Obamacare: A Narrow Ruling Or Much Broader

Just saw Judge Napolitano on Fox and he explained that the scope of the Obamcare ruling will probably be evident according to who writes the opinion.  If it's Chief Justice Roberts, he expects a narrow ruling that strikes down the individual mandate but leaves most of the rest of the law intact, based on Roberts' own judicial philosophy.  On the other hand, if the opinion is written by Justice Kennedy he expects a broader smackdown of the entire statute.

The bad news is Kennedy wrote the Arizona opinion, which makes it quite unlikely he'd also get the Obamacare case.  It will probably be Roberts and at best we'll split the baby again, killing the mandate but leaving much of the monstrosity intact and still doing damage to the economy and jobs.

And I guarantee you the media has already written their pieces calling it a victory for Obama if that happens.

Some people on Twitter were talking about the effect of an overturn of Obamacare on the job market.  Would it suddenly spur an increase in hiring and a possible turnaround in the economy that would benefit Obama if the whole thing were to be tossed by the Supremes?  I don't think so.  Frankly, I don't see any hope of an increase in hiring until employers are sure Obama is gone.  With him still in office and willing to wield unconstitutional power against the economy, hiring and job expansion would be a tremendously risky enterprise for most businesses.

Should he lose on November 6th, however, look out.

Thursday It Will Likely Be Chief Justice Roberts Delivering the Blow to Obamacare

It's really a shame we have to wait two more days for this, but according to veteran court watchers it's looking quite likely that when the opinion comes down Chief Justice John Roberts will be delivering it and he's not likely to uphold the individual mandate.  From Forbes:

Today, we learned that the final day of the Supreme Court’s 2011-2012 session will take place at 10 a.m. on Thursday, June 28, and that Chief Justice John Roberts will most likely issue the majority opinion. (I’ll be running a live blog that day over at National Review, beginning at 9:30 a.m.) From what Roberts said at oral argument last March, it’s likely that this means that Obamacare’s individual mandate is going down, but that some of the law will remain intact. Here’s why.

We don’t know for sure that Roberts is going to write the majority opinion, but veteran court-watchers say it’s almost certain, because Associate Justice Anthony Kennedy wrote the majority opinion in the Arizona immigration case that was read today. The Supremes try to rotate the authorship duties around, so that everyone gets their fair share of opinion-writing. After today, Roberts is on deck.

Prior to oral argument in March, it was widely speculated that Roberts would join the majority, no matter which side won, so that he could control the actual opinion that had legal weight in the case. (As Chief Justice, he has that right.) This would mean, most likely, either a 5-4 decision against the individual mandate, or a 6-3 decision in its favor.

Roberts expressed deep skepticism of the individual mandate

However, after oral argument, it became more clear that Roberts was skeptical of the mandate’s constitutionality, and understood that the mandate is really about cross-subsidization, and not personal responsibility. “If I understand the law,” Roberts said, “the [insurance] policies that you’re requiring people to purchase must contain provision for maternity and newborn care, pediatric services, and substance use treatment. It seems to me that you cannot say that everybody is going to need substance use treatment or pediatric services, and yet that is part of what you require them to purchase…You cannot say that everybody is going to participate in the substance use market and yet you require people to purchase insurance coverage for that.”

Roberts was also skeptical that the individual mandate’s consequences could only be limited to health care, because health care is somehow constitutionally unique. “I think that would be a very significant intrusion by the Court into Congress’s power,” Roberts said. “It’s good for you in this case to say, ‘Oh, it’s just [limited to] insurance.’ But once we say that there is a market and Congress can require people to participate in it, as some would say—or as you would say, that people are already participating in it—it seems to me that we can’t say there are limitations on what Congress can do under its commerce power…all bets are off.”

Roberts also ridiculed the idea that the mandate was constitutional because it was a tax, not a penalty. “You’re telling me they thought of it as a tax,” he asked Solicitor General Donald Verrilli, “they defended it on the tax power. Why didn’t they say it was a tax?”

Severability is another issue. If you read on in the article you'll see that Roberts was not as adamant about severability as he was the mandate, so that one could go either way. Personally, I think the absence of a severability clause should make this cut and dried - if the mandate is unconstitutional, the whole thing should be tossed. Unfortunately, the courts don't always work that way. They often see things that aren't there and call them there anyway.  How do you think we got a right to abortion?

And, as evidenced by the Arizona Immigration ruling, you can't always count on oral arguments to tell you how the case will be decided.  We'll just have to wait it out and hope for the best.

"Activist" Supreme Court?

Just a thought - given that Obama just got pretty much all of what he wanted on the Arizona Immigration Law case, should he lose big on Obamacare does he still try to run a campaign against the "activist" Supreme Court? Gonna be hard to justify.

Obamacare won't be announced until Thursday morning.

Could Fixing Obamacare Be a Winning Issue for Obama?

I doubt it, and so does The Daily Caller:

Will Supreme Court give Obama a box of coal or bag of horse poo for his birthday? -- No matter how the Supreme Court rules on Obamacare, the political fallout for the Obama administration is going to bad, albeit to varying degrees, opines TheDC’s Jamie Weinstein (ME!). The worst case scenario for Obama administration, however, will be if the mandate is ruled unconstitutional:

"Obama has reportedly told Democratic donors that he will work on fixing his health care law in his next term if the Supreme Court overturns it. What a great pitch to run on! Barack Obama 2012: Elect me and I’ll spend the political capital of my second term fixing the unpopular, unconstitutional health care law that I wasted the political capital of my first term pushing through. Then I’ll get to the issues that you care about with whatever diminished political capital I have left. … So when the Supreme Court rules on Obamacare, there will be no great gifts for President Obama and his campaign operations. Politically, he’ll be receiving either a box of coal or, more likely, a bag of horse poo from the High Court as an early birthday present."

If Obamacare is struck down, as I suspect it will be, Obama's entire presidency will be a waste of nearly 4 years. He came into office with tremendous political capital and spent almost all of it jamming Obamacare down America's throat. Passing Obamacare cost his party 63 seats in the House and several more in the Senate in 2010. It's cost Democrats governorships in a number of states, and has kept voters in places like Wisconsin fired up enough to reject Dem union thug politics that used to control that state. It also inspired The Tea Party which has been a driving force behind a resurgent GOP.

Obamacare was a massive failure on so many levels. I'll be surprised if its not also an Obama White House killer in November.

Drum Roll Please...Here We Go With More Supreme Court Decisions

UPDATE: Arizona v. US came down today, somewhat a mixed bag, but overall Obama got most of what he wanted in that case. Basically the heart of the Arizona law was struck down. Certainly not the outcome we'd hoped for. Obamacare will likely come on Thursday, and court experts think there's a high likelihood that Chief Justice Roberts wrote that opinion. That could be good news on how the case will turn out. We'll know later this week.



It's another decision day for the Supreme Court, but I don't expect Obamacare today. They could deliver the Arizona Immigration decision to give everybody time to digest that before Obamacare on Thursday. Everything starts at 10am EDT.

Here are some links to articles about the upcoming Obamacare decision (from Drudge):

'The most important week' of Obama presidency...
Ex-clerks say individual mandate is 'done for'...
Four possible outcomes...
NYT: 'Heartbreak'...
Supporters Slow to Grasp Legal Risks...
Tense wait...

DEATH PANEL: SUPREMES SET FATAL BLOW TO OBAMACARE? 

The Liberal Echo Chamber That Gave Us Obamacare

There's an interesting article in the NY Times (yes, the Times...hard to believe) on where the liberal let went wrong in designing Obamacare and why it's likely that part or all of it will be struck down this week.  Here's part of it:

Congress held no hearing on the plan’s constitutionality until nearly a year after it was signed into law. Representative Nancy Pelosi, then the House speaker, scoffed when a reporter asked what part of the Constitution empowered Congress to force Americans to buy health insurance. “Are you serious?” she asked with disdain. “Are you serious?”

Opponents of the health plan were indeed serious, and so was the Supreme Court, which devoted more time to hearing the case than to any other in decades. A White House that had assumed any challenge would fail now fears that a centerpiece of Mr. Obama’s presidency may be partly or completely overturned on a theory that it gave little credence. The miscalculation left the administration on the defensive as its legal strategy evolved over the last two years.

“It led to some people taking it too lightly,” said a Congressional lawyer who like others involved in drafting the law declined to be identified before the ruling. “It shouldn’t strike anybody as a close call,” the lawyer added, but “given where we are now, do I wish we had focused even more on this? I guess I would say yes.”

Looking back, Democrats said they had had every reason for confidence, given decades of Supreme Court precedents affirming Congress’s authority to regulate interstate commerce, and lawyers who defended the law said they had always taken the challenge seriously even if politicians had not. But they underestimated the chances that conservative judges might, in this view, radically reinterpret or discard those precedents.

Adversaries said the law’s proponents had been too attentive to liberal academics who shaped public discussion. “There’s very little diversity in the legal academy among law professors,” said Randy E. Barnett, a Georgetown University law professor and a leading thinker behind the challenge. “So they’re in an echo chamber listening to people who agree with them.”

We'll find out who was right sometime this week, either Monday or Thursday (I'm betting it will be Thursday). I don't see the mandate surviving (I'm predicting 6-3 against) and I'm hoping they'll just kill the whole thing since there was no severability clause and without the mandate the law would collapse of its own weight anyway. 5-4 on that one.

Supreme Court Could Add A Couple More Decision Days

Right now there are still seven cases left to announce, including the two most complex and controversial - Obamacare and Arizona Immigration. The only scheduled day for announcing new decisions is Monday, but reporter Philip Klein, who covers the Supreme Court, is hearing that they may add decision days next Wednesday and Thursday. No formal announcement yet.

I don't think they'll announce the two most eagerly anticipated cases on the same day, and probably not on a day with several other cases. Various justices may want to read their opinions and the announcement could take some time. I'm thinking they'll dispose of the lesser cases on Monday, and then handle the other two later in the week, probably on separate days, with Obamacare probably being the final announcement next Thursday.

We'll see.

Day 2 of Supreme Court Opinions

Tomorrow is the 2nd day in which we expect the release of Supreme Court opinions.  Legal Insurrection has this:

There are several really important Supreme Court decisions to be handed down tomorrow at 10 a.m., Monday at 10 a.m., or next Thursday at 10 a.m.

ScotusBlog has a “plain English” summary of the remaining cases, and almost all have huge legal implications (forced union contributions for political purposes, whether FCC indecency standards are unconstitutionally vague, and one which by analogy might be of interest to a certain senatorial candidate, whether a law making it a crime to lie about having received military honors violates the First Amendment).

But let’s face it, the two biggies are the decisions in Arizona v. U.S. over the Arizona immigration law and, by far the biggiest of the biggies, the Obamacare ruling.

When either of those come down, the air will be sucked out of the media on all other issues.  If they are handed down the same day, the nation might collapse from lack of oxygen.

I bet in some ways Obama hopes the controversial opinions come out tomorrow to take the heat off Fast and Furious for at least a few minutes.  However, I'm not expecting them until next Monday.

First Day of Decisions From the Supreme Court

UPDATE:  Neither of the big decisions (Obamacare nor Arizona Immigration) were announced today.

The Supreme Court has scheduled three decision days to release the results of 21 cases yet to be announced for this term, including Obamacare and the Arizona Immigration law case.  Justice Ruth Bader Ginsburg says we can expect some narrowly divided decisions coming:

With a wry smile, Justice Ruth Bader Ginsburg laid waste Friday to all those rumors about the fate of the Affordable Care Act in the Supreme Court.

“Those who know don’t talk. And those who talk don’t know,” she quipped Friday night at a conference hosted by the American Constitution Society at the Capital Hilton.

Ginsburg said she was responding to a "steady stream of rumors and fifth-hand accounts" about the court's deliberations on the law.

Careful not to tip her hand on the court’s ruling — expected in the next two weeks — Ginsburg described the oral arguments in the case as unprecedented for the number of “press conferences, prayer circles, protests and counterprotests” that occurred on the courthouse steps.

Although she offered no insight into the tightly held decisions of her colleagues, Ginsburg did indicate that many of the court’s decisions over the next two weeks — which are also expected to include an FCC indecency ruling — might be close.

The 21 remaining decisions, she said, were “many of the most controversial cases” that the court reviewed this term.

“It is likely that the sharp disagreement rate will go up next week and the week after,” she said.

Decisions could be announced today, Thursday June 21, or next Monday June 25. It's going to be a newsworthy 8 days.

By the way, for anyone who assumes all decisions will be 5-4 with the same people lining up on each side, Erick Erickson provides this via Twitter:

Today's far right SCOTUS brought us a majority opinion with Sotomayor, Scalia, Kennedy, Thomas, and Kagan.

Today's far right SCOTUS also brought an opinion with Alito, Roberts, Kennedy, Breyer, and Thomas in the majority.

Today's far right Supreme Court also went 8 to 1 in favor of property owners against the government with Sotomayor the lone dissent.

I'm still thinking Obamacare will go 6-3 against the law. We'll see.

Liberals Plan an Obamacare PR Campaign

Seems like a waste of time and effort to me:

A month before the Supreme Court is expected to rule on the constitutionality of Obamacare, liberal supporters are already planning an aggressive propaganda campaign to sway media coverage and public opinion.

The focus of the liberal public-relations campaign will be on “real people” — individuals who can speak about the impact of the ruling regardless of what the Supreme Court decides. A newly released memo, first published by BuzzFeed, suggests liberals should adapt their message and events to defend government-run health care. ...

Suggested venues for events include federal courthouses, senior centers, hospital emergency rooms and even Planned Parenthood abortion centers. The memo encourages speakers such as teachers, doctors, nurses and small businessmen.

Supreme Court Justices have lifetime appointments, so no amount of intimidation from liberal groups will have any effect on them. And given that a majority of voters oppose Obamacare, this PR campaign won't have much effect on the election either.

Frankly, I think this is just an organized temper tantrum being put on by people who expect to lose in court.

Dick Cheney's Advice for Pat Leahy Was Right on the Money

Way back in 2004 Dick Cheney advised Senator Pat Leahy that he could "go f*** yourself".  I'd like to second the motion:

You can tell the Supreme Court is getting closer to its historic ObamaCare ruling because the left is making one last attempt to intimidate the Justices. The latest effort includes taunting Chief Justice John Roberts that if the Court overturns any of the law, he'll forever be defined as a partisan "activist."

Senate Judiciary Chairman Pat Leahy recently took the extraordinary step of publicly lobbying the Chief Justice after oral argument but before its ruling. "I trust that he will be a Chief Justice for all of us and that he has a strong institutional sense of the proper role of the judicial branch," the Democrat declared on the Senate floor. "The conservative activism of recent years has not been good for the Court."

He added that, "Given the ideological challenge to the Affordable Care Act and the extensive, supportive precedent, it would be extraordinary for the Supreme Court not to defer to Congress in this matter that so clearly affects interstate commerce."

I know a little bit about John Roberts and I think I can safely say that he doesn't really care what Leahy, or the public for that matter, thinks about him. He has a lifetime appointment as Chief Justice of the Supreme Court. Leahy can't touch him. The voters can't touch him. I'll never forget his quote during his confirmation hearing:

ROBERTS: I had someone ask me in this process, I don't remember who it was, but somebody asked me, you know, "Are you going to be on the side of the little guy," and you obviously want to give an immediate answer, but as you reflect on it, if the Constitution says that the little guy should win, the little guy is going to win in court before me. But if the Constitution says that the big guy should win, well, then the big guy is going to win because my obligation is to the Constitution. That's the oath. The oath that a judge takes is not that I'll look out for particular interests; I'll be on the side of particular interests. The oath is to uphold the Constitution and laws of the United States, and that's what I would do.

As long as Roberts continues to allow the Constitution to guide his decisions, I'm not too worried about what Leahy or anyone has to say about him.

Catholics Aren't Waiting for the Supreme Court - File Massive Lawsuit Against Obamacare

I guess the Catholic church isn't taking any chances that the Supreme Court might uphold portions of Obamacare.  They're filing a lawsuit:

At 11 a.m. Eastern time today, 43 Catholic dioceses and organizations — including Our Sunday Visitor and the University of Notre Dame — filed religious liberty lawsuits against the federal government in a dozen different jurisdictions around the country.

At issue are regulations that require Catholic organizations, employers and insurers to provide or facilitate abortion-inducing drugs, sterilization and contraception — in violation of their consciences.

Equally troubling is the extreme narrowness of the government’s new test for determining which religious organizations are exempt from this mandate — which would appear to exclude Catholic schools, health care facilities, charities and others like Our Sunday Visitor.

It may all be moot if the Court strikes down the entire law, but if it doesn't, this case will go forward.

In 2009 Obama was the commencement speaker at Notre Dame. I wonder if this makes them the first school to sue a former commencement speaker?

Now, if they would just do something about politicians and celebrities who claim to be Catholic while at the same time supporting abortion...

Catholic University Cancels Student Health Policies Because of Obamacare

Taking a stand:

The Franciscan University in Steubenville, Ohio is one college taking a stand against ObamaCare, dropping the health insurance coverage for its students. The decision, the school says, was made due to a handful of considerations.

Michael Hernon, VP of Advancement, told Steve Doocy on Fox and Friends that when school officials found out the Affordable Health Care Act would require schools to provide contraceptives, sterilization and other drugs on their health care plans, they reacted the only way they could.

“As soon as this announcement was made, we said we cannot comply with this sort of order … it goes against our deeply held moral and religious beliefs, and we will fight it, and we have been fighting,” Hernon said. “This is an attack on our first amendment freedoms.”

The other issue came up when the administrators tried to determine how to marry what the law required and what the school teaches in the classroom.

“We took an oath of fidelity. This is unconscionable … I would’ve never imagined that at this day in age in America that the federal government would compel us to do something against our religious beliefs.”

Not to mention that the insurance policy that now costs students $600 bucks would end up doubling next year and tripling the year after that under the expanded coverage, according to Hernon.

“That’s something that’s both a moral and economic injustice, in my opinion … the Affordable Care Act is simply unaffordable for our students.”

Perhaps they'll change their mind when Obamacare is struck down by the Supreme Court. We'll see.

Unfortunately, not all Catholic universities get it:

The commencement speaker this June at the largest Catholic university believes that Christianity is the most dangerous of devotions and that the earth would benefit from the extinction of man. De Paul University, in Chicago, is hosting E.O. Wilson, a two-time Pulitzer Prize winner and professor of entomology at Harvard University. Wilson’s beliefs run directly contrary to Christian tradition, and his statements are unequivocal in their opposition:

1998: “The most dangerous of devotions, in my opinion, is the one endemic to Christianity: I was not born to be of this world,” as belief in an afterlife weakens man’s devotion to the planet earth.” 

Let's not forget that Obama was invited to speak at Notre Dame, despite his support for abortion. An awful lot of Catholics prefer a politically correct religion to the one they claim to follow.

Political Quote of the Day

Brit Hume talks about Obama's silly campaign to influence the Supreme Court:

“I think it is damaging, particularly in regard to health care,” Hume said. “This is the centerpiece of his domestic agenda. It is his proudest achievement and if it is struck down by the Supreme Court, it then bears the stamp of illegitimacy. It is already unpopular. It would, I think, in the aftermath be more so.”

“And I think — I don’t think there is some pre-cushioned bank shot where people argue, ‘Well, it would take the issue off of the table and that would be good for him,’ and so forth. I don’t buy that. I think that the Arizona law may be in even more trouble with the court than the health care law. I don’t think it is as important, or is as essential as the health care law. But I don’t think it would help him either to have his position in the enforcement of the immigration laws resisted by the Supreme Court. It is embarrassing, and it also gives that Arizona law a kind of a boost in the public’s imagination.”

Obama grew up in Chicago politics where bullying is a way of getting things done. It won't work with The Supreme Court and it demeans the office.

Obama Tries to Fool Seniors by Hiding Coming Collapse of Medicare Advantage Program

Slush fund:

A new report by the Government Accountability Office has called on the Obama administration to shut down a program that would have diverted $8.4 billion from elsewhere in the budget to help offset scheduled Medicare cuts that otherwise would have gone into effect during the 2012 election year.

Over the course of the health care debate, Republicans attacked President Obama's legislation for making cuts to Medicare Advantage, a program that provides health care to seniors through private plans that contract with the federal government. About one out of four Medicare beneficiaries, or nearly 12 million seniors, are in a Medicare Advantage plan. But in November 2010, the Obama administration's Center for Medicare and Medicaid Services announced a "demonstration" program to offer "bonus payments" to certain plans within Medicare Advantage.

Though the GAO did not specifically say that election year politics were behind the decision, the report released today makes it difficult to reach a another conclusion. Had Obamacare gone into effect as written, millions of enrollees would have seen their benefits cut in 2012. But as a result of this project, 71 percent of scheduled payment cuts will be offset, according to the GAO.

Seniors who have to make their 2013 medical insurance choices before the end of the year would have gotten a very nasty surprise right before the election. Obama is trying to hide that surprise by pushing the devastating effects of Obamacare into 2012 when he'll no longer have to worry about what voters think. At that point he'll either be out of office or safely ensconced for another four years and will be safe from whatever destruction his policies create.

Obamacare Cartoon of the Day

Heh:

Obamacare Quote of the Day

From CBS White House Correspondent Bill Plante, addressing Obama's press spokeshold Jay Carney in regard to Obama's statements that the courts shouldn't mess with Obamacare:

What he said on Monday was an obvious misspoken moment, because he talked about the court not being in the position to overturn acts of Congress. You‘re standing up there twisting yourself in knots because he made a mistake, and you can’t admit it.

Good for Plante. That's what White House press used to regularly do to Republican press secretaries - it's about time they started holding these guys responsible for their words too.

In a related item, read this piece by Daniel Henninger on Obama's tactics regarding the Supreme Court. Interesting.

Political Cartoon of the Day

H/t Jay:

Did the Dog Eat Eric Holder's Homework?

Eric Holder's three page, single-spaced report on whether the Obama Administration believes the judiciary has the authority to overturn Federal legislation is due to the 5th Circuit court by noon today. Will the dog eat his homework?

A lot of people are anxious to see what his staff writes for him, because you can bet those words will be quoted again when the Obamacare ruling finally comes out.

UPDATE:  You can read the letter here.  Basically the DOJ admits that Obama spoke stupidly, but it also tries to lobby the court once again to let Congress do pretty much whatever it wants when it comes to the economy.

What Will Obama Do When The Obamacare Decision Goes Against Him?

Rush Limbaugh writes his speech for him:

“‘For 60 to 75 years, we have been struggling to achieve fairness and justice for all people in this country, not just the privileged few. We’ve recognized that the way health care has existed in this country is emblematic of the injustice and the discrimination that has defined this country since its beginning. And look what happened. Republican judges just took away your health care. Republican judges just decided you were about to get too big a piece of the pie. Republican judges determined that you’re not important enough to have health care.’ And then he’ll throw in, ‘We’ve seen similar struggles since the days of Jim Crow’ or throw in some identifier, throw in some code word. And then he’ll relate the loss of health care to civil-rights battles that have occurred. And he’ll do this in his best professorial voice. And he in the process will be lighting another fuse.”

Once Obama finishes his assault on the GOP-appointed members of the bench, he says leftist “sycophants will hit the trail and we will hear slogans like ‘We shall overcome the court.’

“Then his buddies at the Daily Beast will start writing columns that the judges who voted to overturn it need to be impeached. Where they live will be discovered and publicized. And just as the Democrats sent Occupy people and union people up to the homes of the executives at AIG, so too might they do this to various judges, justices and so forth.

While Limbaugh said every event may not occur, he added. “I guarantee you there will be, with all the rest of this, a defiance [of] ‘Why do we have to listen to them anyway? … Why? They keep their health care. They didn’t get rid of their own, but they just got rid of yours,’ and it’s off to the races for the 2012 presidential election. That’s what’s going to happen.”

The Daily Beast is already writing articles calling for impeachment of the Supreme Court should they overrule Obamacare. That part of the job is done, and the rest of it wouldn't surprise me a bit. The 2012 campaign will become a giant diversion from Obama's record and the Supreme Court will become the new "George Zimmerman".