With only days and perhaps even just a few hours left before the Supreme Court rules on the constitutional challenge to the Affordable Care Act, the second guessing has already begun among Democrats. Though the outcome is known only to the justices and their clerks and secretaries, in the months since the oral arguments revealed there was a good chance it would be overturned, the president’s party has sunk deeper and deeper into depression over the possibility. Though they may yet win, as today’s front-page feature in the New York Times reveals, many on the left are already starting the recriminations, with the White House and the congressional Democrats getting the lion’s share of the blame.
The president and congressional leaders such as former House Speaker Nancy Pelosi are being lambasted for not taking the challenge to the bill’s constitutionality seriously as they forced it through the legislature. Pelosi’s response to the suggestion that there was any doubt about its legality was a now famous, “Are you serious? Are you serious?” But though that is a remark that will go down in the history books if the judges say no to ObamaCare, scapegoating her, the president or the Justice Department lawyers who did not anticipate the possibility is a waste of time. So, too, are some other liberal responses, such as liberal law professor Jonathan Turley’s suggestion in Friday’s Washington Post that the problem is that nine is too small a number of judges to make such a momentous decision, a solution Democrats won’t embrace if Mitt Romney wins in November and is the one doing the nominating of the extra judges.
The problem wasn’t the tactics pursued by ObamaCare advocates either in court or outside it. The problem was a bill that proposed an expansion of federal power that even the Commerce Clause — that catchall mechanism used to justify every new federal power grab for a century — couldn’t support.
The bill did help generate a political earthquake in the form of the Tea Party that led to the Republican landslide in the 2010 midterms that erased the Democratic majority who passed the act. But better advocacy on the part of the bill’s supporters would not have prevented conservatives and libertarian lawyers from bringing forth the successful challenges that two lower federal courts have already accepted.
If Democrats like Pelosi couldn’t imagine anyone taking those challenges seriously it is not just because they live in a liberal echo chamber where conservative ideas are viewed with as much contempt as conservative politicians. It is because after nearly 100 years of liberal judicial activism that created the current federal leviathan, they had come to believe there were no limits on that power. If Congress could regulate any kind of commerce, why wouldn’t liberals think that this extended even to commerce that didn’t already exist or even inactivity and thereby make it legal for the government to demand that individuals purchase health insurance?
Since for decades liberals have treated a more libertarian approach to the constitution with scorn, why would anyone, especially that former law professor sitting in the White House, have thought differently?
Of course, as the Times points out, the constitutional challenge would have been avoided if the legislation had been framed more explicitly as a tax which the federal government has the right to levy. But Obama and Pelosi had a hard enough time getting a Democrat-controlled Congress to pass it without explicitly selling it as a massive tax increase though that is, in effect, what the bill is. In that form, it would never have been adopted.
As for Turley’s court-packing scheme, the transparently political nature of his appeal renders it absurd. He’s right that there’s nothing sacred about the number nine but since the current format has been in place since 1869, there’s no reason to change this tradition. Any expansion would be inherently political, an attempt to overturn the current court majority by a president and a Congress that didn’t like their opinions on the constitution. If Franklin Roosevelt couldn’t get away with such an idea in 1938 when he proposed it, does anyone seriously believe Barack Obama or Mitt Romney or any other president in the foreseeable future can do so?
The liberal dilemma has no more to do with the number of justices than it does with supposed shortcomings in the strategy adopted by the White House or Congressional Democrats. If the bill goes down this week it will be because a majority on the court have realized that a government that is given the power to invent as well as to regulate commerce is a threat to our liberty. And no clever tactic can make that acceptable to the majority of Americans who oppose ObamaCare or the judges who will vote against it.
What kind of healthcare system does Israel have? We should do the same. oops.
If you want to emulate Israel (first we have to get rid of our pesky Constitution), then we can have real airport screening with profiling, mandatory armed forces participation for all citizens including remaining in the reserves until 50 years old, and to make it more like Israel maybe we can get Mexico or Canada to rain down 1000's of rocket every month, just to terrorize our citizens.
The biggest thing that would have to change is size. Israel is slightly larger than Massachusetts, slightly smaller than New Hampshire.
yeah, but you hate Israel too yah? oh, but when it's convenient to make a point…give it up
The yabobs might keep in mind two points: Israel has a parliamentary form of government that built its yes, compulsory mandate health system on the infrastructure in place from its socialsim of the Mapaii founders. Also, even "right wing nut jobs" like Mark Levin will tell you day and night that were the Federal government toi actually use its tax powers to fund a single-payer system, that would be completely Constitutional. Obama chose to let Pelosi try to sit between two stools to get the private health insurers and providers on board and they fell between them on their tushes.
So you don't like the individual mandate in the health care law. nFine. nWhat would you replace it with? nWhy do you think Newt Gingrich back in Hillary's days was for it — after they had looked at everything else? nThere was no way around it. n"The insurance mandate is socialism, plain and simple." nIf it's socialism, you'd have to buy it from the government, which would also tell you what doctor or hospital to go to. But you can buy health insurance from anybody, and you can get treated by the doctor and hospital you want. What's socialist about that? n"Can't you see, the government is making us buy insurance. We have no choice in the matter." nDo you have a choice not to get hurt, or not to get sick? Why then do you want a choice not to have insurance to pay for it when you do? nStates in fact already have an individual mandate for car insurance, and they have been putting uninsured drivers in jail for years. n"That's different. Driving is a privilege." nThen free health care must be a right in your book. Maybe this idea came from hospitals continuing to treat the uninsured the last half century. nThe tradeoff to us living in a civilized society is that we have to follow rules we don't agree with. In return, we get great many things, including goods and services that otherwise would be unavailable. But, we still have to pay for them. The mandate makes sure that we do. nWhat's wrong with that? n
"Why then do you want a choice not to have insurance to pay for it when you do? " n nBecause I am entitled to avail myself of the alternative choices available, including paying the bill myself or not getting treatment. Were I to suggest to you that a 95 year old person of sound mind should not have the right to chose to refuse medical care and die quietly at home, you would strongly disagree, yet you insist that a younger person should not be allowed to make this same choice by refusing to purchase health insurance. Why? n n"States in fact already have an individual mandate for car insurance, and they have been putting uninsured drivers in jail for years. " n nActually, I'm guessing you can't find anyone who has been put in jail for failing to purchase automobile insurance. Additionally, I can chose not to own or operate a car and I don't have to purchase automobile insurance. More importantly, the powers of Congress and the Federal Government are granted by the Constitution, and are limited to those powers so granted. The constitution does not grant powers to the state governments. n n"In return, we get great many things, including goods and services that otherwise would be unavailable." n nThat is about the most laughable statement I have ever read. Other than defense, what exactly do we get from the federal government that we could not purchase in the marketplace without it?
Obamacare has the worst features of capitalism and socialism. Socialist bureaucracy and nanny-statism and private crony capitalism and profiteering. Like JFK's aphorism about DC–"northern charm and southern efficiency."
OOH! The image of Nancy sitting between two "stools" is enough to churn my guts into a froth._Of course she was perched on the horns of a dilemma–but then the image of Nanny "perched' on a horn of any kind makes me want to throw up!_Then again thinking that Nancy's legislation slipped between the cracks of the Constitution..well the concept of "Slippage" and "Crack" as referring to SanFranNan would be enough to discombobulate beings with pay grades far above mine…_
Single payer wouldn't violate the constitution, it would use the tax system and that is would at start separate itself from Obamacare. The problem would be the taxes, all the nations that have government health care have very high personal income tax levels. The VAT taxes has everybody pay and so you would either have to have a VAT tax or start having even low income people paying income tax (which 47%) pay nothing to pay for it. Remember once you destroy the private health care system all the workers become government ones, with pensions, federal benefits and all the other goodies for working off the backs of taxpaying Americans. I'm not sure even most Democrats would like to see these taxes rise for the poor and working Americans. One more thing, do we want government making these decisions for us? There is changes that our needed to make things better for all but giving all this power which even Obamacare gives to the federal government isn't what i'm looking for. HHS was given way too much control in Obamacare but we'll have to see what the SCOTUS does with it first. I think the mandate is toast but curious what they do with the rest of the law.
But again Mr. Lemming, and try to COMPREHEND THIS: IT STILL IS UNCONSTITUTIONAL, I don't give a rat's arse Who first proposed it. It's shameful that so many "intelligent" folks on both the right and left side COULDN'T FIGURE THIS OUT. THE GOVERNMENT HAS NO DAMN RIGHT TO TELL ME WHEN I CAN SHIT, WHEN I CAN BUY INSURANCE, OR IF I CHOOSE NOT TO DO ANYTHING. GET IT? BECAUSE IF THEY ARE GIVEN THAT RIGHT, THEN THEY CAN ALSO FORCE FATTIES TO FAT FARMS OR HEALTH CLUBS, OR FORCE US TO STOP BUYING CANDY, ETC. AS THIS IS BAD FOR OUR HEALTH. A cause/reason for a Mandate, no matter how noble, DOES NOT NEGATE IT BEING UNCONSTITUTIONAL. I suggest Congress go back to the table.
What Constitutional grant of power would give the Federal Government the power to operate a single payer system?
In 2009, the 'Brightest Minds in America" set out to craft a brave new world. These brightest minds have passed some of the worst written legislation know to man. Bill after Bill being 2,000 pages of Lawyer empowerment acts, only to breed tens of thousand of regulations. n nThese clowns are not worth being called legislators.
Tobin is right on. All that you will here in the news for the next few weeks will be generated by the liberals through the mainstream media. Pay no attention to it. Focus on removing and remaining power liberal/progressive had in November and never let them back in again!
Obama has no strategy or vision for governing only a series of tactics. He had an opportunity to fix a problem (pre-existing conditions) while focusing his attention on the economy and failed to do so. All he had to do was get out of Iraq, Afghanistan, let all the Bush tax cuts expire and so force congress to rewrite the tax code ala Simpson-Bowles. The economy would be firing on all cylinders now and he's be sitting pretty. Instead he fell in love with the historic aspect of his election, and sadly his presidency will go down in history.
Don't think so.
The Mandate was a conservative idea (Heritage Foundation) that was pushed for decades before put into the law…now it's there, conservatives don't like it? I guess that proved conservatives want nothing to do with healthcare reform, since they are now trying to shoot down their own ideas. Nice.
ufeffThe individual mandate that came out of the Heritage Foundation was proposed as an alternative to Hillarycare and had major differences to the Obamacare version. n n1. The proposal was to encourage coverage for catastrophic care only, and was in the nature of liability insurance, much the same as automobile insurance. Its intent was not to protect the insured individual but to protect hospitals and taxpayers from being stuck with the bill for ntreatment of someone who had no insurance. n2. Compliance was not a legal requirement and would be rewarded by favorable tax treatment, not induced by the threat of punishment. n nFurther research since that initial counterproposal to the Clinton administration's plan led to the conclusion that even such a limited insurance mandate is unnecessary, and near-universal coverage could be obtained through better risk adjustment modelling by insurance companies, meaning premiums for health insurance, as for automobile and other forms of insurance, would be set on an individual basis according to risk, a necessary element if insurance is to be both fair and sustainable. Further examination also led to the conclusion that a mandate would not be constitutional. n nIn short, the mandate proposal was an idea forced prematurely into the spotlight due the urgency of presenting an alternative to government takeover of healthcare under the Clinton nadministration, and would never have seen the light of day if the implications had been fully nexamined prior to its release. It was a bad idea that was soon abandoned, as it should have been. The fact that it was resurrected by Democrats demonstrates their affinity for bad ideas.
The Mandate was a conservative idea that was pushed for decades before put into the law…now it's there, conservatives don't like it? I guess that proved conservatives want nothing to do with healthcare reform, since they are now trying to shoot down their own ideas. Nice.
"The Mandate was a conservative idea that was pushed for decades" n nThe they-started-it argument is entirely irrelevant to the question of constitutionality.
All I'm getting from the information you submit is that conservatives have had ideas about healthcare reform for decades, and that liberals will pick up these ideas when conservatives have, for whatever reasons, done away with them. (Hmm, by the way, a conservative idea is not conservative simply because some conservatives may have created it; and, as well, even if the new healthcare law did in some major aspect implement a conservative idea, that doesn't mean that it can't be largely reprehensible to conservatives for other reasons, like seizing a huge portion of the American economy.) n nAnd by the way, how disgusting of you to make and use such a Facebook page.
You confuse Republican and Conservative. That's ok, Republicans often do too.
This is the week I've been waiting for, making June the best month this year. Hopefully November will top it. If Scott Walker's victory was my birthday present, Xmas should arrive within days, or perhaps hours. I may not get everything I asked Santa for, but I'm confidant SCOTUS has some big presents in store for me. I'd settle for having the individual made struck down, and a least a partial victory on Arizona's HB1070. Anything beyond that would be sublime! n nI realize I shouldn't be greedy, but I have been a very good boy this year. Lot's of $25 and $50 dollar donations to help fight the forces of evil, and hours spent explaining to my opponents why they should correct their misguided thinking. n nThank You in advance Santa!
Obama was not a law professor. He had neither the status or title of professor while he was a part-time instructor at the University of Chicago law school.
This is the week I've been waiting for, making June the best month this year. Hopefully November will top it. If Scott Walker's victory was my birthday present, Xmas should arrive within days, or perhaps hours. I may not get everything I asked Santa for, but I'm confidant SCOTUS has some big presents in store for me. I'd settle for having the individual made struck down, and a least a partial victory on Arizona's HB1070. Anything beyond that would be sublime!
Silly collumn. If they can make me buy light bulbs that don't light and flush toilets that don't flush, they can make me buy health care. There are limits to federal power but not many if it has anything at all to do with business. After all the Fedral Government exists first to protect property and promote business and secondarily to gurantee republican-form state governments and the bill of rights. n nStill, Obamacare is a masterpiece of showing how not to do something.near universal coverage and greater health information sharing are imho good things; the rest of the law adds more back-asswardsnesss to an extremely basck-awards health care industry. A great deal of the trouble is caused by other government actions, particularly the states all regulating insurance differently. Even Medicare which is fairly efficuent in itself subsidises a broken system. n nIt would take a lot more thasn repealing the ACA to provide competition and progress in the medical system. Granted components often show considerable innovation, yet a great deal of that is as the icing on a cake of unlimited resources, just bill some third party…