March 23, 2017

March 28, 2012

Bad Day for the Mandate

The Obamacare mandate had a rough day yesterday in the Supreme Court. Here’s how Don Surber of the Charleston (W. Va.) Daily Mail summarizes it:

The Obama administration’s defense of Obamacare before the Supreme Court on Tuesday was reviewed as stumbling and bumbling by news reporters, foreshadowing the Big Government clumsiness and ineptitude a universal health care system would offer the public. Justice Anthony Kennedy ripped through the argument that because Congress has the constitutional power to regulate interstate commerce, it has the power to regulate anything. Solicitor General Donald Verrilli was overmatched and ill-prepared, displaying once again why socialism fails: It leads to the appointment of unemployable nephews and political hangers on to positions for which they are ill-suited.

Mr. Surber then illustrates his points with some choice extracts from the transcript of the day’s arguments (or, if you’d like it in HTML rather than .pdf, go here):

JUSTICE KENNEDY: Can you create commerce in order to regulate it?

GENERAL VERRILLI: That’s not what’s going on here, Justice Kennedy, and we are not seeking to defend the law on that basis. In this case, the — what is being regulated is the method of financing health, the purchase of health care. That itself is economic activity with substantial effects on interstate commerce. And–

JUSTICE SCALIA: Any self purchasing? Anything I — you know if I’m in any market at all, my failure to purchase something in that market subjects me to regulation.

GENERAL VERRILLI: No. That’s not our position at all, Justice Scalia. In the health care market, the health care market is characterized by the fact that aside from the few groups that Congress chose to exempt from the minimum coverage requirement — those who for religious reasons don’t participate, those who are incarcerated, Indian tribes — virtually everybody else is either in that market or will be in that market, and the distinguishing feature of that is that they cannot, people cannot generally control when they enter that market or what they need when they enter that market.

CHIEF JUSTICE ROBERTS: Well, the same, it seems to me, would be true say for the market in emergency services: police, fire, ambulance, roadside assistance, whatever. You don’t know when you’re going to need it; you’re not sure that you will. But the same is true for health care. You don’t know if you’re going to need a heart transplant or if you ever will. So there is a market there. To — in some extent, we all participate in it. So can the government require you to buy a cell phone because that would facilitate responding when you need emergency services? You can just dial 911 no matter where you are?

As Mr. Surber rather drily observes:

It was brutal. It was a pack of pupils savaging the substitute teacher. The flimsiness of the argument that you will eventually need health care was toilet tissue thin and Justice Sam Alito figuratively wiped himself with it and tossed it back at counsel.

JUSTICE ALITO: Do you think there is a, a market for burial services?

GENERAL VERRILLI: For burial services?


GENERAL VERRILLI: Yes, Justice Alito, I think there is.

JUSTICE ALITO: All right, suppose that you and I walked around downtown Washington at lunch hour and we found a couple of healthy young people and we stopped them and we said, “You know what you’re doing? You are financing your burial services right now because eventually you’re going to die, and somebody is going to have to pay for it, and if you don’t have burial insurance and you haven’t saved money for it, you’re going to shift the cost to somebody else.” Isn’t that a very artificial way of talking about what somebody is doing?


JUSTICE ALITO: And if that’s true, why isn’t it equally artificial to say that somebody who is doing absolutely nothing about health care is financing health care services?

GENERAL VERRILLI: It’s, I think it’s completely different.

And it is not completely different. It is completely the same. This case is not just about Obamacare. It is about an entire review of the interstate commerce clause. The Supreme Court has allowed that clause to be used as an excuse to expand the federal government to the point where it no accounts for one-quarter of the economy. The best and the brightest now ply their trade on K Street, not Main Street and the nation suffers for it. Lobbying has replaced innovation. You can make more money off a government bailout than you can make by building cars.

The entire column is well worth reading—Mr. Surber goes on to make the point that perhaps the Justices began to realize yesterday that their lenient Commerce Clause jurisprudence of the last eighty years has allowed Congress to take things too far. After all, the only limit to the progressives/socialists who want the government to do everything and pay for everything is the one identified by Baroness Thatcher: “Eventually they run out of other people’s money.”

Glenn Reynolds has a great round-up of the reaction and commentary to the arguments at this link. But I would be remiss if I did not point out to SF readers that some people see, in Solicitor General Verrelli’s abysmal defense of the mandate, a deeper strategy: read this post, and then this.

If those posters are correct, then the strategy appears to be well under way, given this report of this morning’s arguments on the severability issue.

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I think a compromise on invalidating the entire law and allowing some of it to stand is certainly possible, and not necessarily a bad thing. Specifically, they could allow the name to stand, by itself, and invalidate all that comes after the name. I wouldn’t fault that compromise decision, particularly if that could achieve unanimous agreement among the nine justices. It could serve as a symbolic reminder that the President, even when backed by majorities in the House and the Senate is not the supreme and unlimited ruler of the nation.

Pax et bonum,
Keith Töpfer

[1] Posted by Militaris Artifex on 3-28-2012 at 12:08 PM · [top]

Here Ann Althouse, a law professor at UW-Madison, sets out her (admitted) conspiracy theory that the defense of the law may have been deliberately poor because the law is now such an electoral liability that Obama would benefit from its being struck down.  It’s an amusing idea.  Hard to imagine, though, that an otherwise competent solicitor would do such a thing and damage his reputation.  My own idea is that the law is indefensible on constitutional grounds.  The solicitor had no good answers to give.

[2] Posted by Katherine on 3-28-2012 at 12:28 PM · [top]

I think it is wise to recall that Obamacare and the mandate were not the true objective for the Progressives.  They want universal, government supplied healthcare insurance.  Obama even argued against the mandate in the primaries when Clinton came out for it.

A loss here could be a win for the left: go right past Obamacare to universal medicare…......the single payer government position.

And just think, with Obamacare shot down, the dems could hang the genesis of Obamacare right around Rommney’s neck.

Ain’t over till the Fat Lady sings [is that PC?]

[3] Posted by Capt. Father Warren on 3-28-2012 at 12:36 PM · [top]

As I blogged this morning, when Anthony Kennedy channeled Robert Bork, that was a clue that it just might be a bad day for Obamacare.  smile

[4] Posted by Newbie Anglican on 3-28-2012 at 01:04 PM · [top]

I especially liked Chief Justice Roberts cell phone analogy. I could envision the Obama or similar leftist administration mandating that all citizens be implanted with GPS devices, so that the Government could keep track of where every person was at all times. Ah, the Mark of the Beast!

[5] Posted by sophy0075 on 3-28-2012 at 03:04 PM · [top]

According to reports, it went no better for the supporters of the law this morning.  Five Justices are thought to be leaning towards throwing out the entire statute rather than trying to sift through it and determine what to keep and what to discard.  They think that’s Congress’s job.

Of course, “thought to be” leaning one way or the other is not a reliable guide to what the ruling will actually be.  We won’t know until June.

[6] Posted by Katherine on 3-28-2012 at 03:04 PM · [top]

Wickard v Filburn ought to be overruled and the Constitution reinstated.

[7] Posted by Br. Michael on 3-28-2012 at 03:38 PM · [top]

Wickard v Filburn ought to be overruled

Amen.  A good first step toward putting sanity and credibility into the Federal Government.

[8] Posted by Capt. Father Warren on 3-28-2012 at 03:54 PM · [top]

Amen to that #7,  but we’ll have to wait for four more Clarence Thomases for that.  Even Scalia voted to affirm Wickard in Raich.

[9] Posted by Jeffersonian on 3-28-2012 at 04:01 PM · [top]

Wickard v Filburn ought to be overruled

That 1942 case has become settled law in interpreting the Commerce Clause—so it’s not going to be overruled. 

However, the critical issue in the current case is that the “logic” in Wickard v Filburn (that the voluntary act by a farmer of growing wheat and not selling it affects commerce) not be extended to cover the mandate in ObamaCare in which the government wants not acting to be treated as commerce.  Huge difference.

[10] Posted by hanks on 3-28-2012 at 04:08 PM · [top]

Praying that every shred of the entire health care bill gets cut down by SCOTUS.

[11] Posted by midwestnorwegian on 3-28-2012 at 04:49 PM · [top]

C’mon Midwestnorwegian, not every shred.  I rather like having my college kid on my policy without having to recertify her every year.

[12] Posted by Ralinda on 3-28-2012 at 07:06 PM · [top]

Ralinda, Congress can, if it will, re-enact those shreds of the law which it considers to be good ideas.  As Justice Scalia said, it’s Congress’s business to decide what shreds are worthwhile.

[13] Posted by Katherine on 3-28-2012 at 07:08 PM · [top]

The Court has an oblgation to overrule it’s own decisions when they are wrong.  Wickard was bad law then and it’s bad law now.  Obamacare is directly extension of Wickard and if Obamacare goes down, as I think it will, Wickard should follow.

If the programs that Wickard provides the foundation, are so importhant then let’s amend the Constitution properly to provided that foundation.  The Supreme Court is not a sitting Constitutional Convention.  And let’s not forget that Wickard was a direct result of FDR’s tyranical attempt to intimidate the Court.

[14] Posted by Br. Michael on 3-29-2012 at 06:31 AM · [top]

That 1942 case has become settled law in interpreting the Commerce Clause—so it’s not going to be overruled. 

I’ve come to the conclusion that we need a clarifying amendment to strip away the power the SCOTUS conferred in Wickard.  Just take it away and give the Central State a decade to decommission the schemes that violate our federalism.

[15] Posted by Jeffersonian on 3-29-2012 at 05:25 PM · [top]

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