And I am not certain that the short-term gain of striking down some or part of the ACA (embarrassing President Obama even to the point of affecting the election) is the kind of judicial end-game this court really cares about....
That's why I suspect that even if there are five justices who believe the individual mandate is unconstitutional, there probably aren't five votes to decide that question in this instant....
September 28, 2011
"I remain unsure that there just are five justices at the high court eager to have the court itself become an election-year issue.."
Says Dahlia Lithwick:
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106 comments:
Profiles in Cowardice.
oh, Dahlia, Dahlia, Dahlia . . .
So smart, so gifted, so . . . dumb.
Wishful thinking from a far left writer masquerading as a "thoughtful analyst". But do not fear - not of word of it will come true.
Really, Ann - why do you link to someone so often discredited she is rarely referenced anywhere but the left wing media and wet blogs?
Sigh . . . . such talent . . . . . .
Sad.
She's right, Anthony Kennedy is not going to overturn Obamacare.
I think she's right but because the issue decided will be something like standing.
Which justices granted cert?
You can almost smell the desperate hope in that reporting, there.
Kennedy, when he strays from Republican orthodoxy, usually does in the libertarian direction.
Those thinking he's a vote for Obamacare are delusional.
Remarkable statement. Even if its unconstitutional they'll set the constitution aside for the sake of an election.
Heck, before you know it, they'll suggest we just cancel elections or something.
Oh, wait...a Democrat has already suggested that. Never mind.
I bet they take the case and uphold the mandate. None of this standing business. We'll get an answer.
Which will help and not help Obama.
She may be right, although I suspect Dahlia may want to plant that seed.
Kennedy, when he strays from Republican orthodoxy, usually does in the libertarian direction.
Those thinking he's a vote for Obamacare are delusional.
What about Kelo? Not very libertarianish.
Ann may be right too, unfortunately.
I hope the Supremes strike this thing down and put some teeth in the limitations of the Commerce Clause once more.
But I swear I recall some standing issues with this law coming through the courts and I just don't see the Roberts court ruling on the merits when they could punt. Roberts will try very hard to get unanimity here. Harder than usual.
I don't think upholding the law helps Obama. I don't really think Obama can be helped. His own campaign narrative sunk him.
My understanding of the law is that it has no clause to keep the good parts if courts find any bad parts. There's a concise word for that, but it's late. That could be an interesting twist.
Just imagine 50 years from now what the government will be mandating upon it's citizens. I have no children, but if I did, I'd be ashamed of how little of what I inherited, I held onto for them.
And in return for all that is sacrificed to the dictates of some of our most despicable citizens who run congress, do you really think the future Americans will inherit a better nation, they will be stronger people, they will be free and their lives will be full? I don't. We are the ones who will be despised in the future; the boomers who squandered it all for an easy life for ourselves and our inexhaustible, pathetic, narcissistic guilt.
The Judges read the papers too and all that, but are they really going to duck a constitutional issue relating to a matter of high importance.
Lithwick would, if she were on the court.
Tells you quite a bit.
Fred4Pres said...
"She may be right, although I suspect Dahlia may want to plant that seed."
She's planting on concrete. To the Justices she is a moth outside the window battering at the glass to get to the light.
I think they will take the case and they will not uphold the mandate. Why? Because it is unconstitutional. Period.
Well, that would be fine for folks in 26 states, but how on earth can a national insurance plan work when it operates in a minority of states?
There is no chance they will bail -- that would be worse politically than any decision would be.
Kennedy, when he strays from Republican orthodoxy, usually does in the libertarian direction.
More worried about Scalia. HE voted to uphold Raich, which is the closest on point.
AA says-
" bet they take the case and uphold the mandate."
Reasoning?
wv:"verte". Appropo here
Seven Machos said...
I don't think upholding the law helps Obama.
I tend to agree.
My understanding of the law is that it has no clause to keep the good parts if courts find any bad parts. There's a concise word for that, but it's late. That could be an interesting twist.
Severability clause.
What a terrible, horrible sorry, despicable mess. What we are saddling future generations with - at every level.
A government out of control and a world gone mad.
There's no HOPE left. It's become a four-leter word.
If there's even one iota of a glimmer of a possibility that they will allow "Obamacare" to stand, we are doomed.
And every person who voted for the criminals who passed it - without reading it, without knowing what was in it, and without considering what they are doing - should be hung in the town square, and damned for all eternity. For bastardizing a nation, and a system as fine as what we had..
In a world that is moving at high velocity, with competitors at or above that fast velocity of decisions and events our economic competitiveness rests on an 18th century legal system moving at a glacial pace. That will take 2 1/2 years, it seems, to determine if a major law helping to paralyze our economy and stifling job creation..is Constitutional or not.
Of course, it makes sense. In the hot humid summer and early fall, it is hard to keep ones wig properly powdered, and the cities are full of pestilence and miasma and dense with flies feeding off the horse shit.
Article I Section 8 Clause 3 of the Constitution of the United States.
A most supremely, shovel ready.. loophole for the Supremes to let that abomination stand.
I'm with the professor on this one.
The scope of the commerce power depends on the interpretation of “commerce”. If construed sufficiently broadly, the commerce power can give Congress the power to legislate in many areas that otherwise would fall within the scope of the states’ police power. The Constitution does not define the term and the Supreme Court therefore has great flexibility in deciding cases involving the Commerce Clause and enormous power to influence the balance of state versus federal power.
The election (Suprmes not wanting to overtly seem affecting the outcome) might be icing on the cake.
MikeinAppalachia said...
AA says-
" bet they take the case and uphold the mandate."
Reasoning?
_________________
Here's the reasoning I could see...
ObamaCare proponents are likely to say health care is unique, unlike most other goods and services.
A mandate to buy most other products and services is NOT "necessary" (as in "necessary and proper") to effectuate regulation on sellers, because there are no similar countervailing free-rider or adverse selection issues affecting those markets. A mandate on consumers isn't "necessary" to regulate the sellers of most goods and service.
ACA proponents would argue that the health insurance purchase mandate on consumers IS "necessary," for instance, to impose the "no pre-existing condition" mandate on health insurance sellers, because of the free-rider and adverse selection issues specific to health insurance market.
In other words, the individual mandate on buyers is necessary to regulate the sellers.
Not that I agree, but I could see that as the proffered reasoning.
Has anybody dared to hope for the destitution.. in some unfortunate capacity.. disabeling a yes vote from duly performing her duties in good health.. thus averting an election season appointment.. do to old reliable filibuster.. granting us enough time to wait it out until after the election..
If I'm making any sense ;)
How is Ruth Bader feeling these days?
Sorry.
Not knowing Ann's track record in prognosticating these things, I have to agree that Ms Lithwick sounds as if she's whistling past the graveyard.
Even so, Constitutionality does not prohibit repeal.
Here's the Legal Insurrection post from December 2010 where I took professor Jacobson up in the comments after he used a hypothetical "shampoo mandate" to argue against Orin Kerr's take on the Necessary and Proper Clause.
BTW
The thought has occurred in the other side..
They were just more circumspect about it.
"ACA proponents would argue that the health insurance purchase mandate on consumers IS "necessary," for instance, to impose the "no pre-existing condition" mandate "
So we can violate the constitution because without doing so we can't get what we want. I hope the justices would understand that pretty much negates the need for a Constitution or a Supreme Court.
Even so, Constitutionality does not prohibit repeal.
I agree.
Have the Supremes ever repealed anything of consequence like Obamacare?
I don't see it.
bagoh20,
Kerr's point is the Necessary & Proper clause of the Constitution may make it constitutional. I just filled in the rationale as to how they might argue the mandate on individuals is "necessary" to regulate the sellers.
Kerr:
The point of the Necessary and Proper clause is that it grants Congress the power to use means outside the enumerated list of of Article I powers to achieve the ends listed in Article I. If you say, as a matter of “logic” or otherwise, that the Necessary and Proper Clause only permits Congress to regulate using means that are themselves covered by the Commerce Clause, then the Necessary and Proper Clause is rendered a nullity. But that’s not how the Supreme Court has interpreted the Clause, from Chief Justice Marshall onwards. Indeed, as far as I know, not even the most vociferous critics of the mandate have suggested that the Necessary and Proper Clause can be read this way.
Obamacare is Too big to fail..
If Justice had delayed sending this up to the Supremes by appealing to the 11th en banc AND Obama lost the election, the current Justice Dept would not be able to argue their case.
Justice would still defend the law but the Obama administration would be totally out of it.
I predict that if Obamacare is upheld that it will become universally accepted as a mess and will itself alone ruin Obama's legacy. It will help his reelection and ruin his Presidency. But I don't think he will win reelection with or without it, which makes it bad for him and us. Like I said: it will be universally accepted as a disaster.
First of all, this is Pelosi's baby! Pelosi isn't part of obama's "A-Team" any longer.
And, killing Obamacare NOW ... would benefit politicians.
It would go. And, be just as much of an interference to Obama, ahead, as "Hillary Care" was to Hillary's "climb." (All dependent on Bill not having anywhere to go. So "he helped his wife.)
Besides. Health care is one of those issues that rings BIG TIME ... across many American families. Nobody's "living high off the hog."
No one wants to be consumed by the kind of debt you get into when really bad illnesses strike. (And, as a matter of fact, that's just how the "life insurance" industry began!)
Medicine, now, comes fully intertwined with insurance. And, forms. What leaves? Is a Federal blanket.
It doesn't get better state-by-state, either.
And, since when does "petitioning" mean you're gonna get heard?
Don't forget the headline is boosted by the FILERS. Not yet by the Supremes.
They may just "suggest" that their calendar till June is all booked up.
Let alone what happens if Ginsberg ... or another justice ... falls ill?
Counting on a decision is like buying a lottery ticket. (Maybe, you could sell the one you got for a million dollars? Just tell the next purchaser that you're sure yours is a "sure thing.") Suckers born every minute.
KELO anyone?
If Sandra Day O'Connor were still on the court it would be a different thing.
She'd BE the 5th vote IN EXCHANGE for the privilege of writing tho opinion. And, Rehnquist's testicles would be dangling from her earlobes. When she swung her head you could hear them playing Jingle Bells.
Anthony Kennedy wouldn't be an original ... even if he brought forks and lemons to his test.
re: Necessary & Proper clause
Yeah, but the mandate is only necessary to "regulate the sellers" with this specific set of regulations which were enacted by a political branch and which received political backlash proven by the ouster of an historic number of backers in a subsequent election.
Why should the Court have a problem saying if throwing out the mandate breaks it, you political types can now go fix it.
In a world that is moving at high velocity, with competitors at or above that fast velocity of decisions and events our economic competitiveness rests on an 18th century legal system moving at a glacial pace.
Come here, sweetheart, I got something to show ya.
You should be asking if Kagen will recuse herself. But then you voted for an unconstitutional Usurper, so...
Standing is what they are always hiding behind-- ignoring Jay and Marshall. If they hid behind standing w/ regard to Obama's eligibility, they will surely do it again on Obamacare too or they will say that the mandate is Constitutional, so as not to embarrass their Usurper.
Did you say you were a "law prof"?
Sorry, I just don't see Scalia, Thomas, Alito, or Roberts voting for the individual mandate. They just won't stretch the Commerce Clause that far. Just not gonna happen. And, frankly, I don't see Kennedy voting for it either. Plus, Kagan should properly recuse herself.
Lithwick (and Rick Hassen) are insane.
The model Mr. Hassen cited for attacking the court as "out of control" was FDR's battle with the court over the New Deal. The result of that battle, where the Court struck down popular legislation supported by a popular president, was massive public outrage against the President, a major political defeat for the President in Congress, and the Republicans winning a net six Senate seats and 81 House seats in the next election.
Now, consider the outcome when an unpopular president picks a fight over an issue where the American people opposed the overturned provision (an individual purchase mandate with penalties) by two-to-one majorities. If Obama tries to make the court striking down the massively unpopular individual mandate an election issue, all he'll manage to do is give the Republicans a matching set of White House, House of Representatives, and filibuster-proof Senate.
Lithwick and Hassen's writing indicated a modicum of basic intelligence, so we can't write them off as total blithering idiots. That leaves only one explanation as to why they can't figure out this much on their own; a painfully acute reality-denying insanity.
I am a dinge queen and love black hog and ass.
Why can't conservatives get some hot black pussy in their ranks?
Thomas is so fucking ugly. Allen West is just gross. Herman Cain is disgusting and but ugly.
Give us something we can chew on.
The idea that the Supremes care about how they look to the country, enough to affect outcomes, is not new nor that out of the main stream of legal thought.
All you have to do is Google it.
From an University of Chicago Law School professor in 1977:
"I assume the Supreme Court will try to come down with a very narrow ruling in the Bakke case. But whether it will rule in favor of Mr. Bakke, I just don't know. The case is one of the most explosive ever, with great implications. The country is not ready to have the case decided yet. The court does not want to impose its will on the people when it will leave a large part of the country unhappy either way."
I seem to recall this refrain about 'when the country is ready' quite a few times.
Hi Titus - you are in Boston.. I seem to remember you saying.
Any stories on how that town is mourning the Red Sox tonight?
Ann Althouse said...
I bet they take the case and uphold the mandate. None of this standing business. We'll get an answer.
9/28/11 10:52 PM
Ann Althouse said...
Which will help and not help Obama.
9/28/11 10:53 PM
I am not going to argue with a law over what the Supreme Court will likely rule. However if the court does rule that the mandate is constitutional it may be the straw that breaks the camel's back and ignites a firestorm that results in a constitutional convention. And more likely than not that may result in a constitution that liberals would abhor.
This is merely battlespace prep. If they have the temerity to shoot it down its all political. Not a whit of Constitutional jurisprudence.
(BTW my word verification "upfrist" seems kind of harsh"
Not deciding a question because it might effect politics strikes me as just as irresponsible (and just as political) as deciding a question because it might effect politics.
They have no business even looking at the political calendar when setting the judicial calendar.
Lithwick again?
When she's not projecting her own wishful thinking onto the Supreme Court she's crying about how awful they are for not deciding the way she would have.
There's nothing objective, useful, or insightful about anything she has to say. She's an insipid and predictable far-left shill.
But people like her, I guess; much like Keith Olbermann she knows her audience.
Lem said...
Even so, Constitutionality does not prohibit repeal.
I agree.
Have the Supremes ever repealed anything of consequence like Obamacare?
I don't see it.
I was thinking Congress in terms of repeal, regardless of what SCOTUS rules.
SCOTUS ruling Constitutional and Congress voting repeal are not mutually exclusive.
WV "rhufore" RuPaul's golfing buddy.
Legal Insurrection's Professor Jacobson has an interesting take on this scenario.
I appreciate the comments from those that know a hell of a lot more constitutional law than I do. I fall back on the old aphorism (I think I learned in intro poly sci classes): the supreme court reads the election returns. Dont know if it is still true. I suspect the SCOTUS can couch its decisions in any number of rationales--Law does seem to me to be all about parsing vague language.
Whatever: interesting times ahead.
Oh--sorry for successive posts: the appropriate venue might be the political system. Congress can handle this issue quite nicely with repeal.
If they uphold the mandate, we will get a big push for a constitutional convention. There will be tens of millions of voters convinced that the country is no longer about freedom. I don't think the establishment has any clue at all about how pissed off huge portions of the nation will be.
The Warren Court was detested by huge portions of the people. It was saved by the fact that it could claim a moral high ground. There is no moral high ground for Obamacare or the mandate.
If upheld, look for a tea party majority in the White House and both houses and a strong push to pack the court.
Duh-lia, honey, the justices don't worry about election year issues because they don't HAVE to run for re-election. They are appointed. For life. Duh!
Regardless of the ultimate SCOTUS decision, spotlight coverage on a new program that
1) has yet to go into effect (and arguably has only lead to higher health care costs)
2) is unpopular with the electorate
can not be good for an Obama campaign just months before the election.
If upheld, look for a tea party majority in the White House and both houses and a strong push to pack the court.
Honestly...when is this not the case?
If the commerce clause is interpreted so broadly to mean that Congress can force me to buy something, then the rest of the Constitution is null and void.
By that act, anything and everything becomes possible. We become just another European region ruled by distant authorities who do not answer to us.
And the ultimate outcome for Europe's dance with the devil is coming in the next few weeks. Revolutions, war, poverty. All traced to leftism's insatiable power.
And our left voted for it here. But we have a core of individuals still, and a third American revolution will be nasty as hell.
All traced to leftism's insatiable lust for power.
Fixed.
Thx.
There are several smart writers on the left who can create a compelling argument from time to time. Dahlia Lithwick is not among them.
To say that the Supreme Court will pass on this issue because the only reason to overturn it is the short-term gain of embarrassing the President is an affront to the seriousness of the justices, a mockery of the Constitutional basis for challenge, and an egotistical embellishment of Obama's importance as a political target.
Essentially, Dahlia is rolling out the "any attack on this legislation is just an ignorant political attempt to smear The One" argument again. It hasn't worked (much) so far, and I doubt the justices take any notice of the wishful musings of this leftist gadfly.
Thx.
No problem. I'm marking up a friend's flu pandemic manuscript and was in the groove.
The rule that you can tell how far a Democrat would go by what they accuse the Republicans of doing holds here. That she believes it is SOP in the US Supreme Court to throw out constitutional principal for political expediency says more about the 4 left leaning justices than it does about the other 5.
Since the Empress Sebelius is issuing mandates, rules, and regulations constantly I think the court will decide this case- one way or the other- with alacrity.
What a vile and disgusting human being Lithwik is.
No, it's not about the Constitution, or the rule of law, or anything unimportant like that, it's about whether "five justices [are] eager to have the court become an election year issue."
When was the last time the Court wasn't an "election year issue"?
"I bet they take the case and uphold the mandate."
Care to bet on that? InTrade has some markets on it, the last bets posted are in the 40% range that they'll overturn.
Do you actually think that Congress has the power to order us to buy a private product, or do you just think that five Supreme Court "Justices" will refuse to overturn it?
I bet they take the case and uphold the mandate. None of this standing business. We'll get an answer.
Annie get your guns then.
Get ready for a permanent deep recession if not depression.
If Obamacare is upheld, will the Left be able to withstand the momentum to amend the constitution to broadly protect economic liberty? It occurs to me that the court upholding Obamacare may be the worst thing that could happen to the Left.
Alttards taking on jurisprudential issues--about like Sarah Palin taking on economics. repeal this commie statist Yomamba healthcare, tooday-goldangit
Were the SC comprised of intellecuals capable of a reasoned critique of the "individual mandate", the judicial review might mean something. Instead it's comprised...of Tony "the Badger" Scalia's gang.
Ahh the poster known as Jota--Full of sound and fury signifying nothing--complaining about faux intellectuals but putting is incomprehensible shit on a blog--let us know douchenozzle when you actually do something. Perhaps you should file an amicus brief--although with your limited language skills I doubt it.
(flame warning--slow thursday so its fuck with J day)
I expcted a stupid glibertarian windbag like you to belch away, Roger J., not having a clue about the real problems involved. Interrupt your tweek session, klan-wicca filth?
Im doing something--working on putting you away klan-zionist perps.
Fuck yourself
Ahh Jay--literate as always--do carry on son--as I said its a slow thursday and I do enjoy jerking you around--you always response so nicely--when are you going to come to memphis and beat me up? after your 400 pound bench press work up?
Loser
after your 400 pound bench press work up
He can't. He's got to wiki more terms he's unfamiliar with and use them in a way that's completely transparent to those who do. It's sort of his thing.
I do bemoan the loss of Jeremy and Cyrus Pinkerton on this blog--much more entertaining than the poster known as Jota--and, of course, Jota has the distinction of being illiterate in three languges: English, Spanish and Italian
It's perfectly literate klanqueer--concerning judicial review,something you dont know f*ck about (like you don't know fuck about Madison/Marbury, US History,Federalist papers, ,Madison, Jefferson, Locke,,etc)
Yr just irrational, whitetrash garbage RJ, like yr TP heroes.
Got that, Scotttard?trash-- thats you. .
Incisive critique there J--I not you are still playing checkers with death--hows it going----got any pieces down to the last row to be kinged? I doubt it
utjudicialrewiccasatan
You should have stuck with that, jolly. It suits you perfectly.
your ad hominem attacks and predictable derailments don't matter, hijos de putas
Actually nothing a Alttard belches matters.
What does matter is ..criticism of Judicial review. Even the authentic jeffersonian libertarian understands that (tho Jeff. was a democratic libertarian. He very well might have supported a health care right). Now,thats a bit much for a teabug. Digest it slowly.
Jota: dude: you have lapsed back into gibberish
appreciate your insights into my provenance, but again your spanish is barrio claptrap--you gotta up your game son.
Get your mommy to up your ritalin dose and make sure you get your nappy
you may be more articulate then
that fits you , Mavis Beacon. IN fact you postedit--its you!
stfu Squat ..Got that yet, pedo-satanist?
Feds watching this site a swell..and perps like you RJ and Squat
fuck u klansman
all you need to know satanist
Jota--god dude--write in english--or spanish--or italian--whatever--but try put a thought into a sentence someone can understand--I know you can do it--come on give it try
you just arent there yet
Scalia--the pig-bureaucrat of the earth
Fuck you klansman, mason,zionist mormon filth
Something you don't understand, whitetrash, whoreson, tweek garbage?
Buenas dias, Jota--now that was a pretty good string of insults--that wasnt bad--but is that your best shot?
try one more time
Had your milk and cookies yet? obviously missing your nappie
To reiterate:
What does matter is ..criticism of Judicial review. Even the authentic jeffersonian libertarian understands that (tho Jeff. was a democratic libertarian. He very well might have supported a health care right).
Now,thats a bit much for a teabug. Digest it slowly. Or better fuggataboutit and stick to AynRand for Dummies, tweekscum
Jota dude: you are lapsing into cutting and pasting your earlier inane comments--slipping badly dude
try something original
wrong then, wrong now.
We'll see RJ the klanboy..
be getting yr email and HD, soon, masonic-pedo swine
then back in to stir where you belong
jota chico: you arent even doing insults well anymore--come one dude--up your game. You are not keeping up
Terrible when you dont have enough insults to run several blog posts with original material.
Cubanbob said:
However if the court does rule that the mandate is constitutional it may be the straw that breaks the camel's back and ignites a firestorm that results in a constitutional convention. And more likely than not that may result in a constitution that liberals would abhor
And I agree. I have been telling friends and family this since the day this law was dragged into court. I remember back in the 70's there was a spate of talk about a constitutional convention and I was against it because I feared what might come out of it. However, if the individual mandate is is upheld, than as far as I an tell, the words of the constitution are meaningless and we need a new one that won't allow 9 Humpty Dumptys in black robes to rule our lives.
“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.”
Lewis Carroll, Through the Looking-Glass
Alas my slow thursday morning time jerking J around is gone--tee time in 15 minutes--apologize to the posters for my foray but I gotta tell you--its fun.
Namaste
I rise to the defense of J, Jota, Jolly. He/she has provided me with the necessary critical thinking skills to understand Carol_Herman.
You lost again RogerJ & Co. But a dimwit such as yourself won't likely know when he's been checkmated--until someone who knows the game informs him. Yo, RJ, masonic white trash dimwit, you lost...again.
---to reiterate: what matters is ..criticism of Judicial review. Even the authentic jeffersonian libertarian understands that (tho Jeff. was a democratic libertarian. He very well might have supported a health care right for all citizens. The "individual mandate" is another matter).
Now,thats a bit much for a teabug. Digest it slowly. Or better ,stick to the ebonics Ayn Rand, chandala.
Against your will?
Seriously, as Chase said.
Why do you link to this Lithwick hack?
(And I agree with David - this tells me more about Dahlia Lithwick than about the Supreme Court or its Justices.
Plus isn't she aware that the Court is always an election-year issue?
It's always "ZOMG the OTHER will get to nominate justices if WE don't win", from both parties, in every Presidential election.)
SO you think they are going to declare something blatantly unconstitutional constitutional?
No repeal? Another step toward civil war. If the Justices are thinking politics they need to see this in depth.
Yes the supreme court has repealed legislation of vast consequence, anti abortion statutes and anti sodomy statutes.
Plus isn't she aware that the Court is always an election-year issue?
It's always "ZOMG the OTHER will get to nominate justices if WE don't win", from both parties, in every Presidential election.)
But always *only*--or, if you prefer, *always* only--from a teensy-weensy portion of the electorate, not to mention for vote-casters in the general election for a president. However frustrating that might be for the fractional minority, there it is: hard, cold, stark and true.
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