jargon and shorthand phrases that are commonly used. These can help the commenter add pith and gravitas to comments, with little added weight. For instance, in your case, your comments on this thread could easily be reworded as the quick and simple phrase:

"You! A Law Professor!"

And everybody would know what you meant. Much simpler, less typing, less scrolling.

In fact, you could reduce it even more:

Y!ALP!

HTH. HAND,
P. Wové

God said...

@Paco -

Oh, that's nice... a nice demonstration of the contempt that the Althouse comments sections offers for those who don't toe the groupthink line...

I bring three thousand years of beautiful tradition, from Moses to Sandy Koufax... and all you bring is snarky contempt!

DCS said...

Is Jodi Kantor a White House staffer? I've not seen a more hagiographic piece in a while. He was a lecturer, not a professor. I know the U of Chicago has retroactively tried to spin his status as a "professor", but if he was, why didn't he have the title? Obama is a phantom. A spook. Anybody read "The Human Stain" ?

Paco Wové said...

Nothing worse than a whinging God. "Whaaah! Some mortal is being meeeaaaannn to me!" C'mon, God, man up. Get smitey on my ass!

Seeing Red said...

Dude, you're presenting a pic of an older gentleman whose generation loved the haze and your screed whines about medical marijuana.

Correlation isn't causation but geez, groupthink goes both ways.

Old Dad said...

God sayeth to Paco:


"I bring three thousand years of beautiful tradition, from Moses to Sandy Koufax... and all you bring is snarky contempt!"

You should smite him, or at least turn him into a pillar of salt.

The first online smiting! "Neigh", though I whinny through the valley death, I shall fear no snarking.

Dante said...

That's garbage, and you know it. In a loury blogging heads you were specifically asked about this subject. Your response was that the reason it was pushed as a mandate with penalties, which yields constitutional questions, as opposed to a tax, is that a tax on young people would never have passed. You know the idea of forcing people to form commerce was never what was in the constitution, and are playing games for reasons I can only imagine.

You like it and you want it. Imagine trying to pass anything like this after the constitution was ratified. There would be no United States. The states would ALL have seceded.

edutcher said...

Apparently, if God is a Lefty, he hasn't got much in the way of aspirations.

Lionheart said...

Old Dad, you made me laugh out loud.

tomlappin said...

"We need a President who will sign the repeal of Obamacare"

No, WE need a president who isn't a n** (you know what) who is creating a welfare state and destroying this great country by the minute, thats what we need.

Old Dad said...

Lionheart,

Thanks, but be careful. I'm just horsing around, but God may not have the best aim. I just heard some serious wailing and gnashing of teeth from the neighbor.

Paco, are you good?

Lionheart said...

Not to fear Old Dad, all well here and believe the real God would enjoy horseplay in front of a pretender.

Harold said...

There are all kinds of ways to bring down health INSURANCE costs, most of which involve states doing LESS regulating.

For example, let's take NY. Chiropractic coverage is REQUIRED on health insurance policies written in NY, home to many colleges of quakery, um, er, chiropracty. The percentage of dollars that go into the pockets of quack practitioners is a state secret; at least, I've never been in a forum where the question could be answered.

Up to 30 days inpatient treatment for alcohol and substance abue is required coverage. "Oh, but it only addds a few cents to each policy every month!" is the cry in support I have heard. Yep, only a few cents of my money to send winos and druggies to a 30 day program with a treatment failure rate that approaches 100%.

Another quick way to reduce MEDICAL costs- reform malpractice laws. When an OB has to spend the first quarter-million he takes in on malpractice insurance premiums, that ensures an increase in health care costs. Assume 4 patients an hour during an 8 hour day, 200 working days a year. That's $39. a visit for malpractice premiums before the patient even begins to pay for actual health care.

Saint Croix said...

"I bring three thousand years of beautiful tradition, from Moses to Sandy Koufax... and all you bring is snarky contempt!"

3000 years? Even the young Earthers count better than you do.

Seeing Red said...

Doesn't CT require toupee coverage?

AllieOop said...

God, forgive them for they know not what they do.

Seeing Red said...

That's true, they never look to Europe or the other Anglosphere countries to see the mistakes made and learn from them.

Rose said...

Obamacare is a horror. They pushed through a bill that they had not read, and no one knows who wrote it, much less what was in it.

The guy from Whole Foods had it right (and he got attacked for it).

There's nothing to be proud of in this thing for Pelosi, Reid, Obama and his whole nasty stable of obedient Democrats. If the republicans/conservatives can't drive this thing back down his throat - what can we say, there'll be no excuse.

You do not pass a bill like this that you have not read, considered, tested, studied, meditated over.

No matter what party you are from, if you do this, you should be ousted from politics for the rest of your natural life, and that of your yet unborn grandchildren and great grandchildren. Forbidden to hold any office of any kind anywhere in any planet in any universe. Period.

edutcher said...

We know exactly what we do.

It's Oop that's fooling him/her/itself if he/she/it thinks blasphemy carries no punishment.

Paul said...

Bad news comes in threes.

First will be Holders contempt vote over Fast & Furious. Next will be Obamacares dismissal by SCOTUS. Third will be the newest unemployment figures at end-of-month.

SCOTUS ditching Obamacare will just be another failure for Obama just as his decision to withhold documents with 'executive privilege' will be seen as him hiding damaging facts.

Barry Dauphin said...

So the constituional lawyer president wastes time and political capital to ram down Obamacare in the middle of the worst recession in most folk's memory and this goes on to become quite unpopular and the Supreme Court says BTW it's also unconstitutional and that is good politically for Obama? I don't think so.

AllieOop said...

Preach it Brother Eddy! Smite thine enemies oh lord! Drink that poison and wrangle them snakes!

Krumhorn said...

Well, Professor, I notice that you— a law professor, not a policy partisan — have never opined on the necessity of dealing with health care costs, which seems to me to be an even more pressing issue.

One would think that even God would divine that whatever anyone may think about "dealing with health care costs" should have vanishingly little to do with the constitutional analysis of Obamacare. And just because she chooses to duck the topic doesn't mean that she doesn't care any more than it means that calling it Obamacare means that Obama cares.

Praise be to God.

yashu said...

I see a new troll dropped in @8:52 (whether a moby or an ostentatiously self-announcing racist, a troll). Wish you'd smite such creeps, God.

Mark said...

Don't argue with the Moby with the psychological problem.

Saint Croix said...

No, WE need a president who isn't a n**

Damn these asterisks, anyway!

A nip? A nun? A nog? A nap? A nin? A nat? Are these even words? A nam? Obama's a war. He's a hopeless lost quagmire, stuck in the 1960's. Yeah, that sounds about right. A nab. That's a snack, short for nabisco, we want to stop for some nabs. A nad. That's a testicle, short for gonads. Are you calling our President a testicle? That's rude.

A nit? A nag? He is a fucking nag. I agree! A naif? That's four letters. A nig? Ooo, that's racist. Are you a fucking racist? How boring. Or it's short for niggardly? President Obama, who won't spend any money. Yeah, that's wrong. A nan. A nay. A ned. A net. That doesn't even make sense. A net? Why would you call him a net?

A nil! A zero! Yes! Why don't you just say zero. Go on, you can say it. Don't be so damn constipated. Zero. Zero. Zero. Nix. I knew a Nix in law school. She was way hot. Nap. I suggested nap before, like he's a sleepyhead. But now I'm thinking of nap like nappy-head. Are you calling him a nappy-head? 3-letter words are so offensive! Nib. Nul. Nub. Nor. Not. He's very negative. Are we ready for President Obama to go negative? Now. This is like scrabble, if I wasn't trying to get any points.

Nod. Now he's affirmative. Nod now. Noc. We need to get the noc list. That's a mission impossible reference. Noo. Nob. That's if you're rich in Britain. Nob Hill. Would I kick ass in 3-letter scrabble or what?

What the fuck are you saying, anyway? You give us one letter and two asterisks? That's not even fair.

wv: itslame

Mark said...

Actually, don't argue with either of them. I recommend the second Moby's comments be deleted as a matter of good hygiene.

AllieOop said...

He's a nom, nom nom yummy face, says the Zombie. Of course I would never want our Presidents face to be eaten off.

Lem said...

So the constituional lawyer president wastes time and political capital to ram down Obamacare in the middle of the worst recession in most folk's memory and this goes on to become quite unpopular and the Supreme Court says BTW it's also unconstitutional and that is good politically for Obama? I don't think so.

The professor is just being passively professional about Obama... its difficult like she says.. but she does the best she can.

yashu said...

Heh, St. Croix. I'll go for nil, nag, and nut.

Tim said...

I hope Obama coughs up a hairball when the Supreme Court overturns all of his misguided ACA.

Cedarford said...

dreams said...
I think a ruling against ObamaCare will be ultimately perceived by the voters as yet another Obama failure. Regardless, I sure hope they rule against it.

===========
Thats where I think Althouse is wrong, viewing a defeat in SCOTUS as a plus for Obama's campaign because it will energize believers in The One...and make all the Conservatives and Tea Party People less concerned about the election.

First and foremost, it will be a repudiation of Obama and the Pelosi Democrats from overreaching and trying to have an all-powerful Federal Government running what the State and each individual does. It says they are dangerous and should not be put in power again.

Second, it strikes right at the heart of what is supposed to be Obama's greatest strength - the academic mastery of Constitutional law - by a man so briliant he was named President, not just a mere Editor - of Harvard Law Review.

Umm...maybe he ISN'T so brilliant! Maybe those long suppressed grades and LSATs and SAT scores will come out. Maybe voters will question how knowledgable a law lecturer that only lectured law students in one class and never did any academic work or tried for tenure actually is.
Remove that from Obama, and the only core Obama competency you have, is a guy that gives great Preacher-speak from a Teleprompter (and smart enough to use Axelrod's cunning white writers paid to put words in black pol's mouths.)

Saint Croix said...
This comment has been removed by the author.
Coldstream said...

I don't see how it could be a political boon to Obama and the Dems. Here's his signature issue that he spent the majority of the first two years of his administration and most of his political capital on,and as some say to the detriment of paying attention to jobs and the economy, and to come away with nothing would strengthen his leadership position how?

Where could he argue he could do better a second time around? He likely won't have a supermajority in Congress to ram bills through, and do people think a fight over a single-payer model, which is what truly would excite his base, would be any easier or realistic?

Chip Ahoy said...

Saint Croix, that was very good. You asplained that real real good.

I must have that ADHD thing or whatever it is. While you guys were talking about this I went out and in one minute this chick goes take our picture and I go okay and turn around to take it and the guy lifted up both girls. They look like twins and I'm all

DUDE, I did not realize you were going to go all carnival like that. Which evoked broad smiles and I got great shots. I told the twins I wouldn't use the photos, so too bad.

Then in one minute this guy goes Dude, Dude, Dude, can you take our picture? Like reflect the mountains? He pointed to a glass wall and our reflection with mountains in the background.

Then I'd be in it.

Oh.

Okay, forget it.

Hang on.

Take off your sunglasses, you look like a bug.

Robert Cook said...

"It's funny how the left always whine about "death panels" and ignore all of our other arguments against the idea of tax payer funded government run health care."

It's funny (not) how the right always whine about Obamneycare is "taxpayer funded government run health care" when it is no such thing.

Robert Cook said...

"Politically, ObamaCare was designed to install Death Panels and a full grown Nationalized Health/Death Care Bureaucracy ready to take over the day the rigged, sure fire destruction of all of the private health insurace industry by its Government mandated benefits and government controlled premiums had worked its Obama Magic. Presto -Chango!

"Everybody knows that."


Funny (not) how "everybody" so often "knows" that which it isn't true.

It's perennially one of the least salutary aspects of humankind.

Seeing Red said...

Obamacare is discriminatory, it was going to tax tampons.

MayBee said...

s Jodi Kantor a White House staffer? I've not seen a more hagiographic piece in a while

Jodi is very protective of the Obamas. She wrote the piece with Tribe saying Obama was too special to do regular work at Harvard Law. She wrote a big piece about the Obama's love story. She wrote a book about Michelle being the soul and wisdom of the current White House. I believe she is writing or did write a book about the Obama's relationship. She wrote this article.

Yet she is a journalist.

Patriot4Freedom said...

Obama himself admitted to desiring a single-payer, government-run national healthcare system in a speech to one of his leftist groups in 2007. But he admitted that a single-payer plan wouldn't pass with the majority of Americans. He said something to the effect of "we have to do it in stages."
Opponents of "Obamacare" who believe that it is designed to ruin our private healthcare system know this: That by offering government-run exchanges, paid for by tax dollars and employer fines, in lieu of existing employer-provided health insurance, they will drive private health insurers out of business, since they cannot compete with the government's subsidized plans. Some smaller private firms will remain, but they will only offer policies for the wealthiest of individuals.
A few honest "progressives" have actually admitted in various media that this was their intent, from the moment they first advanced Obamacare.
To deny the existence of these widely reported facts and admissions makes one either a rabid partisan without any fidelity to truth, or a very credulous naif.
Neither is likely to lead to any responsible answers to address our escalating healthcare costs.

Patriot4Freedom said...

Obama himself admitted to desiring a single-payer, government-run national healthcare system in a speech to one of his leftist groups in 2007. But he admitted that a single-payer plan wouldn't pass with the majority of Americans. He said something to the effect of "we have to do it in stages."
Opponents of "Obamacare" who believe that it is designed to ruin our private healthcare system know this: That by offering government-run exchanges, paid for by tax dollars and employer fines, in lieu of existing employer-provided health insurance, they will drive private health insurers out of business, since they cannot compete with the government's subsidized plans. Some smaller private firms will remain, but they will only offer policies for the wealthiest of individuals.
A few honest "progressives" have actually admitted in various media that this was their intent, from the moment they first advanced Obamacare.
To deny the existence of these widely reported facts and admissions makes one either a rabid partisan without any fidelity to truth, or a very credulous naif.
Neither is likely to lead to any responsible answers to address our escalating healthcare costs.

tim in vermont said...

Then: Obama thought that "fairness" was more important than the economy, so he rammed through ACA.

Now: The economy still sucks.

Now: Obama thinks that the "fairness" of the tax code is more important than the economy, so he opposes extension of the tax cuts even as we are dipping back into a recession.

I am not sure what definition of blind ideologue let's Obama escape the label that does not do violence to the language.

tim in vermont said...

My opinion? Since you asked, and since I am not a professional....

Obama suffers ADHD. If you have this, and a fairly high IQ, you can do a pretty good imitation of a genius in short spurts. Making connections that others just don't see. But then, when it comes to doing the real work of implementing these ideas.... Understanding the individual ramifications, getting down to the nitty gritty, well, somebody else better do it, and the "brilliant" insights may not hold up in light of *all* of the facts.

Steve Koch said...

"If I had to be a judge, I could do it."

The question is whether Althouse would be a good judge. It seems doubtful. For example, Althouse strongly supports affirmative action even though the 14th amendment clearly states that government cannot "deny to any person within its jurisdiction the equal protection of the laws.". Affirmative action clearly denies white males equal protection under the law since affirmative action treats those who are not white males preferentially and discriminates against white males. Clearly that is one chunk of the constitution Althouse does not understand.

Another example demonstrating that Althouse has a poor understanding of the constitution is abortion. Althouse agrees with Roe v Wade that there is a constitutional right to abortion. This is ridiculous. There is no explicit rejection or acceptance of abortion within the text of the constitution but the idea that the founders back in the 1700's would have been OK with abortion is absurd.

Roe v Wade is a prime example of judicial activism, which goes completely against the grain of the constitution. Althouse is OK with judicial activism if it produces her desired result. Althouse is OK with Roe v Wade because she agrees with the politics of it. If she understood the constitution, she would have rejected Roe v Wade because she would know that law must be created by the legislative branch, not by judges.

Finally, Althouse thinks there is no definitive meaning to the constitution, that what it means depends on who is writing the opinion. This replaces rule of law with politicized chaos.

Althouse is a nice lady with a good blog but she would be a disaster on the supreme court because she doesn't understand the constitution.

Saint Croix said...

On another thread, I write:

"I'm up to here with these Ivy League intellectuals who refuse to feel anything because their institutional authority is their primary concern."

On this thread, Althouse writes:

This is one of the biggest bullshit approaches to argument: Asserting that the other person doesn't care.

Of course she's talking to the false god, but she's refuting a point I made, that Scalia doesn't care.

I actually think it's highly likely that abortion upsets Scalia so much, he shuts down his brain and refuses to think about the infanticides. Thus his rather stupid comparison of abortion to bigamy in Casey.

In his Carhart dissent, Scalia writes this:

I am optimistic enough to believe that, one day, Stenberg v. Carhart will be assigned its rightful place in the history of this Court’s jurisprudence beside Korematsu and Dred Scott. The method of killing a human child–one cannot even accurately say an entirely unborn human child–proscribed by this statute is so horrible that the most clinical description of it evokes a shudder of revulsion.

Think about Korematsu and Dred Scott. Those are two cases where humanity has been denied. Logically, where this would take you is that a baby who is outside the womb is clearly a person entitled to the equal protection of the laws. Isn't she? But to write about that is to broach the subject of infanticide. And that is a subject that upsets and infuriates Scalia so much, he refuses to go there. He abandons the subject. The obvious pro-life legal arguments are not made. Scalia does not fight for us to see, to recognize, the baby's humanity.

I believe a bleeding heart liberal is vulnerable to an emotional appeal that killing a baby outside the womb can, should, and has been defined as murder for centuries. And even if he's immune to it, our people need to hear it. Scalia needs to make that argument and he fails, dismally.

Six paragraphs later, Scalia writes...

While I am in an I-told-you-so mood, I must recall my bemusement, in Casey...

Six paragraphs after describing his "revulsion" at infanticide, Scalia is now describing his "bemusement." I personally have trouble gear-shifting from revulsion to bemusement.

Scalia has told us that Carhart is like Dred Scott and like Korematsu. Are you bemused at slavery, Justice Scalia? Are you bemused at the concentration camps that Korematsu was placed in? Did anybody describe their "bemusement" in those opinions?

I call Scalia out on this because he's talking about the Supreme Court, yet again. He's talking about Justice Kennedy. His mind is focused on his institution and all the damage that abortion has done to his institution. Just like he focused on Justice Taney's sad portrait in his Casey dissent.

Okay. But an overwhelming number of Americans know that the real issue of slavery was not that it embarrassed the Supreme Court and made Justice Taney feel sad. Scalia's focus is misplaced. "This is making us look bad" is not an effective critique, either legally or morally.

Why accept Kennedy's mindset, that abortion is all about appearances? Maybe there actually is a homicide issue here, Scalia, and maybe you ought to think about it. Because homicide has legal implications, does it not?

NotquiteunBuckley said...

“There are always people in the academic world who think about clever arguments that one might make here and there,” one senior official said. “But all of those arguments were thoroughly analyzed, vetted and discussed.”

-WaPo "Obama's legal tactics seen as possibly hurting chances to save health-care law"

So even if Obamacare is overturned and Romney wins this November, Obama and his brain-trust made no error of any kind.

Racist.

Tim said...

"I believe a bleeding heart liberal is vulnerable to an emotional appeal that killing a baby outside the womb can, should, and has been defined as murder for centuries. And even if he's immune to it, our people need to hear it. Scalia needs to make that argument and he fails, dismally."

I want to believe that too, but you are wrong.

Abortion is a sacrament for the Left. Arguments against its immorality and inhumanity, especially from someone like Scalia, fall on death ears.

There's no doubt Scalia knows this.

Tim said...

"It's funny (not) how the right always whine about Obamneycare is "taxpayer funded government run health care" when it is no such thing."

Explain for us, please, how the subsidies available for health care policies up to 400% of FPL are paid for, if not from the taxpayer?

madAsHell said...

Obama suffers ADHD.
...and a fairly high IQ.

He doesn't have ADHD, nor a high IQ.
Obama suffers from a fawning MSM.

Obama should have been vetted as the crack pot he is. His campaign should have fizzled faster than Harold Stassen.

Instead, he was coddled by the big news organizations, and presented as the messiah.

KJE said...

Assuming SCOTUS strikes down the mandate; if President Obama were to use that issue to demonize SCOTUS and argue for the opportunity to appoint more justices in a second term , I think that would go over with the public about as well as it did when the Democrats doubled down on public employee unions in Wisconsin.

And I'd guess it would work about as well as it has gone lately in Wisconsin. The voting public would see through that ruse, and very likely, Romney could easily exploit that action to his advantage.

Tim said...

"Obama should have been vetted as the crack pot he is. His campaign should have fizzled faster than Harold Stassen.

Instead, he was coddled by the big news organizations, and presented as the messiah."


Sure, but the ultimate responsibility lies with the voters.

Many of us saw through the charade; the information was readily available; it did not require unprecedented intelligence or ability to reason to reach the conclusion that the least experienced person ever nominated by a major political party for president, with an ideology markedly to the left of the nation's political values, would be an utter failure.

madAsHell said...

I bring three thousand years of beautiful tradition, from Moses to Sandy Koufax...

Yeah...but can you lick your own balls?

Tim said...

"Many of us saw through the charade; the information was readily available; it did not require unprecedented intelligence or ability to reason to reach the conclusion that the least experienced person ever nominated by a major political party for president, with an ideology markedly to the left of the nation's political values, would be an utter failure."

In fact, it was utterly predictable.

No one should be surprised he's failed.

rhhardin said...

The court is the health care death panel.

Jeff in Oklahoma said...

Professor, having perused your blog for quite time, I'd wager you'd be a very thoughtful Justice.

Conservatives tend to think the Wickard precedent is terrifying, while the liberals love it.

Generally, wouldn't a "conservative" judge tend to follow precedent? Why then does Scalia think Wickard should be overturned, that strikes me as more radical?

What say you?

Jay said...

Plus, Obama would get a new issue: The Supreme Court has too many conservative activists and needs re-balancing

A majority of voters do not trust Obama's judgement.

I hope he makes that argument.

cubanbob said...

Robert Cook said...
"It's funny how the left always whine about "death panels" and ignore all of our other arguments against the idea of tax payer funded government run health care."

It's funny (not) how the right always whine about Obamneycare is "taxpayer funded government run health care" when it is no such thing.

6/24/12 2:17 AM

So we are to ignore the additional taxes and penalties imposed by the ACA and ignore the accounting gimmick used to not call it a tax? Gee Bob, you used to be able to make better arguments than that.

cubanbob said...

I bring three thousand years of beautiful tradition, from Moses to Sandy Koufax...

He forgot to include Ayn Rand and Milton Friedman as part of that beautiful tradition.

cubanbob said...

Another example demonstrating that Althouse has a poor understanding of the constitution is abortion. Althouse agrees with Roe v Wade that there is a constitutional right to abortion. This is ridiculous. There is no explicit rejection or acceptance of abortion within the text of the constitution but the idea that the founders back in the 1700's would have been OK with abortion is absurd.

Steve unfortunately until such time a fetus is declared to be human our hostess is right. The constitution is a document of enumerated powers and limits the federal government and it also has the clause that states those powers not given to the federal government are reserved to the states and the people. As it stands when it comes to abortion only one party is considered a person, the woman and not the fetus. And since ultimately the constitution is supposed to be a limit on government, anything not explicitly given to government is presumed to be given ultimately to the individual person. Eventually there will be one or more states granting personhood to a fetus and then the abortion issue will come to a head.

Bender said...

Generally, wouldn't a "conservative" judge tend to follow precedent? Why then does Scalia think Wickard should be overturned

Because fool and reactionary activist that he is, Scalia actually thinks that Supreme Court decisions are not themselves the Constitution, but that the "Constitution" is THE CONSTITUTION itself. But, of course, the Court itself has repeatedly recognized that it is itself not the Constitution, nor a never-ending constitutional convention, such that its prior decisions are sacrosanct, and it has instead overruled its prior precedents repeatedly as being contrary to the real Constitution.

It is rather tiresome, is it not, to have people come and (wrongly) define what a "conservative" is and then snarkly insist that they conform to that erroneous description.

If eternal adherence to precedent, no matter how contrary to truth and reason, is "conservative," then I guess that Scalia is no conservative. BFD.

Almost Ali said...

All I have to say on this or any other subject is... that's it's long way between cafes these days. So long that I've taken to bringing a change of clothes, food, matches for a campfire, a compass, maps...

Lockestep said...

Jeff in OK, there is a difference between Conservative and Originalist. The hypothetical Conservative may see Wickard as binding since the court has applied it for more than 70 years. The hypothetical Originalist may consider the Founders never intended the Federal government to dictate crop selection to farmers.
I figure to be disappointed by the ruling no matter which side "wins". This was a wonderful case for overturning Wickard, and declaring truly personal activities are beyond the Federal remit. Anything we do or do not do can be read as affecting interstate commerce. That cannot be the intent of a design of limited power.

Patriot4Freedom said...

Jeff in OK - - Conservatives think Wickard is TERRIBLE, not terrifying, precisely because it overturned 150-odd years of precedent, and sets the commerce clause on its head. The fact it has wrongly been allowed to stand for 70 years does not grant it higher precedence in the minds of most conservatives.

Generally, a "conservative" judge such as Scalia thinks that cases such as Wickard that overturn both reason and long-established precedent should themselves be overturned.

It's no surprise why liberals like to characterize that as somehow being more radical, or the act of an "activist court", and why they love to cite it.